Capricor Therapeutics, Inc.
has entered into a Common Stock Sales Agreement, or the Sales Agreement, with H.C. Wainwright & Co. LLC, or Wainwright, relating
to the sale of shares of our common stock, par value $0.001 per share, offered by this prospectus supplement. In accordance with the terms
of the Sales Agreement, we may offer and sell shares of our common stock from time to time through Wainwright acting as agent, subject
to the limitations contained in the Sales Agreement. This prospectus supplement relates to the sale of shares of our common stock under
the Sales Agreement with an aggregate offering price of up to $75,000,000.
Our common stock is listed
on The Nasdaq Capital Market under the symbol “CAPR.” On June 15, 2021, the last sale price of our shares of common stock
as reported on The Nasdaq Capital Market was $4.53 per share.
Sales of shares of our common
stock, if any, under this prospectus supplement will be made in sales deemed to be an “at the market offering” as defined
in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. Wainwright will act as sales agent on
a commercially reasonable efforts basis consistent with its normal trading and sales practices, on mutually agreed terms between Wainwright
and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Wainwright will be entitled
to compensation at a fixed commission rate of 3% of the gross proceeds of each sale of shares of our common stock. In connection with
the sale of our shares of common stock on our behalf, Wainwright may be deemed to be an “underwriter” within the meaning of
the Securities Act and the compensation of Wainwright may be deemed to be underwriting commissions or discounts. We have also agreed to
provide indemnification and contribution to Wainwright with respect to certain liabilities, including liabilities under the Securities
Act, as well as reimbursement of certain expenses.
Summary Risk Factors
Our business is subject
to a number of risks, including risks that may prevent us from achieving our business objectives or may adversely affect our business,
clinical and commercialization activities, the manufacturing of our product candidates, intellectual property, third-party relationships,
competition factors, product and environmental liability, and common stock. These risks are discussed more fully below and include,
but are not limited to, risks related to:
Risks Related to Our Business
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the COVID-19 pandemic, including its impact on our business and operations;
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substantial additional funding is needed to complete the development of our product candidates;
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the Company has incurred significant losses and may never be profitable;
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the occurrence of security breaches, improper access to or disclosure of our data or user data, and other cyber incidents or undesirable cyber activity related to our, or our third party vendor’s systems and data;
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we may not have adequate personnel and may not be able to attract or retain personnel needed to develop our products;
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Risks Related to Clinical and Commercialization
Activities
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our success depends upon the viability of our product candidates, all of which require regulatory approval to commercialize and we cannot be certain any of them will receive regulatory approval to be commercialized;
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delays in commencement, enrollment, and completion of clinical testing could result in increased costs to us and delay or limit our ability to obtain regulatory approval for our product candidates;
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our exosome technologies are unproven in their ability to achieve sufficient biological activity or scale in development to date;
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product candidates can fail to meet their efficacy endpoints at any time during the clinical development process, which would likely make them ineligible for becoming commercial products;
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Risks Related to the Manufacturing
of our Product Candidates
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the manufacturing of our product candidates is heavily reliant on supply chain requirements including the availability of raw materials that are critical for the manufacturing of our product candidates;
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we rely upon third party manufacturers for the expansion of our manufacturing capabilities for later-stage clinical trials and for ultimate commercialization;
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we may not have adequate manufacturing facilities required for any scale-up of manufacturing which may be required in the future;
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Risks Related to Our Intellectual
Property
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our ability to obtain, maintain, protect, and enforce our intellectual property rights;
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potential challenges to the enforceability or scope of our intellectual property;
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potential claims from third parties that we are infringing their patents or other intellectual property rights;
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Risks Related to Our Relationships
with Third Parties
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we depend on our relationships with our licensors and collaborators and there is no guarantee that such relationships will continue;
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Risks Related to Competitive Factors
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our products will likely face intense competition;
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any of our product candidates for which we receive regulatory approval may not achieve broad market acceptance, which could limit the revenue that we will generate from their sales, if any;
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Risks Related to Product and Environmental
Liability
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our products may expose us to potential product liability;
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Risks Related to Our Common Stock
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we expect that our stock price will continue to fluctuate significantly; and
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we have never paid dividends and we do not anticipate paying dividends in the future.
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Risks Related to this Offering
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management will have broad discretion as to the use of proceeds from this offering, if any, and may not use the proceeds effectively;
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if
you purchase any common stock which may be sold in this offering, you will experience immediate dilution as a result of this
offering and future equity issuances; and
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future sales of our common stock in the public market could cause our stock price to fall.
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Risks Related to Our Business
We need substantial additional funding
before we can complete the development of our product candidates. If we are unable to obtain such additional capital, we will be
forced to delay, reduce or eliminate our product development and clinical programs and may not have the capital required to otherwise
operate our business.
Developing biopharmaceutical
products, including conducting preclinical studies and clinical trials and establishing manufacturing capabilities, is expensive.
As of December 31, 2020, we had cash and cash equivalents totaling approximately $32.7 million. We have not generated any
revenues from the commercial sale of products. We will not be able to generate any product revenues until, and only if, we receive
approval to sell our drug candidates from the FDA or other regulatory authorities.
From inception, we
have financed our operations through public and private sales of our equity securities, grants from the National Institutes of
Health, or NIH, and the Department of Defense, or DoD, and a loan commitment and grant award from the California Institute for
Regenerative Medicine, or CIRM. As we have not generated any revenue from commercial sales to date and we do not expect to generate
revenue for several years, if ever, we will need to raise substantial additional capital in order to fund our general corporate
activities and to fund our research and development, including our ongoing clinical trials and plans for new clinical trials and
product development.
We may seek to raise
additional funds through various potential sources, such as equity and debt financings, or through strategic collaborations and
license agreements. We can give no assurances that we will be able to secure such additional sources of funds to support our operations
or, if such funds are available to us, that such additional financing will be sufficient to meet our needs. Moreover, to the extent
that we raise additional funds by issuing equity securities, our stockholders may experience additional significant dilution, and
debt financing, if available, may involve restrictive covenants. To the extent that we raise additional funds through collaboration
and licensing arrangements, it may be necessary to relinquish some rights to our technologies or our product candidates, or grant
licenses on terms that may not be favorable to us.
If we are unable to
raise sufficient funds to support our current and planned operations, we may elect to discontinue certain of our ongoing activities
or programs. The inability to raise additional funds could also prevent us from taking advantage of opportunities to pursue promising
new or existing programs in the future.
Our forecasts regarding
our beliefs in the sufficiency of our financial resources to support our current and planned operations are forward-looking statements
and involve significant risks and uncertainties, and actual results could vary as a result of a number of factors, including the
factors discussed elsewhere in this “Risk Factors” section. We have based these estimates on assumptions that may prove
to be wrong, and we could utilize our available capital resources sooner than we currently expect. Our future funding requirements
will depend on many factors, including, but not limited to:
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the scope, rate of progress, cost and results of our research and development activities, especially our CAP-1002 and exosomes programs;
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the next steps in the development of our Duchenne muscular dystrophy, or DMD, program, which may potentially include a Phase III clinical trial for our CAP-1002 product candidate in DMD;
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the availability of funding from government programs including the NIH, and DoD, if applicable;
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the costs of developing adequate manufacturing processes and facilities;
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the costs associated with and timing of regulatory approval;
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the costs of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights;
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the costs and risks involved in conducting clinical trials and manufacturing operations in the U.S. and internationally;
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the effect of competing technological and market developments;
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the terms and timing of any collaboration, licensing or other arrangements that we may establish;
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the cost and timing of technology transfer for, and completion of, clinical and commercial-scale outsourced manufacturing activities; and
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the costs of establishing sales, marketing and distribution capabilities for any product candidates for which we may receive regulatory approval.
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We have a history of net losses,
and we expect losses to continue for the foreseeable future. In addition, a number of factors may cause our operating results to
fluctuate on a quarterly and annual basis, which may make it difficult to predict our future performance.
We have a history of
net losses, expect to continue to incur substantial net losses for the foreseeable future, and may never achieve or maintain profitability.
Our operations to date have been primarily limited to organizing and staffing our company, developing our technology, and undertaking
preclinical studies and clinical trials of our product candidates. We have not yet obtained regulatory approval for any of our
product candidates. Specifically, our financial condition and operating results have varied significantly in the past and will
continue to fluctuate from quarter-to-quarter and year-to-year in the future due to a variety of factors, many of which are beyond
our control. Factors relating to our business that may contribute to these fluctuations include the following factors:
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our need for substantial additional capital to fund our trials and development programs;
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delays in the commencement, enrollment, and timing of clinical testing;
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the viability of CAP-1002 as a potential product candidate for the treatment of DMD and COVID-19 and its development through all stages of clinical development;
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the viability of our exosome technologies as potential product candidates and the advancement of our exosome technologies through all stages of its preclinical and clinical development;
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any delays in regulatory review and approval of our product candidates in clinical development;
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our ability to receive regulatory approval or commercialize our product candidates, within and outside the United States;
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potential side effects of our current or future products and product candidates that could delay or prevent commercialization or cause an approved treatment drug to be taken off the market;
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market acceptance of our product candidates;
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our ability to establish an effective sales and marketing infrastructure once our products are commercialized or to establish partnerships with other companies who have greater sales and marketing capabilities;
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our ability to establish or maintain collaborations, licensing or other arrangements, including strategic partnerships for CAP-1002 and our exosomes technologies;
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our ability and third parties’ abilities to obtain and protect intellectual property rights;
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competition from existing products or new products that may emerge;
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guidelines and recommendations of therapies published by various organizations;
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the ability of patients to obtain coverage of, or sufficient reimbursement for, our products;
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our ability to maintain adequate insurance policies;
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our ability to successfully manufacture our product candidates in sufficient quantities and on a timely basis to meet clinical trial and potential commercial demand;
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our dependency on third parties to formulate and manufacture our product candidates;
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our ability to maintain our current manufacturing facility, including our ability to achieve and maintain current Good Manufacturing Practices, or cGMP, certification, and to secure other facilities as determined to be necessary;
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costs related to and outcomes of potential intellectual property litigation;
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compliance with obligations under intellectual property licenses with third parties;
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our ability to implement additional internal systems and infrastructure;
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our ability to adequately support future growth;
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if our products are approved for commercial sale, the ability to secure reimbursement for our products;
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our ability to attract and retain key personnel to manage our business effectively; and
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the ability of members of our senior management who have limited experience in managing a public company to manage our business and operations.
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The Company’s technology is
not yet proven and each of our product candidates is still in clinical or preclinical development.
The Company’s
product candidates, CAP-1002 and our exosome technologies, are in development and each requires further and, in some cases, extensive
clinical testing before it may be approved by the FDA, or another regulatory authority in a jurisdiction outside the United States,
which could take several years to complete, if ever. The Company’s failure to establish the efficacy of its technologies
would have a material adverse effect on the Company. We cannot predict with any certainty the results of such clinical testing,
including the results of any potential Phase III trial of our CAP-1002 product candidate in DMD. Additionally, we cannot predict
with any certainty if, or when, we might commence any additional clinical trials of our product candidates, whether we will be
able to secure a partner to fund and/or conduct a potential Phase III trial, or whether our current trials will yield sufficient
data to permit us to proceed with additional clinical development and ultimately submit an application for regulatory approval
of our product candidates in the United States or abroad, or whether such applications will be accepted by the appropriate regulatory
agencies. We are also unable to predict whether our preclinical studies of our exosomes products will result in a viable clinical
development program.
Our business depends
entirely on the successful development and commercialization of our product candidates. We currently have no products approved
for sale and generate no revenues from sales of any products, and we may never be able to develop a marketable product.
Our product candidates
will require additional clinical development, evaluation of clinical, preclinical and manufacturing activities, marketing approval
in multiple jurisdictions, substantial investment and significant marketing efforts before we generate any revenues from product
sales. We are not permitted to market or promote our product candidates, before we receive marketing approval from the FDA and
comparable foreign regulatory authorities, and we may never receive such marketing approvals.
The success of our
product candidates will depend on several factors, including the following:
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successful and timely completion of our clinical trials;
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initiation and successful patient enrollment and completion of additional clinical trials on a timely basis;
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the impact of COVID-19 on our operations, ability to conduct clinical trials and on the ability of our regulators to review and approve or authorize our products;
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our ability to demonstrate our products’ safety, tolerability and efficacy to the FDA or any comparable foreign regulatory authority for emergency use authorization (EUA) or marketing approval;
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timely receipt of an EUA or marketing approval for our products;
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obtaining and maintaining patent protection, trade secret protection and regulatory exclusivity, both in the United States and internationally;
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successfully defending and enforcing our rights in our intellectual property portfolio;
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avoiding and successfully defending against any claims that we have infringed, misappropriated or otherwise violated any intellectual property of any third party;
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the performance of our current and future collaborators, if any;
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the extent of, and our ability to timely complete, any required post-marketing approval commitments imposed by FDA or other applicable regulatory authorities;
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successfully developing a companion diagnostic test on a timely and cost effective basis, if required;
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establishment of supply arrangements with third-party raw materials and drug product suppliers and manufacturers who are able to manufacture clinical trial and commercial quantities of drug substance and drug product and to develop, validate and maintain a commercially viable manufacturing process that is compliant with current good manufacturing practices, or cGMP, at a scale sufficient to meet anticipated demand and over time enable us to reduce our cost of manufacturing;
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establishment of scaled production arrangements with third-party manufacturers to obtain finished products that are compliant with cGMP and appropriately packaged for sale;
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successful launch of commercial sales following any EUA or marketing approval;
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a continued acceptable safety profile following any EUA or marketing approval;
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commercial acceptance by patients, the medical community and third-party payors;
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the availability of coverage and adequate reimbursement and pricing by third-party payors and government authorities;
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the availability, perceived advantages, relative cost, relative safety and relative efficacy of alternative and competing treatments; and
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our ability to compete with other therapies.
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We do not have complete
control over many of these factors, including certain aspects of clinical development and the regulatory submission process, potential
threats to our intellectual property rights and the manufacturing, marketing, distribution and sales efforts of any future collaborator.
Accordingly, we cannot assure you that we will ever be able to generate revenue through the sale of our products. If we are not
successful in marketing or commercializing our products, or are significantly delayed in doing so, our business will be materially
harmed.
Business disruptions such as natural
disasters, widespread infectious diseases or pandemics could seriously harm our future revenues and financial condition and increase
our costs and expenses.
Our corporate headquarters
and manufacturing facilities are located in the greater Los Angeles, California area, a region known for seismic activity, as well
as being susceptible to drought and fires. A significant natural disaster, such as an earthquake, flood or fire, occurring at our
headquarters or manufacturing facilities, or at the facilities of any third-party manufacturer or vendor, could have a material
adverse effect on our business, financial condition and results of operations. In addition, outbreaks of viruses, infectious diseases
or pandemics (including, for example, the outbreak of the novel coronavirus (COVID-19)), terrorist acts or acts of war targeted
at the United States, and specifically the Los Angeles, California region, could cause damage or disruption to us, our employees,
facilities, contractors and collaborators, which could have a material adverse effect on our business, financial condition and
results of operations.
The coronavirus outbreak could adversely
impact our business.
An epidemic or pandemic
disease outbreak, including the 2019 novel coronavirus (COVID-19), could severely disrupt our operations or the operations of third
parties that we depend on, including our single third-party contract manufacturer, our CROs, clinical data management organizations,
medical institutions and clinical investigators, and have a material adverse effect on our business, results of operations, financial
condition and prospects. In December 2019, it was first reported that there had been an outbreak of a novel strain of coronavirus
(COVID-19), in China. COVID-19 has since spread globally and while cases and hospitalization are currently on the decline
in the US, there can be no assurances they will not continue at the current rate or increase in the future especially in light
of the number of variants that are emerging across the world. Governments in the United States and elsewhere have taken and
are continuing to take severe measures to slow the spread of COVID-19, including requiring that certain businesses close or conduct
only the minimum necessary operations.
As COVID-19 continues
to spread, we may experience disruptions that could severely impact our business, including:
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delays or difficulties in enrolling patients in our clinical trials and having patients complete their assessments in accordance with the clinical protocol;
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restrictions preventing trial investigators, patients or other critical staff from traveling to our trial sites;
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diversion of healthcare resources to address COVID-19, which could limit the availability of medical facilities for our clinical trials;
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forced closures, or reductions in operations, at our facilities or the facilities of third parties with whom we do business;
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supply chain disruptions, which could have a material adverse effect on the availability or cost of materials for our product candidates; and
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disruptions to our workforce, or the workforces of third parties with whom we do business, caused by sickness, travel restrictions or quarantines, including but not limited to the announcement on March 19, 2020 by the Governor of the State of California ordering all individuals living in the State of California to stay at home or at their place of residence.
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Additionally, disruptions
at the FDA, the EMA and other regulators, caused by global health concerns, including the COVID-19 pandemic, including delays
in inspections of clinical trial or manufacturing sites required as part of the application review process, could result in delays
of reviews and approvals of our product candidate or our proposed clinical trials. For example, in response to the COVID-19 pandemic,
on March 10, 2020, the FDA announced its intention to postpone most inspections of foreign manufacturing facilities and products
inspections of domestic manufacturing facilities through April 2020. On March 18, 2020, the FDA announced its intention
to temporarily postpone routine surveillance inspections of domestic manufacturing facilities and provided guidance regarding the
conduct of clinical trials. On July 10, 2020, the FDA announced that it is working toward the goal of restarting on-site inspections
it deems to be “mission critical.” On August 19, 2020, the FDA published guidance clarifying how it intends to
conduct inspections during the COVID-19 pandemic, including how it plans to determine which inspections are “mission-critical.”
It is unclear how FDA’s policies and guidance will impact any inspections of our facilities, including our clinical trial
sites. Regulatory authorities outside the United States may adopt similar restrictions or other policy measures in response to
the COVID-19 pandemic.
The global outbreak
of COVID-19 continues to evolve and its ultimate impact on our business will depend on future developments, which are highly uncertain
and cannot be predicted. Any of the disruptions listed above, or other disruptions caused by new developments associated
with the COVID-19 outbreak could severely impact our business.
A breakdown or breach of our information
technology systems could subject us to liability or interrupt the operation of our business.
We are increasingly
dependent upon information technology systems and data, as well as the information technology systems and data of our third party
vendors, especially if we expand our clinical trials and therefore our databases of patient information. Our or our third party
vendors’ computer systems are potentially vulnerable to breakdown, malicious intrusion and random attack. Likewise, data
privacy or security breaches by individuals authorized to access our information technology systems or others may pose a risk that
sensitive data, including intellectual property, trade secrets or personal information belonging to us, our patients, customers
or other business partners, may be exposed to unauthorized persons or to the public. Cyber-attacks are increasing in their frequency,
sophistication and intensity. While we continue to build and improve our information systems and infrastructure and believe we
have taken appropriate security measures to minimize these risks to our data and information technology systems, we intend to defend
against and respond to data security incidents, and there can be no assurance that our efforts will prevent breakdowns or breaches
in our systems, or adequately contain and mitigate risks from a data security incident, that could adversely affect our business.
Our internal computer systems, or
those used by our CROs or other contractors or consultants, may fail or suffer security breaches.
We utilize and rely
on services of third parties to perform services in connection with our clinical trials, which services involve the collection,
use, storage and analysis of personal health information. While we receive assurances from these vendors that their services are
compliant with the Health Insurance Portability and Accountability Act, or HIPAA, and other applicable privacy and cybersecurity
laws, there can be no assurance that such third parties will comply with applicable laws or regulations. Non-compliance by such
vendors or weaknesses in their information security programs may result in liability for us which would have a material adverse
effect on our business, financial condition and results of operations.
Despite the implementation
of security measures, our internal computer systems and those of our current and future clinical research organizations, or CROs,
and other contractors and consultants are vulnerable to damage from computer viruses and unauthorized access. While we have not
experienced any such material system failure or security breach to date, if such an event were to occur and cause interruptions
in our operations, it could result in a material disruption of our development programs and our business operations. For example,
the loss of clinical trial data from completed or future clinical trials could result in delays in our regulatory approval efforts
and significantly increase our costs to recover or reproduce the data. To the extent that any disruption or security breach were
to result in a loss of, or damage to, our data or applications, or inappropriate disclosure of confidential or proprietary information,
we could incur liability and the further development and commercialization of our product candidates could be delayed.
If we achieve our near-term product
development milestones, we may not be able to manage any subsequent growth.
Should we achieve
our near-term product development milestones, of which no assurance can be given, our long-term viability will depend upon the
expansion of our operations and the effective management of our growth, which will place a significant strain on our management
and on our administrative, operational and financial resources, especially if we expand our business and operations internationally.
To manage this growth, we may need to expand our facilities, augment our operational, financial and management systems and hire
and train additional qualified personnel. If we are unable to manage our growth effectively, our business would be harmed.
Risks Related
to Clinical and Commercialization Activities
Our success depends upon the viability
of our product candidates and we cannot be certain any of them will receive regulatory approval to be commercialized.
We will need FDA approval
to market and sell any of our product candidates in the United States and approvals from FDA-equivalent regulatory authorities
in foreign jurisdictions to commercialize our product candidates in those jurisdictions. In order to obtain FDA approval of any
of our product candidates, we must submit to the FDA a new drug application, or NDA, or a biologics license application, or BLA,
demonstrating that the product candidate is safe for humans and effective for its intended use. This demonstration requires significant
research and animal testing, which are referred to as preclinical studies, as well as human testing, which are referred to as
clinical trials. Satisfaction of the FDA’s regulatory requirements typically takes many years, depends upon the type, complexity,
and novelty of the product candidate, and requires substantial resources for research, development, testing and manufacturing.
We cannot predict whether our research and clinical approaches will result in drugs that the FDA considers safe for humans and
effective for indicated uses. The FDA has substantial discretion in the drug approval process and may require us to conduct additional
preclinical and clinical testing or to perform post-marketing studies. The approval process may also be delayed by changes in
government regulation, future legislation, administrative action or changes in FDA policy that occur prior to or during our regulatory
review.
Even if we comply
with all FDA requests, the FDA may ultimately reject one or more of our NDAs or BLAs, as applicable. We cannot be sure that we
will ever obtain regulatory clearance for our product candidates. Failure to obtain FDA approval of any of our product candidates
will reduce our number of potentially salable products, if any, and, therefore, corresponding product revenues, and will have
a material and adverse impact on our business.
As the results of earlier preclinical
studies or clinical trials are not necessarily predictive of future results, any product candidate we advance into clinical trials
may not have favorable results in later clinical trials or receive regulatory approval.
Even if our preclinical
studies and clinical trials are completed as planned, we cannot be certain that their results will support the claims of our product
candidates. Positive results in preclinical testing and early clinical trials do not ensure that results from later clinical trials
will also be positive, and we cannot be sure that the results of later clinical trials will replicate the results of prior clinical
trials and preclinical testing.
Our clinical trial
process may fail to demonstrate that our product candidates are safe for humans and effective for indicated uses. This failure
would cause us to abandon a product candidate and may delay development of other product candidates. Any delay in, or termination
of, our clinical trials will delay or cause us to refrain from the filing of our NDAs and/or BLAs with the FDA and, ultimately,
our ability to commercialize our product candidates and generate product revenues. In addition, our clinical trials to date involve
small patient populations. Because of the small sample size, the results of these clinical trials may not be indicative of future
results.
Despite the results
reported in earlier clinical trials for our product candidates, we do not know whether any Phase II, Phase III or other clinical
trial which we may conduct will demonstrate adequate efficacy and safety to result in regulatory approval to market our product
candidates. A number of companies in the pharmaceutical industry, including those with greater resources and experience, have
suffered significant setbacks in Phase II or Phase III clinical trials, even after seeing promising results in earlier clinical
trials.
Our exosome technologies are based
on a novel therapeutic approach which makes it difficult to predict the time and cost of development and of subsequently obtaining
regulatory approval, if at all.
Our exosome technologies
involve a relatively new therapeutic approach which will face both clinical and regulatory challenges. To date, no products based
on exosomes have been approved in the United States or the European Union. It is therefore difficult to accurately predict the
developmental challenges we may face for our exosome technologies as they proceed through preclinical studies and clinical trials.
In addition, because we have only conducted preclinical studies with our exosome technologies, we have not yet been able to assess
their safety in humans, and there may be short-term or long-term effects from treatment with our exosomes that we cannot predict
at this time. Also, animal models for the indications we may explore may not exist or may be difficult to obtain for our preclinical
studies. As a result of these factors, we are unable to predict the time and cost of development of the exosome technologies and
we cannot predict whether the application of the exosome technologies, or any similar or competitive exosome technologies, will
result in regulatory approval of any products. There can be no assurance that any development problems we experience in the future
related to our exosomes or any of our research programs will not cause significant delays or unanticipated costs, or that such
development problems can be solved. Any of these factors may prevent us from completing our preclinical studies or any clinical
trials that we may initiate or commercializing any product candidates we may develop on a timely or profitable basis, if at all.
The clinical trial
requirements of the FDA, the European Medicines Agency, or EMA, and other regulatory authorities and the criteria these regulators
use to determine the safety and efficacy of a product candidate vary substantially according to the type, complexity and intended
use and market of the product candidate. As a result, the regulatory approval process for our exosomes is uncertain and may be
more expensive and take longer than the approval process for other product candidates. It is difficult to determine how long it
will take or how much it will cost to obtain regulatory approvals for our exosomes in either the United States or the European
Union or other regions of the world or how long it will take to commercialize our product candidates, if at all. Delay or failure
to obtain, or unexpected costs in obtaining, the regulatory approval necessary to bring a potential product candidate to market
could decrease our ability to generate sufficient product revenue, and our business, financial condition, results of operations
and prospects may be adversely impacted.
Negative developments in the field
of exosomes could damage public perception of any product candidates that we develop, which could adversely affect our ability
to conduct our business or obtain regulatory approvals for such product candidates.
Exosome-based vaccines
and therapeutics are novel and unproven therapies which may not gain the acceptance of the public, patients or the medical community.
To date, efforts by others to leverage natural exosomes have generally demonstrated an inability to generate exosomes with predictable
biologically active properties or to manufacture exosomes at suitable scale to treat more than a small number of patients. Our
success will depend on our ability to demonstrate that our exosome technologies can overcome these challenges.
Additionally, our
success will depend upon physicians who specialize in the treatment of diseases targeted by our exosomes prescribing treatments
that involve the use of our product candidates in lieu of, or in addition to, existing treatments with which they are more familiar
and for which greater clinical data may be available. Adverse events in clinical trials of our exosomes or in clinical trials
of others developing similar products and the resulting publicity, as well as any other adverse events in the field of exosome
therapeutics, could result in a decrease in demand for any products that we may develop. These events could also result in the
suspension, discontinuation, or clinical hold of, or modification to, our clinical trials. Any future negative developments in
the field of exosomes and their use as therapies could also result in greater governmental regulation, stricter labeling requirements
and potential regulatory delays in the testing or approvals of our exosomes or other potential future product candidates. Any
increased scrutiny could delay or increase the costs of obtaining marketing approval for our exosomes or any other product candidates
which we may develop in the future.
Advancing vaccine
candidates based on our exosome platform as novel products creates significant challenges for us, including:
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obtaining marketing
approval, as obtaining an EUA or regulatory approval of such a vaccine candidate from the FDA or comparable foreign regulatory
authorities has never been done before;
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educating medical
personnel regarding the potential efficacy and safety benefits, as well as the challenges, of incorporating our product candidates,
if approved, into treatment regimens; and
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establishing the
sales and marketing capabilities to gain market acceptance, if approved.
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We may not be able to file INDs
to commence additional clinical trials on the timelines we expect, and even if we are able to do so, the FDA may not permit us
to proceed.
We hope to file additional
investigational new drug applications, or INDs, over the next several years, including with respect to our exosome technologies
in one or more indications. However, the timing of our filing of these INDs is primarily dependent on receiving further data from
our preclinical studies and having sufficient processes in place in connection with the manufacturing of the exosomes.
We cannot be sure
that submission of an IND will result in the FDA allowing further clinical trials to begin, or that, once begun, issues will not
arise that result in the suspension or termination of such clinical trials. Any IND we submit could be denied by the FDA or the
FDA could place any future investigation of ours on clinical hold until we provide additional information, either before or after
clinical trials are initiated. Additionally, even if such regulatory authorities agree with the design and implementation of the
clinical trial set forth in an IND or clinical trial application, we cannot guarantee that such regulatory authorities will not
change their requirements in the future. Unfavorable future trial results or other factors, such as insufficient capital to continue
development of a product candidate or program, could also cause us to voluntarily withdraw an effective IND.
The Company has limited experience
in conducting late-stage clinical trials, which are complex and subject to strict regulatory oversight.
The Company has limited
late-stage clinical trial experience with respect to its product candidates. The clinical testing process is governed by stringent
regulation and is highly complex, costly, time-consuming, and uncertain as to outcome, and pharmaceutical products and products
used in the regeneration of tissue may invite particularly close scrutiny and requirements from the FDA and other regulatory bodies.
Our failure or the failure of our collaborators to conduct clinical trials successfully or our failure to capitalize on the results
of clinical trials for our product candidates would have a material adverse effect on the Company. If our clinical trials of our
product candidates or future product candidates do not sufficiently enroll or produce results necessary to support regulatory
approval in the United States or elsewhere, or if they show undesirable side effects, we will be unable to commercialize these
product candidates.
To receive regulatory
approval for the commercial sale of our product candidates, we must conduct adequate and well-controlled clinical trials to demonstrate
efficacy and safety in humans. Clinical failure can occur at any stage of testing. Our clinical trials may produce negative or
inconclusive results, and we may decide, or regulators may require us, to conduct additional clinical and/or non-clinical testing.
In addition, the results of our clinical trials may show that our product candidates are ineffective or may cause undesirable
side effects, which could interrupt, delay or halt clinical trials, resulting in the denial of regulatory approval by the FDA
and other regulatory authorities. Furthermore, negative, delayed or inconclusive results may result in:
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the withdrawal of
clinical trial participants;
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the termination
of clinical trial sites or entire trial programs;
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costly litigation
arising out of the trials;
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substantial monetary
awards to patients or other claimants;
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the requirement
that additional trials be conducted;
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impairment of our
business reputation;
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loss of revenues;
and
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the inability to
commercialize our product candidates.
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Delays in the commencement, enrollment,
and completion of clinical testing could result in increased costs to us and delay or limit our ability to obtain regulatory approval
for our product candidates.
Delays in the commencement,
enrollment or completion of clinical testing could significantly affect our product development costs. The current pandemic has
had an impact on the ability to conduct clinical trials due to inabilities to enroll or even get subjects to complete the trials
due to lockdowns, reluctance to travel, limitations set by trial sites and other reasons. We cannot predict how long this will
exist and while the hospitalization rates and number of cases seem to be on the decline, no assurance it will not revert to prior
critical levels. A clinical trial may be suspended or terminated by the Company, the FDA, or other regulatory authorities due
to a number of factors. The commencement and completion of clinical trials require us to identify and maintain a sufficient number
of trial sites, many of which may already be engaged in other clinical trial programs for the same indication as our product candidates
or may otherwise be resource constrained. We may be required to withdraw from a clinical trial as a result of changing standards
of care, or we may become ineligible to participate in clinical studies. We do not know whether planned clinical trials will begin
on time or be completed on schedule, if at all. The commencement, enrollment and completion of clinical trials can be delayed
for a number of reasons, including, but not limited to, delays related to:
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findings in preclinical
studies;
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reaching agreements
on acceptable terms with prospective CROs, vendors and trial sites, the terms of which can be subject to extensive negotiation
and may vary significantly among different CROs, vendors and trial sites;
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obtaining regulatory
clearance to commence a clinical trial;
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complying with conditions
imposed by a regulatory authority regarding the scope or term of a clinical trial, or being required to conduct additional
trials before moving on to the next phase of trials;
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obtaining institutional
review board, or IRB, approval to conduct a clinical trial at numerous prospective sites;
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recruiting and enrolling
patients to participate in clinical trials for a variety of reasons, including the size of the patient population, nature
of trial protocol, meeting the enrollment criteria for our studies, screening failures, the inability of the sites to conduct
trial procedures properly, the inability of the sites to devote their resources to the trial, the availability of approved
effective treatments for the relevant disease and competition from other clinical trial programs for similar indications;
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the impact of COVID-19
on patient screening and patient enrollment;
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developing and validating
any companion diagnostic to be used in the trial, to the extent we are required to do so;
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patients failing
to comply with the clinical trial protocol or dropping out of a trial;
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clinical trial sites
failing to comply with the clinical trial protocol or dropping out of a trial;
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addressing any conflicts
with new or existing laws or regulations;
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the need to add
new clinical trial sites;
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retaining patients
who have initiated their participation in a clinical trial but may be prone to withdraw due to the treatment protocol, lack
of efficacy, personal issues, or side effects from the therapy, or who are lost to further follow-up;
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manufacturing sufficient
quantities of a product candidate for use in clinical trials on a timely basis;
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obtaining advice
from regulatory authorities regarding the statistical analysis plan to be used to evaluate the clinical trial data or other
trial design issues;
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demonstrating the
bioequivalence of products we manufacture to prior products manufactured on our behalf;
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complying with design
protocols of any applicable special protocol assessment we receive from the FDA;
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severe or unexpected
drug-related side effects experienced by patients in a clinical trial;
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collecting, analyzing
and reporting final data from the clinical trials;
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breaches in quality
of manufacturing runs that compromise all or some of the doses made; positive results in FDA-required viral testing; karyotypic
abnormalities in our cell product; or contamination in our manufacturing facilities, all of which events would necessitate
disposal of all cells made from that source;
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availability of
materials provided by third parties necessary to manufacture our product candidates;
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availability of
adequate amounts of acceptable tissue for preparation of master cell banks for our products;
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requirements to
conduct additional trials and studies, and increased expenses associated with the services of the Company’s CROs and
other third parties; and
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meeting logistical
requirements for the delivery of investigational product.
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If we are required
to conduct additional clinical trials or other testing of our product candidates beyond those that we currently contemplate, we
or our development partners, if any, may be delayed in obtaining, or may not be able to obtain or maintain, clinical or marketing
approval for these product candidates. We may not be able to obtain approval for indications that are as broad as intended, or
we may be able to obtain approval only for indications that are entirely different from those indications for which we sought
approval.
Changes in regulatory
requirements and guidance may occur, and we may need to amend clinical trial protocols to reflect these changes with appropriate
regulatory authorities. Amendments may require us to resubmit our clinical trial protocols to IRBs for re-examination, which may
impact the costs, timing, or successful completion of a clinical trial. If we experience delays in the completion of, or if we
terminate, our clinical trials, the commercial prospects for our product candidates will be harmed, and our ability to generate
product revenues will be delayed or will not be realized. In addition, many of the factors that cause, or lead to, a delay in
the commencement or completion of clinical trials may also ultimately lead to the denial of regulatory approval of a product candidate.
Even if we are able to ultimately commercialize our product candidates, other therapies for the same or similar indications may
have been introduced to the market and already established a competitive advantage. Any delays in obtaining regulatory approvals
may:
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delay commercialization
of, and our ability to derive product revenues from, our product candidates;
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impose costly procedures
on us; or
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diminish any competitive
advantages that we may otherwise enjoy.
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We may experience
numerous unforeseen events during, or as a result of, clinical trials that could delay or prevent our ability to receive marketing
approval or commercialize our product candidates, including:
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we may receive feedback
from regulatory authorities that requires us to modify the design of our clinical trials;
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clinical trials
of our product candidates may produce negative or inconclusive results, and we may decide, or regulators may require us, to
conduct additional clinical trials or abandon drug development programs;
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the number of patients
required for clinical trials of our product candidates may be larger than we anticipate, enrollment in these clinical trials
may be slower than we anticipate or participants may drop out of these clinical trials at a higher rate than we anticipate;
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our third-party
contractors, including our CROs, may fail to comply with regulatory requirements or meet their contractual obligations to
us in a timely manner, or at all;
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we, our investigators,
or any of the overseeing IRBs or ethics committees might decide to suspend or terminate clinical trials of our product candidates
for various reasons, including non-compliance with regulatory requirements, a finding that our product candidates have undesirable
side effects or other unexpected characteristics, or a finding that the participants are being exposed to unacceptable health
risks;
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the cost of clinical
trials of our product candidates may be greater than we anticipate;
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the supply or quality
of our product candidates or other materials necessary to conduct clinical trials of our product candidates may be insufficient
or inadequate;
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regulators may revise
the requirements for approving our product candidates, or such requirements may not be as we anticipate; and
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any future collaborators
that conduct clinical trials may face any of the above issues, and may conduct clinical trials in ways they view as advantageous
to them but that are suboptimal for us.
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If we are required
to conduct additional clinical trials or other testing of our product candidates beyond those that we currently contemplate, if
we are unable to successfully complete clinical trials of our product candidates or other testing, if the results of these trials
or tests are not positive or are insufficiently positive to support marketing approval, or if there are safety concerns, we may:
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incur unplanned
costs;
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be delayed in obtaining
marketing approval for our product candidates or not obtain marketing approval at all;
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obtain marketing
approval in some countries and not in others;
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obtain marketing
approval for indications or patient populations that are narrower or more limited in scope than intended or desired;
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obtain marketing
approval subject to significant use or distribution restrictions or with labeling that includes significant safety warnings,
including boxed warnings;
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be subject to additional
post-marketing testing requirements; or
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have the drug removed
from the market after obtaining marketing approval.
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Our drug development
costs will also increase if we experience delays in testing or marketing approvals. We do not know whether clinical trials will
begin as planned, will need to be restructured or will be completed on schedule, or at all. Furthermore, we rely on third-party
CROs and clinical trial sites to ensure the proper and timely conduct of our clinical trials, and while we have agreements governing
their committed activities, we have limited influence over their actual performance. Significant clinical trial delays also could
shorten any periods during which we may have the exclusive right to commercialize our product candidates or allow our competitors
to bring drugs to market before we do and impair our ability to successfully commercialize our product candidates and may harm
our business and results of operations.
The outcome of preclinical testing
and early clinical trials may not be predictive of the success of later clinical trials, interim results of a clinical trial do
not necessarily predict final results, and the results of our clinical trials may not satisfy the requirements of the FDA or comparable
foreign regulatory authorities.
We currently have
no products approved for sale and we cannot guarantee that we will ever have marketable drugs. Clinical failure can occur at any
stage of clinical development. Clinical trials may produce negative or inconclusive results, and we or any future collaborators
may decide, or regulators may require us, to conduct additional clinical trials or preclinical studies. We will be required to
demonstrate with substantial evidence through adequate and well-controlled clinical trials that our product candidates are safe
and effective for use in treating specific conditions in order to obtain marketing approvals for their commercial sale. Success
in preclinical studies and early-stage clinical trials does not mean that future larger registration clinical trials will be successful
because product candidates in later-stage clinical trials may fail to demonstrate safety and efficacy to the satisfaction of the
FDA and non-U.S. regulatory authorities despite having progressed through preclinical studies and early-stage clinical trials.
Product candidates that have shown promising results in preclinical studies and early-stage clinical trials may still suffer significant
setbacks in subsequent registration clinical trials. Additionally, the outcome of preclinical studies and early-stage clinical
trials may not be predictive of the success of later-stage clinical trials.
From time to time,
we may publish or report interim or preliminary data from our clinical trials, once initiated. Interim or preliminary data from
clinical trials that we may conduct may not be indicative of the final results of the trial and are subject to the risk that one
or more of the clinical outcomes may materially change as patient enrollment continues and more patient data become available.
Interim or preliminary data also remain subject to audit and verification procedures that may result in the final data being materially
different from the interim or preliminary data. As a result, interim or preliminary data should be viewed with caution until the
final data are available.
In addition, the design
of a clinical trial can determine whether its results will support approval of a drug and flaws in the design of a clinical trial
may not become apparent until the clinical trial is well advanced. We have limited experience in designing clinical trials and
may be unable to design and conduct a clinical trial to support marketing approval. Further, if our product candidates are found
to be unsafe or lack efficacy, we will not be able to obtain marketing approval for them and our business would be harmed. A number
of companies in the pharmaceutical industry, including those with greater resources and experience than us, have suffered significant
setbacks in advanced clinical trials, even after obtaining promising results in preclinical studies and earlier clinical trials.
In some instances,
there can be significant variability in safety and efficacy results between different clinical trials of the same product candidate
due to numerous factors, including changes in trial protocols, differences in size and type of the patient populations, differences
in and adherence to the dosing regimen and other trial protocols and the rate of dropout among clinical trial participants. We
do not know whether any clinical trials we may conduct will demonstrate consistent or adequate efficacy and safety sufficient
to obtain marketing approval to market our product candidates.
In the event that
an adverse safety issue, clinical hold or other adverse finding occurs in one or more of our clinical trials, once initiated,
such event could adversely affect our other clinical trials using the same product candidate. Moreover, there is a relatively
limited safety data set for product candidates using an exosome platform. An adverse safety issue or other adverse finding in
a clinical trial conducted by a third party with a product candidate similar to ours could adversely affect our clinical trials.
Further, our product
candidates may not be approved even if they achieve their primary endpoints in Phase 3 clinical trials or registration trials.
The FDA or comparable foreign regulatory authorities may disagree with our trial design and our interpretation of data from preclinical
studies and clinical trials. In addition, any of these regulatory authorities may change requirements for the approval of a product
candidate even after reviewing and providing comments or advice on a protocol for a pivotal clinical trial that has the potential
to result in approval by the FDA or comparable foreign regulatory authorities. In addition, any of these regulatory authorities
may also approve a product candidate for fewer or more limited indications than we request or may grant approval contingent on
the performance of costly post-marketing clinical trials. In addition, the FDA or other comparable foreign regulatory authorities
may not approve the labeling claims that we believe would be necessary or desirable for the successful commercialization of our
product candidates.
Before obtaining marketing
approvals for the commercial sale of any product candidate for a target indication, we must demonstrate with substantial evidence
gathered in preclinical studies and adequate and well-controlled clinical trials, and, with respect to approval in the United
States, to the satisfaction of the FDA and elsewhere to the satisfaction of other comparable foreign regulatory authorities, that
the product candidate is safe and effective for use for that target indication. There is no assurance that the FDA or other comparable
foreign regulatory authorities will consider our future clinical trials to be sufficient to serve as the basis for approval of
one of our product candidates for any indication. The FDA and other comparable foreign regulatory authorities retain broad discretion
in evaluating the results of our clinical trials and in determining whether the results demonstrate that a product candidate is
safe and effective. If we are required to conduct additional clinical trials of a product candidate than we expect prior to its
approval, we will need substantial additional funds and there is no assurance that the results of any such additional clinical
trials will be sufficient for approval.
The failure to obtain required regulatory
clearances or approvals for any companion diagnostic tests that we may pursue may prevent or delay approval of any of our product
candidates. Moreover, the commercial success of any of our product candidates that require a companion diagnostic will be tied
to the receipt of any required regulatory clearances or approvals and the continued availability of such tests.
In connection with
the clinical development of our product candidates for certain indications, we may work with collaborators to develop or obtain
access to companion diagnostic tests to identify appropriate patients for our product candidates. We may rely on third parties
for the development, testing and manufacturing of these companion diagnostics, the application for and receipt of any required
regulatory clearances or approvals, and the commercial supply of these companion diagnostics. The FDA and foreign regulatory authorities
regulate companion diagnostics as medical devices that will likely be subject to clinical trials in conjunction with the clinical
trials for product candidates, and which will require separate regulatory clearance or approval prior to commercialization. This
process could include additional meetings with health authorities, such as a pre-submission meeting and the requirement to submit
an investigational device exemption. In the case of a companion diagnostic that is designated as “significant risk device,”
approval of an investigational device exemption by the FDA and IRB is required before such diagnostic is used in conjunction with
the clinical trials for a corresponding product candidate. We or our third-party collaborators may fail to obtain the required
regulatory clearances or approvals, which could prevent or delay approval of our product candidates. In addition, the commercial
success of any of our product candidates that require a companion diagnostic will be tied to and dependent upon the receipt of
required regulatory clearances or approvals and the continued ability of such third parties to make the companion diagnostic commercially
available to us on reasonable terms in the relevant geographies.
If we are required to in the future
and if we are unable to successfully develop companion diagnostic tests for our product candidates that require such tests, or
experience significant delays in doing so, we may not realize the full commercial potential of these product candidates.
We may be required
by the FDA to develop, either by ourselves or with collaborators, companion diagnostic tests for our product candidates for certain
indications. To be successful, we or our collaborators will need to address a number of scientific, technical, regulatory and
logistical challenges. We have no prior experience with medical device or diagnostic test development. If we choose to develop
and seek FDA approval for companion diagnostic tests on our own, we will require additional personnel. We may rely on third parties
for the design, development and manufacture of companion diagnostic tests for our therapeutic product candidates that require
such tests. If these parties are unable to successfully develop companion diagnostics for these therapeutic product candidates,
or experience delays in doing so, we may be unable to enroll enough patients for our current and planned clinical trials, the
development of these therapeutic product candidates may be adversely affected, these therapeutic product candidates may not obtain
marketing approval, and we may not realize the full commercial potential of any of these therapeutics that obtain marketing approval.
Any failure to successfully develop this companion diagnostic may cause or contribute to delayed enrollment of this trial, and
may prevent us from initiating or completing further clinical trials to support marketing approval for our product candidates.
As a result, our business, results of operations and financial condition could be materially harmed.
We may be unsuccessful in adapting
our COVID-19 vaccine or developing future versions of our COVID-19 vaccine to protect against variants of the SARS-CoV-2 virus
and a market for vaccines against these variants may not develop.
As the pandemic has
continued, the SARS-CoV-2 virus continues to evolve, and new strains of the virus or those that are already in circulation may
prove more transmissible or cause more severe forms of COVID-19 disease than the predominant strains to date. There is a risk
that any vaccine product candidates we develop will not be as effective in protecting against variant strains of the SARS-CoV-2
virus. The failure to adapt our vaccine product candidate to other variants of the SARS-CoV-2 virus could lead to significant
reputational harm, in addition to adversely affecting our financial results. It is also possible that we may expend significant
resources adapting our COVID-19 vaccine to protect against variants of the SARS-CoV-2 virus, but that a market for this adapted
vaccine does not develop or demand does not align with our projections or cost expenditures.
The regulatory pathway for COVID-19
vaccines is continually evolving, and may result in unexpected or unforeseen challenges.
The speed at which
all parties are acting to create and test many therapeutics and vaccines for COVID-19 is atypical, and evolving or changing plans
or priorities within the FDA or the regulatory authorities in other jurisdictions, including changes based on new knowledge of
COVID-19 and how the disease affects the human body, and new variants of the virus, may significantly affect the regulatory timeline
for further authorizations or approvals for our COVID vaccine. We cannot anticipate or predict with certainty the timelines or
regulatory processes that may be required for the development of ourCOVID-19 vaccine, or vaccines that may be developed to fight
against variants of the SARS-CoV-2 virus.
We may not be successful in our
efforts to identify or discover additional potential product candidates.
Our research programs
may initially show promise in identifying potential product candidates, yet fail to yield product candidates for clinical development
for a number of reasons, including:
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the research methodology
used may not be successful in identifying potential product candidates;
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potential product
candidates may, on further study, be shown to have harmful side effects or other characteristics that indicate that they are
unlikely to be drugs that will receive marketing approval and/or achieve market acceptance; and
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potential product
candidates may not be safe or effective in treating their targeted diseases.
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Research programs
to identify new product candidates require substantial technical, financial and human resources. If we are unable to identify
suitable compounds for preclinical and clinical development, our business would be harmed.
Negative perception of the efficacy,
safety, or tolerability of any investigational medicines that we develop, or of other products similar to products we are developing,
such as mRNA medicines and COVID-19 vaccines, could adversely affect our ability to conduct our business, advance our investigational
medicines, or obtain regulatory approvals.
To date, COVID-19
vaccines have only received EUAs in the United States, and FDA has not granted full approval of a BLA for any COVID-19 vaccine.
Other than these EUAs, no other mRNA medicines have been granted EUA or have been approved to date by the FDA or any other regulatory
agency. Adverse events in clinical trials of our investigational medicines or in clinical trials of others developing similar
products, including other mRNA COVID-19 vaccine, and the resulting publicity, as well as any other adverse events in the field
of mRNA medicine, or other products that are perceived to be similar to mRNA medicines, such as those related to gene therapy
or gene editing, could result in a decrease in the perceived benefit of one or more of our programs, increased regulatory scrutiny,
decreased confidence by patients and clinical trial collaborators in our investigational medicines, and less demand for any product
that we may develop. If and when they are used in clinical trials, our developmental candidates and investigational medicines
could result in a greater quantity of reportable adverse events, including suspected unexpected serious adverse reactions, other
reportable negative clinical outcomes, manufacturing reportable events or material clinical events that could lead to clinical
delay or hold by the FDA or applicable regulatory authority or other clinical delays, any of which could negatively impact the
perception of one or more of our programs, as well as our business as a whole. In addition, responses by U.S., state, or foreign
governments to negative public perception may result in new legislation or regulations that could limit our ability to develop
any investigational medicines or commercialize any approved products, obtain or maintain regulatory approval, or otherwise achieve
profitability. More restrictive statutory regimes, government regulations, or negative public opinion would have an adverse effect
on our business, financial condition, results of operations, and prospects and may delay or impair the development of our investigational
medicines and commercialization of any approved products or demand for any products we may develop.
If any of our product candidates
receives marketing approval or an EUA and we, or others, later discover that the drug is less effective than previously believed
or causes undesirable side effects that were not previously identified, our ability, or that of any future collaborators, to market
the drug could be compromised.
Clinical trials of
our product candidates must be conducted in carefully defined subsets of patients who have agreed to enter into clinical trials.
Consequently, it is possible that our clinical trials, or those of any future collaborator, may indicate an apparent positive
effect of a product candidate that is greater than the actual positive effect, if any, or alternatively fail to identify undesirable
side effects. If one or more of our product candidates receives marketing approval and we, or others, discover that the drug is
less effective than previously believed or causes undesirable side effects that were not previously identified, a number of potentially
significant negative consequences could result, including:
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regulatory authorities
may withdraw their approval of the drug or seize the drug;
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we, or any future
collaborators, may be required to recall the drug, change the way the drug is administered or conduct additional clinical
trials;
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additional restrictions
may be imposed on the marketing of, or the manufacturing processes for, the particular drug;
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we may be subject
to fines, injunctions or the imposition of civil or criminal penalties;
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regulatory authorities
may require the addition of labeling statements, such as a “black box” warning or a contraindication;
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we, or any future
collaborators, may be required to create a Medication Guide outlining the risks of the previously unidentified side effects
for distribution to patients;
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we, or any future
collaborators, could be sued and held liable for harm caused to patients;
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the drug may become
less competitive in the marketplace; and
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our reputation may
suffer.
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Any of these events
could have a material and adverse effect on our operations and business and could adversely impact our stock price.
Even if any of our product candidates
receive marketing approval, they may fail to achieve the degree of market acceptance by physicians, patients, healthcare payors
and others in the medical community necessary for commercial success.
If any of our product
candidates receive marketing approval, they may nonetheless fail to gain sufficient market acceptance by physicians, patients,
healthcare payors and others in the medical community. If our product candidates do not achieve an adequate level of acceptance,
we may not generate significant revenues from sales of drugs and we may not become profitable. The degree of market acceptance
of our product candidates, if approved for commercial sale, will depend on a number of factors, including:
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the efficacy and
safety of the product;
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the potential advantages
of the product compared to alternative therapies;
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the prevalence and
severity of any side effects;
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whether the product
is designated under physician and other provider treatment guidelines as a first-, second- or third-line therapy;
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our ability, or
the ability of any future collaborators, to offer the product for sale at competitive prices;
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the product’s
convenience and ease of administration for patients and healthcare practitioners compared to alternative treatments;
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the willingness
of the target patient population to try, and of physicians to prescribe, the product;
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limitations or warnings,
including distribution or use restrictions and safety information contained in the product’s approved labeling;
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the strength of
sales, marketing and distribution support;
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changes in the standard
of care for the targeted indications for the product; and
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the availability
of coverage by, and the amount of reimbursement from, government payors, managed care plans and other third-party payors.
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We face substantial competition,
which may result in others discovering, developing or commercializing products before or more successfully than we do.
The pharmaceutical
and biotechnology industries are highly competitive and characterized by rapidly advancing technologies, evolving understanding
of disease etiology and a strong emphasis on proprietary drugs. We face competition with respect to any product candidates that
we may seek to discover and develop or commercialize in the future, from major pharmaceutical, specialty pharmaceutical and biotechnology
companies. Potential competitors also include academic institutions and governmental agencies and public and private research
institutions.
Many of the companies
that we compete or may compete against in the future have significantly greater financial resources and expertise in research
and development, manufacturing, preclinical testing, conducting clinical trials, obtaining regulatory approvals and marketing
approved drugs than we do. Small or early-stage companies may also prove to be significant competitors, particularly through collaborative
arrangements with large and established companies. These competitors also compete with us in recruiting and retaining qualified
scientific and management personnel and establishing clinical trial sites and patient registration for clinical trials, as well
as in acquiring technologies complementary to, or that may be necessary for, our programs.
Our commercial opportunity
could be reduced or eliminated if our competitors develop and commercialize drugs that are safer, more effective, have fewer or
less severe side effects, are more convenient or are less expensive than any drugs that we may develop. Our competitors also may
obtain FDA or other comparable foreign regulatory approval for their drugs more rapidly than we may obtain approval for ours,
which could result in our competitors establishing a strong market position before we are able to enter the market. The key competitive
factors affecting the success of all of our product candidates, if approved, are likely to be their efficacy, safety, convenience,
price, the effectiveness of companion diagnostics in guiding the use of related therapeutics, the level of generic competition
and the availability of reimbursement from government and other third-party payors.
The FDA has granted orphan drug
status and a Regenerative Medicine Advanced Therapy (RMAT) designation to CAP-1002 for the treatment of DMD, but we may be unable
to maintain or receive the benefits associated with orphan drug status, including market exclusivity, or an RMAT designation.
Under the Orphan Drug
Act, the FDA may grant orphan designation to a drug or biologic intended to treat a rare disease or condition or for which there
is no reasonable expectation that the cost of developing and making available in the United States a drug or biologic for a disease
or condition will be recovered from sales in the United States for that drug or biologic. If a biological product that has orphan
drug designation subsequently receives the first FDA approval for the disease for which it has such designation, the product is
entitled to orphan product exclusivity, which means that the FDA may not approve any other applications, including a full Biologics
License Application, or BLA, to market the same biologic for the same indication for seven years, except in limited circumstances,
such as a showing of clinical superiority to the product with orphan drug exclusivity.
We have received orphan
drug status for CAP-1002 for the treatment of DMD, but exclusive marketing rights in the United States may be limited if we seek
approval for an indication broader than the orphan designated indication and may be lost if the FDA later determines that the
request for designation was materially defective or if we are unable to assure the availability of sufficient quantities of the
product to meet the needs of patients with the rare disease or condition. Even though we have obtained orphan drug designation
for CAP-1002 for a select indication, we may be unable to seek or obtain orphan drug designation for our future product candidates
and we may not be the first to obtain marketing approval for any particular orphan indication.
We have also obtained
an RMAT designation for CAP-1002 for the treatment of DMD. The RMAT designation program is intended to fulfill the Cures Act requirement
that the FDA facilitate an efficient development program for, and expedite review of, any drug that meets the following criteria:
(1) it qualifies as a RMAT, which is defined as a cell therapy, therapeutic tissue engineering product, human cell and tissue
product, or any combination product using such therapies or products, with limited exceptions; (2) it is intended to treat,
modify, reverse, or cure a serious or life-threatening disease or condition; and (3) preliminary clinical evidence indicates
that the drug has the potential to address unmet medical needs for such a disease or condition. Like breakthrough therapy designation,
RMAT designation provides potential benefits that include more frequent meetings with FDA to discuss the development plan for
the product candidate, and eligibility for rolling review and priority review. Products granted RMAT designation may also be eligible
for accelerated approval on the basis of a surrogate or intermediate endpoint reasonably likely to predict long-term clinical
benefit, or may be able to rely upon data obtained from a meaningful number of sites, including through expansion to additional
sites. RMAT designation does not change the standards for product approval, and there is no assurance that such designation will
result in expedited review or approval or that the approved indication will not be narrower than the indication covered by the
RMAT designation. Additionally, RMAT designation can be revoked if the criteria for eligibility cease to be met as clinical data
emerges.
Even if we were to obtain approval
for CAP-1002 for the treatment of DMD with the rare pediatric disease designation, the Rare Pediatric Disease Priority Review
Voucher Program may no longer be in effect at the time of such approval.
CAP-1002 has received
rare pediatric disease designation from the FDA for the treatment of DMD. The FDA generally define “a "rare pediatric
disease" as a serious or life-threatening disease that affects fewer than 200,000 individuals in the U.S. primarily under
the age of 18 years old. Under the FDA's Rare Pediatric Disease Priority Review Voucher program, upon the approval of a NDA or
BLA for the treatment of a rare pediatric disease, the sponsor of such application would be eligible for a Rare Pediatric Disease
Priority Review Voucher that can be used to obtain priority review for a subsequent NDA or BLA. The Priority Review Voucher may
be sold or transferred an unlimited number of times. A drug designated as a drug for a rare pediatric disease by December 18,
2020, and approved by December 18, 2022, may receive a voucher. This program has been subject to criticism, including by
the FDA, and it is possible that even if we obtain approval for CAP-1002 and qualify for such a Priority Review Voucher, the program
may no longer be in effect at the time of approval.
Providing product for use in third
party trials poses risks to our product candidates.
In addition to manufacturing
CAP-1002 for its own clinical trials, Capricor has agreed to provide CAP-1002 for investigational purposes in two clinical trials
sponsored by CSMC. The first trial is known as “Regression of Fibrosis and Reversal of Diastolic Dysfunction in HFpEF Patients
Treated with Allogeneic CDCs.” The second trial is known as “Pulmonary Arterial Hypertension treated with Cardiosphere-derived
Allogeneic Stem Cells.” In both studies, Capricor is providing the necessary number of doses and will receive a negotiated
amount of monetary compensation in exchange for doing so.
Providing product
for clinical trials sponsored by third parties poses significant risks for the Company as we will not have control over the conduct
of the trial even though we have used our commercially reasonable efforts to ensure that the investigative sites are contractually
bound to follow the protocol and other procedures established by Capricor. Additionally, even though the investigative sites have
experience in conducting clinical trials, any adverse event that may occur during the trial may have a negative impact on our
efforts to obtain regulatory approval for our product. There are no assurances that the clinical trial sites will perform the
studies in accordance with the protocol, the manuals provided by Capricor or the sponsor’s instructions, or otherwise act
in accordance with applicable law. There is no assurance that if research injuries are sustained, any insurance carrier will compensate
Capricor for any liabilities or other losses sustained by Capricor arising out of these injuries. Since we cannot predict
when the trials will be completed, there is a risk that product designated for the trials will have expired at the time they are
required. Additionally, there is a risk that our product may encounter some kind of contamination internally in our leased facility,
at our contracted shipping facility or in transit which may have an adverse effect on our business or operations.
Our products face a risk of failure
due to adverse immunological reactions.
A potential risk of
an allogeneic therapy such as that being tested by the Company with CAP-1002 is that patients might develop an immune response
to the cells being infused. Such an immune response may induce adverse clinical effects which would impact the safety and efficacy
of the Company’s products and the success of our trials. Additionally, if research subjects have pre-existing antibodies
or other immune sensitization to our cells, our cells and the therapy could potentially be rendered ineffective which could have
a negative impact on the regulatory pathway for our product as well as the viability for other potential indications. After a
patient in the HOPE-2 trial had a serious adverse event in the form of anaphylaxis, we put a voluntary hold on dosing in December 2018
to develop a plan to manage potential allergic reactions. The investigation suggests that the patient may have been allergic to
something contained in the investigational product, including possibly an excipient, or inactive ingredient, in the formulation.
To reduce the risk of future events, we initiated a pre-medication strategy commonly used by physicians to prevent and treat allergic
reactions. We cannot provide any assurances that this will not happen again in any future studies. If these or other reactions
continue to occur, it could have a material adverse impact on the effectiveness of the product, our ability to receive approval
of our product candidates, and could result in substantial delays, increased costs and potentially termination of the trial.
Our business faces significant government
regulation, and there is no guarantee that our product candidates will receive regulatory approval.
Our research and development
activities, preclinical studies, clinical trials, and manufacturing and marketing of our potential products are subject to extensive
regulation by the FDA and other regulatory authorities in the United States, as well as by regulatory authorities in other countries.
In the United States, our product candidates are subject to regulation as biological products or as combination biological products/medical
devices under the Federal Food, Drug and Cosmetic Act, the Public Health Service Act and other statutes, and as further provided
in the Code of Federal Regulations. Different regulatory requirements may apply to our products depending on how they are categorized
by the FDA under these laws. These regulations can be subject to substantial and significant interpretation, addition, amendment
or revision by the FDA and by the legislative process. The FDA may determine that we will need to undertake clinical trials beyond
those currently planned. Furthermore, the FDA may determine that results of clinical trials do not support approval for the product.
Similar determinations may be encountered in foreign countries. The FDA will continue to monitor products in the market after
approval, if any, and may determine to withdraw its approval or otherwise seriously affect the marketing efforts for any such
product. The same possibilities exist for trials to be conducted outside of the United States that are subject to regulations
established by local authorities and local law. Any such determinations would delay or deny the introduction of our product candidates
to the market and have a material adverse effect on our business, financial condition, and results of operations.
Drug manufacturers
are subject to ongoing periodic unannounced inspection by the FDA, the Drug Enforcement Agency, other federal agencies and corresponding
state agencies to ensure strict compliance with good manufacturing practices, and other government regulations and corresponding
foreign standards. We do not have control over third-party manufacturers’ compliance with these regulations and standards,
nor can we guarantee that we will maintain compliance with such regulations in regards to our own manufacturing processes. Other
risks include:
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regulatory authorities
may require the addition of labeling statements, specific warnings, a contraindication, or field alerts to physicians and
pharmacies;
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regulatory authorities
may withdraw their approval of the IND or the product or require us to take our approved products off the market;
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we may be required
to change the way the product is manufactured or administered, and we may be required to conduct additional clinical trials
or change the labeling of our products;
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we may be required
to change the way the product is manufactured or administered, and we may be required to conduct additional clinical trials
or change the labeling of our products;
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we will be required
to manufacture or retain the services of a commercial manufacturer to develop product suitable for commercial sale;
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we may have limitations
on how we promote our products; and
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we may be subject
to litigation or product liability claims.
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There are additional risks involved
in conducting clinical trials internationally.
If we decide to expand
one or more of our clinical trials to investigative sites in Europe or other countries outside of the United States, we will have
additional regulatory requirements that we will have to meet in connection with our manufacturing, distribution, use of data and
other matters. For example, if we decide to conduct our trials in Europe, we will have to either move our manufacturing facility
to a facility located in Europe, enter into an agreement with a European manufacturer to manufacture our product candidates for
us or enter into an agreement with a domestic manufacturer who maintains an acceptable cGMP facility. Any of those options would
involve a significant monetary investment, time delays, and increased risk and may impact the progress of our clinical trials
and regulatory approvals.
To the extent we conduct
business in the European Union, or EU, or receive information about EU residents, we will also have to comply with the EU General
Data Protection Regulation, or the GDPR, which was officially adopted in April 2016 and went into effect in May 2018.
The GDPR introduces new data protection requirements in the EU, as well as substantial fines for breaches of data protections
rules. The GDPR enhances data protection obligations for processors and controllers of personal data, including, for example,
expanded disclosures about how personal information is to be used, limitations on retention of information, mandatory data breach
notification requirements and onerous new obligations on services providers. Non-compliance with the GDPR may result in monetary
penalties of up to €20 million or 4% of worldwide revenue, whichever is higher. The GDPR and other changes in laws or regulations
associated with the enhanced protection of certain types of personal data, such as healthcare data or other sensitive information,
could greatly increase our cost of providing our products and services or even prevent us from offering certain services in jurisdictions
in which we operate.
Additionally, the
U.S. Foreign Corrupt Practices Act, or FCPA, prohibits U.S. corporations and their representatives from offering, promising, authorizing
or making payments to any foreign government official, government staff member, political party or political candidate in an attempt
to obtain or retain business abroad. The scope of the FCPA includes interactions with certain healthcare professionals in many
countries. Other countries have enacted similar anti-corruption laws and/or regulations. As we expand our business outside of
the United States, ensuring compliance with the FCPA and the laws of other countries will involve additional monetary and time
commitments on behalf of the Company.
Even if our product candidates receive
regulatory approval, we may still face future development and FDA regulatory difficulties.
Even if U.S. regulatory
approval is obtained, the FDA may still impose significant restrictions on a product’s indicated uses or marketing, or impose
ongoing requirements for potentially costly post-approval studies. If any of our products were granted accelerated approval, the
FDA could require post-marketing confirmatory trials to verify and describe the anticipated effect on irreversible morbidity or
mortality or other clinical benefit. FDA may withdraw approval of a drug or indication approved under the accelerated approval
pathway if any of the following were to occur: a trial required to verify the predicted clinical benefit of the product fails
to verify such benefit; other evidence demonstrates that the product is not shown to be safe or effective under the conditions
of use; the applicant fails to conduct any required post-approval trial of the drug with due diligence; or the applicant disseminates
false or misleading promotional materials relating to the product. In addition, the FDA currently requires as a condition for
accelerated approval the pre-approval of promotional materials, which could adversely impact the timing of the commercial launch
of the product.
Given the number of
recent high-profile adverse safety events with certain drug products, the FDA may require, as a condition of approval, costly
risk management programs, which may include safety surveillance, restricted distribution and use, patient education, enhanced
labeling, special packaging or labeling, expedited reporting of certain adverse events, pre-approval of promotional materials,
and restrictions on direct-to-consumer advertising. Furthermore, heightened Congressional scrutiny on the adequacy of the FDA’s
drug approval process and the FDA’s efforts to assure the safety of marketed drugs have resulted in the proposal of new
legislation addressing drug safety issues. If enacted, any new legislation could result in delays or increased costs during the
period of product development, clinical trials, and regulatory review and approval, as well as increased costs to assure compliance
with any new post-approval regulatory requirements. Any of these restrictions or requirements could force us to conduct costly
studies or increase the time for us to become profitable. For example, any labeling approved for any of our product candidates
may include a restriction on the term of its use, or it may not include one or more of our intended indications.
Our product candidates
will also be subject to ongoing FDA requirements for the labeling, packaging, storage, advertising, promotion, record-keeping,
and submission of safety and other post-market information on the drug. New issues may arise during a product lifecycle that did
not exist, or were unknown, at the time of product approval, such as adverse events of unanticipated severity or frequency, or
problems with the facility where the product is manufactured. Since approved products, manufacturers, and manufacturers’
facilities are subject to continuous review and periodic inspections, these new issues post-approval may result in voluntary actions
by Capricor or may result in a regulatory agency imposing restrictions on that product or us, including requiring withdrawal of
the product from the market or for use in a clinical trial. If our product candidates fail to comply with applicable regulatory
requirements, such as good manufacturing practices, a regulatory agency may:
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issue warning letters;
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require us to enter
into a consent decree, which can include imposition of various fines, reimbursements for inspection costs, required due dates
for specific actions, and penalties for noncompliance;
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impose other civil
or criminal penalties;
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suspend regulatory
approval;
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suspend any ongoing
clinical trials;
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refuse to approve
pending applications or supplements to approved applications filed by us;
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impose restrictions
on operations, including costly new manufacturing requirements; or
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seize or detain
products or require a product recall.
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In order to market
and commercialize any product candidate outside of the United States, we must establish and comply with numerous and varying regulatory
requirements of other countries regarding manufacturing, safety and efficacy. Approval procedures vary among countries and can
involve additional product testing and additional administrative review periods. The time required to obtain approval in other
countries might differ from that required to obtain FDA approval. The regulatory approval process in other countries may include
all of the risks detailed above regarding FDA approval in the United States as well as other risks. Regulatory approval in one
country does not ensure regulatory approval in another, but a failure or delay in obtaining regulatory approval in one country
may have a negative effect on the regulatory approval process in others. Failure to obtain regulatory approval in other countries,
or any delay or setback in obtaining such approval, could have the same adverse effects detailed above regarding FDA approval
in the United States. Such effects include the risks that our product candidates may not be approved for all indications requested,
which could limit the uses of our product candidates and have an adverse effect on product sales and potential royalties, and
that such approval may be subject to limitations on the indicated uses for which the product may be marketed or require costly,
post-marketing follow-up studies.
If we or current or future collaborators,
manufacturers, or service providers fail to comply with healthcare laws and regulations, we or they could be subject to enforcement
actions and substantial penalties, which could affect our ability to develop, market and sell our products and may harm our reputation.
Although we do not
currently have any products on the market, if our therapeutic candidates or clinical trials become covered by federal health care
programs, we will be subject to additional healthcare statutory and regulatory requirements and enforcement by the federal, state
and foreign governments of the jurisdictions in which we conduct our business. Healthcare providers, physicians and third-party
payors play a primary role in the recommendation and prescription of any therapeutic candidates for which we obtain marketing
approval. Our future arrangements with third party payors and customers may expose us to broadly applicable fraud and abuse, transparency,
and other healthcare laws and regulations that may constrain the business or financial arrangements and relationships through
which we market, sell and distribute our therapeutic candidates for which we obtain marketing approval. Restrictions under applicable
federal and state healthcare laws and regulations include, but are not limited to, the following:
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the
U.S. federal Anti-Kickback Statute, which prohibits, among other things, persons from
soliciting, receiving, offering or providing remuneration, directly or indirectly, to
induce either the referral of an individual for a healthcare item or service, or the
purchasing or ordering of an item or service, for which payment may be made, in whole
or in part, under a federal healthcare program such as Medicare or Medicaid. The term
remuneration has been broadly interpreted to include anything of value. The Patient Protection
and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act
of 2010, or collectively the Affordable Care Act, or the ACA, among other things, amended
the intent requirement of the federal Anti-Kickback Statute to clarify that a person
or entity need not have actual knowledge of this statute or specific intent to violate
it. The Anti-Kickback Statute applies to arrangements between pharmaceutical manufacturers
on the one hand and individuals, such as healthcare providers and prescribers, patients,
purchasers, pharmacy benefit managers, group purchasing organizations, third-party payors,
wholesalers and distributors on the other hand, including, for example, consulting/speaking
arrangements, discount and rebate offers, certain pricing arrangements, grants, charitable
contributions, and patient support offerings, among others. 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. Violations of the federal Anti-Kickback Statute may result in significant
civil monetary penalties for each violation, plus up to three times the remuneration
involved. Civil penalties for such conduct can further be assessed under the federal
False Claims Act. Violations can also result in criminal penalties, including criminal
fines and imprisonment. Similarly, violations can result in exclusion from participation
in government healthcare programs, including Medicare and Medicaid;
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the federal False Claims Act
imposes civil penalties, including through civil whistleblower or qui tam actions, against
individuals or entities for knowingly presenting, or causing to be presented, to the
federal government, claims for payment that are false or fraudulent, knowingly making,
using or causing to be made or used, a false record or statement material to a false
or fraudulent claim, or knowingly making or causing to be made, a false statement to
avoid, decrease or conceal an obligation to pay money to the federal government. In addition,
the government may assert that a claim including items or services resulting from a violation
of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes
of the False Claims Act. When an entity is determined to have violated the federal civil
False Claims Act, the government may impose significant civil fines and penalties for
each false claim, plus treble damages, and exclude the entity from participation in Medicare,
Medicaid and other federal healthcare programs. As a result of a modification made by
the Fraud Enforcement and Recovery Act of 2009, a claim includes “any request or
demand” for money or property presented to the U.S. government. In addition, manufacturers
can be held liable under the federal False Claims Act even when they do not submit claims
directly to government payors if they are deemed to “cause” the submission
of false or fraudulent claims
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the Federal Criminal Statute
on False Statements Relating to Health Care Matters makes it a crime to knowingly and
willfully falsify, conceal, or cover up a material fact, make any materially false, fictitious,
or fraudulent statements or representations, or make or use any materially false writing
or document knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry in connection with the delivery of or payment for healthcare benefits,
items, or services;
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the
Federal Civil Monetary Penalties Law authorizes the imposition of substantial civil monetary
penalties against an entity, such as a pharmaceutical manufacturer, that engages in activities
including, among others (1) knowingly presenting, or causing to be presented, a
claim for services not provided as claimed or that is otherwise false or fraudulent in
any way; (2) arranging for or contracting with an individual or entity that is excluded
from participation in federal health care programs to provide items or services reimbursable
by a federal health care program; (3) violations of the federal Anti-Kickback Statute;
or (4) failing to report and return a known overpayment;
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the Health Insurance Portability
and Accountability Act, or HIPAA, includes a fraud and abuse provision referred to as
the HIPAA All-Payor Fraud Law, which imposes criminal and civil liability for executing
a scheme to defraud any healthcare benefit program, or knowingly and willfully falsifying,
concealing or covering up a material fact or making any materially false statement in
connection with the delivery of or payment for healthcare benefits, items or services.
Similar to the federal Anti-Kickback Statute, a person or entity does not need to have
actual knowledge of the statute or specific intent to violate it in order to have committed
a violation;
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HIPAA, as amended by the Health
Information Technology for Economic and Clinical Health Act, or HITECH, and its implementing
regulations, which impose obligations on certain covered entity healthcare providers,
health plans, and healthcare clearinghouses as well as their business associates that
perform certain services involving the use or disclosure of individually identifiable
health information, including mandatory contractual terms, with respect to safeguarding,
the privacy, security, and transmission of individually identifiable health information,
and require notification to affected individuals and regulatory authorities of certain
breaches of security of individually identifiable health information;
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federal and state consumer
protection and unfair competition laws, which broadly regulate marketplace activities
and activities that potentially harm consumers;
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the federal Physician Payments
Sunshine Act, which 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 (with certain exceptions) to report annually to the government
information related to payments or other “transfers of value” made to, at
the request of, or on behalf of “covered recipients,” which include physicians,
certain other healthcare providers, and teaching hospitals, and requires applicable manufacturers
and group purchasing organizations to report annually to the government ownership and
investment interests held by physicians and their immediate family members; and
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analogous
state laws and regulations, such as, state anti-kickback and false claims laws potentially
applicable to sales or marketing arrangements and claims involving healthcare items or
services reimbursed by nongovernmental third party payors, including private insurers;
and some state laws require pharmaceutical companies to comply with the pharmaceutical
industry’s voluntary compliance guidelines and the relevant compliance guidance
promulgated by the federal government in addition to requiring drug manufacturers to
report information related to payments to physicians and other healthcare providers or
marketing expenditures, and state laws governing the privacy and security of health information
in certain circumstances, many of which differ from each other in significant ways and
often are not preempted by HIPAA, thus complicating compliance efforts.
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The scope and enforcement
of each of these laws is uncertain and subject to rapid change in the current environment of healthcare reform, especially in
light of the lack of applicable precedent and regulations. Federal and state enforcement bodies have recently increased their
scrutiny of interactions between healthcare companies and healthcare providers, which has led to a number of investigations, prosecutions,
convictions and settlements in the healthcare industry. Responding to investigations can be time-and resource-consuming and can
divert management’s attention from the business. Any such investigation or settlement could increase our costs or otherwise
have an adverse effect on our business.
Efforts to ensure
that our current and future business arrangements with third parties comply with applicable healthcare laws and regulations could
involve substantial costs. If our operations are found to be in violation of any such requirements, we may be subject to significant
penalties, including the imposition of civil, criminal or administrative penalties, monetary fines, damages, disgorgement, individual
imprisonment, the curtailment or restructuring of our operations, or exclusion from participation in government contracting, healthcare
reimbursement or other government programs, including Medicare and Medicaid, any of which could adversely affect our financial
results. If our operations are found to be in violation of any of these or any other health regulatory laws that may apply to
us, we may be subject to significant penalties, including the imposition of significant civil, criminal and administrative penalties,
damages, monetary fines, disgorgement, individual imprisonment, possible exclusion from participation in Medicare, Medicaid and
other federal healthcare programs or similar programs in other countries or jurisdictions, contractual damages, reputational harm,
diminished profits and future earnings, additional reporting requirements and oversight if we become subject to a corporate integrity
agreement or similar agreement and curtailment or restructuring of our operations, any of which could adversely impact our ability
to operate our business and our results of operations.
Although effective
compliance programs can mitigate the risk of investigation and prosecution for violations of these laws, these risks cannot be
entirely eliminated. Any action against us for an alleged or suspected violation, even the mere issuance of a subpoena or the
fact of an investigation alone, regardless of the merit, could result in negative publicity, a drop in our share price, or other
harm to our business, financial condition and results of operations. Defending against any such actions could cause us to incur
significant legal expenses and could divert our management’s attention from the operation of our business, even if our defense
is successful. In addition, achieving and sustaining compliance with applicable laws and regulations may be costly to us in terms
of money, time and resources.
Any drugs we develop may become
subject to unfavorable pricing regulations, third party coverage and reimbursement practices or healthcare reform initiatives,
thereby harming our future business prospects.
The regulations that
govern marketing approvals, pricing, coverage and reimbursement for new drugs vary widely from country to country. Some countries
require approval of the sale price of a drug before it can be marketed. In many countries, the pricing review period begins after
marketing or product licensing approval is granted. In some foreign markets, prescription pharmaceutical pricing remains subject
to continuing governmental control even after initial approval is granted. Although we intend to monitor these regulations, our
programs are currently in earlier stages of development and we will not be able to assess the impact of price regulations for
a number of years. As a result, we might obtain regulatory approval for a product in a particular country, but then be subject
to price regulations that delay our commercial launch of the product and negatively impact the revenues we are able to generate
from the sale of the product in that country.
Our ability to commercialize
any products successfully also will depend in part on the extent to which coverage and reimbursement for these products and related
treatments will be available from government health administration authorities, private health insurers and other organizations.
However, there may be significant delays in obtaining coverage for newly-approved drugs. Moreover, eligibility for coverage does
not necessarily signify that a drug will be reimbursed in all cases or at a rate that covers our costs, including research, development,
manufacture, sale and distribution costs. Also, interim payments for new drugs, if applicable, may be insufficient to cover our
costs and may not be made permanent. Thus, even if we succeed in bringing one or more products to the market, these products may
not be considered medically necessary or cost-effective, and the amount reimbursed for any products may be insufficient to allow
us to sell our products on a competitive basis. Because our programs are in early stages of development, we are unable at this
time to determine their cost effectiveness or the likely level or method of reimbursement. In addition, obtaining coverage and
reimbursement approval of a product from a government or other third-party payor is a time-consuming and costly process that could
require us to provide to each payor supporting scientific, clinical and cost-effectiveness data for the use of our product on
a payor-by-payor basis, with no assurance that coverage and adequate reimbursement will be obtained. A payor’s decision
to provide coverage for a product does not imply that an adequate reimbursement rate will be approved. Further, one payor’s
determination to provide coverage for a product does not assure that other payors will also provide coverage for the product.
Adequate third-party reimbursement may not be available to enable us to maintain price levels sufficient to realize an appropriate
return on our investment in product development. If reimbursement is not available or is available only at limited levels, we
may not be able to successfully commercialize any product candidate that we successfully develop.
Increasingly, the
third-party payors who reimburse patients or healthcare providers, such as government and private insurance plans, are seeking
greater upfront discounts, additional rebates and other concessions to reduce the prices for pharmaceutical products. If the price
we are able to charge for any products we develop, or the reimbursement provided for such products, is inadequate in light of
our development and other costs, our return on investment could be adversely affected.
We currently expect
that certain drugs we develop may need to be administered under the supervision of a physician on an outpatient basis. Under currently
applicable U.S. law, certain drugs that are not usually self-administered (including injectable drugs) may be eligible for coverage
under Medicare through Medicare Part B. Specifically, Medicare Part B coverage may be available for eligible beneficiaries
when the following, among other requirements have been satisfied:
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the product is reasonable
and necessary for the diagnosis or treatment of the illness or injury for which the product is administered according to accepted
standards of medical practice;
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the product is typically
furnished incident to a physician's services;
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the indication for
which the product will be used is included or approved for inclusion in certain Medicare-designated pharmaceutical compendia
(when used for an off-label use); and
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the product has
been approved by the FDA.
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Average prices for
drugs may be reduced by mandatory discounts or rebates required by government healthcare programs or private payors and by any
future relaxation of laws that presently restrict imports of drugs from countries where they may be sold at lower prices than
in the U.S. Reimbursement rates under Medicare Part B would depend in part on whether the newly approved product would be
eligible for a unique billing code. Self-administered, outpatient drugs are typically reimbursed under Medicare Part D, and
drugs that are administered in an inpatient hospital setting are typically reimbursed under Medicare Part A under a bundled
payment. It is difficult for us to predict how Medicare coverage and reimbursement policies will be applied to our products in
the future and coverage and reimbursement under different federal healthcare programs are not always consistent. Medicare reimbursement
rates may also reflect budgetary constraints placed on the Medicare program.
Third party payors
often rely upon Medicare coverage policies and payment limitations in setting their own reimbursement rates. These coverage policies
and limitations may rely, in part, on compendia listings for approved therapeutics. Our inability to promptly obtain relevant
compendia listings, coverage, and adequate reimbursement from both government-funded and private payors for new drugs that we
develop and for which we obtain regulatory approval could have a material adverse effect on our operating results, our ability
to raise capital needed to commercialize products and our financial condition.
There have been, and
continue to be, several legislative and regulatory changes and proposed changes regarding the healthcare system that could prevent
or delay marketing approval of product candidates, restrict or regulate post approval activities and affect our ability to profitably
sell any product candidates for which we obtain marketing approval. Among policy makers and payors in the United States there
is significant interest in promoting changes in healthcare systems with the stated goals of containing healthcare costs, improving
quality and/or expanding access and the pharmaceutical industry has been a particular focus of these efforts and has been significantly
affected by major legislative initiatives. We expect that these and other healthcare reform measures that may be adopted in the
future, may result in more rigorous coverage criteria and lower reimbursement, and in additional downward pressure on the price
that we receive for any approved product. Any reduction in reimbursement from Medicare or other government-funded programs may
result in a similar reduction in payments from private payors. The implementation of cost containment measures or other healthcare
reforms may prevent us from being able to generate revenue, attain profitability or commercialize our drugs, once marketing approval
is obtained.
A number of legislative
and regulatory changes in the healthcare system in the U.S. and other major healthcare markets have been proposed, and such efforts
have expanded substantially in recent years. These developments could, directly or indirectly, affect our ability to sell our
products, if approved, at a favorable price. For example, in the U.S., in 2010, the U.S. Congress passed the ACA, a sweeping law
intended to broaden access to health insurance, reduce or constrain the growth of health spending, enhance remedies against fraud
and abuse, add new transparency requirements for the healthcare and health insurance industries, impose new taxes and fees on
the healthcare industry and impose additional policy reforms.
The ACA substantially
changed the way healthcare is financed by both the government and private insurers, and significantly impacts the U.S. pharmaceutical
industry. The ACA, among other things: (1) introduced a new average manufacturer price definition for drugs and biologics
that are inhaled, infused, instilled, implanted or injected and not generally dispensed through retail community pharmacies; (2) increased
the minimum Medicaid rebates owed by manufacturers under the Medicaid Drug Rebate Program, or MDRP; (3) established a branded
prescription drug fee that pharmaceutical manufacturers of branded prescription drugs must pay to the federal government; (4) expanded
the list of covered entities eligible to participate in the 340B drug pricing program by adding new entities to the program; (5) established
a new Medicare Part D coverage gap discount program, in which manufacturers must agree to offer point-of-sale discounts (which
through subsequent legislative amendments, was increased to 70% from 50% starting in 2019) off negotiated prices of applicable
branded drugs to eligible beneficiaries during their coverage gap period, as a condition for the manufacturer’s outpatient
drugs to be covered under Medicare Part D; (6) extended manufacturers’ MDRP rebate liability to covered drugs
dispensed to individuals who are enrolled in Medicaid managed care organizations; (7) expanded eligibility criteria for Medicaid
programs by, among other things, allowing states to offer Medicaid coverage to additional individuals, including individuals with
income at or below 133% of the federal poverty level, thereby potentially increasing manufacturers’ Medicaid rebate liabilities;
(8) created a licensure framework for follow-on biologic products; and (9) established a Center for Medicare and Medicaid
Innovation at the Centers for Medicare and Medicaid Services to test innovative payment and service delivery models to improve
patient care and lower costs.
The framework of the
ACA and other healthcare reforms continues to evolve as a result of executive, legislative, regulatory, and administrative developments;
in addition, healthcare-related litigation and judicial proceedings contribute to regulatory uncertainty. While Congress has not
passed legislation to comprehensively repeal the ACA, the Tax Cuts and Jobs Act of 2017, included a provision that, effective
January 1, 2019, changed to $0 the tax-based shared responsibility payment imposed by the ACA on certain individuals who
fail to maintain qualifying health coverage for all or part of a year, which is commonly referred to as the “individual
mandate.” In December 2018, a federal district court in Texas ruled that the individual mandate, with the penalty that
was changed to $0 effective January 1, 2019, was unconstitutional and, further, could not be severed from the other provisions
of the ACA. As a result, the court ruled that all of the provisions of the ACA were invalid. The Fifth Circuit Court of Appeals
affirmed the district court’s ruling that the individual mandate was unconstitutional as a result of the amendment changing
the penalty amount to $0, but it remanded the case back to the district court for further analysis of whether the individual mandate
could be severed from the ACA. The Fifth Circuit’s decision was appealed to the Supreme Court of the United States, which
granted certiorari on these issues and conducted oral argument in November 2020. The U.S. Supreme Court is expected to issue
its decision in 2021. We cannot predict the full impact of this forthcoming decision or other efforts to challenge, repeal, replace,
or alter the implementation of the ACA or other healthcare laws, regulations, or reforms.
Other legislative
changes have been proposed and adopted since the ACA was enacted. These changes include aggregate reductions to Medicare payments
to providers of 2% per fiscal year pursuant to the Budget Control Act of 2011 and subsequent laws, which began in 2013 and will
remain in effect through 2030, with the exception of a temporary suspension from May 1, 2020 through March 31, 2021
enacted as part of the Coronavirus Aid, Relief, and Economic Security, or the CARES Act, unless additional Congressional action
is taken. Additionally, the American Taxpayer Relief Act of 2012, among other things, further reduced Medicare payments to several
types of providers, including hospitals, imaging centers and cancer treatment centers, and increased the statute of limitations
period for the government to recover overpayments to providers from three to five years. New laws may result in additional reductions
in Medicare and other healthcare funding, which may materially adversely affect customer demand and affordability for our products
and, accordingly, the results of our financial operations.
In addition, effective
January 1, 2019, the Bipartisan Budget Act of 2018, among other things, further amended portions of the Social Security Act
implemented as part of the ACA to increase from 50% to 70% the point-of-sale discount that pharmaceutical manufacturers participating
in the Coverage Gap Discount Program must provide to eligible Medicare Part D beneficiaries during the coverage gap phase
of the Part D benefit, commonly referred to as the “donut hole,” and to reduce standard beneficiary cost sharing
in the coverage gap from 30% to 25% in most Medicare Part D plans. In the future, there may be additional challenges and/or
amendments to the ACA. It remains to be seen precisely what any new legislation will provide, when or if it will be enacted, and
what impact it will have on the availability and cost of healthcare items and services, including drug products.
In addition, in recent
years the pricing and costs of prescription pharmaceuticals has been the subject of considerable discussion in the United States.
A number of federal reports and inquiries have focused on these issues, and various legislative and regulatory provisions have
been proposed and enacted at the federal and state level that seek to bring more transparency to product pricing, reduce the cost
of prescription drugs under Medicare, review the relationship between pricing and manufacturer patient programs, and reform government
program reimbursement methodologies for drug products. On December 21, 2020, Congress passed a $900 billion U.S. coronavirus
relief and government appropriations legislation, or the Act, which contains several important new drug price reporting and transparency
measures that could result in additional transparency with respect to manufacturers’ prescription drug prices. Among other
things, the Act includes provisions requiring Medicare Part D prescription drug plan, or PDP, sponsors and Medicare Advantage
organizations, or MAOs, to implement tools to display Medicare Part D prescription drug benefit information in real time
and provisions requiring group and health insurance issuers offering health insurance coverage to report information on certain
pharmacy benefit and drug costs to the Secretaries of HHS, Labor, and the Treasury. We believe that the efforts of governments
and third-party payors to contain or reduce the cost of healthcare and legislative and regulatory proposals to broaden the availability
of healthcare will continue to affect the business and financial condition of pharmaceutical and biopharmaceutical companies.
Further, the Biden
Administration and the new Congress may pursue additional and potentially significant changes to the current healthcare laws,
regulations, and related guidance. The Biden Administration issued a memorandum on January 20, 2021 (President Biden’s
inauguration day) that, like similar memoranda issued by prior incoming Administrations, directed federal agencies to take steps
to halt, delay, or conduct further review of certain regulatory actions taken by the Trump Administration, such as those that
had not taken effect by inauguration day. The Biden Administration’s review is ongoing and we cannot predict which regulatory
actions it may or may not affect. We also cannot predict what other healthcare reforms will ultimately be implemented at the federal
or state level or the effect of any future legislation or regulation and, accordingly, face uncertainties that might result from
additional reforms.
Our risk mitigation measures cannot
guarantee that we effectively manage all operational risks and that we are in compliance with all potentially applicable U.S.
federal and state regulations and all potentially applicable foreign regulations and/or other requirements.
The development, manufacturing,
distribution, pricing, sale, marketing and reimbursement of our product candidates, together with our general operations, are
subject to extensive federal and state regulation in the United States and may be subject to extensive regulation in foreign countries.
In addition, our business is complex, involves significant operational risks and includes the use of third parties to conduct
business. While we intend to implement numerous risk mitigation measures to comply with such regulations in this complex operating
environment, we cannot guarantee that we will be able to effectively mitigate all operational risks. We cannot guarantee that
we, our employees, our consultants, our contractors or other third parties are or will be in compliance with all potentially applicable
U.S. federal and state regulations and/or laws, and all potentially applicable foreign regulations and/or laws. If we fail to
adequately mitigate our operational risks or if we or our agents fail to comply with any of those regulations or laws, a range
of actions could result, including, but not limited to, the termination of clinical trials, the failure to approve a product candidate,
restrictions on our products or manufacturing processes, withdrawal of our products from the market, significant fines, exclusion
from government healthcare programs or other sanctions or litigation. Any of these occurrences could have a material and adverse
effect on our business and results of operations.
Our employees and consultants may
engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.
We are exposed to
the risk of employee or consultant fraud or other misconduct. Misconduct by our employees or consultants could include intentional
failures to comply with FDA regulations, provide accurate information to the FDA, comply with manufacturing standards, comply
with federal and state healthcare fraud and abuse laws and regulations, report financial information or data accurately or disclose
unauthorized activities to us. Employee and consultant misconduct could involve the improper use of information obtained in the
course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. It is not always possible
to identify and deter such misconduct, and the precautions we take to detect and prevent this activity may not be effective in
controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits
stemming from a failure to be in compliance with such laws or regulations. If any such actions are instituted against us and we
are not successful in defending ourselves or asserting our rights, those actions could have a material adverse effect on our business,
financial condition and results of operations, and result in the imposition of significant fines or other sanctions against us.
Our ability to obtain reimbursement
or funding for our programs from the federal government may be impacted by possible reductions in federal spending.
U.S. federal government
agencies currently face potentially significant spending reductions. For example, as a result of the Budge Control Act of 2011,
the Bipartisan Budget Act, or BBA, and the CARES Act, an annual 2% reduction to Medicare payments took effect on April 1,
2013, and has been extended through 2030 (though the reduction was temporarily suspended from May 1, 2020 through March 31,
2021 in connection with COVID-19 relief related legislation). The U.S. federal budget remains in flux, however, which could, among
other things, result in a cut to Medicare payments to providers and otherwise affect federal spending on clinical and preclinical
research and development. The Medicare program is frequently mentioned as a target for spending cuts. The full impact on our business
of any future cuts in Medicare or other programs is uncertain. In addition, we cannot predict any impact which the actions of
President Biden’s administration and the U.S. Congress may have on the federal budget. Following the most recent federal
elections, Congress has again focused on reducing the cost of drugs and other medical treatments. If federal spending is reduced,
anticipated budgetary shortfalls may also impact the ability of relevant agencies, such as the FDA or the National Institutes
of Health, to continue to function at current levels. Amounts allocated to federal grants and contracts may be reduced or eliminated.
These reductions may also impact the ability of relevant agencies to timely review and approve drug research and development,
manufacturing, and marketing activities, which may delay our ability to develop, market and sell any products we may develop.
Vaccines carry unique risks and
uncertainties, which could have a negative impact on future results of operations.
We are developing
vaccine candidates using our exosome technologies. The successful development, testing, manufacturing and commercialization
of vaccines is a long, complex, expensive and uncertain process. There are unique risks and uncertainties associated with
vaccines, including:
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There may be limited
access to, and supply of, normal and diseased tissue samples, cell lines, media pathogens, bacteria, viral strains, synthesized
nucleic acids, including mRNA and other biological materials. In addition, government regulations in multiple jurisdictions,
such as the United States and the EU, could result in restricted access to, or transport or use of, such materials. If the
Company in unable to access sufficient sources of such materials, or if tighter restrictions are imposed on the use of such
materials, the Company may not be able to conduct research or product development activities as planned and may incur additional
costs.
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The development,
manufacturing and marketing of vaccines are subject to regulation by the FDA, the EMA and other regulatory bodies that are
often more complex and extensive than the regulations applicable to other pharmaceutical products. For example, in the United
States, a BLA, including both preclinical and clinical trial data and extensive data regarding the manufacturing procedures,
is required for human vaccine candidates, and FDA approval is generally required for the release of each manufactured commercial
lot.
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Vaccines are frequently
costly to manufacture because production ingredients are inactive biological materials derived from virus, animals, or plants
and most biologics and vaccines cannot be made synthetically. In particular, keeping up with the demand for vaccines may be
difficult due to the complexity of producing vaccines.
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Risks Related
to the Manufacturing of our Product Candidates
We have limited manufacturing capability
and may not be able to maintain our manufacturing licenses.
We presently maintain
our laboratories, research and manufacturing facilities in leased premises at CSMC in Los Angeles, California. In that portion
of the leased premises where we manufacture CAP-1002 and plan to manufacture our exosome technologies, including our exosome-mRNA
vaccine, we believe that we follow good manufacturing practices sufficient for an investigational stage product, but it is not
a cGMP approved facility and would not be adequate for manufacturing product for commercial use. Capricor manufactured CAP-1002
in this facility for our previous clinical studies as well as our HOPE-2 clinical trial. In addition to manufacturing CAP-1002
for its own clinical trials, Capricor has agreed to provide CAP-1002 for investigational purposes in two clinical trials sponsored
by CSMC.
Our plans to use this
facility for future trials could change if we decide to expand any of our clinical trials to include international sites, such
as in Europe or if we fail to meet the specifications necessary to produce our product in a qualified manner. Currently, we also
intend to utilize our premises at CSMC to develop and manufacture our exosomes technologies. Currently, our Facilities Lease pertaining
to our research and development facility is scheduled to expire on July 31, 2021. We have an additional 1-year option enabling
us to extend the term of our Facilities Lease to July 31, 2022. There can be no assurance that the Facilities Lease for the
manufacturing space will be continued beyond July 31, 2022. If the Facilities Lease with CSMC is terminated or expires, we
would have to secure alternative facilities in which to manufacture our products, which would involve a significant monetary investment
and would negatively impact the progress of our clinical trials and regulatory approvals. At this time, we are actively considering
new facilities for our research, development and/or manufacturing activities or the possible extension of our current lease.
If we were to initiate
a Phase III study for DMD, we are unsure at this time if the FDA would allow us to produce doses in our current facility or whether
the FDA would require us to use a cGMP facility. If we were required to use a cGMP facility to produce product for a Phase III
study, it may result in delays and significant expenses which would have a negative impact on our business and product development.
In 2020, we initiated
a technology transfer with Lonza Houston, Inc., a leading global contract manufacturing organization to prepare for commercial
or possibly late-stage clinical manufacturing of CAP-1002.
We are required to
obtain and maintain certain licenses in connection with our manufacturing facilities and activities. We have been issued a Manufacturing
License and a Tissue Bank License from the State of California. There is no guarantee that any licenses issued to us will not
be revoked or forfeited by operation of law or otherwise. If we were denied any required license or if any of our licenses were
to be revoked or forfeited, we would suffer significant harm. Additionally, if a serious adverse event in any of our clinical
trials were to occur during the period in which any required license was not in place, we could be exposed to additional liability
if it were determined that the event was due to our fault and we had not secured the required license. Other states may impose
additional licensing requirements upon us which, until obtained, would limit our ability to conduct our trials in such states.
We obtain the donor
hearts from which our CDCs are manufactured from organ procurement organizations, or OPOs. There is no guarantee that the OPOs
which currently provide donor hearts to us will be able to continue to supply us with donor hearts in the future or, in that case,
that an alternative OPO will be available to us. If those OPOs or an alternative OPO is not able or willing to supply us with
donor hearts, we would be unable to produce our CDCs or exosomes and the development of our lead product candidates would be significantly
impaired and possibly terminated. Additionally, OPOs are subject to regulations of various government agencies. There is no guarantee
that laws and regulations pursuant to which our OPOs provide donor hearts will not change, making it more difficult or even impossible
for the OPOs to continue to supply us with the hearts we need to produce our product.
We have no prior experience in manufacturing
products for large clinical trials or commercial use.
Our manufacturing
experience has been limited to manufacturing CAP-1002 for the ALLSTAR, DYNAMIC, HOPE-Duchenne, HOPE-2, and INSPIRE clinical trials,
and the ongoing CSMC trials. Our experience in the manufacturing of exosomes is limited to producing product for preclinical use.
We have no prior history or experience in manufacturing our allogeneic product or any other product for any other clinical use
and no experience manufacturing any product for large clinical trials or commercial use. Our product candidates have not previously
been tested in any large trials to show safety or efficacy, nor are they available for commercial use. We face risks of manufacturing
failures and risks of making products that are not proven to be safe or effective.
We are in the early
stages of technology transfer of our CAP-1002 product with Lonza Houston, Inc. We can provide no assurances that they will
be able to meet product demand for potential late-stage clinical trials or commercial use.
We are subject to a number of manufacturing
risks, any of which could substantially increase our costs and limit supply of our product candidates.
The process of manufacturing
our product candidates is complex, highly regulated, and subject to several risks. For example, the process of manufacturing our
product candidates is extremely susceptible to product loss due to contamination, equipment failure or improper installation or
operation of equipment, or vendor or operator error. Even minor deviations from normal manufacturing processes for any of our
product candidates could result in reduced production yields, product defects, and other supply disruptions. If microbial, viral,
or other contaminations are discovered in our product candidates or in the manufacturing facilities in which our product candidates
are made, such manufacturing facilities may need to be closed for an extended period of time to investigate and remedy the contamination.
In addition, the manufacturing facilities in which our product candidates are made could be adversely affected by supply chain
issues, equipment failures, labor shortages, natural disasters, power failures and numerous other factors.
If we continue with the development
of CAP-1002 or our exosome technologies, we may need to rely exclusively on third parties to formulate and manufacture these product
candidates and provide us with the devices and other products necessary to administer such a product.
We have not established
our own manufacturing facilities sufficient for the production of CAP-1002 or our exosome technologies for commercial purposes.
While we plan to potentially utilize our currently manufactured product for a potential Phase III trial, there is no assurance
that the FDA will not require that the product used in the Phase III trial be manufactured under cGMP conditions. Also, our resources
and expertise to formulate or manufacture this product candidate on a large or commercial scale basis are limited. In 2020, we
initiated a technology transfer with Lonza Houston, Inc., to prepare for commercial or possibly late-stage clinical manufacturing
of CAP-1002. Additionally, if the field of mRNA and other nucleic acid medicines continues to expand, we may encounter increasing
competition for these supplies, materials and services. Demand for third-party manufacturing or testing facilities may grow at
a faster rate than their existing capacity, which could disrupt our ability to find and retain third-party manufacturers capable
of producing sufficient quantities of such raw materials, components, parts, and consumables required to manufacture our exosome-based
RNA products. If CAP-1002 or any of our exosome technologies receives FDA approval, we may need to rely on one or more third-party
contractors to manufacture supplies of these drug products which may cause delays in our ability to sell commercially. Our current
and anticipated future reliance on a limited number of third-party manufacturers exposes us to the following risks:
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We may be unable
to identify manufacturers needed to manufacture our product candidates on acceptable terms or at all, because the number of
potential manufacturers is limited, and subsequent to approval of an NDA or BLA, the FDA must approve any replacement contractor.
This approval would require new testing and compliance inspections. In addition, a new manufacturer may have to be educated
in, or develop substantially equivalent processes for, production of our products or the devices after receipt of FDA approval,
if any, FDA may also exercise oversight over manufacturing facilities for products authorized under an EUA.
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Our third-party
manufacturers may not be able to formulate and manufacture our drugs in the volume and of the quality required to meet our
clinical and commercial needs, if any.
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Our third-party
manufacturers may not be able to manufacture or supply us with sufficient quantities of acceptable materials necessary for
the development or use of our product candidates.
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Our
future contract manufacturers may not perform as agreed or may not remain in the contract manufacturing business for the time
required to supply our clinical trials or to successfully produce, store, and distribute our products or the materials needed
to manufacture or utilize our product candidates.
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Our
contract manufacturers may elect to terminate our agreements with them.
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Drug
manufacturers are subject to ongoing periodic unannounced inspection by the FDA, the Drug Enforcement Agency, and corresponding
state agencies to ensure strict compliance with good manufacturing practices and other government regulations and corresponding
foreign standards. We do not have control over third-party manufacturers’ compliance with these regulations and standards.
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Each of these risks
could delay our clinical trials, the approval, if any, of our product candidates by the FDA, or the commercialization of our product
candidates, or result in higher costs or deprive us of potential product revenues.
The third parties we use in the
manufacturing process for our product candidates may fail to comply with cGMP regulations.
If we decide to transfer
the manufacturing of our product candidates for future clinical trials or for commercial supply, our contract manufacturers will
be required to produce our drug products in compliance with cGMP. These contract manufacturers are subject to periodic unannounced
inspections by the FDA and corresponding state and foreign authorities to ensure strict compliance with cGMP and other applicable
government regulations and corresponding foreign requirements. We do not have control over a third-party manufacturer’s
compliance with these regulations and requirements. In addition, changes in cGMP could negatively impact the ability of our contract
manufacturers to complete the manufacturing process of our product candidates in a compliant manner on the schedule we require
for clinical trials or for potential commercial use. The failure to achieve and maintain high quality compliance, including failure
to detect or control anticipated or unanticipated manufacturing errors, could result in patient injury or death or product recalls.
Any difficulties or delays in our contractors’ manufacturing and supply of product candidates, or any failure of our contractors
to maintain compliance with the applicable regulations and requirements could increase our costs, make us postpone or cancel clinical
trials, prevent or delay regulatory approvals by the FDA and corresponding state and foreign authorities, prevent the import and/or
export of our products, cause us to lose revenue, result in the termination of the development of a product candidate, or have
our product candidates recalled or withdrawn from use.
Risks Related to Our Intellectual Property
We may face uncertainty and difficulty
in obtaining and enforcing our patents and other proprietary rights.
Our success will depend
in large part on our ability to obtain, maintain, and defend patents on our product candidates, obtain licenses to use third-party
technologies, protect our trade secrets and operate without infringing the proprietary rights of others. Legal standards regarding
the scope of claims and validity of biotechnology patents are uncertain and evolving. There can be no assurance that our pending,
in-licensed or owned patent applications will be approved, or that challenges will not be instituted against the validity or enforceability
of any patent licensed-in or owned by us. Additionally, we have entered into various confidentiality agreements with employees
and third parties. There is no assurance that such agreements will be honored by such parties or enforced in whole or part by
the courts. The cost of litigation to uphold the validity and prevent infringement of a patent is substantial. Furthermore, there
can be no assurance that others will not independently develop substantially equivalent technologies not covered by patents to
which we have rights or obtain access to our know-how. In addition, the laws of certain countries may not adequately protect our
intellectual property. Our competitors may possess or obtain patents on products or processes that are necessary or useful to
the development, use, or manufacture of our product candidates.
There can also be
no assurance that our proposed technology will not infringe upon patents or proprietary rights owned by others, with the result
that others may bring infringement claims against us and require us to license such proprietary rights, which may not be available
on commercially reasonable terms, if at all. Any such litigation, if instituted, could have a material adverse effect, potentially
including monetary penalties, diversion of management resources, and injunction against continued manufacture, use, or sale of
certain products or processes.
Some of our technology
has resulted and/or will result from research funded by agencies of the U.S. government and the State of California. As a result
of such funding, the U.S. government and the State of California have certain rights in the technology developed with the funding.
These rights include a non-exclusive, non-transferable, irrevocable, paid-up, worldwide license to practice or have practiced
for or on behalf of the government(s) such inventions. In addition, the government(s) has the right to “march
in” and require us to grant third parties licenses to such technology, in certain circumstances, such as if we fail to take
effective steps to achieve practical application of such inventions.
The licenses by which
we have obtained some of our intellectual property are subject to the rights of the funding agencies. We also rely upon non-patented
proprietary know-how and trade secrets. There can be no assurance that we can adequately protect our rights in such non-patented
proprietary know-how and trade secrets, or that others will not independently develop substantially equivalent proprietary information
or techniques or gain access to our proprietary know-how and trade secrets. Any of the foregoing events could have a material
adverse effect on us. In addition, if any of our trade secrets, know-how or other proprietary information were to be disclosed,
or misappropriated, the value of our trade secrets, know-how and other proprietary rights would be significantly impaired and
our business and competitive position would suffer.
In September 2011,
the Leahy-Smith America Invents Act, or the Leahy-Smith Act, was signed into law. The Leahy-Smith Act includes a number of significant
changes to U.S. patent law. These include provisions that affect the way patent applications will be prosecuted and may also affect
patent litigation. In particular, under the Leahy-Smith Act, the United States transitioned in March 2013 to a “first
to file” system in which the first inventor to file a patent application will be entitled to the patent. Third parties are
allowed to submit prior art before the issuance of a patent by the U.S. Patent and Trademark Office, or USPTO, and may become
involved in derivation, post-grant review, or inter partes review, proceedings challenging our patent rights or the patent
rights of our licensors. An adverse determination in any such submission, proceeding or litigation could reduce the scope of,
or invalidate, our or our licensors’ patent rights, which could adversely affect our competitive position.
It is difficult and costly to protect
our proprietary rights, and we may not be able to ensure their protection. If we fail to protect or enforce our intellectual property
rights adequately or secure rights to patents of others, the value of our intellectual property rights would diminish.
Our commercial viability
will depend, in part, on obtaining and maintaining patent protection and trade secret protection of our product candidates, and
the methods used to manufacture them, as well as successfully defending these patents against third-party challenges. Our ability
to stop third parties from making, using, selling, offering to sell, or importing our products is dependent upon the extent to
which we have rights under valid and enforceable patents or trade secrets that cover these activities.
We have licensed certain
patent and other intellectual property rights that cover cardiospheres (CSps), and cardiosphere-derived cells (CDCs), (including
our CAP-1002 product candidate) from Università Degli Studi Di Roma La Sapienza, or the University of Rome, The Johns Hopkins
University, or JHU, and CSMC. We have also licensed certain patent and other intellectual property rights from CSMC that cover
extracellular vesicles, such as exosomes and microvesicles derived from CDCs. Under the license agreements with the University
of Rome and JHU, those institutions prosecute and maintain their patents and patent applications in collaboration with us. We
rely on these institutions to file, prosecute, and maintain patent applications, and otherwise protect the intellectual property
to which we have a license, and we have not had and do not have primary control over these activities for certain of these patents
or patent applications and other intellectual property rights. We cannot be certain that such activities by these institutions
have been or will be conducted in compliance with applicable laws and regulations, or will result in valid and enforceable patents
and other intellectual property rights. Under our Amended and Restated Exclusive License Agreement with CSMC and our Exclusive
License Agreement with CSMC, as the same have been amended, we have assumed, in coordination with CSMC, financial responsibility
for the prosecution and maintenance of certain patents and patent applications thereunder. Our enforcement of certain of these
licensed patents or defense of any claims asserting the invalidity and/or unenforceability of these patents would also be subject
to the cooperation of the University of Rome, JHU, and/or CSMC.
The patent positions
of pharmaceutical and biopharmaceutical companies can be highly uncertain and involve complex legal and factual questions for
which important legal principles remain unresolved. No consistent laws regarding the breadth of claims allowed in biopharmaceutical
patents has emerged to date in the United States. The biopharmaceutical patent situation outside the United States is even more
uncertain. Changes in either the patent laws or in interpretations of patent laws in the United States and other countries may
diminish the value of our intellectual property. Accordingly, we cannot predict the breadth of claims that may be allowed or enforced
in the patents we own or that are in-licensed. Further, if any of our owned or in-licensed patents are determined by legal authority
to be invalid or unenforceable, it could impact our ability to commercialize or license our technology.
The degree of future
protection for our proprietary rights is uncertain because legal means afford only limited protection and may not adequately protect
our rights or permit us to gain or keep our competitive advantage. For example:
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others may be able
to make products that are similar to our product candidates but that are not covered by the claims of any of our patents;
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we might not have
been the first to make the inventions covered by any issued patents or patent applications we may have (or third parties from
whom we license intellectual property may have);
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we might not have
been the first to file patent applications for these inventions;
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it is possible that
any pending patent applications we may have will not result in issued patents;
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any issued patents
may not provide us with any competitive advantage, or may be held invalid or unenforceable as a result of legal challenges
by third parties;
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we may not develop
additional proprietary technologies that are patentable or protectable under trade secrets law; and
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the patents of others
may have an adverse effect on our business.
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We also may rely on
trade secrets to protect our technology, especially where we do not believe patent protection is appropriate or obtainable. However,
trade secrets are difficult to protect. Although we use reasonable efforts to protect our trade secrets, our employees, consultants,
contractors, outside scientific collaborators, and other advisors may unintentionally or willfully disclose our information to
competitors. In addition, courts outside the United States are sometimes less willing to protect trade secrets. Moreover, our
competitors may independently develop equivalent knowledge, methods, and know-how.
If any of our trade secrets, know-how
or other proprietary information is improperly disclosed, the value of our trade secrets, know-how and other proprietary rights
would be significantly impaired and our business and competitive position would suffer.
Our viability also
depends upon the skills, knowledge and experience of our scientific and technical personnel, our consultants and advisors, as
well as our licensors and contractors. To help protect our proprietary know-how and our inventions for which patents may be unobtainable
or difficult to obtain, we rely on trade secret protection and confidentiality agreements. To this end, we require all of our
employees, consultants, advisors and contractors to enter into agreements which prohibit unauthorized disclosure and use of confidential
information and, where applicable, require disclosure and assignment to us of the ideas, developments, discoveries and inventions
important to our business. These agreements are often limited in duration and may not provide adequate protection for our trade
secrets, know-how or other proprietary information in the event of any unauthorized use or disclosure or the lawful development
by others of such information. In addition, enforcing a claim that a third party illegally obtained and is using any of our trade
secrets is expensive and time consuming, and the outcome is unpredictable. If any of our trade secrets, know-how or other proprietary
information is improperly disclosed, the value of our trade secrets, know-how and other proprietary rights would be significantly
impaired and our business and competitive position would suffer.
We may incur substantial costs as
a result of litigation or other adversarial proceedings relating to patent and other intellectual property rights and we may be
unable to protect our rights to, or use of, our technology.
If we choose to go
to court to stop a third party from using the inventions covered by our patents, that individual or company has the right to ask
the court to rule that such patents are invalid and/or should not be enforced against that third party. These lawsuits are
expensive and would consume time and other resources, even if we were successful in discontinuing the infringement of our patents.
In addition, there is a risk that the court will determine that these patents are not valid and that we do not have the right
to stop the other party from using the inventions. There is also the risk that, even if the validity of these patents is upheld,
the court will refuse to stop the other party on the ground that such other party’s activities do not infringe our rights
to these patents. In addition, the U.S. Supreme Court has modified certain legal tests so as to make it harder to obtain patents
from the USPTO, and to defend issued patents against invalidity challenges. As a consequence, issued patents may be found to contain
invalid claims according to the revised legal standards. Some of our own or in-licensed patents may be subject to challenge and
subsequent invalidation in a variety of post-grant proceedings, before the Patent Trial and Appeal Board (the PTAB) of the USPTO
or in litigation under the revised legal standards, which make it more difficult to defend the validity of claims in already issued
patents.
Furthermore, a third
party may claim that we or our manufacturing or commercialization partners are using inventions covered by the third party’s
patent rights and may go to court to stop us from engaging in our normal operations and activities, including making or selling
our product candidates. These lawsuits are costly and could affect the results of our operations and divert the attention of managerial
and technical personnel. There is a risk that a court could determine that we or our commercialization partners are infringing
the third party’s patents and order us or our partners to stop the activities covered by the patents. In addition, there
is a risk that a court could order us or our partners to pay the other party damages for having violated the other party’s
patents. We have agreed to indemnify certain of our commercial partners against certain patent infringement claims brought by
third parties. The biotechnology industry has produced a proliferation of patents, and it is not always clear to industry participants,
including us, which patents cover various types of products, manufacturing processes or methods of use. The coverage of patents
is subject to claim construction by the courts, which is not always predictable or reasonable. If we are sued for patent infringement,
we would need to demonstrate that our products, manufacturing processes or methods of use either do not infringe the patent claims
of the relevant patent and/or that the patent claims are invalid, and we may not be able to do this. Proving invalidity, in particular,
is difficult since it requires a proof by clear and convincing evidence to overcome the presumption of validity enjoyed by issued
patents.
As some patent applications
in the United States may be maintained in secrecy until the patents are issued, because patent applications in the United States
and many foreign jurisdictions are typically not published until eighteen months after filing, and because publications in the
scientific literature often lag behind actual discoveries, we cannot be certain that others have not filed patent applications
for technology covered by our issued patents or our pending applications, or that we were the first to invent the technology.
Our competitors may have filed, and may in the future file, patent applications covering technology similar to ours. Any such
patent applications may have priority over our patent applications or patents, which could further require us to obtain licenses
to these issued patents covering such technologies. For patent applications filed before the Leahy-Smith Act, if another party
has filed a United States patent application on inventions similar to ours, we may have to participate in an interference proceeding
declared by the USPTO to determine priority of invention in the United States. The costs of these proceedings could be substantial,
and it is possible that such efforts would be unsuccessful if, unbeknownst to us, the other party had independently arrived at
the same or similar invention prior to our own invention, resulting in a loss of our U.S. patent position with respect to such
inventions.
Some of our competitors
may be able to sustain the costs of complex patent litigation more effectively than we can because they have substantially greater
resources. In addition, any uncertainties resulting from the initiation and continuation of any litigation or inter partes
review proceedings could have a material adverse effect on our ability to raise the funds necessary to continue our operations.
Some jurisdictions
in which we operate have enacted legislation which allows members of the public to access information under statutes similar to
the U.S. Freedom of Information Act. Even though we believe our information would be excluded from the scope of such statutes,
there are no assurances that we can protect our confidential information from being disclosed under the provisions of such laws.
If any confidential or proprietary information is released to the public, such disclosures may negatively impact our ability to
protect our intellectual property rights.
We may be subject to claims that
we or our employees, consultants or independent contractors have wrongfully used or disclosed confidential information of third
parties.
We have received confidential
and proprietary information from third parties. In addition, we employ individuals who were previously employed at other biotechnology
or pharmaceutical companies. We may be subject to claims that we or our employees, consultants or independent contractors have
inadvertently or otherwise improperly used, misappropriated or disclosed confidential information of these third parties or our
employees’ former employers. Litigation may be necessary to defend against these claims. Even if we are successful in defending
against these claims, litigation could result in substantial cost and be a distraction to our management and employees.
We depend on intellectual property
licensed from third parties and termination of any of these licenses could result in the loss of significant rights, which would
harm our business.
We are dependent on
patents, trade secrets, know-how and proprietary technology, both our own and that licensed from others. We have several license
agreements, including with the University of Rome, JHU and CSMC. These licenses may be terminated upon certain conditions, including
in some cases, if we fail to meet certain minimum funding or spending requirements, fail to take certain developmental actions,
fail to pay certain minimum royalties, or fail to maintain the licensed intellectual property. Any termination of these licenses
could result in the loss of significant rights and could harm our ability to commercialize our product candidates. Disputes may
also arise between us and our licensors regarding intellectual property subject to a license agreement, including: the scope of
rights granted under the license agreement and other contract interpretation-related issues; whether and the extent to which our
technology and processes infringe on intellectual property of the licensor that is not subject to the licensing agreement; our
right to sublicense patent and other rights to third parties under collaborative development relationships; our diligence obligations
with respect to the use of the licensed technology in relation to our development and commercialization of our product candidates,
and what activities satisfy those diligence obligations; and the ownership of inventions and know-how resulting from the joint
creation or use of intellectual property by our licensors and us and our partners.
If disputes over intellectual
property that we have licensed prevent or impair our ability to maintain our current licensing arrangements on acceptable terms,
we may be unable to successfully develop and commercialize the affected product candidates. If we or our licensors fail to adequately
protect this intellectual property, our ability to commercialize products could suffer.
Risks Related to Our Relationships with
Third Parties
We are largely dependent on our
relationships with our licensors and collaborators and there is no guarantee that such relationships will be maintained or continued.
We have entered into
certain license agreements for certain intellectual property rights which are essential to enable us to develop and commercialize
our products. Agreements have been entered into with the University of Rome, JHU and CSMC, the latter of which is also a stockholder
of ours. Each of those agreements provides for an exclusive license to certain patents and other intellectual property and requires
the payment of fees, milestone payments and/or royalties to the institutions that will reduce our net revenues, if and to the
extent that we have future revenues. Each of those agreements also contains additional obligations that we are required to satisfy.
There is no guarantee that we will be able to satisfy all of our obligations under our license agreements to each of the institutions
and that such license agreements will not be terminated. Each of the institutions receives funding from independent sources such
as the NIH and other private or not-for-profit sources and are investigating scientific and clinical questions of interest to
their own principal investigators as well as the scientific and clinical communities at large. These investigators (including
Capricor, Inc.’s founder, Dr. Eduardo Marbán, who is the Director of the Smidt Heart Institute at CSMC)
and Dr. Stephen Gould (Johns Hopkins University) are under no obligation to conduct, continue, or conclude either current
or future studies utilizing our cell therapy or exosomes technology, and they are not compelled to license any further technologies
or intellectual property rights to us except as may be stated in the applicable licensing agreements or research agreements between
those institutions and us. Changes in these collaborators’ research interests or their funding sources away from our technology
would have a material adverse effect on us. Further, the failure of any third-party licensor to comply with its licensing obligations
under its respective agreement with us would have a material adverse effect on us. We are substantially dependent on our relationships
with these institutions from which we license the rights to our technologies and know-how. If requirements under our license agreements
are not met, including meeting defined milestones, we could suffer significant harm, including losing rights to our product candidates.
In addition, we are
responsible for the cost of filing and prosecuting certain patent applications and maintaining certain issued patents licensed
to us. If we do not meet our obligations under our license agreements in a timely manner, we could lose the rights to the proprietary
technology.
Finally, we may be
required to obtain licenses to patents or other proprietary rights of third parties (including and other than the University of
Rome, JHU and CSMC) in connection with the development and use of our product candidates and technologies. Licenses required under
any such patents or proprietary rights might not be made available on terms acceptable to us, if at all.
We have received government grants
and a loan award which impose certain conditions on our operations.
Commencing in 2009,
we received several grants from the NIH and DoD to fund various projects. Some of these awards remain subject to annual and quarterly
reporting requirements and require us to allocate expenses to the applicable project.
In September 2016,
Capricor was approved for a grant award from the DoD in the amount of approximately $2.4 million to be used toward developing
a scalable, commercially-ready process to manufacture our exosomes. Under the terms of the award, disbursements were made to Capricor,
subject to annual and quarterly reporting requirements. The Company utilized approximately $2.3 million of the $2.4 million under
the terms of the award. We are currently completing all close-out documentation associated with this award.
On February 5,
2013, we entered into the CIRM Loan Agreement, pursuant to which CIRM agreed to disburse approximately $19.8 million to us over
a period of approximately three and one-half years to support Phase II of our ALLSTAR clinical trial. Under the CIRM Loan Agreement,
we were required to repay the CIRM loan with interest at maturity. So long as we were not in default, the Loan Agreement had provisions
allowing for forgiveness of the debt after the end of the project period, if we elected to abandon the project under certain circumstances.
On November 17, 2017, we gave notice to CIRM that we were electing to abandon the CIRM-funded project pursuant to the Loan
Agreement and on December 11, 2017, Capricor and CIRM entered into Amendment No. 3 to the CIRM Notice of Loan Award
whereby the total loan balance under the CIRM Loan Agreement was forgiven by CIRM thereby terminating Capricor’s and the
Company’s obligation to repay the loan balance. The Company classified the forgiveness of the loan payable, consisting of
principal and accrued interest, of approximately $15.7 million as “other income” in our Consolidated Statement of
Operations and Comprehensive Income (Loss). The decision to terminate the Loan Award and forgive the loan balance was due to the
abandonment of the ALLSTAR project at the end of the project period in accordance with Section 4.10 of the Loan Agreement
and Article VII, Section I of the CIRM Loan Administration Policy. Additionally, on June 16, 2016, Capricor entered
into the CIRM Award with CIRM in the amount of approximately $3.4 million to fund, in part, the HOPE-Duchenne trial. Pursuant
to terms of the CIRM Award, disbursements were tied to the achievement of specified operational milestones. The CIRM Award is
further subject to the conditions and requirements set forth in the CIRM Grants Administration Policy for Clinical Stage Projects.
Such requirements include, without limitation, the filing of quarterly and annual reports with CIRM, the sharing of intellectual
property pursuant to Title 17, California Code of Regulations (CCR) Sections 100600-100612, and the sharing with the State of
California of a fraction of licensing revenue received from a CIRM funded research project and net commercial revenue from a commercialized
product which resulted from the CIRM funded research as set forth in Title 17, CCR Section 100608. The maximum royalty on
net commercial revenue that Capricor may be required to pay to CIRM is equal to nine times the total amount awarded and paid to
Capricor.
If we enter into strategic partnerships,
we may be required to relinquish important rights to and control over the development of our product candidates or otherwise be
subject to terms unfavorable to us.
We are actively looking
into potential strategic partnerships for our product candidates, particularly for our CAP-1002 and exosomes product candidates.
If we do not establish strategic partnerships, we potentially will have to undertake development and commercialization efforts
with respect to our product candidates on our own, which would be costly and adversely impact our ability to commercialize any
future products or product candidates. If we enter into any strategic partnerships with pharmaceutical, biotechnology or other
life science companies, we will be subject to a number of risks, including:
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we may not be able
to control the amount and timing of resources that our strategic partners devote to the development or commercialization of
product candidates;
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strategic partners
may delay clinical trials, provide insufficient funding, terminate a clinical trial or abandon a product candidate, repeat
or conduct new clinical trials or require a new version of a product candidate for clinical testing;
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strategic partners
may not pursue further development and commercialization of products resulting from the strategic partnering arrangement or
may elect to discontinue research and development programs;
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strategic partners
may not commit adequate resources to the marketing and distribution of any future products, limiting our potential revenues
from these products;
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disputes may arise
between us and our strategic partners that result in the delay or termination of the research, development or commercialization
of our product candidates or that result in costly litigation or arbitration that diverts management’s attention and
consumes resources;
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strategic partners
may experience financial difficulties;
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strategic partners
may not properly maintain or defend our intellectual property rights or may use our proprietary information in a manner that
could jeopardize or invalidate our proprietary information or expose us to potential litigation;
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business combinations
or significant changes in a strategic partner’s business strategy may also adversely affect a strategic partner’s
willingness or ability to complete its obligations under any arrangement; and
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strategic partners
could independently move forward with a competing product candidate developed either independently or in collaboration with
others, including our competitors.
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We rely and will rely on third parties
to conduct our clinical trials. If these third parties do not successfully carry out their contractual duties or meet expected
deadlines, we may not be able to obtain regulatory approval of or commercialize our product candidates.
We depend and will
depend upon independent investigators and collaborators, such as universities, medical institutions, CROs, vendors and strategic
partners to conduct our preclinical and clinical trials under agreements with us. We negotiate budgets and contracts with CROs,
vendors and trial sites which may result in delays to our development timelines and increased costs. We rely heavily on these third
parties over the course of our clinical trials, and we control only certain aspects of their activities. Nevertheless, we are responsible
for ensuring that each of our studies is conducted in accordance with applicable protocol, legal, regulatory and scientific standards,
and our reliance on third parties does not relieve us of our regulatory responsibilities. We and these third parties are required
to comply with current good clinical practices, or cGCPs, which are regulations and guidelines enforced by the FDA and comparable
foreign regulatory authorities for product candidates in clinical development. Regulatory authorities enforce these cGCPs through
periodic inspections of trial sponsors, principal investigators and trial sites. If we or any of these third parties fail to comply
with applicable cGCP regulations, the clinical data generated in our clinical trials may be deemed unreliable and the FDA or comparable
foreign regulatory authorities may require us to perform additional clinical trials before approving our marketing applications.
We cannot assure that, upon inspection, such regulatory authorities will determine that any of our clinical trials comply with
the cGCP regulations. Biologic products for commercial purposes must also be produced under cGMP. Our failure or any failure by
these third parties to comply with these regulations or to recruit a sufficient number of patients may require us to repeat clinical
trials, which would delay the regulatory approval process. Moreover, our business may be implicated if any of these third parties
violates federal or state fraud and abuse or false claims laws and regulations or healthcare privacy and security laws and regulations.
Any third parties conducting
our clinical trials are not and will not be our employees and, except for remedies available to us under our agreements with such
third parties, which in some instances may be limited, we cannot control whether or not they devote sufficient time and resources
to our ongoing preclinical, clinical and nonclinical programs. These third parties may also have relationships with other commercial
entities, including our competitors, for whom they may also be conducting clinical studies or other drug development activities,
which could affect their performance on our behalf. If these third parties do not successfully carry out their contractual duties
or obligations or meet expected deadlines, if they need to be replaced or if the quality or accuracy of the clinical data they
obtain is compromised due to the failure to adhere to our clinical protocols or regulatory requirements or for other reasons, our
clinical trials may be extended, delayed or terminated and we may not be able to complete development of, obtain regulatory approval
of or successfully commercialize our product candidates. As a result, our financial results and the commercial prospects for our
product candidates would be harmed, our costs could increase and our ability to generate revenue could be delayed. Switching or
adding third parties to conduct our clinical trials involves substantial cost and requires extensive management time and focus.
In addition, there is a natural transition period when a new third party commences work. As a result, delays occur, which can materially
impact our ability to meet our desired clinical development timelines.
Risks Related to Competitive Factors
Our products will likely face intense
competition.
The Company is engaged
in fields that are characterized by extensive worldwide research and competition by pharmaceutical companies, medical device companies,
specialized biotechnology companies, hospitals, physicians and academic institutions, both in the United States and abroad. We
will experience intense competition with respect to our existing and future product candidates. The pharmaceutical industry is
highly competitive, with a number of established, large pharmaceutical companies, as well as many smaller companies. Many of these
organizations competing with us have substantially greater financial resources, larger research and development staffs and facilities,
greater clinical trial experience, longer drug development history in obtaining regulatory approvals, and greater manufacturing,
distribution, sales and marketing capabilities than we do. There are many pharmaceutical companies, biotechnology companies, public
and private universities, government agencies, and research organizations actively engaged in research and development of products
which may target the same indications as our product candidates. We expect any future products and product candidates that we develop
to compete on the basis of, among other things, product efficacy and safety, time to market, price, extent of adverse side effects,
and convenience of treatment procedures. One or more of our competitors may develop products based upon the principles underlying
our proprietary technologies earlier than we do, obtain approvals for such products from the FDA more rapidly than we do, or develop
alternative products or therapies that are safer, more effective and/or more cost effective than any product developed by us. Our
competitors may obtain regulatory approval of their products more rapidly than we are able to or may obtain patent protection or
other intellectual property rights that limit our ability to develop or commercialize our product candidates. Our competitors may
also develop drugs that are more effective, useful, and less costly than ours, and may also be more successful than us in manufacturing
and marketing their products.
Our future success
will depend in part on our ability to maintain a competitive position with respect to evolving therapies as well as other novel
technologies. Existing or future therapies developed by others may render our potential products obsolete or noncompetitive. The
drugs that we are attempting to develop will have to compete with existing therapies. In addition, companies pursuing different
but related fields represent substantial competition. These organizations also compete with us to attract qualified personnel and
parties for acquisitions, joint ventures, or other collaborations.
If we are unable to retain and recruit
qualified scientists and advisors, or if any of our key executives, key employees or key consultants discontinues his or her employment
or consulting relationship with us, it may delay our development efforts or otherwise harm our business. In addition, several of
our consultants render services on a part-time basis to other entities which may result in the creation of intellectual property
rights in favor of those entities.
Because of the specialized
nature of our technology, we are dependent upon existing key personnel and on our ability to attract and retain qualified executive
officers and scientific personnel for research, clinical studies, and development activities conducted or sponsored by us. There
is intense competition for qualified personnel in our fields of research and development, and there can be no assurance that we
will be able to continue to attract additional qualified personnel necessary for the development and commercialization of our product
candidates or retain our current personnel. For example, Dr. Frank Litvack, our Executive Chairman, is only a part-time consultant
to the Company and provides services to other non-competing enterprises.
We have experienced
employee turnover from time to time, including involving some of our key employees. The loss of any of our current key employees
or key consultants could impede the achievement of our research and development objectives. Furthermore, recruiting and retaining
qualified scientific personnel to perform research and development work in the future is critical to the Company’s success,
both to enable the Company to grow, and to allow the Company to replace any employees or consultants whose relationships with the
Company have been terminated. The market for employees with experience in the cell therapy and exosome industries is especially
competitive, and we may not be able to recruit employees needed to develop and manufacture our products, or be able to retain the
employees whom we do recruit.
There has been a close
working relationship between the academic lab at CSMC and our research and development team where employees and consultants of
both entities contribute time and services to the research being performed by the other. As a result, it can sometimes be unclear
whether intellectual property developed out of these services for CSMC would be owned by CSMC or by the Company, although if owned
by CSMC, the Company may have rights to that intellectual property under the terms of its license agreements with CSMC.
We have also developed
a close working relationship between the academic lab of Dr. Stephen Gould at Johns Hopkins University and our research and
development team where employees and consultants of both entities contribute time and services to the research being performed
by the other. As a result, it can sometimes be unclear whether intellectual property developed out of these services would be owned
by JHU or by the Company, although if owned by JHU, the Company may have rights to that intellectual property under the terms of
its license and research agreements with JHU.
The Company may be
unable to attract and retain personnel on acceptable terms given the competition among biotechnology, biopharmaceutical, and health
care companies, universities, and non-profit research institutions for experienced scientists. Certain of the Company’s officers,
directors, scientific advisors, and/or consultants or certain of the officers, directors, scientific advisors, and/or consultants
hereafter appointed may from time to time serve as officers, directors, scientific advisors, and/or consultants of other biopharmaceutical
or biotechnology companies. The Company currently does not maintain “key man” insurance policies on any of its officers
or employees. All of the Company’s employees will be employed “at will” and, therefore, each employee may leave
the employment of the Company at any time. If we are unable to retain our existing employees, including qualified scientific personnel,
and attract additional qualified candidates, the Company’s business and results of operations could be adversely affected.
If we do not establish strategic
partnerships, we will have to undertake development and commercialization efforts on our own, which would be costly and delay our
ability to commercialize any future products or product candidates.
An element of our business
strategy includes potentially partnering with pharmaceutical, biotechnology and other companies to obtain assistance for the development
and potential commercialization of our product candidates, including the cash and other resources we need for such development
and potential commercialization. We may not be able to negotiate strategic partnerships on acceptable terms, or at all. If we are
unable to negotiate strategic partnerships for our product candidates, we may be forced to curtail the development of a particular
candidate, reduce, delay, or terminate its development program, delay its potential commercialization, reduce the scope of our
sales or marketing activities or undertake development or commercialization activities at our own expense. In addition, we will
bear all risk related to the development of that product candidate. If we elect to increase our expenditures to fund development
or commercialization activities on our own, we will need to obtain substantial additional capital, which may not be available to
us on acceptable terms, or at all. If we do not secure sufficient funds, we will not be able to complete our trials or bring our
product candidates to market and generate product revenue. We have announced that our goal is pursue a partnership for the continued
development of CAP-1002 in DMD.
We have no experience selling, marketing,
or distributing products and no current internal capability to do so.
The Company currently
has no sales, marketing, or distribution capabilities. We do not anticipate having resources in the foreseeable future to allocate
to the sales and marketing of our proposed products. Our future success depends, in part, on our ability to enter into and maintain
sales and marketing collaborative relationships, or on our ability to build sales and marketing capabilities internally. If we
enter into a sales and marketing collaborative relationship, then we will be dependent upon the collaborator’s strategic
interest in the products under development, and such collaborator’s ability to successfully market and sell any such products.
If any of our product candidates are cleared for commercialization, we intend to pursue collaborative arrangements regarding the
sales and marketing of our products, however, there can be no assurance that we will be able to establish or maintain such collaborative
arrangements, or if able to do so, that such collaborators will have effective sales forces. To the extent that we decide not to,
or are unable to, enter into collaborative arrangements with respect to the sales and marketing of our proposed products, significant
capital expenditures, management resources, and time will be required to establish and develop an in-house marketing and sales
force with sufficient technical expertise. There can also be no assurance that we will be able to establish or maintain relationships
with third-party collaborators or develop in-house sales and distribution capabilities. To the extent that we depend on third parties
for marketing and distribution, any revenues we receive will depend upon the efforts of such third parties, and there can be no
assurance that such efforts will be successful.
If any of our product candidates
for which we receive regulatory approval do not achieve broad market acceptance, the revenues that we generate from their sales,
if any, will be limited.
The commercial viability
of our product candidates for which we may obtain marketing approval from the FDA or other regulatory authorities will depend upon
their acceptance among physicians, the medical community, and patients, and coverage and reimbursement of them by third-party payors,
including government payors. The degree of market acceptance of any of our approved products will depend on a number of factors,
including:
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limitations or warnings contained in a product’s FDA-approved labeling;
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changes in the standard of care for the targeted indications for any of our product candidates, which could reduce the marketing impact of any claims that we could make following FDA approval;
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limitations inherent in the approved indication for any of our product candidates compared to more commonly understood or addressed conditions;
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lower demonstrated clinical safety and efficacy compared to other products;
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prevalence and severity of adverse effects;
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ineffective marketing and distribution efforts;
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lack of availability of reimbursement from managed care plans and other third-party payors;
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lack of cost-effectiveness;
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timing of market introduction and perceived effectiveness of competitive products;
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availability of alternative therapies at similar costs; and
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potential product liability claims.
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Our ability to effectively
promote and sell our product candidates in the marketplace will also depend on pricing, including our ability to manufacture a
product at a competitive price. We will also need to demonstrate acceptable evidence of safety and efficacy and may need to demonstrate
relative convenience and ease of administration. Market acceptance could be further limited depending on the prevalence and severity
of any expected or unexpected adverse side effects associated with our product candidates. If our product candidates are approved
but do not achieve an adequate level of acceptance by physicians, health care payors, and patients, we may not generate sufficient
revenue from these products, and we may not become or remain profitable. In addition, our efforts to educate the medical community
and third-party payors on the benefits of our product candidates may require significant resources and may never be successful.
If our approved drugs fail to achieve market acceptance, we will not be able to generate significant revenue, if any.
Our development of a potential vaccine
for COVID-19 is at an early stage and is subject to significant risks.
Our development of
a COVID-19 vaccine is in early stages, and we may be unable to produce a vaccine that successfully treats the virus in a timely
manner, if at all. Even if we are able to successfully develop and obtain regulatory approval for a COVID-19 vaccine, if the outbreak
is effectively contained or the risk of coronavirus infection is diminished or eliminated before we can successfully develop and
manufacture our vaccine, we may not be able to generate product revenues from the vaccine. Additionally, a number of pharmaceutical
companies have already obtained regulatory approval for COVID-19 vaccines, and other companies with significantly more resources
than us are developing COVID-19 vaccines. Even if we are able to successfully develop and obtain regulatory approval for a COVID-19
vaccine, vaccines produced by these other companies may be superior to our vaccine. Even if a vaccine that we develop is not inferior
to other available vaccines, it could be difficult to obtain market acceptance. We are committing financial resources and personnel
to the development of a COVID-19 vaccine which may cause delays in or otherwise negatively impact our other development programs,
despite uncertainties surrounding the longevity and extent of coronavirus as a global health concern. Our business could be negatively
impacted by our allocation of significant resources to a global health threat that is unpredictable and could rapidly dissipate
or against which our vaccine, if developed, may not be partially or fully effective, or for which better vaccine options may be
available.
Even if our product candidates are
approved, our ability to generate product revenues will be diminished if our drugs sell for inadequate prices or patients are unable
to obtain adequate levels of reimbursement.
Our ability to generate
significant sales of our products, if approved, depends on the availability of adequate coverage and reimbursement from third-party
payors. Healthcare providers that purchase medicine or medical products for treatment of their patients generally rely on third-party
payors to reimburse all or part of the costs and fees associated with the products. Adequate coverage and reimbursement from governmental
payors, such as Medicare and Medicaid, and commercial payors is critical to new product acceptance. Patients are unlikely to use
our products if they do not receive reimbursement adequate to cover the cost of our products. Orphan drugs in particular have received
recent negative publicity for the perceived high prices charged for them by their manufacturers, and as a result, other orphan
drug developers such as us may be negatively impacted by such publicity and any U.S. or other government regulatory response.
In the United States,
no uniform policy of coverage and reimbursement for products exists among third-party payors. Many third-party payors often rely
upon Medicare coverage policy and payment limitations in setting their own coverage and reimbursement policies, but also have their
own methods and approval processes to decide which drugs they will pay for and establish reimbursement levels. Coverage decisions
may depend upon clinical and economic standards that disfavor new drug products when more established or lower cost therapeutic
alternatives are already available or subsequently become available. If any of our product candidates fail to demonstrate attractive
efficacy profiles, they may not qualify for coverage and reimbursement. However, decisions regarding the extent of coverage and
amount of reimbursement to be provided for any product candidates that we develop through approval will be made on a plan-by-plan
basis. One payor’s determination to provide coverage for a product does not assure that other payors will also provide coverage
and adequate reimbursement for the product. As a result, the coverage determination process will require us to provide scientific
and clinical support for the use of our products to each payor separately and will likely be a time-consuming process. Each plan
determines whether or not it will provide coverage for a drug, what amount it will pay for the drug, the applicable formulary tier,
and whether to require step therapy or other utilization management controls. Such decisions can strongly influence the adoption
of a drug by patients and physicians. Patients who are prescribed treatments for their conditions and treating healthcare providers
generally rely on third-party payors to reimburse all or part of the associated healthcare costs. Patients may be unlikely to use
and prescribers unlikely to prescribe our products unless adequate coverage is provided and reimbursement are available.
Additionally, a third-party
payor’s decision to provide coverage for a drug does not imply that an adequate reimbursement rate will be approved. The
process for determining whether a third-party payor will provide coverage for a product may be separate from the process for setting
the price of a product or for establishing the reimbursement rate that such a payor will pay for the product. Third-party payors,
such as government or private healthcare insurers, carefully review and increasingly question the coverage of, and challenge the
prices charged for, drug products. A primary trend in the U.S. healthcare industry and elsewhere is cost containment. Government
authorities and third-party payors have attempted to control costs by limiting coverage and the amount of reimbursement for particular
medications. Increasingly, third-party payors are requiring that pharmaceutical companies provide them with predetermined discounts
from list prices and are challenging the prices charged for products. We may also be required to conduct expensive pharmacoeconomic
studies to justify the coverage and the amount of reimbursement for particular medications. We cannot be sure that coverage and
reimbursement will be available for any product that we commercialize and, if reimbursement is available, what the level of reimbursement
will be. Inadequate coverage or reimbursement may impact the demand for, or the price of, any product for which we obtain marketing
approval. If coverage and adequate reimbursement are not available, or are available only to limited levels, we may not be able
to successfully commercialize any product candidates that we develop.
Further, there have
been a number of legislative and regulatory proposals to change the healthcare system that could affect our ability to sell any
future drugs profitably. The U.S. government, state legislatures, and foreign governments have shown significant interest in implementing
cost-containment programs, including price controls, restrictions on reimbursement, and requirements for substitution by generic
products. We anticipate additional state and federal healthcare reform measures will be adopted in the future. These may include
price controls and cost-containment measures, or more restrictive policies in jurisdictions with existing controls and measures,
any of which could limit the amounts that federal and state governments will pay for healthcare products and services, and potentially
could reduce demand for our products once approved, create additional pricing pressures, or ultimately limit our net revenue and
results. There can be no assurance that any of our product candidates, if approved, will be considered medically reasonable and
necessary, that they will be considered cost-effective by third-party payors, that coverage or an adequate level of reimbursement
will be available, or that reimbursement policies and practices in the United States and in foreign countries where our products
are sold will not harm our ability to sell our product candidates profitably, if they are approved for sale.
Risks Related to Product and Environmental
Liability
Our products may expose us to potential
product liability, and there is no guarantee that we will be able to obtain and maintain adequate insurance to cover these liabilities.
The testing, marketing,
and sale of human cell therapeutics, pharmaceuticals, and services entail an inherent risk of adverse effects or medical complications
to patients and, as a result, product liability claims may be asserted against us. A future product liability claim or product
recall could have a material adverse effect on the Company. There can be no assurance that product liability insurance will be
available to us in the future on acceptable terms, if at all, or that coverage will be adequate to protect us against product liability
claims. In the event of a successful claim against the Company, insufficient or lack of insurance or indemnification rights could
result in liability to us, which could have a material adverse effect on the Company and its future viability. The use of our product
candidates in clinical trials and the sale of any products for which we obtain marketing approval, if at all, expose the Company
to the risk of product liability claims. Product liability claims might be brought against the Company by consumers, health care
providers or others using, administering or selling our products. If we cannot successfully defend ourselves against these claims,
we will incur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:
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withdrawal of clinical trial participants;
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termination of clinical trial sites or entire trial programs;
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costs of related litigation;
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substantial monetary awards to patients or other claimants;
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decreased demand for our product candidates;
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impairment of our business reputation;
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loss of revenues; and
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the inability to commercialize our product candidates.
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The Company has obtained
clinical trial insurance coverage for its clinical trials. However, such insurance coverage may not reimburse the Company or the
levels of coverage may not be sufficient to reimburse it for expenses or losses it may suffer or for its indemnification obligations.
Moreover, insurance coverage is becoming increasingly expensive, and, in the future, we may not be able to maintain insurance coverage
at a reasonable cost or in sufficient amounts to protect the Company against losses due to liability. We intend to expand our insurance
coverage to include the sale of commercial products if we obtain marketing approval for our product candidates in development,
but we may be unable to obtain commercially reasonable product liability insurance for any products approved for marketing. On
occasion, large judgments have been awarded in class action lawsuits based on drugs that had unanticipated side effects. A successful
product liability claim or series of claims brought against the Company could have a material adverse effect on us and, if judgments
exceed our insurance coverage, could significantly decrease our cash position and adversely affect our business.
In addition, our clinical trial agreements
and most agreements with third-party vendors contain indemnification obligations requiring us to indemnify them from any losses
and claims that may be brought in connection with their provision of services, testing, manufacture or other activities in connection
with the use of our products.
Our business involves risk associated
with handling hazardous and other dangerous materials.
Our research and development
activities involve the controlled use of hazardous materials, chemicals, human blood and tissue, animal blood and blood products,
animal tissue, biological waste, and various radioactive compounds. The risk of accidental contamination or injury from these materials
cannot be completely eliminated. The failure to comply with current or future regulations could result in the imposition of substantial
fines against the Company, suspension of production, alteration of our manufacturing processes, or cessation of operations.
Our business depends on compliance
with ever-changing environmental and human health and safety laws.
We cannot accurately
predict the outcome or timing of future expenditures that may be required to comply with comprehensive federal, state and local
environmental laws and regulations, as well as laws and regulations designed to protect employees and others who handle hazardous
materials. We must comply with environmental laws that govern, among other things, all emissions, waste water discharge and solid
and hazardous waste disposal, and the remediation of contamination associated with generation, handling and disposal activities.
To date, the Company has not incurred significant costs and is not aware of any significant liabilities associated with its compliance
with federal, state and local environmental laws and regulations. However, both federal and state environmental laws have changed
in recent years and the Company may become subject to stricter environmental standards in the future and may face large capital
expenditures to comply with environmental laws. We have limited capital and we are uncertain whether we will be able to pay for
significantly large capital expenditures that may be required to comply with new laws. Also, future developments, administrative
actions or liabilities relating to environmental matters may have a material adverse effect on our financial condition or results
of operations.
Risks Related to Our Common Stock
We expect that our stock price will
continue to fluctuate significantly.
The stock market, particularly
in recent years, has experienced significant volatility, particularly with respect to pharmaceutical, biotechnology and other life
sciences company stocks. Our operating results may fluctuate from period to period for a number of reasons, and as a result our
stock price may be subject to significant fluctuations. Factors that could cause volatility in the market price of our common stock
include, but are not limited to:
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our financial condition, including our need for additional capital, as well as the impact of any terms imposed on our business and operations by the providers of additional capital;
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results from, delays in, or discontinuation of, any of the clinical trials for our drug candidates, including delays resulting from slower than expected or suspended patient enrollment or discontinuations resulting from a failure to meet pre-defined clinical endpoints;
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announcements concerning clinical trials and regulatory developments;
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failure or delays in entering drug candidates into clinical trials;
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failure or discontinuation of any of our research or development programs;
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developments in establishing and maintaining new strategic alliances or with existing alliances or collaborators;
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failure to satisfy licensing obligations, including our ability to meet milestone requirements under our license agreements;
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market conditions in the pharmaceutical, biotechnology and other healthcare related sectors;
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actual or anticipated fluctuations in our quarterly financial and operating results;
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developments or disputes concerning our intellectual property or other proprietary rights;
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introduction of technological innovations or new commercial products by us or our competitors;
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issues in manufacturing our drug candidates or drugs;
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issues with the supply or manufacturing of any devices or materials needed to manufacture or utilize our drug candidates;
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FDA or other U.S. or foreign regulatory actions affecting us or our industry;
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the risks and costs of increased operations, including clinical and manufacturing operations, on an international basis;
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market acceptance of our drugs, when they enter the market;
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third-party healthcare coverage and reimbursement policies;
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litigation or public concern about the safety of our drug candidates or drugs or the operations of the Company;
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issuance of new or revised securities analysts’ reports or recommendations;
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additions or departures of key personnel;
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potential delisting of our stock from the Nasdaq Stock Market; or
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volatility in the stock prices of other companies in our industry.
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We have never paid dividends and
we do not anticipate paying dividends in the future.
We have never paid
dividends on our capital stock and do not anticipate paying any dividends for the foreseeable future. We anticipate that the Company
will retain its earnings, if any, for future growth. Investors seeking cash dividends should not invest in the Company’s
common stock for that purpose.
We may issue shares of blank check
preferred stock without stockholder approval in the future.
Our certificate of
incorporation authorizes the issuance of up to 5,000,000 shares of preferred stock, none of which are currently issued or currently
outstanding. If issued, our Board of Directors will have the authority to fix and determine the relative rights and preferences
of preferred shares, as well as the authority to issue such shares, without further stockholder approval. As a result, our Board
of Directors could authorize the issuance of a series of preferred stock that is senior to our common stock that would grant to
holders preferred rights to our assets upon liquidation, the right to receive dividends, additional registration rights, anti-dilution
protection, and the right to the redemption of such shares, together with other rights, none of which will be afforded holders
of our common stock.
Market and economic conditions may
adversely affect our industry, business and ability to obtain financing.
Recent global market
and economic conditions have been unpredictable and challenging. These conditions and any adverse impact on the financial markets
may adversely affect our liquidity and financial condition, including our ability to access the capital markets to meet our liquidity
needs.
If securities analysts do not publish
research or reports about our business or if they publish negative evaluations of our stock, the price of our stock could decline.
The trading market
for our common stock will rely in part on the research and reports that industry or financial analysts publish about us or our
business. If no or few analysts maintain coverage of us, the trading price of our stock could decrease. If one or more of the analysts
covering our business downgrade their evaluations of our stock, the price of our stock could also decline. If one or more of these
analysts cease to cover our stock altogether, we could lose visibility in the market for our stock, which in turn could cause our
stock price to decline.
The operational and other projections
and forecasts that we may make from time to time are subject to inherent risks, many of which are beyond our control.
The projections and
forecasts that our management may provide from time to time (including, but not limited to, those relating to timing, progress
and anticipated results of clinical development, regulatory processes, clinical trial timelines and any anticipated benefits of
our product candidates) reflect numerous assumptions made by management, including assumptions with respect to our specific as
well as general business, economic, market and financial conditions and other matters, all of which are difficult to predict and
many of which are beyond our control. Accordingly, there is a risk that the assumptions made in preparing the projections, or the
projections themselves, will prove inaccurate. There will be differences between actual and projected results, and actual results
may be materially different from those contained in the projections. The inclusion of the projections in (or incorporated by reference
in) this prospectus should not be regarded as an indication that we or our management or representatives considered or consider
the projections to be a reliable prediction of future events, and the projections should not be relied upon as such. Additionally,
final data may differ significantly from preliminary reported data.
Our certificate of incorporation
and by-laws contain provisions that may discourage, delay or prevent a change in our management team that stockholders may consider
favorable.
Our certificate of
incorporation, our bylaws and Delaware law contain provisions that may have the effect of preserving our current management, such
as:
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authorizing the issuance of “blank check” preferred stock without any need for action by stockholders;
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eliminating the ability of stockholders to call special meetings of stockholders; and
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establishing advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted on by stockholders at stockholder meetings.
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These provisions could
make it more difficult for our stockholders to affect our corporate policies or make changes in our Board of Directors and for
a third party to acquire us, even if doing so would benefit our stockholders.
A significant number of shares of our common stock are
issuable pursuant to outstanding stock awards and warrants, and we expect to issue additional stock awards and shares of common
stock in the future. Exercise of these awards and warrants, and sales of shares will dilute the interests of existing security
holders and may depress the price of our common stock.
As of December 31,
2020, there were approximately 20.6 million shares of common stock outstanding and approximately 0.1 million common warrants outstanding,
as well as outstanding awards to purchase approximately 2.4 million shares of common stock under various incentive stock plans
of the Company. Additionally, as of December 31, 2020, there were approximately 1.0 million shares of common stock available
for future issuance under various incentive plans. We may issue additional common stock, warrants and other convertible securities
from time to time to finance our operations. We may also issue additional shares to fund potential acquisitions or in connection
with additional stock options or other equity awards granted to our employees, officers, directors and consultants under our various
incentive plans. The issuance of additional shares of common stock, warrants or other convertible securities and the perception
that such issuances may occur or exercise of outstanding warrants or options may have a dilutive impact on other stockholders and
could have a material negative effect on the market price of our common stock.
The Company’s ability to utilize
Nile’s net operating loss and tax credit carryforwards in the future is subject to substantial limitations and may further
be limited as a result of the merger with Capricor.
Federal and state income
tax laws impose restrictions on the utilization of net operating loss, or NOL, and tax credit carryforwards in the event that an
“ownership change” occurs for tax purposes, as defined by Section 382 of the Internal Revenue Code of 1986, as
amended, or the Code. In general, an ownership change occurs when stockholders owning 5% or more of a “loss corporation”
(a corporation entitled to use NOL or other loss carryforwards) have increased their aggregate ownership of stock in such corporation
by more than 50 percentage points during any three-year period. If an “ownership change” occurs, Section 382 of
the Code imposes an annual limitation on the amount of post-ownership change taxable income that may be offset with pre-ownership
change NOLs of the loss corporation experiencing the ownership change. The annual limitation is calculated by multiplying the loss
corporation’s value immediately before the ownership change by the greater of the long-term tax-exempt rate determined by
the IRS in the month of the ownership change or the two preceding months. This annual limitation may be adjusted to reflect any
unused annual limitation for prior years and certain recognized built-in gains and losses for the year. Section 383 of the
Code also imposes a limitation on the amount of tax liability in any post-ownership change year that can be reduced by the loss
corporation’s pre-ownership change tax credit carryforwards.
The merger between
Nile Therapeutics, Inc., or Nile, and Capricor resulted in an “ownership change” of Nile. In addition, previous
or current changes in the Company’s stock ownership may have triggered or, in the future, may trigger an “ownership
change,” some of which may be outside our control. Accordingly, the Company’s ability to utilize Nile’s NOL and
tax credit carryforwards may be substantially limited. These limitations could, in turn, result in increased future tax payments
for the Company, which could have a material adverse effect on the business, financial condition, or results of operations of the
Company.
The requirements of being a public
company may strain our resources and divert management’s attention.
As a public company,
we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and other
applicable securities rules and regulations, and are subject to the listing requirements of The Nasdaq Stock Market LLC, or
Nasdaq. Compliance with these rules and regulations will increase our legal and financial compliance costs, make some activities
more difficult, time-consuming or costly and increase demand on our systems and resources. The Exchange Act requires, among other
things, that we file annual, quarterly and current reports with respect to our business and operating results and maintain effective
disclosure controls and procedures and internal control over financial reporting. In order to maintain and, if required, improve
our disclosure controls and procedures and internal control over financial reporting to meet this standard, significant resources
and management oversight is required. In addition, these rules and regulations make it more difficult and more expensive for
us to obtain director and officer liability insurance. As a result, management’s attention may be diverted from other business
concerns, which could harm our business and operating results. Although we have hired employees in order to comply with these requirements,
we may need to hire more employees in the future, which will increase our costs and expenses.
Failure to achieve and maintain effective
internal controls in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 could have a material adverse effect on
our business and stock price.
The Sarbanes-Oxley
Act of 2002, as amended, or Sarbanes-Oxley, as well as rules implemented by the Securities and Exchange Commission, Nasdaq
and any market on which the Company’s shares may be listed in the future, impose various requirements on public companies,
including those related to corporate governance practices. The Company’s management and other personnel will need to devote
a substantial amount of time to these requirements. Moreover, these rules and regulations will increase the Company’s
legal and financial compliance costs and will make some activities more time consuming and costly.
Section 404 of
Sarbanes-Oxley, or Section 404, requires that we establish and maintain an adequate internal control structure and procedures
for financial reporting. Our annual reports on Form 10-K must contain an assessment by management of the effectiveness of
our internal control over financial reporting and must include disclosure of any material weaknesses in internal control over financial
reporting that we have identified. The requirements of Section 404 are ongoing and also apply to future years. We expect that
our internal control over financial reporting will continue to evolve as our business develops. Although we are committed to continue
to improve our internal control processes and we will continue to diligently and vigorously review our internal control over financial
reporting in order to ensure compliance with Section 404 requirements, any control system, regardless of how well designed,
operated and evaluated, can provide only reasonable, not absolute, assurance that its objectives will be met. Therefore, we cannot
be certain that in the future material weaknesses or significant deficiencies will not exist or otherwise be discovered. If material
weaknesses or other significant deficiencies occur, these weaknesses or deficiencies could result in misstatements of our results
of operations, restatements of our consolidated financial statements, a decline in our stock price, or other material adverse effects
on our business, reputation, results of operations, financial condition or liquidity.
You may experience future dilution as a result of future
equity offerings.
In order to raise additional
capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable
for our common stock at prices that may not be the same as the price per share paid by any investor. We may sell shares or other
securities in any other offering at a price per share that is less than the price per share paid by any investor, and investors
purchasing shares or other securities in the future could have rights superior to you. The price per share at which we sell additional
shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or
lower than the price per share paid by any investor.
If our business plans are not successful,
our stockholders may lose their entire investment in us.
We have historically
incurred substantial losses to fund our business operations including our research and development activities. We will, in all
likelihood, sustain operating expenses without corresponding revenues for the foreseeable future. This may result in our incurring
net operating losses that will increase continuously until we are able to obtain regulatory approval for, and commercialize, our
product candidates, the occurrence of which cannot be assured. If our business plans are not successful, our stockholders may lose
their entire investment in us.
We may be at risk of securities class
action litigation or litigation initiated by individual stockholders.
We may be at risk of
securities class action litigation or litigation initiated by individual stockholders. This risk is especially relevant due to
our dependence on positive clinical trial outcomes and regulatory approvals. In the past, biotechnology and pharmaceutical companies
have experienced significant stock price volatility, particularly when associated with binary events such as clinical trials and
product approvals. If we face such litigation, it could result in substantial costs and a diversion of management’s attention
and resources, which could harm our business and result in a decline in the market price of our common stock.
In the event we fail to satisfy any
of the listing requirements of The NASDAQ Capital Market, our common stock may be delisted, which could affect our market price
and liquidity.
Our common stock is
listed on The NASDAQ Capital Market. For continued listing on The NASDAQ Capital Market, we will be required to comply with the
continued listing requirements, including the minimum market capitalization standard, the minimum stockholders’ equity requirement,
the corporate governance requirements and the minimum closing bid price requirement, maintaining Board diversity among other requirements.
In the event that we fail to satisfy any of the listing requirements of The NASDAQ Capital Market, our common stock may be delisted.
If our securities are delisted from trading on The NASDAQ Stock Market, however, and we are not able to list our securities on
another exchange or to have them quoted on The NASDAQ Stock Market, our securities could be quoted on the OTC Markets or on the
“pink sheets.” As a result, we could face significant adverse consequences including:
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a limited availability of market quotations for our securities;
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a determination that our common stock is a “penny stock,” which would require brokers trading in our common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;
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a limited amount of news and analyst coverage; and
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a decreased ability to issue additional securities (including pursuant to short-form registration statements on Form S-3) or obtain additional financing in the future.
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If we fail to comply with California
laws governing the diversity of corporate boards of directors, we could be fined by the California Secretary of State.
In September 2018,
California Governor Jerry Brown signed into law Senate Bill 826, or SB 826, which generally requires public companies with principal
executive offices in California to have a minimum number of females on the company's board of directors. As of December 31,
2019, each public company with principal executive offices in California was required to have at least one female on its board
of directors. By December 31, 2021, each public company will be required to have at least two females on its board of directors
if the company has at least five directors, and at least three females on its board of directors if the company has at least six
directors.
Additionally, on September 30,
2020, California Governor Gavin Newsom signed into law Assembly Bill 979, or AB 979, which generally requires public companies
with principal executive offices in California to include specified numbers of directors from "underrepresented communities."
A director from an "underrepresented community" means a director who self-identifies as Black, African American, Hispanic,
Latino, Asian, Pacific Islander, Native American, Native Hawaiian, Alaska Native, gay, lesbian, bisexual or transgender. By December 31,
2021, each public company with principal executive offices in California is required to have at least one director from an underrepresented
community. By December 31, 2022, a public company with more than four but fewer than nine directors will be required to have
a minimum of two directors from underrepresented communities, and a public company with nine or more directors will need to have
a minimum of three directors from underrepresented communities.
Our board of directors
includes one female director, and no directors from an “underrepresented community.” If we do not add at least two
female directors and at least one director from an “underrepresented community” to our board of directors prior to December 31,
2021, we would be out of compliance with SB 826 or AB 979, respectively. An initial violation of either law can result in a fine
from the California Secretary of State in the amount of $100,000, with each subsequent violation resulting in a fine of $300,000.
Risks Related to this Offering
Management will have broad discretion
as to the use of proceeds from this offering, if any, and may not use the proceeds effectively.
We currently anticipate
that any net proceeds from this offering will be used for research related to our product candidates, working capital and general
corporate purposes, which may include, without limitation, engaging in acquisitions or other business combinations. However, we
have not determined the specific allocation of the net proceeds from this offering, if any, among these potential uses. Our management
will have broad discretion as to the application of the net proceeds from this offering, if any, and could use them for purposes
other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that
may not improve our financial condition or market value.
If you purchase any common stock
sold in this offering, you will experience immediate dilution as a result of this offering and future equity issuances.
Because the price per
share of our common stock which may be offered may be higher than the book value per share of our common stock, you will suffer
immediate substantial dilution in the net tangible book value of the common stock you purchase in any such offering. The issuance
of additional shares of our common stock could be dilutive to stockholders if they do not invest in future offerings. Moreover,
to the extent that we issue options or warrants to purchase, or securities convertible into or exchangeable for, shares of our
common stock in the future and those options, warrants or other securities are exercised, converted or exchanged, stockholders
may experience further dilution.
Future sales of our common stock
in the public market could cause our stock price to fall.
Sales of a substantial
number of shares of our common stock in the public market, or the perception that these sales might occur, could depress the market price
of our common stock and could impair our ability to raise capital through the sale of additional equity securities. As of June 11, 2021,
we had 22,877,930 shares of common stock outstanding, all of which shares, other than shares held by our directors and certain officers,
were eligible for sale in the public market, subject in some cases to compliance with the requirements of Rule 144, including the
volume limitations and manner of sale requirements. In addition, shares of common stock issuable upon exercise of outstanding options
and shares reserved for future issuance under our stock incentive plans will become eligible for sale in the public market to the extent
permitted by applicable vesting requirements and subject in some cases to compliance with the requirements of Rule 144.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, together
with any accompanying prospectus supplement, includes and incorporates by reference “forward-looking statements” within
the meaning of the U.S. Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended, which statements involve substantial risks and uncertainties. Forward-looking statements generally relate to future events
or our future financial or operating performance. All statements other than statements of historical fact are “forward-looking
statements” for purposes of this prospectus. In some cases, you can identify forward-looking statements because they contain
words such as “may,” “will,” “would,” “should,” “could,” “expect,”
“plan,” “anticipate,” “intend,” “target,” “project,” “contemplate,”
“believe,” “estimate,” “predict,” “seek,” “potential,” “ongoing,”
“goal,” or “continue,” or the negative of these words or other similar terms or expressions that concern
our expectations, strategy, plans or intentions. Forward-looking statements contained in this prospectus include, but are not limited
to, statements about:
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how long we expect to maintain liquidity to fund our planned level of operations and our ability to obtain additional funds for our operations;
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the identification and development of our drug and vaccine candidates, including when we expect to undertake, initiate and complete clinical trials of our candidates;
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the expectation, plans, projections, initiation, timing, progress and results of our research and development programs, preclinical studies, any clinical trials, Investigational New Drug, or IND, filings, Clinical Trial Application, or CTA, filings, New Drug Application, or NDA, filings, and other regulatory submissions;
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the regulatory approval of any of our drug and vaccine candidates;
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our use of clinical research centers, third party manufacturers and other contractors;
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our ability to find collaborative partners for research, development and commercialization of our product candidates and retain commercial rights for our product candidates in the collaborations;
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our ability to manufacture products for clinical and commercial use;
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our reliance on third party suppliers and manufacturers to supply the materials and components for, and manufacture, our research and development, preclinical and clinical trial drug supplies;
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our ability to protect our patents and other intellectual property;
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our ability to commercialize and market any of our products;
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the implementation of our business model and strategic plans for our business, technologies and product candidates;
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our estimates of our expenses, ongoing losses, future revenue and capital requirements;
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our ability to secure and maintain adequate protection for our patents and other intellectual property protection for our technologies and product candidates;
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our ability to operate our business without infringing the intellectual property rights of others;
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our reliance on third parties to conduct our preclinical studies or any clinical trials;
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our ability to compete against other companies and research institutions;
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our ability to expand our operations internationally;
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the effect of potential strategic transactions on our business;
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the rate and degree of acceptance of our product candidates by doctors, patients or payors and the availability of reimbursement for our product candidates;
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our financial performance;
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our ability to attract and retain key personnel; and
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the volatility of our stock price.
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We caution you that
the forward-looking statements highlighted above do not encompass all of the forward-looking statements made in this prospectus.
These forward-looking
statements relate to future events or to our future financial performance and involve known and unknown risks, uncertainties and
other factors that may cause our actual results, performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by these forward-looking statements. You should not rely upon forward-looking
statements as predictions of future events. In evaluating such forward-looking statements, you should specifically consider various
factors that may cause actual results to differ materially from current expectations, including the risks outlined under the heading
“Risk Factors” contained in this prospectus, any prospectus supplement and any related free writing prospectus, and
in any other documents incorporated herein or therein (including in our most recent annual report on Form 10-K, subsequent
quarterly reports on Form 10-Q and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act). We have based the forward-looking statements contained in this prospectus primarily on our current expectations
and projections about future events and trends that we believe may affect our business, financial condition, results of operations
and prospects. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other
factors described in the section of this prospectus entitled “Risk Factors” and elsewhere in this prospectus, any prospectus
supplement and any related free writing prospectus. Moreover, we operate in a very competitive and challenging environment. New
risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could
have an impact on the forward-looking statements contained in this prospectus. We cannot assure you that the results, events and
circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events or circumstances
could differ materially from those described in the forward-looking statements. Additionally, final data may differ significantly
from preliminary data reported in this document.
The forward-looking
statements made in this prospectus, any accompanying prospectus supplement, any related free writing prospectus and any document
incorporated herein by reference relate only to events as of the date on which the statements are made. We undertake no obligation
to update any forward-looking statements made in this prospectus to reflect events or circumstances after the date of this prospectus
or to reflect new information or the occurrence of unanticipated events, except as required by law. We may not actually achieve
the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our
forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers,
dispositions, joint ventures or investments we may make.
This prospectus, together
with any accompanying prospectus supplement, also contains statistical data, estimates, forecasts, and projections that are based
on independent industry publications or other publicly available information, as well as other information based on our internal
sources. Information that is based on statistical data, estimates, forecasts, projections or similar methodologies is inherently
subject to uncertainties and actual events or circumstances may differ materially from events and circumstances reflected in this
information. Unless otherwise expressly stated, we obtained these industry, business, market and other data from reports, research
surveys, studies and similar data prepared by third parties, industry, medical and general publications, government data and similar
sources. In some cases, we do not expressly refer to the sources from which these data are derived. Although we believe that the
third-party sources referred to in this prospectus are reliable, we have not independently verified the information provided by
these third parties. While we are not aware of any misstatements regarding any third-party information presented in this prospectus,
their estimates, in particular, as they relate to projections, involve numerous assumptions, are subject to risks and uncertainties,
and are subject to change based on various factors, including those discussed under the section of this prospectus entitled “Risk
Factors” and elsewhere in this prospectus.