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PTE:Segments
PART
I
Item
1. Business
Overview
PolarityTE,
Inc., headquartered in Salt Lake City, Utah, is a biotechnology company developing regenerative tissue products and biomaterials.
We also operate a laboratory testing and clinical research business using equipment, personnel, and facilities we acquired to
advance our development of regenerative tissue products.
Regenerative
Tissue Product
Our
first regenerative tissue product is SkinTE, which is intended for the repair, reconstruction, replacement, and supplementation
of skin in patients who have a need for treatment of acute or chronic wounds, burns, surgical reconstruction events, scar revision,
or removal of dysfunctional skin grafts. SkinTE was registered and listed with the United States Food and Drug Administration
(“FDA”) in August 2017 based on our determination that SkinTE is appropriately regulated solely under Section 361
of the Public Health Service Act and Part 1271 of Title 21 of the Code of Federal Regulations (i.e., as a so-called 361 HCT/P)
and that, as a result, no premarket review or approval by the FDA was required. We proceeded to develop sales and manufacturing
capabilities for SkinTE and focused on advancing commercialization of SkinTE. We began a regional commercial rollout of SkinTE
in October 2018.
Following
informal, voluntary discussions between us and the FDA we were advised by the FDA in April 2020 that its preliminary assessment
is that SkinTE does not meet the requirements to be regulated solely as a 361 HCT/P. Rather, the FDA’s preliminary assessment
was that SkinTE is a biological product that should be regulated under Section 351 of the Public Health Service Act. We re-evaluated
our regulatory approach and determined it is prudent to submit an investigational new drug application (“IND”) for
SkinTE and an eventual biologics license application (“BLA”) because we believe it will create a more valuable asset
with a greater likelihood of achieving widespread commercial adoption, and to avoid the possibility of a protracted dispute with
the FDA. As a result of the change in the regulatory approach for SkinTE, we decided to adjust our SkinTE commercial operations
accordingly.
The
FDA developed and published in November 2017 a regenerative medicine policy framework to help facilitate regenerative medicine
therapies. Under the framework, the FDA stated its intent to exercise enforcement discretion until November 2020 with respect
to the FDA’s IND and premarket approval requirements, which was subsequently extended through May 2021. We continued to
sell SkinTE as a 361 HCT/P in 2020 and into 2021 in reliance on our view that there is a reasonable basis for regulating SkinTE
as a 361 HCT/P and also in reliance on the enforcement discretion position stated in the policy framework. In May 2020, we effectuated
a reduction in force within our regenerative medicine business segment to reduce historical monthly cash burn and preserve capital
for pursuing the filing of an IND. Since then we have focused our commercial effort for SkinTE on the territories where we have
current and repeat users of SkinTE.
We
have evaluated the question of whether the FDA may extend enforcement discretion on regenerative medical products, and as of the
date of this report the FDA has not taken any action on extending enforcement discretion. Following the end of the FDA’s
period of enforcement discretion, we may need to cease selling SkinTE until the FDA approves a BLA, and then we will only be able
to market the product for indications that have been approved in a BLA. We cannot predict at this time when we may decide on continuing
SkinTE sales because of the uncertainty around the decisions the FDA may make in this area.
We
plan to focus our SkinTE activity on the preparation and submission of an IND in the second half of 2021, and the commencement
of clinical trials under that IND once it is open. We believe that the network of physicians and other healthcare providers who
have treated more than 1,100 patients to date with SkinTE will provide valuable support for our clinical development program as
we work towards a BLA for SkinTE.
Testing
and Research Services
Beginning
in 2017 we developed internally a laboratory and research capability to advance the development of SkinTE and related technologies,
which we operate through our subsidiary, Arches Research, Inc. (“Arches”). At the beginning of May 2018, we acquired
a preclinical research and veterinary sciences business to be used, in part, for preclinical studies on our regenerative tissue
products, which we operate through our subsidiary IBEX Preclinical Research, Inc. (“IBEX”). Through Arches and IBEX,
we also offer research and laboratory testing services to unrelated third parties on a contract basis.
There
was a substantial surge in COVID-19 testing throughout the United States as a result of the COVID-19 pandemic, which began in
the spring of 2020. In the course of its operations, Arches maintains equipment and staff capable of performing molecular polymerase
chain reaction testing for COVID-19, which made it possible for Arches to begin providing COVID-19 testing services at the end
of May 2020. We believe that COVID-19 testing offers an opportunity to use existing resources to generate additional revenue in
the contract services segment and thereby help defray our operating expenses. We provided COVID-19 testing services through the
end of 2020, which we expect will continue in 2021.
SkinTE
The
Importance of Skin
Skin
has several functions. It provides a barrier to water loss and pathogens, and protects against diverse forms of trauma,
including thermal, chemical, and ultraviolet radiation. Skin keeps us in touch with our environment through a host of nerve endings,
regulates body temperature, and enhances metabolic functions. Skin is an active immune organ functioning as a first line of defence
against a wide spectrum of common pathogens encountered on a regular basis. Biosynthesis of melanin in the skin reduces the
harmful effects of ultraviolet light. Skin is a ready source of vitamin D, which plays an important role in maintaining healthy
levels of serum calcium and resorption of bone.
The
clinical significance of skin is illustrated by the morbidity associated with chronic wounds, burns, and cutaneous defects. A
12-month prospective observational study of diabetic foot ulcers first published in Diabetic medicine : a journal of the British
Diabetic Association in 2018 reported that out of a group of 299 patients, 17.4% had some sort of amputation of the foot and
6.0% of the 299 patients underwent revascularization surgery. A report published on Medscape in June 2018 states that pressure
injuries are listed as the direct cause of death in 7-8% of all patients with paraplegia. And according to statistics collected
by the National Burn Repository, the mortality rate from 2008 to 2017 among burn patients treated at surveyed burn centers is
approximately 3%. We believe that the regeneration of full-thickness skin with all the processes and appendages that enable it
to perform its vital functions is critical to long-term, positive patient outcomes following serious skin injury.
Limitations
of Other Skin Treatment Therapies
Current
clinical standards and practice adhere to the concept that skin should be replaced with skin whenever possible in settings where
patients have suffered the loss of such tissue. Understanding this, medical professionals are left with a decision to attempt
to temporize a wound bed with an autograft (using the patient’s own skin in a skin graft), an allograft (using human skin
from a donor), or a variety of skin substitutes to provide a skin-like barrier while the margin of the wound heals through secondary
intention and contraction. Historically, harvest and placement of autologous full-thickness skin results in the best outcome within
wound beds because it most closely resembles the full-thickness skin that was lost. However, full-thickness harvest of skin also
results in a full-thickness skin defect at the donor site, which requires primary closure (skin edge approximation and suturing)
so as not to leave a gaping wound behind. Because of this absolute limit on how much autologous full-thickness donor skin can
be harvested without leaving behind a non-closable wound, medical professionals can only harvest small, elliptically shaped pieces
of such skin from areas of redundancy, which is termed full-thickness skin grafting (“FTSG”).
It
is because there remains only a finite supply of FTSG donor material and sites that medical professionals often rely on the harvest
of split-thickness skin grafts (“STSG”) for coverage of voids of the integument to get better coverage and more skin.
STSGs, however, do not represent the true anatomy or function of native skin because STSG harvest procedures commonly take the
top 1/10,000th of an inch of the patient’s own skin and therefore do not capture all the necessary cellular and tissue components
and structures required for the regeneration of normal skin.
Because
of the failure to harvest all the necessary skin structures and components from the STSG donor site, the patient is left with an incomplete
top layer of skin covering the initial defect (recipient site) and a remaining bottom layer at the donor site. In this setting, both
donor and recipient sites contain incomplete skin, which often results in dysfunctional, painful scar tissues and lifelong morbidities.
Due
to the limits of STSG and FTSG and the type of procedures required for such harvests, the industry has continued to investigate
skin substitutes and skin alternatives that can be used in place of native skin. Among these alternatives or options are a cultured
epithelial autograft (a form of manipulated autograft), allograft (tissue grafts derived from a donor of the same species as the
recipient but not genetically identical), xenograft (a tissue graft or organ transplant from a donor of a different species from
the recipient), and engineered skin substitutes. To our knowledge, none of these substitutes have been able to regenerate the
cutaneous appendages (e.g., hair follicle, sweat gland, sebaceous glands, etc.), which are necessary for the development of full-thickness,
normal skin.
Our
Solution - SkinTE
The
core technology of SkinTE is minimally polarized functional units (“MPFUs”). MPFUs are multi-cellular segments created
from a piece of the patient’s healthy skin. SkinTE allows the patient to regenerate full-thickness, three-dimensional skin
(similar to a FTSG) by contributing a much smaller skin sample, while reducing the scarring and morbidities associated with STSGs,
and producing results we believe to be superior to STSGs and synthetic skin substitutes. SkinTE can be utilized by a variety of
health care providers in an operating room, wound clinic, or doctor’s office. The process begins with the collection of
a skin sample from the patient and shipping the sample in a temperature-controlled shipping box to our FDA-regulated biomedical
manufacturing facility. The harvested skin is used to manufacture SkinTE, which is expeditiously returned for application to the
patient’s wound. Processing of the skin creates multi-cellular segments that are optimized for grafting, which retain the
progenitor cells found throughout the skin, including the hair follicles. The product is not cultured or expanded ex-vivo,
and no enzymes, growth factors, or serum derivatives are utilized during manufacturing. The final product, SkinTE, is delivered
in a syringe and has the consistency of a paste. Following wound bed preparation, SkinTE is spread evenly across the entire surface
of the wound and engrafts within the wound in a similar manner to traditional skin grafts. Once integrated with the wound bed,
the product expands and regenerates full-thickness skin across the entire surface.
Given
our significant real-world experience with SkinTE in clinical settings for a variety of wounds and several supporting publications,
we believe SkinTE can be successful in closing full-thickness complex wounds, such as DFUs penetrating to tendon, capsule, and
bone classified Wagner Grades 2 through 4; Stage 3 and 4 pressure injuries; and, acute wounds. Full-thickness DFUs that penetrate
to deep structures are best classified as University of Texas Grades 2 and 3, corresponding to Wagner Grades 2 through 4, and
are at the highest risk for progressing to amputation with very few treatment options and a paucity of high-level data related
to current treatment options. Similarly, Stage 3 pressure injuries involve the entire thickness of the skin and Stage 4 pressure
injuries have exposed muscle, tendon, or bone. Due to limited reliable solutions, these injuries affect a large number of people
for extended periods of time. We believe that focusing our efforts in these hard-to-treat wound types, where there are significant
unmet needs, can deliver substantial positive impacts in patients’ lives and value for the SkinTE franchise for several
reasons.
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Although
these distinct wound types may occur in patients with different demographics and have different etiologies, they have common
characteristics including significant wound depth, significant wound volume, frequent presence of tunneling and undermining,
and exposure of critical structures.
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Wounds
with these characteristics often require multiple treatment stages in order to fill volume and cover exposed structures before
proceeding to traditional skin grafts or more invasive reconstruction. There is a paucity of high-level data to guide the
progression through these treatment options.
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In
our experience, wound care providers are focused on finding better treatments due to their unaddressed challenges and the
seriousness of their outcomes, where failure of treatments may result in both the acute occurrence and elevated lifetime risk
of amputation, long-term disability, and death.
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Clinically,
we believe SkinTE is highly differentiated from current treatment alternatives in these hard-to-treat wound types. In real-world
experience and data from preliminary studies conducted to date, we believe that SkinTE has covered exposed critical structures,
completely filled in wound depth including tunnelling, and ultimately provided complete and durable wound closure with
the regenerated tissue having many of the important characteristics of native skin such as pliability, strength, sensation, ability
to sweat, and hair growth. In contrast to a multi-staged approach combining numerous treatments in an algorithm dictated by wound
progression, SkinTE can be applied directly into deep wounds with exposed structures, typically requires only a single application
in the vast majority of cases and, unlike other products in this space, may not require a skin graft to achieve final closure.
In our experience, providers treating complex wounds are most concerned with reliably covering deep structures, as this mitigates
a substantial risk factor for the patient and converts the wound to a lower grade that is more manageable. We believe that covering
deep structures and filling wound volume with newly generated vascular tissue is an important advantage of SkinTE and differentiates
SkinTE from other treatments that have increased failure rates in these hard-to-treat wound settings. Another valuable aspect
of SkinTE clinically is that it is created from a relatively small skin harvest that is well tolerated by the patient.
We
believe that patients with complex wounds face significant unmet needs, and that providers are motivated to better address them.
If our future clinical trials conducted under an IND demonstrate outcomes similar to those observed in real-world experience and
preliminary clinical studies, we believe that SkinTE has the potential to shift practice patterns, accelerate adoption, and capture
a significant portion of these hard-to-treat wound markets.
Clinical
Trials
We
have initiated and completed several clinical trials and have additional clinical trials underway. All clinical trials to date
have been conducted on a post-marketing basis with SkinTE as a 361 HCT/P. As we transition to a BLA, and as discussed in more
detail under “Our Plan for Advancing SkinTE” below, we will be conducting additional clinical trials once we have
an open IND for SkinTE with the FDA, and we expect that those registration trials will be used to support our eventual BLA submission.
We believe that the data from our clinical trials to date, however, are valuable as robust evidence of the strong safety and efficacy
profile of SkinTE, and plan to include information from these trials in our IND submission to the FDA.
Burns
and Traumatic Wounds
We
initiated a head-to-head trial comparing SkinTE to the STSG, the clinical standard of care, in the first quarter of 2018. Eight
patients were enrolled in the trial and the primary endpoint for the trial was graft take. Data from the trial was published in
the Journal of Burn Care & Research in September 2020. Eight patients with deep-partial/full thickness burns had a
portion of their wounds treated with SkinTE and the remainder of their burn treated with split-thickness skin grafting. The SkinTE
treated wounds had graft take and achieved closure by their last follow-up with a single application. There were no related adverse
events pertaining to the SkinTE applications in the trial.
Diabetic
Foot Ulcer (DFU) Trials
DFUs
are chronic wounds and represent one of the most costly, and medically significant, health related morbidities encountered during
a patient’s lifetime. The estimated annual US payor burden of DFU ranges from $9.1 billion to $13.2 billion according to
a 2014 article in Diabetes Care, a publication of the American Diabetes Association. The outpatient management of DFUs
represents the major contributing cost to the health care system. Inadequate assessment and management with chronicity of treatment
is one of the primary cost drivers and failures of care.
SkinTE
was used to treat 10 patients (11 DFUs) in a pilot trial completed in June 2019, and first reported at the Symposium on Advanced
Wound Care Fall 2019. The following are the results as determined by independent review:
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10
of 11 (90.9%) DFUs healed within eight weeks of a single application of SkinTE
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Median
time to closure was 25 days
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DFU
sizes ranged from 1.0 to 21.7 cm2
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One
patient was removed from the study at week three due to adverse events not related to the study or SkinTE procedure
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No
SkinTE-related adverse reactions were observed
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We
are now engaged in a multicenter, randomized controlled trial evaluating SkinTE plus standard of care (SOC) versus SOC alone in treatment
of DFU (the DFU RCT). The size of the study is 100 patients and the final patient was enrolled in January 2021. The primary endpoint
is percentage of ulcers closed at 12 weeks. Secondary endpoints include percent area reduction (PAR) at 4, 6, 8, and 12 weeks, quality
of life assessment at 12 weeks, pain assessment at 12 weeks, peripheral neuropathy assessment at 12 weeks, and cost-effectiveness.
In
July 2020, we reported data from an interim analysis of the DFU RCT. The analysis was based on 25 SkinTE/SOC patients and 25 SOC
patients at 13 sites across the United States. All patients received only one application of SkinTE, except two patients who received
reapplication due to inadvertent removal of the original product (mean 1.08 applications per SkinTE/SOC subject). Key demographics
included:
Mean wound area (cm2):
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Mean wound age (weeks):
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SkinTE/SOC:
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4.3
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SkinTE/SOC:
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25.3
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SOC:
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3.3
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SOC:
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22.1
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For
the primary endpoint, 18 of 25 DFUs (72%) in the SkinTE/SOC group closed at 12 weeks, 8 of 25 DFUs (32%) in the SOC group closed
at 12 weeks, and the associated p-value for these results is 0.005. For the PAR secondary endpoint, the interim analysis
showed:
Week
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SkinTE/SOC
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SOC
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p-value
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4
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78.6%
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24.0%
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0.00021
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6
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83.2%
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43.8%
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0.004
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8
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86.6%
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47.2%
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0.002
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12
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88.2%
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49.6%
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0.012
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Furthermore,
there was no significant difference between SkinTE/SOC closed wounds and SOC closed wounds with respect to the quality of life
assessment at 12 weeks, pain assessment at 12 weeks, and peripheral neuropathy assessment at 12 weeks. In our interim analysis
for the DFU RCT we calculated mean total product cost per patient by multiplying current pricing for SkinTE by the number of applications
required per patient (1.08 mean applications per patient), resulting in a SkinTE mean total product cost per treated wound of
$1,311.20.
Venous
Leg Ulcer (VLU) Trials
VLUs
are a type of chronic wound and constitute a significant burden on the worldwide health care system and are often refractory to
treatment. Up to one-third of treated patients experience four or more episodes of recurrence. Delivering all the elements of
native skin can potentially reduce the recurrence rate.
SkinTE
was used to treat 10 patients in a pilot trial completed in September 2019, and first reported at the Symposium on Advanced Wound
Care Fall 2019, where we received recognition as Best Abstract. The following are the results as determined by independent review:
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8
of 10 (80%) VLUs closed within 12 weeks of a single application of SkinTE
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Of
the two VLUs not deemed closed within 12 weeks: one VLU was the largest in the study (12.2cm2), and closed within
13.5 weeks post a single application of SkinTE; one VLU was previously deemed closed, and reopened prior to the two-week durability
visit as a result of external factors unrelated to the SkinTE procedure
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Median
time to closure was 21 days
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No
SkinTE-related adverse reactions were observed
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We
started a multicenter, randomized controlled trial evaluating SkinTE versus standard of care in treatment of VLU, but decided
in the first quarter of 2021 to suspend that trial after 30 patients were enrolled because we believed that our resources would
be better used in future clinical trials conducted under an open IND that can be used in our eventual planned BLA submission.
Market
Opportunity
The
primary markets for SkinTE are wounds from traumatic injury, chronic wounds (including DFUs, VLUs, and pressure ulcers), burn
wounds, and acute wounds, such as traumatic wounds and wounds from surgical procedures.
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We
believe SkinTE is suitable for treating a number of acute wounds. In 2017 the inpatient traumatic injury rate was 524.3 persons
for every 100,000 people. This resulted in an estimated 1.8 million traumatic injuries per year requiring inpatient hospitalization
of which approximately 5% are directly related to open wounds.
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The
National Diabetes Statistics Report published in 2020 by the Centers for Disease Control stated that there are approximately
34.2 million diabetes sufferers in the United States. The American Diabetes Association report on the economic costs of diabetes
in 2017 states that the direct medical cost of diabetes in that year was $237 billion. A 2005 article estimated the number
of DFUs at between 1.2 and 3.0 million, and a 2003 article estimated the prevalence of unhealed DFUs after 12 weeks of conventional
treatment at between 1.0 and 2.5 million. The estimated annual US payor burden of DFU ranges from $9.1 billion to $13.2 billion
according to a 2014 article in Diabetes Care.
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A
2010 article reports the prevalence of venous ulcers at approximately 600,000 annually, and a subsequent 2014 article reports
that on average between 33% and 66% of these ulcers persist for six weeks and are, therefore, referred to as chronic, resulting
in approximately 200-360 thousand patients per year that we believe would be potential candidates for treatment with SkinTE.
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Pressure
Ulcers are common in hospital systems, increase patient morbidity and mortality, and are costly for patients and the healthcare
system. According to the Agency for Healthcare Research & Quality (AHRQ) there are more than 2.5 million individuals that
develop pressure ulcers annually, and approximately 600-700 thousand people are admitted to hospitals with one or more pressure
ulcers. Of these ulcers, approximately 77% are treated with both topical therapies and excisional surgical debridement.
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The
American Burn Association estimates that every year over 450,000 serious burn injuries occur in the United States that require
medical treatment and that approximately 40,000 of these resulted in hospitalization.
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Our
Plan for Advancing SkinTE
As
discussed above under “Overview,” we decided in April 2020 to pursue the preparation and filing with the FDA of an
IND and BLA for SkinTE. Consequently, in May 2020 we effectuated a reduction in force within our regenerative medicine business
segment to reduce monthly cash burn. At the end of 2020 we had approximately 10 salespeople and six clinical science staff that
supported the sales team. In the coming months we will pursue the preparation of an IND filing with the FDA, which we believe
we will be able to file in the second half of 2021.
In
August 2020 we submitted a Type B Pre-IND meeting request to FDA regarding an indication for SkinTE to treat DFUs, and we received
written responses to our meeting request and questions in October 2020. FDA’s responses included, among other things, feedback,
and recommendations on SkinTE manufacturing, preclinical studies, and clinical data submitted in the Company’s briefing
package, and guidance on additional information for the Company to include in its IND submission. Consistent with published FDA
guidance documents, including “Guidance for Industry: Providing Clinical Evidence of Effectiveness for Human Drug and Biological
Products,” the Agency stated that for a condition like DFUs, it would generally expect at least two adequate and well-controlled
studies to provide substantial evidence of effectiveness and evidence of safety to support a future marketing application. The
Agency noted that our ongoing DFU RCT has elements of an adequate and well-controlled study but stated that it would not accept
our ongoing post-marketing DFU RCT as one of the two adequate and well-controlled studies to support a future marketing application.
Based
on FDA’s feedback and our real-world experience with SkinTE, we plan to pursue multiple indications addressing complex wounds,
including wounds with exposed critical structures. The initial indications we plan to pursue are DFUs penetrating to tendon, capsule,
and bone classified Wagner Grades 2 through 4 (corresponding to University of Texas Grades 2 and 3), Stage 3 and 4 pressure injuries,
and acute wounds. These wound types occur in patients with different demographics and have different etiologies, but they have
common characteristics including significant wound depth, significant wound volume, frequent presence of tunnelling and
undermining, and exposure of critical structures. We believe much of the chemistry, manufacturing, and controls (CMC) work, as
well as preclinical work, that we would do for our initial IND in the DFU indication can be leveraged for multiple subsequent
indications. Our present intention is to focus our efforts on an initial IND submission for the above-referenced DFU indication
and make further IND submissions to develop the indications for pressure injuries and acute wounds either in parallel or a tight
sequential process.
The
Company has maintained a collaborative dialogue with the FDA and will continue to work closely with the FDA as it progresses towards
its BLA submission. Upon BLA approval, we believe that SkinTE we will have 12 years of data exclusivity with regard to potential
biosimilars.
Biological
Product License Application (BLA) Pathway
Biological
products subject to BLA requirements are approved under the Public Health Service Act. Biological products require FDA approval
of a BLA to be marketed. In order to be approved, a BLA must demonstrate the safety, purity and potency of the product candidate
based on results of preclinical studies and clinical trials. A BLA must also contain extensive CMC and other manufacturing information,
and the applicant must pass an FDA pre-approval inspection of the manufacturing facility or facilities at which the biologic product
is produced to assess compliance with the FDA’s current Good Manufacturing Practices (cGMP). Satisfaction of FDA approval
requirements for biologics typically takes several years and the actual time required may vary substantially based on the type,
complexity, and novelty of the product. We cannot be certain that any BLA approvals for our products will be granted on a timely
basis, or at all.
The
steps for obtaining FDA approval of a BLA to market a biologic product in the U.S. ordinarily include:
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completion
of preclinical laboratory tests, animal studies and formulation studies under the FDA’s good laboratory practices regulations;
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submission
to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may begin and include
independent Institutional Review Board (IRB) approval before the trials may be initiated;
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performance
of one or more adequate and well-controlled clinical trials in accordance with Good Clinical Practices to establish the safety
and efficacy of the product for each indication;
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submission
to the FDA of a BLA, which contains detailed information about CMC for the product, reports of the outcomes, and full data
sets of the clinical trials, and proposed labeling and packaging for the product;
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satisfactory
review of the contents of the BLA by the FDA, including the satisfactory resolution of any questions raised during the review;
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satisfactory
completion of an FDA Advisory Committee review, if applicable;
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satisfactory
completion of an FDA inspection of the manufacturing facility or facilities at which the product is produced to assess compliance
with cGMP regulations, to assure that the facilities, methods and controls are adequate to ensure the product’s identity,
strength, quality, and purity; and
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FDA
approval of the BLA including agreement on post-marketing commitments, if applicable.
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Preclinical
tests typically include laboratory evaluations of product chemistry, toxicity, and formulation, as well as animal studies, and
an IND sponsor must submit the results of the preclinical tests, together with manufacturing information and analytical data,
to the FDA as part of the IND. In our communications with the FDA, the FDA has informed us that its current position is that additional
preclinical studies are not required to support initiation of a clinical trial once the IND is effective, but this is not a final
determination, and the Company still expects to conduct certain additional preclinical work as part of its SkinTE development
program, including a toxicology study conducted under Good Laboratory Practices with a three-month terminal timepoint.
The
IND must become effective before human clinical trials may begin. An IND will automatically become effective 30 days after receipt
by the FDA, unless before that time the FDA raises concerns or questions about issues such as the conduct of the trials and or
supporting preclinical data as outlined in the IND. In that case, the sponsor and the FDA must resolve any outstanding FDA concerns
or questions before clinical trials can proceed. In other words, submission of an IND may not result in the FDA allowing clinical
trials to commence.
We
plan to submit an IND for SkinTE for the treatment of certain DFUs in the second half of 2021, and plan to commence clinical trials
for this indication shortly after the IND becomes effective.
Our
SkinTE Sales Activity in 2020
We
have observed that the sales process is affected by several factors, including the receptiveness of the physician to consider
and then adopt a new therapeutic approach, facility administrative approval where required, the nature and type of wounds treated
at a target account, and the incidence of wound care cases at target accounts. We also believe that the previous lack of SkinTE
clinical trials, which we were not required to obtain before commercialization as a 361 HCT/P, has adversely affected the willingness
of healthcare providers to use SkinTE.
In
the first part of 2020 the sales process for SkinTE met a new challenge with the COVID-19 pandemic that broke out in March 2020,
which grew rapidly in the United States as spring began. Throughout the country, healthcare assets in terms of facilities and
providers were marshalled and dedicated to the care and treatment of COVID-19 patients while still trying to meet the acute and
traumatic care needs of the general population. Consequently, medical care and procedures that are considered “elective”
were put on hold in many regions across the country. Many of the initial economic effects in the healthcare industry of the early
stages of the COVID-19 outbreak in the United States and the shift in healthcare resources occurred during the last three weeks
of the quarter ended March 31, 2020, and we observed that some SkinTE procedures planned for the second calendar quarter were
postponed, cancelled, or not scheduled as a direct result of the COVID-19 pandemic. The impact was most evident in chronic wounds
without amputation risk. As a result of the shift in patient care due to COVID-19, other challenges in the sales offering, and
the shift in our regulatory pathway for SkinTE, beginning in May 2020, our commercial team focused the sales effort on regions
where we had repeat customers that are hospital groups or large facilities that treat acute and traumatic wounds conditions. Consequently,
in 2020 38% of our net revenues from SkinTE sales were generated at one hospital system.
SkinTE’s
pricing structure is designed to be competitive in the marketplace and reflects SkinTE’s ability to deliver durable, functional
full-thickness skin replacement with only one application, compared to the costly practice of regular wound care over a long period
of time. Our practice has been to work closely with our customers to ensure that pricing is not a barrier to use of SkinTE for
patient care.
We
have continued to sell SkinTE in 2021, but as discussed above under “Overview” we may need to cease selling SkinTE
if FDA enforcement discretion ends and while a BLA is pending until the FDA approves a BLA, and then we will only be able to market
SkinTE for the indications that have been approved in the BLA.
Payment
and Reimbursement
Inpatient
Setting.
In
the inpatient setting, facility reimbursement is dictated by the associated bundled Medicare Severity-Diagnosis Related Group
(MS-DRG) payment for the entire episode of care under the Medicare Inpatient Prospective Payment System (IPPS). The bundled DRG
facility payment is determined by the DRG code applied, which factors in the primary diagnosis and patient characteristics, such
as co-morbidities present on admission. In this scenario, all products and supplies utilized during the episode of care are paid
for with the bundled DRG facility payment, including products like SkinTE. In addition, physician services are billed and reimbursed
outside of the bundled DRG facility payment, including any procedures performed during that admission, which are billed for and
reimbursed utilizing Current Procedural Terminology (CPT) codes associated with the respective procedures. SkinTE has been used
within the inpatient setting and reimbursed underneath the applicable DRG bundled facility payments, and to our knowledge all
associated procedures billed for outside the DRG as physician services with CPT codes have been reimbursed, as well.
Hospital
Outpatient Department (HOPD) and Ambulatory Surgical Center (ASC) Setting.
Like
the inpatient setting, bundled Ambulatory Payment Classification (APC) facility payments are received under the Medicare Outpatient
Prospective Payment System (OPPS) for services and supplies utilized for procedures within Hospital Outpatient Departments (HOPDs)
and Ambulatory Surgical Centers (ASCs). In these settings, bundled APC facility payments are dictated by the procedures performed
and billed for through the appropriate CPT codes. SkinTE has been used in these settings and covered with the associated bundled
APC facility payments and physician services have been paid for outside of the APC payment utilizing CPT codes to bill for the
associated procedures.
Office
or Clinic Setting.
In
contrast to the inpatient, HOPD, and ASC settings, care provided in a physician office or clinic is reimbursed based on individual
Healthcare Common Procedure Coding System (HCPCS) and CPT codes, facilitating reimbursement for the specific products utilized
and procedures performed during the clinic visit. The CPT codes used in the setting are the same or similar to the CPT codes used
to bill for physician services in the other settings of care. We believe there are appropriate Level 1 CPT Codes within the Full
Thickness Skin Graft code category, in addition to Surgical Preparation codes with appropriate modifiers (52 & 58) that are
appropriate for SkinTE.
Development
Projects
Preparing
and filing our IND with the FDA and beginning necessary clinical trials are the focus of our operational activity. We have development
projects, however, that we believe will add value to SkinTE if and when we obtain pre-market approval.
SkinTE
Cryo
SkinTE
Cryo allows us to offer multiple deployments from one original harvest through a cryopreservation process. We believe this is
a valuable offering that will enhance our SkinTE product offering for several reasons. Using one harvest for multiple deployments
may improve patient treatment when a patient is susceptible to multiple chronic wounds, the provider suspects a patient might
require a second deployment of SkinTE due to past non-compliance with rehab protocols, or the provider elects to use a staged
deployment on a patient with a large wound due to wound location or other therapeutic circumstances. SkinTE Cryo is in the development
stage and is a long-term development project.
SkinTE
POC
Our
SkinTE point-of-care device is intended to permit the processing and deployment of SkinTE immediately following the initial harvest
at the point-of-care. SkinTE POC is in the development stage and is a long-term development project.
PTE
11000
PTE
11000 is an allogenic, biologically active dressing for use in wound care and aesthetics to accelerate healing of skin. It is
a composition made using cadaveric tissue via a proprietary process. It is currently in the preclinical phase of development and
we cannot predict when that phase may be complete.
Other
Potential Products
We
believe our innovative technologies may be platforms for developing therapies that address a variety of indications, including
bone, cartilage, muscle, blood vessels, and neural elements, as well as solid and hollow organ composite tissue systems. For the
foreseeable future, however, we intend to apply our business and financial resources to the SkinTE IND and BLA, and SkinTE-related
projects described above, and we have at this time put on hold further development work on OsteoTE and products related to other
tissue substrates so that we can focus our resources on SkinTE.
Manufacturing
Throughout
2020 we maintained at our facility in Salt Lake City, Utah, manufacturing processes and quality systems that allow us to receive
a skin specimen, qualify the incoming tissue, process and manufacture the SkinTE tissue product, and perform outgoing quality
control and quality assurance work prior to shipping. We validated our manufacturing process as being aseptic. All SkinTE is manufactured
within an ISO 5 isolator located within an ISO 7 cleanroom. Our processes are designed and validated to prevent the spread of
communicable disease, and to prevent cross-contamination between samples. Our quality systems comply with current Good Tissue
Practices (“cGTP”) under 21 C.F.R. Part 1271.
In
connection with the preparation of our IND we are making plans to modify our manufacturing practices and facility so that we comply with
current Good Manufacturing Practices (“cGMP”) under 21 C.F.R. Parts 210 and 211, and other applicable regulations, which
are in addition to cGTP referenced above.
Suppliers
As
part of our strategy of ensuring timely delivery of our products, we have avoided relying on any third-party supplier as a sole
source vendor for any element of our production process. We have identified alternate suppliers and, where appropriate, supply
alternatives for any sourcing challenges.
Intellectual
Property
As
we advance our platform technology, product, and pipeline developments, we seek to apply a multilayered approach for protecting
intellectual property relating to our innovation with patents (utility and design), copyrights, trademarks, as well as know-how
and trade secret protection. We are actively seeking U.S. and foreign patent protection in selected jurisdictions for a variety
of technologies, including our MPFU technology, our Complex Living Interface Coordinated Self-Assembling Materials (“CLICSAM”)
Technology, our Composite-Interfacing, Biomaterial Accelerant Substrate (“CIBAS”) Technology, as well as Biological
Sample Harvest and Deployment Kits. We have a number of patents issued and pending applications allowed in the United States and
abroad related to our MPFU technology, including U.S. Patent No. 10,926,001 which issued on February 23, 2021. U.S. Patent No.
10,926,001 was filed on November 30, 2015 as Application No. 14/954,335 and thus has an estimated expiration date of November
30, 2035.
Patent
terms extend for varying periods of time according to the date of patent filing or grant and the pertinent law in the various
countries where patent protection is obtained. The actual protection afforded by a patent, which can vary from country to country,
depends upon the type of patent, the scope of its coverage, and the availability of legal remedies in the country. Further, patent
term extension may be available in certain countries to compensate for a regulatory delay in approval of certain products.
The
U.S. healthcare legislation enacted in 2010 created an approval pathway for biosimilar versions of innovative biological products
that did not previously exist. Prior to that time, innovative biologics had essentially unlimited regulatory exclusivity. Under
the new regulatory mechanism, the FDA can approve products that are similar to (but not generic copies of) innovative biologics
on the basis of less extensive data than is required by a full BLA. After an innovator has marketed its product for four years,
any manufacturer may file an application for approval of a “biosimilar” version of the innovator product. However,
although an application for approval of a biosimilar may be filed four years after approval of the innovator product, qualified
innovative biological products will receive 12 years of regulatory exclusivity, meaning that the FDA may not approve a biosimilar
version until 12 years after the innovative biological product was first approved by the FDA. The law also provides a mechanism
for innovators to enforce the patents that protect innovative biological products and for biosimilar applicants to challenge the
patents. Such patent litigation may begin as early as four years after the innovative biological product is first approved by
the FDA.
In
the United States, the increased likelihood of generic and biosimilar challenges to innovators’ intellectual property has
increased the risk of loss of innovators’ market exclusivity. First, generic companies have increasingly sought to challenge
innovators’ basic patents covering major pharmaceutical products. Second, statutory and regulatory provisions in the United
States limit the ability of an innovator company to prevent generic and biosimilar drugs from being approved and launched while
patent litigation is ongoing. As a result of all of these developments, it is not possible to predict the length of market exclusivity
for a particular product with certainty based solely on the expiration of the relevant patent(s) or the current forms of regulatory
exclusivity.
In
striving to protect the proprietary technology, inventions, and improvements that are commercially important to the development
of our business, we also rely heavily on trade secrets relating to our proprietary technology and on know-how. We enter into confidentiality
agreements with our employees, consultants, scientific advisors, and contractors. We also seek to preserve the integrity and confidentiality
of our data and trade secrets by maintaining physical security of our premises and physical and electronic security of our information
technology systems.
We
seek to complement the protection of our innovation with a portfolio of trademarks and service marks in the United States and
around the world. The POLARITYTE trademark has been registered in the United States and in other countries throughout the world.
Additional registered trademarks in the United States include our logo, WELCOME TO THE SHIFT, WHERE SELF REGENERATES SELF, and
SKINTE.
Competition
The
regenerative medicine industry is characterized by rapidly advancing technologies, intense competition, and a strong emphasis
on intellectual property. We face substantial competition from companies developing and selling regenerative medicine products,
as well as academic research institutions, governmental agencies, and public and private research institutions. Many of our current
or potential competitors, either alone or with their collaboration partners, have significantly greater financial resources and
expertise in research and development, manufacturing, preclinical testing, conducting clinical trials, and marketing approved
products than we do. Smaller 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 necessary for, our programs.
Our
commercial opportunity could be reduced or eliminated if our competitors develop and commercialize products that are safer, more
effective, have fewer or less severe side effects, are more convenient, or are less expensive than products that we develop. Our
competitors also may obtain FDA or other regulatory approval for their products 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 our programs are likely to be their efficacy, safety, convenience, price, and the availability
of reimbursement from government and other third-party payers.
Contract
Research Services
In
May 2018, we purchased the assets of a preclinical research sciences business and related real estate from Ibex Group, L.L.C.,
a Utah limited liability company, and Ibex Preclinical Research, Inc., a Utah corporation. We acquired these assets to accelerate
research and development of our product candidates, and now operate the business as IBEX to advance our product development and
deliver preclinical research services to third parties. The business consists of a preclinical research facility that that complies
with Good Laboratory Practices and is USDA registered and includes vivarium, operating rooms, preparation rooms, storage facilities,
and surgical and imaging equipment. The real property includes two parcels in Logan, Utah, consisting of approximately 1.75 combined
gross acres of land, together with the buildings, structures, fixtures, and personal property located on the real property.
Arches
offers a complimentary array of research services to those offered through IBEX, providing access to experimental planning, histology,
and in vivo and in vitro imaging, including micro-ct. Arches is well equipped with state-of-the-art equipment and sophisticated
research staff that provide a range of services including veterinary and preclinical services, advanced imaging, biomedical engineering
and validation, and molecular biology assays.
There
was a substantial surge in COVID-19 testing throughout the United States as a result of the COVID-19 pandemic, which began in
the spring of 2020. In the course of its operations, Arches maintains equipment and staff capable of performing molecular polymerase
chain reaction (“PCR”) testing for COVID-19. We had the opportunity to use our research facilities to offer laboratory
testing services for COVID-19, and to that end registered under the Clinical Laboratory Improvement Amendments (“CLIA”)
in May 2020, and we began providing COVID-19 testing services on May 27, 2020. We believe that COVID-19 testing offers an opportunity
to use existing resources to generate additional revenue and thereby help defray our operating expenses. We pursued this opportunity
through the end of 2020 and expect to continue to do so as long as we believe COVID-19 testing services are beneficial to supporting
our operations.
On
September 2, 2020, Arches entered into two agreements with Co-Diagnostics, Inc. (“Co-Diagnostics”). The COVID-19 Laboratory
Services Agreement between the parties provides that Arches will perform specimen testing services for customers referred by Co-Diagnostics
to Arches. Co-Diagnostics will arrange all logistics for delivering specimens to Arches for COVID-19 testing for those customers of Co-Diagnostics
electing to use the service. Arches bills Co-Diagnostics for the testing services and Co-Diagnostics manages all customer billing. The
Rental Agreement for LGC Genomics Oktopure Extraction Machine between Arches and Co-Diagnostics provides that Co-Diagnostics will make
available to Arches the Oktopure high throughput extraction machine that Arches will use to perform COVID-19 testing. The term of the
agreement is 12 months, requires Arches to use Co-Diagnostics tests exclusively in the machine, and establishes for Arches a minimum
monthly purchase obligation for Co-Diagnostics tests and related consumables used in the testing process.
Competition
for COVID-19 testing is intense with a large number of participants providing testing services. Many of our current competitors,
either alone or with their collaboration partners, have significantly greater financial resources, testing resources, laboratory
personnel, expertise, and marketing resources than we do. We are only able to offer our testing services in states where Arches
is licensed or registered to provide laboratory testing services or where an emergency order or authorization allows unlicensed
laboratories to provide COVID-19 testing, which limits the geographical market we can serve. We are a relatively unknown testing
laboratory, so we have relied on word of mouth and management relationships to connect with prospects and vied for new business
on the basis of price and service. During 2020 we had testing agreements with multiple nursing home and pharmacy facilities in
the state of New York controlled by a single company that accounted for 96% of COVID-19 testing revenues in 2020. We were fortunate
to obtain our major customer for testing services, which was a result of a direct relationship with management, and we have
been able to retain this customer on the basis of price and service. We provide testing services in New York in reliance on
monthly executive orders and authorizations that require regular testing of staff in these facilities and permit laboratories
not licensed in New York to provide those services. On March 26, 2021, we were advised by the company that controls the New
York nursing homes and pharmacy facilities we service that the state of New York is allowing on-site
employee testing and that on-site testing will be implemented for the New York facilities we service, which will likely have the
effect of substantially diminishing our revenues from COVID-19 testing after the first quarter of 2021.
We
offer PCR testing for COVID-19, which is the current industry standard for accuracy of results. A number of companies, as well
as academic research institutions, governmental agencies, and public and private research institutions, are pursuing the development
of new COVID-19 tests that purport to be faster, easier, and less expensive than PCR testing. The successful development of such
a test could substantially diminish the demand for the PCR testing we offer.
Government
Regulation
FDA
Regulation of Tissue-Based Products
The
FDA has specific regulations governing human cells, tissues, and cellular and tissue-based products, or HCT/Ps. An HCT/P is a
product containing or consisting of human cells or tissue intended for transplantation into a human patient. In the United States,
HCT/Ps are subject to varying degrees of regulation by the FDA, depending on if they fall solely within the scope of Section 361
of the Public Health Service Act (the “PHS Act”) (42 U.S.C. § 264) or if they are regulated as drugs, devices,
or biological products under Section 351 of the PHS Act (42 U.S.C. § 262) and the federal Food, Drug, and Cosmetic Act (the
“FD&C Act”). Under this two-tiered framework, certain higher risk HCT/Ps are regulated as new biologics. Manufacturers
of new biologics must complete extensive clinical trials, which must be conducted pursuant to an effective IND. In addition, the
FDA must review and approve a BLA before a new biologic may be marketed.
If
an HCT/P meets the criteria for regulation solely under Section 361 of the Public Health Service Act and Part 1271 of Title 21
of the Code of Federal Regulations (so-called “361 HCT/Ps”), no premarket FDA review for safety and effectiveness
under a drug, device, or biological product marketing application is required. The processor of the 361 HCT/P is required to register
and list its products with the FDA, comply with regulations regarding labeling, record keeping, donor eligibility and screening
and testing, process the tissue in accordance with established cGTP, and investigate and, in certain circumstances, report adverse
reactions or deviations.
To
be a 361 HCT/P, a product generally must meet all four of the following criteria:
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It
must be minimally manipulated;
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It
must be intended for homologous use;
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Its
manufacture must not involve combination with another article, except for water, crystalloids, or a sterilizing, preserving
or storage agent, provided the addition of such article does not raise new clinical safety concerns; and
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It
must not have a systemic effect and must not be dependent upon the metabolic activity of living cells for its primary function
(unless the product is intended for reproductive use, autologous use, or use in a first- or second-degree blood relative).
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We
believe that SkinTE qualifies as a 361 HCT/P. Following informal, voluntary discussions between us and the FDA we were advised
by the FDA in April 2020 that its preliminary assessment is that SkinTE does not meet the requirements to be regulated solely
as a 361 HCT/P. Rather, the FDA’s preliminary assessment was that SkinTE is a biological product that should be regulated
under Section 351 of the Public Health Service Act. We re-evaluated our regulatory approach and determined it is prudent to submit
an IND for SkinTE and an eventual BLA because we believe it will create a more valuable asset with a greater likelihood of achieving
widespread commercial adoption, and to avoid the possibility of a protracted dispute with the FDA. As a result of the change in
the regulatory approach for SkinTE, we decided to adjust our SkinTE commercial operations accordingly.
All
establishments that manufacture 361 HCT/Ps must register and list their HCT/Ps with the FDA’s Center for Biologics Evaluation
and Research (“CBER”) within five days after commencing operations. In addition, establishments are required to update
their registration annually in December or within 30 days of certain changes and submit changes in HCT/P listing at the time of
or within six months of such change. Establishments that manufacture 361 HCT/Ps will know that they are registered in compliance
with 21 C.F.R. § 1271.10(a) when they receive a validated form with the Federal Establishment Identification number after
submitting the Form FDA 3356 (registration form). cGTP requirements govern, as may be applicable, the facilities, controls, and
methods used in the manufacture of HCT/Ps, including without limitation, recovery, donor screening, donor testing, processing,
storage, labeling, packaging, and distribution of 361 HCT/Ps. During the enforcement discretion period, the FDA is permitting
products that will become regulated under Section 351 to be manufactured in compliance with cGTP regulations. After the end of
the enforcement discretion period, however, these products will be subject to cGMP compliance. The transition from cGTP to cGMP
compliance includes development and enhancement of production processes, procedures, tests, and assays, and it requires extensive
validation work. It can also involve the procurement and installation of new production or lab equipment. These efforts require
expertise and resources.
FDA
inspection and enforcement with respect to establishments described in 21 C.F.R. Part 1271 includes inspections conducted, as
deemed necessary, to determine compliance with the applicable provisions and may include, but is not limited to, an assessment
of the establishment’s facilities, equipment, finished and unfinished materials, containers, processes, HCT/Ps, procedures,
labeling, records, files, papers, and controls required to be maintained under 21 C.F.R. Part 1271. Such inspections can occur
at any time with or without written notice at such frequency as is determined by the FDA in its sole discretion.
The
Tissue Reference Group (“TRG”) is a body within the FDA designed to provide recommendations regarding whether a product
candidate will be regulated as a 361 HCT/P. The Office of Combination Products (“OCP”) at FDA provides informal, non-binding
recommendations and formal, binding designations regarding the classification of products as 361 HCT/Ps or drugs, biologics, or
medical devices. Product manufacturers are not required to consult with the TRG or OCP and instead can market their products based
on their own conclusion that the product meets the 361 HCT/P criteria. We have not consulted the TRG or sought a formal designation
from the OCP, though we have had informal interactions with OCP.
If
we fail to comply with the FDA regulations and laws applicable to our operation or tissue products, the FDA could take enforcement action,
including, without limitation, pursuing any of the following sanctions, among others:
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letters, warning letters, fines, injunctions, product seizures, and civil penalties;
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Orders
for product retention, recall, or destruction;
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Operating
restrictions, partial suspension, or total shutdown of operations;
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Refusing
any requests for product clearance or approval;
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Withdrawing
or suspending any applications for approval or approvals already granted; or
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Criminal
prosecution.
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For
more information on this regulatory risk, please see the discussion below, “Risk Factors,” including but not limited
to the information under the heading, “Risks Related to Registration or Regulatory Approval of Our Product Candidates and
Other Government Regulations.”
Regulation
of Clinical Laboratories
Virtually
all clinical laboratories operating in the United States must be certified by the federal government or by a federally-approved
accreditation agency. In most cases, that certification is regulated by the Centers for Medicare & Medicaid Services of the
U.S. Department of Health and Human Services (“HHS”) through CLIA, which requires that applicable clinical laboratories
meet quality assurance, quality control, and personnel standards. Laboratories also must undergo proficiency testing and are subject
to inspections.
Arches
has been issued a CLIA Certificate of Registration (“CLIA Certificate”) to accept human specimens for the purpose
of performing laboratory examinations or procedures. The CLIA Certificate was issued on April 20, 2020 and is valid until April
19, 2022, but is subject to revocation, suspension, limitation, or other sanctions for violations of applicable laws or regulations.
Arches
is also subject to state and local laboratory regulation. CLIA provides that a state may adopt laboratory regulations different
from or more stringent than those under federal law, and a number of states have implemented their own laboratory regulatory requirements.
State laws may require that laboratory personnel meet certain qualifications, specify certain quality controls, or require maintenance
of certain records.
We
believe Arches is in compliance with all applicable laboratory requirements. Its laboratory has continuing programs to ensure
that Arches’ operations meet all such regulatory requirements, but no assurances can be given that the laboratory will pass
all future licensure or certification inspections.
Fraud,
Abuse and False Claims
We
are directly and indirectly subject to various federal and state laws governing relationships with healthcare providers and other
potential referral sources for our products pertaining to healthcare fraud and abuse, including anti-kickback, false claims, and
similar laws. In addition, federal and state laws are sometimes open to interpretation. We could potentially face legal risks
if our interpretation differs from those of enforcement authorities. Further, from time to time we could be at a competitive disadvantage
if our interpretation differs from that of our competitors.
In
particular, the federal Anti-Kickback Statute prohibits persons from knowingly and willfully soliciting, offering, receiving or
providing remuneration (in cash or in kind), directly or indirectly, in exchange for or to induce either the referral of an individual,
or the furnishing, arranging for, or recommending of, a good or service for which payment may be made in whole or part under federal
healthcare programs, such as the Medicare and Medicaid programs. Penalties for violations include criminal penalties and civil
sanctions such as fines, imprisonment and possible exclusion from Medicare, Medicaid, and other federal healthcare programs. The
Anti-Kickback Statute is broad and prohibits many arrangements and practices that are lawful in businesses outside of the healthcare
industry. In implementing the statute, the Office of Inspector General of HHS (“OIG”) has issued a series of regulations,
known as the “safe harbors.” These safe harbors set forth provisions that, if all their applicable requirements are
met, exempt certain remuneration and remunerative arrangements from violating the Anti-Kickback Statute. The failure of a transaction
or arrangement to fit precisely within one or more safe harbors does not necessarily mean that it is illegal or that prosecution
will be pursued. However, conduct and business arrangements that do not fully satisfy each applicable element of a safe harbor
may result in increased scrutiny by government enforcement authorities, such as OIG. Many states have laws similar to the federal
law.
Also,
the federal False Claims Act (“FCA”) imposes civil liability on any person or entity that submits, or causes others to submit,
a false or fraudulent claim for payment (e.g., by the Medicare or Medicaid programs) to the U.S. government. Damages under the FCA can
be significant, and consist of the imposition of fines and penalties, as well as possible exclusion from Medicare, Medicaid, and other
federal healthcare programs. The FCA also allows a private individual or entity (i.e., a whistleblower) with knowledge of past or present
fraud against the federal government to sue on behalf of the government and to be paid a portion of the government’s recovery,
which can include both civil penalties and up to three times the amount of the government’s damages (usually the amount reimbursed
by federal healthcare programs). The U.S. Department of Justice takes the position that the marketing and promotional practices of life
sciences product manufacturers, including the off-label promotion of products, the provision of inaccurate or misleading reimbursement
guidance, or the payment of prohibited kickbacks, may cause the submission of improper claims to federal and state healthcare entitlement
programs such as Medicare and Medicaid by health care providers that use the manufacturer’s products, which results in a violation
of the FCA. In certain cases, in order to settle allegations under the FCA, manufacturers have entered into criminal and civil settlements
with the federal government under which they entered into plea agreements, paid substantial monetary amounts and entered into corporate
integrity agreements (“CIAs”) that require, among other things, substantial government oversight, as well as reporting and
remedial actions going forward
If
we fail to comply with these laws, we could be subject to enforcement actions, including but not limited to:
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Multi-year
investigations by federal and state governments;
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Criminal
and civil fines and penalties;
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Obligations
under settlement agreements, such as CIAs or deferred prosecution agreements; or
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Exclusion
from participation in federal and state healthcare programs.
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Environmental
Matters
Our
research, development and tissue preservation activities generate some chemical and biomedical wastes, consisting primarily of
diluted alcohols and acids, and human and animal pathological and biological wastes, including human and animal tissue and body
fluids removed during laboratory procedures. The chemical and biomedical wastes generated by our research, development and tissue
processing operations are placed in appropriately constructed and labeled containers and are segregated from other wastes. We
contract with third parties for transport, treatment, and disposal of waste. We strive to remain compliant with applicable laws
and regulations promulgated by the Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency and similar
state agencies.
Reimbursement
In
the United States, demand for access to any medical product will depend in large part on both the availability and the amount
of reimbursement from third-party payers, including government healthcare programs (such as Medicare and Medicaid), and commercial
healthcare insurers, such as managed care organizations and other private health plans. Third-party payers have complex rules
and requirements for coverage and reimbursement of healthcare products and services. Even the applications to such third-party
payers to be eligible for reimbursement for product or services are complex and can be lengthy and time consuming. For new technologies
coming to market, these payers are increasingly examining the clinical evidence supporting medical necessity and cost effectiveness
decisions in addition to safety and efficacy, which can result in barriers to early coverage reimbursement, or denial of coverage
and reimbursement altogether. Accordingly, significant uncertainty exists as to the availability of coverage and reimbursement
status for new medical products. If third-party payer reimbursement is unavailable to our customer hospitals, physicians, and
providers, our sales may be limited, and we may not be able to realize an appropriate return on our investment in research and
product development.
Payers
often set payment rates depending on the site of service and many use the Medicare program as a benchmark for their own payment
methodologies. In the hospital inpatient setting, Medicare payment generally is set at pre-determined rates for all products and
services provided during a patient stay and is based on such factors as the patient diagnosis, procedures performed, patient age,
and complications. In the physician office or clinic setting, Medicare payment generally is based on a fee schedule, with payment
rates set for each procedure performed and product used, although the schedule may in some instance bundle the product into the
payment for the procedure. In some outpatient settings, such as in the case of the hospital outpatient clinic setting, Medicare
payment rates generally are premised on classifications of services that have similar clinical characteristics and similar costs.
Reimbursement
policies depend in part on legislation designed to regulate the healthcare industry and federal and state governments continue to propose
and pass new healthcare legislation and government agencies revise or change their regulations and policies from time to time. We cannot
predict whether or how such reform measures and policy changes would affect reimbursement rates and demand for our products.
Patient
Privacy
HIPAA,
as amended by the Health Information Technology for Economic and Clinical Health Act, or HITECH, and their implementing regulations,
including the final omnibus rule published on January 25, 2013, mandates, among other things, the adoption of uniform standards
for the electronic exchange of information in common healthcare transactions, as well as standards relating to the privacy and
security of individually identifiable health information, which require the adoption of administrative, physical and technical
safeguards to protect such information. Among other things, HITECH makes HIPAA’s security standards directly applicable
to business associates, defined as independent contractors or agents of covered entities that create, receive, or obtain protected
health information in connection with providing a service for or on behalf of a covered entity. Because our products use autologous
tissue sources that are tracked and reapplied to the same individual patient from which the tissue was harvested, our business
maintains substantial amounts of patient identifiable health information. HITECH also increased the civil and criminal penalties
that may be imposed against covered entities and business associates, and gave state attorneys general new authority to file civil
actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek attorney’s fees and costs
associated with pursuing federal civil actions. In addition, certain state laws govern the privacy and security of health information
in certain circumstances, some of which are more stringent than HIPAA and many of which differ from each other in significant
ways and may not have the same effect, thus complicating compliance efforts. Failure to comply with these laws, where applicable,
can result in the imposition of significant civil or criminal penalties. Since we do not submit claims electronically to payers,
we do not believe we are a covered entity under HIPAA.
Transparency
Laws
The
Patient Protection and Affordable Care Act imposes, among other things, annual reporting requirements for covered manufacturers
for certain payments and other transfers of value provided to physicians and teaching hospitals, as well as certain ownership
and investment interests held by physicians and their immediate family members. We do not believe that we are a covered manufacturer
under the statute because our products are neither regulated as pharmaceuticals, biologics, nor medical devices by the FDA, and
361 HCT/Ps are not expressly addressed by this law. We do, however, voluntarily file annual reports because we believe it enhances
our reputation in the medical industry to be transparent about what we do and how we do it, and if we receive a BLA approval,
we will be required to report certain information under applicable transparency laws.
USDA
The
Company and its subsidiaries conduct preclinical research and development, which is regulated by the United States Department
of Agriculture (“USDA”) Animal and Plant Health and Inspection Service (APHIS) and must be performed in compliance
with the Animal Welfare Act, Animal Welfare Regulations, and Animal Care Policies. The Company and each of its subsidiaries that
conduct preclinical research have in place Institutional Animal Care and Use Committees to oversee compliance with the animal
care and use program and report accordingly to the USDA on an at least a semi-annual basis. All sites that maintain USDA-covered
species are actively registered as USDA research facilities.
Employees
We
had approximately 80 full-time employees and five part-time employees as of December 31, 2020, all of whom are in the United States.
None of our employees are represented by a labor union or covered by a collective bargaining agreement. We consider our relationship
with our employees to be good.
Corporate
History
Majesco
Entertainment Company, a Delaware corporation (“Majesco DE”), was incorporated in the state of Delaware on May 8,
1998. On December 1, 2016, Majesco Acquisition Corp., a Nevada corporation and wholly owned subsidiary of Majesco DE, entered
into an Agreement and Plan of Reorganization with PolarityTE, Inc., a Nevada corporation (“PolarityTE NV”) and the
sole stockholder of PolarityTE NV. The asset acquisition was subject to stockholder approval, which was received on March 10,
2017, and the transaction closed on April 7, 2017. In January 2017, Majesco DE changed its name to “PolarityTE, Inc.”
(“PolarityTE”). Majesco Acquisition Corp. was then merged with PolarityTE NV, which remains a subsidiary of PolarityTE.
Majesco Acquisition Corp. II, formed in November 2016 under Majesco Entertainment Company, changed its name to “PolarityTE
MD, Inc.,” and remains a wholly owned subsidiary of PolarityTE.
Prior
to the acquisition of PolarityTE NV, Majesco DE developed and published a wide range of video games on digital networks through
its Midnight City label. On May 2, 2017, Majesco Entertainment Company, a Nevada corporation and wholly owned subsidiary of PolarityTE
(“Majesco NV Sub”), was formed, into which all the assets and liabilities of this gaming business were placed. On
June 23, 2017, PolarityTE sold the Majesco NV Sub to Zift Interactive LLC, a Nevada limited liability company (“Zift”),
pursuant to a purchase agreement. Pursuant to the terms of the agreement, PolarityTE sold 100% of the issued and outstanding shares
of common stock of Majesco NV Sub to Zift, including all the right, title, and interest in and to Majesco NV Sub’s business
of developing, publishing, and distributing video game products.
In
May 2018 we acquired assets of a preclinical research and veterinary sciences business and related real estate, which we now operate
through IBEX. The aggregate purchase price was $3.8 million, of which $2.3 million was paid at closing and the balance satisfied
by a promissory note payable to the seller with an initial fair value of $1.22 million and contingent consideration with an initial
fair value of approximately $0.3 million. As a result, we have significant research facilities and a well-educated and skilled
team of scientists and researchers that perform research on our development projects and comprise the contract research segment
of our business.
Summary
Risk Factors
The
risk factors described below are a summary of the principal risk factors associated with an investment in us. These are not the
only risks we face. You should carefully consider these risk factors, together with the risk factors set forth in “Item
1A. Risk Factors” of this Report and the other reports and documents filed by us with the U.S. Securities and Exchange Commission
(“SEC”).
Risks
Related to Our Financial Condition
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We
have a history of losses and may incur additional losses in the future.
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We
will need additional funding in the future, which may not be available on acceptable terms, or at all, and, if available,
may result in dilution to our stockholders. If we are unable to successfully raise additional capital, our future clinical
trials and product development could be limited, and our long-term viability may be threatened.
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We
plan to devote a majority of our financial and human resources to pursue an IND and BLA for SkinTE, which means we may fail
to capitalize on product candidates that may be more profitable or for which there is a greater likelihood of success.
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Our
wholly owned subsidiary accepted a loan under the CARES Act pursuant to the Paycheck Protection Program, or the PPP, and the
loan may not be forgiven or may subject us to challenges, audits, or investigations regarding qualification for the loan,
any of which could reduce our liquidity and have a material adverse effect on our business, financial condition and results
of operations.
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Our
ability to use our net operating loss carryforwards and certain other tax attributes may be limited, which could adversely
affect future cash flows.
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Risks
Related to our Research & Development, Clinical, and Commercialization Activities
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We
are pursuing an IND and BLA for SkinTE, so we are an early-stage biotechnology company subject to the risks associated with
such companies, which may make it difficult to evaluate our current business and predict our success and viability.
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Our
ability to timely submit an IND or BLA to the FDA may depend on circumstances outside of our control.
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Clinical
trials are expensive, time-consuming, and difficult to design and implement, and as a result there is significant uncertainty
with respect to successful completion.
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Biotechnology
and pharmaceutical product development is a highly speculative undertaking and involves a substantial degree of uncertainty.
While we have generated revenue from sales of SkinTE, we have never achieved profitable operating results in our regenerative
medicine product segment, and we may never be able to do so.
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We
are dependent on third parties to conduct our clinical trials and the failure of such third parties to perform or delays in
performance could increase our costs or prevent us from being able to use the results of the trials.
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If
we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed
or otherwise adversely affected.
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Any
adverse developments that occur during any clinical trials conducted by academic investigators or other entities conducting
clinical trials under independent INDs may negatively affect the conduct of our clinical trials or our ability to obtain regulatory
approvals or commercialize our product candidates.
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Adverse
side effects or other safety risks associated with our product candidates could cause us to suspend or discontinue clinical
trials or delay or preclude approval.
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We
may form or seek strategic alliances, enter into additional licensing arrangements, or participate in acquisition transactions
in the future, and we may not succeed in realizing the benefits of such alliances, licensing arrangements, or acquisition
transactions.
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Even
if we obtain regulatory approval of SkinTE or future product candidates may not gain market acceptance among physicians, patients,
hospitals, third-party payors, and others in the medical community.
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If
we are required to withdraw or we voluntarily recall a product from the market, it could significantly increase our costs,
damage our reputation, and disrupt our business.
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We
face significant uncertainty in the industry due to government healthcare reform.
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We
face the risk of product liability claims and may not be able to obtain or maintain adequate product liability insurance.
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We
operate in a highly competitive and evolving field and face competition from regenerative medicine, biotechnology, and pharmaceutical
companies, tissue engineering entities, tissue processors, and medical device manufacturers, as well as new market entrants,
which may result in others discovering, developing or commercializing competing products before or more successfully than
we do.
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Risks
Related to our Operating Activities
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We
may be required to discontinue sales of SkinTE, which would adversely affect our revenues, financial condition, and results
of operations.
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We
have a limited history of operation with our laboratory testing service so we are unable to predict with any certainty what
contribution it will make to defraying our operating expenses in the future, which could adversely affect our ability to plan
for the use of our resources to achieve our goals.
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Our
manufacturing and COVID 19 testing operations depend primarily on one facility. If this facility is destroyed or we experience
any manufacturing or laboratory difficulties, disruptions, or delays, this could adversely affect our ability to conduct our
clinical trials or perform laboratory testing services.
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We
depend on our senior management team and the loss of one or more key employees or an inability to attract and retain highly
skilled employees will negatively affect our business, financial condition, and results of operations.
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The
ongoing COVID-19 pandemic could materially affect our operations, as well as the business or operations of third parties with
whom we conduct business. Our business could be adversely affected by the effects of other future health pandemics in regions
where we or third parties on which we rely have significant business operations.
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Risks
Related to Our Intellectual Property
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Our
ability to protect our intellectual property and proprietary technology through patents and other means is uncertain and may
be inadequate, which could have a material and adverse effect on us.
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There
can be no assurance that a third party, including, but not limited to, a university or other research institution that our
founders were associated with in the past, will not make claims to ownership or other claims related to our technology.
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We
may be subject to claims that our employees have wrongfully appropriated, used, or disclosed intellectual property of their
former employers.
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If
we are unable to protect the confidentiality of our proprietary information and know-how related to SkinTE or any of our product
candidates, our competitive position would be impaired and our business, financial condition, and results of operations could
be adversely affected.
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We
may become subject to claims of infringement of the intellectual property rights of others, which could prohibit us from developing
our products, require us to obtain licenses from third parties, or to develop non-infringing alternatives, and subject us
to substantial monetary damages. We have not obtained and do not intend to obtain any formal legal opinion regarding our freedom
to practice our technology.
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We
have a number of patents issued and applications pending in the United States and other foreign jurisdictions, however we
may not be able to enforce those patent rights against third parties.
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We
may not be able to protect our intellectual property in countries outside of the United States.
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Risks
Related to Our Common Stock
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An
active trading market for our common stock may not continue to develop or be sustained.
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We
are pursuing a plan to advance regulatory approval of SkinTE, so delay or failure in achieving our milestones could adversely
affect our prospects and the value of ownership of our common stock.
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The
trading price of the shares of our common stock has been and may continue to be volatile, and you may not be able to resell
some or all your shares at a desired price.
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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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Our
Restated Certificate of Incorporation, our Restated Bylaws, and Delaware law could deter a change of our management, which
could discourage or delay offers to acquire us.
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Because
we do not expect to declare cash dividends on our common stock in the foreseeable future, stockholders must rely on appreciation
of the value of our common stock for any return on their investment.
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We
incur costs and demands upon management because of being a public company.
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Contact
and Available Information
Our
principal executive offices are located at 1960 S. 4250 West, Salt Lake City, UT 84104, and our telephone number is (800) 560-3983.
Our
website address is http://www.polarityte.com. We have included our website address as an inactive textual reference only. We make
available, free of charge through our website, our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our current
reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act
as soon as reasonably practicable after we electronically file such material, or furnish it to the SEC. We also similarly make
available, free of charge on our website, the reports filed with the SEC by our executive officers, directors and 10% stockholders
pursuant to Section 16 under the Exchange Act as soon as reasonably practicable after copies of those filings are provided to
us by those persons. The SEC maintains an internet site that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC at http://www.sec.gov.
Item
1A. Risk Factors.
Our
business and operations are subject to many risks and uncertainties as described below. However, the risks and uncertainties described
below are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we may currently deem
immaterial, may become important factors that could harm our business, financial condition, or results of operations. If any of
the following risks occur, our financial condition or results of operations could suffer.
Risks
Related to Our Financial Condition
We
have a history of losses and may incur additional losses in the future.
On
a cumulative basis we have sustained substantial losses and negative cash flows from operations since we embarked on our regenerative
tissue product business at the beginning of 2017. As of December 31, 2020, our accumulated deficit was $478.2 million. As of December
31, 2020, we had $25.5 million in cash and cash equivalents, and working capital of approximately $22.7 million. In January 2021,
we raised an additional $17.7 million in gross proceeds before offering expenses in a registered direct offering and through a
warrant exercise agreement. In fiscal year 2020, we incurred losses of $42.9 million and we experienced negative cash flows from
operations of $37.8 million. We expect to continue incurring material general and administrative expenses in connection with our
operations, including the costs associated with preparing and filing our IND and BLA for SkinTE and beginning clinical trials
as part of those applications. As a result, we anticipate that we will incur losses in the future.
We
will need additional funding in the future, which may not be available on acceptable terms, or at all, and, if available, may
result in dilution to our stockholders. If we are unable to successfully raise additional capital, our future clinical trials
and product development could be limited, and our long-term viability may be threatened.
In
2020 our net revenues from product sales and services contributed $10.1 million to defray cost of sales and total operating costs
and expenses in the amount of $56.1 million. Our net revenues reduce the rate at which we burn our capital resources in the pursuit
of our IND and BLA for SkinTE, but we have no expectation that product sales and services will be a major contributor to the capital
resources we will need to advance SkinTE through the FDA regulatory process over the next several years.
Based
on currently available information as of the date we file this report, we believe that our existing cash and cash equivalents
will be sufficient to fund our activities through the end of 2021 and into the third quarter of 2022. However, our projections
of future cash needs may differ from actual results. Furthermore, finite resources may inhibit our ability to respond to competitive
pressures or unanticipated capital needs, or may force us to reduce operating expenses, which would significantly harm our business.
We will need to seek additional working capital, which may be through sales of our equity securities or through bank credit facilities
or public or private debt from various financial institutions or through future arrangements with strategic partners. We cannot
be certain that additional funding will be available on acceptable terms, or at all. If we do identify sources for additional
funding, the sale of additional equity securities or convertible debt could result in dilution to our stockholders. Additionally,
the sale of equity securities or issuance of debt securities may be subject to certain security holder approvals under applicable
Nasdaq rules or may result in the downward adjustment of the exercise or conversion price of our outstanding securities. We can
give no assurance that sources of funding, such as sales of equity or debt, or strategic relationships would be available or would
be approved by our security holders, if needed, on favorable terms or at all. If we fail to obtain additional working capital
as and when needed, such failure could have a material adverse impact on our business, results of operations and financial condition.
We
plan to devote a majority of our financial and human resources to pursue an IND and BLA for SkinTE, which means we may fail to capitalize
on product candidates that may be more profitable or for which there is a greater likelihood of success.
Because
we have limited resources, we plan to forego or delay pursuit of opportunities with other product candidates or for indications
that later could prove to have greater commercial potential. Our resource allocation decisions may cause us to fail to capitalize
on viable commercial products or profitable market opportunities. Our spending on current and future research and development
programs for product candidates may not yield any commercially viable products. If we do not accurately evaluate the commercial
potential or target market for a particular product candidate, we may relinquish valuable rights to that product candidate through
strategic collaboration, licensing or other royalty arrangements in cases in which it would have been more advantageous for us
to retain sole development and commercialization rights to such product candidate, or we may allocate internal resources to a
product candidate for which it would have been more advantageous to enter into a partnering arrangement.
Our
wholly owned subsidiary accepted a loan under the CARES Act pursuant to the Paycheck Protection Program (“PPP”), and
the loan may not be forgiven or may subject us to challenges, audits, or investigations regarding qualification for the loan,
any of which could reduce our liquidity and have a material adverse effect on our business, financial condition and results of
operations.
On
April 12, 2020, our subsidiary PolarityTE MD, Inc. (the “Borrower”) entered into a promissory note offered by a bank
(the “Lender”) evidencing an unsecured loan in the amount of $3,576,145 made to the Borrower under the PPP (the “Loan”).
The PPP was established under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and is administered
by the U.S. Small Business Administration (the “SBA”). The interest rate on the Loan is 1.00%. Beginning seven months
from the date of the Loan the Borrower is required to make 24 monthly payments of principal and interest in the amount of $150,563.
The promissory note evidencing the Loan contains customary events of default relating to, among other things, payment defaults,
making materially false and misleading representations to the SBA or Lender, or breaching the terms of the Loan documents. The
occurrence of an event of default may result in the repayment of all amounts outstanding, collection of all amounts owing from
the Borrower, or filing suit and obtaining judgment against the Borrower. Under the terms of the CARES Act, PPP loan recipients
can apply for and be granted forgiveness for all or a portion of a loan granted under the PPP.
On
October 15, 2020, the Borrower applied to the Lender for forgiveness of the Loan in its entirety based on the Borrower’s
use of the PPP loan for payroll costs, rent, and utilities. On October 26, 2020, the Borrower was advised that the Lender approved
the application and that the Lender was submitting the application to the SBA for a final decision. The Company classified the
principal balance of the PPP loan within “Current portion of long-term notes payable” and “Long-term notes payable”
on the consolidated balance sheet as of December 31, 2020. If the Borrower’s application for forgiveness of the PPP loan
is not approved or approved only in part, it will be obligated to repay the unforgiven portion of the loan after the SBA makes
its decision on the application for forgiveness, in which case our liquidity could be reduced and our business, financial condition,
and results of operations may be adversely affected.
Pursuant
to the requirements under the CARES Act, in connection with the Loan, the Borrower certified that current economic uncertainty
makes the Loan request necessary to support the ongoing operations of the Borrower. We believe that the Borrower made such certification
in a manner consistent with SBA guidance that borrowers must make the certification in good faith, taking into account their current
business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner
that is not significantly detrimental to the business. While we believe any certification by the Borrower’s certification
was supported in light of the understandings of the requirements and the assessment made on the certification date, we cannot
be certain that SBA or any other governmental entity or third party will concur with the Borrower, especially in light of the
press scrutiny and SBA’s evolving guidance and views, our change in strategy triggered, in part, on regulatory developments
occurring after the Loan was made, and the eventual extent of the impact of current economic uncertainties on Borrower’s
operations.
Subsequent
to the Borrower’s application for the loan, SBA issued various interpretive guidelines in connection with the PPP, including
guidance on how SBA interprets certain of the certification requirements. One of the interpretations appears to be in response
to various press reports that well-established or well capitalized private and public companies were able to secure PPP loans
that were meant for smaller companies. SBA’s interpretive guidelines published on April 23, 2020, set forth that public
companies with substantial market value and access to capital markets would likely not qualify to participate in the PPP and SBA
advised any such public company to be prepared to provide the basis for the certifications upon SBA request. Subsequently, on
April 28, 2020 the Secretary of the Treasury and SBA announced that the government will conduct a full audit of all PPP loans
of more than $2 million for which the borrower applies for forgiveness. Consistent with that announcement the SBA established
an audit procedure for obtaining additional information from PPP borrowers regarding the loan application certification and use
of PPP loan proceeds. The Borrower completed and submitted the additional information in December 2020 and plans to continue to
provide information to SBA in support of the Borrower’s original Loan application and use of Loan proceeds. The Borrower
has yet to receive any response from the SBA. There is no assurance the SBA will conclude the Borrower properly applied for, and
used the proceeds of, the Loan. If there is any adverse finding in the SBA audit or if the Borrower were alleged, or determined,
not to qualify for the Loan or alleged, or found, to have made false certifications in connection with the Loan, the Borrower
could be required to return the full amount of the Loan, which would reduce its liquidity, and could subject it to fines and penalties,
and exclusion from government contracts. In particular, the Borrower may become subject to actions under the FCA, including its
qui tam provisions, which, among other things, prohibits persons from knowingly filing, or knowingly causing to be filed, a false
statement, or knowingly using a false statement, to obtain payment from the federal government. Violations of the FCA are subject
to treble damages and penalties. In the case of an SBA loan, the government could allege that single damages are the amount of
the loan and interest thereon (or more), which under the FCA could then be trebled. Substantial penalties must also be imposed
for each submitted false statement when a defendant loses an FCA trial. FCA cases may be initiated by the U.S. Department of Justice
or by private persons or entities, often called “whistleblowers,” who bring the action on behalf of the United States.
The Borrower may also face enforcement arising under other federal statutes, including criminal laws, and administrative actions
and investigations initiated by SBA or other governmental entities. Furthermore, if the Borrower is identified as an entity that
the media, government officials, or others seek to portray as a business that should not have availed itself of PPP funding, the
Borrower may face negative publicity, which could have a materially adverse impact on its business and operations and on our business
and operations as its parent. Generally, the cost of defending claims under the FCA, regardless of merit, could be substantial,
even as much as the PPP loan proceeds, so the Borrower may evaluate voluntarily repaying the loan on the basis of future circumstances
to avoid these costs as well as the significant drain on management resources that accompanies litigation.
Our
ability to use our net operating loss carryforwards and certain other tax attributes may be limited, which could adversely affect
future cash flows.
We
have incurred net losses over the past several years, and we may never achieve or sustain profitability. Generally, losses incurred
will carry forward until such losses expire or are used to offset future taxable income, if any. Under Sections 382 and 383 of
the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), if a corporation undergoes an “ownership
change,” generally defined as a greater than 50 percentage point change (by value) in its equity ownership by certain stockholders
over a three-year period, the corporation’s ability to use its pre-change net operating loss, or NOL, carryforwards and
other pre-change tax attributes (such as research tax credits) to offset its post-change income or taxes may be limited. We have
not completed a study to assess whether an ownership change for purposes of Section 382 or 383 has occurred, or whether there
have been multiple ownership changes in the past. We may have experienced ownership changes in the past and may experience ownership
changes in the future as a result of shifts in our stock ownership (some of which shifts are outside our control). As a result,
if we earn net taxable income, our ability to use our pre-change NOL carryforwards to offset such taxable income could be subject
to limitations. Similar provisions of state tax law may also apply to limit our use of accumulated state tax attributes. As a
result, even if we attain profitability, we may be unable to use a material portion of our NOL carryforwards and other tax attributes,
which could adversely affect our future cash flows.
Risks
Related to our Research & Development, Clinical, and Commercialization Activities
We
are pursuing an IND and BLA for SkinTE, so we are an early-stage biotechnology company subject to the risks associated with such
companies, which may make it difficult to evaluate our current business and predict our success and viability.
Our
primary focus for the foreseeable future will be shepherding SkinTE through the FDA regulatory process, which is a lengthy process
with no assurance of success. Stockholders should understand that we are an early-stage biotechnology company with a limited history
of revenue-generating operations. Therefore, we are subject to all the risks and uncertainties inherent in an early-stage biotechnology
company, in particular those businesses engaged in the pursuit of tissue regenerative technologies.
Accordingly,
you should evaluate our prospects in light of the costs, uncertainties, delays, and difficulties frequently encountered by early-stage
companies, particularly those in the biotechnology field. In particular, stockholders should consider that there is a significant
risk that we will not be able to:
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successfully
complete any preclinical or other studies necessary to submit an IND to the FDA for SkinTE;
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successfully
compile clinical, CMC, and other information necessary to submit an IND to the FDA for SkinTE;
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obtain
FDA approval to commence human clinical trials of SkinTE;
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successfully
enroll sufficient numbers of qualified patients to participate in our clinical trials;
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successfully
meet the primary endpoints in our clinical trials;
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implement
or execute our current business plan, or that our current business plan is sound;
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raise
sufficient funds in the capital markets or otherwise to fully effectuate our business plan;
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maintain
our management team;
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determine
that the processes and technologies that we have developed or will develop are commercially viable; and/or
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attract,
enter into, or maintain contracts with potential commercial partners, healthcare providers, licensors of technology, or licensees
of our technologies.
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Any
of the foregoing risks may adversely affect us and result in the failure of our business. In addition, we expect to encounter
unforeseen expenses, difficulties, complications, delays, and other known and unknown factors.
Our
ability to timely submit an IND to the FDA may depend on circumstances outside of our control.
Our
ability to submit an IND to the FDA depends on a variety of factors. We must submit the results of various preclinical tests,
together with manufacturing information, analytical data, any available past clinical data or literature, and a proposed clinical
protocol to the FDA as part of the IND. Preclinical tests include laboratory evaluations of product chemistry and formulation,
as well as other studies to assess the potential safety and activity of the product candidate. The conduct of the preclinical
tests must comply with federal regulations and requirements, subject to any adjustments allowed by the FDA. The FDA may require
that we conduct additional preclinical testing for any product candidate before it allows us to initiate the clinical testing
under any IND, which may lead to additional delays and increase the costs of our preclinical and clinical development. An IND
also involves considerable work from our employees and advisors. Difficulties or delays in the process will likely increase the
costs associated with the IND and result in an unanticipated reduction in the working capital we have available to pursue the
IND and BLA.
Clinical
trials are expensive, time-consuming, and difficult to design and implement, and as a result there is significant uncertainty
with respect to successful completion.
Human
clinical trials are expensive and difficult to design and implement, in part because they are subject to rigorous regulatory requirements.
The costs of our clinical trials may increase if the FDA does not agree with our clinical development plans or requires us to
conduct additional clinical trials, data analyses, or data audits to demonstrate the safety and efficacy of SkinTE or future product
candidates. Should we be unable to cover the expense of our clinical trials or encounter difficulties in execution of our clinical
trials it is unlikely we will be able to advance SkinTE or other product candidates to marketing approval, which would have a
significant adverse effect on our business, prospects, financial condition, and results of operations.
Biotechnology
and pharmaceutical product development is a highly speculative undertaking and involves a substantial degree of uncertainty. While
we have generated revenue from sales of SkinTE, we have never achieved profitable operating results in our regenerative medicine
product segment, and we may never be able to do so.
Our
ability to generate revenue depends in large part on our ability, alone or with partners, to successfully complete the development
of, obtain the necessary regulatory approvals for, and commercialize, product candidates. Following the end of the FDA’s
period of enforcement discretion (currently scheduled through May 2021) for regenerative tissue products, we may need to cease
selling SkinTE until the FDA approves a BLA, and then we will only be able to market the product for indications that have been
approved in a BLA. Our ability to generate future revenues from product sales of regenerative tissue products depends heavily
on our success in:
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progressing
our discovery-stage programs into pre-clinical testing;
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progressing
our pre-clinical programs into human clinical trials;
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completing
requisite clinical trials through all phases of clinical development of our product candidates;
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seeking
and obtaining marketing approvals for our product candidates that successfully complete clinical trials, if any;
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launching
and commercializing our product candidates for which we obtain marketing approval, if any, with a partner or, if launched
independently, successfully establishing a manufacturing, sales force, marketing, and distribution infrastructure;
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identifying
and developing new product candidates;
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establishing
and maintaining supply and manufacturing relationships with third parties;
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maintaining,
protecting, expanding, and enforcing our intellectual property; and
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attracting,
hiring, and retaining qualified personnel.
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Because
of the numerous risks and uncertainties associated with biologic and pharmaceutical product development, we are unable to predict
the likelihood or timing for when we may receive regulatory approval of our product candidates or when we will be able to achieve
or maintain profitability, if ever. If we are unable to establish a development and or commercialization partnership, or do not
receive regulatory approvals, our business, prospects, financial condition, and results of operations will be adversely affected.
Even if we or a partner obtain the regulatory approvals to market and sell one or more of our product candidates, we may never
generate significant revenues from any commercial sales for several reasons, including because the market for our products may
be smaller than we anticipate, or products may not be adopted by physicians and payors, or because our products may not be as
efficacious or safe as other treatment options. If we fail to successfully commercialize one or more products, by ourselves or
through a partner, we may be unable to generate sufficient revenues to sustain and grow our business and our business, prospects,
financial condition, and results of operations will be adversely affected.
We
are dependent on third parties to conduct our clinical trials and the failure of such third parties to perform or delays in performance
could increase our costs or prevent us from being able to use the results of the trials.
We
depend and will continue to depend upon independent investigators and collaborators, such as universities and medical institutions,
to conduct our clinical trials under agreements with us. Negotiations of budgets and contracts with study sites may result in
delays to our development timelines and increased costs. We will 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 (“cGCPs”), which are regulations and guidelines enforced by the FDA for product candidates
in clinical development. The FDA enforces these cGCPs through periodic inspections of clinical trial sponsors, principal investigators,
and clinical 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 could require us to perform additional clinical trials,
undertake data analyses or audits, or adopt new or revised clinical study procedures and systems before approving our marketing
applications. It is possible the FDA could determine that any of our clinical trials fail to comply with the cGCP regulations.
In addition, our clinical trials must be conducted with a biologic product produced under current good manufacturing practices,
or cGMPs, and will require a large number of test patients. 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.
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 these third parties, we cannot control whether 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 trials 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 SkinTE or other 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.
If
we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed or otherwise
adversely affected.
Even
if we are permitted to conduct clinical trials for SkinTE under an IND, we may experience difficulties in subject enrollment in
our clinical trials for a variety of reasons. The timely completion of clinical trials in accordance with their protocols depends,
among other things, on our ability to enroll a sufficient number of patients who remain in the study until its conclusion. The
enrollment of patients depends on many factors, including:
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the
patient eligibility criteria defined in the clinical trial protocol;
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the
size of the patient population required for analysis of the trial’s primary endpoints;
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the
proximity of patients to the study site;
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the
design of the clinical trial;
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our
ability to retain clinical trial investigators with the appropriate competencies and experience;
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our
ability to obtain and maintain patient consents;
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the
risk that patients enrolled in clinical trials will drop out of the clinical trials before completion;
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competing
clinical trials and approved therapies available for patients; and
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unexpected
difficulties, complications, and delays that could arise at any stage of our clinical trials as a result of the COVID-19 pandemic
or otherwise.
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In
particular, SkinTE clinical trials will be designed to test the treatment of wounds with specific characteristics and be conducted
at a limited number of sites, so to a large extent we will have no control or influence on the number and timing of enrolling
patients that are suitable for our trials.
Our
clinical trials could compete with other companies’ clinical trials for product candidates that are in the same therapeutic
areas as our product candidates, and this competition could reduce the number and types of patients available to us, because some
patients who might have opted to enroll in our clinical trials may instead opt to enroll in a trial being conducted by one of
our competitors. It is possible we could conduct our clinical trials at the same clinical trial sites that some of our competitors
may use, which could reduce the number of patients who are available for our clinical trial in these clinical trial sites. Delays
in patient enrollment may result in increased costs or may affect the timing or outcome of our planned clinical trials, which
could prevent completion of the clinical trials and adversely affect our ability to advance the development of SkinTE.
Any
adverse developments that occur during any clinical trials conducted by academic investigators or other entities conducting clinical
trials under separate INDs may negatively affect the conduct of our clinical trials or our ability to obtain regulatory approvals
or commercialize our product candidates.
Skin-based
HCT/Ps and other HCT/Ps for wound care are being used, or may be used, by third parties in clinical trials that are completely
independent of our plan for SkinTE. We have no control over the conduct of those clinical trials. If serious adverse events occur
during those or any other clinical trials using technologies similar to ours, the FDA and other regulatory authorities may delay
our clinical trial, or could delay, limit, or deny approval of SkinTE or require us to conduct additional clinical trials as a
condition to marketing approval, which would increase our costs. If we receive regulatory approval for SkinTE and a new and serious
safety issue is identified in connection with clinical trials conducted by third parties, the applicable regulatory authorities
may withdraw their approval of SkinTE or otherwise restrict our ability to market and sell our product. In addition, treating
physicians may be less willing to administer our products due to concerns over such adverse events, which would limit our ability
to commercialize our products.
Adverse
side effects or other safety risks associated with our product candidates could cause us to suspend or discontinue clinical trials
or delay or preclude approval.
During
our DFU RCT and in the course of our commercial sales of SkinTE we did not observe undesirable side effects from the application
of SkinTE. There is no assurance, however, that undesirable side effects will not be observed in our clinical trials, whether
or not they are caused by SkinTE. Any such undesirable side effects could result in the delay, suspension, or termination of clinical
trials by the FDA or us for a number of reasons. In addition, because the patients who will be enrolled in our clinical trials
may be suffering from one or more serious chronic or life-threatening conditions it may be difficult to accurately assess the
relationship between SkinTE and adverse events experienced by very ill patients. If we elect or are required to delay, suspend,
or terminate any of our clinical trials, the commercial prospects of SkinTE could be harmed and our ability to generate product
revenues from SkinTE could be delayed or eliminated. In addition, serious adverse events observed in clinical trials could hinder
or prevent market acceptance of SkinTE. Any of these occurrences may harm our business, prospects, financial condition, and results
of operations significantly.
We
may form or seek strategic alliances, enter into additional licensing arrangements, or participate in acquisition transactions
in the future, and we may not succeed in realizing the benefits of such alliances, licensing arrangements, or acquisition transactions.
We
may form or seek strategic alliances, create joint ventures or collaborations, enter into licensing arrangements, or participate
in an acquisition in which we are the acquirer or the target with third parties that we believe will complement or augment our
development and commercialization efforts with respect to SkinTE or our other product candidates we may develop. Any of these
relationships or transactions may require us to incur non-recurring and other charges, increase our near and long-term expenditures,
issue securities that dilute our existing stockholders, or disrupt our management and business. In addition, we face significant
competition in seeking appropriate strategic opportunities and the negotiation process is time-consuming and complex. Moreover,
we may not be successful in arranging a strategic partnership or other alternative arrangements for our product candidates because
they may be deemed to be at too early of a stage of development for collaborative effort and third parties may not view our product
candidates as having the requisite potential to demonstrate safety and efficacy or achieve commercial success. If we license or
acquire products or businesses, we may not be able to realize the benefit of such transactions if we are unable to successfully
integrate them with our existing operations and company culture. It is possible that, following a strategic transaction or license,
we may not achieve the revenue or specific net income that justifies such transaction. Any delays in entering into new strategic
partnership agreements related to our product candidates could delay the development and commercialization of our product candidates
in certain geographies for certain indications, which would harm our business prospects, financial condition, and results of operations.
Even
if we obtain regulatory approval of SkinTE or future product candidates, they may not gain market acceptance among physicians,
patients, hospitals, third-party payors, and others in the medical community.
The
development and use of HCT/Ps for tissue regeneration therapies is a recently developed technology and may not become broadly
accepted by physicians, patients, hospitals, third-party payors, and others in the medical community. Many factors will influence
whether SkinTE or any other product candidates we may develop are accepted in the market, including:
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the
clinical indications for which our product candidates are approved, if any;
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physicians,
hospitals, and patients considering our product candidates as a safe and effective treatment;
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the
potential and perceived advantages of our product candidates over alternative treatments;
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the
prevalence and severity of any side effects;
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product
labeling or product insert requirements of the FDA or other regulatory authorities;
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limitations
or warnings contained in the labeling approved by the FDA or other regulatory authorities;
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the
extent and quality of the clinical evidence supporting the efficacy and safety of our product candidates;
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the
timing of market introduction of our product candidates as well as competitive products;
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the
cost of treatment in relation to alternative treatments;
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the
availability of adequate reimbursement and pricing by third-party payors and government authorities;
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the
willingness and ability of patients to pay out-of-pocket in the absence of coverage by third-party payors, including government
authorities;
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relative
convenience and ease of administration, including as compared to alternative treatments and competitive therapies; and
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the
effectiveness of our or any of our strategic partners’ sales and marketing efforts.
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If
our product candidates are approved but fail to achieve market acceptance among physicians, patients, hospitals, or others in
the medical community, we will not be able to generate significant revenue. Even if our products achieve market acceptance, we
may not be able to maintain that market acceptance over time if new products or technologies are introduced that are more favorably
received than our products, are more cost effective or render our products obsolete.
Our
ability to timely submit an IND to the FDA may depend on circumstances outside of our control.
Our
ability to submit an IND to the FDA depends on a variety of factors. We must submit the results of various preclinical tests,
together with manufacturing information, analytical data, all available past clinical data or literature, and a proposed clinical
protocol to the FDA as part of the IND. Preclinical tests include laboratory evaluations of product chemistry and formulation,
as well as other studies to assess the potential safety and activity of the product candidate. The conduct of the preclinical
tests must comply with federal regulations and requirements, subject to any adjustments allowed by the FDA. The FDA may require
that we conduct additional preclinical testing or for any product candidate before it allows us to initiate the clinical testing
under any IND, which may lead to additional delays and increase the costs of our preclinical and clinical development. An IND
also involves considerable work from our employees and advisors. Difficulties or delays in the process will likely increase the
costs associated with the IND and result in an unanticipated reduction in the working capital we have available to pursue the
IND and BLA.
If
we are required to or voluntarily withdraw, recall, or cease product manufacturing, it could significantly increase our costs,
damage our reputation, and disrupt our business.
The
manufacturing, marketing, and processing of our products and product candidates involves an inherent risk that our tissue products
or processes do not meet applicable quality standards and requirements. In that event, we may voluntarily implement a recall,
market withdrawal, or cessation of manufacturing or may be required to do so by a regulatory authority. A recall, market withdrawal,
or cessation of manufacturing of one of our products would be costly and would divert management resources. Any such action involving
one of our products, or a similar product processed by another entity, also could impair sales of our products because of confusion
concerning the scope of the recall or withdrawal, or because of the damage to our reputation for quality and safety.
We
face significant uncertainty in the industry due to government healthcare reform.
There
have been and continue to be proposals by the federal government, state governments, regulators and third-party payers to control
healthcare costs (including but not limited to capitation – the generalized cap on annual fees for a type of service or
procedure such as burn or wound care or rehabilitation), and generally, to reform the healthcare system in the United States.
There are many programs and requirements for which the details have not yet been fully established or the consequences are not
fully understood. These proposals may affect aspects of our business. We also cannot predict what further reform proposals, if
any, will be adopted, when they will be adopted, or what impact they may have on us.
We
face the risk of product liability claims and may not be able to obtain or maintain adequate product liability insurance.
Our
business exposes us to the risk of product liability claims that are inherent in the manufacturing, processing, and marketing
of human cellular and tissue-based products. We may be subject to such claims if our products cause, or appear to have caused,
an injury during clinical trials or after commercialization. Claims may be made by patients, healthcare providers, or others selling
our products. Defending a lawsuit, regardless of merit, could be costly, divert management attention, and result in adverse publicity,
which could result in the withdrawal, or reduced acceptance, of our products in the market.
Although
we have obtained product liability insurance, such insurance is subject to deductibles and coverage limitations and we may not
be able to maintain this insurance. Also, it is possible that claims could exceed the limits of our coverage. If we are unable
to obtain or maintain product liability insurance at an acceptable cost or on acceptable terms with adequate coverage, or otherwise
protect ourselves against potential product liability claims or we underestimate the amount of insurance we need, we could be
exposed to significant liabilities, which may harm our business. A product liability or other claim with respect to uninsured
liabilities or for amounts in excess of insured liabilities could result in significant costs and significant harm to our business.
We
operate in a highly competitive and evolving field and face competition from regenerative medicine, biotechnology, and pharmaceutical
companies, tissue engineering entities, tissue processors, and medical device manufacturers, as well as new market entrants, which
may result in others discovering, developing or commercializing competing products before or more successfully than we do.
We
operate in a competitive and continually evolving field. Competition from other regenerative medicine, biotechnology, and pharmaceutical
companies, tissue engineering entities, tissue processors, medical device companies, and from research and academic institutions
is intense, expected to increase, subject to rapid change, and could be significantly affected by new product introductions. Many
of our competitors have substantially greater financial, technical, and other resources, such as larger research and development
staff and experienced marketing and manufacturing organizations and well-established sales forces. Smaller or early-stage companies
may also prove to be significant competitors, particularly through collaborative arrangements with large, established companies.
Mergers and acquisitions in the biotechnology and pharmaceutical industries may result in even more resources being concentrated
in our competitors. Competition may increase further as a result of advances in the commercial applicability of technologies and
greater availability of capital for investment in these industries. Our competitors, either alone or with collaborative partners,
may succeed in developing, acquiring, or licensing on an exclusive basis drug or biologic products that are more effective, safer,
more easily commercialized, or less costly than our product candidates or may develop proprietary technologies or secure patent
protection that we may need for the development of our technologies and products. Our failure to compete effectively would have
a material and adverse effect on our business, results of operations, and financial condition.
Risks
Related to our Operating Activities
We
may be required to discontinue sales of SkinTE, which would adversely affect our revenues, financial condition, and results of
operations.
We
continue to market SkinTE as a 361 HCT/P product and under the FDA’s policy of enforcement discretion (currently scheduled
through May 2021) as we work to transition SkinTE to a Section 351 product. Our net revenues from SkinTE sales in 2020 were $3.7
million. Following the end of the FDA’s period of enforcement discretion, we may need to cease selling SkinTE until the
FDA approves a BLA, and then we will only be able to market the product for indications that have been approved in a BLA. The
loss of our ability to market and sell SkinTE would have an adverse impact on our revenues, financial condition, and results of
operations.
We
have a limited history of operation with our laboratory testing service so we are unable to predict with any certainty what contribution
it will make to defraying our operating expenses in the future, which could adversely affect our ability to plan for the use of
our resources to achieve our goals.
Net
loss from our contract services segment was $39,000 for the year ended December 31, 2020 compared to a net loss of $1.2 million
for the year ended December 31, 2019, and this reversal is directly attributable to the new source of revenue we found in COVD-19
testing. Net revenues from our historical clinical service offerings were $59,000 for the year ended December 31, 2020, compared
to $4.3 million in net revenues generated by COVID-19 testing services. COVID-19 testing is a relatively new business activity
that we started with existing equipment and personnel when the opportunity presented itself, which means there are substantial
risks and uncertainties associated with this new business activity. We obtained 96% of COVID-19 testing revenues in 2020 under
30-day renewable testing agreements with multiple nursing home and pharmacy facilities in the state of New York controlled by
a single company. On March 26, 2021, we were advised by the company that controls the New York nursing homes and pharmacy facilities
we service that the state of New York is allowing on-site employee testing and that on-site testing
will be implemented for the New York facilities we service, which will likely have the effect of substantially diminishing our
revenues from COVID-19 testing after the first quarter of 2021. We are a relatively unknown testing laboratory, so we have relied
on word of mouth and management relationships to connect with prospects and vied for new business on the basis of price and service,
and we cannot predict how well this marketing approach will work in finding new customers for Arches’ testing services.
Even if we are able to find new customers for the COVID-19 testing business there remain substantial risks associated with the
COVID-19 testing business, including the following:
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our
plan is to commit our financial business resources to advancing our IND and BLA for SkinTE, not to develop or scale the COVID-19
testing business;
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competition
from other COVID-19 testing facilities is intense, expected to increase, subject to rapid change, and could be significantly
affected by the introduction of new testing products;
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there
are a number of competitors for testing services that have substantially greater financial, marketing, testing, and managerial
resources than we do;
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the
United States is embarking on an aggressive vaccination program for the entire population against COVID-19 and this could
impact the need or demand for testing in the future;
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we
obtained CLIA registration for our laboratory because this is a prerequisite to providing testing services, and we must continue
to comply with the practices and procedures required for registration in order to be able to continue to provide testing services;
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our
ability to service our testing customers depends on the continuous operation of our testing equipment without significant
disruption; and
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we
need reliable sources of reagents and other supplies required for COVID-19 testing.
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A
significant decline or loss of the COVID-19 testing business in 2021 that we are unable to substantially replace with new customers
could have a material and adverse effect on our business, results of operations, and financial condition.
Our
manufacturing and COVID 19 testing operations depend primarily on one facility. If this facility is destroyed or we experience
any manufacturing or laboratory difficulties, disruptions, or delays, this could adversely affect our ability to conduct our clinical
trials or perform laboratory testing services.
All
of the manufacturing of SkinTE and COVID-19 testing takes place at our single U.S. facility. If regulatory, manufacturing, or
other problems require us to discontinue production or laboratory operations at our current facility, we would not be able to
supply SkinTE for clinical trials or operate our COVID-19 testing business, which would adversely impact our business. If this
facility or the equipment in it is significantly damaged or destroyed by fire, flood, power loss, or similar events, we may not
be able to quickly or inexpensively replace our manufacturing or laboratory capacity or replace the facility at all. In the event
of a temporary or protracted loss of this facility or equipment, we might not be able to quickly transfer manufacturing to a third
party or laboratory testing to our IBEX facility. Even if we could transfer manufacturing, the shift would likely be expensive
and time-consuming, particularly since an alternative facility would need to comply with applicable FDA manufacturing and quality
requirements and, if applicable, FDA approval would be required before any products manufactured at that facility could be used.
Similarly, if we are able to transfer laboratory testing to IBEX, the transfer will likely be expensive and require CLIA registration.
We
depend on our senior management team and the loss of one or more key employees or an inability to attract and retain highly skilled
employees will negatively affect our business, financial condition, and results of operations.
Our
success depends in part on our continued ability to attract, retain and motivate highly qualified management, clinical and other
personnel. We are highly dependent upon our senior management and other key personnel. Although we have entered into employment
agreements with all of our executive officers, each of them may terminate their employment with us at any time. The replacement
of any of our key personnel likely would involve significant time and costs and may significantly delay or prevent the achievement
of our business objectives and could therefore negatively affect our business, financial condition, and results of operations.
In addition, we do not carry any key person insurance policies that could offset potential loss of service under applicable circumstances.
We
have from time to time experienced, and we expect to continue to experience, difficulty in hiring and retaining employees with
appropriate qualifications. Many of the companies with which we compete for experienced personnel have greater resources than
us. If we hire employees from competitors or other companies, their former employers may attempt to assert that these employees
or we have breached legal obligations, resulting in a diversion of our time and resources and, potentially, damages.
In
addition, job candidates and existing employees often consider the value of the stock awards they receive in connection with their employment.
If the perceived value of our stock awards declines, it may harm our ability to recruit and retain highly skilled employees. Many of
our employees have become or will soon become vested in a substantial amount of our common stock or a number of common stock options.
Our employees may be more likely to leave us if the shares they own have significantly appreciated in value relative to the original
purchase prices of the shares, or if the exercise prices of the options that they hold are significantly below the market price of our
common stock. Our future success also depends on our ability to continue to attract and retain additional executive officers and other
key employees. If we fail to attract new personnel or fail to retain and motivate our current personnel, it will negatively affect our
business, financial condition, and results of operations.
The
ongoing COVID-19 pandemic could materially affect our operations, as well as the business or operations of third parties with
whom we conduct business. Our business could be adversely affected by the effects of other future health pandemics in regions
where we or third parties on which we rely have significant business operations.
COVID-19
has spread globally and the World Health Organization has declared it a pandemic. While still evolving, the COVID-19 pandemic
has caused significant worldwide economic and financial turmoil and has fueled concerns that it will lead to a global recession.
On March 13, 2020, the United States declared a national emergency with respect to COVID-19 and the majority of states, including
the state of Utah, and local governments have since issued orders restricting the operations of non-essential businesses or restricting
activities of residents. As the pandemic has evolved since March 2020, some restrictions have eased, however, if in the future
there are surges of infection and hospitalization rates, more severe restrictions many be implemented by local government agencies.
We are following the recommendations of local health authorities to minimize exposure risk for our employees and visitors, including
requiring designated employees to work from home. The continued and prolonged implementation of restrictions by federal, state,
and local authorities to slow the spread of COVID-19 have disrupted and, we expect, will continue to disrupt, our business and
operations.
Depending
upon the length of the COVID-19 pandemic and whether the FDA allows us to commence our clinical trials once we submit our proposed
IND, our future clinical trials for SkinTE may be affected by the COVID-19 pandemic. If COVID-19 continues to spread in the U.S.
and elsewhere, we may experience additional disruptions that could adversely impact our business and clinical trials, including:
(i) delays or difficulties in enrolling patients in our clinical trials approved under our IND; (ii) delays or difficulties in
clinical site activation, including difficulties in recruiting clinical site investigators and clinical site personnel; (iii)
delays in clinical sites receiving the supplies and materials needed to conduct our clinical trial, including interruption in
shipping that may affect the transport of our clinical trial product; (iv) changes in local regulations as part of a response
to the COVID-19 pandemic that may require us to change the ways in which our clinical trial is to be conducted, which may result
in unexpected costs, or to discontinue the clinical trial altogether; (v) diversion of healthcare resources away from the conduct
of clinical trials, including the diversion of hospitals serving as our clinical trial sites and hospital staff supporting the
conduct of our clinical trial; (vi) interruption of key clinical trial activities, such as clinical trial site monitoring, due
to limitations on travel imposed or recommended by federal or state governments, employers, and others, or interruption of clinical
trial subject visits and study procedures, the occurrence of which could affect the integrity of clinical trial data; (vii) risk
that participants enrolled in our clinical trials will acquire COVID-19 while the clinical trial is ongoing, which could impact
the results of the clinical trial, including by increasing the number of observed adverse events; (viii) delays in necessary interactions
with local regulators, ethics committees, and other important agencies and contractors due to limitations in employee resources
or forced furlough of government employees; (ix) limitations in employee resources that would otherwise be focused on the conduct
of our clinical trial because of sickness of employees or their families or the desire of employees to avoid contact with large
groups of people; (x) refusal of the FDA to accept data from clinical trials in affected geographies; and (xi) interruption or
delays to our clinical trial activities.
The
extent to which the COVID-19 pandemic impacts our business, operations, and financial results will depend on numerous evolving
factors that we may not be able to accurately predict, including: the duration and scope of the pandemic; governmental, business
and individuals’ actions that have been and continue to be taken in response to the pandemic; the impact of the pandemic
on economic activity and actions taken in response; our ability to continue daily operations, including as a result of travel
restrictions and people working from home; and any closures of our and our business partners’ offices and facilities.
Risks
Related to Our Intellectual Property
Our
ability to protect our intellectual property and proprietary technology through patents and other means is uncertain and may be
inadequate, which could have a material and adverse effect on us.
Our
success depends significantly on our ability to protect our proprietary rights in technologies that presently consist of trade
secrets, patents, and patent applications. We currently have one issued patent and one allowed patent application in the United
States relating to our MPFU technology. We intend to continue our patenting activities and rely on patent protection, as well
as a combination of copyright, trade secret, and trademark laws and nondisclosure, confidentiality, and other contractual restrictions
to protect our proprietary technology, and there can be no assurance these methods of protection will be effective. These legal
means afford only limited protection and may not adequately protect our rights or permit us to gain or keep any competitive advantage.
In addition, our presently pending patent applications include claims to material aspects of our activities that are not currently
protected by issued patents in the United States. The patent application process can be time consuming and expensive. We cannot
ensure that any of the pending patent applications already filed or that may be filed or acquired will result in issued patents.
Competitors may be able to design around our patents or develop procedures that provide outcomes that are comparable or even superior
to ours. There is no assurance that the inventors of the patents and applications were the first-to-invent or the first-inventor-to-file
on the inventions, or that a third party will not claim ownership in one of our patents or patent applications. We cannot assure
you that a third party does not have or will not obtain patents that could preclude us from practicing the patents we own or license
now or in the future.
The
failure to obtain and maintain patents or protect our intellectual property rights could have a material and adverse effect on
our business, results of operations, and financial condition. We cannot be certain that, if challenged, any patents we have obtained
or ultimately obtain would be upheld because a determination of the validity and enforceability of a patent involves complex issues
of fact and law. If one or more of any patents we have obtained or ultimately obtain is invalidated or held unenforceable, such
an outcome could reduce or eliminate any competitive advantage we might otherwise have had.
In
the event a competitor infringes upon any patent we have obtained or ultimately obtain, or a third party including but not limited
to a university or other research institution, makes a claim of ownership over our patents or other intellectual property rights,
confirming, defending, or enforcing those rights may be costly, uncertain, difficult, and time consuming.
There
can be no assurance that a third party, including, but not limited to, a university or other research institution that our founders
were associated with in the past, will not make claims to ownership or other claims related to our technology.
There
can be no assurance that a third party, including but not limited to, a university or other research institution that our founders
were associated with in the past, will not make claims to ownership or other claims related to our technology. We believe we have
developed our technology outside of any institutions, but we cannot guarantee such institutions would not assert a claim to the
contrary. Even if successful, litigation to enforce or defend our intellectual property rights could be expensive and time consuming
and could divert our management’s attention. Further, bringing litigation for patent enforcement subjects us to the potential
for counterclaims. If one or more of our current or future patents is challenged in U.S. or foreign courts or the United States
Patent and Trademark Office or foreign patent offices, the patent(s) may be found invalid or unenforceable, which could harm our
competitive position. If any court or any patent office ultimately cancels or narrows the claims in any of our patents through
any pre- or post-grant patent proceedings, such an outcome could prevent or hinder us from being able to enforce the patent against
competitors. Such adverse decisions could negatively affect our future revenue and results of operations.
We
may be subject to claims that our employees have wrongfully appropriated, used, or disclosed intellectual property of their former
employers.
We
employ individuals who were previously employed by other companies, universities, or academic institutions. We may be subject
to claims that we or our employees have inadvertently or otherwise used or disclosed intellectual property, including trade secrets
or other proprietary information, of a prior employer. Litigation may be necessary to defend against these claims. If we fail
in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel,
which could adversely impact our business. Even if we are successful in defending against such claims, litigation could result
in substantial costs and be a distraction to management and other employees. Any of the foregoing could have an adverse impact
on our business, financial condition, results of operations, and cash flows.
We
may be subject to claims that former or current employees, collaborators, or other third parties have an interest in our patents,
patent applications, or other intellectual property as an inventor or co-inventor. Litigation may be necessary to defend against
any claims challenging inventorship. If we fail in defending any such claims, in addition to paying monetary damages, we may lose
valuable intellectual property rights, such as exclusive ownership of, or right to use, valuable intellectual property. Such an
outcome could have a material adverse effect on our business. Even if we are successful in defending against such claims, litigation
could result in substantial costs and be a distraction to management and other employees.
If
we are unable to protect the confidentiality of our proprietary information and know-how related to SkinTE or any of our product
candidates, our competitive position would be impaired and our business, financial condition, and results of operations could
be adversely affected.
Some
of our technology, including our knowledge regarding certain aspects of the manufacture of SkinTE and potential product candidates,
is unpatented and is maintained by us as trade secrets. To protect these trade secrets, the information is restricted to our employees,
consultants, collaborators, and advisors on a need-to-know basis. In addition, we require our employees, consultants, collaborators,
and advisors to execute confidentiality agreements upon the commencement of their relationships with us. These agreements require
that all confidential information developed by the individual or made known to the individual by us during the individual’s
relationship with us be kept confidential and not disclosed to third parties. These agreements, however, do not ensure protection
against improper use or disclosure of confidential information, and these agreements may be breached. A breach of confidentiality
could affect our competitive position. In addition, in some situations, these agreements and other obligations of our employees
to assign intellectual property to the Company may conflict with, or be subject to, the rights of third parties with whom our
employees, consultants, collaborators, or advisors have previous employment or consulting relationships. Also, others may independently
develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets.
Adequate
remedies may not exist in the event of unauthorized use or disclosure of our confidential information. The disclosure of our trade
secrets could impair our competitive position and have a material adverse effect on our business, financial condition, and results
of operations.
We
may become subject to claims of infringement of the intellectual property rights of others, which could prohibit us from developing
our treatment, require us to obtain licenses from third parties, or to develop non-infringing alternatives, and subject us to
substantial monetary damages. We have not obtained and do not intend to obtain any formal legal opinion regarding our freedom
to practice our technology.
Third
parties could assert that our processes, SkinTE, product candidates, or technology infringe their patents or other intellectual
property rights. Whether a process, product, or technology infringes a patent or other intellectual property involves complex
legal and factual issues, the determination of which is often uncertain. We cannot be certain that we will not be found to have
infringed the intellectual property rights of others. Because patent applications may remain unpublished for certain periods of
time and may take years to be issued as patents, there may be applications now pending of which we are unaware or that do not
currently contain claims of concern that may later result in issued patents that SkinTE, our product candidates, procedures, or
processes will infringe. There may be existing patents that SkinTE, our product candidates, procedures, or processes infringe,
of which infringement we are not aware. Third parties could also assert ownership over our intellectual property. Such an ownership
claim could cause us to incur significant costs to litigate the ownership issues. If an ownership claim by a third party were
upheld as valid, we may be unable to obtain a license from the third party on acceptable terms, to continue to make, use, or sell
technology free from claims by that third party of infringement of the third party’s intellectual property. We have not
obtained, and do not have a present intention to obtain, any legal opinion regarding our freedom to practice our technology.
If
we are unsuccessful in actions we bring against the patents of other parties, and it is determined that we infringe upon the patents
of third parties, we may be subject to injunctions, or otherwise prevented from commercializing potential products or services
in the relevant jurisdiction, or may be required to obtain licenses to those patents or develop or obtain alternative technologies,
any of which could harm our business. Furthermore, if such challenges to our patent rights are not resolved in our favor, we could
be delayed or prevented from entering into new collaborations or from commercializing certain product candidates or services,
which could adversely affect our business and results of operations.
We
may not be able to enforce our patent rights against third parties.
Successful
challenge of any patents or future patents or patent applications such as through opposition, reexamination, inter partes
review, interference, or derivation proceedings could result in a loss of patent rights in the relevant jurisdiction. Furthermore,
because of the substantial amount of discovery required relating to intellectual property litigation, there is a risk that some
of our confidential or sensitive information could be compromised by disclosure in the event of litigation. In addition, during
litigation there could be public announcements of the results of hearings, motions, or other interim proceedings or developments.
If securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price
of our common stock.
We
may not be able to protect our intellectual property in countries outside of the United States.
Intellectual
property law outside the United States is uncertain and, in many countries, is currently undergoing review and revisions. The
laws of some countries do not protect patent and other intellectual property rights to the same extent as United States laws.
Third parties may challenge our patents or applications in foreign countries by initiating pre- and post-grant oppositions or
invalidation proceedings. Developments during opposition or invalidation proceedings in one country may directly or indirectly
affect a corresponding patent or patent application in another country in an adverse manner. It may be necessary or useful for
us to participate in proceedings to determine the validity of our patents or our competitors’ patents that have been issued
in countries other than the United States. This could result in substantial costs, divert our efforts and attention from other
aspects of our business, and could have a material adverse effect on our results of operations and financial condition.
Risks
Related to Our Common Stock
An
active trading market for our common stock may not continue to develop or be sustained.
Although
our common stock is listed on the NASDAQ Capital Market, or NASDAQ, we cannot assure you that an active, liquid trading market
for our shares will continue to develop or be sustained. If an active market for our common stock does not continue to develop
or is not sustained, it may be difficult for you to sell shares quickly or without depressing the market price for the shares
or to sell your shares at all.
We
are pursuing a plan to advance regulatory approval of SkinTE, so delay or failure in achieving our milestones could adversely
affect our prospects and the value of ownership of our common stock.
While
a positive contributor to operating results, we do not plan to commit any meaningful amount of capital to scale our testing and
research services business because we plan to devote our capital resources to the advancement of SkinTE through the regulatory
process. We believe growth in stockholder value will follow if and when we achieve milestones in the process of pursuing our IND
and BLA for SkinTE. To the extent that we encounter problems or delays in this process, our growth prospects and stockholder value
could be materially, adversely affected.
The
trading price of the shares of our common stock has been and may continue to be volatile, and you may not be able to resell some or all
your shares at a desired price.
Our
stock price has been highly volatile during the 12-month period ended February 28, 2021, with closing stock prices ranging from
a high of $1.85 per share to a low of $0.61 per share. The stock market in general, and the market for biotech companies in particular,
have experienced extreme volatility that, at times, has been unrelated to the operating performance of particular companies. Because
of this volatility, investors in our stock may not be able to sell their common stock at or above the price paid for the shares.
The market price for our common stock may be influenced by many factors, including:
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the
timing or success of obtaining regulatory licenses or approvals for marketing our products;
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the
initiation, timing, progress, and results of our pre-clinical studies or clinical trials;
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sufficiency
of our working capital to fund our operations over the next 12 months and beyond;
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infrastructure
required to support operations in future periods, including the expected costs thereof;
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estimates
associated with revenue recognition, asset impairments, and cash flows;
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variance
in our estimates of future operating costs;
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the
impact of new accounting pronouncements;
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size
and growth of our target markets;
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the
initiation, timing, progress, and results of our research and development programs;
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issues
in manufacturing our product candidates or future approved products;
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regulatory
developments or enforcement in the United States and foreign countries with respect to our product candidates or our competitors’
products;
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competition
from existing products or new products that may emerge;
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developments
or disputes concerning patents, patent applications, 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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announcements
by us, our collaborators, or our competitors of significant acquisitions, strategic partnerships, joint ventures, collaborations,
or capital commitments;
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changes
in estimates or recommendations by securities analysts, if any, who cover our common stock;
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fluctuations
in the valuation of companies perceived by investors to be comparable to us;
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public
concern over our product candidates or any future approved products;
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threatened
or actual litigation;
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future
or anticipated sales of our common stock;
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share
price and volume fluctuations attributable to inconsistent trading volume levels of our shares;
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additions
or departures of key personnel;
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changes
in the structure of health care payment systems in the United States or overseas;
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failure
of any of our products or product candidates to perform safely or effectively or achieve commercial success;
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economic
and other external factors or other disasters or crises;
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period-to-period
fluctuations in our financial condition and results of operations;
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general
market conditions and market conditions for biopharmaceutical stocks; and
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overall
fluctuations in U.S. equity markets.
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In
addition, in the past, when the market price of a stock has been volatile, holders of that stock have instituted securities class
action litigation against the company that issued the stock. Defending such litigation could result in substantial defense costs
and divert the time and attention of our management, which could seriously harm our business.
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 March 25, 2021, we had 80,319,378 shares of common stock outstanding, all of which, other than
shares held by our directors and certain officers and affiliates, 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. As of
March 25, 2021, we also had a significant number of securities convertible into, or allowing the purchase of, our common
stock, including 19,314,143 warrants to purchase shares of our common stock, 6,079,210 options and rights
to acquire shares of our common stock that are outstanding under our equity incentive plans, and 4,271,350 shares of common
stock reserved for future issuance under our equity incentive plans.
Our
Restated Certificate of Incorporation, our Restated Bylaws, and Delaware law could deter a change of our management, which could discourage
or delay offers to acquire us.
Certain
provisions of Delaware law and of our Restated Certificate of Incorporation, as amended, and by-laws, could discourage or make
it more difficult to accomplish a proxy contest or other change in our management or the acquisition of control by a holder of
a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or
could deter, transactions that stockholders may otherwise consider to be in their best interests or in our best interests. These
provisions include:
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we
have a classified Board requiring that members of the Board be elected in different years, which lengthens the time needed
to elect a new majority of the Board;
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our
Board is authorized to issue up to 25,000,000 shares of preferred stock without stockholder approval, which could be issued
by our Board to increase the number of outstanding shares or change the balance of voting control and thwart a takeover attempt;
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stockholders
are not entitled to remove directors other than by a two-thirds vote and only for cause;
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stockholders
cannot call a special meeting of stockholders;
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we
require all stockholder actions be taken at a meeting of our stockholders, and not by written consent; and
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stockholders
must give advance notice to nominate directors or submit proposals for consideration at stockholder meetings.
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We
are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, which regulates corporate
acquisitions by prohibiting Delaware corporations from engaging in specified business combinations with particular stockholders
of those companies. These provisions could discourage potential acquisition proposals and could delay or prevent a change in control
transaction. They could also have the effect of discouraging others from making tender offers for our common stock, including
transactions that may be in your best interests. These provisions may also prevent changes in our management or limit the price
that investors are willing to pay for our stock.
Because
we do not expect to declare cash dividends on our common stock in the foreseeable future, stockholders must rely on appreciation
of the value of our common stock for any return on their investment.
While
we have in the past declared and paid cash dividends on our capital stock, we currently anticipate that we will retain future
earnings for the development, operation and expansion of our business and do not expect to declare or pay any additional cash
dividends in the foreseeable future. As a result, only appreciation of the price of our common stock, if any, will provide a return
to investors in this offering.
We
incur costs and demands upon management because of being a public company.
As
a public company listed in the United States, we are incurring, and will continue to incur, significant legal, accounting, and
other costs. These costs could negatively affect our financial results. In addition, changing laws, regulations and standards
relating to corporate governance and public disclosure, including regulations implemented by the SEC and stock exchanges, may
increase legal and financial compliance costs, and make some activities more time consuming. These laws, regulations and standards
are subject to varying interpretations and, as a result, their application in practice may evolve over time as new guidance is
provided by regulatory and governing bodies. We intend to invest resources to comply with evolving laws, regulations and standards,
and this investment may result in increased general and administrative expenses and a diversion of management’s time and
attention from revenue-generating activities to compliance activities. If, notwithstanding our efforts to comply with new laws,
regulations, and standards, we fail to comply, regulatory authorities may initiate legal proceedings against us, and our business
may be harmed.
Failure
to comply with these rules also might make it more difficult for us to obtain some types of insurance, including directors’
and officers’ liability insurance, and we might be forced to accept reduced policy limits and coverage or incur substantially
higher costs to obtain the same or similar coverage. The impact of these events could also make it more difficult for us to attract
and retain qualified persons to serve on our board of directors, on committees of our board of directors or as members of senior
management
Item
1B. Unresolved Staff Comments.
None.
Item
2. Properties.
On
December 27, 2017, we entered into a commercial lease agreement with Adcomp LLC, a Utah limited liability company, pursuant to
which we leased approximately 178,528 rentable square feet of warehouse, manufacturing, office, and lab space at 1960 S. 4250
West, Salt Lake City, Utah. The initial term of the lease is five years, and it expires on November 30, 2022. We have a one-time
option to renew for an additional five years. The initial base rent under this lease is $98,190 per month ($0.55 per sq. ft.)
for the first year of the initial lease term and increases 3.0% per annum thereafter.
In
May 2018, we purchased two parcels of real property in Cache County, Utah, consisting of approximately 1.75 combined gross acres
of land, together with the buildings, structures, fixtures, and personal property located at 1072 West RSI Drive, Logan, Utah.
This facility is used for the operation of our pre-clinical contract services business.
Item
3. Legal Proceedings.
On
June 26, 2018, a class action complaint alleging violations of the federal securities laws was filed in the U.S. District Court,
District of Utah, by Jose Moreno against the Company and two directors of the Company, Case No. 2:18-cv-00510-JNP (the “Moreno
Complaint”). On July 6, 2018, a similar complaint was filed in the same court against the same defendants by Yedid Lawi,
Case No. 2:18-cv-00541-PMW (the “Lawi Complaint”). On November 28, 2018, the court consolidated the Moreno and
Lawi cases under the caption In re PolarityTE, Inc. Securities Litigation with Case No. 2:18-cv-00510 (the “Consolidated
Securities Litigation”). The gravamen of the consolidated complaint in the Consolidated Securities Litigation was that defendants
made statements or disseminated information to the public through reports filed with the SEC and other channels that contained
material misstatements or omissions in violation of Sections 10 and 20(a) of the Exchange Act and Rule 10b-5 adopted thereunder,
specifically that the defendants misrepresented the status of one of the Company’s patent applications while touting the
unique nature of the Company’s technology and its effectiveness. The Company filed a motion to dismiss the consolidated
complaint on June 3, 2019. Plaintiffs’ opposition to the Company’s motion to dismiss was filed on August 2, 2019,
and the Company filed a reply to the opposition on September 13, 2019. Following a hearing on the Company’s motion to dismiss
the court issued an order on November 22, 2020, dismissing the complaint in the Consolidated Securities Litigation with prejudice.
In
November 2018, a shareholder derivative lawsuit was filed in the U.S. District Court, District of Utah, with the caption Monther
v. Lough, et al., case no. 2:18-cv-00791-TC, alleging violations of the Exchange Act, breach of fiduciary duty, and unjust
enrichment on the part of certain officers and directors based on the facts and circumstances recited in the Consolidated Securities
Litigation. On November 26, 2018, the court issued an order staying all proceedings until after the disposition of motions to
dismiss the Consolidated Securities Litigation. After disposition of the Consolidated Securities Litigation described above the
parties to the shareholder derivative lawsuit agreed to dismiss the lawsuit without prejudice, and the lawsuit was dismissed on
January 29, 2021.
In
the ordinary course of business, we may become involved in lawsuits, claims, investigations, proceedings, and threats of litigation
relating to intellectual property, commercial arrangements, employment, regulatory compliance, and other matters. At December
31, 2020, we were not party to any legal or arbitration proceedings that may have significant effects on our financial position
or results of operations. No governmental proceedings are pending or, to our knowledge, contemplated against us. We are not a
party to any material proceedings in which any director, member of senior management, or affiliate of ours is either a party adverse
to us or our subsidiaries or has a material interest adverse to us or our subsidiaries.
Item
4. Mine Safety Disclosures.
Not
applicable.
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
1.
PRINCIPAL BUSINESS ACTIVITY AND BASIS OF PRESENTATION
PolarityTE,
Inc. and subsidiaries (the “Company”) is a biotechnology company developing and commercializing regenerative tissue
products and biomaterials.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis
of Presentation. The accompanying financial statements have been prepared in conformity with accounting principles generally
accepted in the United States of America (“U.S. GAAP”).
Principles
of Consolidation. The accompanying consolidated financial statements include the accounts of the Company and its wholly owned
subsidiaries. Significant intercompany accounts and transactions have been eliminated in consolidation.
Use
of estimates. The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities or the disclosure of gain or loss contingencies at the
date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Among the more
significant estimates included in these financial statements is the extent of progress toward completion of contracts, stock-based
compensation, the valuation allowances for deferred tax benefits, the valuation of warrant liabilities, and impairment and abandonment
of assets. Actual results could differ from those estimates.
Segments.
The Company’s operations are based in the United States and involve products and services which are managed separately.
Accordingly, it operates in two segments: 1) regenerative medicine products and 2) contract services. The Chief Operating Decision
Maker (CODM), the Chief Executive Officer (CEO), allocates resources to and assesses the performance of each operating segment
using information about its revenue and operating income (loss).
Cash
and cash equivalents. Cash equivalents consist of highly liquid investments with original maturities of three months or less
from the date of purchase.
Investments.
Investments in debt securities have been classified as available-for-sale and are carried at fair value, with unrealized gains
and losses reported as a component of accumulated other comprehensive income. Realized gains and losses are included in other
income, net. The cost of securities sold is based on the specific-identification method. Interest on marketable securities is
included in interest (expense) income, net. Investments with original maturities of greater than three months but less than one
year from the date of purchase are classified as current. Investments with original maturities of greater than one year from the
date of purchase are classified as non-current.
Accounts
Receivable. Accounts receivable consists of amounts due to the Company related to the sale of the Company’s core product
SkinTE and contract services. Accounts that are outstanding longer than the contractual payment terms are considered past due.
The Company determines its allowance for doubtful accounts by considering a number of factors, including the length of time trade
accounts receivable are past due and the customer’s current ability to pay its obligation to the Company. The Company writes
off accounts receivable when they become uncollectible. As of December 31, 2020 and 2019, the Company recorded an allowance of
approximately $174,000 and $26,000, respectively.
Inventory.
Inventory comprises raw materials, which are valued at the lower of cost or net realizable value, on a first-in, first-out
basis. The Company evaluates the carrying value of its inventory on a regular basis, taking into account anticipated future sales
compared with quantities on hand, and the remaining shelf life of goods on hand.
Property
and Equipment. Property and equipment are stated at cost less accumulated depreciation and amortization. Depreciation is computed
on the straight-line basis over the estimated useful lives of the related assets, generally ranging from three to eight years.
Leasehold improvements are amortized using the straight-line method over the shorter of the assets’ estimated useful lives
or the remaining term of the lease. Maintenance and repairs are charged to operations as incurred. Upon sale or retirement of
assets, the cost and related accumulated depreciation are removed from the balance sheet and the resulting gain or loss is reflected
in operations.
Leases.
The Company determines if an arrangement is a lease at inception. Right-of-use (“ROU”) assets represent the Company’s
right to use an underlying asset for the lease term and lease liabilities represent the Company’s obligation to make lease
payments arising from the lease. Finance leases are reported in the consolidated balance sheet in property and equipment and other
current and long-term liabilities. The short-term portion of operating lease obligations are included in other current liabilities.
The classification of the Company’s leases as operating or finance leases along with the initial measurement and recognition
of the associated ROU assets and lease liabilities is performed at the lease commencement date. The measurement of lease liabilities
is based on the present value of future lease payments over the lease term. As the Company’s leases do not provide an implicit
rate, the Company uses its incremental borrowing rate based on the information available at the lease commencement date in determining
the present value of future lease payments. The ROU asset is based on the measurement of the lease liability and also includes
any lease payments made prior to or on lease commencement and excludes lease incentives and initial direct costs incurred, as
applicable. The lease terms may include options to extend or terminate the lease when it is reasonably certain the Company will
exercise any such options. Rent expense for the Company’s operating leases is recognized on a straight-line basis over the
lease term. Amortization expense for the ROU asset associated with its finance leases is recognized on a straight-line basis over
the term of the lease and interest expense associated with its finance leases is recognized on the balance of the lease liability
using the effective interest method based on the estimated incremental borrowing rate.
The
Company has lease agreements with lease and non-lease components. As allowed under ASC 842, the Company has elected not to separate
lease and non-lease components for any leases involving real estate and office equipment classes of assets and, as a result, accounts
for the lease and non-lease components as a single lease component. The Company has also elected not to apply the recognition
requirement of ASC 842 to leases with a term of 12 months or less for all classes of assets.
Goodwill
and Intangible Assets. Goodwill represents the excess purchase price over the fair value of net tangible and intangible assets
acquired. Goodwill is not amortized, rather the carrying amount of goodwill is assessed for impairment at least annually, or more
frequently if impairment indicators exist.
Goodwill
is tested for impairment at a reporting unit level by performing either a qualitative or quantitative analysis. The qualitative
analysis is an assessment of factors to determine whether it is more likely than not that the fair value of a reporting unit is
less than its carrying amount. If the Company concludes that it is not more likely than not that the fair value of a reporting
unit is less than its carrying amount, then no further testing is necessary.
If
the Company concludes otherwise, a quantitative analysis is performed by comparing the fair value of a reporting unit to its carrying
amount. If the fair value exceeds the carrying value, there is no impairment. If the fair value is less than the carrying value,
an impairment charge is recorded for the difference between the fair value and the carrying value. During the year, the Company
performed a qualitative assessment and concluded that it is more likely than not that the fair value of the reporting unit is
more than its carrying value. Accordingly, there was no indication of impairment, and further quantitative analysis was not required.
Intangible
assets deemed to have finite lives are amortized on a straight-line basis over their estimated useful lives, which generally range
from one to eleven years. The useful life is the period over which the asset is expected to contribute directly, or indirectly,
to its future cash flows. Intangible assets are reviewed for impairment when certain events or circumstances exist. For amortizable
intangible assets, impairment exists when the undiscounted cash flows exceed its carrying value and an impairment charge would
be recorded for the excess of the carrying value over its fair value. At least annually, the remaining useful life is evaluated.
Impairment
of Long-Lived Assets. The Company reviews long-lived assets, including property and equipment, for impairment whenever events
or changes in business circumstances indicate that the carrying amount of the assets may not be fully recoverable. Factors that
the Company considers in deciding when to perform an impairment review include significant underperformance of the business in
relation to expectations, significant negative industry or economic trends, and significant changes or planned changes in the
use of the assets. If an impairment review is performed to evaluate a long-lived asset for recoverability, the Company compares
forecasts of undiscounted cash flows expected to result from the use and eventual disposition of the long-lived asset to its carrying
value. An impairment loss would be recognized when estimated undiscounted future cash flows expected to result from the use of
an asset are less than its carrying amount. The impairment loss would be based on the excess of the carrying value of the impaired
asset over its fair value, determined based on discounted cash flows.
Capitalized
Software. The Company capitalizes certain internal and external costs incurred to acquire or create internal use software.
Costs to create internal software are capitalized during the application development period. Capitalized software is included
in property and equipment and is depreciated over three years once development is complete.
Revenue
Recognition. Under ASC 606, revenue is recognized when a customer obtains control of promised goods or services, in an amount
that reflects the consideration which the entity expects to receive in exchange for those goods or services. To determine revenue
recognition for arrangements that an entity determines are within the scope of ASC 606, the Company performs the following five
steps: (i) identify the contract(s) with a customer; (ii) identify the performance obligations in the contract; (iii) determine
the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and (v) recognize revenue
when (or as) the entity satisfies a performance obligation.
The
Company records product revenues primarily from the sale of its regenerative tissue products. The Company sells its products to
healthcare providers (customers), primarily through direct sales representatives. Product revenues consist of a single performance
obligation that the Company satisfies at a point in time. In general, the Company recognizes product revenue upon delivery to
the customer.
In
the contract services segment, the Company records service revenues from the sale of its contract research services, which includes
delivery of preclinical studies and other research services to unrelated third parties. Service revenues generally consist of
a single performance obligation that the Company satisfies over time using an input method based on costs incurred to date relative
to the total costs expected to be required to satisfy the performance obligation. The Company believes that this method provides
a faithful depiction of the transfer of services over the term of the performance obligation based on the remaining services needed
to satisfy the obligation. This requires the Company to make reasonable estimates of the extent of progress toward completion
of the contract. As a result, unbilled receivables and deferred revenue are recognized based on payment timing and work completed.
Generally, a portion of the payment is due upfront and the remainder upon completion of the contract, with most contracts completing
in less than a year. Contract services include research and laboratory testing services to unrelated third parties on a contract
basis. These customer contracts generally consist of a single performance obligation that the Company satisfies at a point in
time. The Company recognizes revenue upon delivery of testing results to the customer. As of December 31, 2020 and 2019, the Company
had unbilled receivables of $0.2 million and $0.1 million, respectively, and deferred revenue of $0.2 million and $0.1 million,
respectively. The unbilled receivables balance is included in consolidated accounts receivable. Revenue of $0.1 million was recognized
during the year ended December 31, 2020 that was included in the deferred revenue balance as of December 31, 2019.
Any
costs incurred to obtain a contract would be recognized as product is shipped.
The
Company considers a significant customer to be one that comprises more than 10% of net revenues or accounts receivable. Concentration
of revenues was as follows:
SCHEDULE OF CONCENTRATION RISK
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For the Year Ended
December 31, 2020
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For the Year Ended
December 31, 2019
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Segment
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% of Revenue
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% of Revenue
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Customer A
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Contract Services
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*
|
|
|
|
23
|
%
|
Customer B
|
|
Regenerative Medicine
|
|
|
13
|
%
|
|
|
*
|
|
Customer C
|
|
Contract Services
|
|
|
41
|
%
|
|
|
*
|
|
Concentration
of accounts receivable was as follows:
|
|
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
|
|
Segment
|
|
% of Accounts
Receivable
|
|
|
% of Accounts
Receivable
|
|
Customer B
|
|
Regenerative Medicine
|
|
|
14
|
%
|
|
|
14
|
%
|
Customer C
|
|
Contract Services
|
|
|
46
|
%
|
|
|
*
|
|
Customer D
|
|
Contract Services
|
|
|
*
|
|
|
|
15
|
%
|
Customer E
|
|
Regenerative Medicine
|
|
|
*
|
|
|
|
11
|
%
|
The
following table contains revenues as presented in the Consolidated Statements of Operations disaggregated by services and products.
SCHEDULE OF REVENUE DISAGGREGATED BY SERVICES AND PRODUCTS
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Regenerative Medicine
|
|
|
|
|
|
|
|
|
SkinTE Products
|
|
$
|
3,730
|
|
|
$
|
2,353
|
|
|
|
|
|
|
|
|
|
|
Contract Services
|
|
|
|
|
|
|
|
|
Lab Testing Services
|
|
|
4,454
|
|
|
|
176
|
|
Preclinical Research Services
|
|
|
1,942
|
|
|
|
3,123
|
|
|
|
|
6,396
|
|
|
|
3,299
|
|
Total Net Revenues
|
|
$
|
10,126
|
|
|
$
|
5,652
|
|
*
|
The amount did not exceed 10%
|
Research
and Development Expenses.
Costs incurred for research and development are expensed as incurred. Nonrefundable advance payments for goods or services that have
the characteristics that will be used or rendered for future research and development activities pursuant to executory contractual arrangements
with third party research organizations are deferred and recognized as an expense as the related goods are delivered or the related services
are performed.
Accruals
for Clinical Trials. As part of the process of preparing its financial statements, the Company is required to estimate its
expenses resulting from its obligations under contracts with vendors, clinical research organizations and consultants and under
clinical site agreements in connection with conducting clinical trials. The financial terms of these contracts are subject to
negotiations, which vary from contract to contract and may result in payment terms that do not match the periods over which materials
or services are provided under such contracts. The Company’s objective is to reflect the appropriate expenses in its financial
statements by matching those expenses with the period in which services are performed and efforts are expended. The Company accounts
for these expenses according to the timing of various aspects of the expenses. The Company determines accrual estimates by taking
into account discussion with applicable personnel and outside service providers as to the progress of clinical trials, or the
services completed. During the course of a clinical trial, the Company adjusts its clinical expense recognition if actual results
differ from its estimates. The Company makes estimates of its accrued expenses as of each balance sheet date based on the facts
and circumstances known to it at that time. The Company’s clinical trial accruals are dependent upon the timely and accurate
reporting of contract research organizations and other third-party vendors. Although the Company does not expect its estimates
to be materially different from amounts actually incurred, its understanding of the status and timing of services performed relative
to the actual status and timing of services performed may vary and may result in it reporting amounts that are too high or too
low for any particular period.
Common
Stock Warrant Liability. The Company accounts for common stock warrants issued as freestanding instruments in accordance with
applicable accounting guidance as either liabilities or as equity instruments depending on the specific terms of the warrant agreement.
Under certain change of control provisions, some warrants issued by the Company could require cash settlement which necessitates
such warrants to be recorded as liabilities. Warrants classified as liabilities are remeasured each period until settled or until
classified as equity. No reclassification occurred within the periods presented.
Stock-Based
Compensation. The Company measures all stock-based compensation to employees and non-employees using a fair value method and
records such expense in general and administrative, research and development, and sales and marketing expenses. For stock options
with graded vesting, the Company recognizes compensation expense over the service period for each separately vesting tranche of
the award as though the award were in substance, multiple awards based on the fair value on the date of grant.
The
fair value for options issued is estimated at the date of grant using a Black-Scholes option-pricing model. The risk-free rate
is derived from the U.S. Treasury yield curve in effect at the time of the grant. The volatility factor is determined based on
the Company’s historical stock prices. Forfeitures are recognized as they occur.
The
fair value of restricted stock grants is measured based on the fair market value of the Company’s common stock on the date
of grant and amortized over the vesting period of, generally, six months to three years.
Income
Taxes. The Company accounts for income taxes under the asset and liability method. Deferred tax assets and liabilities are
recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences
are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized
in income in the period that includes the enactment date. The Company evaluates the potential for realization of deferred tax
assets at each balance sheet date and records a valuation allowance for assets for which realization is not more likely than not.
The Company recognizes interest and penalties as a component of income tax expense.
Net
Loss Per Share. Basic net loss per share of common stock is computed by dividing net loss attributable to common stockholders
by the weighted average number of shares of common stock outstanding for the period. Gains
on warrant liabilities are only considered dilutive when the average market price of the common stock during the period exceeds
the exercise price of the warrants. Further, in December 2020, in connection with the December 23, 2020 underwritten offering,
the Company sold pre-funded warrants to purchases 5,238,043 shares of common stock.
The pre-funded warrants are exercisable for shares of common stock at a price of $0.001 per share. The shares of common stock
into which the pre-funded warrants may be exercised are considered outstanding for the purposes of computing fully diluted net
loss per share because the shares may be issued for little or no consideration, are fully vested, and are exercisable after the
original issuance date.
Recent
Accounting Pronouncements
In
June 2016, the FASB issued ASU No. 2016-13, Financial Instruments-Credit Losses (Topic 326), which requires entities to
measure all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions,
and reasonable and supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement
of credit losses on financial assets measured at amortized cost. This standard is effective for fiscal years beginning after December
15, 2019, including interim periods within those fiscal years with early adoption permitted. In November 2019, the FASB issued
ASU No. 2019-10, Financial Instruments—Credit Losses (Topic 326), Derivatives and Hedging (Topic 815) and Leases (Topic
842): Effective Dates, which defers the effective date of Topic 326. As a smaller reporting company, Topic 326 will now be
effective for the Company beginning January 1, 2023. As such, the Company plans to adopt this ASU beginning January 1, 2023. The
Company is currently evaluating the impact that the standard will have on its consolidated financial statements and related disclosures.
In
December 2019, the FASB issued ASU 2019-12, Simplifying the Accounting for Income Taxes, which simplifies the accounting
for income taxes by removing certain exceptions to the current guidance, and improving the consistent application of and simplification
of other areas of the guidance. The amendments in the ASU are effective for fiscal years beginning after December 15, 2020, including
interim periods therein. Early adoption is permitted. The amendment to the ASU will not have a material impact to the Company.
Recently
Adopted Accounting Pronouncements
In
August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820), Disclosure Framework-Changes to the Disclosure
Requirements for Fair Value Measurement. The ASU modifies the disclosure requirements for fair value measurements by removing,
modifying or adding certain disclosures. The standard was effective for fiscal years beginning after December 15, 2019, including
interim periods within those fiscal years with early adoption permitted. The ASU was adopted by the Company in the first quarter
of fiscal year 2020. The adoption of this ASU did not have a material impact on the Company’s consolidated financial statements
and related disclosures.
In
August 2018, the FASB issued ASU 2018-15, Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing
Arrangement That Is a Service Contract. The ASU aligns the requirements of capitalizing implementation costs incurred in a
hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop
or obtain internal-use software. Adoption of the ASU is either retrospective or prospective. The Company adopted this standard
prospectively on January 1, 2020. The adoption of this ASU did not have a material impact on the Company’s consolidated
financial statements and related disclosures.
3.
LIQUIDITY
The
Company has experienced recurring losses and cash outflows from operating activities. As of December 31, 2020, the Company has
an accumulated deficit of $478.2 million. As of December 31, 2020, the Company had cash and cash equivalents of $25.5 million.
The Company has been funded historically through sales of equity and debt.
During
the first quarter of 2020, the Company effectuated four sales of common stock to Keystone under the Purchase Agreement for a total
of 216,412 shares generating total gross proceeds of $0.6 million. The Company agreed not to sell any additional shares under
the Purchase Agreement for a period of 90 days after the closing date of the offering.
On
February 14, 2020, the Company completed an underwritten offering of 10,638,298 shares of its common stock and warrants to purchase
10,638,298 shares of common stock. Each common share and warrant were sold together for a combined public purchase price of $2.35
before underwriting discount and commission. The exercise price of each warrant was $2.80 per share, the warrants were exercisable
immediately, and they will expire February 12, 2027. The net proceeds to the Company from the offering were $22.5 million, after
offering expenses payable by the Company. In connection with this agreement, the Company agreed not to sell any additional shares
under the Keystone Purchase Agreement for a period of 90 days after the closing date of the offering. On
November 19, 2020, the Company reduced the exercise price of the Warrants from $2.80 per share to $0.10 per share effective November
20, 2020. As of December 31, 2020, 10,073,298 of these Warrants were exercised into shares of common stock for proceeds of $1.0
million.
The
Company entered into a promissory note for $3.6 million under the Paycheck Protection Program on April 12, 2020. Additional details
are provided in Note 10.
In
the second quarter of 2020 the Company took steps to reduce cash burn by reducing payroll expense, adopting a salary and wage
reduction, and reducing discretionary spending across the organization to minimal levels.
On
December 23, 2020, the Company completed a registered direct offering of 5,450,000 shares of its common stock, par value $0.001
per share, pre-funded warrants to purchase up to 5,238,043 shares of common stock and accompanying common warrants to purchase
up to 10,688,043 shares of common stock. Each share of common stock and pre-funded warrant was sold together with a warrant. The
combined offering price of each common stock share and accompanying warrant was $0.7485 and for each pre-funded warrant and accompanying
warrant was $0.7475. The pre-funded warrants had an exercise price of $0.001 each and were exercised in full in January 2021.
Each warrant is exercisable for one share of the Company’s common stock at an exercise price of $0.624 per share. The net
proceeds to the Company from the offering were $7.2 million, after offering expenses payable by the Company.
Following
the end of 2020, the Company closed on two additional offerings:
On
January 14, 2021, the Company completed a registered direct offering of 6,670,000 shares of its common stock, par value $0.001
per share, pre-funded warrants to purchase up to 2,420,910 shares of common stock and accompanying common warrants to purchase
up to 9,090,910 shares of common stock. Each share of common stock and pre-funded warrant were sold together with a warrant. The
combined offering price of each common share and accompanying warrant was $1.100 and for each pre-funded warrant and accompanying
warrant was $1.099. The pre-funded warrants had an exercise price of $0.001 each and were exercised in full in January 2021. The
Company received gross proceeds of approximately $10.0 million in connection with the offering, before deducting placement agent
fees and related offering expenses.
On
January 22, 2021, the Company entered into a letter agreement with the holder of warrants to purchase up to 10,688,043 shares
of common stock at an exercise price of $0.624 per share that were issued to the holder in the registered direct offering that
closed on December 23, 2020. Under the letter agreement the holder agreed to exercise the 10,688,043 warrants in full and the
Company agreed to issue and sell to the holder common warrants to purchase up to 8,016,033 shares of the Company’s common
stock, par value $0.001 per share, at a price of $0.125. Each warrant is exercisable for one share of Common Stock at an exercise
price of $1.20 per share. The warrants are immediately exercisable and will expire five years from the date of issuance. The holder
of the warrants may not exercise any portion of the warrants to the extent that the holder would own more than 4.99% of the outstanding
common stock immediately after exercise, which percentage may be changed at the holder’s election to a lower percentage
at any time or to a higher percentage not to exceed 9.99% upon 61 days’ notice to the Company. The Company also issued to
designees of the placement agent for the registered direct offering in December 2020 warrants to purchase up to 6.0% of the aggregate
number of warrants issued under the letter agreement (or warrants to purchase up to 480,962 shares of common stock). The placement
agent warrants have substantially the same terms as the warrants. The Company received gross proceeds of approximately $6.67 million
from the exercise of the existing warrants and gross proceeds of approximately $1.0 million from the sale of the newly issued
warrants, before deducting placement agent fees and related offering expenses.
Based
upon the current status of product development and commercialization plans, the Company believes that its existing cash and cash
equivalents and equity offerings completed subsequent to December 31, 2020 and prior to the filing of these financial statements
will be adequate to satisfy its capital and operating needs for at least the next 12 months from the date of filing. The Company
will continue to pursue fundraising opportunities when available, but such financing may not be available in the future on favorable
terms, if at all. If adequate financing is not available, the Company may be required to delay, reduce the scope of, or eliminate
one or more of its product development programs, or be unable to continue operations over a longer term. The Company plans to
meet its capital requirements primarily through issuances of equity securities, debt financing, revenue from product sales or
strategic partnership arrangements. Failure to generate revenue or raise additional capital would adversely affect the Company’s
ability to achieve its intended business objectives.
4.
FAIR VALUE
In
accordance with ASC 820, Fair Value Measurements and Disclosures, financial instruments were measured at fair value using
a three-level hierarchy which maximizes use of observable inputs and minimizes use of unobservable inputs:
|
●
|
Level
1: Observable inputs such as quoted prices in active markets for identical instruments. This methodology applies to the Company’s
Level 1 investments, which are composed of money market funds.
|
|
|
|
|
●
|
Level
2: Quoted prices for similar instruments that are directly or indirectly observable in the market. This methodology applies
to the Company’s Level 2 investments, which are composed of corporate debt securities, commercial paper, and U.S. government
debt securities.
|
|
|
|
|
●
|
Level
3: Significant unobservable inputs supported by little or no market activity. Financial instruments whose values are determined
using pricing models, discounted cash flow methodologies, or similar techniques, for which determination of fair value requires
significant judgment or estimation. This methodology applies to valuation of the Company’s common stock warrants, measurement
of impairment, and Level 3 financial instruments, which are composed of contingent consideration.
|
Financial
instruments measured at fair value are classified in their entirety based on the lowest level of input that is significant to
the fair value measurement. There were no transfers within the hierarchy for any of the periods presented.
For
the year ended December 31, 2020, the Company transferred all available-for-sale securities to cash accounts.
The
following table sets forth the fair value of the Company’s financial assets and liabilities measured on a recurring basis
by level within the fair value hierarchy as of December 31, 2020 and 2019 (in thousands):
SCHEDULE OF FAIR VALUE OF FINANCIAL INSTRUMENTS MEASURED ON RECURRING BASIS
|
|
Fair Value Measurement as of December 31, 2020
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock warrant liability
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
5,975
|
|
|
$
|
5,975
|
|
Total
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
5,975
|
|
|
$
|
5,975
|
|
|
|
Fair Value Measurement as of December 31, 2019
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market funds
|
|
$
|
2,019
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
2,019
|
|
Commercial paper
|
|
|
–
|
|
|
|
11,064
|
|
|
|
–
|
|
|
|
11,064
|
|
Corporate debt securities
|
|
|
–
|
|
|
|
8,982
|
|
|
|
–
|
|
|
|
8,982
|
|
U.S. government debt securities
|
|
|
–
|
|
|
|
3,770
|
|
|
|
–
|
|
|
|
3,770
|
|
Total
|
|
$
|
2,019
|
|
|
$
|
23,816
|
|
|
$
|
–
|
|
|
$
|
25,835
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contingent consideration
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
31
|
|
|
$
|
31
|
|
Total
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
31
|
|
|
$
|
31
|
|
The
following table presents the change in fair value of the liability classified common stock warrants (in thousands):
SCHEDULE OF FAIR VALUE OF LIABILITY CLASSIFIED COMMON STOCK WARRANTS
|
|
Initial Fair
Value at
Issuance
|
|
|
Liability
Reduction
Due to
Exercises
|
|
|
(Gain) Loss
Upon Change
in Fair Value
|
|
|
Fair Value on
December 31,
2020
|
|
Warrant liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
February 14, 2020 issuance
|
|
$
|
11,677
|
|
|
$
|
(8,265
|
)
|
|
$
|
(3,084
|
)
|
|
$
|
328
|
|
December 23, 2020 issuance
|
|
|
5,477
|
|
|
|
–
|
|
|
|
170
|
|
|
|
5,647
|
|
Total
|
|
$
|
17,154
|
|
|
$
|
(8,265
|
)
|
|
$
|
(2,914
|
)
|
|
$
|
5,975
|
|
The
Company uses the Monte Carlo valuation model to determine the fair value of the liability classified warrants issued during 2020.
Input assumptions for these freestanding instruments
are as follows:
SCHEDULE OF FAIR VALUE ASSUMPTIONS OF WARRANTS LIABILITY
|
|
For
the Year Ended
December
31, 2020
|
|
Stock
price
|
|
$
|
0.65
- 1.69
|
|
Exercise
price
|
|
$
|
0.10
- 2.80
|
|
Risk-free
rate
|
|
|
0.36
- 1.51
|
%
|
Volatility
|
|
|
93.4
- 99.7
|
%
|
Remaining
term (years)
|
|
|
5.0
- 7.0
|
|
$31,000
of contingent consideration outstanding as of December 31, 2019 was paid during the first quarter of 2020.
5.
Cash Equivalents and Short-Term Investments
For
the year ended December 31, 2020, the Company transferred all available-for-sale securities to cash accounts.
Cash
equivalents and short-term investments consisted of the following as of December 31, 2019 (in thousands)
SCHEDULE OF CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS
|
|
December 31, 2019
|
|
|
|
Amortized Cost
|
|
|
Unrealized Gains
|
|
|
Unrealized
Losses
|
|
|
Market
Value
|
|
Cash equivalents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market funds
|
|
$
|
2,019
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
2,019
|
|
Commercial paper
|
|
|
1,020
|
|
|
|
4
|
|
|
|
–
|
|
|
|
1,024
|
|
U.S. government debt securities
|
|
|
3,761
|
|
|
|
9
|
|
|
|
–
|
|
|
|
3,770
|
|
Total cash equivalents (1)
|
|
|
6,800
|
|
|
|
13
|
|
|
|
–
|
|
|
|
6,813
|
|
Short-term investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial paper
|
|
|
9,986
|
|
|
|
54
|
|
|
|
–
|
|
|
|
10,040
|
|
Corporate debt securities
|
|
|
8,977
|
|
|
|
5
|
|
|
|
–
|
|
|
|
8,982
|
|
Total short-term investments
|
|
|
18,963
|
|
|
|
59
|
|
|
|
–
|
|
|
|
19,022
|
|
Total
|
|
$
|
25,763
|
|
|
$
|
72
|
|
|
$
|
–
|
|
|
$
|
25,835
|
|
(1)
|
Included
in cash and cash equivalents in the Company’s consolidated balance sheet as of December 31, 2019 in addition to $3.4
million of cash.
|
All
investments of debt securities held as of December 31, 2019 had maturities of less than one year. For
the year ended December 31, 2020 and 2019, the Company recognized net realized gains on available-for-sale securities of $0.1
million and $0.5 million, respectively.
6.
PROPERTY AND EQUIPMENT, NET
The
following table presents the components of property and equipment, net (in thousands):
SCHEDULE OF PROPERTY AND EQUIPMENT, NET
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Machinery and equipment
|
|
$
|
12,232
|
|
|
$
|
12,083
|
|
Land and buildings
|
|
|
2,000
|
|
|
|
2,000
|
|
Computers and software
|
|
|
1,240
|
|
|
|
1,189
|
|
Leasehold improvements
|
|
|
2,107
|
|
|
|
2,282
|
|
Construction in progress
|
|
|
87
|
|
|
|
1,606
|
|
Furniture and equipment
|
|
|
148
|
|
|
|
470
|
|
Total property and equipment, gross
|
|
|
17,814
|
|
|
|
19,630
|
|
Accumulated depreciation
|
|
|
(7,264
|
)
|
|
|
(4,719
|
)
|
Total property and equipment, net
|
|
$
|
10,550
|
|
|
$
|
14,911
|
|
Depreciation
and amortization expense for property and equipment, including assets acquired under financing leases was as follows (in thousands):
SCHEDULE OF DEPRECIATION AND AMORTIZATION EXPENSE
|
|
For the Year Ended
December 31,
|
|
|
For the Year Ended
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
General and administrative expense
|
|
$
|
1,533
|
|
|
$
|
1,562
|
|
Research and development expense
|
|
|
1,541
|
|
|
|
1,430
|
|
Total depreciation and amortization expense
|
|
$
|
3,074
|
|
|
$
|
2,992
|
|
As
a result of management’s restructuring efforts, management wrote down certain production assets and leasehold improvements
due to asset abandonment in the amount of $2.4 million and right of use assets due to abandonment in the amount of $0.4 million.
The write-downs were recorded within the Company’s regenerative medicine business segment and are included in restructuring
and other charges in the accompanying consolidated statement of operations.
7.
LEASES
The
Company leases facilities and certain equipment under noncancelable leases that expire at various dates through August 2024. These
leases require monthly lease payments that may be subject to annual increases throughout the lease term. Certain of these leases
may include options to extend or terminate the lease at the election of the Company. These optional periods have not been considered
in the determination of the right-of-use-assets or lease liabilities associated with these leases as the Company did not consider
it reasonably certain it would exercise the options.
Operating
Leases
On
December 27, 2017, the Company entered into a commercial lease agreement with Adcomp LLC, a Utah limited liability company, pursuant
to which the Company leased approximately 178,528 rentable square feet of warehouse, manufacturing, office, and lab space in Salt
Lake City, Utah from the landlord. The initial term of the lease is five years and it expires on November 30, 2022. The Company
has a one-time option to renew for an additional five years. The initial base rent under this lease is $98,190 per month ($0.55
per sq. ft.) for the first year of the initial lease term and increases 3.0% per annum thereafter. Because
the rate implicit in the lease is not readily determinable, the Company has used an incremental borrowing rate of 10% to determine
the present value of the lease payments.
Effective
July 15, 2018, the Company entered into a commercial lease agreement with Salt Lake City Corporation, pursuant to which the Company
leased approximately 44,695 rentable square feet of office space at 123 Wright Brothers Drive in Salt Lake City, Utah. The initial
term of the lease was two years and provided the option to extend the term for an additional five years by agreement of the parties.
The initial base rent under this lease was $39,108 per month for the first year of the initial lease term and increased by 3.0%
thereafter. Because the rate implicit in the lease is not readily determinable, the Company
determined an incremental borrowing rate of 9% to determine the present value of the lease payments. On January 11, 2019,
the lease was amended to extend the initial lease term to September 30, 2020. The Company did not exercise the option to extend
the lease term and the lease expired September 30, 2020.
In
April 2019, the Company entered into an operating lease to obtain 6,307 square feet of manufacturing, laboratory, and office space.
The lease expires April 2024 and requires monthly lease payments subject to annual increases. During the third quarter of 2020,
the Company initiated a business analysis to determine the long-term strategy of the remote facility and cost to remain operational.
During the fourth quarter of fiscal year 2020, it was determined that the Company would cease operations and vacate the facility.
As a result, the Company determined that the approved plan to vacate the lease represented a triggering event requiring the long-lived
assets attributable to the disposal group be assessed for impairment. Given the facts and circumstances, the Company determined
that the carrying value of the related assets of the disposal group were not recoverable. As a result, the carrying values of
$0.6 million, $0.1 million, $0.1 million and $0.4 million respectively for leasehold improvements, construction in progress, equipment,
and right of use assets, were reduced to $0 as of December 31, 2020.
Financing
Leases
In
November 2018 and April 2019, the Company entered into financing leases primarily for laboratory equipment used in research and
development activities. The financing leases have remaining terms that range from 15 to 40 months as of December 31, 2020 and
include options to purchase equipment at the end of the lease. Because the rate implicit in the lease is not readily determinable,
the Company has used an incremental borrowing rate of 10% to determine the present value of the lease payments for these leases.
As
of December 31 2020, the maturities of operating and finance lease liabilities were as follows (in thousands):
SCHEDULE OF OPERATING AND FINANCE LEASE LIABILITIES
|
|
Operating leases
|
|
|
Finance leases
|
|
Year ending December 31:
|
|
|
|
|
|
|
2021
|
|
$
|
1,694
|
|
|
$
|
656
|
|
2022
|
|
|
1,345
|
|
|
|
405
|
|
2023
|
|
|
132
|
|
|
|
336
|
|
2024
|
|
|
87
|
|
|
|
42
|
|
Total lease payments
|
|
|
3,258
|
|
|
|
1,439
|
|
Less:
|
|
|
|
|
|
|
|
|
Imputed interest
|
|
|
(297
|
)
|
|
|
(172
|
)
|
Total
|
|
$
|
2,961
|
|
|
$
|
1,267
|
|
Supplemental
balance sheet information related to leases was as follows (in thousands):
SCHEDULE OF SUPPLEMENTAL BALANCE SHEET INFORMATION RELATED TO FINANCE AND OPERATING LEASES
Finance
leases
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Finance lease right-of-use assets included within property and equipment, net
|
|
$
|
1,301
|
|
|
$
|
2,177
|
|
|
|
|
|
|
|
|
|
|
Current finance lease liabilities included within other current liabilities
|
|
$
|
556
|
|
|
$
|
508
|
|
Non-current finance lease liabilities included within other long-term liabilities
|
|
|
711
|
|
|
|
1,267
|
|
Total
|
|
$
|
1,267
|
|
|
$
|
1,775
|
|
Operating
leases
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Current operating lease liabilities included within other current liabilities
|
|
$
|
1,485
|
|
|
$
|
1,746
|
|
Operating lease liabilities – non current
|
|
|
1,476
|
|
|
|
2,994
|
|
Total
|
|
$
|
2,961
|
|
|
$
|
4,740
|
|
The
components of lease expense was as follows (in thousands):
SUMMARY OF COMPONENTS OF LEASE EXPENSE
|
|
For the Year Ended
December 31, 2020
|
|
|
For the Year Ended
December 31, 2019
|
|
Operating lease costs included within operating costs and expenses
|
|
$
|
2,428
|
|
|
|
2,173
|
|
Finance lease costs:
|
|
|
|
|
|
|
|
|
Amortization of right of use assets
|
|
$
|
698
|
|
|
|
654
|
|
Interest on lease liabilities
|
|
|
151
|
|
|
|
152
|
|
Total
|
|
$
|
849
|
|
|
|
806
|
|
Supplemental
cash flow information related to leases was as follows (in thousands):
SCHEDULE OF SUPPLEMENTAL CASH FLOW INFORMATION RELATED TO LEASES
|
|
For the Year Ended
December 31,
2020
|
|
|
For the Year Ended
December 31,
2019
|
|
Cash paid for amounts included in the measurement of lease liabilities:
|
|
|
|
|
|
|
|
|
Operating cash out flows from operating leases
|
|
$
|
2,070
|
|
|
$
|
2,100
|
|
Operating cash out flows from finance leases
|
|
$
|
151
|
|
|
$
|
152
|
|
Financing cash out flows from finance leases
|
|
$
|
508
|
|
|
$
|
453
|
|
Lease liabilities arising from obtaining right-of-use assets:
|
|
|
|
|
|
|
|
|
Finance leases
|
|
$
|
–
|
|
|
$
|
2,043
|
|
Lease payments made in prior period reclassified to property and equipment
|
|
$
|
–
|
|
|
$
|
535
|
|
Operating leases
|
|
$
|
–
|
|
|
$
|
936
|
|
Remeasurement of operating lease liability due to lease modification
|
|
$
|
154
|
|
|
$
|
–
|
|
As
of December 31, 2020, the weighted average remaining operating lease term is 2.1 years and the weighted average discount rate
used to determine the operating lease liability was 9.75%. The weighted average remaining finance lease term is 2.6 years and
the weighted average discount rate used to determine the finance lease liability was 9.78%.
8.
INTANGIBLE ASSETS
Intangible
assets, net, consist of the following (in thousands):
SCHEDULE OF INTANGIBLE ASSETS
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Non-compete agreement
|
|
$
|
410
|
|
|
$
|
410
|
|
Customer contracts and relationships
|
|
|
534
|
|
|
|
534
|
|
Trade names and trademarks
|
|
|
101
|
|
|
|
101
|
|
Backlog
|
|
|
12
|
|
|
|
12
|
|
Total intangible assets, gross
|
|
|
1,057
|
|
|
|
1,057
|
|
Accumulated amortization
|
|
|
(515
|
)
|
|
|
(326
|
)
|
Total intangible assets, net
|
|
$
|
542
|
|
|
$
|
731
|
|
Amortization
expense for the years ended December 31, 2020 and December 31, 2019 was approximately $0.2 million for each period.
The
future amortization of intangible assets is expected to be as follows (in thousands):
SCHEDULE OF FUTURE AMORTIZATION OF INTANGIBLE ASSETS
|
|
|
|
|
Year
ending December 31:
|
|
|
|
|
2021
|
|
$
|
189
|
|
2022
|
|
|
121
|
|
2023
|
|
|
87
|
|
2024
|
|
|
87
|
|
2025
|
|
|
35
|
|
Thereafter
|
|
|
23
|
|
Total
|
|
$
|
542
|
|
9.
ACCOUNTS PAYABLE AND ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
The
following table presents the major components of accounts payable and accrued expenses (in thousands):
SCHEDULE OF ACCOUNTS PAYABLE AND ACCRUED EXPENSES
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Accounts payable
|
|
$
|
1,193
|
|
|
$
|
1,689
|
|
Salaries and other compensation
|
|
|
1,129
|
|
|
|
1,462
|
|
Legal and accounting
|
|
|
241
|
|
|
|
1,404
|
|
Accrued severance
|
|
|
330
|
|
|
|
1,053
|
|
Benefit plan accrual
|
|
|
659
|
|
|
|
557
|
|
Other
|
|
|
596
|
|
|
|
930
|
|
Total accounts payable and accrued expenses
|
|
$
|
4,148
|
|
|
$
|
7,095
|
|
Accrued
severance as of December 31, 2020 and December 31, 2019 consists of accrued compensation owed to Dr. Denver Lough, a former officer
and director, under a settlement terms agreement dated August 21, 2019 (Note 18).
Other
current liabilities are primarily comprised of the current portion of operating lease liabilities and finance lease liabilities.
The short-term lease components are disclosed in Note 7 above.
10.
DEBT
PPP
Loan
On
April 12, 2020, our subsidiary PolarityTE MD, Inc. (the “Borrower”) entered into a promissory note evidencing an unsecured
loan in the amount of $3,576,145 made to it under the Paycheck Protection Program (the “Loan”). The Paycheck Protection
Program (or “PPP”) was established under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES
Act”) and is administered by the U.S. Small Business Administration. The Loan to the Borrower was made through KeyBank,
N.A., a national banking association (the “Lender”). The interest rate on the Loan is 1.00%. Beginning seven months
from the date of the Loan the Borrower is required to make 24 monthly payments of principal and interest in the amount of $150,563.
The promissory note evidencing the Loan contains customary events of default relating to, among other things, payment defaults,
making materially false and misleading representations to the SBA or Lender, or breaching the terms of the Loan documents. The
occurrence of an event of default may result in the repayment of all amounts outstanding, collection of all amounts owing from
the Borrower, or filing suit and obtaining judgment against the Borrower. Under the terms of the CARES Act, PPP loan recipients
can apply for and be granted forgiveness for all or a portion of a loan granted under the PPP. On October 15, 2020, the Borrower
applied to the Lender for forgiveness of the PPP loan in its entirety based on the Borrower’s use of the PPP loan for payroll
costs, rent, and utilities. On October 26, 2020, the Borrower was advised that the Lender approved the application, and that the
Lender was submitting the application to the SBA for a final decision. The Company classified the principal balance of the PPP
loan within “Current portion of long-term notes payable” and “Long-term notes payable” on the consolidated
balance sheet as of December 31, 2020. If the Borrower’s application for forgiveness of the PPP loan is not approved or
approved only in part, it will be obligated to repay the unforgiven portion of the loan after the SBA makes its decision on the
application for forgiveness. No assurance has been provided that the Company will obtain forgiveness of the Loan in whole or in
part. The SBA adopted a procedure for auditing all PPP loans over $2 million and pursuant to that procedure the Company completed
the SBA’s form requesting information surrounding the Borrower’s original application for the Loan and information
on use of the Loan proceeds, which was submitted to the SBA in December 2020. The Borrower has yet to receive any response from
the SBA. If the SBA makes a determination pursuant to its audit of the Borrower that it was not eligible to obtain the Loan or
did not use the Loan for the purposes contemplated by the CARES Act, it is likely the Borrower will be required to promptly repay
the Loan in full and may be subject to additional charges or penalties.
11.
SALE OF COMMON STOCK, WARRANTS AND PRE- FUNDED WARRANTS
On
April 10, 2019, the Company completed an underwritten offering providing for the issuance and sale of 3,418,918 shares of the
Company’s common stock, par value $0.001 per share, at an offering price of $8.51 per share, for net proceeds of approximately
$27.9 million, after deducting offering expenses payable by the Company.
On
December 5, 2019, the Company entered into the Purchase Agreement with Keystone pursuant to which Keystone has agreed to purchase
from the Company up to $25.0 million of shares of its common stock, subject to certain limitations including a minimum stock price
of $2.00, at the direction of the Company from time to time during the 36-month term of the Purchase Agreement. Concurrently,
the Company entered into a Registration Rights Agreement with Keystone, pursuant to which it agreed to register the sales of its
common stock pursuant to the Purchase Agreement under the Company’s existing shelf registration statement on Form S-3 or
a new registration statement. On December 19, 2019, the Company sold 54,090 shares under the Purchase Agreement at a purchase
price of $2.31 per share, for total proceeds of $0.1 million. During the first quarter of 2020, the Company effectuated four additional
sales of common stock to Keystone under the Purchase Agreement for a total of 216,412 shares generating total gross proceeds of
$0.6 million. The Company agreed not to sell any additional shares under the Purchase Agreement for a period of 90 days after
the closing date of the offering.
On
February 14, 2020, the Company completed an underwritten offering of 10,638,298 shares of its common stock and warrants to purchase
10,638,298 shares of common stock. Each common share and warrant were sold together for a combined public purchase price of $2.35
before underwriting discount and commission. The exercise price of each warrant is $2.80 per share, the warrants were exercisable
immediately, and they will expire February 12, 2027. On November 19, 2020, the Company reduced
the exercise price of the warrants from $2.80 per share to $0.10 per share effective November 20, 2020. As of December 31, 2020,
10,073,298 of these warrants were exercised into shares of common stock for proceeds of $1.0 million. As the warrants could
require cash settlement in certain scenarios, they were classified as liabilities and were
initially recorded at an estimated fair value of $11.7 million upon issuance. The total proceeds from the offering were
first allocated to the liability classified warrants, based on their fair values, with the residual $12.0 million allocated to
the common stock. Issuance costs allocated to the common stock of $1.3 million were recorded as a reduction to paid-in capital.
The Company measured the fair value of the liability classified warrants using the
Monte Carlo simulation model at issuance, upon change in exercise price, and again at December 31, 2020 using the following inputs:
SCHEDULE
FOR MEASUREMENT OF FAIR VALUE OF LIABILITY CLASSIFIED WARRANTS
|
|
February 14, 2020
|
|
|
November 20, 2020
|
|
|
December 31, 2020
|
|
Stock price
|
|
$
|
1.69
|
|
|
$
|
0.92
|
|
|
$
|
0.68
|
|
Exercise price
|
|
$
|
2.80
|
|
|
$
|
0.10
|
|
|
$
|
0.10
|
|
Risk-free rate
|
|
|
1.51
|
%
|
|
|
0.53
|
%
|
|
|
0.52
|
%
|
Volatility
|
|
|
93.4
|
%
|
|
|
99.4
|
%
|
|
|
98.9
|
%
|
Remaining term (years)
|
|
|
7.0
|
|
|
|
6.2
|
|
|
|
6.1
|
|
On
December 23, 2020, the Company completed a registered direct offering of 5,450,000 shares of its common stock, par value $0.001
per share, pre-funded warrants to purchase up to 5,238,043 shares of common stock and accompanying common warrants to purchase
up to 10,688,043 shares of common stock. Each share of common stock and pre-funded warrant was sold together with a warrant. The
combined offering price of each common stock share and accompanying warrant was $0.7485 and for each pre-funded warrant and accompanying
warrant was $0.7475. The pre-funded warrants had an exercise price of $0.001 each and were exercised in full in January 2021.
Each warrant is exercisable for one share of the Company’s common stock at an exercise price of $0.624 per share. The warrants
are immediately exercisable and will expire five years from the date of issuance. The holder
of the warrants may not exercise any portion of the warrants to the extent that the holder would own more than 4.99% of the outstanding
common stock immediately after exercise, which percentage may be changed at the holder’s election to a lower percentage
at any time or to a higher percentage not to exceed 9.99% upon 61 days’ notice to the Company. The Company also issued to
designees of the placement agent for the registered direct offering warrants to purchase up to 6.0% of the aggregate number of
common stock shares and pre-funded warrants sold in the offering (or warrants to purchase up to 641,283 shares of common stock).
The placement agent warrants have substantially the same terms as the warrants, except that the placement agent warrants have
an exercise price equal to 125% of the purchase price per share (or $0.9356 per share). The net proceeds to the Company
from the offering were $7.2 million, after offering expenses payable by the Company.
As
the common stock warrants and placement agent common stock warrants could each require cash settlement in certain scenarios, the
common stock warrants and placement agent common stock warrants were classified as liabilities
upon issuance and were initially recorded at estimated fair values of $5.2 million and $0.3 million, respectively. Since
the pre-funded warrants did not contain the same cash settlement provision, these warrants are classified as a component of stockholders’
equity within additional paid-in-capital. The pre-funded warrants are equity classified
because they meet characteristics of the equity classification criteria. The total proceeds from the offering were first
allocated to the liability classified warrants, based on their fair values, with the residual $2.5 million allocated on a relative
fair value basis to the common stock and pre-funded common stock warrants. Issuance costs allocated to the equity classified pre-funded
common stock warrants and common stock of $0.3 million were recorded as a reduction to paid-in capital. Issuance costs allocated
to the liability classified warrants of $0.5 million were recorded as an expense. The Company measured the fair value of the accompanying
common warrants and placement agent warrants using the Monte Carlo simulation model at issuance and again at December 31, 2020
using the following inputs:
Accompanying
common warrants:
SCHEDULE
FOR MEASUREMENT OF FAIR VALUE OF COMMON WARRANTS
|
|
December 23, 2020
|
|
|
December 31, 2020
|
|
Stock price
|
|
$
|
0.65
|
|
|
$
|
0.68
|
|
Exercise price
|
|
$
|
0.62
|
|
|
$
|
0.62
|
|
Risk-free rate
|
|
|
0.38
|
%
|
|
|
0.36
|
%
|
Volatility
|
|
|
99.7
|
%
|
|
|
96.2
|
%
|
Remaining term (years)
|
|
|
5.0
|
|
|
|
5.0
|
|
Placement
agent warrants:
SCHEDULE
FOR MEASUREMENT OF FAIR VALUE OF PLACEMENT AGENT WARRANTS
|
|
December 23, 2020
|
|
|
December 31, 2020
|
|
Stock price
|
|
$
|
0.65
|
|
|
$
|
0.68
|
|
Exercise price
|
|
$
|
0.94
|
|
|
$
|
0.94
|
|
Risk-free rate
|
|
|
0.38
|
%
|
|
|
0.36
|
%
|
Volatility
|
|
|
99.7
|
%
|
|
|
96.2
|
%
|
Remaining term (years)
|
|
|
5.0
|
|
|
|
5.0
|
|
The
following table summarizes warrant activity for the year ended December 31, 2020.
SUMMARY
OF WARRANT ACTIVITY
|
|
Warrants
Issued
|
|
|
Warrants
Exercised
|
|
|
Outstanding
December 31,
2020
|
|
Transaction
|
|
|
|
|
|
|
|
|
|
February 14, 2020 common warrants
|
|
|
10,638,298
|
|
|
|
10,073,298
|
|
|
|
565,000
|
|
December 23, 2020 common warrants
|
|
|
10,688,043
|
|
|
|
–
|
|
|
|
10,688,043
|
|
December 23, 2020 placement agent warrants
|
|
|
641,283
|
|
|
|
–
|
|
|
|
641,283
|
|
Total
|
|
|
21,967,624
|
|
|
|
10,073,298
|
|
|
|
11,894,326
|
|
For
information regarding warrants issued or exercised subsequent to December 31, 2020, see Subsequent Events below.
12.
STOCK-BASED COMPENSATION
2020,
2019 and 2017 Equity Incentive Plans
2020
Plan
On
October 25, 2019, the Company’s Board of Directors (the “Board”) approved the Company’s 2020 Stock Option
and Incentive Plan (the “2020 Plan”). The 2020 Plan became effective on December 19, 2019, the date approved by the
stockholders. The 2020 Plan provides for the grant of incentive stock options, nonqualified stock options, restricted stock, restricted
stock units, stock appreciation rights, unrestricted stock awards, dividend equivalent rights, and cash-based awards to the Company’s
employees, officers, directors and consultants. The Compensation Committee of the Board will administer the 2020 Plan, including
determining which eligible participants will receive awards, the number of shares of common stock subject to the awards and the
terms and conditions of such awards. Up to 3,000,000 shares of common stock are issuable pursuant to awards under the 2020 Plan.
No grants of awards may be made under the 2020 Plan after the later of December 19, 2029, or the tenth anniversary of the latest
material amendment of the 2020 Plan and no grants of incentive stock options may be made after October 25, 2029. On November 19,
2020, the 2020 Stock Option and Incentive Plan was amended to add 2,000,000 common shares
to the number of shares available for awards. As of December 31, 2020, the Company had 2,092,556 shares available for future
issuances under the 2020 Plan.
2019
Plan
On
October 5, 2018, the Company’s Board approved the Company’s 2019 Equity Incentive Plan (the “2019 Plan”).
The 2019 Plan provides for the grant of incentive stock options, nonqualified stock options, restricted stock, restricted stock
units, stock appreciation rights and other types of stock-based awards to the Company’s employees, officers, directors and
consultants. The Compensation Committee of the Board will administer the 2019 Plan, including determining which eligible participants
will receive awards, the number of shares of common stock subject to the awards and the terms and conditions of such awards. Up
to 3,000,000 shares of common stock are issuable pursuant to awards under the 2019 Plan. Unless earlier terminated by the Board,
the 2019 Plan shall terminate at the close of business on October 5, 2028. As of December 31, 2020, the Company had 314,734 shares
available for future issuances under the 2019 Plan.
2017
Plan
On
December 1, 2016, the Company’s Board approved the Company’s 2017 Equity Incentive Plan (the “2017 Plan”).
The purpose of the 2017 Plan is to promote the success of the Company and to increase stockholder value by providing an additional
means through the grant of awards to attract, motivate, retain and reward selected employees, consultants and other eligible persons.
The 2017 Plan provides for the grant of incentive stock options, nonqualified stock options, restricted stock, restricted stock
units, stock appreciation rights and other types of stock-based awards to the Company’s employees, officers, directors and
consultants. The Compensation Committee of the Board will administer the 2017 Plan, including determining which eligible participants
will receive awards, the number of shares of common stock subject to the awards and the terms and conditions of such awards. Up
to 7,300,000 shares of common stock are issuable pursuant to awards under the 2017 Plan. Unless earlier terminated by the Board,
the 2017 Plan shall terminate at the close of business on December 1, 2026. As of December 31, 2020, the Company had 1,195,767
shares available for future issuances under the 2017 Plan.
A
summary of the Company’s employee and non-employee stock option activity is presented below:
SCHEDULE OF SHARE-BASED COMPENSATION, STOCK OPTIONS, ACTIVITY
|
|
Number of
shares
|
|
|
Weighted-Average
Exercise Price
|
|
Outstanding - December 31, 2019
|
|
|
4,529,988
|
|
|
$
|
15.26
|
|
Granted
|
|
|
1,896,558
|
|
|
$
|
1.23
|
|
Exercised (1)
|
|
|
(10,208
|
)
|
|
$
|
3.08
|
|
Forfeited
|
|
|
(1,621,771
|
)
|
|
$
|
14.35
|
|
Outstanding – December 31, 2020
|
|
|
4,794,567
|
|
|
$
|
10.03
|
|
Options exercisable, December 31, 2020
|
|
|
3,509,574
|
|
|
$
|
12.60
|
|
|
(1)
|
The
number of exercised options includes shares withheld on behalf of employees to satisfy minimum statutory tax withholding requirements.
|
During
the years ended December 31, 2020 and 2019, the estimated weighted-average grant-date fair value of options granted was $0.91
and $9.14, per share, respectively. The intrinsic value of options exercised for the years ended December 31, 2020 and 2019 was
$0 and $3.5 million, respectively. During the years ended December 31, 2020 and 2019, the estimated total grant-date fair value
of options vested was $8.4 million and $32.0 million, respectively.
The
aggregate intrinsic value of options outstanding and exercisable at December 31, 2020 was $0. The weighted average remaining contractual
term of options outstanding and exercisable at December 31, 2020 was 6.95 years.
Employee
Stock Purchase Plan (ESPP)
In
May 2018, the Company adopted the Employee Stock Purchase Plan (“ESPP”). The Company has initially reserved 500,000
shares of common stock for purchase under the ESPP. The initial offering period began January 1, 2019 and ended on June 30, 2019
with the first purchase date. Subsequent offering periods will automatically commence on each January 1 and July 1 and will have
a duration of six months ending with a purchase date of June 30 and December 31 of each year. On each purchase date, ESPP participants
will purchase shares of common stock at a price per share equal to 85% of the lesser of (1) the fair market value per share of
the common stock on the offering date or (2) the fair market value of the common stock on the purchase date.
Stock
Options and ESPP Valuation
The
fair value of each option grant and ESPP purchase right is estimated on the date of grant using the Black-Scholes option-pricing
model with the following range of assumptions:
SCHEDULE
OF SHARE-BASED PAYMENT AWARD, STOCK OPTIONS, VALUATION ASSUMPTIONS
|
|
|
For the Year
Ended
December 31,
|
|
|
|
For the Year
Ended
December 31
|
|
|
|
|
2020
|
|
|
|
2019
|
|
Option
grants
|
|
|
|
|
|
|
|
|
Risk
free annual interest rate
|
|
|
0.2%
- 1.7
|
%
|
|
|
1.4%
- 2.7
|
%
|
Expected
volatility
|
|
|
94.3%
- 100.9
|
%
|
|
|
80.8%
- 97.5
|
%
|
Expected
term of options (years)
|
|
|
4.4
- 4.6
|
|
|
|
5.0
- 7.0
|
|
Assumed
dividends
|
|
|
-
|
|
|
|
-
|
|
ESPP
|
|
|
|
|
|
|
|
|
Risk
free annual interest rate
|
|
|
0.2%
- 1.6
|
%
|
|
|
2.1%
- 2.5
|
%
|
Expected
volatility
|
|
|
100.5%
- 143.2
|
%
|
|
|
76.6%
- 88.9
|
%
|
Expected
term of options (years)
|
|
|
0.5
|
|
|
|
0.5
|
|
Assumed
dividends
|
|
|
-
|
|
|
|
-
|
|
Restricted
Stock
A
summary of the Company’s employee and non-employee restricted stock activity is presented below:
SCHEDULE OF SHARE-BASED COMPENSATION, RESTRICTED STOCK ACTIVITY
|
|
Number of shares
|
|
Unvested - December 31, 2019
|
|
|
1,843,001
|
|
Granted
|
|
|
3,676,504
|
|
Vested (1)
|
|
|
(1,955,348
|
)
|
Forfeited
|
|
|
(95,188
|
)
|
Unvested – December 31, 2020
|
|
|
3,468,969
|
|
|
(1)
|
The
number of vested restricted stock units and awards includes shares that were withheld on behalf of employees to satisfy the
minimum statutory tax withholding requirements.
|
The
weighted-average per share grant-date fair value of restricted stock granted during the years ended December 31, 2020 and 2019
was $1.18 and $4.74 per share, respectively. The total fair value of restricted stock vested during the years ended December 31,
2020 and 2019 was approximately $9.0 million and $12.4 million, respectively.
As
of December 31, 2020, there was approximately $2.6 million of unrecognized compensation cost related to unvested restricted stock
awards, which is expected to be recognized over a remaining weighted-average vesting period of 2.0 years.
Stock-Based
Compensation Expense
Total
stock-based compensation expense related to stock options, restricted stock awards, and ESPP was as follows (in thousands):
SCHEDULE
OF SHARE-BASED COMPENSATION RELATED TO RESTRICTED STOCK AWARDS AND STOCK OPTIONS
|
|
For the
Year
Ended
December 31,
|
|
|
For the
Year
Ended
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
General and administrative expense
|
|
$
|
5,879
|
|
|
$
|
27,692
|
|
Research and development expense
|
|
|
943
|
|
|
|
2,643
|
|
Sales and marketing expense
|
|
|
436
|
|
|
|
1,067
|
|
Total stock-based compensation expense
|
|
$
|
7,258
|
|
|
$
|
31,402
|
|
As
of December 31, 2020, there was approximately $0.8 million of unrecognized compensation cost related to stock option awards, which
is expected to be recognized over a remaining weighted-average vesting period of 1.9 years.
Stock-based
compensation related to the ESPP for the year ended December 31, 2020 was $64,000. A total of 97,445 shares of common stock were
purchased at a weighted-average purchase price of $0.76 for total proceeds of $0.1 million pursuant to the ESPP during the year
ended December 31, 2020.
13.
EMPLOYEE BENEFIT PLAN
The
Company’s 401(k) Plan is a deferred salary arrangement under Section 401(k) of the Internal Revenue Code. Under the 401(k)
Plan, participating employees (full-time employees with the Company for one year) may defer a portion of their pre-tax earnings,
up to the IRS annual contribution limit ($19,500 for calendar year 2020). The Company contributes 3% of employee’s eligible
earnings. The Company recorded contribution expense related to its 401(k) Plan of $0.2 million and $0.3 million for the years
ended December 31, 2020 and 2019, respectively.
14.
INCOME TAXES
The
Company calculates its provision for federal and state income taxes based on current tax law. The provision (benefit) for income
taxes consisted of the following (in thousands):
SCHEDULE
OF COMPONENTS OF INCOME TAX EXPENSE (BENEFIT)
|
|
For the
Year
Ended
December 31,
|
|
|
For the
Year
Ended
December
31,
|
|
|
|
2020
|
|
|
2019
|
|
Current:
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
–
|
|
|
$
|
–
|
|
State
|
|
|
–
|
|
|
|
–
|
|
Deferred:
|
|
|
|
|
|
|
|
|
Federal
|
|
|
(593
|
)
|
|
|
(19,057
|
)
|
State
|
|
|
(79
|
)
|
|
|
(8,595
|
)
|
Change in valuation allowance
|
|
|
672
|
|
|
|
27,652
|
|
Total provision (benefit) for income taxes
|
|
$
|
–
|
|
|
$
|
–
|
|
The
difference between income taxes computed at the statutory federal rate and the provision for income taxes related to the following
(in thousands, except percentages):
SCHEDULE
OF STATUTORY FEDERAL RATE AND PROVISION FOR INCOME TAX
|
|
For the Year
Ended December 31,
|
|
|
For the Year
Ended December 31,
|
|
|
|
2020
|
|
|
2019
|
|
|
|
Amount
|
|
|
Percent of
Pretax
Loss
|
|
|
Amount
|
|
|
Percent of
Pretax
Loss
|
|
Tax (benefit) at federal statutory rate
|
|
$
|
(8,999
|
)
|
|
|
21
|
%
|
|
$
|
(19,423
|
)
|
|
|
21
|
%
|
State income taxes, net of federal income taxes
|
|
|
(79
|
)
|
|
|
–
|
%
|
|
|
(8,595
|
)
|
|
|
9
|
%
|
Effect of warrant liability
|
|
|
(209
|
)
|
|
|
1
|
%
|
|
|
–
|
|
|
|
–
|
%
|
Effect of other permanent items
|
|
|
65
|
|
|
|
–
|
%
|
|
|
418
|
|
|
|
–
|
%
|
Effect of stock compensation
|
|
|
9,032
|
|
|
|
(21)
|
%
|
|
|
129
|
|
|
|
–
|
%
|
Change in valuation allowance
|
|
|
672
|
|
|
|
(2)
|
%
|
|
|
27,652
|
|
|
|
(30)
|
%
|
Other
|
|
|
(482
|
)
|
|
|
1
|
%
|
|
|
(181
|
)
|
|
|
–
|
%
|
|
|
$
|
–
|
|
|
|
–
|
%
|
|
$
|
–
|
|
|
|
–
|
%
|
The
components of deferred income tax assets (liabilities) were as follows (in thousands):
SCHEDULE
OF DEFERRED TAX ASSETS AND LIABILITIES
|
|
As of December 31,
|
|
|
As of December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Leases
|
|
$
|
132
|
|
|
$
|
38
|
|
Depreciation and amortization
|
|
|
(784
|
)
|
|
|
(956
|
)
|
Compensation expense not deductible until options are exercised
|
|
|
9,494
|
|
|
|
18,295
|
|
All other temporary differences
|
|
|
488
|
|
|
|
934
|
|
Net operating loss carry forward
|
|
|
41,766
|
|
|
|
32,113
|
|
Less valuation allowance
|
|
|
(51,096
|
)
|
|
|
(50,424
|
)
|
Deferred tax asset (liability)
|
|
$
|
–
|
|
|
$
|
–
|
|
Realization
of deferred tax assets, including those related to net operating loss carryforwards, are dependent upon future earnings, if any,
of which the timing and amount are uncertain. Accordingly, the net deferred tax assets have been fully offset by a valuation allowance.
Based upon the Company’s current operating results management cannot conclude that it is more likely than not that such
assets will be realized.
Utilization
of the net operating loss carryforwards may be subject to a substantial annual limitation due to the “change in ownership”
provisions of the Internal Revenue Code. The annual limitation may result in the expiration of net operating loss carryforwards
before utilization. The net operating loss carryforwards available for income tax purposes at December 31, 2020 amounts to approximately
$158.6 million. Of this amount, $38.5 million will expire between 2037 and 2038 and $120.1 million will have an indefinite life.
Approximately $168.6 million for state income taxes will begin to expire starting in 2032.
The
Company files income tax returns in the U.S. and various states. As of December 31, 2020, the Company had no unrecognized tax
benefits, which would impact its tax rate if recognized. As of December 31, 2020, the Company had no accrual for the potential
payment of penalties. As of December 31, 2020, the Company was not subject to any U.S. federal, and state tax examinations. The
Company does not anticipate any significant changes in its unrecognized tax benefits over the next 12 months.
15.
NET LOSS PER SHARE ATTRIBUTABLE TO COMMON STOCKHOLDERS
The
following tables present reconciliations for the numerators and denominators of basic and diluted net loss per share for the years
ended December 31, 2020 and 2019.
SCHEDULE OF EARNINGS PER SHARE, BASIC AND DILUTED
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Numerator:
|
|
|
|
|
|
|
Net loss, primary
|
|
$
|
(42,854
|
)
|
|
$
|
(92,493
|
)
|
Gain from change in fair value of warrant liabilities
|
|
|
2,914
|
|
|
|
–
|
|
Net loss, diluted
|
|
$
|
(45,768
|
)
|
|
$
|
(92,493
|
)
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Denominator:
|
|
|
|
|
|
|
Basic weighted average number of common shares (1)
|
|
|
38,779,316
|
|
|
|
24,966,355
|
|
Potentially dilutive effect of warrants
|
|
|
588,074
|
|
|
|
–
|
|
Diluted weighted average number of common shares
|
|
|
39,367,390
|
|
|
|
24,966,355
|
|
|
(1)
|
In
December 2020, the Company sold 5,450,000 shares of common stock as well as pre-funded warrants to purchase up to 5,238,043
shares of common stock. The shares of common stock associated with the pre-funded warrants are considered contingently issuable
shares and therefore are outstanding for the purposes of computing earnings per share because the shares may be issued for
little or no consideration, are fully vested, and are exercisable after the original issuance date.
|
The
following outstanding potentially dilutive shares have been excluded from the calculation of diluted net loss per share for the
periods presented due to their anti-dilutive effect:
SCHEDULE
OF ANTI-DILUTIVE POTENTIAL SHARES OUTSTANDING ACTIVITY
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Stock options
|
|
|
4,794,567
|
|
|
|
4,529,988
|
|
Unvested restricted stock grants
|
|
|
3,468,969
|
|
|
|
1,843,001
|
|
16.
RESTRUCTURING AND OTHER CHARGES
In
the second quarter of 2020, management approved several actions as part of a restructuring plan designed to improve operational
efficiency and financial results. Management approved a reduction in force, which affected 40 of the 126 employees in the regenerative
medicine business segment, or approximately 31.7% of that workforce. The Company did not make any change in the workforce of its
contract services segment. Total severance expense recorded for the year ended December 31, 2020 was $1.0 million. All severance
was paid during 2020. Included in the restructuring plan, management recorded $1.5 million of asset abandonments within the Company’s
regenerative medicine business segment related to the restructuring.
In
the fourth quarter of 2020, management recorded $0.9 million in write-downs related to the
abandonment of certain production assets and leasehold improvements and $0.4 million in charges related to the abandonment of
right of use assets. The charges were recorded within the Company’s regenerative medicine business segment and are
included in restructuring and other charges in the accompanying consolidated statement of operations.
17.
COMMITMENTS AND CONTINGENCIES
Contingencies
On
June 26, 2018, a class action complaint alleging violations of the Federal securities laws was filed in the United States District
Court, District of Utah, by Jose Moreno against the Company and two directors of the Company, Case No. 2:18-cv-00510-JNP (the
“Moreno Complaint”). On July 6, 2018, a similar complaint was filed in the same court against the same defendants
by Yedid Lawi, Case No. 2:18-cv-00541-PMW (the “Lawi Complaint”). On November 28, 2018, the Court consolidated the
Moreno and Lawi cases under the caption In re PolarityTE, Inc. Securities Litigation with Case No. 2:18-cv-00510
(the “Consolidated Securities Litigation”). The gravamen of the consolidated complaint in the Consolidated Securities
Litigation was that defendants made statements or disseminated information to the public through reports filed with the Securities
and Exchange Commission and other channels that contained material misstatements or omissions in violation of Sections 10 and
20(a) of the Exchange Act and Rule 10b-5 adopted thereunder, specifically that the defendants misrepresented the status of one
of the Company’s patent applications while touting the unique nature of the Company’s technology and its effectiveness.
The Company filed a motion to dismiss the consolidated complaint on June 3, 2019. Plaintiffs’ opposition to the Company’s
motion to dismiss was filed on August 2, 2019, and the Company filed a reply to the opposition on September 13, 2019. Following
a hearing on the Company’s motion to dismiss the Court issued an order on November 22, 2020, dismissing the complaint in
the Consolidated Securities Litigation with prejudice.
In
November 2018, a shareholder derivative lawsuit was filed in the United States District Court, District of Utah, with the caption
Monther v. Lough, et al., case no. 2:18-cv-00791-TC, alleging violations of the Exchange Act, breach of fiduciary duty,
and unjust enrichment on the part of certain officers and directors based on the facts and circumstances recited in the Consolidated
Securities Litigation. On November 26, 2018, the court issued an order staying all proceedings until after the disposition of
motions to dismiss the Consolidated Securities Litigation. After disposition of the Consolidated Securities Litigation described
above the parties to the shareholder derivative lawsuit agreed to dismiss the lawsuit without prejudice and the lawsuit was dismissed
on January 29, 2021.
Other
Matters
In
the ordinary course of business, the Company may become involved in lawsuits, claims, investigations, proceedings, and threats
of litigation relating to intellectual property, commercial arrangements, employment, regulatory compliance, and other matters.
Except as noted above, at December 31, 2020, the Company was not party to any legal or arbitration proceedings that may have significant
effects on its financial position or results of operations. No governmental proceedings are pending or, to the Company’s
knowledge, contemplated against the Company. The Company is not a party to any material proceedings in which any director, member
of senior management or affiliate of the Company’s is either a party adverse to the Company or its subsidiaries or has a
material interest adverse to the Company or its subsidiaries.
Commitments
The
Company has entered into employment agreements with key executives that contain severance terms and change of control provisions.
On
September 2, 2020, Arches Research, Inc., a subsidiary of PolarityTE, Inc. (“Arches”) entered into two agreements
with Co-Diagnostics, Inc. (“Co-Diagnostics”). The COVID-19 Laboratory Services Agreement between the parties provides
that Arches will perform specimen testing services for customers referred by Co-Diagnostics to Arches. Co-Diagnostics will arrange
all logistics for delivering specimens to Arches for COVID-19 testing for those customers of Co-Diagnostics electing to use the
service. Arches bills Co-Diagnostics for the testing services and Co-Diagnostics manages all customer billing. The Rental Agreement
for LGC Genomics Oktopure Extraction Machine between Arches and Co-Diagnostics provides that Co-Diagnostics will make available
to Arches the Oktopure high throughput extraction machine that Arches will use to perform COVID-19 testing. The term of the agreement
is 12 months, requires Arches to use Co-Diagnostics tests exclusively in the machine, and establishes for Arches a minimum monthly
purchase obligation, valued at approximately $1.1 million annually for Co-Diagnostics tests and related consumables used in the
testing process.
18.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On
August 21, 2019, the Company and Dr. Denver Lough, a principal shareholder and former officer and director, signed a settlement
terms agreement that provides, in part, that the Company pay to Dr. Lough $1,500,000 in cash on October 1, 2019 and an additional
$1,500,000 in cash in equal monthly installments beginning November 1, 2019 and ending April 1, 2021. In addition, the Company
agreed to award to Dr. Lough 200,000 restricted stock units that vest in 18 equal monthly installments beginning October 1, 2019.
The fair value of the restricted stock units was $0.8 million. The Company expensed the cash portion and equity portion of these
awards upon Dr. Lough’s termination. As of December 31, 2020, the Company has recorded a liability of $0.3 million related
to future cash payments under the agreement.
In
October 2018, the Company entered into an office lease covering approximately 7,250 square feet of rental space in the building
located at 40 West 57th Street in New York City. The lease is for a term of three years. The annual lease rate is $60
per square foot. Initially the Company will occupy and pay for only 3,275 square feet of space, and the Company is not obligated
under the lease to pay for the remaining 3,975 square feet covered by the lease unless we elect to occupy that additional space.
The Company believes the terms of the lease are very favorable to us, and the Company obtained these favorable terms through the
assistance of Peter A. Cohen, a director, which he provided so that the company he owns, Peter A. Cohen, LLC (“Cohen LLC”),
could sublease a portion of the office space.
In
May 2020, the Company reduced the space from 6,232 to 4,554. During
the fourth quarter of 2020, the Company increased the space leased from 4,554 square feet to 5,500 square feet. The Company is
using 1,099 square feet, and Cohen LLC is using approximately 4,401 square feet as of December 31, 2020. The monthly lease payment
for 5,500 square feet is $27,501. Of this amount $22,007 is allocated pro rata to Cohen, LLC based on square footage occupied.
Additional lease charges for operating expenses and taxes are allocated under the sublease based on the ratio of rent paid by
the Company and Cohen LLC to total rent. Once the space is fully occupied, the Company will reduce the overall annual lease rate
for the Cohen LLC space to $58.60 per square foot. The Company recognized $0.3 million and $0.3 million of sublease income related
to this agreement for the years ended December 31, 2020 and December 31, 2019, respectively. The sublease income is included in
other income, net in the accompanying consolidated statement of operations. As of December 31, 2020, and December 31, 2019, there
were no amounts due from the related party under this agreement.
19.
SEGMENT REPORTING
The
Company’s operations involve products and services which are managed separately. Accordingly, it operates in two segments:
1) regenerative medicine and 2) contract services.
Certain
information concerning the Company’s segments is presented in the following tables (in thousands):
SCHEDULE
OF SEGMENT INFORMATION
|
|
For the
Year
Ended
December 31,
|
|
|
For the
Year
Ended
December
31,
|
|
|
|
2020
|
|
|
2019
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
Reportable segments:
|
|
|
|
|
|
|
|
|
Regenerative medicine
|
|
$
|
3,730
|
|
|
$
|
2,353
|
|
Contract services
|
|
|
6,396
|
|
|
|
3,299
|
|
Total net revenues
|
|
$
|
10,126
|
|
|
$
|
5,652
|
|
|
|
|
|
|
|
|
|
|
Net loss:
|
|
|
|
|
|
|
|
|
Reportable segments:
|
|
|
|
|
|
|
|
|
Regenerative medicine
|
|
$
|
(42,815
|
)
|
|
$
|
(91,259
|
)
|
Contract services
|
|
|
(39
|
)
|
|
|
(1,234
|
)
|
Total net loss
|
|
$
|
(42,854
|
)
|
|
$
|
(92,493
|
)
|
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
Identifiable assets employed:
|
|
|
|
|
|
|
|
|
Reportable segments:
|
|
|
|
|
|
|
|
|
Regenerative medicine
|
|
$
|
36,858
|
|
|
$
|
48,615
|
|
Contract services
|
|
|
8,652
|
|
|
|
4,984
|
|
Total assets
|
|
$
|
45,510
|
|
|
$
|
53,599
|
|
20.
SUBSEQUENT EVENTS
Pre-Funded
Warrants Exercised
On
December 23, 2020, the Company sold pre-funded warrants to purchase 5,238,043 shares of common stock at an exercise price of $0.001.
As of January 7, 2021, all pre-funded warrants had been exercised into shares of common stock for total proceeds of $5,000.
January
14, 2021 offering
On
January 14, 2021, the Company completed a registered direct offering of 6,670,000 shares of its common stock, par value $0.001
per share, pre-funded warrants to purchase up to 2,420,910 shares of Common Stock and accompanying common warrants to purchase
up to 9,090,910 shares of Common Stock. Each share of common stock and pre-funded warrant were sold together with a warrant. The
combined offering price of each common share and accompanying warrant was $1.100 and for each pre-funded warrant and accompanying
warrant was $1.099. The pre-funded warrants had an exercise price of $0.001 each and were exercised in full on January 13, 2021. Each
warrant is exercisable for one share of the Company’s common stock at an exercise price of $1.20 per share. The warrants
are immediately exercisable and will expire five years from the date of issuance. The holder of the warrants may not exercise
any portion of the warrants to the extent that the holder would own more than 4.99% of the outstanding common stock immediately
after exercise, which percentage may be changed at the holder’s election to a lower percentage at any time or to a higher
percentage not to exceed 9.99% upon 61 days’ notice to the Company. The Company also issued to designees of the placement
agent for the registered direct offering warrants to purchase up to 6.0% of the aggregate number of common stock shares and pre-funded
warrants sold in the offering (or warrants to purchase up to 545,455 shares of common stock). The placement agent warrants have
substantially the same terms as the warrants, except that the placement agent warrants have an exercise price equal to 125% of
the purchase price per share (or $1.375 per share). The Company received gross proceeds of approximately $10.0 million in connection
with the offering, before deducting placement agent fees and related offering expenses.
January
22, 2021 exercise and subsequent offering
On
January 22, 2021, the Company entered into a letter agreement with the holder of warrants to purchase up to 10,688,043 shares
of common stock at an exercise price of $0.624 per share that were issued to the holder in the registered direct offering that
closed on December 23, 2020. Under the letter agreement the holder agreed to exercise the 10,688,043 warrants in full and the
Company agreed to issue and sell to the holder common warrants to purchase up to 8,016,033 shares of the Company’s common
stock, par value $0.001 per share, at a price of $0.125. Each warrant is exercisable for one share of Common Stock at an exercise
price of $1.20 per share. The warrants are immediately exercisable and will expire five years from the date of issuance. The holder
of the warrants may not exercise any portion of the warrants to the extent that the holder would own more than 4.99% of the outstanding
common stock immediately after exercise, which percentage may be changed at the holder’s election to a lower percentage
at any time or to a higher percentage not to exceed 9.99% upon 61 days’ notice to the Company. The Company also issued to
designees of the placement agent for the registered direct offering in December 2020 warrants to purchase up to 6.0% of the aggregate
number of warrants issued under the letter agreement (or warrants to purchase up to 480,962 shares of common stock). The placement
agent warrants have substantially the same terms as the warrants. In January 2021, the holder of the common warrants exercised
all 10,688,043 warrants at an exercise price of $0.624 per share resulting in gross proceeds of $6.67 million and gross proceeds
of approximately $1.0 million from the sale of the newly issued warrants, before deducting placement agent fees and related offering
expenses.
“At the Market” Offering
On March 30, 2021,
we entered into a sales agreement with Cantor, Fitzgerald & Co. (“Cantor”), to sell shares of our common stock
having aggregate sales proceeds of up to $50.0 million, from time to time, through an “at the market” equity offering
program under which Cantor will act as sales agent.
Termination of Keystone Purchase Agreement
Pursuant to an Equity Purchase Agreement
dated as of December 5, 2019 (the “Purchase Agreement”) that we entered into with Keystone Capital Partners, LLC (“Keystone”),
Keystone agreed to purchase up to $25.0 million of shares of our common stock, subject to certain limitations, at our direction
from time to time during the 36-month term of the Purchase Agreement. In anticipation of the “at the market” equity
offering program described above, we provided notice to Keystone of our decision to terminate the Purchase Agreement, which was
effective on March 26, 2021.