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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2020
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the transition period from
to
Commission file number: 0-32405
SEAGEN INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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91-1874389 |
(State or other Jurisdiction of incorporation or
organization) |
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(I.R.S. Employer Identification No.) |
21823 30th
Drive SE, Bothell, WA 98021
(Address of principal executive offices, including zip
code)
Registrant’s telephone number, including area code:
(425) 527-4000
Securities registered pursuant to Section 12(b) of the
Act:
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Title of class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, par value $0.001 |
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SGEN |
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The Nasdaq Stock Market LLC |
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Securities registered pursuant to Section 12(g) of the
Act: |
None |
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities
Act. Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15(d) of the
Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90
days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted
electronically every Interactive Data File required to be submitted
pursuant to Rule 405 of Regulation S-T during the preceding 12
months (or for such shorter period that the registrant was required
to submit such
files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Emerging growth company |
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Non-accelerated filer |
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Smaller reporting company |
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
Indicate by check mark whether the registrant has filed a report on
and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section
404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the
registered public accounting firm that prepared or issued its audit
report. ☒
Indicate by check mark whether the registrant is a shell company
(as defined in Rule 12b-2 of the Exchange
Act). Yes ☐ No ☒
The aggregate market value of the voting and non-voting common
equity held by non-affiliates of the registrant was approximately
$21.1 billion as of the last business day of the registrant’s most
recently completed second fiscal quarter, based upon the closing
sale price on The Nasdaq Global Select Market reported for such
date. Excludes an aggregate of 49,451,384 shares of the
registrant’s Common Stock held as of such date by officers,
directors and stockholders that the registrant has concluded are or
were affiliates of the registrant. Exclusion of such shares should
not be construed to indicate that the holder of any such shares
possesses the power, direct or indirect, to direct or cause the
direction of the management or policies of the registrant or that
such person is controlled by or under common control with the
registrant.
There were 181,164,446 shares of the registrant’s Common Stock
issued and outstanding as of February 9, 2021.
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates information by reference from the
registrant’s definitive proxy statement to be filed with the
Securities and Exchange Commission pursuant to Regulation 14A, not
later than 120 days after the end of the fiscal year covered by
this Annual Report on Form 10-K, in connection with the
registrant’s 2021 Annual Meeting of Stockholders.
TABLE OF CONTENTS
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Page |
PART I |
Item 1. |
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Item 1A. |
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Item 1B. |
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Item 2. |
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Item 3. |
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Item 4. |
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PART II |
Item 5. |
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Item 6. |
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Item 7. |
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Item 7A. |
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Item 8. |
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Item 9. |
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Item 9A. |
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Item 9B. |
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PART III |
Item 10. |
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Item 11. |
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Item 12. |
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Item 13. |
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Item 14. |
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PART IV |
Item 15. |
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Item 16. |
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains forward-looking statements
within the meaning of Section 27A of the Securities Act of
1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements are based on our management’s beliefs
and assumptions and on information currently available to our
management. All statements other than statements of historical
facts are “forward-looking statements” for purposes of these
provisions, including those relating to future events or our future
financial performance and financial guidance. In some cases, you
can identify forward-looking statements by terminology such as
“may,” “might,” “will,” “should,” "could", “expect,” “plan,”
“anticipate,” “project,” “believe,” “estimate,” “predict,”
“potential,” “intend” or “continue,” the negative of terms like
these or other comparable terminology, and other words or terms of
similar meaning in connection with any discussion of future
operating or financial performance. These statements are only
predictions. All forward-looking statements included in this Annual
Report on Form 10-K are based on information available to us on the
date hereof, and we assume no obligation to update any such
forward-looking statements, except as required by law. Any or all
of our forward-looking statements in this document may turn out to
be incorrect. Actual events or results may differ materially. Our
forward-looking statements can be affected by inaccurate
assumptions we might make or by known or unknown risks,
uncertainties and other factors. We discuss many of these risks,
uncertainties and other factors in this Annual Report on Form 10-K
in greater detail under the heading “Item 1A—Risk Factors.” We
caution investors that our business and financial performance are
subject to substantial risks and uncertainties.
RISK FACTOR SUMMARY
Investing in our securities involves a high degree of risk. Below
is a summary of material factors that make an investment in our
securities speculative or risky. Importantly, this summary does not
address all of the risks that we face. Additional discussion of the
risks summarized in this risk factor summary, as well as other
risks that we face, can be found under the heading “Item
1A—Risk
Factors”, below.
•Our
success depends on our ability to effectively commercialize our
products. If we and our collaborators are unable to effectively
commercialize our products and to expand their utilization, our
ability to generate significant revenue and our prospects for
profitability will be adversely affected.
•Our
success also depends on our ability to obtain regulatory approvals
for our product candidates and for our current products in
additional territories, as well as our ability to expand the
labeled indications of use for our current products, and, if the
requisite approvals are obtained, our ability to successfully
launch and commercialize our products in their approved
indications. Our inability to do so could have a material adverse
effect on our business, financial condition, results of operations
and growth prospects.
•Reports
of adverse events or safety concerns involving our products or
product candidates could delay or prevent us from obtaining or
maintaining regulatory approvals or could negatively impact sales
of our products or the prospects for our product
candidates.
•Clinical
trials are expensive and time consuming, may take longer than we
expect or may not be completed at all, and their outcome is
uncertain.
•The
successful commercialization of our products and our product
candidates will depend on a variety of factors, including the
extent to which governmental authorities and health insurers
establish adequate coverage and reimbursement levels and pricing
policies, and the acceptance of our products by the medical
community and patients.
•Our
product candidates are in various stages of development, and it is
possible that none of our product candidates will ever become
commercial products.
•Any
failures or setbacks in our antibody-drug conjugate, or ADC,
development program or our other platform technologies could
negatively affect our business and financial position.
•We
face intense competition and rapid technological change, which may
result in others discovering, developing or commercializing
competing products before or more successfully than we
do.
•Even
if we and our collaborators obtain regulatory approvals to market
our current and any future approved products, we and our
collaborators will remain subject to extensive ongoing regulatory
obligations and oversight, including post-approval requirements,
that could result in significant additional expense and could
negatively impact our and our collaborators’ ability to
commercialize our current and any future approved
products.
•Healthcare
law and policy changes may have a material adverse effect on
us.
•We
are subject to various state and federal and foreign laws and
regulations, including healthcare, data protection and privacy laws
and regulations, that may impact our business and could subject us
to significant fines and penalties or other negative
consequences.
•We
depend on collaborative relationships with other companies to
assist in the development and commercialization of our products and
some of our product candidates and for the development and
commercialization of other product candidates utilizing or
incorporating our technologies. If we are not able to locate
suitable collaborators or if our collaborators do not perform as
expected, this may negatively affect our ability to commercialize
our products, develop and commercialize our product candidates
and/or generate revenues through technology licensing, or may
otherwise negatively affect our business.
•We
currently rely on third-party manufacturers and other third parties
for production of our drug products and our dependence on these
manufacturers may impair the continued development and
commercialization of our products and product
candidates.
•If
we are unable to enforce our intellectual property rights or if we
fail to sustain and further procure additional intellectual
property rights, we may not be able to successfully commercialize
our products or any future products and competitors may be able to
develop competing therapies.
•We
have been and may in the future be subject to litigation, which
could result in substantial damages and may divert management’s
time and attention from our business.
•We
and our collaborators rely on license agreements for certain
aspects of our products and product candidates and technologies
such as our ADC technology. Failure to maintain these license
agreements or to secure any required new licenses could prevent us
from continuing to develop and commercialize our products and
product candidates.
•If
we are unable to manage our growth, our business, financial
condition, results of operations and prospects may be adversely
affected.
•Risks
associated with our expanding operations in foreign countries could
materially adversely affect our business.
•Our
operating results are difficult to predict and may fluctuate. If
our operating results are below the expectations of securities
analysts or investors, the trading price of our stock could
decline.
•We
have a history of net losses. We expect to continue to incur net
losses and may not achieve future sustained profitability for some
time, if at all.
•Our
stock price is volatile and our shares may suffer a decline in
value.
•Our
existing stockholders have significant control of our management
and affairs.
PART I
Item 1. Business
Overview
Seagen is a biotechnology company that develops and commercializes
targeted therapies to treat cancer. We are commercializing
ADCETRIS®,
or brentuximab vedotin, for the treatment of certain
CD30-expressing lymphomas, PADCEV®,
or enfortumab vedotin-ejfv, for the treatment of certain metastatic
urothelial cancers, and TUKYSA®,
or tucatinib, for treatment of certain metastatic HER2-positive
breast cancers. We are also advancing a pipeline of novel therapies
for solid tumors and blood-related cancers designed to address
unmet medical needs and improve treatment outcomes for patients.
Many of our programs, including ADCETRIS and PADCEV, are based on
our antibody-drug conjugate, or ADC, technology that utilizes the
targeting ability of monoclonal antibodies to deliver cell-killing
agents directly to cancer cells. In October 2020, we changed our
corporate name from Seattle Genetics, Inc. to Seagen Inc.,
reflecting the global expansion of our operations.
Our strategy is to become a leading global oncology company
developing and marketing targeted therapies for cancer. Key
elements of our strategy are to maximize the potential of our
approved medicines through successful commercial execution, expand
the number of patients eligible to receive our medicines by
securing approvals of our commercial products in other countries,
conduct clinical trials designed to support additional labels for
our products, and develop new first-in-class or best-in-class
medicines. We seek to commercialize our products either on our own
as we expand our operations globally or through commercial
partnerships. We are deploying our internal research, clinical,
development, regulatory and manufacturing expertise to advance and
expand our deep pipeline of drug candidates aimed at gaining new
product approvals. We conduct internal research directed at
identifying novel antigen targets, monoclonal antibodies and other
targeting molecules, creating new antibody engineering techniques
and developing new classes of stable linkers and cell-killing
agents in support of our continued ADC innovation. In addition, we
supplement these internal efforts by acquiring or in-licensing
products, product candidates and technologies from biotechnology
and pharmaceutical companies and academic
institutions.
COVID-19
We are continuing to closely monitor the impact of the evolving
effects of the COVID-19 pandemic on our business and are taking
proactive efforts designed to protect the health and safety of our
workforce, patients and healthcare professionals, and to continue
our business operations and advance our goal of bringing important
medicines to patients as rapidly as possible.
We continue to maintain measures designed to protect the health and
safety of our workforce and to reduce the transmission of COVID-19,
including a mandatory work-from-home policy for employees who can
perform their jobs offsite. We are continuing essential research,
manufacturing, and laboratory activities on site and maintain a
number of additional precautionary measures designed to protect
these onsite employees, such as temperature checks, screening
protocols, masks, social distancing, contact tracing and making
testing available. In the conduct of our business activities, we
are also taking actions designed to protect the safety of patients
and healthcare professionals. Among other actions, our field-based
personnel have paused most in-person customer interactions in
healthcare settings and have been using primarily electronic
communications to support healthcare professionals and patients.
They are engaging in limited in-person interactions where state and
local laws and regulations allow, the institution or office is
accepting in-person interactions and our field-based personnel are
comfortable engaging in-person with healthcare providers. See also
“—Human Capital Resources—COVID-19” below. We believe that the
measures we have implemented are appropriate and are helping to
reduce transmission of COVID-19, and we will continue to monitor
conditions and related guidance from governmental authorities and
adjust our activities as appropriate. For information regarding the
impacts of the evolving effects of the COVID-19 pandemic on our
ability and the ability of our collaborators to effectively market,
sell and distribute our products and to develop our products and
product candidates, see “Management’s Discussion and Analysis of
Financial Condition and Results of Operations—Overview—Outlook” in
Part II Item 7 of this Annual Report on Form 10-K.
Our Medicines
Our approved medicines include the following:
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Product*
|
Therapeutic Area |
U.S. Approved Indication |
|
Hodgkin Lymphoma |
Previously untreated Stage III/IV classical Hodgkin lymphoma, or
cHL, in combination with doxorubicin, vinblastine and
dacarbazine |
cHL at high risk of relapse or progression as post-autologous
hematopoietic stem cell transplantation, or auto-HSCT,
consolidation |
cHL after failure of auto-HSCT or after failure of at least two
prior multi-agent chemotherapy regimens in patients who are not
auto-HSCT candidates |
T-cell Lymphoma |
Previously untreated sALCL or other CD30-expressing PTCL, including
angioimmunoblastic T-cell lymphoma and PTCL not otherwise
specified, in combination with cyclophosphamide, doxorubicin and
prednisone |
sALCL after failure of at least one prior multi-agent
chemotherapy regimen |
Primary cutaneous anaplastic large cell lymphoma, or pcALCL, or
CD30-expressing mycosis fungoides who have received prior systemic
therapy |
|
Urothelial Cancer |
Locally advanced or metastatic urothelial cancer who have
previously received a PD-1 or PD-L1 inhibitor and a
platinum-containing chemotherapy before (neoadjuvant) or after
(adjuvant) surgery in a locally advanced or metastatic
setting.
|
|
Breast Cancer |
In combination with trastuzumab and capecitabine for the treatment
of adult patients with advanced unresectable or metastatic
HER2-positive breast cancer, including patients with brain
metastases, who have received one or more prior anti-HER2-based
regimens in the metastatic setting.
|
•*ADCETRIS,
PADCEV and TUKYSA are only indicated for adults.
|
ADCETRIS®
ADCETRIS is an ADC targeting CD30, which is a protein located on
the surface of cells and highly expressed in Hodgkin lymphoma,
certain T-cell lymphomas as well as other cancers. ADCETRIS first
received approval in an initial indication by the U.S. Food and
Drug Administration, or FDA, in 2011 and has since been approved in
a total of six indications to treat Hodgkin lymphoma and T-cell
lymphomas in various settings including as frontline
therapy.
Prior to the approval of ADCETRIS, the standard of care frontline
therapy for patients with Hodgkin lymphoma and PTCL has seen
limited improvement over the last few decades. Additionally,
chemotherapy regimens have substantial associated toxicities and a
significant number of lymphoma patients relapse and require
additional treatments including other chemotherapy regimens and
autologous stem cell transplant, or ASCT. Beyond our current
labeled indications, we are evaluating ADCETRIS in several clinical
trials to potentially broaden its use.
ADCETRIS is commercially available in more than 75 countries
worldwide. We commercialize ADCETRIS in the U.S. and its
territories and in Canada, and we collaborate with Takeda
Pharmaceutical Company Limited, or Takeda, to develop and
commercialize ADCETRIS on a global basis. Under this collaboration,
Takeda has commercial rights in the rest of the world and pays us a
royalty. Takeda has received regulatory approvals for ADCETRIS as
monotherapy or in combination with agents in various settings for
the treatment of patients with Hodgkin lymphoma or CD30-positive
T-cell lymphomas in Europe and many countries throughout the rest
of the world and is pursuing additional regulatory
approvals.
PADCEV®
PADCEV is an ADC targeting Nectin-4, a protein expressed on the
surface of cells and highly expressed in bladder cancer as well as
other cancers. PADCEV was granted accelerated approval by the FDA
in December 2019 for the treatment of adult patients with locally
advanced or metastatic urothelial cancer who have previously
received a PD-1 or PD-L1 inhibitor and a platinum-containing
chemotherapy before (neoadjuvant) or after (adjuvant) surgery in
the locally advanced or metastatic setting. FDA approval of PADCEV
was supported by data from a single-arm pivotal phase 2 clinical
trial called EV-201. Continued approval may be contingent upon
verification and description of clinical benefit in a required
confirmatory trial. As discussed further below, Astellas and we
plan to submit a supplemental BLA to the FDA based on the global
phase 3 clinical trial called EV-301 as the confirmatory
trial.
In the metastatic setting, several PD-1 and PD-L1 inhibitors have
been approved for urothelial cancer in the past several years and
are improving outcomes for some patients, yet the vast majority of
patients do not benefit, or relapse, and require additional
treatment options. Prior to the approval of PADCEV in the U.S.
there were no approved agents in the post-platinum-based therapy
and post-checkpoint inhibitor setting, representing an unmet
medical need. We are conducting clinical trials in frontline
metastatic disease, muscle invasive bladder cancer and in a range
of other solid tumors. In addition, we are working on a development
strategy in non-muscle invasive bladder cancer.
PADCEV, is being co-developed and jointly commercialized with
Astellas Pharma, Inc., or Astellas. In the U.S., we and Astellas
are jointly promoting PADCEV. In the U.S., we record net sales of
PADCEV and are responsible for all distribution activities. We and
Astellas each bear the costs of our own sales organizations in the
U.S., equally share certain other costs associated with
commercializing PADCEV in the U.S., and equally share in any
profits realized in the U.S.
TUKYSA®
TUKYSA is an oral, small molecule tyrosine kinase inhibitor, or
TKI, that is highly selective for HER2, a growth factor receptor
overexpressed in many cancers. HER2 mediates cell growth,
differentiation and survival. Tumors that over-express HER2 are
generally more aggressive and historically have been associated
with poor overall survival, compared with HER2-negative cancers. In
April 2020, TUKYSA received approval from the FDA in combination
with trastuzumab and capecitabine for the treatment of adult
patients with advanced unresectable or metastatic HER2-positive
breast cancer, including patients with brain metastases, who
have received one or more prior anti-HER2-based regimens in the
metastatic setting. FDA approval of TUKYSA was supported by data
from the HER2CLIMB trial. We are conducting a broad clinical
development program of TUKYSA including ongoing and planned trials
in earlier lines of breast cancer and in other HER2-positive
cancers.
The FDA reviewed the application for approval under the Oncology
Center of Excellence's, or OCE's, Real Time Oncology Review, or
RTOR, pilot program. We also participated in the Project Orbis
initiative of the FDA OCE which provides a framework for concurrent
submission and review of oncology products among international
partners. Under this program we have received approval from the
following countries participating in the FDA's Project Orbis
initiative: U.S., Canada, Australia, Singapore, and Switzerland. In
February 2021, the European Commission, or EC, granted marketing
authorization for TUKYSA in combination with trastuzumab and
capecitabine for the treatment of adult patients with HER2-positive
locally advanced or metastatic breast cancer who have received at
least two prior anti-HER2 treatment regimens. This approval is
valid in all countries of the European Union as well as Norway,
Liechtenstein, Iceland and Northern Ireland. We have also submitted
a regulatory application to the U.K. Medicines and Healthcare
Product Regulatory Authority, or MHRA.
We are commercializing TUKYSA in the U.S. and Canada and also
expect to commercialize TUKYSA in Europe. In September 2020, we
entered into a license and collaboration agreement with a
subsidiary of Merck, or the TUKYSA Agreement, that granted
exclusive rights to Merck & Co., Inc., or Merck, to
commercialize TUKYSA in Asia, the Middle East and Latin America and
other regions outside of the U.S., Canada and Europe. The
collaboration is intended to accelerate global availability of
TUKYSA.
Our Clinical Development Pipeline
The following table summarizes the key clinical trials of ADCETRIS,
PADCEV, TUKYSA and our lead product candidates:
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Product or
Product Candidate |
Tumor Type |
Setting |
Trial Name / Description |
Development Status |
ADCETRIS (brentuximab vedotin) |
Diffuse large B-cell lymphoma |
R/R |
In combination with lenalidomide and rituximab |
Phase 3* |
Hodgkin lymphoma |
1L |
In combination with nivolumab, doxorubicin and
dacarbazine |
Phase 2 |
Hodgkin lymphoma or Peripheral T-cell lymphoma, unfit for
chemotherapy |
1L |
Monotherapy |
Phase 2 |
Hodgkin lymphoma (pediatrics) |
R/R |
CheckMate 744: In combination with nivolumab1
|
Phase 2 |
Peripheral T-cell lymphoma (< 10% CD30 expression) |
1L |
In combination with cyclophosphamide, doxorubicin and
prednisone |
Phase 2 |
Metastatic solid tumors |
R/R |
In combination with pembrolizumab | post PD-1 inhibitor
treatment |
Phase 2 |
PADCEV (enfortumab vedotin-ejfv)2
|
Locally advanced or metastatic urothelial cancer |
1L |
EV-302: In combination with pembrolizumab vs chemotherapy
alone |
Phase 3* |
2L/3L |
EV-301: Monotherapy | post PD(L)-1 and post platinum
chemotherapy |
Phase 3* |
2L |
EV-201 Cohort 2: Monotherapy | post PD(L)-1, platinum naive and
cisplatin ineligible |
Phase 2* |
1L/2L |
EV-103: Monotherapy and in combination with
pembrolizumab |
Phase 2* |
Muscle invasive bladder cancer |
1L |
EV-303/KEYNOTE-905: In combination with pembrolizumab |
cisplatin-ineligible |
Phase 3* |
1L |
EV-304/KEYNOTE-B15: In combination with pembrolizumab |
cisplatin-eligible |
Phase 3* |
1L |
EV-103: Monotherapy and in combination with
pembrolizumab |
Phase 2 |
Locally advanced or metastatic solid tumors |
R/R |
EV-202: Monotherapy |
Phase 2 |
TUKYSA (tucatinib) |
HER2+ metastatic breast cancer |
1L/2L |
HER2CLIMB-02: In combination with T-DM1 |
Phase 3* |
High risk HER2+ breast cancer |
ADJ |
COMPASSHER2 RD5:
In combination with T-DM1
|
Phase 3* |
HER2+ metastatic breast cancer |
|
HER2CLIMB-04: In combination with
trastuzumab deruxtecan |
Phase 2 |
HER2+ metastatic colorectal cancer |
R/R |
MOUNTAINEER: In combination with trastuzumab |
Phase 2* |
HER2+ gastroesophogeal cancer |
2L |
MOUNTAINEER-02: In combination trastuzumab, ramucirumab and
chemotherapy |
Phase 2* |
Metastatic solid tumors HER2 alterations |
|
In combination trastuzumab with or without fulvestrant |
Phase 2 |
HER2+ gastric cancer |
1L |
In combination with trastuzumab and oxaliplatin |
Phase 1 |
Tisotumab Vedotin3
|
Recurrent/metastatic cervical cancer |
2L/3L |
innovaTV 301: Monotherapy |
Phase 3* |
2L/3L |
innovaTV 204: Monotherapy |
Phase 2* |
1L/2L |
innovaTV 205: In combination with other ant-cancer
agents |
Phase 1/2 |
Locally advanced solid tumors |
|
innovaTV 206: (Japan only) |
Phase 2 |
Metastatic solid tumors |
R/R |
innovaTV 207: Monotherapy |
Phase 2 |
Platinum-resistant ovarian cancer |
2L |
innovaTV 208: Monotherapy |
Phase 2 |
Ladiratuzumab Vedotin4
|
Metastatic triple-negative breast cancer |
1L |
In combination with pembrolizumab |
Phase 2 |
Metastatic solid tumors |
R/R |
Monotherapy |
Phase 2 |
Metastatic breast cancer (HR+/HER2-) |
R/R |
In combination with trastuzumab |
Phase 2 |
1L: front/first-line 2L:second-line R/R:relapsed or refractory ADJ
= adjuvant
* indicates registrational intent
|
1.Clinical
collaboration with Bristol-Myers Squibb
2.50:50
co-development and commercial collaboration with
Astellas
3.50:50
co-development and commercial collaboration with
Genmab
4.50:50
co-development and commercial collaboration with Merck
5.Conducted
in collaboration with Alliance for Clinical Trials in Oncology and
National Cancer Institute (NCI)
|
Clinical Development Status
ADCETRIS (brentuximab vedotin)
Beyond our current labeled indications, we are evaluating ADCETRIS
as monotherapy and in combination with other agents in ongoing
trials which include several potential registration-enabling
trials. In addition to our corporate-sponsored trials there are
numerous investigator-sponsored trials of ADCETRIS in the United
States. The investigator-sponsored trials include the use of
ADCETRIS in a number of malignant hematologic indications and in
solid tumors.
As previously reported, the phase 3 ECHELON-1 trial achieved its
primary endpoint with the combination of ADCETRIS plus AVD
(Adriamycin [doxorubicin], vinblastine and dacarbazine) resulting
in a statistically significant improvement in modified PFS compared
to the control arm of ABVD, which includes bleomycin, in patients
with Stage III and IV frontline classical Hodgkin lymphoma. Also
previously reported, the phase 3 ECHELON-2 trial met its primary
endpoint with the combination of ADCETRIS plus CHP
(cyclophosphamide, Adriamycin [doxorubicin], vincristine,
prednisone) resulting in a statistically significant improvement in
PFS versus the control arm of CHOP in patients with CD30-expressing
PTCL. In December 2020, five-year updates from the ECHELON-1 and
ECHELON-2 clinical trials were presented at the 62nd American
Society of Hematology annual meeting in December 2020. The
five-year update of the ECHELON-1 clinical trial shows treatment
with ADCETRIS in combination with AVD chemotherapy results in
superior long-term outcomes when compared to ABVD. Additionally,
the ECHELON-2 clinical trial continues to demonstrate significant
durable improvement in progression-free survival and overall
survival of ADCETRIS plus CHP when compared to CHOP.
PADCEV (enfortumab vedotin-ejfv)
In collaboration with Astellas we are conducting or planning to
conduct clinical trials across the spectrum of bladder cancer
including ongoing trials in frontline metastatic urothelial cancer
and muscle invasive bladder cancer. We are planning a development
strategy for non-muscle invasive bladder cancer as well. In
addition, we are conducting a trial in a range of other solid
tumors.
In September 2020, we announced that the global phase 3 clinical
trial called EV-301, which compared PADCEV to chemotherapy in adult
patients with locally advanced or metastatic urothelial cancer who
were previously treated with platinum-based chemotherapy and a
PD-1/L1 inhibitor, met its primary endpoint of overall survival, or
OS, compared to chemotherapy. For patients in the PADCEV arm of the
trial, rash, fatigue, and decreased neutrophil count were the most
frequent Grade 3 or greater treatment-related adverse events
occurring in more than 5 percent of patients. Astellas and we plan
to submit a supplemental BLA based on the EV-301 results to the FDA
as the confirmatory trial following PADCEV's accelerated approval
in December 2019. EV-301 is also intended to support global
regulatory submissions.
In October 2020, we announced positive topline results from the
second cohort of patients in the pivotal phase 2 EV-201 trial. The
cohort is evaluating PADCEV for patients with locally advanced or
metastatic urothelial cancer who have been previously treated with
a PD-1/L1 inhibitor and have not received a platinum-containing
chemotherapy and are ineligible for cisplatin. We plan to submit a
supplemental BLA to the FDA based on the results which is intended
to support an indication in this setting.
PADCEV is also being investigated in frontline metastatic
urothelial cancer and earlier stages of bladder cancer. We and
Astellas are conducting a phase 1b/2 clinical trial, called EV-103,
that is a multi-cohort, open-label trial of PADCEV alone or in
combination with the anti-PD-1 therapy pembrolizumab. The trial is
evaluating safety, tolerability and activity in locally advanced
and first- and second-line metastatic urothelial cancer, and was
expanded to include muscle invasive bladder cancer, or MIBC. In
February 2020, updated results from the trial in patients with
previously untreated locally advanced or metastatic urothelial
cancer who were ineligible for treatment with cisplatin-based
chemotherapy were presented at the 2020 Genitourinary Cancers
Symposium.
In February 2020, based on the positive initial results of the
EV-103 trial, the FDA granted Breakthrough Therapy designation for
PADCEV in combination with pembrolizumab for the treatment of
patients with unresectable locally advanced or metastatic
urothelial cancer who are unable to receive cisplatin-based
chemotherapy in the first-line setting. In April 2020, we announced
that based on discussions with the FDA, data from the randomized
cohort K in the EV-103 trial, along with other data from the EV-103
trial, could potentially support registration under the FDA's
accelerated approval pathway. The primary outcome measures are
objective response rate and duration of response. We expect to
complete enrollment in cohort K by the end of 2021.
In addition to the potential accelerated approval pathway based on
the EV-103 trial, we are conducting a global, registrational phase
3 trial, called EV-302, in frontline metastatic urothelial cancer
in collaboration with Astellas and a subsidiary of Merck & Co.,
Inc., or Merck. We, Astellas and Merck are jointly funding EV-302
and the trial is being led by us. EV-302 is an open-label,
randomized phase 3 clinical trial evaluating the combination of
PADCEV and pembrolizumab versus chemotherapy alone in patients with
previously untreated locally advanced or metastatic urothelial
cancer. The trial includes metastatic urothelial cancer patients
who are either eligible or ineligible for cisplatin-based
chemotherapy. The trial has dual primary endpoints of
progression-free survival and overall survival and is intended to
support global regulatory submissions and potentially serve as a
confirmatory trial if accelerated approval is granted based on
EV-103.
In April 2020, we and Astellas entered into an agreement with Merck
to evaluate PADCEV in MIBC. Merck has amended its ongoing phase 3
KEYNOTE-905/EV-303 registrational trial in cisplatin-ineligible
patients with MIBC to include an arm evaluating PADCEV in
combination with pembrolizumab. In October 2020, we and Astellas
entered into an agreement with Merck to evaluate PADCEV in
combination with pembrolizumab in a phase 3 trial, called
KEYNOTE-B15/EV-304, to be conducted by Merck in cisplatin-eligible
patients with MIBC which was initiated in the first quarter of
2021.
In January 2020, we and Astellas also initiated a phase 2 clinical
trial, called EV-202, to evaluate PADCEV monotherapy in solid
tumors that have high-levels of Nectin-4 expression, including
non-small cell lung, head and neck, gastric/esophageal and breast
cancers. In March 2020, the first patient was dosed in the
trial.
Since the launch of PADCEV we have continued to monitor product
safety in clinical trials and in the post marketing setting.
Nectin-4, which PADCEV targets, is expressed in the skin, and rash
is a common adverse event associated with PADCEV use, but is
generally mild and reversible. Severe rashes, however, do occur and
are described in the current U.S. prescribing information. Severe
cutaneous adverse reactions including fatal cases of Stevens
Johnson Syndrome and toxic epidermal necrolysis have occurred in
patients treated with PADCEV in the post marketing setting and
during clinical trials. We have communicated the occurrence of
these rare events via a letter together with updated
recommendations to health care providers who may treat patients
with urothelial cancer. We are working with the FDA regarding
updates to the U.S. prescribing information to reflect these
events. The overall benefit-risk balance remains favorable for the
use of PADCEV in its approved indication.
TUKYSA (tucatinib)
We are conducting a broad clinical development program of TUKYSA
including ongoing and planned trials in earlier lines of breast
cancer and in other HER2-positive cancers.
In October 2019, we initiated a phase 3 randomized trial, called
HER2CLIMB-02, evaluating TUKYSA versus placebo, each in combination
with T-DM1, for patients with unresectable locally advanced or
metastatic HER2-positive breast cancer, including those with brain
metastases, who have had prior treatment with a taxane and
trastuzumab.
We are supporting a U.S. cooperative group that is conducting a
phase 3 randomized trial, called CompassHER2 RD, which is
evaluating TUKYSA in combination with T-DM1 in the adjuvant setting
for patients with high-risk, HER2-positive breast
cancer.
We are also conducting a phase 2 trial, called HER2CLIMB-04,
evaluating TUKYSA in combination with trastuzumab deruxtecan in
previously treated locally-advanced or metastatic HER2-positive
breast cancer.
We are conducting a phase 2 trial, called MOUNTAINEER, evaluating
TUKYSA in combination with trastuzumab in patients with
HER2-positive, RAS wild-type metastatic colorectal cancer after
treatment with first- and second-line standard-of-care therapies.
Initial results from 23 patients were presented at the ESMO 2019
Congress that demonstrated encouraging antitumor activity. We
believe the trial could potentially support an application for
accelerated approval in the U.S.
We are conducting a phase 2/3 trial, called MOUNTAINEER-02, in
combination with trastuzumab, ramucirumab and paclitaxel in
second-line HER2-positive metastatic gastroesophageal cancer. We
have also initiated a phase 1b trial evaluating TUKYSA in
combination with trastuzumab and oxaliplatin based chemotherapy in
first-line HER2-positive unresectable or metastatic colorectal,
gastric, esophageal and gallbladder cancers.
Tisotumab Vedotin
In collaboration with Genmab we are developing tisotumab vedotin
for metastatic cervical cancer and are evaluating it for other
solid tumors.
We and Genmab are conducting a pivotal phase 2 trial, called
innovaTV 204, evaluating single-agent tisotumab vedotin for
patients with recurrent and/or metastatic cervical cancer who have
relapsed or progressed after standard of care treatment. In
September 2020, data from the innovaTV 204 trial were presented at
the European Society for Medical Oncology, or ESMO, Virtual
Congress 2020. Results from the trial showed a 24 percent confirmed
objective response rate, or ORR, by independent central review with
a median duration of response, or DOR, of 8.3 months. The most
common treatment-related adverse events (greater than or equal to
20 percent) included alopecia, epistaxis (nose bleeds), nausea,
conjunctivitis, fatigue and dry eye. In February 2021, we submitted
a BLA to the FDA seeking accelerated approval for recurrent or
metastatic cervical cancer who have relapsed or progressed on or
after prior treatment.
In January 2021, we and Genmab initiated a phase 3 clinical trial,
called innovaTV 301, to evaluate tisotumab vedotin compared to
chemotherapy in patients with recurrent or metastatic cervical
cancer who have received one or two prior lines of therapy.
innovaTV 301 is intended to support global regulatory applications
for potential approvals in regions where innovaTV 204 does not
support approval and to potentially serve as a confirmatory trial
in the U.S. if we are able to obtain accelerated approval based on
the tisotumab vedotin BLA submission.
We are also conducting a phase 2 clinical trial, called innovaTV
205, evaluating tisotumab vedotin as monotherapy and in combination
with certain other anti-cancer agents for first-line treatment of
patients with recurrent or advanced cervical cancer. Additionally,
we are conducting a phase 2 clinical trial, called innovaTV 207,
for patients with relapsed, locally advanced or metastatic solid
tumors and a phase 2 clinical trial, called innovaTV 208, for
patients with platinum-resistant ovarian cancer.
Ladiratuzumab Vedotin
We are developing ladiratuzumab vedotin, or LV, an ADC targeting
LIV-1, which is currently being evaluated in phase 1 and phase 2
clinical trials both as monotherapy and in combination with other
agents for patients with metastatic breast cancer and select solid
tumors with high LIV-1 expression. In September 2020, we and a
subsidiary of Merck entered into a license and collaboration
agreement, or the LV Agreement, under which the companies will
jointly develop and share future costs and profits worldwide for
LV.
Other clinical and early-stage product candidates
We are advancing a pipeline of early-stage clinical candidates as
well as multiple preclinical and research-stage programs that
employ our proprietary technologies. We advanced several product
candidates into clinical development in 2020 and we plan to submit
additional IND applications to the FDA in 2021.
Our Antibody-Drug Conjugate (ADC) Technology
ADCETRIS, PADCEV and many product candidates in our clinical-stage
pipeline utilize our ADC technology. ADCs are monoclonal antibodies
that are linked to cytotoxic, or cell-killing, agents. Our ADCs
utilize monoclonal antibodies that internalize within target cells
after binding to a specified cell-surface receptor. Enzymes present
inside the cell catalyze the release of the cytotoxic agent from
the monoclonal antibody, which then results in the desired
activity, specific killing of the target cell.
A key component of our ADCs are the linkers that attach the
cell-killing agent to the monoclonal antibody. The drug linkers are
designed to deliver the cytotoxic agent to tumors by virtue of the
monoclonal antibody binding to the intended cell surface receptor
on the target cell. The cytotoxic agent is released when the ADC
internalizes within the target cell, resulting in cell killing.
This targeted delivery of the cell-killing agent is intended to
maximize delivery of the cytotoxic agent to targeted cells while
minimizing toxicity to normal tissues. Our most advanced ADCs,
including ADCETRIS, PADCEV, tisotumab vedotin and LV, use our
proprietary auristatin-based ADC technology. Auristatins are
microtubule disrupting agents. In contrast to natural products that
are often more difficult to produce and link to antibodies, the
cytotoxic drugs used in our ADCs are synthetically produced and are
readily scalable for manufacturing. This technology is also the
basis of our ADC collaborations. We own or hold exclusive or
partially-exclusive licenses to multiple issued patents and patent
applications covering our ADC technology. We continue to evaluate
new linkers, antibody formats and cell-killing agents for use in
our ADC programs.
Our Sugar-Engineered Antibody (SEA) Technology
Our proprietary SEA technology is a method to selectively reduce
fucose incorporation in monoclonal antibodies as they are produced
in cell line-based manufacturing. Our preclinical data show that
this results in increased binding to innate immune effector cells
and enhanced potency in antibody dependent cellular cytotoxicity,
or ADCC, in tumor cells. We believe this enhancement in ADCC
activity may provide improved anti-tumor activity. Our SEA
technology is a novel approach to modify the activity of monoclonal
antibodies that is complementary to our ADC
technology.
A key feature of our SEA technology is that no genetic modification
of the antibody-producing cell line is necessary and standard cell
culture conditions can be used while maintaining the underlying
manufacturing processes, yields and product quality. We believe the
SEA approach may be simpler and more cost-effective to implement as
compared to existing technologies for enhancing antibody effector
function, most of which require development of new cell
lines.
We have several product candidates that are being evaluated in
phase 1 clinical trials that utilize our SEA technology including
SEA-CD40, SEA-TGT, SEA-BCMA and SEA-CD70. These agents are targeted
at a variety of cancer types.
Other Technologies
In addition, we utilize other technologies designed to maximize
antitumor activity and reduce toxicity of antibody-based therapies.
Genetic engineering enables us to produce antibodies that are
optimized for their intended uses. For ADCs, we screen and select
antibodies that bind to antigens that are differentially expressed
on tumor cells versus vital normal tissues, rapidly internalized
within target cells and have potent anti-tumor activity in
preclinical models. For our SEA technology we produce antibodies
that demonstrate potent anti-tumor activities by virtue of ADCC, or
through additional immune stimulatory mechanisms that are triggered
by the enhanced binding potency to innate immune cells. Our ADCs
utilize native or engineered conjugation sites to optimize drug
attachment. In some cases, we evaluate the use of our monoclonal
antibodies and ADCs in combination with conventional chemotherapy
and other anticancer agents, which may result in increased
antitumor activity.
Research Programs
In
addition to our pipeline of current product candidates and
technologies, we have internal research programs directed toward
developing new classes of potent anti-tumor and immune stimulatory
agents and new ADC linkers, the identification of novel drug
targets and monoclonal antibodies, and advancing our antibody
engineering initiatives.
New Tumor Cell-Killing Agents.
We continue to identify and study new agents with anti-tumor
mechanisms of action that will provide pipeline diversity and
complement the auristatins that we currently use in our ADC
technology. We also seek to develop new drugs that are designed to
activate the host immune system by targeting key immune stimulatory
pathways that can mediate innate or adaptive anti-tumor immune
responses.
New Drug Linkers.
We are conducting research with the intent to develop new ADC
linkers that are designed to provide the appropriate stability in
the bloodstream and drug release characteristics to effectively
target cancer cells and improved cancer cell selectivity and
tolerability.
Novel Monoclonal Antibodies and Antigen Targets.
We are actively engaged in internal efforts to identify and develop
monoclonal antibodies, and other therapeutic molecules, to target
tumor antigens and important tumor or immune pathways. For ADCs, we
focus on drug targets that are highly expressed on the surface of
cancer cells that have the appropriate expression, distribution and
internalization properties that make them desirable as monoclonal
antibody or ADC targets. We may then create and screen panels of
cancer-reactive monoclonal antibodies in our laboratories to
identify those with the desired specificity and optimized drug
delivery properties. Additionally, we identify targets that play
key roles in anti-tumor innate or adaptive immune responses and
identify antibodies and other therapeutic molecules to stimulate an
anti-tumor immune response. We supplement these internal efforts by
evaluating opportunities to in-license targets and antibodies from
academic groups and other biotechnology and pharmaceutical
companies, such as our ongoing collaborations with Astellas and
Genmab.
Antibody Engineering.
We have substantial internal expertise in antibody engineering
including humanization, binding affinity optimization, enhancement
of immunological function by blocking fucosylation, as well as
engineering antibodies to improve drug linkage sites for use with
our ADC technology. By modifying the number and type of
drug-linkage sites found on our antibodies, we believe that we can
improve ADC drug properties and the cost-effectiveness of our
manufacturing processes for conjugation of ADCs.
Corporate Collaborations
We enter into collaborations with pharmaceutical and biotechnology
companies to advance the development and commercialization of our
product candidates and to supplement our internal pipeline. We seek
collaborations that will allow us to retain significant future
participation in product sales through either profit-sharing or
royalties paid on net sales. We also have licensed our technologies
to collaborators to be developed with their own antibodies. These
collaborations benefit us in many ways, including generating cash
flow and revenues that partially offset expenditures on our
internal research and development programs, expanding our knowledge
base regarding ADCs across multiple targets and antibodies provided
by our collaborators and providing us with future pipeline
opportunities through co-development or opt-in rights to new
product candidates.
Takeda ADCETRIS Collaboration
We have an agreement with Takeda for the global co-development of
ADCETRIS and the commercialization of ADCETRIS by Takeda in its
territory. We have commercial rights for ADCETRIS in the U.S. and
its territories and in Canada. Takeda has commercial rights in the
rest of the world. Under the collaboration, we and Takeda can each
conduct development activities and equally co-fund the cost of
certain mutually agreed development activities. Costs associated
with co-development activities are included in research and
development expense.
As of December 31, 2020, we had achieved milestone payments
totaling $157.5 million related to regulatory and commercial
progress by Takeda. As of December 31, 2020, total future
potential development and regulatory milestone payments to us under
this collaboration could total $77.0 million. In addition, we
recognize royalty revenues, where royalties are based on a
percentage of Takeda's net sales of ADCETRIS in its licensed
territories, with percentages ranging from the mid-teens to the
mid-twenties based on annual net sales tiers, and sales-based
milestones. Takeda bears a portion of third-party royalty costs
owed on its sales of ADCETRIS, which is included in royalty
revenues.
Either party may terminate the collaboration agreement if the other
party materially breaches the agreement and such breach remains
uncured. Takeda may terminate the collaboration agreement for any
reason upon prior written notice to us and we may terminate the
collaboration agreement in certain circumstances. The collaboration
agreement can also be terminated by mutual written consent of the
parties. If neither party terminates the collaboration agreement,
then the agreement automatically terminates on the expiration of
all payment obligations.
Astellas PADCEV Collaboration
We have a collaboration agreement with Agensys, Inc., which
subsequently became an affiliate of Astellas, to jointly research,
develop and commercialize ADCs for the treatment of several types
of cancer. The collaboration encompasses combinations of our ADC
technology with fully-human antibodies developed by Astellas to
proprietary cancer targets. Under this collaboration, we and
Astellas are co-funding all development costs for
PADCEV.
In 2018, we and Astellas entered into a joint commercialization
agreement to govern the global commercialization of
PADCEV:
•In
the U.S., we and Astellas jointly promote PADCEV. We record sales
of PADCEV in the U.S. and are responsible for all U.S. distribution
activities. The companies each bear the costs of their own sales
organizations in the U.S., equally share certain other costs
associated with commercializing PADCEV in the U.S., and equally
share in any profits realized in the U.S.
•Outside
the U.S., we have commercialization rights in all countries in
North and South America, and Astellas has commercialization rights
in the rest of the world, including Europe, Asia, Australia and
Africa. The agreement is intended to provide that we and Astellas
will effectively equally share in costs incurred and any profits
realized in all of these markets. Cost and profit sharing in
Canada, the United Kingdom, Germany, France, Spain and Italy will
be based on product sales and costs of commercialization. In the
remaining markets, the commercializing party will bear costs and
will pay the other party a royalty rate applied to net sales of the
product based on a rate intended to approximate an equal profit
share for both parties.
Astellas or its affiliates are responsible for overseeing the
manufacturing supply chain for PADCEV for development and
commercial use. However, we are responsible for packaging and
labeling in countries in which we sell PADCEV. In addition, we
are responsible for establishing a second source supply chain,
whether through internal or third party sources.
Either party may terminate the collaboration agreement if the other
party becomes insolvent or the other party materially breaches the
agreement and such breach remains uncured. Subject to certain
restrictions, either party may terminate the collaboration
agreement for any reason upon prior written notice to the other
party. The collaboration agreement can also be terminated by mutual
written consent of the parties. If neither party exercises its
option to terminate the collaboration agreement, then the agreement
will automatically terminate on the later of the expiration of all
payment obligations pursuant to the collaboration agreement, or the
day upon which we and Astellas cease to develop and commercialize
products under the agreement.
Either party may terminate the joint commercialization agreement if
the other party becomes insolvent. The joint commercialization
agreement expires on a country-by-country basis upon complete
cessation of the commercialization, launch and selling of PADCEV in
that country.
Either party may also opt out of co-development and profit-sharing
under the collaboration agreement in return for receiving
milestones and royalties from the continuing party. In addition,
either party may opt out of co-development and profit-sharing for
PADCEV on a country-by-country basis, in return for receiving
royalties pursuant to the collaboration agreement from the
continuing party with respect to that country.
Merck TUKYSA Collaboration
In September 2020, we entered into the TUKYSA Agreement with Merck.
Under the TUKYSA Agreement, we granted Merck exclusive rights to
commercialize TUKYSA in Asia, the Middle East and Latin America and
other regions outside of the U.S., Canada and Europe. Merck is
responsible for marketing applications for approval in its
territory, supported by the positive results from the HER2CLIMB
clinical trial. We retained commercial rights in, and will record
sales in, the U.S., Canada and Europe. Merck also agreed to co-fund
a portion of the TUKYSA global development plan, which encompasses
several ongoing and planned trials across HER2-positive cancers. We
will continue to lead ongoing TUKYSA global development operational
execution. Merck will solely fund and conduct country-specific
clinical trials necessary to support anticipated regulatory
applications in its territories. Under the TUKYSA Agreement, we are
responsible for supplying Merck with TUKYSA for the purpose of
clinical development and commercialization. We received an upfront
cash payment from Merck of $125.0 million and also received $85.0
million in prepaid research and development funding to be applied
to Merck’s global development cost sharing obligations. We are
eligible to receive progress-dependent milestone payments of up to
$65.0 million, and are entitled to receive tiered royalties on
sales of TUKYSA by Merck that begin in the low twenty percent range
and escalate based sales volume by Merck in its territory. We owe
Array Biopharma Inc., or Array, an affiliate of Pfizer, a portion
of any non-royalty payments received from sublicensing TUKYSA
rights, as well as a low double-digit royalty based on net sales of
TUKYSA by us, and will owe a single-digit royalty based on net
sales of TUKYSA by Merck in its territories.
Genmab Tisotumab Vedotin Collaboration
We have a collaboration agreement with Genmab to develop and
commercialize ADCs targeting tissue factor, under which we
previously exercised a co-development option for tisotumab vedotin.
Under this collaboration, we and Genmab are co-funding all
development costs for tisotumab vedotin. In February 2021, we
submitted a BLA for tisotumab vedotin to the FDA seeking
accelerated approval for the treatment of patients with recurrent
or metastatic cervical cancer with disease progression on or after
chemotherapy.
In October 2020, we and Genmab entered into a joint
commercialization agreement to govern the global commercialization
of tisotumab vedotin:
•In
the U.S., we and Genmab will co-promote tisotumab vedotin. We will
record sales of tisotumab vedotin in the U.S. and will be
responsible for leading U.S. distribution activities. The companies
will each hire and maintain 50% of the sales representatives and
medical science liaisons, equally share those and certain other
costs associated with commercializing tisotumab vedotin in the
U.S., and equally share in any profits realized in the
U.S.
•Outside
the U.S., we have commercialization rights in the rest of the world
except for Japan, where Genmab has commercialization rights. In
Europe, China, and Japan, we and Genmab will equally share 50% of
the costs associated with commercializing tisotumab vedotin as well
as any profits realized in these markets. In markets outside the
U.S. other than Europe, China, and Japan, aside from certain costs
enumerated in the agreement, we will be solely responsible for all
costs associated with commercializing tisotumab vedotin, and will
pay Genmab a royalty based on a percentage of aggregate net sales
ranging from the mid-teens to mid-twenties.
We currently rely on Genmab for the supply of tisotumab vedotin.
However, in connection with the joint commercialization agreement,
we will be responsible for overseeing the clinical and any
commercial manufacturing of tisotumab vedotin following a
transition period. Either party may terminate the collaboration
agreement or the joint commercialization agreement if the other
party becomes insolvent or materially breaches the applicable
agreement and such breach remains uncured. In addition, either
party may terminate the collaboration agreement if such party’s
patent rights subject to the agreement are challenged by the other
party or its sublicensees. Either party may also opt out of
co-development and profit-sharing under the collaboration agreement
in return for receiving milestones and royalties from the
continuing party. The opt out provisions of the collaboration
agreement may also be applied to the joint commercialization
agreement. In addition, Genmab may elect to opt out of co-promotion
of tisotumab vedotin in the United States by providing us with
prior written notice.
Merck LV Collaboration
In September 2020, we entered into the LV Agreement with Merck.
Under the terms of the LV Agreement, we granted Merck a
co-exclusive worldwide development and commercialization license
for LV and agreed to jointly develop and commercialize LV on a
worldwide basis. We received an upfront cash payment of $600.0
million, and we are eligible to receive up to $850.0 million in
milestone payments upon the initiation of certain clinical trials
and regulatory approval in certain major markets, and up to an
additional $1.75 billion in milestone payments upon the achievement
of specified annual global net sales thresholds. Each company is
responsible for 50% of global costs to develop and commercialize LV
and will receive 50% of potential future profits. We will lead
regulatory and distribution activities, and will record sales, in
the United States and Canada. Merck will lead regulatory activities
in Europe, and we will lead distribution activities and record
sales in Europe. We and Merck will co-commercialize LV in the
United States and Europe. Merck will lead regulatory, promotion and
distribution activities, and will record sales, in countries
outside of the United States, Canada and Europe.
The LV Agreement will remain in effect, unless earlier terminated,
until LV is no longer being developed or commercialized under the
LV Agreement. The LV Agreement also contains customary provisions
for termination by Merck for convenience, and by either party,
including in the event of breach of the LV Agreement, subject to
cure, or upon a challenge of such party’s licensed patents or upon
the other party’s bankruptcy, subject, in each case, to customary
reversion rights.
In connection with the LV Agreement, we entered into a stock
purchase agreement with Merck in September 2020, referred to as the
Purchase Agreement, pursuant to which we agreed to issue and sell,
and Merck agreed to purchase 5,000,000 newly-issued shares of our
common stock, at a purchase price of $200 per share, for an
aggregate purchase price of $1.0 billion. We closed the
transactions contemplated by the Purchase Agreement on October 27,
2020 following the expiration of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976.
ADC License Agreements
We have license agreements for our ADC technology with a number of
biotechnology and pharmaceutical companies. Under these agreements,
which we have entered into in the ordinary course of business, we
have granted research and commercial licenses to use our
technology, most often in conjunction with the licensee's
technology. In certain agreements, we also have agreed to conduct
limited development activities and to provide other materials,
supplies, and services to our licensees during a specified term of
the agreement. We typically receive upfront cash payments and
progress- and sales-dependent milestones for the achievement by our
licensees of certain events, and annual maintenance fees and
support fees for research and development services and materials
provided under the agreements. We also are entitled to receive
royalties on net sales of any resulting products incorporating our
ADC technology. Our licensees are solely responsible for research,
product development, manufacturing and commercialization of any
product candidates under these agreements, which includes the
achievement of the potential milestones.
In 2019, Genentech received accelerated approval from the FDA for
PolivyTM
(polatuzumab vedotin-piic), an ADC that uses our technology, to
treat patients with relapsed or refractory diffuse large B-cell
lymphoma. In August 2020, GlaxoSmithKline plc, or GSK, received
accelerated approval from the FDA and conditional marketing
authorization from the EC for Blenrep™ (belantamab mafodotin-blmf),
an ADC developed by GSK that uses our technology, for treatment of
patients with relapsed or refractory multiple myeloma who have
received at least four prior therapies including an anti-CD38
monoclonal antibody, a proteasome inhibitor and an immunomodulatory
agent. Under our ADC license agreements with Genentech and GSK,
these events triggered milestone payments to us and we are also
entitled receive royalties on net sales of Polivy and Blenrep
worldwide. The product candidates being developed under our other
ADC license agreements are at various stages of clinical and
preclinical development. Our ability to generate meaningful future
revenues from our other ADC license agreements will largely depend
on products that incorporate our technologies entering late-stage
clinical development, and receiving marketing approval from the FDA
and subsequently being commercialized, if any.
In-license Agreements
We have in-licensed antibodies, targets and enabling technologies
from pharmaceutical and biotechnology companies and academic
institutions for use in our pipeline programs and ADC technology,
including the following:
•Bristol-Myers
Squibb License. In 1998, we obtained rights to some of our
technologies and product candidates, portions of which are
exclusive, through a license agreement with BMS. Through this
license, we secured rights to use various targeting technologies.
Under the terms of the license agreement, we are required to pay
royalties in the low single digits on net sales of products,
including ADCETRIS, which incorporate various technologies owned by
BMS. Our obligation to pay royalties on ADCETRIS under the
agreement expires in August 2021. The term of the license agreement
expires on a country-by-country and product-by-product basis upon
the later of the expiration of the last valid claim covering the
applicable product within that country or either ten or twelve
years depending on the particular patents applicable to the product
after the first commercial sale of the applicable product within
that country. We and BMS each have the right to terminate the
license agreement prior to its expiration for insolvency or
material breach, subject to cure and dispute resolution
provisions. In addition, the license agreement will terminate
automatically in the event that we fail to maintain certain
required insurance.
•University
of Miami License. In 1999, we entered into an exclusive license
agreement with the University of Miami, Florida, covering an
anti-CD30 monoclonal antibody that is the basis for the antibody
component of ADCETRIS. Under the terms of this license, we made an
upfront payment and progress-dependent milestone payments. We are
required to pay annual maintenance fees and royalties in the low
single digits on net sales of products, including ADCETRIS,
incorporating technology licensed from the University of Miami. The
term of the license agreement expires ten years after the first
commercial sale of ADCETRIS or on August 21, 2021, upon which we
will have in perpetuity a fully paid-up, royalty free,
nonexclusive, sublicensable license. We and the University of Miami
each have the right to terminate the license agreement prior to its
expiration for insolvency or material breach, subject to cure
provisions.
•Array
BioPharma, Inc. We are a party to a license agreement with Array,
which was acquired by Pfizer in July 2019. Pursuant to the license
agreement, Array has granted us an exclusive license to develop,
manufacture and commercialize TUKYSA. We will pay Array a portion
of any non-royalty payments
received from sublicensing TUKSYA rights, including non-royalty
payments received from Merck pursuant to the TUKYSA Agreement.
Array is also entitled to receive a low double-digit royalty based
on net sales of TUKYSA by us and a single-digit royalty based on
any net sales of TUKYSA by our sublicensees, including Merck. The
term of the license agreement expires on a country-by-country basis
upon the later of the expiration of the last valid claim covering
TUKYSA within that country or 10 years after the first commercial
sale of TUKYSA within that country. We and Array each have the
right to terminate the license agreement prior to its expiration
for insolvency or material breach, subject to cure and dispute
resolution provisions.
•Other
Licenses. Under the terms of in-license agreements related to our
pipeline programs, we would potentially owe development,
regulatory, and sales-based milestones, and royalties on net sales
of certain approved products.
Patents and Proprietary Technology
Our owned and licensed patents and patent applications are directed
to ADCETRIS, PADCEV, TUKYSA, our product candidates, monoclonal
antibodies, our ADC and SEA technologies and other antibody-based
and/or enabling technologies. We commonly seek patent claims
directed to compositions of matter, including antibodies, ADCs, and
drug-linkers containing highly potent cell-killing agents, as well
as methods of using such compositions. When appropriate, we also
seek claims to related technologies, such as methods of using
certain sugar analogs utilized in our SEA technology. For each of
our products and product candidates, we have filed or expect to
file multiple patent applications. We maintain patents and
prosecute applications worldwide for technologies that we have
out-licensed, such as our ADC technology. Similarly, for partnered
products and product candidates, such as ADCETRIS, PADCEV, TUKYSA,
tisotumab vedotin and LV, we seek to work closely with our
development partners to coordinate patent efforts, including patent
application filings, prosecution, term extension, defense and
enforcement. As our products and product candidates advance through
research and development, we seek to diligently identify and
protect new inventions, such as combination therapies, improvements
to methods of manufacturing, and methods of treatment. We also work
closely with our scientific personnel to identify and protect new
inventions that could eventually add to our development
pipeline.
We own or have rights to the following patents relating to our
products and our pipeline (in addition to certain patents covering
our early-stage product candidates):
•For
ADCETRIS and our related ADC technology, we own twelve patents in
the United States and Europe that will expire between 2021 and
2031.
•For
PADCEV and our related ADC technology, we own, co-own or have
licensed rights to thirteen patents in the United States and Europe
that will expire between 2022 and 2031. Of these patents, we own or
co-own eleven patents and have licensed rights to two
patents.
•For
TUKYSA, we have licensed rights to nine patents in the United
States and Europe that will expire between 2024 and
2033.
•For
tisotumab vedotin and our related ADC technology, we own, co-own or
have licensed rights to eleven patents in the United States and
Europe that will expire between 2022 and 2036. Of these patents, we
own or co-own five patents and have licensed rights to six
patents.
•For
LV and our related ADC technology, we own, co-own or have licensed
rights to nine patents in the United States and Europe that will
expire between 2022 and 2032. Of these patents, we own or co-own
eight patents and have licensed rights to one patent.
The actual protection afforded by a patent, which can vary from
country to country, depends on the type of patent, the scope of its
coverage as determined by the patent office or courts in the
country, and the availability of legal remedies in the country. The
list above does not identify all patents that may be related to our
products and product candidates. For example, in addition to the
listed patents, we have patents on platform technologies (that
relate to certain general classes of products or methods), as well
as patents that relate to methods of using, manufacturing or
administering a product or product candidate, that may confer
additional patent protection. We also have pending patent
applications that may give rise to new patents related to one or
more of these agents.
The information in the above list is based on our current
assessment of patents that we own, co-own or control or have
licensed. The information is subject to revision, for example, in
the event of changes in the law or legal rulings affecting our
patents or if we become aware of new information. Significant legal
issues remain unresolved as to the extent and scope of available
patent protection for biotechnology products and processes in the
U.S. and other important markets outside the U.S. We expect that
litigation will likely be necessary to determine the term,
validity, enforceability, and/or scope of certain of our patents
and other proprietary rights. An adverse decision or ruling with
respect to one or more of our patents could result in the loss of
patent protection for a product and, in turn, the introduction of
competitor products or follow-on biologics to the market earlier
than anticipated, and could force us to either obtain third-party
licenses at a material cost or cease using a technology or
commercializing a product.
Patents expire, on a country by country basis, at various times
depending on various factors, including the filing date of the
corresponding patent application(s), the availability of patent
term extension and supplemental protection certificates and
requirements for terminal disclaimers. Although we believe our
owned and licensed patents and patent applications provide us with
a competitive advantage, the patent positions of biotechnology and
pharmaceutical companies can be uncertain and involve complex legal
and factual questions. We and our corporate collaborators may not
be able to develop patentable products or processes or obtain
patents from pending patent applications. Even if patent claims are
allowed, the claims may not issue. In the event of issuance, the
patents may not be sufficient to protect the proprietary technology
owned by or licensed to us or our corporate collaborators. Our or
our collaborators’ current patents, or patents that issue on
pending applications, may be challenged, invalidated, infringed or
circumvented. In addition, changes to patent laws in the United
States or in other countries may limit our ability to defend or
enforce our patents, or may apply retroactively to affect the term
and/or scope of our patents. Our patents have been and may in the
future be challenged by third parties in post-issuance
administrative proceedings or in litigation as invalid, not
infringed or unenforceable under U.S. or foreign laws, or they may
be infringed by third parties. As a result, we are or may be from
time to time involved in the defense and enforcement of our patent
or other intellectual property rights in a court of law and
administrative tribunals, such as in U.S. Patent and Trademark
Office inter partes review or reexamination proceedings, foreign
opposition proceedings or related legal and administrative
proceedings in the United States and elsewhere. The costs of
defending our patents or enforcing our proprietary rights in
post-issuance administrative proceedings or litigation may be
substantial and the outcome can be uncertain. An adverse outcome
may allow third parties to use our proprietary technologies without
a license from us or our collaborators. Our and our collaborators’
patents may also be circumvented, which may allow third parties to
use similar technologies without a license from us or our
collaborators.
Our commercial success depends significantly on our ability to
operate without infringing patents and proprietary rights of third
parties. Organizations such as pharmaceutical and biotechnology
companies, universities and research institutions may have filed
patent applications or may have been granted patents that cover
technologies similar to the technologies owned or licensed to us or
to our collaborators. In addition, we are monitoring the progress
of multiple pending patent applications of other organizations
that, if granted, may require us to license or challenge their
validity or enforceability in order to continue commercializing
ADCETRIS, PADCEV, or TUKYSA or to commercialize our product
candidates. Our challenges to patents of other organizations may
not be successful, which may affect our ability to commercialize
ADCETRIS, PADCEV, TUKYSA or our product candidates. We cannot
determine with certainty whether patents or patent applications of
other parties may materially affect our or our collaborators’
ability to make, use or sell ADCETRIS, PADCEV, TUKYSA or any other
products or product candidates.
We require our scientific personnel to maintain laboratory
notebooks and other research records in accordance with our
policies, which are designed to strengthen and support our
intellectual property protection. In addition to our patented
intellectual property, we also rely on trade secrets and other
proprietary information, especially when we do not believe that
patent protection is appropriate or can be obtained. Our policy is
to require each of our employees, consultants and advisors to
execute a proprietary information and inventions assignment
agreement before beginning their employment, consulting or advisory
relationship with us. These agreements provide that the individual
must keep confidential and not disclose to other parties any
confidential information developed or learned by the individual
during the course of their relationship with us except in limited
circumstances. These agreements also provide that we will own all
inventions conceived or reduced to practice by the individual in
the course of rendering services to us. Our policy and agreements
and those of our collaborators may not sufficiently protect our
confidential information, or third parties may independently
develop equivalent information.
Government Regulation
The FDA and comparable regulatory agencies in state and local
jurisdictions and in foreign countries impose substantial
requirements upon the clinical development, pre-market approval,
manufacture, marketing and distribution of biopharmaceutical
products. These agencies and other regulatory agencies regulate
research and development activities and the testing, approval,
manufacture, quality control, safety, efficacy, labeling, storage,
distribution, import, export, recordkeeping, pricing, advertising
and promotion of products and product candidates. Failure to comply
with applicable FDA or other requirements may result in Warning
Letters, civil or criminal penalties, suspension or delays in
clinical development, recall or seizure of products, partial or
total suspension of production or withdrawal of a product from the
market. The development 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. We must obtain approval of our product
candidates from the FDA before we can begin marketing them in the
United States. Similar approvals are also required in other
countries.
Product development and approval within this regulatory framework
is uncertain, can take many years and requires the expenditure of
substantial resources. The necessary steps before a new
biopharmaceutical product may be sold in the United States
ordinarily include:
•preclinical
in vitro
and
in vivo
tests, some of which must comply with Good Laboratory Practices, or
GLP;
•submission
to the FDA of an IND which must become effective before clinical
trials may commence, and which must be updated periodically as new
information is obtained and at least annually with a report on
development;
•development
of a drug formulation and manufacture of the drug for clinical
trials, and commercial sale, if approved;
•completion
of adequate and well controlled human clinical trials to establish
the safety and efficacy of the product candidate for its intended
use;
•submission
to the FDA of a BLA or NDA which must be accompanied by a
substantial user fee unless the fee is waived;
•FDA
pre-approval inspection of manufacturing facilities for current
Good Manufacturing Practices, or GMP, compliance and FDA inspection
of select clinical trial sites and/or trial sponsors for Good
Clinical Practice, or GCP, compliance; and
•FDA
review and approval of the BLA or NDA, which includes the product
prescribing information, prior to any commercial sale.
Clinical Trials Regulation in the U.S.
The results of preclinical tests (which include laboratory
evaluation as well as preclinical GLP studies to evaluate toxicity)
for a particular product candidate, together with related
manufacturing information and analytical data, and a clinical
protocol are submitted as part of an IND to the FDA. 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 about the conduct of the clinical trial, 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. New clinical trial protocols can be submitted to the
existing IND during product development. Further, an independent
institutional review board, or IRB, for each medical center
proposing to conduct the clinical trial must review and approve the
plan for any clinical trial before it commences at that center and
it must monitor the study until completed. The FDA, the IRB or the
sponsor may suspend a clinical trial at any time on various
grounds, including a finding that the subjects or patients are
being exposed to an unacceptable health risk. Clinical testing also
must satisfy extensive GCP regulations and regulations for informed
consent and privacy of individually-identifiable
information.
Clinical trials generally are conducted in three sequential phases
that may overlap or in some instances, be skipped. In phase 1, the
initial introduction of the product into humans, the product
candidate is tested to assess safety, metabolism, pharmacokinetics
and pharmacological actions associated with increasing doses. Phase
2 usually involves trials in a limited patient population to
evaluate the efficacy of the potential product for specific,
targeted indications, determine dosage tolerance and optimum dosage
and further identify possible adverse reactions and safety risks.
Phase 3 and pivotal trials are undertaken to evaluate further
clinical efficacy and safety often in comparison to standard
therapies within a broader patient population, generally at
geographically dispersed clinical sites. Phase 4, or
post-marketing, trials may be required as a condition of commercial
approval by the FDA and may also be voluntarily initiated by us or
our collaborators. Phase 1, phase 2 or phase 3 testing may not be
completed successfully within any specific period of time, if at
all, with respect to any of our product candidates. Similarly,
suggestions of safety, tolerability or efficacy in earlier stage
trials do not necessarily predict findings of safety and efficacy
in subsequent trials. Furthermore, the FDA, an IRB or we may
suspend a clinical trial at any time for various reasons, including
a finding that the subjects or patients are being exposed to an
unacceptable health risk. Clinical trials are subject to central
registration and results reporting requirements, such as on
www.clinicaltrials.gov.
Approval Process in the U.S.
The results of preclinical studies, pharmaceutical development and
clinical trials, together with information on a product’s
chemistry, manufacturing, and controls, are submitted to the FDA,
in the form of a BLA or NDA, for approval of the manufacture,
marketing and commercial shipment of the pharmaceutical product.
Data from clinical trials are not always conclusive and the FDA and
other regulatory agencies may interpret data differently than we or
our collaborators interpret data. The FDA may also convene an
Advisory Committee of external advisors to answer questions
regarding the approvability and labeling of an application. The FDA
is not obligated to follow the Advisory Committee’s recommendation.
The submission of a BLA or NDA is required to be accompanied by a
substantial user fee, with few exceptions or waivers. The user fee
is administered under the Prescription Drug User Fee Act, or PDUFA,
which sets goals for the timeliness of the FDA’s review. A standard
review period is twelve months from submission of an original
application, while priority review is eight months from submission
of an original application. The testing and approval process is
likely to require substantial time, effort and resources, and there
can be no assurance that any approval will be granted on a timely
basis, if at all. The FDA may deny review of an application by
refusing to file the application or not approve an application by
issuance of a complete response letter if applicable regulatory
criteria are not satisfied, require additional testing or
information, or require post-market testing and surveillance to
monitor the safety or efficacy of the product. Approval may occur
with significant Risk Evaluation and Mitigation Strategies, or
REMS, that limit the clinical use in the prescribing information,
distribution or promotion of a product.
Drug or biologic products studied for their safety and
effectiveness in treating serious or life-threatening diseases or
conditions may receive accelerated approval from the FDA upon a
determination that the product has an effect on a surrogate
endpoint that is reasonably likely to predict clinical benefit, or
on a clinical endpoint that can be measured earlier than
irreversible morbidity or mortality, that is reasonably likely to
predict an effect on irreversible morbidity or mortality or other
clinical benefit, taking into account the severity, rarity, or
prevalence of the condition and the availability or lack of
alternative treatments. As a condition of accelerated approval, the
FDA will generally require the sponsor to perform adequate and
well-controlled post-marketing clinical studies to verify and
describe the anticipated effect on irreversible morbidity or
mortality or other clinical benefit. In addition, the FDA requires,
as a condition for accelerated approval, pre-approval of
promotional materials.
Once an approval is issued, the FDA may require safety-related
labeling changes or withdraw product approval if ongoing regulatory
requirements are not met or if safety problems occur after the
product reaches the market. In addition, the FDA may require
further testing of an approved product, including phase 4 clinical
trials, and surveillance programs to monitor the safety of the
approved product, and the FDA has the power to prevent or limit
further marketing of the approved product based on the results of
these post-marketing programs or other information.
Post-Approval Regulations in the U.S.
Products manufactured or distributed pursuant to FDA approvals are
subject to continuing regulation by the FDA, including manufacture,
labeling, distribution, advertising, promotion, recordkeeping,
annual product quality review and reporting requirements. Adverse
event experience with the product must be reported to the FDA in a
timely fashion, and pharmacovigilance programs to proactively look
for these adverse events are mandated by the FDA.
Manufacturers and their subcontractors are required to register
their establishments with the FDA and certain state agencies, and
are subject to periodic unannounced inspections by the FDA and
certain state agencies for compliance with ongoing regulatory
requirements, including cGMPs, which impose certain procedural and
documentation requirements upon us and our third-party
manufacturers. Following such inspections, the FDA may issue
notices on Form FDA 483 and Warning Letters that could cause us to
modify certain activities. A Form FDA 483 notice, if issued at the
conclusion of an FDA inspection, can list conditions the FDA
investigators believe may have violated cGMP or other FDA
regulations or guidance. Failure to adequately and promptly correct
the observations(s) can result in further regulatory enforcement
action. In addition to Form FDA 483 notices and Warning Letters,
failure to comply with the statutory and regulatory requirements
can subject a manufacturer to possible legal or regulatory action,
such as 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 halt our clinical trials, not approve our
products, require us to recall a product from distribution or
withdraw approval of the BLA or NDA for that product. Failure to
comply with ongoing regulatory obligations can result in delay of
approval or Warning Letters, product seizures, criminal penalties,
and withdrawal of approved products, among other enforcement
remedies.
The FDA strictly regulates marketing, labeling, advertising and
promotion of products that are placed on the market. These
regulations include standards and restrictions for
direct-to-consumer advertising, industry-sponsored scientific and
educational activities, promotional activities involving the
internet, and off-label promotion. While physicians may prescribe
products for off-label uses, manufacturers may only promote
products for the approved indications and in accordance with the
provisions of the approved label. The FDA has very broad
enforcement authority under the Federal Food, Drug and Cosmetic
Act, and failure to abide by these regulations can result in
penalties, including the issuance of a Warning Letter directing
entities to correct deviations from FDA standards, and state and
federal civil and criminal investigations and
prosecutions.
FDA Regulation of Companion Diagnostics
Certain of our products and product candidates may rely upon in
vitro companion diagnostics for use in selecting the patients that
we believe will respond to our therapeutics. If safe and effective
use of a therapeutic product depends on an in vitro diagnostic, the
FDA generally will require approval or clearance of a reproducible,
validated diagnostic test to be used with our therapeutic product
at the same time that FDA approves the therapeutic product. The
review of these in vitro companion diagnostics in conjunction with
the review of our cancer treatments involves coordination of review
by the FDA’s Center for Drug Evaluation and Research and by the
FDA’s Center for Devices and Radiological Health. The FDA’s
premarket approval, or PMA, process is costly, lengthy, and
uncertain. The receipt and timing of PMA approval may have a
significant effect on the receipt and timing of any future
commercial approvals for our products and product candidates. Human
diagnostic products are subject to pervasive and ongoing regulatory
obligations, including the submission of medical device reports,
adherence to the Quality Systems Regulation, recordkeeping and
product labeling, as enforced by the FDA and comparable state
authorities.
The FDA's approval of ADCETRIS in the frontline PTCL indication
included a post-marketing commitment to develop a clinically
validated in-vitro diagnostic device for the selection of patients
with CD30-expressing PTCL, not including sALCL, for treatment with
ADCETRIS in this indication. We and Takeda have a collaboration
with Ventana Medical Systems, Inc., or Ventana, under which Ventana
is working to develop, manufacture and commercialize a companion
diagnostic test to measure CD30 expression levels in tissue
specimens. If Ventana develops an in-vitro diagnostic device that
we are able to clinically validate, the FDA or another regulatory
authority may revise our label for the frontline PTCL indication or
in connection with any future approvals to require the use of the
in-vitro test as a companion diagnostic. This may limit our ability
to commercialize ADCETRIS in the applicable treatment setting due
to potential label requirements, prescriber practices, constraints
on availability of the diagnostic, or other factors. If Ventana is
unable to successfully develop the CD30 in-vitro diagnostic, or
experiences delays in doing so, or we experience delays in clinical
validation of the diagnostic, we will likely need to renegotiate
the timing or content of our post-marketing commitment regarding
the in-vitro diagnostic device with the FDA.
Regulations Outside of the United States
In addition to regulations in the U.S., we and our collaborators
are and will be subject to regulations of other countries governing
clinical trials, manufacturing, distribution and commercial sales
of our products. We must obtain approval by the regulatory
authorities of countries outside of the U.S. before we can commence
clinical trials in those countries and approval of the regulators
of such countries or economic areas before we may market products
in those countries or areas. For example, to commercialize TUKYSA
in Europe, we will need to comply with applicable European
regulations. The approval requirements and processes can vary
greatly, and the time required may be longer or shorter than that
required for FDA approval. Requirements governing the conduct of
clinical trials, product licensing, pricing and reimbursement also
vary greatly from place to place.
Clinical Trials Regulation in Europe
In the EU, pursuant to the currently applicable Clinical Trials
Directive 2001/20/EC and the Directive 2005/28/EC on GCP, a system
for the approval of clinical trials in the EU has been implemented
through national legislation of the EU member states. Under this
system, an applicant must obtain approval from the national
competent authority of an EU member state in which the clinical
trial is to be conducted, or in multiple member states if the
clinical trial is to be conducted in a number of member states.
Furthermore, the applicant may only start a clinical trial at a
specific study site after the independent ethics committee for each
site has issued a favorable opinion. The clinical trial application
must be accompanied by an investigational medicinal product dossier
with supporting information prescribed by Directive 2001/20/EC and
Directive 2005/28/EC and corresponding national laws of the
individual EU member states and further detailed in applicable
guidance documents. In April 2014, the EU adopted a new Clinical
Trials Regulation (EU) No 536/2014, which is set to replace the
current Clinical Trials Directive 2001/20/EC. It is anticipated
that the new Clinical Trials Regulation (EU) No 536/2014 may come
into effect in late 2021with a three-year transition period for
some types of clinical trials. It will overhaul the current system
of approvals for clinical trials in the EU. Specifically, the new
regulation, which will be directly applicable in all EU member
states, aims at simplifying and streamlining the approval of
clinical trials in the EU. For instance, the new Clinical Trials
Regulation provides for a streamlined application procedure via a
single entry point and strictly defined deadlines for the
assessment of clinical trial applications.
Marketing Authorization Regulation in Europe
In the European Economic Area, which is comprised of the 27 member
states of the EU plus Norway, Iceland and Liechtenstein, medicinal
products can only be commercialized after obtaining a marketing
authorization through one of the following procedures: centralized,
mutual recognition, and decentralized. Under the centralized
procedure, a single marketing authorization application is
submitted to the Committee for Medicinal Products for Human Use of
the European Medicines Agency, which then makes a recommendation to
the EC. The EC makes the final determination on whether to approve
the application. The centralized procedure is compulsory for the
approval, among others, of human medicines containing a new active
substance to treat cancer. The mutual recognition and decentralized
procedures provide for mutual recognition of individual national
approval decisions and are available for products that are not
subject to the mandatory scope of the centralized procedure. The
U.K., following its exit from the EU and EEA, and Switzerland
conduct separate regulatory reviews of new drug applications. Until
December 31st, 2022, the U.K. will also issue national approvals
via “reliance route”, by recognizing the centralized EU approvals
of new medicines.
For the EMA, an application designated as standard review typically
lasts approximately twelve to fourteen months depending on the
length of time sponsors take to address EMA questions. An
accelerated assessment procedure is applicable to marketing
authorization applications for medicinal products that are expected
to be of major public health interest. For applications that
receive accelerated assessment designation and are able to remain
on this timeline, the review may last approximately seven months
depending on the length of time sponsors take to address EMA
questions. It is not unusual, however, for applications that
receive accelerated assessment designation to revert to standard
review if, for example, the EMA has determined that the
significance of the questions that the company needs to address
would be more appropriate under the standard review timelines. At
the end of the review period, EMA will issue an opinion either in
support of granting a marketing authorization (positive opinion) or
recommending refusal of a marketing authorization (negative
opinion). In the event of a negative opinion, the company may
request a re-examination of the application. The initial marketing
authorization granted in the EU is valid for five years. Once
renewed, the authorization will be valid for an unlimited period,
unless the national competent authority or the EC decides on
justified grounds to proceed with one additional five-year renewal.
The renewal of a marketing authorization is subject to a
re-evaluation of the risk-benefit balance of the product by the
national competent authorities or the EMA.
Post-approval Regulation in Europe
In countries where we receive regulatory approvals, we are subject
to a variety of post-authorization regulations, including with
respect to clinical studies, product manufacturing, advertising and
promotion, distribution, and safety reporting.
Various requirements apply to the manufacturing and placing of
medicinal products on the EU market. The manufacturing of medicinal
products in the EU requires a manufacturing authorization, and the
manufacturing authorization holder must comply with various
requirements set out in the applicable EU laws, regulations and
guidance. These requirements include compliance with EU cGMP
standards when manufacturing medicinal products and active
pharmaceutical ingredients, or APIs, including the manufacture of
APIs outside of the EU with the intention to import the APIs into
the EU. Similarly, the distribution of medicinal products into and
within the EU is subject to compliance with the applicable EU laws,
regulations and guidelines, including the requirement to hold
appropriate authorizations for distribution granted by the
competent authorities of the EU member states. Marketing
authorization holders may be subject to civil, criminal or
administrative sanctions, including suspension of manufacturing
authorization, in case of non-compliance with the EU or EU member
states’ requirements applicable to the manufacturing of medicinal
products.
The advertising and promotion of medicinal products are subject to
EU member states’ laws governing promotion of medicinal products,
interactions with physicians, misleading and comparative
advertising and unfair commercial practices. In addition, other
legislation adopted by individual EU member states may apply to the
advertising and promotion of medicinal products. Violations of the
rules governing the promotion of medicinal products in the EU could
be penalized by administrative measures, fines and imprisonment.
These laws may further limit or restrict the advertising and
promotion of our future products and impose limitations on
promotional activities with health care professionals.
The holder of an EU marketing authorization for a medicinal product
must also comply with the EU’s pharmacovigilance legislation, which
includes requirements for conducting pharmacovigilance
surveillance, or the assessment and monitoring of the safety of
medicinal products. The EMA reviews periodic safety update reports
submitted by marketing authorization holders. If the EMA has
concerns that the risk-benefit profile of a product has changed, it
can adopt an opinion advising that the existing marketing
authorization for the product be amended. The agency can also
require that the marketing authorization holder conducts
post-authorization safety studies. Non-compliance with such
obligations can lead to the variation, suspension or withdrawal of
marketing authorization or imposition of financial penalties or
other enforcement measures.
Healthcare Regulation
U.S. federal and state healthcare laws and regulations are also
applicable to our business. If we fail to comply with those laws,
we could face substantial penalties and our business, results of
operations, financial condition and prospects could be adversely
affected. The healthcare laws and regulations that may affect our
operations include, without limitation, anti-kickback and false
claims laws, regulations prohibiting off-label promotion
activities, and transparency laws regarding payments or other items
of value provided to healthcare providers.
The federal Anti-Kickback Statute prohibits, among other things,
knowingly and willfully soliciting, offering, receiving, or
providing remuneration, directly or indirectly, in exchange for or
to induce either the referral of an individual, or the furnishing
or arranging for a good or service, for which payment may be made,
in whole or in part, under a federal healthcare program, such as
the Medicare and Medicaid programs. The term “remuneration” has
been broadly interpreted to include anything of value. Although
there are a number of statutory exceptions and regulatory safe
harbors protecting some common activities from prosecution, the
exceptions and safe harbors are drawn narrowly. Practices that
involve remuneration that may be alleged to be intended to induce
prescribing, purchases or recommendations may be subject to
scrutiny if they do not qualify for an exception or safe harbor.
Failure to meet all of the requirements of a particular applicable
statutory exception or regulatory safe harbor does not make the
conduct per se illegal under the Anti-Kickback Statute. Instead,
the legality of the arrangement will be evaluated on a case-by-case
basis based on a cumulative review of all its facts and
circumstances. Several courts have interpreted the statute’s intent
requirement to mean that if any one purpose of an arrangement
involving remuneration is to induce referrals of federal healthcare
covered business, the Anti-Kickback Statute has been violated.
Additionally, the intent standard under the Anti-Kickback Statute
was amended by the Patient Protection and Affordable Care Act of
2010, as amended by the Health Care and Education Reconciliation
Act of 2010, collectively PPACA, to a stricter standard such that a
person or entity no longer needs to have actual knowledge of the
statute or specific intent to violate it in order to have committed
a violation. In addition, PPACA codified case law 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 federal civil False Claims
Act.
The federal civil and criminal false claims laws, including the
federal civil False Claims Act, prohibit, among other things,
individuals or entities from knowingly presenting, or causing to be
presented, a false claim to, or the knowing use of false statements
to obtain payment from, or approval by, the federal government,
including the Medicare and Medicaid programs, or knowingly making,
using, or causing to be made or used a false record or statement
material to a false or fraudulent claim or to avoid, decrease, or
conceal an obligation to pay money to the federal
government.
The FDA and other governmental authorities also actively
investigate allegations of off-label promotion activities in order
to enforce regulations prohibiting these types of activities. In
recent years, private whistleblowers have also pursued False Claims
Act cases against a number of pharmaceutical companies for causing
false claims to be submitted as a result of off-label promotion. If
we are found to have promoted an approved product for off-label
uses, we may be subject to significant liability, including
significant civil and administrative financial penalties and other
remedies as well as criminal penalties and other sanctions. Even
when a company is not determined to have engaged in off-label
promotion, the allegation from government authorities or market
participants that a company has engaged in such activities could
have a significant impact on the company’s sales, business and
financial condition. The U.S. government has also required
companies to enter into complex corporate integrity agreements
and/or non-prosecution agreements that impose significant reporting
and other burdens on the affected companies.
The federal Health Insurance Portability and Accountability Act of
1996, or HIPAA, created additional federal criminal statutes that
prohibit, among other actions, knowingly and willfully executing or
attempting to execute a scheme to defraud any healthcare benefit
program, including private third-party payors, knowingly and
willfully embezzling or stealing from a healthcare benefit program,
willfully obstructing a criminal investigation of a healthcare
offense, and knowingly and willfully falsifying, concealing, or
covering up a material fact or making any materially false,
fictitious or fraudulent statement in connection with the delivery
of or payment for healthcare benefits, items, or services. Like the
Anti-Kickback Statute, PPACA amended the intent standard for
certain healthcare fraud under HIPAA such that a person or entity
no longer needs to have actual knowledge of the statute or specific
intent to violate it in order to have committed a
violation.
The civil monetary penalties statute imposes penalties against any
person or entity that, among other things, is determined to have
presented or caused to be presented a claim to a federal health
program that the person knows or should know is for an item or
service that was not provided as claimed or is false or
fraudulent.
The federal Physician Payments Sunshine Act, created under PPACA
and its implementing regulations, requires certain manufacturers of
drugs, devices, biologics and medical supplies for which payment is
available under Medicare, Medicaid, or the Children’s Health
Insurance Program to annually report information related to certain
payments or other transfers of value provided to physicians
(defined to include doctors, dentists, optometrists, podiatrists
and chiropractors), and teaching hospitals, or to entities or
individuals at the request of, or designated on behalf of, the
physicians and teaching hospitals, and to report annually certain
ownership and investment interests held by physicians and their
immediate family members. Beginning in 2022, applicable
manufacturers also will be required to report information related
to payments and other transfers of value provided to physician
assistants, nurse practitioners, clinical nurse specialists,
certified registered nurse anesthetists, anesthesiologist
assistants and certified nurse midwives during the previous year.
Failure to submit timely, accurately and completely the required
information for all payments, transfers of value and ownership or
investment interests may result in civil monetary penalties of up
to an aggregate of $150,000 per year and up to an aggregate of
$1 million per year for “knowing failures,” as adjusted for
inflation. Covered manufacturers are required to submit reports on
aggregate payment data to the Secretary of the U.S. Department of
Health and Human Services on an annual basis.
Many states have similar statutes or regulations to the above
federal laws and regulations that may be broader in scope than the
aforementioned federal versions and apply regardless of payor, and
many of which differ from each other in significant ways and may
not have the same effect, further complicating compliance efforts.
Additionally, our business operations in countries outside the
United States, including Canada and the EU, may subject us to
additional regulation.
Because of the breadth of these laws and the narrowness of the
statutory exceptions and safe harbors available under such laws, it
is possible that some of our business activities could be subject
to challenge under one or more of such laws. If our operations were
found to be in violation of any of the health regulatory laws
described above or any other laws that apply to us, we may be
subject to penalties, including potentially significant criminal
and civil and/or administrative penalties, damages, fines,
disgorgement, contractual damages, reputational harm,
administrative burdens, imprisonment, diminished profits and future
earnings, exclusion from participation in government healthcare
reimbursement programs, additional reporting requirements and
oversight if we become subject to a corporate integrity agreement
or similar agreement to resolve allegations of non-compliance with
these laws, and/or the curtailment or restructuring of our
operations.
Anti-Corruption Legislation
We are also subject to numerous other laws and regulations that are
not specific to the healthcare industry. For instance, the U.S.
Foreign Corrupt Practices Act, or FCPA, generally prohibits paying,
offering to pay, or authorizing the payment of anything of value to
any foreign government official, governmental staff members,
political party or political candidate in an attempt to obtain or
retain business or to otherwise influence a person working in an
official capacity. The FCPA also requires public companies to make
and keep books and records that accurately and fairly reflect the
transactions of the corporation and to devise and maintain an
adequate system of internal accounting controls. In Europe,
national anti-corruption laws prohibit giving, offering, or
promising bribes to any person, including foreign government
officials and private persons, as well as requesting, agreeing to
receive, or accepting bribes from any person. Various European
anti-corruption laws have broad extraterritorial reach and
therefore we may be subject to those laws even if we do not have an
established entity in those countries and we may be held liable for
bribes given, offered or promised to any person, including private
persons, by employees and persons associated with us in order to
obtain or retain business or a business advantage. As we expand our
footprint and activities outside of the U.S. and Canada, our
exposure to compliance risks under the FCPA and other similar laws
will likewise increase.
Privacy and Security Laws
There are also numerous privacy and data protection laws to which
we are currently, and/or may in the future, be subject. The U.S.
federal government, individual U.S. states, EU member countries and
other jurisdictions, including Switzerland and Canada, have adopted
data protection laws and regulations which impose significant
compliance obligations. For example, the use and international
transfer of personal data collected in the EU is governed by the
provisions of the EU General Data Protection Regulation, or the
GDPR. The GDPR, which is wide-ranging in scope, imposes several
requirements relating to the control over personal data by
individuals to whom the personal data relates, the information
provided to the individuals, the documentation we must maintain,
the security and confidentiality of the personal data, data breach
notification and the use of third-party processors in connection
with the processing of personal data. The GDPR also imposes strict
rules on the transfer of personal data out of the EU, provides an
enforcement authority and authorizes the imposition of large
penalties for noncompliance, including the potential for fines of
up to €20 million or 4% of the annual global revenues of the
non-compliant company, whichever is greater. The GDPR requirements
apply not only to third-party transactions, but also to transfers
of information between us and our subsidiaries, including employee
information. The GDPR has increased our responsibility and
potential liability in relation to all types of personal data that
we process, including in clinical trials, and we may be required to
put in place additional mechanisms to ensure compliance with the
GDPR, which could divert management’s attention and increase our
cost of doing business. However, despite our ongoing efforts to
bring our practices into compliance with the GDPR, we may not be
successful either due to various factors within our control or
other factors outside our control. Local data protection
authorities can also have different interpretations of the GDPR,
leading to potential inconsistencies amongst various EU member
states.
Moreover, one of the primary safeguards allowing U.S. companies to
import personal information from Europe has been certification to
the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield frameworks
administered by the U.S. Department of Commerce. However, the Court
of Justice of the EU, or the CJEU, recently invalidated the EU-U.S.
Privacy Shield. The same decision also raised questions about
whether one of the primary alternatives to the EU-U.S. Privacy
Shield, namely, the EC’s Standard Contractual Clauses, provide
sufficient protection for personal data transferred from Europe to
the U.S. or most other countries without analyzing each transfer
and implementing supplementary measures to protect the data.
Following recent recommendations from the European Data Protection
Board, we are undertaking a review of personal data transfers from
the EU and will assess the impact of the CJEU decision on our
operations. At present, there are few, if any, viable alternatives
to the EU-U.S. Privacy Shield and the Standard Contractual Clauses.
Where appropriate, we rely on individuals’ explicit consent to
transfer their personal information from Europe to the U.S. and
other countries. In addition, we rely on inter-company Standard
Contractual Clauses to provide appropriate safeguards for such
transfers. The EC is expected to publish new Standard Contractual
Clauses soon and to give companies relying on them for transfers 12
months to adapt. Authorities in Switzerland, whose data protection
laws are similar to those of the EU, also invalidated use of the
Swiss-U.S. Privacy Shield. Authorities in the United Kingdom, or
U.K., may similarly invalidate use of the EU-U.S. Privacy Shield.
The U.K.'s departure from the EU, known as Brexit, has created
additional uncertainty with regard to data protection regulation in
the U.K., as it is unclear whether the U.K. and EU will be able to
negotiate a mutually agreeable data protection agreement that
regulates data transfers between the U.K. and EU and what impact
this will have on our business. If we are unable to rely on
explicit consent to transfer individuals’ personal information from
Europe, which can be revoked, or if, upon review by authorities,
our existing compliance solutions are found to be insufficient, we
will face increased exposure to substantial fines under European
data protection laws as well as injunctions against processing
personal information from persons resident in Europe. The inability
to import personal information from the European Economic Area,
U.K. or Switzerland could restrict our clinical trial activities in
Europe, limit our ability to collaborate with contract research
organizations, service providers, contractors and other companies
subject to European data protection laws, interfere with our
ability to hire employees in Europe and require us to increase our
data processing capabilities in Europe at significant
expense.
HIPAA, as amended by the Health Information Technology for Economic
and Clinical Health Act, or HITECH, and their implementing
regulations, also imposes certain requirements on certain types of
individuals and entities relating to the privacy and security of
individually identifiable health information. Among other things,
HITECH makes HIPAA’s security standards directly applicable to
business associates, independent contractors or agents of covered
entities that receive or obtain protected health information in
connection with providing a service for or on behalf of a covered
entity. HITECH also created four new tiers of civil monetary
penalties, amended HIPAA to make civil and criminal penalties
directly applicable to business associates, and gave state
attorneys general new authority to file civil actions for damages
or injunctions in federal courts to enforce the federal HIPAA laws
and seek attorneys’ fees and costs associated with pursuing federal
civil actions.
In any event, our failure or alleged failure (including as a result
of deficiencies in our policies, procedures or measures relating to
privacy, data protection, marketing or communications) to comply
with laws, regulations, policies, legal or contractual obligations,
industry standards or regulatory guidance relating to privacy or
data protection, may result in governmental investigations and
enforcement actions, litigation, fines and penalties or adverse
publicity. In addition, new regulation, legislative actions or
changes in interpretation of existing laws or regulations regarding
privacy and data protection (together with applicable industry
standards) may increase our costs of doing business. In this
regard, we expect that there will continue to be new laws,
regulations and industry standards relating to privacy and data
protection in the U.S., the EU and other jurisdictions, such as the
California Consumer Privacy Act of 2018 and the California Privacy
Rights Act of 2020, which have been characterized as “GDPR-like”
privacy laws, and we cannot determine the impact such new laws,
regulations and standards may have on our business.
Coverage and Reimbursement
Sales of ADCETRIS, PADCEV, TUKYSA and any future products depend,
in significant part, on the extent to which the costs of our
products will be covered by third-party payors, such as government
health programs, commercial insurance and managed healthcare
organizations. Patients who are prescribed treatment for their
conditions and providers performing the prescribed services
generally rely on third-party payors to reimburse all or part of
the associated healthcare costs. Patients and providers are
unlikely to use our products unless coverage is provided and
reimbursement is adequate to cover a significant portion of the
cost of our products. Pharmaceutical products are typically
reimbursed based on FDA labeled indications, recognized compendia
listings, available medical literature, evidence of favorable
clinical outcomes, determination of medical necessity and cost
effectiveness.
Additionally, a third-party payor’s decision to provide coverage
for a product does not imply that an adequate reimbursement rate
will be approved. In the United States, no uniform policy of
coverage and reimbursement for products exists among third-party
payors. Therefore, coverage and reimbursement for products can
differ significantly from payor to payor. Decisions regarding the
extent of coverage and amount of reimbursement to be provided for
each of our product candidates is individual to each insurer, can
vary based on provider contract, and will be affected by state and
federal laws providing for reimbursement formulas based on
acquisition cost. Third-party payors continue to work diligently to
control their spending on prescription drugs and medical service.
The containment of healthcare costs has become a priority of the
U.S. government and abroad, and the prices of drugs have been a
focus in this effort. The U.S. government, state legislatures and
the governments of other countries have shown significant interest
in implementing cost-containment programs, including price
controls, restrictions on reimbursement and requirements for
substitution of generic products. Adoption of price controls and
cost-containment measures, and adoption of more restrictive
policies in jurisdictions with existing controls and measures,
could further limit our net sales and negatively impact our
operating results. Payors, commercial and public in the U.S. and
abroad, must review the therapeutic value of our products before
extending coverage under their plans to reimburse our products. If
third-party payors do not find a product to be of therapeutic
value, they may not cover it or, if they do, they may do so at an
insufficient level of payment.
Many of the patients in the U.S. who seek treatment with ADCETRIS,
PADCEV or TUKYSA may be eligible for Medicare or Medicaid benefits.
The Medicare and Medicaid programs are administered by the Centers
for Medicare and Medicaid Services, or CMS, and coverage and
reimbursement for products and services under these programs are
subject to changes in CMS regulations and interpretive policy
determinations, in addition to statutory changes made by Congress.
For example, PPACA increased the mandated Medicaid rebate on most
branded prescription drugs from 15.1% of average manufacturer
price, or AMP, to 23.1% of AMP, expanded the rebate to Medicaid
managed care utilization and increased the types of entities
eligible for the federal 340B drug discount program. Federal budget
decisions have reduced Medicare payment rates, and future budget
decisions may reduce Medicare payment rates again. In addition, as
a condition of federal funds being made available to cover our
products under Medicaid, we are required to participate in the
Medicaid drug rebate program. The rebate amount under this program
varies by quarter, and is based on pricing data we report to CMS.
In addition, because we participate in the Medicaid drug rebate
program, we must make ADCETRIS, PADCEV and TUKYSA available to
authorized users of the Federal Supply Schedule of the General
Services Administration. This requires compliance with additional
laws and requirements, including offering ADCETRIS, PADCEV and
TUKYSA at a reduced price to federal agencies including the United
States Department of Veterans Affairs and United States Department
of Defense, the Public Health Service and the Indian Health
Service. We are also required to offer discounted pricing to
certain eligible not for profit entities that are eligible for 340B
pricing under the Public Health Services Act. Participation in
these programs requires submission of pricing data and calculation
of discounts and rebates pursuant to complex statutory formulas, as
well as the entry into government procurement contracts governed by
the Federal Acquisition Regulations and the guidance governing such
calculations is not always clear. Compliance with such requirements
can require significant investment in personnel, systems and
resources, but failure to properly calculate our prices, or offer
required discounts or rebates could subject us to substantial
criminal, civil and/or administrative penalties, as well as,
administrative burdens and exclusion from or contract termination
regarding these programs. The terms of these government programs
could change in the future which may increase the discounts or
rebates we are required to offer, possibly reducing the revenue
derived from sales of our products to these entities.
Policies governing drug pricing vary widely from country to
country. In many European countries, authorities regulate the
pricing of a pharmaceutical product at launch or subsequent to
launch through direct price controls such as international
reference pricing. In addition, in many European countries,
pharmaceutical products are funded largely by the national
healthcare systems. As a result, patients are unlikely to use a
pharmaceutical product that is not reimbursed by the national
authorities. There can be no assurance as to the pricing and/or
level of reimbursement that may be available for our products in
countries with pricing and reimbursement policies in place at the
national level.
Health Technology Assessment, or HTA, of pharmaceutical products is
becoming an increasingly common part of the pricing and
reimbursement procedures in EU member states. The HTA process,
which is governed by the national laws of the applicable country,
aims to measure the added value of a new health technology compared
to existing ones by assessing its public health impact, therapeutic
impact and economic and societal impact in the context and setting
of the individual country’s national healthcare system. HTA
generally focuses on the clinical efficacy and effectiveness,
safety, cost and cost-effectiveness of individual pharmaceutical
products in comparison to the local standard of care, as well as
their potential implications for the healthcare system. The outcome
of HTA regarding specific medicinal products will often influence
the pricing and reimbursement status granted to these
pharmaceutical products by the competent authorities of individual
EU member states. Pursuant to Directive 2011/24/EU, a voluntary
network of national authorities or bodies responsible for HTA in
the individual EU member states was established. The purpose of the
network is to facilitate and support the exchange of scientific
information concerning HTAs. This could lead to harmonization
between EU member states of the criteria taken into account in the
conduct of HTA and their impact on pricing and reimbursement
decisions.
Healthcare Reform
PPACA substantially changed the way healthcare is financed by both
governmental and private insurers and significantly affected the
pharmaceutical industry. PPACA has, among other things, expanded
and increased industry rebates for products covered under Medicaid
programs and changed the coverage requirements under the Medicare
Part D program. In order for a biopharmaceutical product to receive
federal reimbursement under the Medicare Part B and Medicaid
programs or to be sold directly to U.S. government agencies, the
manufacturer must extend discounts to entities eligible to
participate in the drug pricing program under the Public Health
Services Act, or PHS. The required PHS discount on a given product
is calculated based on the Average Manufacturers Price, or AMP, and
Medicaid rebate amounts reported by the manufacturer. PPACA
expanded the types of entities eligible to receive discounted PHS
pricing, although, under the current state of the law, with the
exception of children’s hospitals, these newly eligible entities
will not be eligible to receive discounted PHS pricing on orphan
drugs when used for the orphan indication. In addition, as PHS drug
pricing is determined based on AMP and Medicaid rebate data,
revisions, including the AMP rule, to the Medicaid rebate formula
and AMP definition described above could cause the required PHS
discount to increase.
There remain judicial, executive and Congressional challenges to
certain aspects of PPACA, as well as efforts to repeal or replace
PPACA. While Congress has not passed comprehensive repeal
legislation, the tax reform legislation signed into law on
December 22, 2017 included a provision repealing, effective
January 1, 2019, the tax-based shared responsibility payment
imposed by the PPACA on certain individuals who fail to maintain
qualifying health coverage for all or part of a year that is
commonly referred to as the “individual mandate.” Based on the
repeal of the individual mandate, in December 2018, a federal
district court in Texas ruled that PPACA is unconstitutional.
Additionally, on December 18, 2019, the U.S. Court of Appeals for
the 5th Circuit upheld the district court ruling that the
individual mandate was unconstitutional and remanded the case back
to the district court to determine whether the remaining provisions
of PPACA are invalid as well. In March 2020, the U.S. Supreme Court
granted the petitions for writs of certiorari to review this case,
and held oral arguments in November 2020. The U.S. Supreme Court is
currently reviewing the case, although it is uncertain when a
decision will be made. It is also unclear how recent changes to the
composition of the U.S. Supreme Court may impact its review of this
case, as well as other future cases. With the change in
administration, further developments with respect to PPACA are
likely.
In addition, other legislative changes have been proposed and
adopted since PPACA was enacted. The Budget Control Act of 2011,
among other things, created the Joint Select Committee on Deficit
Reduction to recommend to Congress proposals in spending
reductions. The Joint Select Committee did not achieve a targeted
deficit reduction of at least $1.2 trillion for the years 2013
through 2021, triggering the legislation’s automatic reduction to
several government programs. This includes reductions to Medicare
payments to providers, which went into effect in April 2013 and,
following passage of the Bipartisan Budget Act of 2015, will remain
in effect through 2030, with the exception of a temporary
suspension from May 1, 2020 through March 31, 2021, unless
additional congressional action is taken. The American Taxpayer
Relief Act of 2012, among other things, reduced Medicare payments
to several providers and increased the statute of limitations
period for the government to recover overpayments to providers from
three to five years.
In addition, the Drug Supply Chain Security Act, or DSCSA, was
enacted with the aim of building an electronic system to identify
and trace certain prescription drugs distributed in the United
States, including most biological products. The DSCSA mandates
phased-in and resource-intensive obligations for pharmaceutical
manufacturers, wholesale distributors, and dispensers over a
10-year period that is expected to culminate in November
2023.
As described above in "Coverage and
Reimbursement",
federal and state legislatures, governments in countries outside
the U.S., health agencies and third-party payors continue to focus
on containing the cost of health care. Legislative and regulatory
changes and increasing pressure from social sources are likely to
further influence the manner in which our products are priced,
prescribed, purchased and reimbursed. For example, the Trump
administration put forth a number of proposals aimed at containing
prescription drug prices and announced several Executive Orders
that sought to implement a number of his administration’s
proposals. As a result of the Executive Orders issued by the Trump
Administration, the FDA released a final rule, effective November
30, 2020, that cleared a path for importation of some Canadian
drugs into the U.S. Biological products were excluded from the
rule’s definition of “eligible prescription drug,” however TUKYSA
may be subject to importation from Canada under this rule, which
could negatively affect TUKYSA sales in the U.S. The Biden
administration is likely to similarly pursue and implement measures
aimed at reducing pharmaceutical drug pricing and containing the
cost of healthcare.
Competition
The biotechnology and biopharmaceutical industries are
characterized by rapidly advancing technologies, intense
competition and a strong emphasis on proprietary products. Many
third parties compete with us in developing various approaches to
treating cancer. They include pharmaceutical companies,
biotechnology companies, academic institutions and other research
organizations.
Many of our competitors have significantly greater financial
resources and expertise in research and development, manufacturing,
preclinical testing, conducting clinical trials, obtaining
regulatory approval and marketing than we do. In addition, many of
these competitors are active in seeking patent protection and
licensing arrangements in anticipation of collecting royalties for
use of technology that they have developed. Smaller or early-stage
companies may also prove to be significant competitors,
particularly through collaborative arrangements with large and
established companies. These third parties compete with us in
recruiting and retaining qualified scientific and management
personnel, as well as in acquiring technologies complementary to
our programs.
With respect to ADCETRIS, there are several other FDA approved
drugs for its approved indications. BMS’s nivolumab and Merck’s
pembrolizumab are approved for the treatment of certain patients
with relapsed or refractory classical Hodgkin lymphoma, and
Celgene’s romidepsin and Acrotech Biopharma's’ pralatrexate and
belinostat are approved for relapsed or refractory sALCL among
other T-cell lymphomas. Kyowa Kirin's mogamulizumab is
approved for adult patients with relapsed or refractory mycosis
fungoides or Sézary syndrome. The competition ADCETRIS faces from
these and other therapies is intensifying. Additionally, Merck is
conducting a phase 3 clinical trial in relapsed or refractory
classical Hodgkin lymphoma comparing pembrolizumab with ADCETRIS.
An interim analysis of this clinical trial demonstrated a
statistically significant improvement in progression-free survival
for pembrolizumab compared with ADCETRIS, resulting in a label
expansion to an earlier line of therapy, and we expect increased
competition from pembrolizumab in this indication. We are also
aware of multiple investigational agents currently being studied
that, if successful, may compete with ADCETRIS in the future. Data
have also been presented on several developing technologies,
including bispecific antibodies and CAR modified T-cell therapies
that may compete with ADCETRIS in the future. Further, there are
many competing approaches used in the treatment of patients in
ADCETRIS’ approved indications, including auto-HSCT, allogeneic
hematopoietic stem cell transplant, combination chemotherapy,
clinical trials with experimental agents and single-agent
regimens.
With respect to PADCEV, other treatments in pretreated metastatic
urothelial cancer include checkpoint inhibitor monotherapy, generic
chemotherapy and, for patients with select fibroblast growth factor
receptor genetic alterations, Janssen's erdafitinib. There are
other investigational agents that, if approved, could be
competitive with PADCEV, such as Gilead's’ sacituzumab govitecan,
which is in a pivotal phase 2 study. Treatment in frontline
metastatic urothelial cancer has traditionally been treated with
chemotherapy alone but is evolving to include two checkpoint
inhibitor therapies for cisplatin-ineligible patients with high
PD-L1 expression or patients who are ineligible for platinum
therapy. Several trials of investigational agents in combination
with chemotherapy or other novel agents are ongoing. Continued
development of PD-(L)1 targeted therapies across early stage
bladder cancer and in metastatic bladder cancer in frontline
combinations with chemotherapy, in frontline maintenance with the
recent approval of avelumab, and in pretreated disease, could
potentially impact PADCEV usage and enrollment to PADCEV clinical
trials. In addition, the competitive positioning for PADCEV will
also depend on, among other things, the extent to which we and
Astellas are able to obtain regulatory approvals of PADCEV in
additional indications in the U.S., including in the frontline
metastatic urothelial cancer setting, and in territories outside
the U.S.
With respect to TUKYSA, there are multiple marketed products which
target HER2, including the antibodies trastuzumab and pertuzumab
and the antibody drug conjugate T-DM1. In addition, lapatinib is an
EGFR/HER2 oral kinase inhibitor for the treatment of metastatic
breast cancer, and neratinib is an irreversible pan-HER kinase
inhibitor indicated for extended adjuvant treatment and has been
recently approved for patients who have received two or more prior
anti-HER2-based regimens in the metastatic setting. Daiichi Sankyo
and AstraZeneca have fam-trastuzumab deruxtecan-nxki, which was
recently approved for patients who have received two or more prior
anti-HER2-based regimens in the metastatic breast cancer setting
and also in HER2 positive gastric cancer. Byondis has an antibody
drug conjugate, SYD985, in a pivotal study in this patient
population and MacroGenics has a HER2 targeted, Fc-optimized
antibody, margetuximab, which was recently approved by the
FDA.
With respect to tisotumab vedotin, in June 2018, Merck’s
pembrolizumab was approved for the treatment of recurrent or
metastatic cervical cancer with disease progression on or after
chemotherapy in patients whose tumors express PD-L1. We are also
aware of other companies that currently have products in
development for the treatment of late-stage cervical cancer which
could be competitive with tisotumab vedotin, including Agenus, BMS,
Iovance Biotherapeutics, Merck, Regeneron Pharmaceuticals,
Sanofi-Aventis and Roche.
Many other pharmaceutical and biotechnology companies are
developing and/or marketing therapies for the same types of cancer
that our product candidates are designed and being developed to
treat. For example, we believe that companies including AbbVie, ADC
Therapeutics, Affimed, Agios, Amgen, Astellas, Bayer, Biogen, BMS,
Celgene, Daiichi Sankyo, Eisai, Genentech, GSK, Gilead, ImmunoGen,
Infinity, Janssen, Karyopharm, MacroGenics, MedImmune, MEI Pharma,
Merck, Novartis, Pfizer, Puma Biotech, Sanofi-Aventis, Spectrum
Pharmaceuticals, Takeda, Teva, and Xencor are developing and/or
marketing products or technologies that may compete with ours. In
addition, our ADC collaborators may develop compounds utilizing our
technology that may compete with product candidates that we are
developing.
We are aware of other companies that have technologies that may be
competitive with ours, including AbbVie, ADC Therapeutics,
Astellas, AstraZeneca, BMS, Daiichi Sankyo, Gilead, ImmunoGen,
Janssen, MedImmune, Merck, Mersana, Pfizer, Roche, Sutro and
Zymeworks, all of which have ADC technology. ImmunoGen has several
ADCs in development that may compete with our product candidates.
ImmunoGen has also established partnerships with other
pharmaceutical and biotechnology companies to allow those other
companies to utilize ImmunoGen’s technology, including
Sanofi-Aventis, Genentech, Novartis, Takeda and Lilly. We are also
aware of a number of companies developing monoclonal antibodies
directed at the same antigen targets or for the treatment of the
same diseases as our product candidates.
In addition, in the U.S., the Biologics Price Competition and
Innovation Act of 2009 created an abbreviated approval pathway for
biological products that are demonstrated to be “highly similar” or
“biosimilar” to or “interchangeable” with an FDA approved
biological product. This pathway allows competitors to reference
the FDA’s prior approvals regarding innovative biological products
and data submitted with a BLA to obtain approval of a biosimilar
application twelve years after the time of approval of the
innovative biological product. The twelve-year exclusivity period
runs from the initial approval of the innovator product and not
from approval of a new indication. In addition, the twelve-year
exclusivity period does not prevent another company from
independently developing a product that is highly similar to the
innovative product, generating all the data necessary for a full
BLA and seeking approval. Exclusivity only assures that another
company cannot rely on the FDA’s prior approvals in approving a BLA
for an innovator’s biological product to support the biosimilar
product’s approval. Further, under the FDA’s current
interpretation, it is possible that a biosimilar applicant could
obtain approval for one or more of the indications approved for the
innovator product by extrapolating clinical data from one
indication to support approval for other indications. In the EU,
the EC has granted marketing authorizations for biosimilars
pursuant to a set of general and product class-specific guidelines.
We are aware of many pharmaceutical and biotechnology and other
companies that are actively engaged in research and development of
biosimilars or interchangeable products.
It is possible that our competitors will succeed in developing
technologies that are more effective than ADCETRIS, PADCEV, TUKYSA,
tisotumab vedotin, or our other product candidates or that would
render our technology obsolete or noncompetitive, or will succeed
in developing biosimilar, interchangeable or generic products for
ADCETRIS, PADCEV, TUKYSA, tisotumab vedotin or our other product
candidates. We anticipate that we will continue to face increasing
competition in the future as new companies enter our market and
scientific developments surrounding biosimilars and other cancer
therapies continue to accelerate. We cannot predict to what extent
the entry of biosimilars or other competing products will impact
potential future sales of ADCETRIS, PADCEV, TUKYSA, tisotumab
vedotin, or our other product candidates.
With respect to our current and potential future product
candidates, we believe that our ability to compete effectively and
develop products that can be manufactured cost-effectively and
marketed successfully will depend on our ability to:
•advance
our technology platforms;
•license
additional technology;
•complete
clinical trials which position our products for regulatory and
commercial success;
•maintain
a proprietary position in our technologies and
products;
•obtain
required government and other public and private approvals on a
timely basis;
•attract
and retain key personnel;
•commercialize
effectively;
•obtain
reimbursement for our products in approved
indications;
•comply
with applicable laws, regulations and regulatory requirements and
restrictions with respect to the commercialization of our products,
including with respect to any changed or increased regulatory
restrictions; and
•enter
into additional collaborations to advance the development and
commercialization of our product candidates.
Manufacturing
ADCETRIS
We rely on contract manufacturing organizations to supply ADCETRIS
for our clinical trials and for commercial sale. For the monoclonal
antibody used in ADCETRIS, we have contracted with AbbVie for
clinical and commercial supplies. For the drug linker used in
ADCETRIS, we have contracted with Millipore Sigma, a subsidiary of
Merck KGaA, for clinical and commercial supplies. We have multiple
contract manufacturers for conjugating the drug linker to the
antibody and producing ADCETRIS drug product. In addition, we rely
on other third parties to supply the raw materials used to produce
ADCETRIS, and to perform additional steps in the manufacturing
process, including storage and distribution of ADCETRIS and our
product candidates. For the foreseeable future, we expect to
continue to rely on contract manufacturers and other third parties
to produce, store and distribute sufficient quantities of ADCETRIS
for use in our clinical trials and for commercial
sale.
AbbVie Biotechnology.
In 2004, we entered into a development and supply agreement with
AbbVie (formerly a part of Abbott Laboratories) to manufacture
developmental, clinical and commercial quantities of anti-CD30
monoclonal antibody, which is a component of ADCETRIS. The
agreement generally provides for the supply by AbbVie and the
purchase by us of such anti-CD30 monoclonal antibody. Under terms
of the supply agreement, we may purchase a portion of our required
anti-CD30 monoclonal antibody from a second source third-party
supplier. We are required to make a minimum annual purchase. The
anti-CD30 monoclonal antibody is purchased by us based upon a
rolling forecast. The supply agreement will continue until 2025
with an automatic one-year term extension unless either party
provides written termination notice to the other party. Either
party has the right to terminate the supply agreement if the other
party materially breaches its obligations thereunder.
Millipore Sigma.
In 2010, we entered into a commercial supply agreement with Sigma
Aldrich Fine Chemicals, or SAFC, which was subsequently acquired by
Millipore Sigma, an affiliate of Merck KGaA. Under this agreement,
Millipore Sigma manufactures commercial quantities of the drug
linker that is a component of ADCETRIS. Under terms of the supply
agreement, we may purchase a portion of our required drug linker
from a second source third-party supplier. We are required to make
a minimum annual purchase. The drug linker is purchased by us based
upon a rolling forecast. The supply agreement will continue until
2029 with automatic term extension unless either party provides
written notice of termination to the other party. Either party has
the right to terminate the supply agreement if the other party
materially breaches its obligations thereunder.
PADCEV
Under the terms of our collaboration and commercialization
agreements with Astellas, we rely on Astellas to provide commercial
and clinical supply of PADCEV. For the foreseeable future, we
expect to continue to rely on Astellas and other third parties to
produce, store and distribute sufficient quantities of PADCEV for
commercial sale and for use in our clinical trials. We believe that
the existing supplies of PADCEV and Astellas' contract
manufacturing relationships will be sufficient to accommodate
current commercial and clinical needs. However, we or Astellas may
need to obtain additional manufacturing arrangements or increase
manufacturing capability to meet potential future commercial needs
with respect to PADCEV, which could require additional capital
investment by us or cause us potential delays if Astellas or we
encounter challenges in negotiating commercially reasonable
arrangements with these manufacturers. In particular, we are
responsible for establishing a second source supply chain for
PADCEV, whether through internal or third party
sources.
TUKYSA
With respect to TUKYSA, we rely on multiple contract manufacturers
and other third parties to perform manufacturing services for us
including Sterling Pharma Solutions Limited, or Sterling, for
production of the starting materials for TUKYSA, Esteve Quimica,
S.A., or Esteve to produce the active pharmaceutical ingredient,
Hovione to complete spray drying and Corden Plankstadt to produce
the tablets for TUKYSA. In 2020, we entered into commercial supply
agreements with each of Sterling, Esteve Quimica and Corden, and
are in the process of negotiating a commercial supply agreement
with Hovione. For the foreseeable future, we expect to continue to
rely on contract manufacturers and other third parties to produce
and store sufficient quantities of TUKYSA. We have limited prior
experience as an organization manufacturing TUKYSA and small
molecule drug products generally, and we have relatively new
working relationships with many of the third party manufacturers
involved in TUKYSA manufacture. While we believe that the existing
supplies of TUKYSA will be sufficient to accommodate current
clinical and forecasted commercial needs at this time, we expect
that we will need to put in place additional manufacturing
arrangements or expand our current manufacturing arrangements with
third-party manufacturers to meet potential future commercial needs
and while we are currently negotiating those arrangements, we
cannot assure you that we can enter into such arrangements on
commercially reasonable terms or at all.
Sterling.
We have a commercial supply agreement with Sterling to manufacture
starting materials for TUKYSA. The agreement provides that we will
purchase starting materials pursuant to rolling forecasts and will
purchase a minimum percentage of our requirements for the starting
materials from Sterling. The agreement will remain in effect until
2025, after which it will continue automatically for up to two
additional years subject to termination by either party giving
written notice to the other party. Either party has the right to
terminate the agreement if the other party commits any breach of
the agreement and does not remedy, make a bona fide attempt to
remedy or enter into negotiations to resolve, the breach after
notice to do so, if capable of remedy.
Esteve Quimica.
Our commercial supply agreement with Esteve provides that we will
order the active pharmaceutical agreement for TUKYSA pursuant to
rolling forecasts. The agreement will remain in effect until 2025,
after which it will automatically renew subject to termination by
us by giving written notice to Esteve. Either party has the right
to terminate the agreement if the other party fails to cure a
material breach.
Corden.
We have a commercial supply agreement with Corden to produce TUKYSA
tablets. The agreement provides that we will order pursuant to
rolling forecasts and will purchase a minimum percentage of our
requirements from Corden. The agreement will remain in effect until
2025, after which it will be renewed if not terminated with written
notice prior to the expiration of the term. Either party has the
right to terminate the agreement if the other party commits a
breach and does not cure or commence and diligently continue
actions to cure such default.
Product Candidates
For the clinical supply of our product candidates, we rely on
multiple contract manufacturers and other third parties to perform
manufacturing services for us. In 2017, we acquired a biologics
manufacturing facility located in Bothell, Washington. While we use
the facility to support our clinical supply needs, for the
foreseeable future, we expect to continue to rely on contract
manufacturers for much of the supply of our product candidates for
our clinical trials. With respect to tisotumab vedotin, we
currently rely on drug product supply provided by Genmab and have
little control over their supply chains or the contract
manufacturers Genmab utilizes. For the near-term, we expect to
continue to rely on Genmab for manufacturing of clinical supplies
of tisotumab vedotin. Under the commercialization agreement we
entered into with Genmab in October 2020, we will be responsible
for overseeing the clinical and commercial manufacturing supply
chain of tisotumab vedotin following a transition period. We will
need to obtain appropriate manufacturing arrangements and increase
manufacturing capability to meet potential future commercial needs,
and could experience potential delays if we encounter challenges in
negotiating commercially reasonable arrangements with manufacturers
or in transitioning oversight of the manufacturing process from
Genmab to us.
Commercial Operations
We have allocated commercial resources, including sales, marketing,
supply chain management and reimbursement capabilities, to
commercialize ADCETRIS and TUKYSA in the U.S. and Canada, and
PADCEV in the U.S. We believe the U.S. market for ADCETRIS, PADCEV,
and TUKYSA in their approved indications, and Canadian market for
ADCETRIS and TUKYSA in their approved indications, are addressable
with a targeted sales and marketing organization. We intend to
continue promoting our products in the U.S. and Canada for these
and any additional indications we may obtain in the future. Takeda
has commercial rights for ADCETRIS in the rest of the world. Takeda
has received marketing authorizations by regulatory authorities for
ADCETRIS in more than 75 countries outside North America, and
Takeda continues to pursue marketing authorizations in other
countries.
In the U.S., we sell ADCETRIS, PADCEV, and TUKYSA through a limited
number of specialty distributors. Three of our major distributors,
together with entities under their common control—AmerisourceBergen
Corporation, Cardinal Health, Inc., and McKesson Corporation—each
accounted for 10% or more of our total net product sales in 2020,
2019 and 2018. We also sell TUKYSA to a limited number of specialty
pharmacies.
Health care providers purchase ADCETRIS, PADCEV, and TUKYSA through
these specialty distributors and the product is drop shipped
directly to the health care provider. ADCETRIS and PADCEV are
infused products and generally shipped directly to health care
providers and facilities for administration to patients. TUKYSA is
an oral product ordered by prescription and typically dispensed to
patients by the network specialty pharmacies, at physician
in-office dispensing sites, or by hospital/Integrated Delivery
Network pharmacies.
In Europe, we have allocated commercial resources, including sales,
marketing, supply chain management and reimbursement capabilities,
to support the anticipated TUKYSA commercial launches in Europe,
subject to obtaining the required regulatory and pricing and
reimbursement approvals.
Human Capital Resources
As of December 31, 2020, we had 2,092 employees. Of these
employees, 1,246 were engaged in or support research, development
and clinical activities, 382 were in administrative and business
related positions, and 464 were in sales and marketing. We consider
our employee relations to be good.
Diversity, Equity and Inclusion
We believe that fostering diversity, equity, and inclusion is a key
element to discovering, developing, and bringing transformative
therapies to patients with cancer. As of the end of 2020, 57% of
our global workforce and 37% of our leadership (at the executive
director level and above) were female. In addition, as of the end
of 2020, 33% of our U.S. workforce and 36% of our U.S. leadership
(at the executive director level and above) were racially or
ethnically diverse. We strive to build a workforce representative
of the people we serve and to nurture an inclusive culture where
all voices are welcomed, heard, and respected. In 2020, we adopted
additional initiatives to further build our capacity to meet our
diversity, equity and inclusion goals.
Recruiting and Retention
We believe that we have been successful in attracting and retaining
talented personnel to support our expanding business, though
competition for personnel in our industry is intense. We monitor
recruiting efforts using a variety of metrics such as internal
placement rates, cycle times, cost per hire, information on the
retention of business critical hires (such as medical directors and
executives), and the percentage of budgeted openings filled on time
and on budget. We also track voluntary and involuntary turnover
rates for the company as a whole, for business-critical talent and
by gender, race or ethnicity, time in role and job
level.
Compensation and Benefits
We offer competitive pay and benefits designed to attract and
retain exceptional talent and drive company performance. In setting
appropriate compensation levels, we look at the average base pay
rate for each position based on market data. At the time of our
last annual compensation review, effective February 2020, for
regular employees who were eligible for a pay increase, the average
ratio of base pay to this market rate was 100%. We also offer an
annual cash incentive program, a sales incentive program and
long-term equity incentive plans designed to assist in attracting,
retaining and motivating employees and promoting the creation of
long-term value for stockholders.
Our standard employee benefits in the U.S. include paid and unpaid
leaves, medical, dental and vision insurance coverage, a 401(k)
plan, short- and long-term disability, life insurance, flexible
spending accounts and an employee stock purchase plan. We also
offer a variety of voluntary benefits that allow employees to
select options that meet their needs, including telehealth, an
employee assistance program, backup childcare, adoption assistance,
a travel solution for nursing mothers, education assistance,
fitness reimbursements, and wellness programs. We benchmark our
benefits program against others in our industry on an annual basis.
In addition, in 2020, we conducted an anonymous survey of U.S.
employees focused on employee engagement and satisfaction with our
total rewards programs.
Succession Planning and Leadership Development
We establish retention plans for our executives and other
business-critical talent and review their total compensation and
unvested equity annually. Succession, development, and retention
plans for our executive officers are reviewed at the Board level.
In addition, we hold company-wide talent-planning reviews both at
the executive and departmental levels. To help accelerate the
development of leaders across the company, we have established the
Seagen Leadership Academy, a program that provides training,
leadership opportunities, mentorship and support to high-potential
talent at the director level and above.
COVID-19
We are continuing to closely monitor the impact of the evolving
effects of the COVID-19 pandemic on our business. We have
established a cross-functional COVID-19 working group, which meets
periodically to discuss policies and protocols, strategic planning,
business continuity, and other matters relating to the pandemic. We
have made proactive efforts designed to protect the health and
safety of our workforce, patients, and healthcare professionals,
and to continue our business operations so we can advance our goal
of bringing important medicines to patients. As part of these
efforts, we instituted a mandatory work-from-home policy for
employees who can perform their jobs offsite.
We are continuing essential research, manufacturing, and laboratory
activities onsite and maintain a number of additional precautionary
measures designed to protect our onsite employees. These measures
include temperature checks, screening protocols, masks, social
distancing, contact tracing, and making testing available. We also
monitor the progress of our essential onsite activities for impacts
relating to the COVID-19 pandemic.
Our field-based personnel have paused most in-person customer
interactions in healthcare settings and have been using primarily
electronic communications to support healthcare professionals and
patients. They are engaging in limited in-person interactions where
state and local laws and regulations allow, the institution or
office is accepting in-person interactions and our field-based
personnel are comfortable engaging in-person with healthcare
providers.
We believe that the measures we have implemented are appropriate
and are helping to reduce transmission of COVID-19, and we will
continue to monitor conditions and related guidance from
governmental authorities and adjust our activities as
appropriate.
Corporate Information
We were incorporated in Delaware on July 15, 1997, as Seattle
Genetics, Inc.
In October 2020, we changed our corporate name from Seattle
Genetics, Inc. to Seagen Inc., reflecting the global expansion of
our operations.
Our principal executive offices are located at 21823
30th
Drive SE, Bothell, Washington 98021.
Our telephone number is (425) 527-4000, and our website
address is
www.seagen.com.
Seagen®,
ADCETRIS®,
PADCEV®,
and TUKYSA®
are our
registered trademarks in the United States. All other trademarks,
tradenames and service marks included in this Annual Report on Form
10-K are the property of their respective owners.
We file electronically with the Securities and Exchange Commission,
or SEC, our Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q, Current Reports on Form 8-K and amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934. We make available on our website
at www.seagen.com, free of charge, through a hyperlink on our
website, copies of these reports, as soon as reasonably practicable
after electronically filing such reports with, or furnishing them
to, the SEC. Information found on, or accessible through, our
website is not part of, and is not incorporated into, this Annual
Report on Form 10-K. In addition, the SEC maintains a website at
www.sec.gov that contains reports, proxy and information
statements, and other information regarding issuers that file
electronically with the SEC.
Item 1A. Risk Factors
You should carefully consider the following risk factors, in
addition to the other information contained in this Annual Report
on Form 10-K, including our consolidated financial statements and
related notes. If any of the events described in the following risk
factors occurs, our business, operating results and financial
condition could be seriously harmed. This Annual Report on Form
10-K also contains forward-looking statements that involve risks
and uncertainties. Our actual results could differ materially from
those anticipated in the forward-looking statements as a result of
factors that are described below and elsewhere in this Annual
Report on Form 10-K.
Risks Related to Our Products, Product Candidates and Research and
Development
Our success depends on our ability to effectively commercialize our
products. If we and our collaborators are unable to effectively
commercialize our products and to expand their utilization, our
ability to generate significant revenue and our prospects for
profitability will be adversely affected.
Our three marketed products are ADCETRIS®,
or brentuximab vedotin, PADCEV®,
or enfortumab vedotin-ejfv, which received accelerated approval
from the U.S. Food and Drug Administration, or FDA, in December
2019, and TUKYSA®,
or tucatinib, which received approval from the FDA in April 2020.
Our ability to generate revenue from product sales and our
prospects for profitability are substantially dependent on our and
our collaborators’ ability to effectively commercialize ADCETRIS,
PADCEV and TUKYSA and expand their utilization. We may not be able
to fully realize the commercial potential of our products, or
commercial sales of our products may be lower than our projections,
for a number of reasons, including:
•we
and our collaborators may be unable to effectively commercialize
our products, including in any new markets or in any new
indications for which we receive marketing approval;
•we
may not be able to establish or demonstrate in the medical
community the safety, efficacy or value of our products and their
potential advantages compared to existing and future therapeutics
in their approved indications, including, with respect to ADCETRIS,
in the newly diagnosed, previously untreated Stage III and IV
classical Hodgkin lymphoma indication, or the frontline Hodgkin
lymphoma indication;
•we
and our collaborators may not be able to obtain and maintain
regulatory and other required governmental approvals to market our
products for their currently approved indications in any additional
territories or for any additional indications, including any
additional approvals for PADCEV or TUKYSA, which would limit the
sales and commercial potential of the applicable
product;
•new
competitive therapies in ADCETRIS’ approved indications, including
immuno-oncology agents such as PD-1 inhibitors (e.g., pembrolizumab
and nivolumab) and other novel agents (e.g., mogamulizumab), in
PADCEV’s approved indication, including antibody drug conjugates
(e.g., sacituzumab govitecan) and other targeted agents (e.g.,
erdafitinib for patients with select fibroblast growth factor
receptor, or FGFR, genetic alterations), and in TUKYSA’s approved
indication, including HER2-targeting agents (e.g., fam-trastuzumab
deruxtecan-nxki, neratinib, margetuximab and SYD985), have been
approved by regulatory authorities or may be submitted in the near
term to regulatory authorities for approval, and these competitive
products could negatively impact commercial sales of ADCETRIS,
PADCEV or TUKYSA, respectively;
•there
may be changes to the labeling for our products, including
ADCETRIS, PADCEV or TUKYSA, that further restrict how we market and
sell our products, including as a result of data collected from any
of the clinical trials that we and our collaborators are conducting
or may in the future conduct for our products, or from
investigator-sponsored studies of our products, and/or as a result
of the use of our products in their approved
indications;
•the
estimated incidence rate of new patients or the duration of therapy
in the approved indications for our products may be lower than our
projections;
•there
may continue to be adverse results or events reported in connection
with the use of our products or product candidates, including in
any of the clinical trials that we or our collaborators are
conducting, or may conduct in the future, for our products or
product candidates;
•the
negative impacts to our commercialization efforts, and those of our
collaborators, resulting from the risks and evolving effects of the
COVID-19 pandemic may increase or become more severe;
•in
the case of PADCEV, our joint commercialization efforts in the U.S.
under our collaboration with an affiliate of Astellas Pharma Inc.,
or Astellas, may be unsuccessful or we may encounter challenges in
joint decision making and joint execution that adversely affect
PADCEV product sales;
•our
products may be impacted by adverse reimbursement and coverage
policies from government and private payors such as Medicare,
Medicaid, insurance companies, health maintenance organizations and
other plan administrators, or may be subject to pricing pressures
enacted by industry organizations or state and federal governments,
including as a result of increased scrutiny over pharmaceutical
pricing or otherwise;
•the
relative price of our products may be higher than alternative
treatment options, and therefore their reimbursement may be limited
by private and governmental insurers;
•physicians
may be reluctant to prescribe our products due to side effects
associated with their use or until longer term efficacy and safety
data exist;
•there
may be changed or increased regulatory restrictions;
•we
may not have adequate financial or other resources to effectively
commercialize our products; and
•we
may not be able to obtain adequate commercial supplies of our
products to meet demand or at an acceptable cost.
In addition, the success of our product collaborations and the
activities of our collaborators will significantly impact the
development and commercialization of our products. We cannot
control the amount and timing of resources that our collaborators
dedicate to the development and commercialization of ADCETRIS,
PADCEV or TUKYSA, or to their marketing and distribution. Our
ability to generate royalty revenues from ADCETRIS product sales by
Takeda Pharmaceutical Company Limited, or Takeda, and TUKYSA
product sales by our collaborator, a subsidiary of Merck & Co.,
Inc., or Merck, depends on their respective abilities to obtain
regulatory approvals for ADCETRIS and TUKYSA in their territories,
and to achieve market acceptance of, and to otherwise effectively
market, ADCETRIS and TUKYSA in their territories. Our ability to
generate revenues from PADCEV product sales in the U.S. and in
Astellas’ territories depends on our and Astellas’ ability to
effectively jointly commercialize PADCEV in the U.S, and on
Astellas’ ability to obtain regulatory approvals for, achieve
market acceptance of, and otherwise effectively market, PADCEV in
Astellas’ territories. Moreover, international sales of our
products could be adversely affected by the imposition of
governmental controls, political and economic instability, trade
restrictions or barriers and changes in tariffs, global trade and
political tensions, the evolving effects of the COVID-19 pandemic
or otherwise.
We are closely evaluating the impacts of the evolving effects of
the COVID-19 pandemic on our ability and the ability of our
collaborators to effectively market, sell and distribute our
products and to develop our products and product candidates. While
our field-based personnel are engaging in limited in-person
interactions, they are primarily using electronic communication,
such as emails, phone calls and video conferences. Many healthcare
professionals that we normally call on are working a greater
proportion of their working schedule from home and are facing
additional demands on their time during the ongoing COVID-19
pandemic. We are experiencing increased competition for virtual
appointments with healthcare professionals and a significant
reduction in the number of interactions our sales personnel are
having with physicians. We expect the different quality of
electronic interactions as compared with in-person interactions, as
well as the reduced quantity of interactions during the COVID-19
pandemic, to reduce the effectiveness of our sales personnel, as
well as those of our collaborators, which could negatively affect
our product sales and those of our collaborators, as well as
physician awareness of our products. With respect to PADCEV and
TUKYSA specifically, we have not launched a product using primarily
virtual communication channels in the past and cannot predict the
effects that this approach will ultimately have on demand for
PADCEV or TUKYSA. However, we believe that the need to conduct
these activities virtually is negatively impacting our ability to
connect with key customers, including those familiar with
competitive products, and our ability to conduct payor engagements.
We face a number of challenges that will limit our ability to fully
resume in-person interactions for the foreseeable future, including
increasing COVID-19 infection rates in many states, the potential
for more severe outbreaks, the need to navigate varying
restrictions for entering healthcare facilities and employee
childcare obligations during virtual school sessions. In addition,
the effects of
the COVID-19 pandemic continue to evolve rapidly, and we may
subsequently be forced to, or subsequently determine that we
should, resume a more restrictive remote work model, whether as a
result of further spikes or surges in COVID-19 infection or
hospitalization rates or otherwise. Moreover, the long-term effects
of the COVID-19 pandemic are also unknown and it is possible that
following the pandemic, healthcare institutions could alter their
policies with respect to in person visits by pharmaceutical company
representatives. COVID-19 related restrictions could also present
product distribution challenges as we utilize recently-initiated
distribution channels for TUKYSA. We also expect that the
conversion of medical conferences to a virtual format may reduce
our ability to effectively disseminate scientific information about
our products, which may result in decreased physician awareness of
our products, their approved indications and their efficacy and
safety. The evolving effects of the COVID-19 pandemic may also
negatively affect our product sales due to challenges in patient
access to healthcare settings, significant increases in
unemployment and the resulting loss of individual health insurance
coverage, and inability to access government healthcare programs
due to backlogs, some or all of which appear to be affecting
diagnosis rates and may affect side effect management, course of
treatment and increase enrollment in our patient support programs.
With respect to ADCETRIS specifically, impacts associated with the
COVID-19 pandemic appear to be reducing the rate of Hodgkin
lymphoma diagnoses, which appears to have contributed to the slower
growth of ADCETRIS sales in 2020 as compared to 2019. In addition,
we have experienced lower than expected levels of our research and
development spending, in part as a result of the COVID-19 pandemic.
This includes some delays in clinical trial enrollment as well as
reduced travel due to the conversion of medical and scientific
meetings to virtual format. While we do not at this time anticipate
the need to revise our publicly reported projected clinical
milestone dates as a result of the effects of the COVID-19
pandemic, there may be some impacts to our clinical study
timelines, which, depending upon the duration and severity of the
evolving effects of the COVID-19 pandemic, could ultimately delay
data availability. In addition, many of our non-essential on-site
research activities are currently significantly reduced as a result
of the COVID-19 pandemic, which may negatively impact the number of
investigational new drug application, or IND, candidates entering
our clinical pipeline in future years. The extent to which the
risks and evolving effects of the COVID-19 pandemic impact our
business, our ability to generate sales of and revenues from our
approved products, and our clinical development and regulatory
efforts will depend on future developments that are highly
uncertain and cannot be predicted with confidence, such as the
ultimate duration and severity of the pandemic, government actions,
such as travel restrictions, quarantines and social distancing
requirements in the U.S. and in other countries, business closures
or business disruptions and the effectiveness of actions taken in
the U.S. and in other countries to contain and treat the disease,
including the effectiveness and timing of vaccine programs in the
U.S. and worldwide.
While we anticipate that sales of ADCETRIS will increase in 2021 as
compared to 2020, we have experienced and expect continued impacts
associated with the COVID-19 pandemic, which appear to be reducing
the rate of Hodgkin lymphoma diagnoses, and an increase in
gross-to-net deductions that we believe is due to a shift in the
locations where ADCETRIS is administered, which has increased the
proportion of ADCETRIS sales through the federal 340B drug discount
program.
We expect that, going forward, our ability to maintain or continue
to grow our ADCETRIS sales, if at all, will depend primarily on our
ability to establish or demonstrate to the medical community the
value of ADCETRIS and its potential advantages compared to existing
and future therapeutics in its approved indications, including in
the frontline Hodgkin lymphoma indication, and the extent to which
physicians make prescribing decisions with respect to ADCETRIS.
Other important factors affecting our ADCETRIS sales include the
incidence flow of patients eligible for treatment in ADCETRIS’
approved indications, the extent to which coverage and adequate
levels of reimbursement for ADCETRIS are available from governments
and other third-party payors, the impact of any healthcare reform
measures that may be upheld, or adopted in the future, including
measures that could result in more rigorous coverage criteria or
reduce the price that we receive for ADCETRIS, increasing
competition from competing therapies including pembrolizumab in
multiple indications, including in the relapsed or refractory
classical Hodgkin lymphoma indication, impacts resulting from the
evolving effects of the COVID-19 pandemic including lower diagnosis
rates, and the potential future approval of ADCETRIS in any
additional indications. For these reasons, we cannot assure you
that ADCETRIS sales will continue to grow or that we can maintain
sales of ADCETRIS at or near current levels. In addition, as a
result of these and other factors, our future ADCETRIS product
sales can be difficult to accurately predict from period to
period.
Our ability to realize the anticipated benefits from our investment
in PADCEV is subject to a number of risks and uncertainties,
including our and Astellas’ ability to successfully jointly market
and commercialize PADCEV in the U.S. in its approved indication,
the extent to which we and Astellas are able to obtain regulatory
approvals of PADCEV in additional indications in the U.S.,
including in the frontline metastatic urothelial cancer setting,
and in territories outside the U.S., our ability and Astellas’
ability to successfully comply with rigorous post-marketing
requirements, including obtaining the FDA’s agreement as to the
confirmation of clinical benefit of PADCEV based on the results of
the EV-301 clinical trial, the acceptance of PADCEV by the medical
community and patients, the extent to which physicians make
prescribing decisions with respect to PADCEV, the incidence flow of
patients eligible for treatment in PADCEV’s approved indication,
the duration of therapy for patients receiving PADCEV, the extent
to which coverage and adequate levels of reimbursement for PADCEV
are available from governments and other third-party payors, the
impact of any healthcare reform measures that may be adopted in the
future, including measures that could potentially result in more
rigorous coverage criteria and additional downward pressure on the
price that we receive for PADCEV, potential competition from
competing therapies, the impact of conducting launch activities
virtually during the COVID-19 pandemic and other impacts resulting
from the evolving effects of the COVID-19 pandemic including
potential negative impacts of reduced cancer diagnosis rates. In
addition, as a result of these and other factors, including the
lack of significant historical sales data, PADCEV sales are
currently difficult to predict from period to period.
Our ability to realize the anticipated benefits of our investment
in TUKYSA is subject to a number of risks and uncertainties,
including our and Merck’s ability to successfully launch, market
and commercialize TUKYSA in our respective territories in its
approved indication, the extent to which we and Merck are able to
obtain regulatory and other required governmental and pricing and
reimbursement approvals of TUKYSA in additional territories, the
extent to which we and Merck are able to obtain regulatory
approvals of TUKYSA in additional indications, including earlier
lines of breast cancer and other HER2-positive cancers, the
acceptance of TUKYSA by the medical community and patients,
competition from other therapies, our and Merck’s ability to
accurately predict and supply product demand, the extent to which
coverage and reimbursement will be available from governments and
other third-party payors, our capacity to effectively commercialize
a product outside of the U.S., the impact of conducting launch
activities virtually during the COVID-19 pandemic and other impacts
resulting from the evolving effects of the COVID-19 pandemic
including potential negative impacts of reduced cancer diagnosis
rates. In addition, as a result of these and other factors,
including the lack of significant historical sales data, TUKYSA
sales are currently difficult to predict from period to
period.
Our ability to grow our product sales in future periods is also
dependent on price increases, and we periodically increase the
price of our products. Price increases on our products and negative
publicity regarding drug pricing and price increases generally,
whether on our products or products distributed by other
pharmaceutical companies, could negatively affect market acceptance
of, and sales of, our products. In any event, we cannot assure you
that price increases we have taken or may take in the future will
not in the future negatively affect our product sales.
Our success also depends on our ability to obtain regulatory
approvals for our product candidates and for our current products
in additional territories, as well as our ability to expand the
labeled indications of use for our current products, and, if the
requisite approvals are obtained, our ability to successfully
launch and commercialize our products in their approved
indications. Our inability to do so could have a material adverse
effect on our business, financial condition, results of operations
and growth prospects.
Neither we nor our collaborators are permitted to market our
product candidates in the U.S. or other countries until we obtain
marketing approvals from the FDA and other applicable regulatory
authorities, and we or our collaborators may never receive
regulatory approval for the commercial sale of any of our product
candidates. Likewise, we and our collaborators are required to
obtain marketing approvals from applicable regulatory authorities
in order to market our products in additional territories and to
expand the labeled indications of use for our current
products.
We have made and are continuing to make significant investments in
a number of product candidates, including tisotumab vedotin and
ladiratuzumab vedotin, and in seeking additional regulatory
approvals for ADCETRIS, PADCEV and TUKYSA. However, obtaining
marketing approval is a lengthy, expensive and uncertain process,
approval is never assured, and we have limited experience in
preparing and submitting the applications necessary to gain
regulatory approvals. As an organization, we have limited
experience applying for regulatory approvals in jurisdictions
outside the U.S. and Canada. Further, the FDA and other regulatory
agencies have substantial discretion in the approval process and
determining when or whether regulatory approval will be obtained
for our products and product candidates, including any regulatory
approvals for ADCETRIS, PADCEV or TUKYSA in additional indications
or in additional territories. In this regard, even if we believe
the data collected from preclinical studies or clinical trials of
our products and product candidates are promising, the FDA or any
other regulatory authority or their respective advisors may
disagree with our interpretations of this data. For example, while
we submitted a regulatory application for TUKYSA to the U.K.
Medicines and Healthcare Product Regulatory Authority, or MHRA, the
regulatory application we submitted may not be approved in a timely
manner or at all. In addition, in September 2020, we and Astellas
reported that the EV-301 trial met its primary endpoint of overall
survival, and, in October 2020, we and Astellas announced positive
topline results from the second cohort of patients in the EV-201
trial. Although we and Astellas plan to submit a supplemental BLA
to the FDA based on the EV-301 trial as the confirmatory trial
following PADCEV’s accelerated approval by the FDA and the EV-301
trial is also intended to support global regulatory submissions,
and although we plan to submit an sBLA based on the results of the
second cohort of the EV-201 trial, regulatory authorities,
including the FDA, or their advisors may disagree with our
interpretation of the data from these trials. The FDA may not
convert PADCEV’s accelerated approval to regular approval in the
U.S., and regulatory authorities may not accept or approve any
other regulatory applications for PADCEV, in a timely manner or at
all. In addition, although the FDA granted Breakthrough Therapy
designation to PADCEV in combination with pembrolizumab, for
treatment of patients with unresectable locally advanced or
metastatic urothelial cancer who are unable to receive
cisplatin-based chemotherapy in the first-line setting, this
Breakthrough Therapy designation does not increase the likelihood
that PADCEV will receive marketing approval in this indication or
will otherwise receive any additional marketing approvals.
Likewise, although we reported positive results from the pivotal
phase 2 innovaTV 204 trial and we and Genmab A/S, or Genmab,
submitted a Biologics License Application, or BLA, to the FDA
seeking accelerated approval for tisotumab vedotin based on the
innovaTV 204 trial, we cannot be certain that the data from the
innovaTV 204 trial will be sufficient to support accelerated
approval. We cannot predict whether the BLA that we and Genmab
submitted for tisotumab vedotin will be accepted or approved in a
timely manner or at all. We also cannot assure you that any of our
product candidates will receive any marketing approvals. In fact,
it is possible that none of our product candidates will ever become
commercial products. As a result, we may not realize the
anticipated benefits of our investments in our product
candidates.
Similarly, regulatory agencies may not approve the labeling claims
that are necessary or desirable for the successful
commercialization of our products in any additional indications or
territories, or of any future approved product. Regulatory agencies
also may approve a product for fewer or narrower indications than
requested, or with a label that includes only subtypes of a
particular indication rather than a more general disease
classification. In addition, our products and product candidates
could take a significantly longer time to gain new or initial
regulatory approvals than we expect or may never gain new or
initial regulatory approvals, which could delay or eliminate any
potential product revenue from sales of our product candidates or
of our products in any additional indications or territories and
significantly delay or prevent us from achieving profitability. In
this regard, part of our growth strategy is to continue to explore
the use of ADCETRIS in different CD30-expressing lymphomas, to seek
approval for PADCEV in our territories outside the U.S., and to
continue to explore the use of PADCEV and TUKYSA in additional
indications. However, we and/or our collaborators may be unable to
obtain any regulatory approvals for the commercial sale of any of
our products in any additional indications or territories in a
timely manner or at all. For example, as part of the Prescription
Drug User Fee Act, or PDUFA, the FDA has a goal to review and act
on a percentage of all regulatory submissions in a given time
frame. However, the FDA does not always meet its PDUFA target
action dates, and if the FDA were to fail to meet its PDUFA target
action date in the future for any of our future regulatory
applications, the commercialization of the affected product
candidate, or of the affected product in any additional
indications, could be delayed or impaired. In addition, while
regulatory authorities have not to date notified us of any delays
in their review of our regulatory applications and we have not yet
experienced any obvious delays as a result of the effects of the
COVID-19 pandemic, it is possible that we could experience delays
in the timing of regulatory review and/or our interactions with
regulatory authorities due to reduced working hours of governmental
employees or by the diversion of authorities’ efforts and attention
to approval of other therapeutics or other activities related to
COVID-19, which could delay any approval
decisions with respect to our or Merck’s regulatory applications
for TUKYSA outside of the U.S., or our progress in advancing our
development efforts with respect to other products and product
candidates. Our interactions with regulatory authorities in other
jurisdictions and across multiple products and product candidates
continue but we cannot rule out the possibility of negative impacts
on such interactions in the future as the effects of the pandemic
continue to evolve.
Even if approved for commercial sale, our ability to realize the
anticipated benefits from our investments in our product candidates
and our efforts to expand the labeled indications of use and
territories for our current products is subject to a number of
risks and uncertainties, including our and our collaborators’
ability to successfully launch, market and commercialize our
products, our reliance, in the case of PADCEV and tisotumab
vedotin, on Astellas and Genmab, respectively, to effectively
jointly launch and commercialize PADCEV and any potential future
approved tisotumab vedotin product with us, our and our
collaborators’ ability to successfully comply with rigorous
post-marketing requirements, including confirmation of clinical
benefit of PADCEV based on the results of the Phase 3 confirmatory
trial, EV-301, that we and Astellas are required to complete as a
result of the accelerated approval of PADCEV by the FDA, the
acceptance of our approved products by the medical community and
patients, and the extent to which coverage and reimbursement for
our products will be available from government and health
administration authorities, private health insurers and other
third-party payors. For example, although PADCEV was launched in
the U.S. in December 2019 and although TUKYSA was launched in the
U.S. in April 2020, the launch and commercialization of these
products are at an early stage and may not be successful. In
addition, the impacts of the evolving effects of the COVID-19
pandemic, including potential negative impacts of reduced cancer
diagnosis rates, could limit our ability to continue to effectively
launch PADCEV and TUKYSA and restrictions on in-person interactions
with healthcare providers will likely negatively impact our ability
to connect with key customers, including those familiar with
competitive products, and our ability to conduct payor engagements.
If we are unable to successfully continue to launch and
commercialize PADCEV jointly with Astellas in the U.S., or to
successfully continue to launch and commercialize TUKYSA in the
U.S., our growth prospects and our prospects for profitability
would be adversely affected. Likewise, although TUKYSA received
regulatory approvals in the EU and certain other countries outside
the U.S. and Canada and we have submitted a regulatory application
for TUKYSA to the MHRA, we have no prior experience as an
organization launching or commercializing a product outside the
U.S. and Canada, which could adversely affect our ability to
maximize the commercial potential of TUKYSA. Further, while our
TUKYSA collaboration with Merck is intended to accelerate global
availability of TUKYSA, we are wholly reliant on Merck’s ability to
effectively launch and commercialize TUKYSA in territories outside
of the U.S., Canada and Europe, and we have limited control of
Merck’s actions. In addition, in many countries, the proposed
pricing for a drug must be approved before it may be lawfully
marketed, and in some cases there are additional individual country
requirements, which will delay entry of a product into a market or,
if pricing is not approved, will prevent us from selling a product
in a country where we have received regulatory approval. The launch
of a newly approved product or of an existing product in a new
market, including the launch of TUKYSA in markets where TUKYSA has
obtained regulatory approval outside the U.S. and any other markets
where it may receive regulatory approval, if any, could be delayed
due to a variety of factors, including supply constraints, delays
in arranging a commercial infrastructure, delays in obtaining
pricing and reimbursement approvals or other factors, any of which
risks could be heightened by the risks and the evolving effects of
the COVID-19 pandemic. If we or Merck experience delays or
unforeseen difficulties due to any of these factors, planned
launches in the countries in question would be delayed, which could
negatively impact anticipated revenue from TUKYSA. In addition, if
we or Merck are unable to obtain favorable pricing and
reimbursement approvals in territories that represent significant
potential markets, including the EU, our anticipated revenue from
and growth prospects for TUKYSA in Europe and other regions could
be negatively affected.
If we or our collaborators are unable to obtain and maintain
necessary or desirable regulatory approvals for our products and
product candidates, including for ADCETRIS, PADCEV and TUKYSA, in a
timely manner, if at all, if the FDA or other regulatory
authorities do not approve product labeling that is necessary or
desirable for the successful commercialization of an approved
product, or if sales of an approved product do not reach the levels
we expect, then our anticipated revenue from our products and
product candidates and our prospects for profitability would be
adversely affected, which could have a material adverse effect on
our business, financial condition, results of operations and growth
prospects.
Reports of adverse events or safety concerns involving our products
or product candidates could delay or prevent us from obtaining or
maintaining regulatory approvals or could negatively impact sales
of our products or the prospects for our product
candidates.
Reports of adverse events or safety concerns involving our products
could interrupt, delay or halt clinical trials of our products,
including the post-approval confirmatory studies that regulatory
agencies have required us or our collaborators to complete. In
addition, reports of adverse events or safety concerns involving
our products could result in regulatory authorities requiring that
we update the applicable product’s prescribing information, or
limiting, denying or withdrawing approval of our products for any
or all indications, including previously approved indications.
There are no assurances that patients receiving our products will
not experience serious adverse events, including fatal events, in
the future, whether the serious adverse events are disclosed in the
prescribing information or are newly reported. Further, there are
no assurances that patients receiving our products with co-morbid
diseases not previously studied, such as autoimmune diseases, will
not experience new or different serious adverse events in the
future.
The prescribing information for ADCETRIS includes warnings and
precautions for various toxicities, as well as a boxed warning
related to the risk that JC virus infection resulting in
progressive multifocal leukoencephalopathy and death can occur in
patients receiving ADCETRIS. The prescribing information for PADCEV
and TUKYSA also includes warnings and precautions for various
toxicities and reactions, including certain fatal reactions. We may
be required to update the prescribing information for our products,
including boxed warnings, limitations of use, contraindications,
warnings and precautions, and adverse reactions, based on reports
of adverse events or safety concerns, or implement a Risk
Evaluation and Mitigation Strategy, or REMS. Side effects and
toxicities associated with our products could affect the
willingness of physicians to prescribe, and patients to utilize,
our products and thus harm commercial sales of our products.
Implementation of a REMS could advantage products that compete with
ours or make it more difficult or expensive for us to distribute
our products.
Likewise, reports of adverse events or safety concerns involving
our product candidates could interrupt, delay or halt clinical
trials of our product candidates, or could result in our or our
collaborators’ inability to obtain regulatory approvals of our
product candidates. Although we announced positive results from the
innovaTV 204 trial, data continues to be generated in this trial
and in other tisotumab vedotin trials. There may still be important
new or evolving facts about the safety, efficacy, and risk versus
benefit of each of our product candidates, including tisotumab
vedotin, which may negatively impact our ability to develop and
commercialize these product candidates. For example, in response to
prior safety events observed in our clinical trials of PADCEV and
tisotumab vedotin, including serious side effects and patient
deaths, we have in the past, and may in the future, institute
additional precautionary safety measures such as dosing caps and
delays, enhanced monitoring for side effects, and modified patient
inclusion and exclusion criteria. Additional and/or unexpected
safety events could be observed in these or other trials that could
delay or prevent us from advancing the clinical development of, or
obtaining regulatory approvals for, our products and product
candidates or require us to alter the approved labeling of our
products, and may adversely affect our business, results of
operations and prospects.
Concerns regarding the safety of our products or product candidates
as a result of undesirable side effects identified during clinical
testing or otherwise could cause the FDA to order us to cease
further development or commercialization of our products or the
product candidates. Undesirable side effects caused by our products
or product candidates could also result in denial of regulatory
approval by the FDA or other regulatory authorities for any or all
targeted indications, the requirement of additional trials,
implementation of a REMS or the inclusion of unfavorable
information in our product labeling, and in turn delay or prevent
us from commercializing the applicable product or product
candidate. In addition, actual or potential drug-related side
effects could affect patient recruitment or the ability of enrolled
patients to complete a trial for our products or product candidates
or result in potential product liability claims. Any of these
events could prevent us from developing or commercializing the
applicable product or product candidate, and could significantly
harm our business, results of operations and
prospects.
Clinical trials are expensive and time consuming, may take longer
than we expect or may not be completed at all, and their outcome is
uncertain.
We and our collaborators are currently conducting multiple clinical
trials for our products and product candidates and plan to commence
additional trials of our products and product candidates in the
future. Many of these trials, including phase 3 and pivotal phase 2
trials, were initiated based on only limited clinical data and we
cannot be certain that the design or conduct of, or data collected
from, these trials will be sufficient to support FDA or any
regulatory approvals outside the U.S.
Each of our clinical trials requires the investment of substantial
expense and time and the outcome of these trials is uncertain.
Later-stage clinical trials may differ in significant ways from
earlier stage clinical trials and may have different outcomes.
Differences in earlier- and later-stage clinical trials may include
changes to inclusion and exclusion criteria, efficacy endpoints and
statistical design. In this regard, despite the positive initial
results we and Astellas reported from the EV-103 trial, we cannot
be certain that PADCEV will demonstrate sufficient efficacy in
other trials, including in the EV-302 trial, other cohorts of the
EV-103 trial or any future trials or cohorts. Moreover, despite the
positive initial data from the EV-103 trial, PADCEV may not
demonstrate sufficient efficacy in any other clinical trials in a
frontline setting and may never be approved for use in any
frontline setting, which would significantly delay or prevent us
from achieving profitability. Likewise, despite the positive
results we reported from the HER2CLIMB trial, we cannot be certain
that TUKYSA will demonstrate sufficient efficacy in other trials,
including the HER2CLIMB-02 trial, and, despite the positive results
we reported from the innovaTV 204 trial, we cannot be certain that
tisotumab vedotin will demonstrate sufficient efficacy in other
trials or will ever be approved for commercial sale. In addition,
there may still be important facts about the safety, efficacy, and
risk versus benefit of PADCEV, TUKYSA and tisotumab vedotin that
are not known to us at this time which may negatively impact our
ability to develop and commercialize PADCEV, TUKYSA or tisotumab
vedotin as single agents or in combination with other agents. In
this regard, in the first cohort of the EV-201 trial, there was one
death due to interstitial lung disease, which occurred outside the
safety-reporting period of the trial and was confounded by
prolonged high-dose steroid use and suspected pneumonia, and in the
initial results of the EV-103 trial, there was one death deemed to
be treatment-related by the investigator, attributed to multiple
organ dysfunction syndrome. There was also one death deemed to be
treatment-related by the investigator in the innovaTV 204 trial. In
addition, in response to prior safety events observed in our
clinical trials of PADCEV and tisotumab vedotin, including serious
side effects and patient deaths, we have in the past, and may in
the future, institute additional precautionary safety measures such
as dosing caps and delays, enhanced monitoring for side effects,
and modified patient inclusion and exclusion criteria. Additional
and/or unexpected safety events or our failure to generate
additional efficacy data in our clinical trials that support
registration could significantly impact the value of PADCEV, TUKYSA
and tisotumab vedotin to our business. Many companies in the
pharmaceutical and biotechnology industries, including us, have
suffered significant setbacks in late-stage clinical trials after
achieving encouraging or positive results in early-stage
development. We cannot be certain that we will not face similar
setbacks in our ongoing or planned clinical trials, including in
the ongoing pivotal trials for PADCEV and TUKYSA. If we or our
collaborators fail to produce positive results in our ongoing or
planned clinical trials of PADCEV, TUKYSA, tisotumab vedotin or any
of our other product candidates, the development timeline and
regulatory approval and commercialization prospects for PADCEV,
TUKYSA, tisotumab vedotin and our other product candidates, and,
correspondingly, our business, financial condition, results of
operations and growth prospects, would be materially adversely
affected.
The timing of the commencement, continuation and completion of each
of our clinical trials may be subject to delays relating to various
causes, including scheduling conflicts with participating
clinicians and clinical institutions, difficulties in identifying
and enrolling patients who meet trial eligibility criteria, failure
of patients to complete the clinical trial, delays in accumulating
the required number of clinical events for data analyses, delay or
failure to obtain institutional review board, or IRB, approval to
conduct a clinical trial at a prospective site, and shortages of
available drug supply. In the context of the COVID-19 pandemic, we
are working to advance our clinical trial activities, while also
actively assessing and seeking to mitigate risks to our patients,
partners, employees and clinical trial site personnel. Some of the
sites participating in our clinical trials are affected by site
closings, reduced capacity or other effects of the COVID-19
pandemic. We are actively monitoring all clinical activities and
currently are experiencing impacts to our ability to monitor
patients, activate sites, screen and enroll patients, complete site
monitoring and manage samples. The extent of the impact of these
factors on a particular clinical trial depends on the current stage
of activities at a given site, for example, study start up versus
post-enrollment, and the impact on a clinical trial depends on the
number of impacted sites participating in that clinical trial. In
addition, we believe that rates of cancer diagnoses are lower than
they would otherwise be as a result of the impacts of the COVID-19
pandemic, which may also negatively impact enrollment. While we do
not at this time anticipate the need to revise our publicly
reported projected clinical milestone dates as a result of the
effects of the COVID-19 pandemic, there may be some impacts to our
clinical study timelines, which, depending upon the duration and
severity of the evolving effects of the COVID-19 pandemic, could
ultimately delay data availability. In addition, our ability to
recruit and retain principal investigators and site staff could be
adversely impacted by the risks of exposure to COVID-19 and by the
conversion of medical conferences to virtual format. Further, due
to the suspension of data monitoring activities at sites that do
not currently allow remote monitoring, as well as impacts on the
ability to monitor patients, maintain patient treatment according
to the trial protocols and to manage samples, there is also the
potential of negative impacts on data quality. While we are
actively utilizing digital monitoring measures and other
mitigations designed to prevent negative data quality impacts, if
there were in fact a negative impact on data quality, we or our
collaborators could be required to repeat, extend the duration of,
or increase the size of clinical trials, which could significantly
delay potential commercialization and require greater expenditures.
We expect that similar factors will impact clinical studies
operationalized by our collaborators. We cannot at this time fully
forecast the scope of impacts that the evolving effects of the
COVID-19 pandemic may have on our ability to initiate trial sites,
enroll and assess patients, handle the operational aspects of
trials such as drug and sample management, run studies in
accordance with the protocol and best practices and report trial
results.
Additionally, beyond impacts related to the evolving effects of the
COVID-19 pandemic, patient enrollment is a function of many
factors, including the size of the patient population, the
proximity of patients to clinical sites, the eligibility criteria
for the trial, the existence of competing clinical trials,
perceived side effects and the availability of alternative or new
treatments. From time to time we have experienced
enrollment-related delays in clinical trials, including in
connection with the COVID-19 pandemic, and we will likely continue
to experience similar delays in our current and future
trials.
Many of our future and ongoing clinical trials are being or will be
coordinated or conducted with Takeda, Astellas, Merck, Genmab,
Bristol-Myers-Squibb Company, or BMS, and other collaborators,
which may delay the commencement or adversely affect the
continuation or completion of these trials. In addition, our
collaborators have operational control over some of the studies we
conduct jointly and we do not have full visibility into these
studies run by our collaborators. We also depend on medical
institutions to conduct our clinical trials in compliance with Good
Clinical Practice, or GCP, and to the extent they fail to enroll
patients for our clinical trials, fail to conduct our trials in
accordance with GCP, or are delayed for a significant time in
achieving full enrollment, whether due to the risks and evolving
effects of the COVID-19 pandemic or otherwise, our clinical trials
and regulatory filings regarding our products and product
candidates may be negatively impacted including possible changes to
data, results, or conclusions, increased costs, and delays to
regulatory timelines, which may harm our reputation and business.
In addition, we conduct clinical trials in countries outside the
U.S. which may subject us to further delays and expenses as a
result of increased drug shipment costs and additional regulatory
requirements, as well as expose us to risks associated with
different standards of medical care, and currency transactions
insofar as changes in the relative value of the U.S. dollar to the
local currency where the trial is being conducted may impact our
actual costs. In addition, conducting clinical trials in countries
that are experiencing heightened impact from the evolving effects
of the COVID-19 pandemic may exacerbate these risks.
Clinical trials must be conducted in accordance with FDA or other
applicable government guidelines and are subject to oversight by
the FDA, other governmental agencies, including data protection
authorities, the data safety monitoring boards for such trials and
the IRBs or Ethics Committees for the institutions in which such
trials are being conducted. In addition, clinical trials must be
conducted with supplies of our products or product candidates
produced under cGMP and other requirements in the country in which
the trial is being conducted, and may require large numbers of test
patients. We or our collaborators, the FDA, other governmental
agencies or the applicable data safety monitoring boards, IRBs and
Ethics Committees could delay, suspend, halt or modify our clinical
trials of our products or any of our product candidates, for
numerous reasons, including:
•ADCETRIS,
PADCEV, TUKYSA or the applicable product candidate may have
unforeseen safety issues or adverse side effects, including
fatalities, or a determination may be made that a clinical trial
presents unacceptable health risks;
•deficiencies
in the conduct of the clinical trial, including failure to conduct
the clinical trial in accordance with regulatory requirements, GCP,
clinical protocols or regulations relating to data
protection;
•problems,
errors or other deficiencies with respect to data collection, data
processing and analysis;
•deficiencies
in the clinical trial operations or trial sites resulting in the
imposition of a clinical hold;
•the
time required to determine whether ADCETRIS, PADCEV, TUKYSA or the
applicable product candidate is effective may be longer than
expected;
•fatalities
or other adverse events arising during a clinical trial due to
medical problems that may not be related to clinical trial
treatments;
•ADCETRIS,
PADCEV, TUKYSA or the applicable product candidate may not appear
to be more effective than current therapies;
•the
quality or stability of ADCETRIS, PADCEV, TUKYSA or the applicable
product candidate may fall below acceptable standards;
•our
inability and the inability of our collaborators to produce or
obtain sufficient quantities of ADCETRIS, PADCEV, TUKYSA or the
applicable product candidate to complete the trials;
•our
inability and the inability of our collaborators to reach agreement
on acceptable terms with prospective trial sites, the terms of
which can be subject to extensive negotiation and may vary
significantly among different trial sites;
•our
inability and the inability of our collaborators to obtain IRB or
Ethics Committee approval to conduct a clinical trial at a
prospective site;
•changes
in governmental regulations or administrative actions that
adversely affect our ability and the ability of our collaborators
to continue to conduct or to complete clinical trials;
•lack
of adequate funding to continue the clinical trial, including the
incurrence of unforeseen costs due to enrollment delays,
requirements to conduct additional trials and studies and increased
expenses associated with the services of our clinical research
organizations and other third parties;
•our
inability and the inability of our collaborators to recruit and
enroll patients to participate in clinical trials for reasons
including competition from other clinical trial programs for the
same or similar indications;
•our
inability and the inability of our collaborators to retain patients
who have initiated a clinical trial but may be prone to withdraw
due to side effects from the therapy, lack of efficacy or personal
issues, or who are lost to further follow-up;
•our
inability and the inability of our collaborators to ensure adequate
statistical power to detect statistically significant treatment
effects, whether through our inability to enroll or retain patients
in trials or because the specified number of events designated for
a completed trial have not occurred; or
•the
risks and evolving effects of the COVID-19 pandemic.
In addition, we or our collaborators may experience significant
setbacks in advanced clinical trials, even after promising results
in earlier trials, including unexpected adverse events that may
occur when our product candidates are combined with other
therapies.
Negative or inconclusive clinical trial results could adversely
affect our ability and the ability of our collaborators to obtain
regulatory approvals of our product candidates, including tisotumab
vedotin, or to market ADCETRIS, PADCEV or TUKYSA and/or expand
ADCETRIS, PADCEV or TUKYSA into additional indications and
territories. In addition, clinical trial results are frequently
susceptible to varying interpretations that may delay, limit or
prevent regulatory approvals. For example, although we reported
positive results from the HER2CLIMB trial and submitted a
regulatory application for TUKYSA to the MHRA, the regulatory
application we submitted may not be approved in a timely manner or
at all. Similarly, we and Astellas reported that the EV-301 trial
met its primary endpoint of overall survival and reported positive
topline results from the second cohort of patients in the EV-201
trial. However, despite these results and although we and Astellas
plan to submit a supplemental BLA to the FDA based on the EV-301
trial as the confirmatory trial following PADCEV’s accelerated
approval by the FDA and EV-301 is also intended to support global
regulatory submissions, and although we and Astellas plan to submit
an sBLA to the FDA based on the results of the second cohort of the
EV-201 trial, regulatory authorities, including the FDA, or their
advisors may disagree with our interpretation of the data from
these trials. As a result, the FDA may not convert PADCEV’s
accelerated approval to regular approval in the U.S., and
regulatory authorities may not accept or approve any other
regulatory applications for PADCEV, in a timely manner or at all.
Further, although we announced positive results from the innovaTV
204 trial and we and Genmab submitted a BLA to the FDA seeking
accelerated approval for tisotumab vedotin based on the results of
the innovaTV 204 trial, the FDA, or its advisors, may disagree with
our interpretation of the data from the innovaTV 204 trial and may
otherwise determine not to accept or approve the BLA that we and
Genmab submitted for tisotumab vedotin in a timely manner or at
all. Likewise, although we reported positive results in our
ECHELON-2 trial, regulatory agencies outside of the territories
where ADCETRIS has been approved in the ECHELON-2 treatment
setting, or their advisors, may disagree with Takeda’s
interpretations of data from the ECHELON-2 trial and may not
approve the expansion of the ADCETRIS labeled indications of use to
the ECHELON-2 treatment setting. Moreover, adverse medical events
during a clinical trial, including patient fatalities, could cause
a trial to be redone or terminated, require us to cease development
of a product candidate or the further development or
commercialization of ADCETRIS, PADCEV or TUKYSA, result in our
failure to expand ADCETRIS, PADCEV or TUKYSA into additional
indications and territories, adversely affect our ability to market
ADCETRIS, PADCEV or TUKYSA, and may result in other negative
consequences to us, including the inclusion of unfavorable
information in our product labeling. Further, some of our clinical
trials are overseen by an independent data monitoring committee, or
IDMC, and an IDMC may determine to delay or suspend one or more of
these trials due to safety or futility findings based on events
occurring during a clinical trial. In addition, we may be required
to implement additional risk mitigation measures that could require
us to suspend our clinical trials if certain safety events
occur.
The successful commercialization of our products and our product
candidates will depend on a variety of factors, including the
extent to which governmental authorities and health insurers
establish adequate coverage and reimbursement levels and pricing
policies, and the acceptance of our products by the medical
community and patients.
Successful sales of our current and any future approved products
will depend, in part, on the extent to which coverage and
reimbursement for our products will be available from government
and health administration authorities, private health insurers and
other third-party payors. To manage healthcare costs, many
governments and third-party payors increasingly scrutinize the
pricing of new products and require increasing levels of evidence
of favorable clinical outcomes and cost-effectiveness before
extending coverage. In light of this pricing scrutiny, we cannot be
sure that we and our collaborators will achieve and continue to
have coverage available for our products and any product candidates
that we or our collaborators commercialize and, if available, that
the reimbursement rates will be adequate and grant access to all
eligible patients. If we or our collaborators are unable to obtain
coverage and adequate levels of reimbursement for our current and
any future approved products that we or our collaborators
commercialize, their marketability will be negatively and
materially impacted. For example, we cannot be certain that
third-party payors will continue to provide coverage and adequate
reimbursement for ADCETRIS in the frontline Hodgkin lymphoma
indication based on the relative price and perceived benefit of
ADCETRIS as compared to alternative treatment options, which may
materially harm our ability to maintain or increase sales of
ADCETRIS or may otherwise negatively affect future ADCETRIS sales.
Similarly, we cannot be certain that third-party payors will
provide coverage and adequate reimbursement for PADCEV or TUKYSA
based on their relative price and perceived benefits as compared to
alternative treatment options or otherwise, which may materially
harm our and our collaborators’ ability to successfully
commercialize PADCEV and TUKYSA in our respective designated
territories. In addition, we have experienced an increase in
gross-to-net deductions that we believe is due to a shift in the
locations where ADCETRIS is administered, which has increased the
proportion of ADCETRIS sales through the federal 340B drug discount
program, and we may experience additional shifts from commercial
payor coverage to government payor coverage in the U.S., which
would further increase gross-to-net deductions.
In many jurisdictions, including in Europe, the proposed pricing
for a drug must be approved in an individual country before it may
be lawfully marketed, which could delay entry of a product into a
market or, if pricing is not approved, may prevent us or our
collaborators from selling a product in a country where we or our
collaborators have received regulatory approval. In European
countries where we have obtained regulatory approval of TUKYSA, we
will seek pricing and reimbursement agreements for TUKYSA in
accordance with local timelines. As an organization, we did not
have any experience applying for pricing and reimbursement
approvals in jurisdictions outside the U.S. and Canada prior to our
applications with respect to TUKYSA. Further, authorities in Europe
have substantial discretion in the pricing and reimbursement
approval process and in determining when or whether coverage will
be obtained for our products or product candidates, including any
approvals for our medicines in initial and additional indications
or in additional territories. In addition, in some cases, they may
lower the price for a medicine after the price has been
established. The launch of TUKYSA outside of the U.S. could be
delayed due to a variety of factors, including supply constraints,
delays in arranging a commercial infrastructure, delays encountered
by our collaborator, Merck, delays in obtaining pricing and
reimbursement approvals or other delays related to regulatory
requirements. If we or Merck experience delays or unforeseen
difficulties due to any of these factors, planned launches in the
countries in question would be delayed, which could negatively
impact anticipated revenue from TUKYSA. In addition, if we or Merck
are unable to obtain favorable pricing and reimbursement approvals
in the countries that represent significant potential markets, our
anticipated revenue from and growth prospects for TUKYSA in Europe
and other regions could be negatively affected.
Eligibility for coverage and reimbursement does not imply that a
drug will be paid for in all cases or at a rate that captures the
value delivered to patients, payers and the overall healthcare
system, allows for continued investment in innovative treatments
for cancer patients or that covers our costs, including research,
development, manufacture, sale and distribution. In addition,
obtaining and maintaining adequate coverage and reimbursement
status is time-consuming and costly. Third-party payors may deny
coverage and reimbursement status altogether of a given drug
product, or cover the product but may also establish prices at
levels that are too low to enable us to realize an appropriate
return on our investment in product development or limit access to
select patient populations reducing revenue potential. Further, in
the U.S., there is no uniform policy of coverage and reimbursement
among third-party payors. Third-party payors often rely upon
Medicare coverage policy and payment limitations in setting their
own coverage and reimbursement policies. However, decisions
regarding the extent of coverage and amount of reimbursement to be
provided is made on a payor-by-payor basis. One payor’s
determination to provide coverage for a product does not assure
that other payors will also provide coverage for the product.
Because the rules and regulations regarding coverage and
reimbursement change frequently, in some cases at short notice,
even when there is favorable coverage and reimbursement, future
changes may occur that adversely impact the favorable
status.
The unavailability or inadequacy of third-party coverage and
reimbursement could have a material adverse effect on the market
acceptance of our current and any future approved products and the
future revenues we may expect to receive from those products. In
addition, we are unable to predict what additional legislation or
regulation relating to the healthcare industry or third-party
coverage and reimbursement may be upheld or enacted in the future,
or what effect such legislation or regulation would have on our
business. Continuing negative publicity regarding pharmaceutical
pricing practices and ongoing governmental and societal scrutiny
create significant uncertainty regarding regulation of the
healthcare industry and third-party coverage and reimbursement in
the U.S. and other jurisdictions. If healthcare policies or reforms
intended to curb healthcare costs are implemented or if we
experience negative publicity with respect to pricing of our
products or the pricing of pharmaceutical products generally, the
prices that we charge for our current and any future approved
products may be limited, our revenues from sales of our current and
any future approved products may be negatively
impacted.
The degree of market acceptance among patients, physicians, and
third-party payors is also important to our ability to successfully
commercialize our current and any future approved products. The
degree of acceptance will depend on a number of factors including
the clinical benefits of our products, effectiveness of our
marketing, sales and distribution strategy and operations, the
acceptance of our product by patients, physicians and third-party
payors, the perceived advantages and relative cost, safety and
efficacy of alternative treatments, and the acceptance and degree
of adoption of our products by institutional treatment pathways and
institutional, local, and national clinical guidelines such as the
National Comprehensive Cancer Networks®
Clinical Practice Guidelines in Oncology, or the NCCN Guidelines,
or other country-specific guidelines. In the U.S., many oncology
practices and healthcare providers rely on the NCCN Guidelines or
other institutional practice pathways in decisions related to
treatment of patients and utilization of medicines. To the extent
that our current or any future approved products are not included
or positioned favorably in such treatment guidelines and pathways,
the full utilization potential of our products may not be reached,
which may harm our ability to successfully commercialize our
current or any future approved products. For example, in the
ADCETRIS frontline Hodgkin lymphoma indication, the NCCN Guidelines
have been interpreted as being more restrictive than our labeled
indication and since these guidelines and related interpretations
have been translated into treatment pathways for many institutions,
our ability to maintain or increase sales of ADCETRIS may be
materially harmed or future ADCETRIS sales may otherwise be
negatively affected.
Our product candidates are in various stages of development, and it
is possible that none of our product candidates will ever become
commercial products.
Although we announced positive results from the innovaTV 204 trial
of our late-stage product candidate, tisotumab vedotin and we and
Genmab submitted a BLA to the FDA seeking accelerated approval for
tisotumab vedotin, we cannot be certain that the data from the
innovaTV 204 trial will be sufficient to support accelerated
approval. We cannot predict whether the BLA that we and Genmab
submitted for tisotumab vedotin will be accepted or approved in a
timely manner or at all. Our clinical pipeline also includes
ladiratuzumab vedotin, which is in phase 2 clinical development,
and other product candidates that are in phase 1 clinical
development. In addition, we have multiple preclinical and
research-stage programs that employ our proprietary technologies.
We will require significant financial resources and additional
personnel in order to continue to advance the development of,
pursue, potentially obtain and maintain regulatory approvals for,
and potentially commercialize tisotumab vedotin, if we are able to
do so at all.
If a product candidate fails at any stage of development or fails
to receive regulatory approval, or we or our collaborators
otherwise determine to discontinue development of that product
candidate, we will not have the anticipated revenues from that
product candidate to fund our operations, and we may not receive
any return on our investment in that product candidate. Preclinical
studies and any encouraging or positive preliminary and interim
data from our clinical trials of our product candidates may not be
predictive of the results of ongoing or later clinical trials. Even
if we or our collaborators are able to complete our planned
clinical trials of our product candidates according to our current
development timeline, any encouraging or positive results from
clinical trials of our product candidates in earlier stage trials
may not be replicated in subsequent later-stage trials. For
example, although we reported positive results from the innovaTV
204 trial of tisotumab vedotin, we cannot be certain that tisotumab
vedotin will demonstrate sufficient efficacy in other trials. In
addition, we are developing products and product candidates in
indications in which competition is intense, and it is possible
that a clinical trial we run may meet its safety and efficacy
endpoints but we may choose not to advance the development and
commercialization of a product or product candidate in one or more
indications due to changes in the competitive environment and the
rapid evolution of the standard of care. As a result, we and our
collaborators may conduct lengthy and expensive clinical trials of
our products and product candidates only to learn that a product or
product candidate is not an effective treatment or is not superior
to existing approved therapies in the applicable indication, or has
an unacceptable safety profile. Any of these results could prevent
or significantly delay regulatory approval for the applicable
product in any additional indications or of the applicable product
candidate or could cause us to discontinue or limit the further
development of such product or product candidate. If we or our
collaborators fail to produce positive results in our ongoing or
planned clinical trials of tisotumab vedotin or any of our other
product candidates, the development timeline and regulatory
approval and commercialization prospects for that product
candidate, and our ability to recoup our investment in that product
candidate, would be materially adversely affected.
Due to the uncertain and time-consuming clinical development and
regulatory approval process, we may not successfully develop any of
our product candidates, or we may choose to discontinue the
development of product candidates for a variety of reasons such as
safety, risk versus benefit profile, exclusivity, competitive
landscape, or prioritization of our resources. It is possible that
none of our product candidates will ever become commercial
products. In addition, we have to make decisions about which
clinical stage and pre-clinical product candidates to develop and
advance, and we may not have the resources to invest in certain
product candidates, or clinical data and other development
considerations may not support the advancement of one or more
product candidates. Decision-making about which product candidates
to prioritize involves inherent uncertainty, and our development
program decision-making and resource prioritization decisions may
not improve our results of operations or prospects or enhance the
value of our common stock. Our failure to effectively advance our
development programs could have a material adverse effect on our
business and prospects, and cause the price of our common stock to
decline. In addition, many of our non-essential on site research
activities are currently significantly reduced as a result of the
COVID-19 pandemic, which may negatively impact the number of IND
candidates entering our clinical pipeline in future
years.
Any failures or setbacks in our ADC development program or our
other platform technologies could negatively affect our business
and financial position.
ADCETRIS, PADCEV and our tisotumab vedotin and ladiratuzumab
vedotin product candidates are all based on our antibody-drug
conjugate, or ADC, technology, which utilizes proprietary stable
linkers and potent cell-killing synthetic agents. Our ADC
technology is also the basis of our license agreements with AbbVie
Biotechnology Ltd., or AbbVie, Astellas, Genentech, Inc., a member
of the Roche Group, or Genentech, GlaxoSmithKline LLC, or GSK, and
Progenics Pharmaceuticals Inc., or Progenics, and our collaboration
agreements with Takeda, Astellas, and Genmab. Any failures or
setbacks in our ADC development program or with respect to our
additional proprietary technologies, including adverse effects
resulting from the use of this technology in human clinical trials
and/or the imposition of clinical holds on our trials of our
product candidates, could have a detrimental impact on the
continued commercialization of our products in their current or any
potential future approved indications and on our product candidate
pipeline, as well as our ability to maintain and/or enter into new
corporate collaborations regarding our ADC technology, which would
negatively affect our business and financial position.
We face intense competition and rapid technological change, which
may result in others discovering, developing or commercializing
competing products before or more successfully than we
do.
The biotechnology and biopharmaceutical industries are
characterized by rapidly advancing technologies, intense
competition and a strong emphasis on proprietary products. Many
third parties compete with us in developing various approaches to
treating cancer. They include pharmaceutical companies,
biotechnology companies, academic institutions and other research
organizations.
Many of our competitors have significantly greater financial
resources and expertise in research and development, manufacturing,
preclinical testing, conducting clinical trials, obtaining
regulatory approval and marketing than we do. In addition, many of
these competitors are active in seeking patent protection and
licensing arrangements in anticipation of collecting royalties for
use of technology that they have developed. Smaller or early-stage
companies may also prove to be significant competitors,
particularly through collaborative arrangements with large and
established companies. These third parties compete with us in
recruiting and retaining qualified scientific and management
personnel, as well as in acquiring technologies complementary to
our programs.
With respect to ADCETRIS, there are several other FDA approved
drugs for its approved indications. BMS’s nivolumab and Merck’s
pembrolizumab are approved for the treatment of certain patients
with relapsed or refractory classical Hodgkin lymphoma, and
Celgene’s romidepsin and Acrotech Biopharma’s pralatrexate and
belinostat are approved for relapsed or refractory systemic
anaplastic large cell lymphoma, or sALCL, among other T-cell
lymphomas. Kyowa Kirin’s mogamulizumab is approved for adult
patients with relapsed or refractory mycosis fungoides or Sézary
syndrome. The competition ADCETRIS faces from these and other
therapies is intensifying. Additionally, Merck is conducting a
phase 3 clinical trial in relapsed or refractory classical Hodgkin
lymphoma comparing pembrolizumab with ADCETRIS. An interim analysis
of this clinical trial demonstrated a statistically significant
improvement in progression-free survival for pembrolizumab compared
with ADCETRIS, resulting in a label expansion to an earlier line of
therapy, and we expect increased competition from pembrolizumab in
this indication. We are also aware of multiple investigational
agents currently being studied that, if successful, may compete
with ADCETRIS in the future. Data have also been presented on
several developing technologies, including bispecific antibodies
and CAR modified T-cell therapies that may compete with ADCETRIS in
the future. Further, there are many competing approaches used in
the treatment of patients in ADCETRIS’ approved indications,
including autologous hematopoietic stem cell transplant, allogeneic
hematopoietic stem cell transplant, combination chemotherapy,
clinical trials with experimental agents and single-agent
regimens.
With respect to PADCEV, other treatments in pretreated metastatic
urothelial cancer include checkpoint inhibitor monotherapy, generic
chemotherapy and, for patients with select FGFR genetic
alterations, Janssen’s erdafitinib. There are other investigational
agents that, if approved, could be competitive with PADCEV, such as
Gilead's sacituzumab govitecan, which is in a pivotal phase 2
study. Treatment in front line metastatic urothelial cancer has
traditionally been treated with chemotherapy alone but is evolving
to include two checkpoint inhibitor therapies for
cisplatin-ineligible patients with high PD-L1 expression or
patients who are ineligible for platinum therapy. Several trials of
investigational agents in combination with chemotherapy or other
novel agents are ongoing. Continued development of PD-(L)1 targeted
therapies across early stage bladder cancer and in metastatic
bladder cancer in frontline combinations with chemotherapy, in
frontline maintenance with the recent approval of avelumab, and in
pretreated disease, could potentially impact PADCEV usage and
enrollment to PADCEV clinical trials.
With respect to TUKYSA, there are multiple marketed products which
target HER2, including the antibodies trastuzumab and pertuzumab
and the antibody drug conjugate T-DM1. In addition, lapatinib is an
EGFR/HER2 oral kinase inhibitor for the treatment of metastatic
breast cancer, and neratinib is an irreversible pan-HER kinase
inhibitor indicated for extended adjuvant treatment and has been
recently approved for patients who have received two or more prior
anti-HER2-based regimens in the metastatic setting. Daiichi Sankyo
and AstraZeneca have fam-trastuzumab deruxtecan-nxki which was
recently approved for patients who have received two or more prior
anti-HER2-based regimens in the metastatic breast cancer setting
and also in HER2 positive gastric cancer. Byondis has an antibody
drug conjugate, SYD985, in a pivotal study in this patient
population and MacroGenics has a HER2 targeted, Fc-optimized
antibody, margetuximab, which was recently approved by the
FDA.
With respect to tisotumab vedotin, in June 2018, Merck’s
pembrolizumab was approved for the treatment of recurrent or
metastatic cervical cancer with disease progression on or after
chemotherapy in patients whose tumors express PD-L1. We are also
aware of other companies that currently have products in
development for the treatment of late-stage cervical cancer which
could be competitive with tisotumab vedotin, including Agenus, BMS,
Iovance Biotherapeutics, Merck, Regeneron Pharmaceuticals,
Sanofi-Aventis and Roche.
Many other pharmaceutical and biotechnology companies are
developing and/or marketing therapies for the same types of cancer
that our product candidates are designed and being developed to
treat. For example, we believe that companies including AbbVie, ADC
Therapeutics, Affimed, Agios, Amgen, Astellas, Bayer, Biogen, BMS,
Celgene, Daiichi Sankyo, Eisai, Genentech, GSK, Gilead, ImmunoGen,
Infinity, Janssen, Karyopharm, MacroGenics, MedImmune, MEI Pharma,
Merck, Novartis, Pfizer, Puma Biotech, Sanofi-Aventis, Spectrum
Pharmaceuticals, Takeda, Teva, and Xencor are developing and/or
marketing products or technologies that may compete with ours. In
addition, our ADC collaborators may develop compounds utilizing our
technology that may compete with product candidates that we are
developing.
We are aware of other companies that have technologies that may be
competitive with ours, including AbbVie, ADC Therapeutics,
Astellas, AstraZeneca, BMS, Daiichi Sankyo, Gilead, ImmunoGen,
Janssen, MedImmune, Merck, Mersana, Pfizer, Roche, Sutro, and
Zymeworks, all of which have ADC technology. ImmunoGen has several
ADCs in development that may compete with our product candidates.
ImmunoGen has also established partnerships with other
pharmaceutical and biotechnology companies to allow those other
companies to utilize ImmunoGen’s technology, including
Sanofi-Aventis, Genentech, Novartis, Takeda and Lilly. We are also
aware of a number of companies developing monoclonal antibodies
directed at the same antigen targets or for the treatment of the
same diseases as our product candidates.
In addition, in the U.S., the Biologics Price Competition and
Innovation Act of 2009 created an abbreviated approval pathway for
biological products that are demonstrated to be “highly similar” or
“biosimilar” to or “interchangeable” with an FDA approved
biological product. This pathway allows competitors to reference
the FDA’s prior approvals regarding innovative biological products
and data submitted with a BLA to obtain approval of a biosimilar
application 12 years after the time of approval of the innovative
biological product. The 12-year exclusivity period runs from the
initial approval of the innovator product and not from approval of
a new indication. In addition, the 12-year exclusivity period does
not prevent another company from independently developing a product
that is highly similar to the innovative product, generating all
the data necessary for a full BLA and seeking approval. Exclusivity
only assures that another company cannot rely on the FDA’s prior
approvals in approving a BLA for an innovator’s biological product
to support the biosimilar product’s approval. Further, under the
FDA’s current interpretation, it is possible that a biosimilar
applicant could obtain approval for one or more of the indications
approved for the innovator product by extrapolating clinical data
from one indication to support approval for other indications. In
the EU, the EC has granted marketing authorizations for biosimilars
pursuant to a set of general and product class-specific guidelines.
We are aware of many pharmaceutical and biotechnology and other
companies that are actively engaged in research and development of
biosimilars or interchangeable products.
It is possible that our competitors will succeed in developing
technologies that are more effective than ADCETRIS, PADCEV, TUKYSA,
tisotumab vedotin or our other product candidates or that would
render our technology obsolete or noncompetitive, or will succeed
in developing biosimilar, interchangeable or generic products for
ADCETRIS, PADCEV, TUKYSA, tisotumab vedotin or our other product
candidates. We anticipate that we will continue to face increasing
competition in the future as new companies enter our market and
scientific developments surrounding biosimilars and other cancer
therapies continue to accelerate. We cannot predict to what extent
the entry of biosimilars or other competing products will impact
potential future sales of ADCETRIS, PADCEV, TUKYSA, tisotumab
vedotin or our other product candidates.
Risks Related to Regulatory Approval and Oversight, and Other Legal
Compliance Matters
Even if we and our collaborators obtain regulatory approvals to
market our current and any future approved products, we and our
collaborators will remain subject to extensive ongoing regulatory
obligations and oversight, including post-approval requirements,
that could result in significant additional expense and could
negatively impact our and our collaborators’ ability to
commercialize our current and any future approved
products.
We are subject to extensive ongoing obligations and continued
regulatory review from applicable regulatory agencies with respect
to any product for which we have obtained regulatory approval,
including ADCETRIS, PADCEV and TUKYSA in each of their approved
indications, such as continued adverse event reporting requirements
and the requirement to have some of our promotional materials
pre-cleared by the FDA. There may also be additional post-marketing
obligations, all of which may result in significant expense and
limit our and our collaborators’ ability to commercialize our
current and any future approved products. For example, the FDA’s
accelerated approval of PADCEV included a requirement for a
confirmatory trial, EV-301, to confirm the clinical benefit and
provide additional long-term efficacy data that may inform product
labeling. If the FDA does not agree with our interpretation of the
data from this post-marketing study, it could withdraw approval of
PADCEV or require the inclusion of unfavorable safety information
in our product labeling, which could seriously harm our business.
Moreover, in connection with PADCEV’s accelerated approval, the
labeling and advertising and promotion of PADCEV are subject to
additional regulatory requirements, which entail significant
expense and could negatively impact the commercialization of
PADCEV. In addition, the use of any of our products may uncover
additional adverse events that require us to update the product’s
prescribing information, limit or prevent that product’s widespread
use or that result in the withdrawal of that product from the
market. Any problems with a product or any violation of ongoing
regulatory obligations could result in restrictions on the
applicable product, including the withdrawal of the applicable
product from the market.
ADCETRIS is approved under conditional marketing authorization in
relapsed Hodgkin lymphoma, relapsed cutaneous T-cell lymphoma, and
in both relapsed and frontline sALCL in the EU under regulations
which allow for approval of products for cancer or other serious or
life threatening illnesses based on a surrogate endpoint or on a
clinical endpoint other than survival or irreversible morbidity.
Takeda is subject to certain post-approval requirements, including
the requirement to conduct clinical trials to confirm clinical
benefit. Takeda’s failure to provide these additional clinical data
from confirmatory studies could result in the European Commission,
or EC, withdrawing approval of ADCETRIS in the EU for certain
indications, which would negatively impact anticipated royalty
revenue from ADCETRIS sales by Takeda in the EU and could adversely
affect our results of operations. The FDA’s approval of ADCETRIS in
combination with chemotherapy for patients with previously
untreated CD30-expressing peripheral T-cell lymphoma, or the
frontline PTCL indication, included a post-marketing commitment to
develop a clinically validated in-vitro diagnostic device for the
selection of patients with CD30-expressing PTCL, not including
sALCL, for treatment with ADCETRIS in this indication. We and
Takeda have a collaboration with Ventana Medical Systems, Inc., or
Ventana, under which Ventana is working to develop, manufacture and
commercialize a companion diagnostic test to measure CD30
expression levels in tissue specimens. If Ventana develops an
in-vitro diagnostic device that we are able to clinically validate,
the FDA or another regulatory authority may revise our label for
the frontline PTCL indication or in connection with any future
approvals to require the use of the in-vitro test as a companion
diagnostic. This may limit our ability to commercialize ADCETRIS in
the applicable treatment setting due to potential label
requirements, prescriber practices, constraints on availability of
the diagnostic, or other factors. If Ventana is unable to
successfully develop the CD30 in-vitro diagnostic, or experiences
delays in doing so, or we experience delays in clinical validation
of the diagnostic, we will likely need to renegotiate the timing or
content of our post-marketing commitment regarding the in-vitro
diagnostic device with the FDA.
We and the manufacturers of our current and any future approved
products are also required, or will be required, to comply with
current Good Manufacturing Practices, or cGMP, regulations, which
include requirements relating to quality control and quality
assurance as well as the corresponding maintenance of records and
documentation. Further, regulatory agencies must approve these
manufacturing facilities before they can be used to manufacture our
products and product candidates, and these facilities are subject
to ongoing regulatory inspections. In addition, regulatory agencies
subject an approved product, its manufacturer and the
manufacturer’s facilities to continual review and inspections,
including periodic unannounced inspections. The subsequent
discovery of previously unknown problems with our current or any
future approved products, including adverse events of unanticipated
severity or frequency, or problems with the facilities where our
current or any future approved products are manufactured, including
potential staffing shortages, production slowdowns and the
extensive reliance on virtual oversight of third-party
manufacturing in connection with the COVID-19 pandemic, may result
in restrictions on the marketing of our current or any such future
approved products, up to and including withdrawal of the affected
product from the market. If our manufacturing facilities, our
collaborators’ manufacturing facilities, or those of our respective
suppliers, fail to comply with applicable regulatory requirements,
such noncompliance could result in regulatory action, delays in
regulatory timelines and additional costs to us.
Failure to comply with applicable FDA and other regulatory
requirements may subject us to administrative or judicially imposed
sanctions, including:
•issuance
of Form FDA 483 notices or Warning Letters by the FDA or other
regulatory agencies;
•imposition
of fines and other civil penalties;
•criminal
prosecutions;
•injunctions,
suspensions or revocations of regulatory approvals;
•suspension
of any ongoing clinical trials;
•total
or partial suspension of manufacturing;
•delays
in commercialization;
•refusal
by the FDA to approve pending applications or supplements to
approved applications submitted by us;
•refusals
to permit drugs to be imported into or exported from the
U.S.;
•restrictions
on operations, including costly new manufacturing requirements;
and
•product
recalls or seizures.
The policies of the FDA and other regulatory agencies may change
and additional government regulations may be enacted that could
prevent or delay regulatory approval of our product candidates or
of ADCETRIS, PADCEV or TUKYSA in any additional indications or
territories, or further restrict or regulate post-approval
activities. We cannot predict the likelihood, nature or extent of
adverse government regulation that may arise from future
legislation or administrative action, either in the U.S. or abroad.
If we are not able to maintain regulatory compliance, we or our
collaborators might not be permitted to market our current or any
future approved products and our business would
suffer.
Healthcare law and policy changes may have a material adverse
effect on us.
In recent years, there have been a number of legislative and
regulatory actions and executive orders that have made reforms to
the U.S. healthcare system. For example, the federal government has
implemented reforms to government healthcare programs in the U.S.,
including changes to the methods for, and amounts of, Medicare
reimbursement and changes to the Medicaid Drug Rebate Program. The
implementation of certain of these policy changes has decreased our
revenues and increased our costs, and federal and state
legislatures, health agencies and third-party payors continue to
focus on containing the cost of health care. Further legislative
and regulatory changes, and increasing pressure from social
sources, are likely to further influence the manner in which our
products are priced, reimbursed, prescribed and purchased. For
example, additional reforms could result in further reductions in
coverage and levels of reimbursement for our products, expansion of
U.S. government rebate programs, increases in the rebates payable
under these programs, requests for additional or supplemental
rebates, and additional downward pressure on the prices that we and
our collaborators receive for our products.
The Trump administration put forth a number of proposals aimed at
containing prescription drug prices and announced several Executive
Orders that sought to implement a number of the administration’s
proposals. For example, as a result of Executive Orders, the FDA
released a final rule, effective November 30, 2020, that cleared a
path for importation of some Canadian drugs into the U.S.
Biological products were excluded from the rule’s definition of
“eligible prescription drug,” however TUKYSA may be subject to
importation from Canada under this rule, which could negatively
affect TUKYSA sales in the U.S. We expect the Biden administration
to similarly pursue and implement measures aimed at reducing
pharmaceutical drug pricing. Also, in the current climate, price
increases on our products and negative publicity regarding drug
pricing and price increases generally, whether on our products or
products distributed by other pharmaceutical companies, could
negatively affect market acceptance of, and sales of, our
products.
Some states are also considering legislation and ballot initiatives
that would control the prices and coverage and reimbursement levels
of drugs, including laws to allow importation of pharmaceutical
products from lower cost jurisdictions outside the U.S. and laws
intended to impose price controls on state drug
purchases.
In addition, governments in countries outside the U.S. control the
costs of pharmaceuticals. Many European countries and Canada have
established pricing and reimbursement policies that contain costs
by referencing the price of the same or similar products in other
countries. In these instances, if coverage or the level of
reimbursement is reduced, limited or eliminated in one or more
countries, we may be unable to obtain or maintain anticipated
pricing or reimbursement in other countries or in new markets. This
may create the opportunity for third-party cross-border trade or
may influence our decision whether to sell a product in one or more
countries, thus adversely affecting our geographic expansion
plans.
It is also possible that governments may take additional action to
reform the healthcare system in response to the evolving effects of
the COVID-19 pandemic.
We cannot assure you as to the ultimate content, timing, or effect
of future healthcare law and policy changes, nor is it possible at
this time to estimate the impact of any such potential changes;
however, such changes or the ultimate impact of changes could
materially and adversely affect our revenue or sales of our current
and or potential future products, as well as those of our
collaborators.
We are subject to various state, federal and international laws and
regulations, including healthcare laws and regulations, that may
impact our business and could subject us to significant fines and
penalties or other negative consequences.
Our operations may be directly or indirectly subject to various
healthcare laws, including, without limitation, the federal
Anti-Kickback Statute, federal civil and criminal false claims
laws, regulations prohibiting off-label promotions and federal
transparency requirements. These laws may impact, among other
things, the sales, marketing and education programs for ADCETRIS,
PADCEV, TUKYSA and any future approved products.
The federal Anti-Kickback Statute prohibits, among other things,
knowingly and willingly soliciting, offering, receiving or
providing remuneration, directly or indirectly, in exchange for or
to induce either the referral of an individual, or the furnishing
or arranging for a good or service, for which payment may be made,
in whole or in part, under a federal healthcare program such as the
Medicare and Medicaid programs. Although there are a number of
statutory exceptions and regulatory safe harbors protecting some
common activities from prosecution, the exceptions and safe harbors
are drawn narrowly, and practices that involve remuneration not
intended to induce prescribing, purchases or recommendations may be
subject to scrutiny if they do not qualify for an exception or safe
harbor. In addition, a conviction for violation of the federal
Anti-Kickback Statute requires mandatory exclusion from
participation in federal healthcare programs.
The federal civil and criminal false claims laws, including the
civil False Claims Act, prohibit, among other things, persons or
entities from knowingly presenting, or causing to be presented, a
false claim to, or the knowing use of false statements to obtain
payment from or approval by the federal government, including the
Medicare and Medicaid programs, or knowingly making, using, or
causing to be made or used a false record or statement material to
a false or fraudulent claim or to avoid, decrease, or conceal an
obligation to pay money to the federal government. Many
pharmaceutical and other healthcare companies have been
investigated and have reached substantial financial settlements
with the federal government under the civil False Claims Act for a
variety of alleged improper marketing, promotion or other
activities.
The FDA and other governmental authorities also actively
investigate allegations of off-label promotion activities in order
to enforce regulations prohibiting these types of activities. In
recent years, private whistleblowers have also pursued False Claims
Act cases against a number of pharmaceutical companies for causing
false claims to be submitted as a result of off-label promotion. If
we are found to have promoted an approved product for off-label
uses, we may be subject to significant liability, including
significant civil and administrative financial penalties and other
remedies as well as criminal penalties and other sanctions. Even
when a company is not determined to have engaged in off-label
promotion, the allegation from government authorities or market
participants that a company has engaged in such activities could
have a significant impact on the company’s sales, business and
financial condition. The U.S. government has also required
companies to enter into complex corporate integrity agreements,
deferred prosecution agreements and/or non-prosecution agreements
that impose significant reporting and other burdens on the affected
companies.
The federal transparency requirements under the Physician Payments
Sunshine Act require certain manufacturers of drugs, devices,
biologics and medical supplies for which payment is available under
Medicare, Medicaid, or the Children’s Health Insurance Program to
annually report information related to certain payments or other
transfers of value to physicians (defined to include doctors,
dentists, optometrists, podiatrists and chiropractors), and
teaching hospitals, or to entities or individuals at the request
of, or designated on behalf of, the physicians and teaching
hospitals, and to report annually certain ownership and investment
interests held by physicians and their immediate family members.
Beginning in 2022, applicable manufacturers also will be required
to report information related to payments and other transfers of
value to physician assistants, nurse practitioners, clinical nurse
specialists, certified registered nurse anesthetists,
anesthesiologist assistants and certified nurse midwives during the
previous year. Failure to submit timely, accurately and completely
the required information for all payments, transfers of value and
ownership or investment interests may result in civil monetary
penalties of up to an aggregate of $150,000 per year plus up to an
aggregate of $1 million per year for “knowing failures,” as
adjusted for inflation.
Other healthcare laws and regulations that may affect our ability
to operate include, among others, the federal civil monetary
penalties statute and the federal Health Insurance Portability and
Accountability Act, or HIPAA. In addition, many states and
jurisdictions outside the U.S. have similar laws and regulations,
such as anti-kickback, anti-bribery and corruption, false claims
and transparency, to which we are currently and/or may in the
future, be subject. Additional information about these requirements
is provided under “Government Regulation – Healthcare Regulation”
above. In addition, the number and complexity of healthcare laws
and regulations applicable to our business continue to
increase.
We are also subject to numerous other laws and regulations that
while not specific to the healthcare industry, do apply to the
healthcare industry in important ways. For instance, the U.S.
Foreign Corrupt Practices Act, or FCPA, generally prohibits paying,
offering to pay, or authorizing the payment of anything of value to
any foreign government official, governmental staff members,
political party or political candidate in an attempt to obtain or
retain business or to otherwise influence a person working in an
official capacity. In Europe, national anti-corruption laws
prohibit giving, offering, or promising bribes to any person,
including foreign government officials and private persons, as well
as requesting, agreeing to receive, or accepting bribes from any
person. Various European anti-corruption laws have broad
extraterritorial reach and therefore we may be subject to those
laws even if we do not have an established entity in those
countries and we may be held liable for bribes given, offered or
promised to any person, including private persons, by employees and
persons associated with us in order to obtain or retain business or
a business advantage. As we expand our footprint and activities
outside of the U.S. and Canada, our exposure to compliance risks
under the FCPA and other similar laws will likewise
increase.
In an effort to comply with these laws and regulations, we have
implemented a compliance program designed to actively identify,
prevent and mitigate risk through the implementation of compliance
policies and systems and by promoting a culture of compliance. We
also actively work to revise and evolve our compliance program in
an effort to keep pace with evolving compliance risks and the
growing scale of our business. Although we take our obligation to
maintain our compliance with these various laws and regulations
seriously and our compliance program is designed to detect and
prevent the violation of these laws and regulations, we cannot
guarantee that our compliance program will be sufficient or
effective, that we will be able to integrate the operations of
newly formed affiliates or acquired businesses into our compliance
program on a timely basis, that our employees will comply with our
policies and that our employees will notify us of any violation of
our policies, that we will have the ability to take appropriate and
timely corrective action in response to any such violation, or that
we will make decisions and take actions that will necessarily limit
or avoid liability for whistleblower claims that individuals, such
as employees or former employees, may bring against us or that
governmental authorities may prosecute against us based on
information provided by individuals. If we are found to be in
violation of any of the laws and regulations described above or
other applicable state and federal healthcare laws, we may be
subject to penalties, including significant civil, criminal and
administrative penalties, damages, fines, disgorgement, contractual
damages, reputational harm, administrative burdens, imprisonment,
diminished profits and future earnings, exclusion from government
healthcare reimbursement programs, additional reporting
requirements and oversight if we become subject to a corporate
integrity agreement or similar agreement to resolve allegations of
non-compliance with these laws, and/or the curtailment or
restructuring of our operations, any of which could have a material
adverse effect on our business, results of operations and growth
prospects. Any action against us for violation of these laws or
regulations, even if we successfully defend against it, could cause
us to incur significant legal expenses and divert our management’s
attention from the operation of our business. Moreover, achieving
and sustaining compliance with applicable federal, state and
healthcare laws outside the U.S. is costly and time-consuming for
our management.
We are subject to evolving privacy and security laws, and our
failure to comply could result in penalties and reputational
damage.
We are subject to numerous privacy and data protection laws and
regulations governing healthcare and other information. The U.S.
federal government, individual U.S. states, EU member countries and
other jurisdictions, including Switzerland and Canada, have adopted
data protection laws and regulations which impose significant
compliance obligations. For example, the use and international
transfer of personal data collected in the EU is governed by the
provisions of the EU General Data Protection Regulation, or the
GDPR. The GDPR, which is wide-ranging in scope, imposes several
requirements relating to the control over personal data by
individuals to whom the personal data relates, the information
provided to the individuals, the documentation we must maintain,
the security and confidentiality of the personal data, data breach
notification and the use of third-party processors in connection
with the processing of personal data. The GDPR also imposes strict
rules on the transfer of personal data out of the EU, provides an
enforcement authority and authorizes the imposition of large
penalties for noncompliance, including the potential for fines of
up to €20 million or 4% of the annual global revenues of the
non-compliant company, whichever is greater. The GDPR requirements
apply not only to third-party transactions, but also to transfers
of information between us and our subsidiaries, including employee
information. The GDPR has increased our responsibility and
potential liability in relation to all types of personal data that
we process, including in clinical trials, and we may be required to
put in place additional mechanisms to ensure compliance with the
GDPR, which could divert management’s attention and increase our
cost of doing business. However, despite our ongoing efforts to
bring our practices into compliance with the GDPR, we may not be
successful either due to various factors within our control or
other factors outside our control. Local data protection
authorities can also have different interpretations of the GDPR,
leading to potential inconsistencies amongst various EU member
states.
Moreover, one of the primary safeguards allowing U.S. companies to
import personal information from Europe has been certification to
the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield frameworks
administered by the U.S. Department of Commerce. However, the Court
of Justice of the EU, or the CJEU, recently invalidated the EU-U.S.
Privacy Shield. The same decision also raised questions about
whether one of the primary alternatives to the EU-U.S. Privacy
Shield, namely, the EC’s Standard Contractual Clauses, provide
sufficient protection for personal data transferred from Europe to
the U.S. or most other countries without analyzing each transfer
and implementing supplementary measures to protect the data.
Following recent recommendations from the European Data Protection
Board, we are undertaking a review of personal data transfers from
the EU and will assess the impact of the CJEU decision on our
operations. At present, there are few, if any, viable alternatives
to the EU-U.S. Privacy Shield and the Standard Contractual Clauses.
Where appropriate, we rely on individuals’ explicit consent to
transfer their personal information from Europe to the U.S. and
other countries. In addition, we rely on inter-company Standard
Contractual Clauses to provide appropriate safeguards for such
transfers. The EC is expected to publish new Standard Contractual
Clauses soon and to give companies relying on them for transfers 12
months to adapt. Authorities in Switzerland, whose data protection
laws are similar to those of the EU, also invalidated use of the
Swiss-U.S. Privacy Shield. Authorities in the United Kingdom, or
U.K., may similarly invalidate use of the EU-U.S. Privacy Shield.
The U.K.'s departure from the EU, known as Brexit, has created
additional uncertainty with regard to data protection regulation in
the U.K., as it is unclear whether the U.K. and EU will be able to
negotiate a mutually agreeable data protection agreement that
regulates data transfers between the U.K. and EU and what impact
this will have on our business. If we are unable to rely on
explicit consent to transfer individuals’ personal information from
Europe, which can be revoked, or if, upon review by authorities,
our existing compliance solutions are found to be insufficient, we
will face increased exposure to substantial fines under European
data protection laws as well as injunctions against processing
personal information from persons resident in Europe. The inability
to import personal information from the European Economic Area,
U.K. or Switzerland could restrict our clinical trial activities in
Europe, limit our ability to collaborate with contract research
organizations, service providers, contractors and other companies
subject to European data protection laws, interfere with our
ability to hire employees in Europe and require us to increase our
data processing capabilities in Europe at significant
expense.
In addition, in the U.S., HIPAA, as amended by the Health
Information Technology for Economic and Clinical Health Act, or
HITECH, and its implementing regulations, governs certain types of
individuals and entities with respect to the conduct of certain
electronic healthcare transactions and imposes certain obligations
on covered entities, including certain healthcare providers, health
plans, and healthcare clearinghouses, as well as their respective
business associates that create, receive, maintain or transmit
individually identifiable health information for or on behalf of a
covered entity, and their subcontractors that use, disclose,
access, or otherwise process individually identifiable health
information, with respect to the security, privacy and transmission
of individually identifiable health information.
HIPAA applies to certain aspects of our business and failure to
comply with its requirements could result in the imposition of
fines and penalties, and additional negative
consequences.
In any event, our failure or alleged failure (including as a result
of deficiencies in our policies, procedures or measures relating to
privacy, data protection, marketing or communications) to comply
with laws, regulations, policies, legal or contractual obligations,
industry standards or regulatory guidance relating to privacy or
data protection, may result in governmental investigations and
enforcement actions, litigation, fines and penalties or adverse
publicity. In addition, new regulation, legislative actions or
changes in interpretation of existing laws or regulations regarding
privacy and data protection, together with applicable industry
standards, may increase our costs of doing business. In this
regard, we expect that there will continue to be new laws,
regulations and industry standards relating to privacy and data
protection in the U.S., the EU and other jurisdictions, such as the
California Consumer Privacy Act of 2018 and the California Privacy
Rights Act of 2020, which have been characterized as “GDPR-like”
privacy laws, and we cannot determine the impact such new laws,
regulations and standards may have on our business.
As we continue to expand our operations internationally, we are
subject to an increased risk of conducting activities in a manner
that violates applicable anti-bribery or anti-corruption laws. We
are also subject to laws and regulations covering data privacy and
the protection of health-related and other personal information.
These laws and regulations could create liability for us or
increase our cost of doing business, any of which could have a
material adverse effect on our business, results of operations and
growth prospects.
We are continuing to expand our operations internationally, and are
building a commercial infrastructure in Europe. In this regard, we
currently have multiple subsidiaries in jurisdictions outside the
U.S., including a number of subsidiaries in Europe, and plan in the
future to have subsidiaries in additional jurisdictions. Our
business activities outside of the U.S. are and will continue to be
subject to the FCPA, which is described above, and similar
anti-bribery or anti-corruption laws, regulations or rules of other
countries in which we currently and may in the future operate,
including the recently established French Anti-corruption Law on
Transparency, Fight against Corruption and the Modernization of the
Economy, referred to as Sapin II. In Europe, national
anti-corruption laws prohibit giving, offering, or promising bribes
to any person, including foreign government officials and private
persons, as well as requesting, agreeing to receive, or accepting
bribes from any person. Various European anti-corruption laws have
broad extraterritorial reach and therefore we may be subject to
those laws even if we do not have an established entity in those
countries and we may be held liable for bribes given, offered or
promised to any person, including private persons, by employees and
persons associated with us in order to obtain or retain business or
a business advantage. In the course of expanding our operations
internationally, we will need to establish and expand business
relationships with various third parties, such as independent
contractors, distributors, vendors, and advocacy groups, and we
will interact with physicians, which are generally considered
foreign officials in Europe, as well as with regulatory authorities
who may be deemed to be foreign officials under the FCPA or similar
laws of other countries that may govern our activities. Any
interactions with any such parties or individuals that are found to
be in violation of such laws could result in substantial fines and
penalties and could materially harm our business. Furthermore, any
finding of a violation under one country’s laws may increase the
likelihood that we will be prosecuted and be found to have violated
another country’s laws. If our business practices outside the U.S.
are found to be in violation of the FCPA, the Sapin II or other
similar laws, we may be subject to significant civil and criminal
penalties which could have a material adverse effect on our
business, results of operations and growth prospects. We are also
subject to laws and regulations covering data privacy and the
protection of health-related and other personal information. In
this regard, EU member states and other jurisdictions outside the
U.S., including Switzerland, have adopted data protection laws and
regulations, such as the GDPR, which impose significant compliance
obligations. Failure to comply with these laws could lead to
government enforcement actions and significant penalties against
us, which could have a material adverse effect on our business,
results of operations and growth prospects.
Enhanced governmental and private scrutiny over, or investigations
or litigation involving, pharmaceutical manufacturer donations to
patient assistance programs offered by charitable foundations may
require us to modify our programs and could negatively impact our
business practices, harm our reputation, divert the attention of
management and increase our expenses.
We have a patient assistance program and also occasionally make
donations to independent charitable foundations that help
financially needy patients. These types of programs designed to
assist patients in affording pharmaceuticals have become the
subject of scrutiny. In recent years, some pharmaceutical
manufacturers were named in class action lawsuits challenging the
legality of their patient assistance programs and support of
independent charitable patient support foundations under a variety
of federal and state laws. Our patient assistance program and
support of independent charitable foundations could become the
target of similar litigation. At least one insurer also has
directed its network pharmacies to no longer accept manufacturer
co-payment coupons for certain specialty drugs the insurer
identified. In addition, certain state and federal enforcement
authorities and members of Congress have initiated inquiries about
co-pay assistance programs. Some state legislatures have also been
considering proposals that would restrict or ban co-pay
coupons.
In addition, there has been regulatory review and enhanced
government scrutiny of donations by pharmaceutical companies to
patient assistance programs operated by charitable foundations. For
example, the HHS Office of Inspector General has established
specific guidelines permitting pharmaceutical manufacturers to make
donations to charitable organizations who provide co-pay assistance
to Medicare patients, provided that such organizations are bona
fide charities, are entirely independent of and not controlled by
the manufacturer, provide aid to applicants on a first-come basis
according to consistent financial criteria, and do not link aid to
use of a donor’s product. If we or our vendors or donation
recipients are deemed to fail to comply with laws or regulations in
the operation of these programs, we could be subject to damages,
fines, penalties or other criminal, civil or administrative
sanctions or enforcement actions. Further, numerous organizations,
including pharmaceutical manufacturers, have received subpoenas
from the U.S. Department of Justice and other enforcement
authorities seeking information related to their patient assistance
programs and support, and certain of these organizations have
entered into significant civil settlements with applicable
enforcement authorities. In connection with these civil
settlements, the U.S. government has and may in the future require
the affected companies to enter into complex corporate integrity
agreements that impose significant reporting and other requirements
on those companies. We cannot ensure that our compliance controls,
policies and procedures will be sufficient to protect against acts
of our employees, business partners or vendors that may violate the
laws or regulations of the jurisdictions in which we operate.
Regardless of whether we have complied with the law, a government
investigation could negatively impact our business practices, harm
our reputation, divert the attention of management and increase our
expenses.
Product liability and product recalls could harm our business, and
we may not be able to obtain adequate insurance to protect us
against product liability losses.
The current and future use of our products and product candidates
by us and our corporate collaborators in clinical trials and the
sale of our products, expose us to product liability claims. These
claims have and may in the future be made directly by patients or
healthcare providers or indirectly by pharmaceutical companies, our
corporate collaborators or others selling such products.
Additionally, in connection with our acquisition of the
manufacturing facility from BMS, we agreed to enter into certain
transitional services agreements under which we manufactured
certain clinical drug product components for BMS for a period of
time. As a result, it is possible that we may be named as a
defendant in product liability suits that may allege that drug
products we manufactured for BMS have resulted in injury to
patients. We may experience substantial financial losses in the
future due to product liability claims. We have obtained product
liability coverage, including coverage for human clinical trials
and product sold commercially. However, such insurance is subject
to coverage limits and exclusions, as well as significant
deductibles. In addition, we may not be able to maintain insurance
coverage at a reasonable cost or in sufficient amounts to protect
us against all losses. If a successful product liability claim or
series of claims is brought against us for uninsured liabilities or
in excess of insured amounts, our assets may not be sufficient to
cover such claims and our business operations could be
impaired.
Product recalls may be issued at our discretion, or at the
discretion of government agencies and other entities that have
regulatory authority for pharmaceutical sales. Any recall of our
products could materially adversely affect our business by
rendering us unable to sell our products for some time and by
adversely affecting our reputation.
Our operations involve hazardous materials and are subject to
environmental, health and safety controls and
regulations.
We are subject to environmental, health and safety laws and
regulations, including those governing the use of hazardous
materials, and we spend considerable time complying with such laws
and regulations. Our business activities involve the controlled use
of hazardous materials and although we take precautions to prevent
accidental contamination or injury from these materials, we cannot
completely eliminate the risk of using these materials. In
addition, with respect to our manufacturing facility, we may incur
substantial costs to comply with environmental laws and regulations
and may become subject to the risk of accidental contamination or
injury from the use of hazardous materials in our manufacturing
process. It is also possible that our manufacturing facility may
expose us to environmental liabilities associated with historical
site conditions that we are not currently aware of and did not
cause. In this regard, some environmental laws impose liability for
contamination on current owners and operators of affected sites,
regardless of fault. In the event of an accident or environmental
discharge, or new or previously unknown contamination is discovered
or new cleanup obligations are otherwise imposed in connection with
any of our currently or previously owned or operated facilities, we
may be held liable for any resulting damages, which may materially
harm our business, financial condition and results of
operations.
Changes in funding for the FDA, the SEC and other government
agencies, or reduced working hours of governmental employees or by
the diversion of the efforts and attention of governmental agencies
to approval of other therapeutics or other activities related to
the COVID-19 pandemic, could prevent new products and services from
being developed or commercialized in a timely manner or otherwise
prevent those agencies from performing normal functions on which
the operation of our business may rely, which could negatively
impact our business.
The ability of the FDA to review and approve new products can be
affected by a variety of factors, including government budget and
funding levels, ability to hire and retain key personnel and accept
payment of user fees, and statutory, regulatory, and policy
changes. Average review times at the agency have fluctuated in
recent years as a result. In addition, government funding of the
FDA, the U.S. Securities and Exchange Commission, or SEC, and other
government agencies on which our operations may rely is inherently
fluid and unpredictable. With respect to the COVID-19 pandemic, it
is possible that we could experience delays in the timing of
regulatory review and/or our interactions with regulatory
authorities due to reduced working hours or absenteeism of
governmental employees or by the diversion of authorities’ efforts
and attention to approval of other therapeutics or other activities
related to COVID-19, which could delay any approval decision with
respect to the regulatory application we submitted to the MHRA for
TUKYSA, or our progress in advancing our development efforts with
respect to other products and product candidates. Our interactions
with regulatory authorities in other jurisdictions and across
multiple products and product candidates continue but we cannot
rule out the possibility of negative impacts on such interactions
in the future as the pandemic continues to evolve.
Disruptions at the FDA and other agencies may slow the time
necessary for new drugs to be reviewed and/or approved by necessary
government agencies, which would adversely affect our business. For
example, over the last several years, the U.S. government has shut
down several times and certain regulatory agencies, such as the FDA
and the SEC, have had to furlough critical FDA, SEC and other
government employees and stop critical activities. If a prolonged
government shutdown occurs, it could significantly impact the
ability of the FDA to timely review and process our regulatory
submissions, which could have a material adverse effect on our
business. Further, future government shutdowns could potentially
impact our ability to access the public markets and obtain
necessary capital in order to properly capitalize and continue our
operations.
Risks Related to Our Reliance on Third Parties
We depend on collaborative relationships with other companies to
assist in the development and commercialization of our products and
some of our product candidates and for the development and
commercialization of other product candidates utilizing or
incorporating our technologies. If we are not able to locate
suitable collaborators or if our collaborators do not perform as
expected, this may negatively affect our ability to commercialize
our products, develop and commercialize our product candidates
and/or generate revenues through technology licensing, or may
otherwise negatively affect our business.
We have established collaborations with third parties to develop
and market each of our products and some of our current and future
product candidates. Because control of development and
commercialization is shared with our collaborators under these
collaborations, we do not have sole discretion and control over the
development and commercialization of the applicable products and
product candidates. For example, we entered into a collaboration
agreement with Takeda in December 2009 that granted Takeda rights
to develop and commercialize ADCETRIS outside of the U.S. and
Canada, and we entered into a collaboration agreement with Merck in
September 2020 that granted Merck rights to develop and
commercialize TUKYSA outside of the U.S., Canada and Europe. In
addition, we have entered into collaborations with Astellas for the
development and commercialization of PADCEV, with Genmab for the
development and commercialization of tisotumab vedotin, and with
Merck for the development and commercialization of ladiratuzumab
vedotin. Our collaborations also include clinical trial
collaborations to develop, in combination, our product or product
candidates and the products or product candidates of one or more
third parties. For example, we have clinical trial collaborations
with BMS to evaluate the combination of nivolumab with ADCETRIS in
various settings and with Merck to evaluate the combination of
pembrolizumab in combination with PADCEV in various
settings.
We also have ADC license agreements with AbbVie, Astellas,
Genentech, Genmab, GSK and Progenics to allow them to use our
proprietary ADC technology, and our ADC licensees conduct all
research, product development, manufacturing and commercialization
of any product candidates under these agreements.
Our dependence on collaborative arrangements to assist in the
development and commercialization of our products and some of our
product candidates and on license arrangements for the development
and commercialization of other product candidates utilizing or
incorporating our technologies subjects us to a number of risks,
including:
•we
are not able to control the amount and timing of resources that our
collaborators and licensees devote to the development or
commercialization of products and product candidates under a
collaboration or license agreement, including ADCETRIS, PADCEV,
TUKYSA and tisotumab vedotin;
•disputes
may arise between us and our collaborators or licensees that result
in the delay or termination of the research, development or
commercialization of the applicable products and product candidates
or that result in costly litigation or arbitration that diverts
management’s attention and resources;
•with
respect to collaborations under which we have an active role, we
may have differing opinions, processes or priorities than our
collaborators, or we may encounter challenges in joint decision
making and joint execution, including with respect to any joint
development or commercialization plans or co-promotion activities,
which may delay or otherwise harm the research, development, launch
or commercialization of the applicable products and product
candidates, including ADCETRIS, PADCEV, TUKYSA and tisotumab
vedotin;
•our
current and potential future collaborators and licensees may delay
clinical trials, provide insufficient funding for a clinical trial
program, stop a clinical trial or abandon a product candidate,
repeat or conduct new clinical trials, use standards or processes
for conducting clinical trials that differ from ours or require a
new formulation of a product candidate for clinical
testing;
•significant
delays in the development of product candidates by current and
potential collaborators and licensees could allow competitors to
bring products to market before product candidates utilizing or
incorporating our technologies are approved and impair the ability
of current and potential future collaborators and licensees to
effectively commercialize these product candidates;
•our
relationships with our collaborators and licensees may divert
significant time and effort of our scientific staff and management
team and require the effective allocation of our resources to
multiple internal collaborative projects;
•our
current and potential future collaborators and licensees may not
pursue regulatory approvals in a timely manner, may not be
successful in their efforts to obtain regulatory approvals, or may
not launch or commercialize a product in their territories in a
timely manner;
•our
current and potential future collaborators and licensees may
receive regulatory sanctions relating to other aspects of their
business, or could take actions with respect to our
jointly-developed product, that could adversely affect the
development, approval or commercialization of the applicable
products or product candidates or our reputation with regulatory
agencies;
•our
current and potential future collaborators and licensees may not
properly maintain or defend our intellectual property rights or may
use our proprietary information in such a way as to invite
litigation that could jeopardize or invalidate our proprietary
information or expose us to potential litigation;
•business
combinations or significant changes in a collaborator’s or
licensee’s business strategy may adversely affect such party’s
willingness or ability to complete its obligations under any
arrangement;
•a
collaborator or licensee could independently move forward with
competing products, therapeutic approaches or technologies to
develop treatments for the diseases targeted by us or our
collaborators that are developed by such collaborator or licensee
either independently or in collaboration with others, including our
competitors;
•our
current and potential future collaborators and licensees may
experience financial difficulties; and
•our
collaboration or license agreements may be terminated, breached or
allowed to expire, or our collaborators or licensees may reduce the
scope of our agreements with them, which could have a material
adverse effect on our financial position by reducing or eliminating
the potential for us to receive technology access and license fees,
milestones and royalties, and/or reimbursement of development
costs, and which could require us to devote additional efforts and
to incur the additional costs associated with pursuing internal
development and commercialization of the applicable products and
product candidates.
If our collaborative and license arrangements are not successful as
a result of any of the above factors, or any other factors, then
our ability to advance the development and commercialization of the
applicable products and product candidates and to otherwise
generate revenue from these arrangements and to become profitable
will be adversely affected, and our business and business prospects
may be materially harmed. In particular, if Takeda or Merck were to
terminate the ADCETRIS collaboration or the TUKYSA collaboration,
respectively, which they may do for any reason upon prior written
notice to us, we would not receive milestone payments, co-funded
development payments or royalties for the sale of ADCETRIS outside
the U.S. and Canada or for TUKYSA outside the U.S., Canada and
Europe. As a result of any such termination, we may have to engage
another collaborator to complete the ADCETRIS or TUKYSA development
process and to commercialize ADCETRIS or TUKYSA in our
collaborators’ current territories, or to complete the development
process and undertake commercializing ADCETRIS or TUKYSA in our
collaborators’ current territories ourselves, either of which could
significantly delay the continued development and commercialization
of ADCETRIS or TUKYSA and increase our costs. Similarly, Astellas,
Genmab and Merck each have the right to opt out of their
co-development obligations relating to PADCEV, tisotumab vedotin
and ladiratuzumab vedotin, respectively. If Astellas, Genmab or
Merck were to opt out of their co-development collaborations with
us, this would significantly delay the commercialization and
development of PADCEV or the development of tisotumab vedotin or
ladiratuzumab vedotin, as applicable, and increase our costs. Any
of these events could significantly harm our financial position,
adversely affect our stock price and require us to incur all the
costs of developing and commercializing the applicable product or
product candidate, which would otherwise be co-funded by our
collaboration partners. Moreover, in the case of PADCEV and
tisotumab vedotin, the success of PADCEV and any approved tisotumab
vedotin product will depend, in part, on our ability to effectively
jointly commercialize PADCEV and tisotumab vedotin with Astellas
and Genmab, respectively, in accordance with our joint
commercialization obligations and joint commercialization plans.
The success, if any, of our joint commercialization efforts with
Astellas and Genmab, as well as the activities of Astellas and
Genmab, will significantly impact the commercialization of PADCEV
and the potential future commercialization of an approved tisotumab
vedotin product, respectively. The product candidates being
developed under our collaboration and license agreements are in
various stages of development and we cannot guarantee that any of
the product candidates under our collaborations will be successful.
In this regard, certain of our ADC licensees have advanced product
candidates utilizing or incorporating our ADC technology to later
stage clinical trials that were not successful. In the future, we
may not be able to locate third-party collaborators to assist in
commercializing any future products in regions outside the U.S.,
and we may lack the capital and resources necessary to market these
products in certain regions outside the Unites States
alone.
We currently rely on third-party manufacturers and other third
parties for production of our drug products and our dependence on
these manufacturers may impair the continued development and
commercialization of our products and product
candidates.
Although we own a biologics manufacturing facility located in
Bothell, Washington, we rely and expect to continue to rely on
corporate collaborators and contract manufacturing organizations to
supply drug product for commercial supply and our IND-enabling
studies and clinical trials.
For the monoclonal antibody used in ADCETRIS, we have contracted
with AbbVie for clinical and commercial supplies. For the drug
linker used in ADCETRIS, we have contracted with Millipore Sigma,
an affiliate of Merck KGaA, for clinical and commercial supplies.
We have multiple contract manufacturers for conjugating the drug
linker to the antibody and producing the ADCETRIS product. We rely
on Astellas to supply PADCEV for our clinical trials and for
commercial sale, and Astellas oversees the manufacturing supply
chain for PADCEV. With respect to TUKYSA, we rely on multiple
contract manufacturers and other third parties to perform
manufacturing services for us including Sterling Pharma Solutions
Limited for production of the starting materials for TUKYSA, Esteve
Quimica to produce the active pharmaceutical ingredient, Hovione to
complete spray drying and Corden Plankstadt to produce the tablets
for TUKYSA. We have entered into commercial supply agreements with
each of Sterling, Esteve Quimica and Corden, and are in the process
of negotiating a commercial supply agreement with Hovione. For the
foreseeable future, we expect to continue to rely on contract
manufacturers and other third parties to produce and store
sufficient quantities of ADCETRIS and TUKYSA, and on Astellas and
other third parties to produce and store sufficient quantities of
PADCEV, for use in our clinical trials and for commercial sale. If
our contract manufacturers, collaborators or other third parties
fail to deliver our products for clinical use or sale on a timely
basis, with sufficient quality, and at commercially reasonable
prices, and we fail to find replacement manufacturers or to develop
our own manufacturing capabilities, we may bear costly losses or be
required to delay or suspend clinical trials or otherwise
discontinue development, production
and sale of our products. With respect to TUKYSA specifically, we
have limited prior experience as an organization manufacturing
TUKYSA and small molecule drug products generally, and have
relatively new working relationships with many of the third-party
manufacturers involved in TUKYSA manufacture. These factors
increase the chance that we could encounter manufacturing
challenges that could increase our costs, cause delays or otherwise
negatively impact our business. Moreover, there are a limited
number of facilities in which each of our products can be produced,
and any interruption of the operation of those facilities due to
the risks and evolving effects of the COVID-19 pandemic or other
events such as equipment malfunction or failure or damage to the
facility by natural disasters or as the result of regulatory
actions or contractual disputes could result in the cancellation of
shipments, loss of product in the manufacturing process, a
shortfall in product supply, or limit our or our collaborators’
ability to sell our products. Further, we and our collaborators
depend on outside vendors for the supply of raw materials used to
produce our products. If the third-party suppliers were to cease
production or otherwise fail to supply us or our collaborators with
quality raw materials and we or our collaborators were unable to
contract on acceptable terms for these raw materials with
alternative suppliers, our ability to have our products
manufactured to meet clinical and commercial requirements would be
adversely affected. While we believe that the existing supplies of
PADCEV and Astellas’ contract manufacturing relationships will be
sufficient to accommodate current clinical and commercial needs, we
or Astellas may need to obtain additional manufacturing
arrangements or increase manufacturing capability to meet potential
future commercial needs with respect to PADCEV, which could require
additional capital investment by us or cause us potential delays if
Astellas encounters challenges in negotiating commercially
reasonable arrangements with these manufacturers. While we believe
that the existing supplies of TUKYSA will be sufficient to
accommodate current clinical and forecasted commercial needs at
this time, we expect that we will need to put in place additional
manufacturing arrangements or expand our current manufacturing
arrangements with third-party manufacturers to meet potential
future commercial needs and while we are currently negotiating
those arrangements, we cannot assure you that we can enter into
such arrangements on commercially reasonable terms or at all.
Forecasting demand for a new product can be challenging and in the
event demand for TUKYSA exceeds our estimates or in the event that
our commercial manufacturers of TUKYSA encounter unexpected
failures or setbacks in completing manufacturing services in
accordance with applicable quality standards, our TUKYSA launch in
the U.S. could be negatively impacted by short-term product supply
challenges, which would adversely impact our TUKYSA revenues and
could negatively affect our relationships with patients and
healthcare professionals. In addition, any failures or delays in
manufacturing adequate product supplies and in putting in place or
expanding our manufacturing and supply infrastructure could delay
or impede our and Merck’s ability to launch and commercialize
TUKYSA in any markets outside the U.S. where TUKYSA has obtained
regulatory approval and any additional markets where it may obtain
regulatory approval, if any. While we do not currently anticipate
disruptions to the supply of our products due to the evolving
effects of the COVID-19 pandemic, if the COVID-19 pandemic
continues for an extended period of time or the effects of the
COVID-19 pandemic become more severe, or any of the parties in our
supply chain are adversely impacted by the evolving effects of the
COVID-19 pandemic, such as staffing shortages, productions
slowdowns and/or disruptions in delivery systems, then there could
be disruptions to our supply chain and operations, and associated
delays in the manufacturing and supply of our products. Any supply
disruptions would adversely impact our ability to generate sales of
and revenues from our products, and our business, financial
condition, results of operations and growth prospects could be
materially adversely affected. Further, in connection with the
COVID-19 pandemic and in an effort to increase the wider
availability of needed medical and other supplies and products, we
and our third-party suppliers may elect to or governments may
require us or our third-party suppliers to allocate raw materials
used in manufacturing or manufacturing capacity (for example
pursuant to the U.S. Defense Production Act) in a way that
adversely affects our ability to have our products manufactured to
meet clinical and commercial requirements.
For the clinical supply of our product candidates, we rely, and
expect for the foreseeable future to continue to rely, on multiple
contract manufacturers and other third parties to perform
manufacturing services for us. If these third-party manufacturers
cease or interrupt production, fail to supply satisfactory
materials, products or services for any reason or experience
performance delays or quality concerns, or if materials or products
are lost in transit or in the manufacturing process, such
challenges or interruptions could substantially impact clinical
trial drug supply, with the potential for additional costs, delays
and an adverse effect on our business. With respect to tisotumab
vedotin, we currently rely on drug product supply provided by
Genmab and have little control over their supply chains or the
contract manufacturers they utilize. For the near-term, we expect
to continue to rely on Genmab for manufacturing of clinical
supplies of tisotumab vedotin. Under the commercialization
agreement we entered into with Genmab in October 2020, we will be
responsible for overseeing the clinical and commercial
manufacturing supply chain of tisotumab vedotin following a
transition period. We will need to obtain appropriate manufacturing
arrangements and increase manufacturing capability to meet
potential future commercial needs, and could experience potential
delays if we encounter challenges in negotiating commercially
reasonable arrangements with manufacturers or in transitioning
oversight of the manufacturing process from Genmab to
us.
In order to obtain regulatory approval of any product candidate or
regulatory approval for any product in a new jurisdiction, we or
our supplier or suppliers for that product or product candidate
must obtain approval to manufacture and supply product, in some
cases based on qualification data provided as part of a BLA, a New
Drug Application, or NDA, or another application for regulatory
approval. In addition, the manufacturing facilities utilized to
manufacture the product or product candidate will be subject to
pre-approval regulatory inspections. Any delay in generating, or
failure to generate, data required in connection with submission of
the chemistry, manufacturing and controls, or CMC, portions of any
BLA, NDA or other application for regulatory approval, or
challenges in the regulatory inspection process, could negatively
impact our ability to meet our anticipated submission dates, result
in delay in any approval decisions and/or negatively affect our
ability to obtain regulatory approval at all. Any failure of us,
our collaborators or a manufacturer to obtain approval from a
regulatory authority to manufacture and supply product or any delay
in obtaining and distributing adequate supplies of a newly-approved
product, including PADCEV and TUKYSA, on a timely basis or in
accordance with applicable specifications and local requirements
could negatively impact our ability to successfully launch and
commercialize the applicable product or product candidate and to
generate sales of that product or product candidate at the levels
we expect. We or our collaborators may also encounter difficulties
in meeting the regulatory requirements applicable to the
manufacturing process for these agents, in managing the additional
complexity of manufacturing for a number of markets outside the
U.S. or in responding to changes in the amount or timing of supply
needs. Any failures or delays to meet these requirements could
substantially delay or impede our ability to obtain regulatory
approvals for and to market these agents, which could negatively
impact our operating results and adversely affect our
business.
To date, we have depended on a small number of collaborators for a
substantial portion of our revenue. The loss of any one of these
collaborators or changes in their product development or business
strategy could result in a material decline in our
revenue.
We have collaborations with a limited number of companies. To date,
a substantial portion of our revenue has resulted from payments
made under agreements with our corporate collaborators, and
although ADCETRIS sales currently comprise a greater proportion of
our revenue, we expect that a portion of our revenue will continue
to come from corporate collaborations. Even though we market
ADCETRIS in the U.S. and Canada, our revenues still depend in part
on Takeda’s ability to market ADCETRIS outside of the U.S. and
Canada. Likewise, even though we market TUKYSA in the U.S., our
revenues will still depend in part on Merck’s ability and
willingness to market TUKYSA outside of the U.S., Canada and
Europe. In addition, under our agreements with Astellas, we and
Astellas bear the costs of their own sales organizations in the
U.S., equally share certain other costs associated with
commercializing PADCEV in the U.S. and equally share in any profits
realized in the U.S. The loss of our collaborators, especially
Takeda or Astellas, changes in product development or business
strategies of our collaborators, or the failure of our
collaborators to perform their obligations under their agreements
with us for any reason, including paying license or technology
fees, milestone payments, royalties or reimbursements, could have a
material adverse effect on our financial performance. Payments
under our existing and potential future collaboration agreements
are also subject to significant fluctuations in both timing and
amount, which could cause our revenue to fall below the
expectations of securities analysts and investors and cause a
decrease in our stock price.
We are dependent upon a small number of distributors for a
significant portion of our net sales, and the loss of, or
significant reduction or cancellation in sales to, any one of these
distributors could adversely affect our operations and financial
condition.
We sell ADCETRIS and PADCEV through a limited number of specialty
distributors. Healthcare providers order ADCETRIS and PADCEV
through these distributors. We receive orders from distributors and
generally ship product directly to the healthcare provider. We sell
TUKYSA through a distribution network of specialty pharmacies,
integrated delivery network hospitals and practices that dispense
in the office. These distributors and distribution network partners
do not set or determine demand for our products; however, our
ability to effectively commercialize our products will depend, in
part, on their performance. Although we believe we can find
alternative distributors and partners on relatively short notice,
the loss of a major distributor or partner could materially and
adversely affect our results of operations and financial condition.
In addition, business disruptions arising from the COVID-19
pandemic could negatively affect the ability of some of our
distributors or distribution network partners to pay amounts owed
to us in a timely manner or at all.
Risks Related to Our Intellectual Property
If we are unable to enforce our intellectual property rights or if
we fail to sustain and further procure additional intellectual
property rights, we may not be able to successfully commercialize
our products or any future products and competitors may be able to
develop competing therapies.
Our success depends, in part, on obtaining and maintaining patent
protection and successfully enforcing these patents and defending
them against third-party challenges in the U.S. and other
countries. We own multiple U.S. and foreign patents and pending
patent applications for our technologies. We also have rights to
issued U.S. patents, patent applications, and their foreign
counterparts, relating to our monoclonal antibody, linker and
drug-based technologies. Our rights to these patents and patent
applications are derived in part from worldwide licenses from third
parties. In addition, we have licensed certain of our U.S. and
foreign patents and patent applications to third
parties.
The standards that the U.S. Patent and Trademark Office, or USPTO,
and foreign patent offices use to grant patents are not always
applied predictably or uniformly and can change. Consequently, our
pending patent applications may not be allowed and, if allowed, may
not contain the type and extent of patent claims that will be
adequate to conduct our business as planned. Additionally, any
issued patents we currently own or obtain in the future may have a
shorter patent term than expected or may not contain claims that
will permit us to stop competitors from using our technology or
similar technology or from copying our products. Similarly, the
standards that courts use to interpret patents are not always
applied predictably or uniformly and may evolve, particularly as
new technologies develop. In addition, changes to patent laws in
the U.S. or other countries may be applied retroactively to affect
the validity, enforceability, or term of our patent. For example,
the U.S. Supreme Court has modified some legal standards applied by
the USPTO in examination of U.S. patent applications, which may
decrease the likelihood that we will be able to obtain patents and
may increase the likelihood of challenges to patents we obtain or
license. In addition, changes to the U.S. patent system have come
into force under the Leahy-Smith America Invents Act, or the
America Invents Act, including changes from a “first-to-invent”
system to a “first to file” system, changes to examination of U.S.
patent applications and changes to the processes for challenging
issued patents. These changes include provisions that affect the
way patent applications are being filed, prosecuted and litigated.
For example, the America Invents Act enacted proceedings involving
post-issuance patent review procedures, such as inter partes
review, or IPR, and post-grant review and covered business methods.
These proceedings are conducted before the Patent Trial and Appeal
Board, or PTAB, of the USPTO. Each proceeding has different
eligibility criteria and different patentability challenges that
can be raised. In this regard, the IPR process permits any person
(except a party who has been litigating the patent for more than a
year) to challenge the validity of some patents on the grounds that
it was anticipated or made obvious by prior art. As a result,
non-practicing entities associated with hedge funds, pharmaceutical
companies who may be our competitors and others have challenged
certain valuable pharmaceutical U.S. patents based on prior art
through the IPR process. A decision in such a proceeding adverse to
our interests could result in the loss of valuable patent rights
which would have a material adverse effect on our business,
financial condition, results of operations and growth prospects. In
any event, the America Invents Act and any other potential future
changes to the U.S. patent system could increase the uncertainties
and costs surrounding the prosecution of our patent applications
and the enforcement or defense of our issued patents, all of which
could have a material adverse effect on our business, financial
condition, results of operations and growth prospects. In addition,
we rely on external agents to perform certain activities to
maintain our patents. Although we carefully select and
oversee
these agents, the failure of an agent to properly perform these
maintenance activities, whether through mistake or otherwise, could
adversely affect our intellectual property rights.
We rely on trade secrets and other proprietary information where we
believe patent protection is not appropriate or obtainable.
However, trade secrets and other proprietary information are
difficult to protect. We have taken measures to protect our
unpatented trade secrets and know-how, including the use of
confidentiality and assignment of inventions agreements with our
employees, consultants and certain contractors. It is possible,
however, that these persons may breach the agreements or that our
competitors may independently develop or otherwise discover our
trade secrets or other proprietary information. Our research
collaborators may publish confidential data or other restricted
information to which we have rights. If we cannot maintain the
confidentiality of our technology and other confidential
information in connection with our collaborations, then our ability
to receive patent protection or protect our proprietary information
may be impaired.
We have been and may in the future be subject to litigation, which
could result in substantial damages and may divert management’s
time and attention from our business.
We are engaged in multiple legal disputes with Daiichi Sankyo Co.
Ltd., or Daiichi Sankyo. We are in a dispute with Daiichi Sankyo
regarding the ownership of certain technology used by Daiichi
Sankyo in its cancer drug ENHERTU and certain product candidates.
Arbitration relating to the dispute is progressing with a hearing
date scheduled starting June 14, 2021. In addition, we filed a
complaint in the U.S. District Court for the Eastern District of
Texas to commence an action for infringement of our U.S. Patent No.
10,808,039, or the ‘039 Patent, by Daiichi Sankyo’s importation
into, offer for sale, sale, and use in the U.S. of ENHERTU. Daiichi
Sankyo (as well as Daiichi Sankyo, Inc. and AstraZeneca
Pharmaceuticals, LP, or AstraZeneca) subsequently filed an action
in the U.S. District Court for the District of Delaware seeking a
declaratory judgment that ENHERTU does not infringe the ‘039
Patent. Daiichi Sankyo, Inc. and AstraZeneca also filed two
Petitions for Post-Grant Review with the U.S. Patent Office seeking
to have claims of the ‘039 Patent cancelled as unpatentable. As a
result of these disputes, we have incurred and will continue to
incur litigation expenses. In addition, from time to time, we may
become involved in other lawsuits, claims and proceedings relating
to the conduct of our business, including but not limited to those
pertaining to the defense and enforcement of our patent or other
intellectual property rights and our contractual
rights.
These and other potential future litigations are subject to
inherent uncertainties, and the actual costs to be incurred
relating to litigations may be impacted by unknown factors. The
outcome of litigation is necessarily uncertain, and we could be
forced to expend significant resources in the course of these and
potential future litigations, we may be subject to additional
claims and counterclaims that may result in liabilities or require
us to take or refrain from certain actions, and we may not prevail.
Monitoring, defending against and pursuing legal actions can be
time-consuming for our management and detract from our ability to
fully focus our internal resources on our business activities,
which could result in delays of our clinical trials or our
development and commercialization efforts. In addition, we may
incur substantial legal fees and costs in connection with these and
potential future litigations. Decisions adverse to our interests in
these and potential future litigations could result in the payment
of substantial damages, or possibly fines, or affect our
intellectual property rights and could have a material adverse
effect on our cash flow, results of operations and financial
position. Successful challenges to our patent or other intellectual
property rights could result in a loss of rights in the relevant
jurisdiction and may allow third parties to use our proprietary
technologies without a license from us or our collaborators. In
addition, the uncertainty associated with litigation could lead to
increased volatility in our stock price.
We and our collaborators rely on license agreements for certain
aspects of our products and product candidates and technologies
such as our ADC technology. Failure to maintain these license
agreements or to secure any required new licenses could prevent us
from continuing to develop and commercialize our products and
product candidates.
We have entered into agreements with third-party commercial and
academic institutions to license technology for use in ADCETRIS,
TUKYSA, our product candidates and technologies such as our ADC
technology. Currently, we have license agreements with BMS, the
University of Miami and Array BioPharma, Inc., among others. In
addition to royalty provisions and other payment obligations, some
of these license agreements contain diligence and milestone-based
termination provisions, in which case our failure to meet any
agreed upon royalty or diligence requirements or milestones may
allow the licensor to terminate the agreement. Many of our license
agreements grant us exclusive licenses to the underlying
technologies. In addition, Astellas has agreements to license
technology for use in PADCEV. We rely on Astellas to maintain these
license agreements. If Astellas fails to maintain these license
agreements, if our licensors terminate our license agreements or if
we or our collaborators are unable to maintain the exclusivity of
our exclusive license agreements, we may be unable to continue to
develop and commercialize our products or product candidates.
Further, we have had in the past, and we or our collaborators may
in the future have, disputes with our licensors, which may impact
our ability to develop and commercialize our products or product
candidates or require us to enter into additional licenses. An
adverse result in potential future disputes with our or our
collaborators’ licensors may impact our ability to develop and
commercialize our products and product candidates, or may require
us to enter into additional licenses or to incur additional costs
in litigation or settlement. In addition, continued development and
commercialization of our products and product candidates will
likely require us to secure licenses to additional technologies. We
may not be able to secure these licenses on commercially reasonable
terms, if at all.
We may incur substantial costs and lose important rights or may not
be able to continue to commercialize our products or to
commercialize any of our product candidates that may be approved
for commercial sale as a result of litigation or other proceedings
relating to patent and other intellectual property rights, and we
may be required to obtain patent and other intellectual property
rights from others.
We may face potential lawsuits by companies, academic institutions
or others alleging infringement of their intellectual property.
Because patent applications can take a few years to publish, there
may be currently pending applications of which we are unaware that
may later result in issued patents that adversely affect the
continued commercialization of our products or future
commercialization of our product candidates. In addition, we are
monitoring the progress of multiple pending patent applications of
other organizations that, if granted, may require us to license or
challenge their enforceability in order to continue commercializing
our products or to commercialize our product candidates that may be
approved for commercial sale. Our challenges to patents of other
organizations may not be successful, which may affect our ability
to commercialize our products or product candidates. As a result of
the patent infringement lawsuits that have been filed or may be
filed against us in the future by third parties alleging
infringement by us of patent or other intellectual property rights,
we may be required to pay substantial damages, including lost
profits, royalties, treble damages, attorneys’ fees and costs, for
past infringement if it is ultimately determined that our products
infringe a third-party’s intellectual property rights. Even if
infringement claims against us are without merit, the results may
be unpredictable. In addition, defending lawsuits takes significant
time, may be expensive and may divert management’s attention from
other business concerns. Further, we may be stopped from
developing, manufacturing or selling our products until we obtain a
license from the owner of the relevant technology or other
intellectual property rights, or be forced to undertake costly
design-arounds, if feasible. If such a license is available at all,
it may require us to pay substantial royalties or other
fees.
We are or may be from time to time involved in the defense and
enforcement of our patent or other intellectual property rights in
a court of law, USPTO interference, IPR, post-grant review or
reexamination proceeding, foreign opposition proceeding or related
legal and administrative proceeding in the U.S. and elsewhere. In
addition, if we choose to go to court to stop a third party from
infringing our patents, that third party has the right to ask the
court to rule that these patents are invalid, not infringed and/or
should not be enforced. Under the America Invents Act, a third
party may also have the option to challenge the validity of certain
patents at the PTAB, whether they are accused of infringing our
patents or not, and certain entities associated with hedge funds,
pharmaceutical companies and other entities have challenged
valuable pharmaceutical patents through the IPR process. These
lawsuits and administrative proceedings are expensive and consume
time and other resources, and we may not be successful in these
proceedings or in stopping infringement. In addition, there is a
risk that a court will decide that these patents are not valid or
not infringed or otherwise not enforceable, or that the PTAB will
decide that certain patents are not valid, and that we do not have
the right to stop a third party from using the patented subject
matter. Successful challenges to our patent or other intellectual
property rights through these proceedings could result in a loss of
rights in the relevant jurisdiction and may allow third parties to
use our proprietary technologies without a license from us or our
collaborators, which may also result in loss of future royalty
payments. Furthermore, if such challenges to our rights are not
resolved promptly in our favor, our existing business relationships
may be jeopardized and we could be delayed or prevented from
entering into new collaborations or from commercializing potential
products, which could adversely affect our business and results of
operations. In addition, we may challenge the patent or other
intellectual property rights of third parties and if we are
unsuccessful in actions we bring against the rights of such
parties, through litigation or otherwise, and it is determined that
we infringe the intellectual property rights of such parties, we
may be prevented from commercializing potential products in the
relevant jurisdiction, or may be required to obtain licenses to
those rights or develop or obtain alternative technologies, any of
which could harm our business.
Risks Related to Our Operations, Managing Our Growth and Other
Risks
Our business is currently being adversely affected and could be
materially and adversely affected in the future by the evolving
effects of the COVID-19 pandemic as a result of the current and
potential future impacts on our commercialization efforts, supply
chain, regulatory and clinical development activities and other
business operations, in addition to the impact of a global economic
slowdown.
Our business is currently being adversely affected and could be
materially and adversely affected in the future by the evolving
effects of the COVID-19 pandemic. In accordance with guidance
issued by the Centers for Disease Control and Prevention, the World
Health Organization and local authorities, beginning in March 2020,
we implemented a mandatory work-from-home policy for employees who
can perform their jobs offsite. Our essential research,
manufacturing and laboratory activities are ongoing, and we
maintain a number of additional precautionary measures to protect
these onsite employees, such as temperature checks, screening
protocols, masks, social distancing, contact tracing and making
testing available. However, if we are unable to obtain adequate
supplies of personal protective equipment due to shortages or
encounter other challenges related to the evolving COVID-19
pandemic, we may have to place or may experience additional
limitations on our in person activities. In addition, our increased
reliance on personnel working from home may negatively impact
productivity or disrupt, delay or otherwise adversely impact our
business. This could also increase our cybersecurity risk, create
data accessibility concerns and make us more susceptible to
communication disruptions, any of which could adversely impact our
business operations. In addition, our oversight of third-party
manufacturers is currently being conducted by virtual means, which
may increase the chance of a manufacturing quality issue. Impacts
related to the COVID-19 pandemic could materially and adversely
affect our business, our ability to generate sales of and revenues
from our approved products, and our ability to advance the
development of our products and product candidates, as described
elsewhere in this “Risk Factors” section. The magnitude of such
impacts will depend, in large part, on the ultimate duration and
severity of the evolving effects of the COVID-19
pandemic.
The effects of the COVID-19 pandemic continue to rapidly evolve.
These effects have increased market volatility and could result in
a significant long-term disruption of global financial markets,
reducing our ability to access capital, which could in the future
negatively affect our liquidity. In addition, the current recession
or additional market corrections resulting from the effects of the
COVID-19 pandemic could materially affect our business and the
value of our common stock. The extent to which the evolving effects
of the COVID-19 pandemic impact our business, our ability to
generate sales of and revenues from our approved products, and our
clinical development and regulatory efforts will depend on future
developments that are highly uncertain and cannot be predicted with
confidence, such as the ultimate duration and severity of the
pandemic, government actions, such as travel restrictions,
quarantines and social distancing requirements in the U.S. and in
other countries, business closures or business disruptions and the
effectiveness of actions taken in the U.S. and in other countries
to contain and treat the disease, including the effectiveness and
timing of vaccination programs in the U.S. and worldwide.
Accordingly, we do not yet know the full extent of potential delays
or impacts on our business, sales of our products, our clinical and
regulatory activities, our research programs, healthcare systems or
the global economy as a whole. However, these effects could
materially and adversely affect our business, financial condition,
results of operations and growth prospects. In addition, to the
extent the evolving effects of the COVID-19 pandemic adversely
affect our business, financial condition, results of operations and
growth prospects, they may also have the effect of heightening many
of the other risks and uncertainties described elsewhere in this
“Risk Factors” section. It is also possible that future global
pandemics could also occur and also materially and adversely affect
our business, financial condition, results of operations and growth
prospects.
If we are unable to manage our growth, our business, financial
condition, results of operations and prospects may be adversely
affected.
We have experienced and expect to continue to experience
significant growth in the number of our employees and in the scope
of our operations, including in connection with our transition into
a multi-product oncology company, our operation of a manufacturing
facility and our continuing international expansion. In this
regard, the anticipated continued growth of ADCETRIS, the continued
launch and commercialization of PADCEV and TUKYSA in the U.S., the
anticipated launch and commercialization of TUKYSA in Europe and
the potential launch and commercialization of any other future
approved products may require expansion of our sales force and
commercial organization. We may need to commit significant
additional funds, management and other resources to the growth of
our commercial organization. In addition, our expansion in Europe
also requires the expansion of other functions, including clinical
development, drug safety, quality, finance and compliance. We may
not be able to achieve any necessary growth in a timely or
cost-effective manner or realize a positive return on our
investment, and we may not have the financial resources to achieve
the necessary growth in a timely manner or at all, any of which
could negatively impact our ability to successfully launch and
commercialize a newly-approved product and harm the commercial
potential of our current and any future approved products. In any
event, this rapid growth and additional complexity places
significant demands on our management, operational and financial
resources, and our current and planned personnel, systems,
procedures and controls may not be adequate to support our growth.
In particular, we are using new distribution channels for TUKYSA
that require us to implement additional control systems to monitor
inventory that has been purchased by specialty pharmacies and not
yet dispensed to patients. A failure to correctly implement and
monitor these new control systems could result in a control failure
or error in our financial accounting. In addition, this growth
places significant demands on our third party suppliers and they
may not have the resources and personnel to adequately support our
commercial plans and launch needs, including in regions outside the
U.S. To effectively manage our growth, we must continue to improve
existing, and implement new, operational and financial systems,
procedures and controls and must expand, train and manage our
growing employee base, and there can be no assurance that we will
effectively manage our growth without experiencing operating
inefficiencies, control deficiencies, compliance issues or other
problems. We expect that we may need to increase our management
personnel to oversee our expanding operations, and recruiting and
retaining qualified individuals is difficult. Likewise, we could
experience limitations on our ability to recruit, hire and retain
personnel at all levels of the organization as a result of the
COVID-19 pandemic, and without reductions in the pace, scale or
complexity of our business, this could result in strain on our
staff, loss of talent, failure to capitalize fully on
opportunities, control deficiencies and other challenges, which
could adversely affect our business, financial condition, results
of operations and prospects. In addition, the physical expansion of
our operations may lead to significant costs and may divert our
management and capital resources. If we are unable to manage our
growth effectively, or are unsuccessful in recruiting and retaining
qualified management personnel, our business, financial condition,
results of operations and prospects may be adversely
affected.
Risks associated with our expanding operations in countries outside
the U.S. could materially adversely affect our
business.
We are expanding our operations internationally. We have an
expanding number of subsidiaries in jurisdictions outside the U.S.,
including multiple subsidiaries in Europe, and we are building a
commercial infrastructure in Europe and expanding our commercial
infrastructure in Canada. Consequently, we are, and will
increasingly be, subject to risks related to operating
internationally. Risks associated with conducting operations
internationally include:
•the
increased complexity and costs inherent in managing international
operations, including in geographically disparate
locations;
•diverse
regulatory, drug safety, drug supply, financial and legal
requirements, and any future changes to such requirements, in one
or more countries where we are located or do business;
•differing
payor reimbursement regimes, governmental payors or patient
self-pay systems and price controls;
•adverse
tax consequences, including changes in applicable tax laws and
regulations;
•applicable
trade laws, tariffs, export quotas, custom duties or other trade
restrictions, and any changes to them;
•economic
weakness, including inflation, or political or economic instability
in particular economies and markets outside the U.S.;
•compliance
with tax, employment, immigration and labor laws for employees
living or traveling abroad;
•currency
fluctuations, which could result in increased operating expenses or
reduced revenues, and other obligations incident to doing business
or operating in another country;
•liabilities
for activities of, or related to, our international
operations;
•challenges
inherent in efficiently managing employees in diverse geographies,
including the need to adapt systems, policies, benefits and
compliance programs to differing labor and other regulations and
different languages;
•reliance
on vendors who are located far from our headquarters and with whom
we have not worked previously;
•workforce
uncertainty in countries where labor unrest is more common than in
the U.S.; and
•laws
and regulations relating to data security and the unauthorized use
of, or access to, commercial and personal information.
As a result of our expanding international operations, including
potentially with respect to our commercial presence in Europe and
expanding commercial infrastructure in Canada, our business and
corporate structure has and will become substantially more complex.
In addition, as a business, we do not have significant experience
conducting operations outside of the U.S. and Canada. There can be
no assurance that we will effectively manage the increased
complexity and broader scope of our operations without experiencing
operating inefficiencies, control deficiencies, compliance issues
or other problems. Significant management time and effort will be
required to effectively manage the increasing complexity and
broader scope of our operations, and our failure to successfully do
so could have a material adverse effect on our business, financial
condition, results of operations and growth prospects. Further,
since a portion of the regulatory framework in the U.K. is derived
from EU directives and regulations, Brexit, has had, and will
continue to have, an impact upon the regulatory regime applicable
to potential future marketing authorizations for ADCETRIS, PADCEV,
TUKYSA and our product candidates. In particular, Great Britain is
no longer covered by the centralized procedures for obtaining
EU-wide marketing authorization from the European Medicines Agency,
and a separate marketing authorization will be required to market
our product candidates in Great Britain. In addition, it is unclear
what additional financial, trade, regulatory and legal implications
the withdrawal of the U.K. from the EU. may have on us. These and
other risks described elsewhere in these risk factors associated
with expanding our international operations could have a material
adverse effect on our business, financial condition, results of
operations and growth prospects.
We have engaged in, and may in the future engage in, strategic
transactions that increase our capital requirements, dilute our
stockholders, cause us to incur debt or assume contingent
liabilities and subject us to other risks.
We actively evaluate various strategic transactions on an ongoing
basis, including licensing or otherwise acquiring complementary
products, technologies or businesses. Any potential future
acquisitions or in-licensing transactions entail numerous risks,
including but not limited to:
•risks
associated with satisfying the closing conditions relating to such
transactions and realizing their anticipated benefits;
•increased
operating expenses and cash requirements;
•difficulty
integrating acquired technologies, products, operations, and
personnel with our existing business;
•the
potential disruption of our historical core business;
•diversion
of management’s attention in connection with both negotiating the
acquisition or license and integrating the business, technology or
product;
•retention
of key employees;
•difficulties
in assimilating employees and corporate cultures of any acquired
companies;
•uncertainties
in our ability to maintain key business relationships of any
acquired companies;
•strain
on managerial and operational resources;
•difficulty
implementing and maintaining effective internal control over
financial reporting at businesses that we acquire, particularly if
they are not located near our existing operations;
•exposure
to unanticipated liabilities of acquired companies or companies in
which we invest;
•the
potential need to write down assets or recognize impairment
charges; and
•potential
costly and time-consuming litigation, including stockholder
lawsuits.
As a result of these or other problems and risks, businesses,
technologies or products we acquire or invest in or obtain licenses
to may not produce the revenues, earnings or business synergies
that we anticipated, acquired or licensed product candidates or
technologies may not result in regulatory approvals, and acquired
or licensed products may not perform as expected. As a result, we
may incur higher costs and realize lower revenues than we had
anticipated. We cannot assure you that any acquisitions or
investments we have made or may make in the future will be
completed or that, if completed, the acquired business, licenses,
investments, products, or technologies will generate sufficient
revenue to offset the negative costs or other negative effects on
our business. Failure to manage effectively our growth through
acquisitions or in-licensing transactions could adversely affect
our growth prospects, business, results of operations, financial
condition, and cash flow.
In addition, we may spend significant amounts, issue dilutive
securities, assume or incur significant debt obligations, incur
large one-time expenses and acquire intangible assets or goodwill
in connection with acquisitions and in-licensing transactions that
could result in significant future amortization expense and
write-offs. Moreover, we may not be able to locate suitable
acquisition opportunities and this inability could impair our
ability to grow or obtain access to technology or products that may
be important to the development of our business. Other
pharmaceutical companies, many of which may have substantially
greater financial, marketing and sales resources, compete with us
for these opportunities. Even if appropriate opportunities are
available, we may not be able to successfully identify them or we
may not have the financial resources necessary to pursue them, and
if pursued, we may be unable to structure and execute transactions
in the anticipated timeframe, or at all.
Even if we are able to successfully identify and acquire
complementary products, technologies or businesses, we cannot
assure you that we will be able to successfully manage the risks
associated with integrating acquired products, technologies or
businesses or the risks arising from anticipated and unanticipated
problems in connection with an acquisition or in-licensing
transaction. Further, while we seek to mitigate risks and
liabilities of potential acquisitions and in-licensing transactions
through, among other things, due diligence, there may be risks and
liabilities that such due diligence efforts fail to discover, that
are not disclosed to us, or that we inadequately assess. Any
failure in identifying and managing these risks, liabilities and
uncertainties effectively could have a material adverse effect on
our business and adversely affect our results of operations and
financial condition. Additionally, we may not realize the
anticipated benefits of such transactions, including the
possibility that expected synergies and accretion will not be
realized or will not be realized within the expected time
frame.
If we lose our key personnel or are unable to attract and retain
additional qualified personnel, our future growth and ability to
compete would suffer.
We are highly dependent on the efforts and abilities of the
principal members of our senior management. Additionally, we have
scientific personnel with significant and unique expertise in
monoclonal antibodies, ADCs and related technologies, and TUKYSA.
The loss of the services of any one of the principal members of our
managerial or scientific staff may prevent us from achieving our
business objectives.
In addition, the competition for qualified personnel in the
biotechnology field is intense, and our future success depends upon
our ability to attract, retain and motivate highly skilled
scientific, technical and managerial employees. In order to
continue to commercialize our products, and advance the development
and commercialization of our additional product candidates, we will
be required to expand our workforce, particularly in the areas of
manufacturing, clinical trials management, regulatory affairs,
business development, sales and marketing, both in the U.S. and in
Europe. We continue to face intense competition for qualified
individuals from numerous pharmaceutical and biotechnology
companies, as well as academic and other research institutions, and
with increasing reliance on remote work arrangements, the
geographic market in which we compete for talent is expanding. Our
failure to compete effectively in this area could negatively affect
our sales of our current and any future approved products. To the
extent we are not able to retain these individuals on favorable
terms or attract any additional personnel that may be required, our
business may be harmed. For example, we may not be successful in
attracting or retaining key personnel necessary to effectively
commercialize PADCEV and TUKYSA, build and operate a commercial
infrastructure in Europe or to support the potential launch and
commercialization of our product candidates, alone or jointly with
our collaborators, if we receive regulatory approval. If our
commercial organization is not appropriately sized or equipped to
adequately market our current and any future approved products, the
commercial potential of our current and any future approved
products may be diminished, and our business and prospects for
profitability may be adversely affected.
If we experience a significant disruption in our information
technology systems or breaches of data security, our business could
be adversely affected.
We rely on information technology systems to keep financial
records, capture laboratory data, maintain clinical trial data,
commercial sales data and corporate records, communicate with staff
and external parties and operate other critical functions. The
effects of the COVID-19 pandemic have intensified our dependence on
information technology systems as many of our critical business
activities are currently being conducted remotely and our increased
reliance on personnel working from home could increase our
cybersecurity risk. Our information technology systems are
potentially vulnerable to disruption due to breakdown, malicious
intrusion and computer viruses or other disruptive events including
but not limited to natural disaster. If we were to experience a
prolonged system disruption in our information technology systems
or those of certain of our vendors, it could delay or negatively
impact the development and commercialization of our products and
product candidates, which could adversely impact our business.
Although we maintain offsite back-ups of our data, if operations at
our facilities were disrupted, it may cause a material disruption
in our business if we are not capable of restoring function on an
acceptable timeframe. In addition, our information technology
systems are potentially vulnerable to data security breaches,
whether by employees or others, which may expose sensitive or
personal 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 (including sensitive personal information) of our
employees, patients in our clinical trials, customers and others,
any of which could have a material adverse effect on our business,
financial condition and results of operations. Moreover, a security
breach or privacy violation that leads to destruction, loss,
alteration, unauthorized use or access, disclosure or modification
of, personally identifiable information or personal
data, could harm our reputation, compel us to comply with federal,
state and/or international breach notification laws, subject us to
mandatory corrective or regulatory action, require us to verify the
correctness of database contents and otherwise subject us to
liability under laws and regulations that protect personal data,
including the GDPR, which could disrupt our business, result in
increased costs or loss of revenue, and/or result in significant
legal and financial exposure. In addition, a data security breach
could result in loss of clinical trial data or damage to the
integrity of that data. If we are unable to implement and maintain
adequate organizational and technical measures to prevent such
security breaches or privacy violations, or to respond adequately
in the event of a breach, our operations could be disrupted, and we
may suffer loss of reputation, problems with regulatory
authorities, financial loss and other negative consequences.
Moreover, failure to maintain effective internal accounting
controls related to data security breaches and cybersecurity in
general could impact our ability to produce timely and accurate
financial statements and could subject us to regulatory scrutiny.
In addition, security breaches and other inappropriate access can
be difficult to detect, and any delay in identifying them may lead
to increased harm of the type described above.
Risks Related to Our Financial Condition and Capital
Requirements
Our operating results are difficult to predict and may fluctuate.
If our operating results are below the expectations of securities
analysts or investors, the trading price of our stock could
decline.
Our operating results are difficult to predict and may fluctuate
significantly from quarter to quarter and year to year. As a
result, although we provide product sales guidance from time to
time, you should not rely on product sales results in any period as
being indicative of future performance. In addition, such guidance
is based on assumptions that may be incorrect or that may change
from quarter to quarter, and it may be particularly difficult to
correctly forecast product sales for newly-approved products or in
indications for existing products for which we have recently
received marketing approval. Moreover, our product sales have, on
occasion, been below the expectations of securities analysts and
investors and have been below prior period sales, and our sales in
the future may also be below prior period sales, our own guidance
and/or the expectations of securities analysts and investors. To
the extent that we again do not meet our guidance or the
expectations of analysts or investors, our stock price may be
adversely impacted, perhaps significantly. We believe that our
quarterly and annual results of operations may be affected by a
variety of factors, including:
•customer
ordering patterns for our products, which may vary significantly
from period to period;
•the
overall level of demand for our products, including the impact of
any competitive or biosimilar products and the duration of therapy
for patients treated with our products;
•the
extent to which coverage and reimbursement for our products is
available from government and health administration authorities,
private health insurers, managed care programs and other
third-party payors;
•our
ability to establish or demonstrate in the medical community the
safety, efficacy or value of our products and their potential
advantages compared to existing and future therapies in their
approved indications, including in ADCETRIS’ frontline Hodgkin
lymphoma and frontline PTCL indications, PADCEV’s FDA approved
indication and TUKYSA’s FDA approved indication;
•changes
in the amount of deductions from gross sales, including
government-mandated rebates, chargebacks and discounts that can
vary because of changes to the government discount percentage,
including increases in the government discount percentage resulting
from price increases we have taken or may take in the future, or
due to different levels of utilization by entities entitled to
government rebates and discounts and changes in patient
demographics;
•increases
in the scope of eligibility for customers to purchase our products
at the discounted government price or to obtain government-mandated
rebates on purchases of our products;
•changes
in our cost of sales due to potential new product launches,
royalties owed under technology license agreements or write-offs of
inventory;
•the
incidence rate of new patients in the approved indications for our
products;
•the
evolving effects of the COVID-19 pandemic, including those leading
to current and potential future reductions in the rate of cancer
diagnoses;
•the
timing, cost and level of investment in our sales and marketing
efforts to support our products sales;
•the
timing, cost and level of investment in our research and
development, pre-commercialization and other activities involving
ADCETRIS, PADCEV, TUKYSA, tisotumab vedotin and our other product
candidates by us or our collaborators; and
•expenditures
we will or may incur to develop and/or commercialize any additional
products, product candidates, or technologies that we may develop,
in-license, or acquire.
In addition, even if we and/or our collaborators are able to obtain
regulatory approvals for our product candidates, due to the lack of
any historical sales data from the commercialization of any of our
product candidates, sales of a newly-approved product such as
PADCEV or TUKYSA will be difficult to predict from period to
period. As a result, sales results or trends for PADCEV, TUKYSA or
any of our future approved products in any period may not
necessarily be indicative of future performance. In any event, if
we are unable to obtain and maintain necessary or desirable
regulatory approvals for our products and product candidates,
including for ADCETRIS, PADCEV and TUKYSA, in a timely manner, if
at all, if the FDA or other regulatory authorities do not approve
product labeling that is necessary or desirable for the successful
commercialization of an approved product, or if sales of an
approved product do not reach the levels we expect, our anticipated
revenue from our products and product candidates and our prospects
for profitability would be adversely affected, which could have a
material adverse effect on our business, financial condition,
results of operations and growth prospects.
Moreover, we have entered into collaboration and license agreements
with other companies that include development funding and milestone
and royalty payments to us, and we expect that amounts earned from
our collaboration agreements will continue to be an important
source of our revenues. Accordingly, our revenues will also depend
on development funding and the achievement of development and
clinical milestones under our existing collaboration and license
agreements, including, in particular, our ADCETRIS collaboration
with Takeda, our PADCEV collaboration with Astellas and our
ladiratuzumab vedotin and TUKYSA collaborations with Merck, as well
as entering into potential new collaboration and license
agreements. These upfront and milestone payments may vary
significantly from quarter to quarter and any such variance could
cause a significant fluctuation in our operating results from one
quarter to the next.
Further, changes in our operations, such as increased development,
manufacturing and clinical trial expenses in connection with our
expanding pipeline programs, or our undertaking of additional
programs, or business activities, or entry into strategic
transactions, including potential future acquisitions of products,
technologies or businesses may also cause significant fluctuations
in our expenses. In addition, we measure compensation cost for
stock-based awards made to employees at the grant date of the
award, based on the fair value of the award, and recognize the cost
as an expense over the employee’s requisite service period. As the
variables that we use as a basis for valuing these awards change
over time, including our underlying stock price, the magnitude of
the expense that we must recognize may vary significantly.
Additionally, we have implemented long-term incentive plans for our
employees, and the incentives provided under these plans are
contingent upon the achievement of certain regulatory milestones.
Costs of performance-based compensation under our long-term
incentive plans are not recorded as an expense until the
achievement of the applicable milestones is deemed probable of
being met, which may result in large fluctuations to the expense we
must recognize in any particular period.
For these and other reasons, it is difficult for us to accurately
forecast future sales of our current or any future approved
products, collaboration and license agreement revenues, royalty
revenues, operating expenses or future profits or losses. As a
result, our operating results in future periods could be below our
guidance or the expectations of securities analysts or investors,
which could cause the trading price of our common stock to decline,
perhaps substantially.
We have a history of net losses. We expect to continue to incur net
losses and may not achieve future sustained profitability for some
time, if at all.
We have incurred substantial net losses in each of our years of
operation, other than the year ended December 31, 2020. We have
incurred these losses principally from costs incurred in our
research and development programs and from our selling, general and
administrative expenses. We expect to continue to spend substantial
amounts on research and development, including amounts for
conducting clinical trials of our products and product candidates
as well as commercializing our products for the treatment of
patients in their approved indications. In addition, we expect to
make substantial expenditures to further develop and potentially
commercialize tisotumab vedotin and our other product candidates.
We may also pursue new operations or continue the expansion of our
existing operations, including with respect the development of our
commercial infrastructure in Europe and our plans to otherwise
continue to expand our operations internationally. Accordingly,
even though we reported net income for the year ended December 31,
2020 due to the collaboration and license agreement revenues
related to the agreements we entered into with Merck during 2020,
we nonetheless expect to incur net losses in the future and may not
achieve sustained profitability for some time, if at all. Although
we recognize revenue from product sales and we continue to earn
amounts under our collaboration agreements, our revenue and profit
potential is unproven and our future operating results are
difficult to predict. Even if we do achieve profitability in the
future, we may not be able to sustain or increase profitability on
a quarterly or annual basis. If we are unable to achieve and
sustain profitability, the market value of our common stock will
likely decline.
We may need to raise additional capital that may not be available
to us.
We expect to make additional capital outlays and to increase
operating expenditures over the next several years as we hire
additional employees, and support our development, manufacturing,
commercialization, and planned global expansion, which may require
us to raise additional capital. In addition, we may pursue new
operations or continue the expansion of our existing operations,
including with respect to our development of a commercial
infrastructure in Europe and our plans to otherwise continue to
expand our operations internationally. Our commitment of resources
to the continuing development, regulatory and commercialization
activities for our products, the research, continued development
and manufacturing of our product candidates, our pursuit of
regulatory approvals for and preparing to potentially launch and
commercialize our product candidates, and the anticipated expansion
of our pipeline and operations may require us to raise additional
capital. Further, we actively evaluate various strategic
transactions on an ongoing basis, including licensing or otherwise
acquiring complementary products, technologies or businesses, and
we may require significant additional capital in order to complete
or otherwise provide funding for such transactions. We may seek
additional funding through some or all of the following methods:
corporate collaborations, licensing arrangements and public or
private debt or equity financings. We do not know whether
additional capital will be available when needed, or that, if
available, we will obtain financing on terms favorable to us or our
stockholders. If we are unable to raise additional funds when we
need them, we may be required to delay, reduce the scope of, or
eliminate one or more of our development programs, which may
adversely affect our business and operations. Our future capital
requirements will depend upon a number of factors,
including:
•the
level of sales and market acceptance of ADCETRIS, PADCEV, TUKYSA or
of any future approved products;
•the
time and costs involved in obtaining regulatory approvals of our
products in additional indications or territories, if any, and
potentially of any of our other product candidates;
•the
size, complexity, timing, progress and number of our clinical
programs and our collaborations;
•the
timing, receipt and amount of milestone-based payments or other
revenue from our collaborations or license arrangements, including
royalty revenue generated from commercial sales of ADCETRIS by
Takeda, revenue generated under our collaboration with Astellas and
anticipated royalty revenue generated by commercial sales of TUKYSA
by Merck;
•the
cost of establishing and maintaining clinical supplies of our
products and product candidates and commercial supplies of our
current and any future approved products;
•the
extent of our investment in development, manufacturing and
commercialization outside the U.S.;
•the
costs associated with acquisitions or licenses of additional
technologies, products, or companies as well as licenses we may
need to commercialize our current or any future approved
products;
•the
terms and timing of any future collaborative, licensing and other
arrangements that we may establish;
•expenses
associated with future securities class action or derivative
lawsuits, as well as any other potential litigation;
•the
potential costs associated with international, state and federal
taxes; and
•competing
technological and market developments.
In addition, changes in our spending rate may occur that would
consume available capital resources sooner, such as increased
development, manufacturing and clinical trial expenses in
connection with our expanding pipeline programs or our undertaking
of additional programs, business activities or entry into
additional strategic transactions, including potential future
acquisitions of products, technologies or businesses. Moreover, we
may choose to raise additional capital due to market conditions or
strategic considerations, even if we believe we have sufficient
funds for our current or future operating plans. To the extent that
we raise additional capital by issuing equity securities, our
stockholders may experience substantial dilution. To the extent
that we raise additional funds through collaboration and licensing
arrangements, we may be required to relinquish some rights to our
technologies or product candidates, or grant licenses on terms that
are not favorable to us.
During the past several years, domestic and international financial
markets have experienced extreme disruption from time to time,
including, among other things, high volatility and significant
declines in stock prices and severely diminished liquidity and
credit availability for both borrowers and investors. Such adverse
capital and credit market conditions could make it more difficult
to obtain additional capital on favorable terms, or at all, which
could have a material adverse effect on our business and growth
prospects. For example, our ability to raise additional capital may
be adversely impacted by deteriorating global economic conditions
and the disruptions to and volatility in the credit and financial
markets in the U.S. and worldwide resulting from the evolving
effects of the COVID-19 pandemic.
The potential future impairment of intangible assets and goodwill
may negatively affect our results of operations and financial
position.
As of December 31, 2020, we recorded $558.4 million of intangible
assets, net and goodwill on our condensed consolidated balance
sheet. Our intangible assets and goodwill are subject to an
impairment analysis whenever events or changes in circumstances
indicate the carrying amount of the asset may not be recoverable.
Additionally, goodwill and indefinite-lived assets are subject to
an impairment test at least annually. Events giving rise to
impairment are an inherent risk in the pharmaceutical industry and
cannot be predicted. Our results of operations and financial
position in future periods could be negatively impacted should
future impairments of intangible assets or goodwill
occur.
Risks Related to Our Common Stock
Our stock price is volatile and our shares may suffer a decline in
value.
The market price of our stock has in the past been, and is likely
to continue in the future to be, very volatile. During the year
ended December 31, 2020, our closing stock price fluctuated between
$95.75 and $211.93 per share. As a result of fluctuations in the
price of our common stock, you may be unable to sell your shares at
or above the price you paid for them. The market price of our
common stock may be subject to substantial volatility in response
to many risk factors listed in this section, and others beyond our
control, including:
•the
levels of ADCETRIS, PADCEV and TUKYSA product sales;
•announcements
of FDA or other regulatory approval or non-approval of our
products, including TUKYSA, or any of our product candidates or
specific label indications for or restrictions, warnings or
limitations in its use, or delays in the regulatory review or
approval process;
•announcements
regarding the results of discovery efforts and preclinical,
clinical and commercial activities by us, or those of our
competitors;
•announcements
regarding the results of the clinical trials we and our
collaborators are conducting or may in the future conduct for our
products and product candidates;
•announcements
regarding, or negative publicity concerning, adverse events or
safety concerns associated with the use of ADCETRIS, PADCEV, TUKYSA
or our product candidates;
•issuance
of new or changed analysts’ reports and recommendations regarding
us or our competitors;
•termination
of or changes in our existing collaborations or licensing
arrangements, or establishment of new collaborations or licensing
arrangements;
•our
failure to achieve the perceived benefits of our strategic
transactions as rapidly or to the extent anticipated by financial
analysts or investors;
•our
entry into additional material strategic transactions including
licensing or acquisition of products, businesses or
technologies;
•actions
taken by regulatory authorities with respect to our product
candidates, our clinical trials or our regulatory
filings;
•our
raising of additional capital and the terms upon which we may raise
any additional capital;
•market
conditions for equity investments in general, or the biotechnology
or pharmaceutical industries in particular;
•developments
or disputes concerning our proprietary rights, including with
respect to our disputes with Daiichi Sankyo;
•developments
regarding any future purported securities class action lawsuits, as
well as any other potential litigation;
•share
price and volume fluctuations attributable to inconsistent trading
volume levels of our shares;
•changes
in government regulations; and
•economic
or other external factors.
The stock markets in general, and the markets for biotechnology and
pharmaceutical stocks in particular, have historically experienced
significant volatility that has often been unrelated or
disproportionate to the operating performance of particular
companies, including in connection with the COVID-19 pandemic,
which has resulted in decreased market prices, notwithstanding the
lack of a fundamental change in the underlying business models or
prospects of those companies. In this regard as a result of the
risks and evolving effects of the COVID-19 pandemic, Brexit and/or
significant changes in U.S. social, political, regulatory and
economic conditions or in laws and policies governing trade and
healthcare spending and delivery outside the U.S., the financial
markets could experience significant volatility that could also
negatively impact the markets for biotechnology and pharmaceutical
stocks. These broad market fluctuations have adversely affected and
may in the future adversely affect the market price of our common
stock. In this regard, worsening economic conditions and other
adverse impacts or developments relating to the evolving effects of
the COVID-19 pandemic may negatively affect the market price of our
common stock, regardless of our actual operating
performance.
In the past, class action or derivative litigation has often been
instituted against companies whose securities have experienced
periods of volatility in market price. In this regard, we have
become, and may in the future again become, subject to claims and
litigation alleging violations of the securities laws or other
related claims, which could harm our business and require us to
incur significant costs. Lawsuits brought against us could result
in substantial costs, which would hurt our financial condition and
results of operations and divert management’s attention and
resources, which could result in delays of our clinical trials or
our development and commercialization efforts.
Substantial future sales of shares of our common stock or
equity-related securities could cause the market price of our
common stock to decline.
Sales of a substantial number of shares of our common stock into
the public market, including sales by members of our management or
board of directors or entities affiliated with such members, could
occur at any time. These sales, or the perception in the market
that the holders of a large number of shares intend to sell shares,
could reduce the market price of our common stock and could impair
our ability to raise capital through the sale of additional equity
or equity-related securities. We are unable to predict the effect
that such sales may have on the prevailing market price of our
common stock. As of December 31, 2020, we had 180,902,151 shares of
common stock outstanding, all of which shares are eligible for sale
in the public market, subject in some cases to the volume
limitations and manner of sale and other requirements under Rule
144. In addition, we may issue a substantial number of shares of
our common stock or equity-related securities, including
convertible debt, to meet our capital needs, including in
connection with funding potential future acquisition or licensing
opportunities, capital expenditures or product development costs,
which issuances could be substantially dilutive and could adversely
affect the market price of our common stock. Likewise, future
issuances by us of our common stock upon the exercise, conversion
or settlement of equity-based awards or other equity-related
securities would dilute existing stockholders’ ownership interest
in our company and any sales in the public market of these shares,
or the perception that these sales might occur, could also
adversely affect the market price of our common stock.
Moreover, we have in the past and may in the future grant rights to
some of our stockholders that require us to register the resale of
our common stock or other securities on behalf of these
stockholders and/or facilitate public offerings of our securities
held by these stockholders, including in connection with potential
future acquisition or capital-raising transactions. For example, in
connection with our September 2015 public offering of common stock,
we entered into a registration rights agreement with entities
affiliated with Baker Bros. Advisors LP, or the Baker Entities,
that together, based on information available to us as of December
31, 2020, collectively beneficially owned approximately 26% of our
common stock. Under the registration rights agreement, if at any
time and from time to time the Baker Entities demand that we
register their shares of our common stock for resale under the
Securities Act of 1933, as amended, or the Securities Act, we would
be obligated to effect such registration. In December 2020,
pursuant to the registration rights agreement, we registered for
resale, from time to time, up to 47,366,602 shares of our common
stock held by the Baker Entities. Our registration obligations
under the registration rights agreement cover all shares now held
or hereafter acquired by the Baker Entities, will continue in
effect for up to ten years, and include our obligation to
facilitate certain underwritten public offerings of our common
stock by the Baker Entities in the future. Accordingly, we expect
to register additional shares held by the Baker Entities for resale
from time to time, including in certain cases, shares that we have
previously registered for resale by the Baker Entities, whether in
connection with the expiration of registration statements that we
previously filed with the SEC or otherwise. If the Baker Entities,
by exercise of these registration and/or underwriting rights and
our registration of shares held by the Baker Entities for resale
from time to time, or otherwise, sell a large number of our shares,
or the market perceives that the Baker Entities intend to sell a
large number of our shares, including in connection with our
registrations of shares held by the Baker Entities for resale, this
could adversely affect the market price of our common stock. We
have also filed registration statements to register the sale of our
common stock reserved for issuance under our equity incentive and
employee stock purchase plans. Accordingly, these shares will be
able to be freely sold in the public market upon issuance as
permitted by any applicable vesting requirements.
Our existing stockholders have significant control of our
management and affairs.
Based solely on the most recent Schedules 13G and 13D filed with
the SEC, reports filed with the SEC under Section 16 of the
Exchange Act, and our outstanding shares of common stock as of
December 31, 2020, our executive officers and directors and holders
of greater than five percent of our outstanding common stock
beneficially owned approximately 62% of our voting power as of
December 31, 2020. As a result, these stockholders, acting
together, are able to control our management and affairs and
matters requiring stockholder approval, including the election of
directors and approval of significant corporate transactions, such
as mergers, consolidations or the sale of substantially all of our
assets. Consequently, this concentration of ownership may have the
effect of delaying, deferring or preventing a change in control,
including a merger, consolidation, takeover or other business
combination involving us or discourage a potential acquirer from
making a tender offer or otherwise attempting to obtain control,
which might affect the market price of our common
stock.
Anti-takeover provisions could make it more difficult for a third
party to acquire us.
Our Board of Directors has the authority to issue up to 5,000,000
shares of preferred stock and to determine the price, rights,
preferences, privileges and restrictions, including voting rights,
of those shares without any further vote or action by the
stockholders, which authority could be used to adopt a “poison
pill” that could act to prevent a change of control of Seagen that
has not been approved by our Board of Directors. The rights of the
holders of common stock may be subject to, and may be adversely
affected by, the rights of the holders of any preferred stock that
may be issued in the future. The issuance of preferred stock may
have the effect of delaying, deferring or preventing a change of
control of Seagen without further action by the stockholders and
may adversely affect the voting and other rights of the holders of
common stock. Further, certain provisions of our charter documents,
including provisions eliminating the ability of stockholders to
take action by written consent and limiting the ability of
stockholders to raise matters at a meeting of stockholders without
giving advance notice, may have the effect of delaying or
preventing changes in control or management of Seagen, which could
have an adverse effect on the market price of our stock. In
addition, our charter documents provide for a classified board,
which may make it more difficult for a third party to gain control
of our Board of Directors. Similarly, state anti-takeover laws in
Delaware and Washington related to corporate takeovers may prevent
or delay a change of control of Seagen.
General Risk Factors
Changes in tax laws or regulations may have a material adverse
effect on our business, cash flow, financial condition or results
of operations.
New tax laws, statutes, rules, regulations or ordinances could be
enacted at any time, including as a result of the recent U.S.
presidential and congressional elections, which could adversely
affect our business operations and financial performance. Further,
existing tax laws, statutes, rules, regulations or ordinances could
be interpreted, changed, modified or applied adversely to us. In
addition, as we continue to expand our operations internationally,
we may become increasingly subject to taxation in additional
jurisdictions. Changes in corporate tax rates, the realization of
net deferred tax assets relating to our operations, the taxation of
foreign earnings, and the deductibility of expenses could have a
material impact on the value of our deferred tax assets, result in
significant one-time charges, increase our future tax expense or
otherwise have a material adverse effect on our business, cash
flow, financial condition or results of operations.
If any of our facilities are damaged or our clinical, research and
development or other business processes are interrupted, our
business could be seriously harmed.
We conduct most of our business in a limited number of facilities.
Damage or extended periods of interruption to our corporate,
development or research facilities due to fire, natural disaster,
power loss, communications failure, unauthorized entry or other
events could cause us to cease or delay development of some or all
of our product candidates or interrupt the sales process for our
products. Although we maintain property damage and business
interruption insurance coverage on these facilities, our insurance
might not cover all losses under such circumstances and our
business may be seriously harmed by such delays and
interruption.
Increasing use of social media could give rise to
liability.
We are increasingly relying on social media tools as a means of
communications. To the extent that we continue to use these tools
as a means to communicate about our products and product candidates
or about the diseases that our products and our product candidates
are intended to treat, there are significant uncertainties as to
either the rules that apply to such communications, or as to the
interpretations that health authorities will apply to the rules
that exist. As a result, despite our efforts to comply with
applicable rules, there is a significant risk that our use of
social media for such purposes may cause us to nonetheless be found
in violation of them. Such uses of social media could have a
material adverse effect on our business, financial condition and
results of operations.
Legislative actions and new accounting pronouncements are likely to
impact our future financial position or results of
operations.
Future changes in financial accounting standards may cause adverse,
unexpected revenue fluctuations and affect our financial position
or results of operations. New pronouncements and varying
interpretations of pronouncements have occurred with frequency in
the past and are expected to occur again in the future and as a
result we may be required to make changes in our accounting
policies. Those changes could adversely affect our reported
revenues and expenses, future profitability or financial position.
Compliance with new regulations regarding corporate governance and
public disclosure may result in additional expenses.
The application of existing or future financial accounting
standards, particularly those relating to the way we account for
revenues and costs, could have a significant impact on our reported
results. In addition, compliance with new regulations regarding
corporate governance and public disclosure may result in additional
expenses. As a result, we intend to invest all reasonably necessary
resources to comply with evolving standards, and this investment
may result in increased general and administrative expenses and a
diversion of management time and attention from science and
business activities to compliance activities.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
Our headquarters are in Bothell, Washington. Our Bothell campus
comprises 11 leased buildings of office and warehouse space that we
use for laboratory, discovery, research and development and general
and administrative purposes, and a biologics manufacturing facility
which we own. We also have leased space in Seattle, Washington,
South San Francisco, California, Mississauga, Canada, Zug,
Switzerland, and in several other European locations used for
general and administrative purposes. All of our significant leases
include renewal options. We believe that our real estate is
currently adequate to meet our needs. As we continue to expand our
operations, we may need to lease or purchase additional real
estate.
Item 3. Legal Proceedings
The information set forth in Note 14 of the Notes to Consolidated
Financial Statements included in Part II Item 8 of this Annual
Report on Form 10-K is incorporated by reference into this Item
3.
Item 4. Mine Safety Disclosures
Not applicable.
PART II
Item 5. Market for Registrant’s Common Equity, Related
Stockholder Matters and Issuer Purchases of Equity
Securities
Our Common Stock
Our common stock is traded on the Nasdaq Global Select Market under
the symbol “SGEN.” As of February 9, 2021, there were
181,164,446 shares of our common stock outstanding, which were held
by approximately 60 holders of record.
Dividend Policy
We have not paid any cash dividends on our common stock since our
inception. We do not intend to pay any cash dividends in the
foreseeable future, but intend to retain all earnings, if any, for
use in our business operations.
Sales of Unregistered Securities and Issuer Repurchases of
Securities
Other than as previously reported on a Current Report on Form 8-K
filed with the Securities and Exchange Commission on September 14,
2020, there were no unregistered sales of equity securities by us
during 2020. In addition, we did not repurchase any of our equity
securities during 2020.
Stock Performance Graph
The table below shows the cumulative total return to our
stockholders during the period from December 31, 2015 through
December 31, 2020 in comparison to the indicated indexes. The
results assume that $100 was invested on December 31, 2015 in
our common stock and each of the indicated indexes, including
reinvestment of any dividends.
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December 31, |
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2015 |
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2016 |
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2017 |
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2018 |
|
2019 |
|
2020 |
Seagen Inc. |
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$ |
100.00 |
|
|
$ |
117.58 |
|
|
$ |
119.21 |
|
|
$ |
126.25 |
|
|
$ |
254.59 |
|
|
$ |
390.24 |
|
Nasdaq Composite |
|
100.00 |
|
|
108.87 |
|
|
141.13 |
|
|
137.12 |
|
|
187.44 |
|
|
271.64 |
|
Nasdaq Biotechnology |
|
100.00 |
|
|
78.65 |
|
|
95.67 |
|
|
87.19 |
|
|
109.08 |
|
|
137.90 |
|
This information under “Stock Performance Graph” is not deemed
filed with the Securities and Exchange Commission and is not to be
incorporated by reference in any filing of Seagen Inc. under the
Securities Act of 1933, as amended, or the Securities Exchange Act
of 1934, as amended, whether made before or after the date of this
Annual Report on Form 10-K and irrespective of any general
incorporation language in those filings.
Item 6. Selected Financial
Data
The following selected financial data should be read in conjunction
with our consolidated financial
statements and notes to our consolidated financial statements and
“Management’s Discussion and Analysis of Financial Condition and
Results of Operations” contained elsewhere in this Annual Report on
Form 10-K. The selected Consolidated Statements of Comprehensive
Income (Loss) data for the years ended December 31, 2020,
2019, and 2018, and Consolidated Balance Sheet data as of
December 31, 2020 and 2019 have been derived from our audited
financial statements appearing elsewhere in this Annual Report on
Form 10-K. The selected Consolidated Statements of Comprehensive
Income (Loss) data for the years ended December 31, 2017 and
2016 and Consolidated Balance Sheet data as of December 31,
2018, 2017, and 2016 have been derived from our audited financial
statements that are not included in this Annual Report on Form
10-K. Historical results are not necessarily indicative of future
results.
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Years ended December 31, |
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2020 |
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2019 |
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2018 |
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2017 |
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2016 |
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|
(a) |
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(b) |
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(c) |
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(in thousands, except for per share amounts) |
Consolidated Statements of Comprehensive Income (Loss)
Data: |
Revenues: |
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Net product sales |
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$ |
1,000,598 |
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$ |
627,977 |
|
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$ |
476,903 |
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$ |
307,562 |
|
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$ |
265,766 |
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Royalty revenues |
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126,756 |
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|
138,491 |
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|
83,440 |
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66,056 |
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67,455 |
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Collaboration and license agreement revenues |
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1,048,182 |
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150,245 |
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|
94,357 |
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|
108,632 |
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84,926 |
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Total revenues |
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2,175,536 |
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916,713 |
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654,700 |
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482,250 |
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418,147 |
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Costs and expenses: |
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Cost of sales |
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217,720 |
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43,952 |
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88,293 |
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54,118 |
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42,317 |
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Research and development |
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827,129 |
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719,374 |
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565,309 |
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456,700 |
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379,308 |
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Selling, general and administrative |
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533,835 |
|
|
373,932 |
|
|
261,096 |
|
|
167,233 |
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|
139,247 |
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Total costs and expenses |
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1,578,684 |
|
|
1,137,258 |
|
|
914,698 |
|
|
678,051 |
|
|
560,872 |
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Income (loss) from operations |
|
596,852 |
|
|
(220,545) |
|
|
(259,998) |
|
|
(195,801) |
|
|
(142,725) |
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Investment and other income, net |
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18,849 |
|
|
61,895 |
|
|
13,652 |
|
|
36,914 |
|
|
2,614 |
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Income (loss) before income taxes |
|
615,701 |
|
|
(158,650) |
|
|
(246,346) |
|
|
(158,887) |
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|
(140,111) |
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Income tax benefit (expense) |
|
(2,031) |
|
|
— |
|
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23,653 |
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|
33,357 |
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— |
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Net income (loss) |
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$ |
613,670 |
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|
$ |
(158,650) |
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$ |
(222,693) |
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|
$ |
(125,530) |
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|
$ |
(140,111) |
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Net income (loss) per share - basic |
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$ |
3.51 |
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|
$ |
(0.96) |
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$ |
(1.41) |
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$ |
(0.88) |
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$ |
(1.00) |
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Net income (loss) per share - diluted |
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$ |
3.37 |
|
|
$ |
(0.96) |
|
|
$ |
(1.41) |
|
|
$ |
(0.88) |
|
|
$ |
(1.00) |
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Shares used in computation of per share amounts - basic |
|
174,834 |
|
|
165,498 |
|
|
157,655 |
|
|
143,174 |
|
|
140,746 |
|
Shares used in computation of per share amounts -
diluted |
|
182,287 |
|
|
165,498 |
|
|
157,655 |
|
|
143,174 |
|
|
140,746 |
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December 31, |
|
|
2020 |
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2019 |
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2018 |
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2017 |
|
2016 |
|
|
(a) |
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(b) |
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(c) |
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|
(in thousands) |
Consolidated Balance Sheet Data: |
Cash, cash equivalents and investments |
|
$ |
2,660,250 |
|
|
$ |
868,338 |
|
|
$ |
459,866 |
|
|
$ |
413,171 |
|
|
$ |
618,974 |
|
Working capital |
|
2,674,246 |
|
|
917,284 |
|
|
428,523 |
|
|
409,932 |
|
|
586,132 |
|
Total assets |
|
4,000,906 |
|
|
2,205,866 |
|
|
1,503,329 |
|
|
877,949 |
|
|
838,396 |
|
Stockholders’ equity |
|
3,488,100 |
|
|
1,876,287 |
|
|
1,273,943 |
|
|
677,569 |
|
|
634,087 |
|
(a)In
October 2020, we closed the sale of the shares pursuant to the
Purchase Agreement, and issued 5,000,000 shares of our common stock
to Merck at a purchase price of $200 per share, for proceeds of
$1.0 billion. As a result, we recorded $749.9 million in
stockholders’ equity on our consolidated balance sheet and
recognized
the $250.1 million premium attributed to the Purchase
Agreement in collaboration and license agreement revenues for the
year ended December 31, 2020.
(b)In
July 2019, we completed an underwritten public offering of
8,214,286 shares of our common stock at a public offering price of
$70.00 per share. The offering resulted in net proceeds to us of
$548.7 million.
On January 1, 2019, we adopted Accounting Standards Codification,
or ASC, Topic 842--Leases. We recognized $35.2 million of operating
lease liabilities and $34.7 million of operating lease right-of-use
assets on our consolidated balance sheet. We elected the modified
retrospective method transition option, which permitted us not to
restate the comparative periods presented. For additional
information, refer to Note 3 of the Notes to Consolidated Financial
Statements included in Part II Item 8 of this Annual Report on Form
10-K.
(c)In
March 2018, we acquired Cascadian Therapeutics, Inc., or Cascadian,
for a total purchase price of approximately $614.1 million.
Cascadian was included in our results of operations, along with the
estimated fair values of the assets acquired and liabilities
assumed in the acquisition, as of the acquisition
date.
In February 2018, we completed an underwritten public offering of
13,269,230 shares of our common stock at a public offering price of
$52.00 per share. The offering resulted in net proceeds to us of
$658.2 million. The primary use of the net proceeds received from
the offering was the fund the Cascadian acquisition.
On January 1, 2018, we adopted ASC Topic 606--Revenue from
Contracts with Customers. We recorded a $26.6 million cumulative
effect adjustment to decrease the accumulated deficit as of January
1, 2018. We used the modified retrospective method transition
option, which permitted us not to restate the comparative periods
presented. For additional information, refer to Note 2 of the Notes
to Consolidated Financial Statements included in Part II Item 8 of
this Annual Report on Form 10-K.
On January 1, 2018, we adopted Accounting Standards Update, or ASU,
“ASU 2016-01, Financial Instruments: Overall,” which required,
among other items, that changes in the fair value of equity
securities be recorded in income or loss rather than accumulated
other comprehensive income or loss in stockholders’ equity. We
recognized a $64.1 million cumulative effect adjustment to decrease
the accumulated deficit as of January 1, 2018. We used the modified
retrospective method transition option, which permitted us not to
restate the comparative periods presented. For additional
information, refer to the heading “Investments” in Note 1 of the
Notes to the Consolidated Financial Statements included in Part II
Item 8 of this Annual Report on Form 10-K.
Item 7. Management’s Discussion and Analysis of Financial
Condition and Results of Operations
The following discussion of our financial condition and results of
operations contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements are based on our management’s beliefs
and assumptions and on information currently available to our
management. All statements other than statements of historical
facts are “forward-looking statements” for purposes of these
provisions, including those relating to future events or our future
financial performance and financial guidance. In some cases, you
can identify forward-looking statements by terminology such as
“may,” “might,” “will,” “should,” “expect,” “plan,” “anticipate,”
“project,” “believe,” “estimate,” “predict,” “potential,” “intend”
or “continue,” the negative of terms like these or other comparable
terminology, and other words or terms of similar meaning in
connection with any discussion of future operating or financial
performance. These statements are only predictions. All
forward-looking statements included in this Annual Report on Form
10-K are based on information available to us on the date hereof,
and we assume no obligation to update any such forward-looking
statements. Any or all of our forward-looking statements in this
document may turn out to be wrong. Actual events or results may
differ materially. Our forward-looking statements can be affected
by inaccurate assumptions we might make or by known or unknown
risks, uncertainties and other factors. We discuss many of these
risks, uncertainties and other factors in this Annual Report on
Form 10-K in greater detail in “Part I Item 1A—Risk Factors.” We
caution investors that our business and financial performance are
subject to substantial risks and uncertainties.
You should read the following discussion and analysis in
conjunction with the Selected Financial Data and our consolidated
financial statements and notes thereto included elsewhere in this
Annual Report on Form 10-K.
Overview
Seagen is a biotechnology company that develops and commercializes
targeted therapies to treat cancer. We are commercializing ADCETRIS
for the treatment of certain CD30-expressing lymphomas, PADCEV for
the treatment of certain metastatic urothelial cancers, and TUKYSA
for treatment of certain metastatic HER2-positive breast cancers.
We are also advancing a pipeline of novel therapies for solid
tumors and blood-related cancers designed to address unmet medical
needs and improve treatment outcomes for patients. Many of our
programs, including ADCETRIS and PADCEV, are based on our
antibody-drug conjugate, or ADC, technology that utilizes the
targeting ability of monoclonal antibodies to deliver cell-killing
agents directly to cancer cells. In October 2020, we changed our
corporate name from Seattle Genetics, Inc. to Seagen Inc.,
reflecting the global expansion of our operations.
2020 highlights and recent developments
Corporate
•Reported
net product sales of $1 billion for full year 2020.
•Entered
into oncology collaborations with Merck under which we received
$725 million in upfront payments and $1 billion through an equity
investment by Merck.
•Continued
to make strategic investments in our pipeline, commercial launches,
infrastructure, and headcount to support our future
growth.
ADCETRIS
•Reported
the five-year update of the phase 3 ECHELON-1 clinical trial which
showed treatment with ADCETRIS in combination with AVD resulted in
superior long-term outcomes when compared to ABVD, which includes
bleomycin, in frontline advanced Hodgkin lymphoma.
•Expanded
clinical program including initiation of phase 3 trial in relapsed
and refractory diffuse large B-cell lymphoma and expanded a trial
in frontline Hodgkin lymphoma to evaluate stage I and II
patients.
•Expanded
indication approved in the European Union and first approval in
China for our partner Takeda.
PADCEV
•Commercial
launch with Astellas, for patients with previously treated
metastatic urothelial cancer, following FDA approval in December
2019.
•Announced
positive topline results from EV-301 phase 3 trial showing that
PADCEV significantly improved overall survival in previously
treated metastatic urothelial cancer patients. Data to support
global marketing applications.
•Announced
positive topline results from second cohort of EV-201 pivotal
trial. Data to support additional indication in the
U.S.
•Initiated
EV-302 phase 3 trial in first-line metastatic urothelial cancer in
combination with pembrolizumab.
•Received
breakthrough therapy designation in first-line advanced urothelial
cancer for PADCEV in combination with pembrolizumab.
TUKYSA
•Commercial
launch following FDA approval for patients with previously treated
metastatic HER2-positive breast cancer, including patients with
brain metastases in April 2020.
•Received
ex-U.S. regulatory approvals in Australia, Canada, Singapore and
Switzerland under the Project Orbis initiative of the FDA Oncology
Center of Excellence.
•Received
marketing authorization in the European Union in February
2021.
•Entered
into exclusive license and co-development agreement with Merck to
commercialize TUKYSA in Asia, the Middle East and Latin America and
other regions outside of the U.S., Canada and Europe.
Pipeline
•Announced
positive results from tisotumab vedotin pivotal trial in patients
with previously treated recurrent or metastatic cervical cancer.
Data used to support approval application submitted in the U.S. in
February 2021.
•Entered
into a global co-development and co-commercialization agreement
with Merck for our drug candidate ladiratuzumab
vedotin.
•Initiated
phase 1 trials of two novel drug candidates, SGN-B6A and
SEA-TGT.
Also refer to Part I Item 1 “Business” for more information about
our products, pipeline, technologies, research programs, and future
plans for our clinical programs, including recent key business
achievements.
Outlook
We recognize revenue from ADCETRIS product sales in the U.S. and
Canada, and PADCEV and TUKYSA products sales in
the
U.S. While we anticipate that sales of ADCETRIS will increase in
2021 as compared to 2020, we have experienced and expect continued
impacts associated with the COVID-19 pandemic, which appear to be
reducing the rate of Hodgkin lymphoma diagnoses, and an increase in
gross-to-net deductions that we believe is due to a shift in the
locations where ADCETRIS is administered, which has increased the
proportion of ADCETRIS sales through the federal 340B drug discount
program. We
expect that, going forward, our ability to maintain or continue to
grow our ADCETRIS sales, if at all, will depend primarily on our
ability to establish or demonstrate to the medical community the
value of ADCETRIS and its potential advantages compared to existing
and future therapeutics in its approved indications, including in
the frontline Hodgkin lymphoma indication, and the extent to which
physicians make prescribing decisions with respect to ADCETRIS.
Other important factors affecting our ADCETRIS sales include the
incidence flow of patients eligible for treatment in ADCETRIS’
approved indications, the extent to which coverage and adequate
levels of reimbursement for ADCETRIS are available from governments
and other third-party payors, the impact of any healthcare reform
measures that may be upheld, or adopted in the future, including
measures that could result in more rigorous coverage criteria or
reduce the price that we receive for ADCETRIS, increasing
competition from competing therapies including pembrolizumab in
multiple indications, including in the relapsed or refractory
classical Hodgkin lymphoma indication, impacts resulting from the
evolving effects of the COVID-19 pandemic including lower diagnosis
rates, and the potential future approval of ADCETRIS in any
additional indications. For these reasons, we cannot assure you
that ADCETRIS sales will continue to grow or that we can maintain
sales of ADCETRIS at or near current levels. In addition, as a
result of these and other factors, our future ADCETRIS product
sales can be difficult to accurately predict from period to
period.
Our ability to realize the anticipated benefits from our investment
in PADCEV is subject to a number of risks and uncertainties,
including our and Astellas’ ability to successfully jointly market
and commercialize PADCEV in the U.S. in its approved indication,
the extent to which we and Astellas are able to obtain regulatory
approvals of PADCEV in
additional indications in the U.S., including in the frontline
metastatic urothelial cancer setting, and in territories outside
the U.S., our ability and Astellas’ ability to successfully comply
with rigorous post-marketing requirements, including obtaining the
FDA’s agreement as to the confirmation of clinical benefit of
PADCEV based on the results of the EV-301 clinical trial, the
acceptance of PADCEV by the medical community and patients, the
extent to which physicians make prescribing decisions with respect
to PADCEV, the incidence flow of patients eligible for treatment in
PADCEV’s approved indication, the duration of therapy for patients
receiving PADCEV, the extent to which coverage and adequate levels
of reimbursement for PADCEV are available from governments and
other third-party payors, the impact of any healthcare reform
measures that may be adopted in the future, including measures that
could potentially result in more rigorous coverage criteria and
additional downward pressure on the price that we receive for
PADCEV, potential competition from competing therapies, the impact
of conducting launch activities virtually during the COVID-19
pandemic and other impacts resulting from the evolving effects of
the COVID-19 pandemic including potential negative impacts of
reduced cancer diagnosis rates. In addition, as a result of these
and other factors, including the lack of significant historical
sales data, PADCEV sales are currently difficult to predict from
period to period.
Our ability to realize the anticipated benefits of our investment
in TUKYSA is subject to a number of risks and uncertainties,
including our and Merck’s ability to successfully launch, market
and commercialize TUKYSA in our respective territories in its
approved indication, the extent to which we and Merck are able to
obtain regulatory and other required governmental and pricing and
reimbursement approvals of TUKYSA in additional territories, the
extent to which we and Merck are able to obtain regulatory
approvals of TUKYSA in additional indications, including earlier
lines of breast cancer and other HER2-positive cancers, the
acceptance of TUKYSA by the medical community and patients,
competition from other therapies, our and Merck’s ability to
accurately predict and supply product demand, the extent to which
coverage and reimbursement will be available from governments and
other third-party payors, our capacity to effectively commercialize
a product outside of the U.S., the impact of conducting launch
activities virtually during the COVID-19 pandemic and other impacts
resulting from the evolving effects of the COVID-19 pandemic
including potential negative impacts of reduced cancer diagnosis
rates. In addition, as a result of these and other factors,
including the lack of significant historical sales data, TUKYSA
sales are currently difficult to predict from period to
period.
The biopharmaceutical industry and the markets in which we operate
are intensely competitive. Many of our competitors are working to
develop or have commercialized products similar to those we market
or are developing. Drug prices are under significant scrutiny and
we expect drug pricing and other health care costs to continue to
be subject to intense political and societal pressures on a global
basis. For example, in July 2020, then-President Trump announced
four Executive Orders related to reducing prescription drug prices
and we expect that drug pricing will continue to be subject to
close scrutiny by federal, state and foreign governments. In
addition to pricing actions and other measures being taken
worldwide designed to reduce healthcare costs and limit the overall
level of government expenditures, our sales and operations could
also be affected by other risks of doing business
internationally.
We expect that amounts received from our collaboration agreements,
including royalties, will continue to be an important source of our
revenues and cash flows. These revenues and cash flows will be
impacted by future development funding and the achievement of
development, clinical and commercial success by our collaborators
under our existing collaboration and license agreements, as well as
by entering into potential new collaboration and license
agreements.
Our ongoing research, development, manufacturing and commercial
activities will require substantial amounts of capital and may not
ultimately be successful. We expect that we will incur substantial
expenses, and we will require significant financial resources and
additional personnel in order to advance the development of, to
pursue, obtain and maintain regulatory approvals for, and to
commercialize our products and product candidates, and expand our
pipeline. In addition, we may pursue new operations or continue the
expansion of our existing operations, including with respect to our
plans to build a commercial infrastructure in Europe and to
otherwise continue to expand our operations internationally. As a
result, we may need to raise additional capital, and our operating
expenses may fluctuate as a result of such activities. We may also
incur milestone payment obligations to certain of our licensors as
our product candidates progress through clinical trials towards
potential commercialization.
We are closely evaluating the impacts of the evolving effects of
the COVID-19 pandemic on our ability and the ability of our
collaborators to effectively market, sell and distribute our
products and to develop our products and product candidates. While
our field-based personnel are engaging in limited in-person
interactions, they are primarily using electronic communication,
such as emails, phone calls and video conferences. Many healthcare
professionals that we normally call on are working a greater
proportion of their working schedule from home and are facing
additional demands on their time during the ongoing COVID-19
pandemic. We are experiencing increased competition for virtual
appointments with healthcare professionals and a significant
reduction in the number of interactions our sales personnel are
having with physicians. We expect the different quality of
electronic interactions as compared with in-person interactions, as
well as the reduced quantity of interactions during the COVID-19
pandemic, to reduce the effectiveness of our sales personnel, as
well as those of our collaborators, which could negatively affect
our product sales and those of our collaborators, as well as
physician awareness of our products. With respect to PADCEV and
TUKYSA specifically, we have not launched a product using primarily
virtual communication channels in the past and cannot predict the
effects that this approach will ultimately have on demand for
PADCEV or TUKYSA. However, we believe that the need to conduct
these activities virtually is negatively impacting our ability to
connect with key customers, including those familiar with
competitive products, and our ability to conduct payor engagements.
We face a number of challenges that will limit our ability to fully
resume in-person interactions for the foreseeable future, including
increasing COVID-19 infection rates in many states, the potential
for more severe outbreaks, the need to navigate varying
restrictions for entering healthcare facilities and employee
childcare obligations during virtual school sessions. In addition,
the effects of the COVID-19 pandemic continue to evolve rapidly,
and we may subsequently be forced to, or subsequently determine
that we should, resume a more restrictive remote work model,
whether as a result of further spikes or surges in COVID-19
infection or hospitalization rates or otherwise. Moreover, the
long-term effects of the COVID-19 pandemic are also unknown and it
is possible that following the pandemic, healthcare institutions
could alter their policies with respect to in person visits by
pharmaceutical company representatives. COVID-19 related
restrictions could also present product distribution challenges as
we utilize recently initiated distribution channels for TUKYSA. We
also expect that the conversion of medical conferences to a virtual
format may reduce our ability to effectively disseminate scientific
information about our products, which may result in decreased
physician awareness of our products, their approved indications and
their efficacy and safety. The evolving effects of the COVID-19
pandemic may also negatively affect our product sales due to
challenges in patient access to healthcare settings, significant
increases in unemployment and the resulting loss of individual
health insurance coverage, and inability to access government
healthcare programs due to backlogs, some or all of which appear to
be affecting diagnosis rates and may affect side effect management,
course of treatment and increase enrollment in our patient support
programs. With respect to ADCETRIS specifically, impacts associated
with the COVID-19 pandemic appear to be reducing the rate of
Hodgkin lymphoma diagnoses. In addition, we have experienced lower
than expected levels of our research and development spending, in
part as a result of the COVID-19 pandemic. This includes some
delays in clinical trial enrollment as well as reduced travel due
to the conversion of medical and scientific meetings to virtual
format. While we do not at this time anticipate the need to revise
our publicly reported projected clinical milestone dates as a
result of the effects of the COVID-19 pandemic, there may be some
impacts to our clinical study timelines, which, depending upon the
duration and severity of the evolving effects of the COVID-19
pandemic, could ultimately delay data availability. In addition,
many of our non-essential on-site research activities are currently
significantly reduced as a result of the COVID-19 pandemic, which
may negatively impact the number of investigational new drug
application, or IND, candidates entering our clinical pipeline in
future years. The extent to which the risks and evolving effects of
the COVID-19 pandemic impact our business, our ability to generate
sales of and revenues from our approved products, and our clinical
development and regulatory efforts will depend on future
developments that are highly uncertain and cannot be predicted with
confidence, such as the ultimate duration and severity of the
pandemic, government actions, such as travel restrictions,
quarantines and social distancing requirements in the U.S. and in
other countries, business closures or business disruptions and the
effectiveness of actions taken in the U.S. and in other countries
to contain and treat the disease, including the effectiveness and
timing of vaccine programs in the U.S. and worldwide.
Because of the above and other factors, our results of operations
may vary substantially from year to year and from quarter to
quarter and, as a result, we believe that period to period
comparisons of our operating results may not be meaningful and
should not be relied upon as being indicative of our future
performance.
Financial summary
For 2020, our total revenues increased to $2.2 billion, compared to
$916.7 million in 2019. This growth was driven by
$975.2 million collaboration and license
agreement revenues recognized related to the agreements we entered
into with Merck during 2020, the U.S. launches of PADCEV
beginning
in December 2019 and TUKYSA in April 2020, respectively, as well as
higher ADCETRIS net product sales.
For 2020, total costs and
expenses increased to $1.6 billion, compared to $1.1 billion in
2019. This primarily reflected higher cost of sales, higher
selling, general and administrative expenses, and higher research
and development expenses.
As of December 31, 2020, we had $2.7 billion in cash, cash
equivalents and investments and $3.5 billion in total stockholders’
equity.
Comparability
We adopted ASC Topic 842—Leases on January 1, 2019, resulting
in a change to our accounting policy for leases. We recorded a
liability to make lease payments and a right-of-use asset
representing our right to use the underlying assets for the
applicable lease terms in our consolidated balance sheet at
January 1, 2019. We used the modified retrospective method
transition option. Accordingly, 2018 comparative information has
not been adjusted and continues to be reported under previous
accounting standards. For additional information, refer to Note 3
of the Notes to Consolidated Financial Statements included in Part
II Item 8 of this Annual Report on Form 10-K.
In 2018, we acquired Cascadian for $10.00 per share in cash, or
approximately $614.1 million. Cascadian was included in our results
of operations as of the acquisition date. Accordingly, the results
discussed below were impacted by the timing of this acquisition.
For additional information, refer to Note 4 of the Notes to
Consolidated Financial Statements included in Part II Item 8 of
this Annual Report on Form 10-K.
In addition, the section of this Management’s Discussion and
Analysis of Financial Condition and Results of Operations generally
discusses 2020 and 2019 items and year-to-year comparisons between
2020 and 2019. Discussions of 2018 items and year-to-year
comparisons between 2019 and 2018 that are not included in this
Annual Report on Form 10-K can be found in “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” in
Part II Item 7 of the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2019, filed with the SEC on February
6, 2020.
Critical Accounting Policies
The preparation of financial statements in accordance with
generally accepted accounting principles, or GAAP, requires us to
make estimates, assumptions and judgments that affect the reported
amounts of assets, liabilities, revenues and expenses, and related
disclosures of contingent assets and liabilities. We believe the
following critical accounting policies describe the more
significant judgments and estimates used in the preparation of our
financial statements.
We evaluate our estimates on an ongoing basis. We base our
estimates on historical experience and on various other assumptions
that we believe to be reasonable under the circumstances, the
results of which form our basis for making judgments about the
carrying values of assets and liabilities and the reported amounts
of revenues and expenses that are not readily apparent from other
sources. Actual results may differ from those estimates under
different assumptions and conditions.
Revenue Recognition.
Our revenues
are comprised of ADCETRIS, PADCEV and TUKYSA net product sales,
amounts earned under our collaboration and licensing agreements,
and royalties. Revenue recognition occurs when a customer obtains
control of promised goods or services in an amount that reflects
the consideration we expect to receive in exchange for those goods
or services. The period between when we transfer control of
promised goods or services and when we receive payment is expected
to be one year or less, and that expectation is consistent with our
historical experience. As such, we do not adjust our revenues for
the effects of a significant financing component.
We apply significant judgment to our estimates in the following
revenue recognition areas, each as discussed in more detail in the
corresponding sections after this list:
•Net
product sales
- sales deductions related to government-mandated rebates and
chargebacks, such as for the Medicaid and 340B
programs
•Collaboration
and license agreement revenues
- assessing the probability of future reversal of variable
consideration and evaluating whether contractual obligations
represent distinct performance obligations
•Royalty
revenues
- estimating Takeda's net sales of ADCETRIS to the extent actual
information is not available
Net product sales
We sell ADCETRIS, PADCEV and TUKYSA through a limited number of
specialty distributors and specialty pharmacies. We and our
collaboration partner Astellas jointly promote PADCEV in the U.S.
Under the joint promotion in the U.S., we record net sales of
PADCEV and are responsible for all distribution through a limited
number of specialty distributors. The delivery of our products
represents a single performance obligation for these transactions
and we record net product sales at the point in time when title and
risk of loss pass. The transaction price for net product sales
represents the amount we expect to receive, which is net of
estimated government-mandated rebates and chargebacks, distribution
fees, estimated product returns, and other deductions. Accruals are
established for these deductions, and actual amounts incurred are
offset against applicable accruals. We reflect these accruals as
either a reduction in the related account receivable from the
distributor or as an accrued liability, depending on the nature of
the sales deduction. Sales deductions are based on management’s
estimates that consider payor mix in target markets and experience
to-date. These estimates involve a substantial degree of judgment.
We have applied a portfolio approach as a practical expedient for
estimating net product sales.
Government-mandated rebates and chargebacks:
We have entered into a Medicaid Drug Rebate Agreement, or MDRA,
with the Centers for Medicare & Medicaid Services. This
agreement provides for a rebate based on covered purchases of our
products. Medicaid rebates are invoiced to us by the various state
Medicaid programs. We estimate Medicaid rebates using the expected
value approach, based on a variety of factors, including payor mix
and our experience to-date.
We have a Federal Supply Schedule, or FSS, agreement under which
certain U.S. government purchasers receive a discount on eligible
purchases of our products. In addition, we have entered into a
Pharmaceutical Pricing Agreement with the Secretary of Health and
Human Services, which enables certain entities that qualify for
government pricing under the Public Health Services Act, or PHS, to
receive discounts on their qualified purchases of our products.
Under these agreements, distributors process a chargeback to us for
the difference between wholesale acquisition cost and the
applicable discounted price. We estimate expected chargebacks for
FSS and PHS purchases based on the expected value of each entity’s
eligibility for the FSS and PHS programs. We also review historical
rebate and chargeback information to further refine these
estimates.
Distribution fees, product returns and other
deductions:
Our distributors charge a volume-based fee for distribution
services that they perform for us. We allow for the return of
product that is within a specified number of days of its expiration
date or that is damaged. We estimate product returns based on our
experience to-date using the expected value approach. We provide
financial assistance to qualifying patients that are underinsured
or cannot cover the cost of commercial coinsurance amounts through
our patient support programs. Estimated contributions for
commercial coinsurance under SeaGen Secure are deducted from gross
sales and are based on an analysis of expected plan utilization.
These estimates are adjusted as necessary to reflect our actual
experience.
Royalty revenues
Royalty revenues primarily reflect amounts earned under the
ADCETRIS collaboration with Takeda. These royalties include
commercial sales-based milestones and sales royalties that relate
predominantly to the license of intellectual property. Sales
royalties are based on a percentage of Takeda’s net sales of
ADCETRIS, with rates that range from the mid-teens to the
mid-twenties based on annual net sales tiers. Takeda bears a
portion of low single digit third-party royalty costs owed on its
sales of ADCETRIS. This amount is included in royalty revenues.
Amounts owed to our third-party licensors related to Takeda’s sales
of ADCETRIS are recorded in cost of sales. These amounts are
recognized in the period in which the related sales by Takeda
occur. Royalty revenues also reflect amounts from Genentech, Inc.,
a member of the Roche Group, or Genentech, earned on net sales of
Polivy, and amounts from GlaxoSmithKline earned on net sales of
Blenrep.
Collaboration and license agreement revenues
We have collaboration and license agreements for our technology
with a number of biotechnology and pharmaceutical companies. Under
these agreements, we typically receive or are entitled to receive
upfront cash payments and progress- and sales-dependent milestones
for the achievement by our licensees of certain events, and annual
maintenance fees and support fees for research and development
services and materials provided under the agreements. We also are
entitled to receive royalties on net sales of any resulting
products incorporating our technology. Our licensees are solely
responsible for research, product development, manufacturing and
commercialization of any product candidates under these
collaborations, which includes the achievement of the potential
milestones. Since we may not take a substantive role or control the
research, development or commercialization of any products
generated by some of our licensees, we may not able to reasonably
estimate when, if at all, any potential future milestone payments
or royalties may be payable to us by our licensees. As such, the
potential future milestone payments associated with certain of our
collaboration and license agreements involve a substantial degree
of uncertainty and risk that they may never be
received.
Collaboration and license agreements are initially evaluated as to
whether the intellectual property licenses granted by us represent
distinct performance obligations. If they are determined to be
distinct, the value of the intellectual property licenses would be
recognized up-front while the research and development service fees
would be recognized as the performance obligations are satisfied.
Variable consideration is assessed at each reporting period as to
whether it is not subject to future reversal of cumulative revenue
and, therefore, should be included in the transaction price.
Assessing the recognition of variable consideration requires
significant judgment. If a contract includes a fixed or minimum
amount of research and development support, this also would be
included in the transaction price. Changes to collaboration and
license agreements, such as the extensions of the research term or
increasing the number of targets or technology covered under an
existing agreement, are assessed for whether they represent a
modification or should be accounted for as a new
contract.
We have concluded that the license of intellectual property in
certain collaboration and license agreements is not distinct from
the perspective of our customers at the time of initial transfer,
since we often do not license intellectual property without related
technology transfer and research and development support services.
Such evaluation requires significant judgment since it is made from
the customer's perspective. Our performance obligations under our
collaborations may include such things as providing intellectual
property licenses, performing technology transfer, performing
research and development consulting services, providing reagents,
ADCs, and other materials, and notifying the customer of any
enhancements to licensed technology or new technology that we
discover, among others. We determined our performance obligations
under certain collaboration and license agreements as evaluated at
contract inception were not distinct and represented a single
performance obligation. For those agreements, revenue is recognized
using a proportional performance model, representing the transfer
of goods or services as activities are performed over the term of
the agreement. Upfront payments are also amortized to revenue over
the performance period. Upfront payment contract liabilities
resulting from our collaborations do not represent a financing
component as the payment is not financing the transfer of goods or
services, and the technology underlying the licenses granted
reflects research and development expenses already incurred by us.
For agreements beyond the initial performance period, we have no
remaining performance obligations. We may receive license
maintenance fees and potential milestones and royalties based on
collaborator development and regulatory progress, which are
recorded in the period achieved in the case of milestones, and
during the period of the related sales for royalties.
When no performance obligations are required of us, or following
the completion of the performance obligation period, such amounts
are recognized upon transfer of control of the goods or services to
the customer. Generally, all amounts received or due other than
sales-based milestones and royalties are classified as
collaboration and license agreement revenues. Sales-based
milestones and royalties are recognized as royalty revenue in the
period the related sale occurred.
We generally invoice our collaborators and licensees on a monthly
or quarterly basis, or upon the completion of the effort or
achievement of a milestone, based on the terms of each agreement.
Deferred revenue arises from amounts received in advance of the
culmination of the earnings process and is recognized as revenue in
future periods as performance obligations are satisfied. Deferred
revenue expected to be recognized within the next twelve months is
classified as a current liability.
Business combinations, including acquired in-process research and
development and goodwill.
We account for business combinations using the acquisition method,
recording the acquisition-date fair value of total consideration
over the acquisition-date fair value of net assets acquired as
goodwill.
Fair value is typically estimated using an income approach based on
the present value of future discounted cash flows. The significant
estimates in the discounted cash flow model primarily include the
discount rate, rates of future revenue growth and/or profitability
of the acquired business. The discount rate considers the relevant
risk associated with business-specific characteristics and the
uncertainty related to the ability to achieve the projected cash
flows. We may record adjustments to the fair values of assets
acquired and liabilities assumed within the measurement period (up
to one year from the acquisition date).
In-process research and development assets are accounted for as
indefinite-lived intangible assets and maintained on the balance
sheet until either the underlying project is completed or the asset
becomes impaired. If the project is completed, which generally
occurs when FDA approval is obtained, the carrying value of the
related intangible asset is amortized to cost of sales on a
straight-line basis over the estimated useful life of the asset
beginning in the period in which the project is completed. We
periodically evaluate when facts or circumstances indicate that the
carrying value of these assets may not be recoverable. If the asset
becomes impaired or is abandoned, the carrying value of the related
intangible asset is written down to its fair value and an
impairment charge is recorded in the period in which the impairment
occurs.
We evaluate indefinite-lived intangible assets and goodwill for
impairment annually, as of October 1, or more frequently when
events or circumstances indicate that impairment may have occurred.
As part of the impairment evaluation, we may elect to perform an
assessment of qualitative factors. If this qualitative assessment
indicates that it is more likely than not that the fair value of
the indefinite-lived intangible asset or the reporting unit (for
goodwill) is less than its carrying value, we then would proceed
with the quantitative impairment test to compare the fair value to
the carrying value and record an impairment charge if the carrying
value exceeds the fair value.
Accrued Liabilities. As
part of the process of preparing financial statements, we estimate
accrued liabilities. This process involves identifying services
that have been performed on our behalf and estimating the level of
services performed and the associated costs incurred for such
services where we have not yet been invoiced or otherwise notified
of actual cost. We record these estimates in our consolidated
financial statements as of each balance sheet date. Examples of
estimated accrued liabilities include amounts due to contract
research organizations and other costs in conjunction with clinical
trials, amounts due in conjunction with manufacturing our product
candidates, third-party royalties that accrue on our sales of our
marketed products, and professional service fees, among other
items.
In accruing service fees, we estimate the time period over which
services will be provided and the level of effort in each period.
If the actual timing of the provision of services or the level of
effort varies from the estimate, we will adjust the accrual
accordingly. In the event that we do not identify costs that have
been incurred or we under or overestimate the level of services
performed or the costs of such services, our actual liabilities
would differ from such estimates. The date on which some services
commence, the level of services performed on or before a given date
and the cost of such services are often subjective determinations.
We make judgments based upon the facts and circumstances known to
us at the time.
Long-term Incentive Plans. We
have long term incentive plans which provide eligible employees
with the opportunity to receive performance-based incentive
compensation, which may be comprised of cash, stock options, and/or
restricted stock units. The payment of cash and the grant or
vesting of equity awards are contingent upon the achievement of
pre-determined regulatory milestones. We record compensation
expense over the estimated service period for each milestone when
we believe the milestone is considered probable, which we assess at
each reporting date. Once a milestone is considered probable, we
record compensation expense based on the portion of the service
period elapsed to date with respect to that milestone, with a
cumulative catch-up, net of estimated forfeitures, and recognize
any remaining compensation expense, if any, over the remaining
estimated service period.
Income Taxes. We
have net deferred tax assets which are offset by a valuation
allowance due to our determination that it is more likely than not
that the deferred tax assets will not be realized. We believe that
a valuation allowance is appropriate as we have a history of net
operating losses. In the event we were to determine that we would
be able to realize our net deferred tax assets in the future, an
adjustment to the valuation allowance would be made, a portion of
which would increase income (or decrease losses) in the period in
which such a determination was made. We follow the guidance related
to accounting for uncertainty in income taxes, which requires the
recognition of an uncertain tax position when it is more likely
than not to be sustainable upon audit by the applicable taxing
authority.
Results of Operations - Years Ended December 31, 2020, 2019, and
2018
Net product sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
(dollars in thousands) |
|
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
ADCETRIS |
|
$ |
658,577 |
|
|
$ |
627,733 |
|
|
$ |
476,903 |
|
|
5 |
% |
|
32 |
% |
PADCEV |
|
222,436 |
|
|
244 |
|
|
— |
|
|
NM |
|
NM |
TUKYSA |
|
119,585 |
|
|
— |
|
|
— |
|
|
NM |
|
NM |
Net product sales |
|
$ |
1,000,598 |
|
|
$ |
627,977 |
|
|
$ |
476,903 |
|
|
59 |
% |
|
32 |
% |
NM: No amount in comparable period or not a meaningful
comparison.
|
Our net product sales grew 59% during 2020 as compared to 2019,
primarily driven by recent product launches of PADCEV and TUKYSA.
We began commercializing PADCEV and TUKYSA following FDA approvals
in December 2019 and April 2020, respectively.
ADCETRIS net product sales increased in 2020 from 2019 due to
higher sales volumes and the effect of price increases during the
current year period.
We expect growth in net product sales in 2021 from 2020 to be
primarily driven
by sales growth of TUKYSA and PADCEV, and to a lesser extent,
ADCETRIS.
Gross-to-net deductions, net of related payments and credits, were
as follows:
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2020 |
|
December 31, 2019 |
|
December 31, 2018 |
(in thousands) |
|
Rebates and
chargebacks |
|
Distribution fees,
product returns
and other |
|
Total |
|
Rebates and
chargebacks |
|
Distribution fees,
product returns
and other |
|
Total |
|
Rebates and
chargebacks |
|
Distribution fees,
product returns
and other |
|
Total |
Balance, beginning of year
|
|
$ |
38,084 |
|
|
$ |
7,519 |
|
|
$ |
45,603 |
|
|
$ |
26,968 |
|
|
$ |
5,604 |
|
|
$ |
32,572 |
|
|
$ |
14,374 |
|
|
$ |
3,521 |
|
|
$ |
17,895 |
|
Provision related to current year sales
|
|
358,238 |
|
|
28,724 |
|
|
386,962 |
|
|
253,702 |
|
|
15,298 |
|
|
269,000 |
|
|
179,394 |
|
|
11,717 |
|
|
191,111 |
|
Adjustments for prior period sales
|
|
(1,341) |
|
|
— |
|
|
(1,341) |
|
|
(392) |
|
|
(464) |
|
|
(856) |
|
|
440 |
|
|
(478) |
|
|
(38) |
|
Payments/credits for current year sales
|
|
(319,444) |
|
|
(18,886) |
|
|
(338,330) |
|
|
(217,905) |
|
|
(11,349) |
|
|
(229,254) |
|
|
(155,581) |
|
|
(8,248) |
|
|
(163,829) |
|
Payments/credits for prior year sales
|
|
(31,344) |
|
|
(1,668) |
|
|
(33,012) |
|
|
(24,289) |
|
|
(1,570) |
|
|
(25,859) |
|
|
(11,659) |
|
|
(908) |
|
|
(12,567) |
|
Balance, end of year
|
|
$ |
44,193 |
|
|
$ |
15,689 |
|
|
$ |
59,882 |
|
|
$ |
38,084 |
|
|
$ |
7,519 |
|
|
$ |
45,603 |
|
|
$ |
26,968 |
|
|
$ |
5,604 |
|
|
$ |
32,572 |
|
Government-mandated rebates and chargebacks are the most
significant component of our total gross-to-net deductions and the
discount percentage has been increasing. These discount percentages
increased during 2020 and 2019 as a result of price increases for
ADCETRIS that we instituted that exceeded the rate of inflation.
The most significant portion of our gross-to-net accrual balances
as of December 31, 2020 and 2019 was
for ADCETRIS Medicaid
rebates. We expect future gross-to-net deductions to fluctuate
based on the volume of purchases eligible for government mandated
discounts and rebates, as well as changes in the discount
percentage which is impacted by potential future price increases,
the rate of inflation, and other factors. We expect
gross-to-net deductions to increase in 2021 as compared to 2020,
driven by anticipated growth in our gross product
sales.
Royalty revenues
Royalty revenues primarily reflect royalties earned under the
ADCETRIS collaboration with Takeda. These royalties include
commercial sales-based milestones and sales royalties. Sales
royalties are based on a percentage of Takeda’s net sales of
ADCETRIS, with rates that range from the mid-teens to the
mid-twenties based on annual net sales tiers. Takeda bears
third-party royalty costs owed on its sales of ADCETRIS. This
amount is included in royalty revenues. Royalty revenues also
reflect, to a lesser extent, amounts from Genentech earned on net
sales of Polivy beginning in 2019, and amounts from GlaxoSmithKline
earned on net sales of Blenrep beginning in August 2020, both of
which utilizes technology that we have licensed to
them.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
(dollars in thousands) |
|
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
Royalty revenues |
|
$ |
126,756 |
|
|
$ |
138,491 |
|
|
$ |
83,440 |
|
|
(8) |
% |
|
66 |
% |
|
|
|
|
|
|
|
|
|
|
|
Royalty revenues decreased in 2020 as compared to 2019 due to
Takeda's achievement of a $40.0 million sales-based milestone
during 2019, offset in part by 2020 growth in Takeda net sales of
ADCETRIS in its territories, as well as higher Roche net sales of
Polivy.
We expect that royalty revenues will increase in 2021 as compared
to 2020 primarily due
to higher royalties from anticipated growth in ADCETRIS sales
volume by Takeda, as well as anticipated sales growth of our other
licensees.
Collaboration and license agreement revenues
Collaboration and license agreement revenues reflect amounts earned
under certain of our license and collaboration agreements. These
revenues reflect the earned portion of license fees, payments
received by us for technology access and maintenance fees,
milestone payments and reimbursement payments for research and
development support that we provide to our
collaborators.
Collaboration and license agreement revenues by collaborator were
as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
(dollars in thousands) |
|
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
Merck |
|
$ |
975,150 |
|
|
$ |
— |
|
|
$ |
— |
|
|
NM |
|
NM |
Takeda |
|
32,107 |
|
|
108,175 |
|
|
58,605 |
|
|
(70) |
% |
|
85 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
40,925 |
|
|
42,070 |
|
|
35,752 |
|
|
(3) |
% |
|
18 |
% |
Collaboration and license agreement revenues
|
|
$ |
1,048,182 |
|
|
$ |
150,245 |
|
|
$ |
94,357 |
|
|
598 |
% |
|
59 |
% |
NM: No amount in comparable period or not a meaningful
comparison. |
Collaboration and license agreement revenues from Merck included
license revenues of $725.0 million related to the collaboration
agreements for LV and TUKYSA that were entered into in 2020, as
well as a stock purchase premium paid by Merck of $250.1 million.
Refer to Note 11 of the
Notes to Consolidated Financial Statements included in Part II Item
8 for
additional information.
Collaboration revenues from Takeda fluctuate based on changes in
the recognized portion of reimbursement funding under the ADCETRIS
collaboration, which are impacted by the activities each party is
performing under the collaboration agreement at a given time. For
example, when Takeda’s level of spending on clinical collaboration
activities increases above our own, our earned portion of
reimbursement funding generally decreases. Additionally, we receive
reimbursement for the cost of drug product supplied to Takeda for
its use, the timing of which fluctuates based on Takeda’s product
supply needs. Collaboration
revenues from Takeda can also fluctuate based on the achievement of
milestones by Takeda.
Collaboration revenues from Takeda in 2020 decreased compared to
2019, primarily as a result of two regulatory milestones achieved
in 2019 totaling $37.5 million, which were related to approvals of
ADCETRIS in frontline Hodgkin lymphoma, and the completion of the
Takeda performance period in November 2019.
Other collaboration revenues declined slightly in 2020 as compared
to 2019 due to recognition of $20.0 million license and
collaboration agreement revenues from BeiGene, Ltd., or BeiGene, in
2019,
as well as development milestones received from GSK and Genentech
in 2019, offset in part by two regulatory milestones achieved by
GSK and a development milestone achieved by AbbVie in
2020.
We expect
our collaboration and license agreement revenues in 2021 to
significantly decrease compared to 2020, driven by the amounts
recognized related to the Merck Agreements in 2020.
Our collaboration and license agreement revenues are impacted by
the term and duration of those agreements and by progress-dependent
milestones, annual maintenance fees, and reimbursement of materials
and support services. Collaboration and license agreement revenues
may vary substantially from year to year and quarter to quarter
depending on the progress made by our collaborators with their
product candidates, the level of support we provide to our
collaborators, specifically to Takeda under our ADCETRIS
collaboration, the timing of milestones achieved and our ability to
enter into potential additional collaboration and license
agreements.
Collaboration agreements
We discuss the below arrangements in greater detail under the
heading “Corporate Collaborations” in Part I Item 1 of this Annual
Report on Form 10-K.
Takeda ADCETRIS collaboration
We have an agreement with Takeda for the global co-development of
ADCETRIS and the commercialization of ADCETRIS by Takeda in its
territory. We recognize payments received from Takeda, including
progress-dependent development and regulatory milestone payments,
reimbursement for drug supplied, and net development cost
reimbursement payments, as collaboration and license agreement
revenues upon transfer of control of the goods or services over the
development period. When the performance of development activities
under the collaboration results in us making a reimbursement
payment to Takeda, that payment reduces collaboration and license
agreement revenues. We also recognize royalty revenues based on a
percentage of Takeda's net sales of ADCETRIS in its territories,
ranging from the mid-teens to the mid-twenties based on annual net
sales tiers, as well as sales-based milestones. Takeda bears a
portion of third-party royalty costs owed on its sales of ADCETRIS,
which is included in royalty revenues.
Astellas PADCEV collaboration
We have a collaboration agreement with Agensys, Inc., which
subsequently became an affiliate of Astellas, to jointly research,
develop and commercialize ADCs for the treatment of several types
of cancer. Under this collaboration, we and Astellas are co-funding
all development costs for PADCEV. Cost associated with
co-development activities are included in research and development
expense. Gross profit share payments owed to Astellas in the U.S.
under the joint commercialization agreement are recorded in cost of
sales.
Genmab tisotumab vedotin collaboration
We have an agreement with Genmab to develop and commercialize ADCs
for the treatment of several types of cancer, under which we
previously exercised a co-development option for tisotumab vedotin.
In October 2020, we and Genmab entered into a joint
commercialization agreement to govern the global commercialization
of tisotumab vedotin, if we are successful in obtaining any
regulatory approvals of tisotumab vedotin. Costs associated with
co-development activities are included in research and development
expense.
Merck LV collaboration
In September 2020, we entered into the LV Agreement with a
subsidiary of Merck. We are pursuing a broad joint development
program evaluating LV as monotherapy and in combination settings,
including with Merck’s anti-PD-1 therapy KEYTRUDA® (pembrolizumab)
in triple-negative breast cancer, hormone receptor-positive breast
cancer and other LIV-1-expressing solid tumors. Under the terms of
the LV Agreement, we granted Merck a co-exclusive worldwide
development and commercialization license for LV, and agreed to
jointly develop and commercialize LV on a worldwide basis. We
received an upfront cash payment of $600.0 million, and we are
eligible to receive up to $850.0 million in milestone payments
upon the initiation of certain clinical trials and regulatory
approval in certain major markets, and up to an additional
$1.8 billion in milestone payments upon the achievement of
specified annual global net sales thresholds of LV. Each company is
responsible for 50% of global costs to develop and commercialize LV
and will receive 50% of potential future profits. In connection
with the LV Agreement, we entered into a stock purchase agreement
with Merck in September 2020, pursuant to which we agreed to issue
and sell, and Merck agreed to purchase 5,000,000 newly-issued
shares of our common stock, at a purchase price of $200 per share,
for an aggregate purchase price of $1.0 billion, referred to
as the Purchase Agreement. We closed the Purchase Agreement on
October 27, 2020 following the expiration of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of
1976.
We recognized license revenue of $850.1 million during the
year ended December 31, 2020 associated with the LV and Stock
Purchase Agreements, and we recognize such cost sharing
proportionately with the performance of the underlying activities,
while recording Merck’s reimbursement of our expenses as a
reduction of research and development expenses.
Merck TUKYSA collaboration
In September 2020, we entered into the TUKYSA Agreement with a
subsidiary of Merck. We granted exclusive rights to commercialize
TUKYSA in Asia, the Middle East and Latin America and other regions
outside of the U.S., Canada and Europe. Under the terms of the
TUKYSA Agreement, Merck is responsible for marketing applications
for approval in its territory, supported by the positive results
from the HER2CLIMB clinical trial. We retained commercial rights
in, and will record sales in, the U.S., Canada and Europe. Merck is
also co-funding a portion of the TUKYSA global development plan,
which encompasses several ongoing and planned trials across
HER2-positive cancers. We will continue to lead ongoing TUKYSA
global development operational execution. Merck will solely fund
and conduct
country-specific clinical trials necessary to support anticipated
regulatory applications in its territories. We received an upfront
cash payment from Merck of $125.0 million and also received
$85.0 million in prepaid research and development funding to
be applied to Merck’s global development cost sharing obligations.
We are eligible to receive progress-dependent milestone payments of
up to $65.0 million, and are entitled to receive tiered royalties
on sales of TUKYSA by Merck that begin in the low twenty percent
range and escalate based sales volume by Merck in its territory. We
owe Array a portion of any non-royalty payments received from
sublicensing TUKSYA rights, as well as a low double-digit royalty
based on net sales of TUKYSA by us, and will owe a single-digit
royalty based on net sales of TUKYSA by Merck in its
territories.
We recognized license revenue of $125.0 million during the
year ended December 31, 2020 associated with the TUKYSA Agreement,
and we recognize such cost sharing proportionately with the
performance of the underlying activities, while recording Merck’s
reimbursement of our expenses as a reduction of research and
development expenses. Sales of TUKYSA drug product supplied is
included in collaboration and license agreement revenues. The
prepayment received for global development cost-sharing was
recorded as a co-development liability in accrued liabilities and
other or other long-term liabilities on our consolidated balance
sheet as of December 31, 2020. As joint development expenses are
incurred, we recognize the portion of Merck’s prepayment as a
reduction of our research and development expenses on our
consolidated statements of net income (loss). As of December 31,
2020, $80.9 million was recorded as the remaining
co-development liability.
Other collaboration and license agreements
We have other collaboration and license agreements for our ADC
technology with a number of biotechnology and pharmaceutical
companies. We typically receive upfront cash payments
and progress- and sales-dependent milestones for the achievement by
our licensees of certain events, and annual maintenance fees and
support fees for research and development services and materials
provided under the agreements. These amounts are recognized as
revenue over the performance obligation period if the license is
determined not to be distinct from other goods and services
provided, or, if there is no performance obligation, upon transfer
of control of the goods or services to the customer.
As of December 31, 2020, the remaining potential milestone
payments to us under our other ADC license and collaboration
agreements could total approximately $1.6 billion if all potential
product candidates achieved all of their milestone events. Of this
amount, approximately $0.9 billion relates to the achievement of
development and regulatory milestones, and approximately $0.7
billion relates to the achievement of commercial milestones. Since
we do not control the research, development or commercialization of
any of the products that would generate these milestones, we are
not able to reasonably estimate when, if at all, any potential
future milestone payments or royalties may be payable by our
collaborators. Successfully developing a product candidate,
obtaining regulatory approval and ultimately commercializing it is
a significantly lengthy and highly uncertain process which entails
a significant risk of failure. In addition, business combinations,
changes in a collaborator’s business strategy and financial
difficulties or other factors could result and have resulted in a
collaborator abandoning or delaying development of its product
candidates. As such, the potential future milestone payments
associated with our ADC collaboration agreements involve a
substantial degree of risk and may never be received. Accordingly,
we do not expect, and investors should not assume, that we will
receive all of the potential milestone payments described above,
and it is possible that we may never receive any additional
significant milestone payments under these
agreements.
Cost of sales
Cost of sales includes manufacturing and distribution costs of
product sold,
gross
profit share with Astellas pursuant to our PADCEV collaboration,
amortization of acquired technology license costs, royalties owed
on our PADCEV net product sales and global ADCETRIS and TUKSYA net
product sales.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
(dollars in thousands) |
|
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
Cost of sales |
|
$ |
217,720 |
|
|
$ |
43,952 |
|
|
$ |
88,293 |
|
|
395 |
% |
|
(50) |
% |
Cost of sales increased in 2020 as compared to 2019, driven by the
Astellas gross profit share related to PADCEV net product sales, a
payment owed to a third-party technology licensor resulting from
the TUKSYA Agreement, amortization expense associated with acquired
TUKSYA technology costs, and in-licensing royalties owed on PADCEV
and TUKYSA net product sales. The gross profit share with Astellas
totaled $104.6 million for the year ended December 31, 2020.
We recorded amortization expense of $16.3 million for acquired
TUKYSA technology costs during the year ended December 31, 2020,
which began following FDA approval of TUKYSA in April
2020.
We expect cost of sales to increase in 2021 as compared to 2020 as
a result of the net product sales growth of our commercial-stage
drugs. This includes cost of product sales for PADCEV and the gross
profit share with Astellas under our collaboration. Growth will
also be driven by the full-year 2021 amortization of acquired
TUKYSA technology costs. The increase in cost of sales will also
reflect expected growth in ADCETRIS net product sales. Cost of
sales includes a low-single digit royalty on global net sales of
ADCETRIS, a mid-single digit royalty on our net sales of PADCEV,
and a low double-digit royalty on global net sales of
TUKYSA.
Cost of sales for PADCEV and TUKYSA in 2021 will be partially
reduced by the use of product inventory that was manufactured prior
to FDA approval, and previously charged to research and development
expense.
Research and development
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
(dollars in thousands) |
|
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
Research and clinical development |
|
$ |
581,496 |
|
|
$ |
497,986 |
|
|
$ |
397,429 |
|
|
17 |
% |
|
25 |
% |
Process sciences and manufacturing
|
|
245,633 |
|
|
221,388 |
|
|
167,880 |
|
|
11 |
% |
|
32 |
% |
Total research and development
|
|
$ |
827,129 |
|
|
$ |
719,374 |
|
|
$ |
565,309 |
|
|
15 |
% |
|
27 |
% |
Certain prior year balances have been reclassified within research
and development expenses to conform to current year
presentation.
|
|
Research and clinical development expenses include personnel,
occupancy and laboratory expenses, technology access fees,
preclinical translational biology and
in vitro
and
in vivo
studies, IND-enabling pharmacology and toxicology studies, and
external clinical trial costs including costs for clinical sites,
clinical research organizations, contractors and regulatory
activities associated with conducting human clinical
trials.
The increase in 2020 as compared to 2019 primarily reflected higher
employee-related costs and external development costs mainly to
support our early- and late-stage pipeline of product
candidates.
Process sciences and manufacturing expenses include personnel and
occupancy expenses, manufacturing costs for the scale-up and
pre-approval manufacturing of drug product used in research and our
clinical trials, and costs for drug product supplied to our
collaborators. Process sciences and manufacturing expenses also
include quality control and assurance activities, and storage and
shipment of our product candidates.
The increase in 2020 compared to 2019 primarily reflected higher
employee-related costs and external development costs primarily to
support our early- and late-stage pipeline of product candidates,
as well as higher costs for drug product supplied to
Takeda.
We utilize our employee and infrastructure resources across
multiple research and development projects. We track human resource
efforts expended on many of our programs for purposes of billing
our collaborators for time incurred at agreed upon rates and for
resource planning. We do not account for actual costs on a project
basis as it relates to our infrastructure, facility, employee and
other indirect costs; however, we do separately track significant
third-party costs including clinical trial costs, manufacturing
costs and other contracted service costs on a project basis. To
that end, the following table shows third-party costs incurred for
research, contract manufacturing of our product candidates and
clinical and regulatory services, as well as development milestone
payments for in-licensed technology for our products
and certain of our clinical-stage product candidates. The table
also presents other costs and overhead consisting of third-party
costs for our preclinical stage programs, as well as personnel,
facilities, manufacturing, and other indirect costs
not directly charged to development programs.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage change |
|
5 years ended |
(dollars in thousands) |
2020 |
|
2019 |
|
2018 |
|
2020/2019 |
|
2019/2018 |
|
December 31, 2020 |
ADCETRIS (brentuximab vedotin) |
|
$ |
55,530 |
|
|
$ |
45,151 |
|
|
$ |
40,435 |
|
|
23 |
% |
|
12 |
% |
|
$ |
294,082 |
|
TUKYSA (tucatinib) |
|
73,142 |
|
|
84,276 |
|
|
40,739 |
|
|
(13) |
% |
|
|