kmph-10q_20150630.htm

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

(Mark One)

x

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2015

OR

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                        to                       

Commission File No. 001-36913

KemPharm, Inc.

 

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

 

20-5894398

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

 

 

2656 Crosspark Road, Suite 100, Coralville, IA

 

52241

(Address of principal executive offices)

 

(Zip Code)

(319) 665-2575

 

(Registrant’s telephone number, including area code)

 

(Former name, former address, and former fiscal year if changed since last report)

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  x    No  o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):

 

Large accelerated filer

o

 

Accelerated filer

o

Non-accelerated filer

x

(Do not check if a smaller reporting company)

Smaller reporting company

o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  o    No  x

Total shares of common stock outstanding as of August 12, 2015:  14,228,401

 

 

 

 

 


INDEX

 

KEMPHARM, INC.

 

PART I.

FINANCIAL INFORMATION

 

Item 1.

 

Financial Statements (Unaudited)

 

 

 

Condensed Balance Sheets:

1

 

–         As of June 30, 2015

 

 

–         As of December 31, 2014

 

 

 

Condensed Statements of Operations:

2

 

–         Three and six months ended June 30, 2015 and 2014

 

 

 

Condensed Statements of Cash Flows:

3

 

–         Six months ended June 30, 2015 and 2014

 

 

 

Notes to Condensed Financial Statements:

4

Item 2.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

13

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

19

Item 4.

 

Controls and Procedures

20

PART II.

 

OTHER INFORMATION

 

Item 1.

 

Legal Proceedings

21

Item 1A.

 

Risk Factors

21

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

58

Item 3.

 

Defaults Upon Senior Securities

59

Item 4.

 

Mine Safety Disclosures

59

Item 5.

 

Other Information

59

Item 6.

 

Exhibits

60

 

SIGNATURES

61

 

 

 

 


 

PART I

FINANCIAL INFORMATION

 

 

Item 1.

Financial Statements.

KEMPHARM, INC.

CONDENSED BALANCE SHEETS

(In Thousands, Except Share and Par Value Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

As of June 30,

 

 

As of December 31,

 

 

 

2015

 

 

2014

 

 

 

(unaudited)

 

 

 

 

 

Assets

 

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

64,223

 

 

$

10,255

 

Prepaid expenses and other current assets

 

 

607

 

 

 

23

 

Total current assets

 

 

64,830

 

 

 

10,278

 

Debt issuance costs, net

 

 

1,301

 

 

 

1,468

 

Property and equipment, net

 

 

352

 

 

 

352

 

Other long-term assets

 

 

56

 

 

 

1,616

 

Total assets

 

$

66,539

 

 

$

13,714

 

 

 

 

 

 

 

 

 

 

Liabilities, redeemable convertible preferred stock, and stockholders' deficit

 

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

 

Accounts payable and accrued expenses

 

$

4,878

 

 

$

3,903

 

Current portion of capital lease obligation

 

 

32

 

 

 

32

 

Total current liabilities

 

 

4,910

 

 

 

3,935

 

Convertible notes, net of discount

 

 

7,550

 

 

 

7,235

 

Term notes, net of discount

 

 

11,326

 

 

 

10,853

 

Derivative and warrant liability

 

 

39,279

 

 

 

15,966

 

Capital lease obligation, net of current portion

 

 

11

 

 

 

26

 

Total liabilities

 

 

63,076

 

 

 

38,015

 

 

 

 

 

 

 

 

 

 

Commitments and contingencies (Note D)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Redeemable convertible preferred stock:

 

 

 

 

 

 

 

 

Series A redeemable convertible preferred stock, $0.0001 par value; no shares issued, authorized or

   outstanding as of June 30, 2015 (unaudited); 9,705,000 authorized, 9,704,215 shares issued and

   outstanding as of December 31, 2014

 

 

 

 

 

3,343

 

Series B redeemable convertible preferred stock, $0.0001 par value; no shares issued, authorized or

   outstanding as of June 30, 2015 (unaudited); 6,220,000 shares authorized, 6,220,000 shares issued

   and outstanding as of December 31, 2014

 

 

 

 

 

3,313

 

Series C redeemable convertible preferred stock, $0.0001 par value; no shares authorized, issued or

   outstanding as of June 30, 2015 (unaudited); 18,558,000 shares authorized, 18,557,408 shares

   issued and outstanding as of December 31, 2014

 

 

 

 

 

11,892

 

Series D redeemable convertible preferred stock, $0.0001 par value; no shares authorized,

   issued or outstanding as of June 30, 2015 (unaudited); 75,000,000 shares authorized  and

   7,255,425 shares issued and outstanding as of December 31, 2014

 

 

 

 

 

5,659

 

Series D-1 redeemable convertible preferred stock, $0.0001 par value, no shares authorized, issued or

   outstanding as of June 30, 2015 (unaudited) and December 31, 2014, respectively

 

 

 

 

 

 

Total redeemable convertible preferred stock

 

 

 

 

 

24,207

 

 

 

 

 

 

 

 

 

 

Stockholders’ deficit:

 

 

 

 

 

 

 

 

Common stock, $0.0001 par value, 250,000,000 shares authorized, 14,228,401 shares issued and

   outstanding as of June 30, 2015 (unaudited); $0.0001 par value, 140,000,000 shares authorized,

   2,381,041 shares issued and outstanding as of December 31, 2014

 

 

3

 

 

 

2

 

Additional paid-in capital

 

 

89,337

 

 

 

1,650

 

Preferred stock, $0.0001 par value, 10,000,000 shares authorized, no shares issued or outstanding

   as of June 30, 2015 (unaudited) or December, 31, 2014, respectively

 

 

 

 

 

 

Accumulated deficit

 

 

(85,877

)

 

 

(50,160

)

Total stockholders' deficit

 

 

3,463

 

 

 

(48,508

)

Total liabilities, redeemable convertible preferred stock, and stockholders' deficit

 

$

66,539

 

 

$

13,714

 

 

See Accompanying Notes to Unaudited Condensed Financial Statements.

 

1


 

KEMPHARM, INC.

UNAUDITED CONDENSED STATEMENTS OF OPERATIONS

(In Thousands, Except Share and Per Share Amounts)

 

 

 

Three months ended June 30,

 

 

Six months ended June 30,

 

 

 

2015

 

 

2014

 

 

2015

 

 

2014

 

Revenue

 

$

 

 

$

 

 

$

 

 

$

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Research and development

 

 

2,768

 

 

 

1,715

 

 

 

4,887

 

 

 

2,752

 

General and administrative

 

 

3,188

 

 

 

1,330

 

 

 

4,165

 

 

 

1,864

 

Total operating expenses

 

 

5,956

 

 

 

3,045

 

 

 

9,052

 

 

 

4,616

 

Loss from operations

 

 

(5,956

)

 

 

(3,045

)

 

 

(9,052

)

 

 

(4,616

)

Other income (expenses):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gain on extinguishment of debt

 

 

 

 

 

1,900

 

 

 

 

 

 

1,900

 

Amortization of debt discount

 

 

(477

)

 

 

(159

)

 

 

(954

)

 

 

(159

)

Interest expense

 

 

(649

)

 

 

(704

)

 

 

(1,280

)

 

 

(800

)

Fair value adjustment

 

 

(22,661

)

 

 

(1,570

)

 

 

(24,423

)

 

 

(1,812

)

Total other expenses

 

 

(23,787

)

 

 

(533

)

 

 

(26,657

)

 

 

(871

)

Loss before income taxes

 

 

(29,743

)

 

 

(3,578

)

 

 

(35,709

)

 

 

(5,487

)

Income tax (expense) benefit

 

 

 

 

 

6

 

 

 

(7

)

 

 

11

 

Net loss

 

$

(29,743

)

 

$

(3,572

)

 

$

(35,716

)

 

$

(5,476

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic and diluted

 

$

(2.45

)

 

$

(1.50

)

 

$

(4.91

)

 

$

(2.30

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic and diluted

 

 

12,157,514

 

 

 

2,381,041

 

 

 

7,272,326

 

 

 

2,381,041

 

 

See Accompanying Notes to Unaudited Condensed Financial Statements.

 

 

2


 

KEMPHARM, INC.

UNAUDITED CONDENSED STATEMENTS OF CASH FLOWS

(In Thousands)

 

 

 

Six Months Ended June 30,

 

 

 

 

2015

 

 

 

2014

 

Cash flows from operating activities:

 

 

 

 

 

 

 

 

Net loss

 

$

(35,716

)

 

$

(5,476

)

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

 

 

 

Gain on extinguishment of debt

 

 

 

 

 

(1,900

)

Stock-based compensation expense

 

 

964

 

 

 

117

 

Non-cash interest expense

 

 

1,280

 

 

 

800

 

Amortization of debt issuance costs and debt discount

 

 

954

 

 

 

159

 

Depreciation and amortization expense

 

 

40

 

 

 

38

 

Fair value adjustment

 

 

24,423

 

 

 

1,812

 

Change in assets and liabilities:

 

 

 

 

 

 

 

 

Prepaid expenses and other assets

 

 

976

 

 

 

39

 

Accounts payable and accrued expenses

 

 

(2,175

)

 

 

589

 

Net cash used in operating activities

 

 

(9,254

)

 

 

(3,822

)

 

 

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

 

 

 

 

Purchases of property and equipment

 

 

(40

)

 

 

(11

)

Net cash used in investing activities

 

 

(40

)

 

 

(11

)

 

 

 

 

 

 

 

 

 

Cash flows from financing activities:

 

 

 

 

 

 

 

 

Proceeds from initial public offering, net of underwriting discounts and commissions

 

 

59,892

 

 

 

 

Proceeds from issuance of Series D-1 Preferred Stock

 

 

4,000

 

 

 

 

Payment of deferred offering costs

 

 

(668

)

 

 

 

Proceeds from issuance of debt

 

 

 

 

 

25,000

 

Repayment of line of credit

 

 

 

 

 

(2

)

Payment of stock issuance costs

 

 

 

 

 

(163

)

Repayment of obligations under capital lease

 

 

(15

)

 

 

(16

)

Proceeds from exercise of Series D Preferred Stock warrants

 

 

2

 

 

 

 

Proceeds from exercise of common stock warrants

 

 

51

 

 

 

 

Net cash provided by financing activities

 

 

63,262

 

 

 

24,819

 

Net increase in cash and cash equivalents

 

 

53,968

 

 

 

20,986

 

Cash and equivalents, beginning of period

 

 

10,255

 

 

 

1,969

 

Cash and equivalents, end of period

 

$

64,223

 

 

$

22,955

 

 

 

 

 

 

 

 

 

 

Supplemental cash flow information:

 

 

 

 

 

 

 

 

Conversion of preferred stock into common stock upon initial public offering

 

$

28,209

 

 

$

 

Unpaid offering expense charged to equity

 

 

1,870

 

 

 

 

Reclassification of 2013 warrants to equity

 

 

1,110

 

 

 

 

Conversion of 2013 Convertible Notes into Series D Preferred Stock

 

 

 

 

 

4,160

 

Issuance of Deerfield warrant allocated to debt discount

 

 

 

 

 

7,610

 

Embedded Deerfield put option allocated to debt discount

 

 

 

 

 

220

 

Issuance of Series D Preferred as transaction fee

 

 

 

 

 

1,500

 

Deferred offering costs included in accounts payable and accrued expense

 

 

 

 

 

313

 

Cash paid for interest

 

$

 

 

$

1

 

 

See Accompanying Notes to Unaudited Condensed Financial Statements.

 

 

3


 

KEMPHARM, INC.

NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS

 

 

A. Description of Business and Basis of Presentation

Organization

KemPharm, Inc. (the “Company”) is a clinical-stage specialty pharmaceutical company engaged in the discovery and development of proprietary prodrugs. The Company was formed on October 30, 2006, and incorporated in Iowa, and reorganized in Delaware on May 30, 2014. Through the use of its Ligand Activated Therapy (“LAT”) platform technology, the Company is able to initiate and pursue the development of improved versions of widely prescribed, approved drugs.

The Company has experienced recurring losses from operations and negative operating cash flows due to its ongoing research and development of its potential product candidates. Various internal and external factors will affect whether and when the candidates become approved drugs and how significant their market share will be. The length of time and cost of developing and commercializing these candidates and/or failure of them at any stage of the drug approval process will materially affect the Company’s financial condition and future operations.

The accompanying unaudited condensed financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information and with the instructions to Form 10-Q and Rule 8-03 of Regulation S-X. Accordingly, they do not include all of the information and related notes required by accounting principles generally accepted in the United States of America for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring adjustments) considered necessary for a fair presentation have been included in the accompanying financial statements. Operating results for the three and six months ended June 30, 2015, are not necessarily indicative of the results that may be expected for the full year ending December 31, 2015.

This interim information should be read in conjunction with the audited financial statements included in the Company’s prospectus dated April 15, 2015, and filed with the Securities and Exchange Commission (“SEC”) pursuant to Rule 424 promulgated under the Securities Act of 1933, as amended.

Reverse Stock Split

In April 2015, the Company effected a 1-for-7.5 reverse stock split of its issued common stock. All applicable share data, per share amounts and related information in the unaudited condensed financial statements and notes thereto have been adjusted retroactively to give effect to the 1-for-7.5 reverse stock split.

Initial Public Offering

In April 2015, the Company completed an initial public offering (“IPO”) of its common stock.  In connection with the initial closing of the IPO, the Company sold an aggregate of 5,090,909 shares of common stock at a price to the public of $11.00 per share.  In May 2015, the underwriters in the IPO exercised their option to purchase additional shares pursuant to which the Company sold an additional 763,636 shares of common stock at a price equal to the public price of $11.00 per share.  In the aggregate, net proceeds from the IPO including net proceeds from the underwriters’ exercise of their option to purchase additional shares, were approximately $59.9 million, after deducting underwriting discounts and commissions of $4.5 million.  In addition, offering expenses totaled approximately $1.8 million.  Upon completion of the IPO, all outstanding shares of the Company’s redeemable convertible preferred stock were converted or reclassified into 5,980,564 shares of common stock and all outstanding warrants to acquire shares of the Company’s redeemable convertible preferred stock became warrants to acquire the Company’s common stock.  In connection with the IPO, the Company amended and restated its Amended and Restated Certificate of Incorporation to change the authorized capital stock to 250,000,000 shares, designated as common stock, and 10,000,000 shares, designated as preferred stock, each with a par value of $0.0001 per share.

 

 

 

B. Summary of Significant Accounting Policies

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires the Company to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates.

4


 

On an ongoing basis, the Company evaluates its estimates, including those related to the useful lives of property and equipment, the fair value of the Company’s common stock prior to the IPO and assumptions used for purposes of determining stock-based compensation, income taxes, and the fair value of the derivative and warrant liability, among others. The Company bases its estimates on historical experience and on various other assumptions that it believes to be reasonable, the results of which form the basis for making judgments about the carrying value of assets and liabilities.

Application of New or Revised Accounting Standards—Adopted

From time to time, the Financial Accounting Standards Board (the “FASB”) or other standard-setting bodies issue accounting standards that are adopted by the Company as of the specified effective date.

On April 5, 2012, President Obama signed the Jump-Start Our Business Startups Act (the “JOBS Act”) into law. The JOBS Act contains provisions that, among other things, reduce certain reporting requirements for an emerging growth company. As an emerging growth company, the Company may elect to adopt new or revised accounting standards when they become effective for non-public companies, which typically is later than public companies must adopt the standards. The Company has elected not to take advantage of the extended transition period afforded by the JOBS Act and, as a result, will comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies.

In July 2013, the FASB issued ASU No. 2013-11, Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exist (“ASU 2013-11”). ASU 2013-11 amends the presentation requirements of ASC Topic 740 Income Taxes and requires an unrecognized tax benefit to be presented in the financial statements as a reduction to a deferred tax asset for a net operating loss carryforward, similar tax loss, or a tax credit carryforward. To the extent the tax benefit is not available at the reporting date under the governing tax law or if the entity does not intend to use the deferred tax asset for such purpose, the unrecognized tax benefit should be presented as a liability and not combined with deferred tax assets. ASU 2013-11 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2013. The amendments are to be applied to all unrecognized tax benefits that exist as of the effective date and may be applied retrospectively to each prior reporting period presented. The Company adopted the new standard effective January 1, 2014.  The adoption of ASU 2013-11 did not have a material impact on the Company’s financial statements as no uncertain tax positions existed as of December 31, 2013 and 2014.

In June 2014, the FASB issued ASU No. 2014-10, Development Stage Entities (Topic 915): Elimination of Certain Financial Reporting Requirements, Including an Amendment to Variable Interest Entities Guidance in Topic 810, Consolidation (“ASU 2014-10”). This ASU removes all incremental financial reporting requirements for development stage entities, including the removal of Topic 915 from the FASB Accounting Standards Codification (“ASC”). The amendments in this ASU eliminate certain disclosure requirements to (1) present inception-to-date information in the statements of income, cash flows and stockholder equity, (2) label the financial statements as those of a development stage entity, (3) disclose a description of the development stage activities in which the entity is engaged and (4) disclose in the first year in which the entity is no longer a development stage entity that in prior years it had been in the development stage. The ASU clarifies that disclosures about risks and uncertainties required by Topic 275 also apply to entities that have not commenced planned principal operations.

The Company has elected to early adopt ASU 2014-10. The amendments primarily relate to disclosure matters and, therefore, have no impact on the Company’s financial statements, other than the elimination of previously required disclosures including inception-to-date financial information.

Application of New or Revised Accounting Standards—Not Yet Adopted

In June 2014, the FASB issued ASU 2014-12, Compensation-Stock Compensation (Topic 718): Accounting for Share-Based Payments when the Terms of an Award Provide that a Performance Target Could Be Achieved After the Requisite Service Period (“ASU 2014-12”). The amendments require that a performance target that affects vesting and that could be achieved after the requisite service period be treated as a performance condition. ASU 2014-12 is effective for annual periods and interim periods within those annual periods beginning after December 15, 2015. Earlier adoption is permitted. Entities may apply ASU 2014-12 either (a) prospectively to all awards granted or modified after the effective date or (b) retrospectively to all awards with performance targets that are outstanding as of the beginning of the earliest annual period presented in the financial statements and to all new or modified awards thereafter. If retrospective transition is adopted, the cumulative effect of applying this ASU as of the beginning of the earliest annual period presented in the financial statements should be recognized as an adjustment to the opening retained earnings balance at that date. Additionally, if retrospective transition is adopted, an entity may use hindsight in measuring and recognizing the compensation cost. The Company currently is evaluating the impact of the adoption of ASU 2014-12 on its financial statements and disclosures.

5


 

In August 2014, the FASB issued ASU No. 2014-15, Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern (ASU 2014-15), which amends ASC Subtopic 205-40 to provide guidance about management’s responsibility to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern and to provide related disclosures.   Specifically, the amendments (1) provide a definition of the term “substantial doubt,” (2) require an evaluation every reporting period, (3) provide principles for considering the mitigating effect of management’s plans, (4) require certain disclosures when substantial doubt is alleviated as a result of consideration of management’s plans, (5) require an express statement and other disclosures when substantial doubt is not alleviated and (6) require an assessment for a period of one year after the date that financial statements are issued. ASU 2014-15 is effective for fiscal years ending after December 15, 2016, and for annual periods and interim periods thereafter. The Company is currently evaluating the impact of the adoption of ASU 2014-15 on its financial statements and disclosures.

In May 2014, the FASB issued amended revenue recognition guidance to clarify the principles for recognizing revenue from contracts with customers.  The guidance requires an entity to recognize revenue to depict the transfer of goods or services to customers in an amount that reflects the consideration to which an entity expects to be entitled in exchange for those goods or services.  The guidance also requires expanded disclosures relating to the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers.  Additionally, qualitative and quantitative disclosures are required about customer contracts, significant judgments and changes in judgments, and assets recognized from the costs to obtain or fulfill a contract.  On July 9, 2015, the FASB voted to defer the effective date by one year, which will make the guidance effective for the Company’s interim and annual periods beginning January 1, 2018.  The Company is currently evaluating the impact of this guidance on its financial statements and disclosures.

In April 2015, the FASB issued ASU 2015-03, Interest—Imputation of Interest (Subtopic 835-30), or ASU 2015-03, which requires the debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with the presentation of debt discounts. This guidance is effective for financial statements issued for fiscal years beginning after December 15, 2015, and interim periods within those fiscal years. The Company is currently evaluating the impact of the provisions of ASU 2015-03 on its financial statements and disclosures.

 

 

C. Debt Obligations

Deerfield Facility Agreement

On June 2, 2014, the Company entered into a $60 million facility agreement (the “Deerfield Facility Agreement”) with Deerfield Private Design Fund III, LP (“Deerfield”). The first payment to the Company under the terms of the Deerfield Facility Agreement consisted of a term loan of $15 million (the “Term Notes”) and a senior secured loan of $10 million (the “Deerfield Convertible Notes”). All loans issued under the Deerfield Facility Agreement bear interest at 9.75% per annum. Deerfield may convert any portion of the outstanding principal and any accrued but unpaid interest on the Deerfield Convertible Notes into shares of the Company’s common stock at an initial conversion price of $5.85 per share.  At its option, the Company may convert the outstanding principal and accrued interest under the Deerfield Convertible Notes into shares of the Company’s common stock at an initial conversion price of $5.85 per share if either of the following occurs prior to June 30, 2016:  (i) the FDA has approved, without requiring the performance of an efficacy study, the NDA for KP201/APAP for the treatment of acute pain; or (ii) the FDA has accepted the NDA for KP201/APAP for review and a qualified initial public offering, as defined in the Deerfield Facility Agreement, has occurred.  

The Company also issued to Deerfield a warrant to purchase 14,423,076 shares of Series D redeemable convertible preferred stock (“Series D Preferred”) at an exercise price of $0.78 per share, which is exercisable until June 2, 2024 (the “Deerfield Warrant”). Upon completion of the IPO, the Deerfield Warrant automatically converted into a warrant to purchase 1,923,077 shares of the Company’s common stock at an exercise price of $5.85 per share.  In the event that a Major Transaction occurs, as defined below, Deerfield may require the Company redeem the Deerfield Warrant for a cash amount equal to the Black-Scholes value of the portion of the Deerfield Warrant to be redeemed (the “Put Option”). A Major Transaction is (i) a consolidation, merger, exchange of shares, recapitalization, reorganization, business combination or other similar event; (ii) the sale or transfer in one transaction or a series of related transactions of all or substantially all of the assets of the Company; (iii) a third-party purchase, tender or exchange offer made to the holders of outstanding shares, such that following such purchase, tender or exchange offer a change of control has occurred; (iv) the liquidation, bankruptcy, insolvency, dissolution or winding-up affecting the Company; (v) the shares of the Company’s common stock cease to be listed on any eligible market; and (vi) at any time, the shares of the Company’s common stock cease to be registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

In addition, the Company issued to Deerfield 1,923,077 shares of Series D Preferred as consideration for the loans provided to the Company under the Deerfield Facility Agreement. Upon completion of the IPO, these shares automatically reclassified into 256,410 shares of the Company’s common stock.  The Company recorded the fair value of the shares of Series D Preferred of $1.5 million, to debt issuance costs on the date of issuance. The Company recorded the fair value of the Deerfield Warrant of $7.6 million and the fair value of

6


 

the embedded Put Option of $220,000 to debt discount on the date of issuance. The debt issuance costs and debt discount are amortized over the term of the related debt and the expense is recorded as interest expense in the statements of operations.

The Company must repay one-third of the outstanding principal amount of all debt issued under the Deerfield Facility Agreement on the fourth and fifth anniversaries of the Deerfield Facility Agreement. The Company is then obligated to repay the balance of the outstanding principal amount on February 14, 2020.

Interest accrued on outstanding debt under the Deerfield Facility Agreement is due quarterly in arrears. Upon notice to Deerfield, the Company may choose to have one or more of the first eight of such scheduled interest payments added to the outstanding principal amount of the debt issued under the Deerfield Facility Agreement, provided that all such interest will be due on July 1, 2016.

Deerfield is obligated to provide three additional tranches upon the Company’s request and after the satisfaction of specified conditions, including the FDA’s acceptance of a New Drug Application for the Company’s product candidate, KP201/APAP, which consists of KP201, the Company’s new molecular entity prodrug of hydrocodone, formulated in combination with acetaminophen (“APAP”), and, for the final two tranches, the subsequent approval for commercial sale thereof.

As of June 30, 2015, borrowings available to the Company under the Deerfield Facility Agreement were $35 million. Under the terms of the Deerfield Facility Agreement, future tranches to the Company are as follows:

·

The second tranche consists of a $10.0 million term loan that bears interest at 9.75% and a warrant to purchase 1,282,052 shares of the Company’s common stock at an exercise price of $5.85.

·

The third and fourth tranches each consist of a $12.5 million term loan that bears interest at 9.75% and a warrant exercisable for the number of shares equal to 60% of the principal amount of such disbursement divided by 115% of the volume weighted average sales price of the Company’s common stock for the 20 consecutive trading days immediately prior to the date of such disbursement with an exercise price per share equal to such weighted average sales price.

Conversion of 2013 Convertible Notes into Series D Preferred

From June 2013 through October 2013, the Company issued 10.0% unsecured convertible promissory notes (the “2013 Convertible Notes”) for gross proceeds of $3.8 million. The 2013 Convertible Notes accrued interest from the date of issuance through the maturity date, with such interest payable in cash upon maturity.  The 2013 Convertible Notes did not have a stated maturity date and instead matured under various scenarios, such as the sale of substantially all of the assets of the Company, dissolution of the Company, failure to observe covenants, and voluntary or involuntary bankruptcy. In accordance with the terms of the 2013 Convertible Notes, and effected by the written consent of the holders of a majority of the outstanding principal of such notes, on June 2, 2014, the principal amount of the 2013 Convertible Notes of $3.8 million and all accrued interest of $0.3 million converted into 5,332,348 shares of Series D Preferred at $0.78 per share. Upon the conversion of the 2013 Convertible Notes, the embedded conversion feature of the 2013 Convertible Notes and Put Option was marked to fair value and the balance of $1.9 million was recorded as a gain on extinguishment of debt.

 

Line of Credit

The Company has a $50,000 credit agreement with a financial institution (the “Line of Credit Agreement”). As of June 30, 2015 and December 31, 2014, the Company had $50,000 available under the Line of Credit Agreement, respectively. The Line of Credit Agreement is collateralized by all of the Company’s business assets as well as the personal guarantees of the Company’s officers. The Line of Credit Agreement contains no financial covenants. Borrowings under the Line of Credit Agreement carry interest at a rate equal to the prime rate plus 1.75% per annum. The Company is required to make interest only payments on any draws under the Line of Credit Agreement. The interest rate under the Line of Credit Agreement was 5% for the three and six months ended June 30, 2015, and June 30, 2014.

 

 

D. Commitments and Contingencies

From time to time, the Company is involved in various legal proceedings arising in the normal course of business. For some matters, a liability is not probable or the amount cannot be reasonably estimated and, therefore, an accrual has not been made. However, for such matters when it is probable that the Company has incurred a liability and can reasonably estimate the amount, the Company accrues and discloses such estimates.

7


 

In 2014, a former financial advisor and current warrant holder of the Company filed a request with the Iowa District Court to declare valid a purported right of first refusal to serve as the Company’s exclusive financial advisor for specified strategic transactions and to receive fees for the specified strategic transactions irrespective of whether any such specified transaction occurred during or after the term of the financial advisor’s service agreement. This filing by the former financial advisor was made in response to an action initiated by the Company in 2013 seeking a declaratory judgment finding that such purported right was invalid and unenforceable. A trial date for this matter has been scheduled for September 2015, and the Company is unable to predict the timing or outcome of this litigation as of the date of this report.   However, if it is determined that such purported right of first refusal and right to receive a cash fee related to any such specified strategic transactions are valid, then the Company could be required to pay the counterparty a portion of the consideration or proceeds received in any such specified strategic transaction, including the Deerfield Facility Agreement, the IPO, the sale of the Company’s Series D-1 redeemable convertible preferred stock (“Series D-1 Preferred”) to Cowen KP Investment LLC (“Cowen”), and any future capital raising and other strategic transactions.

 

 

E. Redeemable Convertible Preferred Stock and Warrants

Authorized, Issued, and Outstanding Redeemable Convertible Preferred Stock

In April 2015, the Company amended and restated its Certificate of Incorporation to decrease the number of its authorized shares of preferred stock to 10,000,000 shares with a par value of $0.0001 per share.  As described in Note A, in April 2015, the Company completed an IPO of its common stock.  Upon completion of the IPO, all outstanding shares of the Company’s redeemable convertible preferred stock were automatically converted or reclassified into an aggregate of 5,980,564 shares of the Company’s common stock.  As of June 30, 2015, the Company had 10,000,000 shares of authorized preferred stock, and did not have any preferred stock outstanding.

 

Preferred Stock Activity

The following table summarizes redeemable convertible preferred stock activity for the six months ended June 30, 2015:

 

 

 

Shares of

 

 

 

 

 

 

 

Series A

Preferred

 

 

Series B

Preferred

 

 

Series C

Preferred

 

 

Series D

Preferred

 

 

Series D-1

Preferred

 

 

Total

 

Balance, December 31, 2014

 

 

9,704,215

 

 

 

6,220,000

 

 

 

18,557,408

 

 

 

7,255,425

 

 

 

 

 

 

41,737,048

 

Issuance of Series D-1 Preferred Stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,200,000

 

 

 

3,200,000

 

Exercise of Series D Preferred Warrants

 

 

 

 

 

 

 

 

 

 

 

3,205

 

 

 

 

 

 

3,205

 

Less:  Conversion of Preferred Stock into Common Stock upon IPO

 

 

(9,704,215

)

 

 

(6,220,000

)

 

 

(18,557,408

)

 

 

(7,258,630

)

 

 

(3,200,000

)

 

 

(44,940,253

)

Balance, June 30, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Series D-1 Redeemable Convertible Preferred Stock

In February 2015, the Company entered into a stock purchase agreement with Cowen in which Cowen agreed to purchase and the Company agreed to sell 3,200,000 shares of the Company’s Series D-1 Preferred for $1.25 per share, or an aggregate of $4 million.  Upon completion of the IPO, these shares automatically reclassified into 415,584 shares of the Company’s common stock.

 

Warrants

As described in Note A, in April 2015, the Company completed an IPO of its common stock.  Upon completion of the IPO, and as of June 30, 2015, warrants to purchase 15,499,324 shares of Series D Preferred were reclassified into warrants to purchase 2,066,543 shares of the Company’s common stock.  At June 30, 2015, the Company did not have any outstanding warrants to purchase the Company’s Series D Preferred.  As of December 31, 2014, the Company had outstanding warrants to purchase 15,502,529 shares of Series D Preferred at an exercise price of $0.78 per share.  During the six months ended June 30, 2015, warrants to purchase 3,205 shares of Series D Preferred were exercised.  

During 2013, the Company issued $3.8 million of convertible notes and the warrants (the “2013 Warrants”) to purchase 1,079,453 shares of equity securities in a future financing meeting specified criteria (a “Qualified Financing”) (Note C). The 2013 Warrants allow the holders to purchase shares of the same class and series of equity securities issued in the Qualified Financing for an exercise price equal to the per share price paid by the purchasers of such equity securities in the Qualified Financing. When the Company entered into the Deerfield Facility Agreement, the 2013 Warrants became warrants to purchase 1,079,453 shares of Series D Preferred. Upon completion of the IPO, the 2013 Warrants automatically converted into warrants to purchase 143,466 shares of the Company’s common stock at an exercise price of $5.85 per share.  The 2013 Warrants, if unexercised, expire on the earlier of June 2, 2019, or upon a liquidation event.

8


 

On June 2, 2014, pursuant to the terms of the Deerfield Facility Agreement, the Company issued the Deerfield Warrant to purchase 14,423,076 shares of Series D Preferred (Note C). The Company recorded the fair value of the Deerfield Warrant as a debt discount and a warrant liability. The Deerfield Warrant, if unexercised, expires on the earlier of June 2, 2024, or upon a liquidation event. Upon completion of the IPO, the Deerfield Warrant automatically converted into a warrant to purchase 1,923,077 shares of the Company’s common stock at an exercise price of $5.85 per share.  The Company is amortizing the debt discount to interest expense over the term of the Term Notes and the Deerfield Convertible Notes.

The Company determined that the 2013 Warrants and Deerfield Warrant should be recorded as a liability and stated at fair value at each reporting period upon inception. As stated above, upon completion of the IPO, the 2013 Warrants and the Deerfield Warrant automatically converted into warrants to purchase the Company’s common stock.  The Company determined that the 2013 Warrants should be marked to fair value and reclassified to equity upon closing of the IPO.  The Deerfield Warrant remains classified as a liability and is recorded at fair value at each reporting period since it can be settled in cash.  Changes to the fair value of the warrant liability are recorded through the statements of operations as a fair value adjustment (Note H).

 

 

F. Common Stock and Warrants

Authorized, Issued, and Outstanding Common Shares

In April 2015, the Company amended and restated its Certificate of Incorporation to increase the number of its authorized shares of common stock to 250,000,000 shares. Of the authorized shares, 14,228,401 and 2,381,041 shares of common stock were issued and outstanding at June 30, 2015, and December 31, 2014, respectively.

At June 30, 2015 and December 31, 2014, the Company had reserved authorized shares of common stock for future issuance as follows:

 

 

 

June 30,

2015

 

 

December 31,

2014

 

Conversion of Series A Preferred

 

 

 

 

 

1,293,838

 

Conversion of Series B Preferred

 

 

 

 

 

829,234

 

Conversion of Series C Preferred

 

 

 

 

 

2,474,121

 

Conversion of Series D Preferred

 

 

 

 

 

967,359

 

Conversion of Series D-1 Preferred

 

 

 

 

 

 

Conversion of Deerfield Convertible Notes

 

 

1,896,843

 

 

 

1,808,353

 

Outstanding awards under Incentive Stock Plan

 

 

943,304

 

 

 

395,185

 

Outstanding common stock warrants

 

 

2,650,212

 

 

 

595,920

 

Outstanding Series D Preferred warrants

 

 

 

 

 

2,066,970

 

Possible future issuances under Incentive Stock Plan

 

 

1,857,498

 

 

 

365,706

 

Total common shares reserved for future issuance

 

 

7,347,857

 

 

 

10,796,686

 

 

Common Stock Activity

The following table summarizes common stock activity for the six months ended June 30, 2015:

 

 

 

Shares of

Common Stock

 

Beginning balance at December 31, 2014

 

 

2,381,041

 

Issuance of common stock in connection with initial

   public offering

 

 

5,854,545

 

Conversion of preferred stock to common stock in

   connection with initial public offering

 

 

5,980,564

 

Common stock warrants exercised

 

 

12,251

 

Ending balance at June 30, 2015

 

 

14,228,401

 

 

The Company calculates the fair value of common stock warrants using a Monte Carlo simulation. There were warrants exercised for an aggregate of 12,251 shares of common stock during the six months ended June 30, 2015, and there were no warrants exercised in the six months ended June 30, 2014. From 2008 through 2012, the Company issued warrants to purchase 595,920 shares of common stock in its private placement offerings of Series A Preferred, Series B Preferred and Series C Preferred (the “Underwriter Warrants”) and for leasing laboratory space. The Company accounted for the Underwriter Warrants as a derivative liability, which is adjusted to fair value at each reporting period, with the change in fair value recorded within other expenses in the Statement of Operations.

9


 

 

 

G. Stock-Based Compensation

The Company has a share-based compensation plan (the “Incentive Stock Plan,” or the “Plan”) that is designed to allow the Company to attract and retain highly qualified employees and directors. In July 2014, the Company’s Incentive Stock Plan was revised to increase the maximum number of shares issuable under the Plan from 666,666 to 800,000. No stock options were exercised during the three and six months ended June 30, 2015 or 2014, respectively.

In November 2014, the Company’ board of directors (the “Board”), and in April 2015, the Company’s stockholders, approved the Company’s 2014 Equity Incentive Plan (the “2014 Plan”) which became effective in April 2015, at which time the Incentive Stock Plan was terminated.  The 2014 Plan provides for the grant of stock options, other forms of equity compensation, and performance cash awards.  The maximum number of shares of common stock that may be issued under the 2014 Plan is 2,266,666.  In addition, the number of shares of common stock reserved for issuance under the 2014 Plan will automatically increase on January 1 of each year, beginning on January 1, 2016 and ending on and including January 1, 2024, by 4% of the total number of shares of the Company’s capital stock outstanding on December 31 of the preceding calendar year, or a lesser number of shares determined by the Board.

Stock-based compensation expense recorded under the Plan is included in the following line items in the accompanying statements of operations (in thousands):

 

 

Three Months Ended

June 30,

 

 

Six Months Ended

June 30,

 

 

2015

 

 

2014

 

 

2015

 

 

2014

 

Research and development

$

185

 

 

$

10

 

 

$

220

 

 

$

16

 

General and administrative

 

688

 

 

 

82

 

 

 

744

 

 

 

101

 

 

$

873

 

 

$

92

 

 

$

964

 

 

$

117

 

 

During the three and six months ended June 30, 2015, the Company recognized approximately $0.6 million and $0.7 million, respectively, of stock-based compensation expense related to performance-based awards included in general and administrative expenses and $0.2 million of stock-based compensation expense related to performance-based awards included in research and development expenses during the three and six months ended June 30, 2015.  These awards were in connection with the grant of fully vested stock options exercisable for an aggregate of 134,665 shares of common stock during the first quarter of 2015 and upon completion of the Company’s IPO during the second quarter of 2015.  The Company did not recognize any stock-based compensation expense related to performance-based incentive awards during the three and six months ended June 30, 2014, since the strategic initiatives set for the awards were not achieved or probable of achievement.

 

 

H. Fair Value of Financial Instruments

The carrying amounts of certain financial instruments, including cash and cash equivalents and accounts payable, approximate their respective fair values due to the short-term nature of such instruments. The carrying amount of the line of credit approximates fair value due to the variable interest rate in that instrument.

The fair value of the Deerfield Convertible Notes and the Term Notes was $39.4 million and $12.9 million, respectively, at June 30, 2015. Both the Deerfield Convertible Notes and the Term Notes fall within Level 3 of the fair value hierarchy as their value is based on the credit worthiness of the Company, which is an unobservable input.

10


 

Assets and Liabilities Measured at Fair Value on a Recurring Basis

The Company evaluates its financial assets and liabilities subject to fair value measurements on a recurring basis to determine the appropriate level in which to classify them for each reporting period. This determination requires significant judgments to be made. The following table summarizes the conclusions reached regarding fair value measurements as of June 30, 2015, and December 31, 2014 (in thousands):

 

 

 

Balance at

June 30, 2015

 

 

Quoted Prices

in Active

Markets for

Identical

Assets

(Level 1)

 

 

Significant

Other

Observable

Inputs

(Level 2)

 

 

Significant

Unobservable

Inputs

(Level 3)

 

Underwriter Warrant liability

 

$

7,429

 

 

$

 

 

$

 

 

$

7,429

 

2013 Warrant liability

 

 

 

 

 

 

 

 

 

 

 

 

Deerfield Warrant liability

 

 

30,630

 

 

 

 

 

 

 

 

 

 

 

30,630

 

Embedded Put Option

 

 

1,220

 

 

 

 

 

 

 

 

 

1,220

 

 

 

$

39,279

 

 

$

 

 

$

 

 

$

39,279

 

 

 

 

Balance at

December 31,

2014

 

 

Quoted Prices

in Active

Markets for

Identical

Assets

(Level 1)

 

 

Significant

Other

Observable

Inputs

(Level 2)

 

 

Significant

Unobservable

Inputs

(Level 3)

 

Underwriter Warrant liability

 

$

2,746

 

 

$

 

 

$

 

 

$

2,746

 

2013 Warrant liability

 

 

520

 

 

 

 

 

 

 

 

 

520

 

Deerfield Warrant liability

 

 

12,560

 

 

 

 

 

 

 

 

 

12,560

 

Embedded Put Option

 

 

140

 

 

 

 

 

 

 

 

 

140

 

 

 

$

15,966

 

 

$

 

 

$

 

 

$

15,966

 

 

The Company’s Underwriter Warrant liability, Deerfield Warrant liability, and the embedded Put Option on the Deerfield Warrant are measured at fair value on a recurring basis.  The 2013 Warrant liability was recorded at fair value on a recurring basis through the completion of the IPO.  As of June 30, 2015 and December 31, 2014, the Underwriter Warrant liability, the Deerfield Warrant liability and the embedded Put Option are reported on the balance sheet in derivative and warrant liability.  As of December 31, 2014, the 2013 Warrant liability was reported on the balance sheet in derivative and warrant liability.  Upon closing of the IPO in April 2015, the 2013 Warrant liability was marked to fair value and then reclassified to equity.  The Company used a Monte Carlo simulation to value the Underwriter Warrant liability and the embedded Put Option at June 30, 2015 and December 31, 2014.  The Company used a Monte Carlo simulation to value the 2013 Warrant liability as of December 31, 2014, and the closing date of the IPO.  Significant unobservable inputs used in measuring the fair value of these financial instruments included the Company’s estimated enterprise value, an estimate of the timing of a liquidity event, a present value discount rate, a risk-free rate of interest and an estimate of the Company’s stock volatility using the volatilities of guideline peer companies.  Changes in the fair value of the Underwriter Warrant liability, the 2013 Warrant liability, the Deerfield Warrant liability and the embedded Put Option are reflected in the statements of operations as a fair value adjustment. A 10% increase in the enterprise value would result in an increase of approximately $1.0 million in the estimated fair value of the Underwriter Warrant liability, an increase of approximately $3.4 million in the estimated fair value of the Deerfield Warrant liability, and no change in the estimated fair value of the embedded Put Option at June 30, 2015.

A reconciliation of the beginning and ending balances for the derivative and warrant liability measured at fair value on a recurring basis using significant unobservable inputs (Level 3) is as follows (in thousands):

 

 

Three Months Ended

June 30,

 

 

Six Months Ended

June 30,

 

 

2015

 

 

2014

 

 

2015

 

 

2014

 

Balance at beginning of period

$

17,728

 

 

$

3,055

 

 

$

15,966

 

 

$

2,813

 

Issuance of Deerfield Warrant

 

 

 

 

7,610

 

 

 

 

 

 

7,610

 

Embedded Put Option

 

 

 

 

220

 

 

 

 

 

 

220

 

Conversion of 2013 Convertible Notes

 

 

 

 

(1,900

)

 

 

 

 

 

(1,900

)

Reclassification of 2013 Warrants to equity

 

(1,110

)

 

 

 

 

 

(1,110

)

 

 

 

Adjustment to fair value

 

22,661

 

 

 

1,570

 

 

 

24,423

 

 

 

1,812

 

Balance at end of period

$

39,279

 

 

$

10,555

 

 

$

39,27 9

 

 

$

10,555

 

 

 

11


 

I. Net Loss Per Share

Under the two-class method, for periods with net income, basic net income per common share is computed by dividing the net income attributable to common stockholders by the weighted average number of shares of common stock outstanding during the period. Net income attributable to common stockholders is computed by subtracting from net income the portion of current year earnings that participating securities would have been entitled to receive pursuant to their dividend rights had all of the year’s earnings been distributed. No such adjustment to earnings is made during periods with a net loss as the holders of the participating securities have no obligation to fund losses. Diluted net loss per common share is computed under the two-class method by using the weighted average number of shares of common stock outstanding plus, for periods with net income attributable to common stockholders, the potential dilutive effects of stock options and warrants. In addition, the Company analyzes the potential dilutive effect of the outstanding participating securities under the if-converted method when calculating diluted earnings per share in which it is assumed that the outstanding participating securities convert or reclassified into common stock at the beginning of the period. The Company reports the more dilutive of the approaches (two-class or if-converted) as its diluted net income per share during the period. Due to the existence of net losses for the three and six month periods ended June 30, 2015 and 2014, basic and diluted loss per share were the same, as the effect of potentially dilutive securities would have been anti-dilutive.

The following securities, presented on a common stock equivalent basis, have been excluded from the calculation of weighted average common shares outstanding because their effect is anti-dilutive:

 

 

 

Three and Six Months Ended

June 30,

 

 

 

2015

 

 

2014

 

Redeemable convertible preferred stock:

 

 

 

 

 

 

 

 

Series A

 

 

 

 

 

1,293,838

 

Series B

 

 

 

 

 

829,234

 

Series C

 

 

 

 

 

2,474,121

 

Series D

 

 

 

 

 

967,359

 

Series D-1

 

 

 

 

 

 

Total redeemable convertible preferred stock

 

 

 

 

 

5,564,552

 

Warrants to purchase common stock

 

 

2,650,212

 

 

 

596,103

 

Deerfield warrant to purchase Series D Preferred Stock

 

 

 

 

 

1,923,077

 

Warrants to purchase Series D Preferred Stock

 

 

 

 

 

143,500

 

Awards under Incentive Stock Plan

 

 

943,304

 

 

 

318,000

 

2013 Convertible Notes

 

 

 

 

 

727,186

 

Deerfield Convertible Notes

 

 

1,896,843

 

 

 

1,722,644

 

Total

 

 

5,490,359

 

 

 

10,995,062

 

 

 


12


 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations.

You should read the following discussion and analysis of our financial condition and results of operations in conjunction with our unaudited condensed financial statements and related notes included in Part I, Item 1 of this report. This discussion and other parts of this report contain forward-looking statements that involve risks and uncertainties, such as statements of our plans, objectives, expectations and intentions. Our actual results could differ materially from those discussed in these forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those discussed in the section of this report entitled “Risk factors.”

Unless the context otherwise requires, we use the terms “KemPharm,” “company,” “we,” “us” and “our” in this report to refer to KemPharm, Inc.

Forward-Looking Statements

This discussion contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements are identified by words such as “believe,” “will,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “expect,” “predict,” “could,” “potentially” or the negative of these terms or similar expressions. You should read these statements carefully because they discuss future expectations, contain projections of future results of operations or financial condition, or state other “forward-looking” information. These statements relate to our future plans, objectives, expectations, intentions and financial performance and the assumptions that underlie these statements. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those anticipated in the forward-looking statements. Factors that might cause such a difference include, but are not limited to, those discussed in this report in Part II, Item 1A — “Risk Factors,” and elsewhere in this report. Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. These statements, like all statements in this report, speak only as of their date, and we undertake no obligation to update or revise these statements in light of future developments. We caution investors that our business and financial performance are subject to substantial risks and uncertainties.

Overview

We are a clinical-stage specialty pharmaceutical company engaged in the discovery and development of proprietary prodrugs that we believe will be improved versions of widely prescribed, approved drugs. We employ our Ligand Activated Therapy, or LAT, platform technology to create our prodrugs, which in some cases may be eligible for composition-of-matter patent protection. Our most advanced product candidate is KP201/APAP which consists of KP201, the company’s prodrug of hydrocodone, formulated in combination with acetaminophen, or APAP. We are developing KP201/APAP as an immediate release, or IR, Hydrocodone product candidate for the treatment of acute moderate to moderately severe pain. We intend to submit a new drug application, or NDA, under 505(b)(2) of the Federal Food, Drug and Cosmetic Act, or Section 505(b)(2), for KP201/APAP to the U.S. Food and Drug Administration, or the FDA, in the fourth quarter of 2015. We are also building a pipeline of additional prodrug product candidates that target large market opportunities in pain, attention deficit hyperactivity disorder, or ADHD, and other central nervous system indications. We own worldwide commercial rights for all of our product candidates, including KP201/APAP, except that Shire Pharmaceuticals, LLC, or Shire, has a right of first refusal to acquire, license or commercialize our prodrug of methylphenidate, which we are developing for the treatment of ADHD, KP415.  

We are a development stage company and have not generated any revenue. We have incurred losses since our inception and, as of June 30, 2015, had an accumulated deficit of $85.9 million. Our net losses for the six months ended June 30, 2015 and 2014 were $35.7 million and $5.5 million, respectively.

We expect to continue to incur significant expenses and increasing operating losses for the foreseeable future, which may fluctuate significantly from quarter-to-quarter and year-to-year.

Our commercial revenue, if any, will be derived from sales of prodrug products that we do not expect to be commercially available for several years, if at all. Accordingly, we will need to continue to rely on additional financing to achieve our business objectives. Adequate additional financing may not be available to us on acceptable terms, or at all. To the extent that we raise additional capital through the sale of equity or convertible debt securities, or exercise our right to borrow additional tranches under our $60 million facility agreement, dated as of June 2, 2014, or the Deerfield Facility Agreement, with Deerfield Private Design Fund III, LP, or Deerfield, the terms of these securities or this debt may restrict our ability to operate. If we raise additional funds through collaborations, strategic alliances or marketing, distribution or licensing arrangements with third parties, we may be required to relinquish valuable rights. If we are unable to raise capital when needed or on attractive terms, we could be forced to delay, reduce or altogether cease our research and development programs or future commercialization efforts.

13


 

Third-Party Agreements

In November 2009, we entered into a supply agreement with Johnson Matthey Inc., or JMI, pursuant to which JMI has agreed to supply us with all of the KP201 necessary for clinical trials and commercial sale for a price equal to JMI’s manufacturing cost and to provide process optimization and development services for KP201. In exchange, we issued shares of our common stock to JMI, provided that the commercial supply arrangement for KP201 would be exclusive to JMI in the United States and agreed to pay JMI royalties on the net sales of KP201/APAP, if approved by the FDA. The percentage royalty rate ranges from the high teens at low volumes to the mid-single digits at higher volumes.

We are responsible for all costs of any KP201 manufactured during a specified validation process for KP201. After completion of the validation process, but prior to the commercial launch of KP201, JMI will manufacture the registration batches of KP201 at a price to be negotiated. Failure to agree upon this pricing would result in JMI supplying the registration batches to us free of charge and we would pay JMI an additional royalty payment on such batches. The percentage royalty rate ranges from the low teens at low volumes to the low single digits at higher volumes. After the commercial launch of KP201/APAP, JMI will manufacture and supply KP201 at a price equal to JMI’s fully allocated manufacturing cost.

We must purchase all of our U.S. KP201 needs from JMI and JMI cannot supply KP201 to other companies. After the commercial launch of KP201, JMI is required to identify a secondary manufacturing site and qualify and validate that site for the production of KP201.

The term of the supply agreement extends as long as we hold a valid and enforceable patent for KP201 or until the tenth anniversary of KP201’s commercial launch, whichever date is later. Upon the expiration of such term, the agreement will automatically renew for a period of two years unless either party provides 12 months prior notice of its intent not to renew.

Under our March 2012 asset purchase agreement with Shire, Shire has a right of first refusal to acquire, license or commercialize KP415.

Under our March 2012 termination agreement with MonoSol Rx, LLC, or MonoSol, MonoSol has the right to receive an amount equal to a percentage in the low teens of any value generated by KP415, and any product candidates arising therefrom, including royalty payments on any license of KP415, the sale of KP415 to a third party, the commercialization of KP415 and the portion of any consideration that is attributable to the value of KP415 and paid to us or our stockholders in a change of control transaction.

Prior to January 1, 2012, our research and development costs were split between two of our product candidates, KP106 and KP201/APAP. Early in 2012, we sold our rights to KP106, and for the year ended December 31, 2012 and all subsequent periods, substantially all of our research and development expenses related to the development of our product candidate KP201/APAP.

We plan to increase our research and development expenses for the foreseeable future as we continue our effort to develop KP201/APAP and to further advance the development of our other product candidates, subject to the availability of additional funding.

The successful development of product candidates is highly uncertain. At this time, we cannot reasonably estimate the nature, timing or costs required to complete the remaining development of any product candidates. This is due to the numerous risks and uncertainties associated with the development of product candidates.

14


 

Results of Operations

Comparison of the Three Months Ended June 30, 2015 and 2014 (in thousands):

 

 

 

Three Months Ended June 30,

 

 

Period-to-

 

 

 

2015

 

 

2014

 

 

Period Change

 

Revenue

 

$

 

 

$

 

 

$

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

Research and development

 

 

2,768

 

 

 

1,715

 

 

 

1,053

 

General and administrative

 

 

3,188

 

 

 

1,330

 

 

 

1,858

 

Total operating expenses

 

 

5,956

 

 

 

3,045

 

 

 

2,911

 

Loss from operations

 

 

(5,956

)

 

 

(3,045

)

 

 

(2,911

)

Other income (expenses):

 

 

 

 

 

 

 

 

 

 

 

 

Gain on extinguishment of debt

 

 

 

 

 

1,900

 

 

 

(1,900

)

Amortization of debt discount

 

 

(477

)

 

 

(159

)

 

 

(318

)

Interest expense

 

 

(649

)

 

 

(704

)

 

 

55

 

Fair value adjustment

 

 

(22,661

)

 

 

(1,570

)

 

 

(21,091

)

Total other expenses

 

 

(23,787

)

 

 

(533

)

 

 

(23,254

)

Loss before income taxes

 

 

(29,743

)

 

 

(3,578

)

 

 

(26,165

)

Income tax (expense) benefit

 

 

 

 

 

6

 

 

 

(6

)

Net loss

 

$

(29,743

)

 

$

(3,572

)

 

$

(26,171

)

 

Research and Development

Research and development expenses increased by $1.1 million, from $1.7 million for the three months ended June 30, 2014 to $2.8 million for the three months ended June 30, 2015. This increase was primarily attributable to a $0.4 million increase in salaries and personnel-related costs due to increased headcount, a $0.4 million increase in contracted third-party research and development spending on KP201/APAP, and a $0.2 million increase in stock-based compensation expense related to the vesting of performance-based awards upon completion of our initial public offering, or IPO, during the three months ended June 30, 2015.

General and Administrative

General and administrative expenses increased by $1.9 million, from $1.3 million for the three months ended June 30, 2014, to $3.2 million for the three months ended June 30, 2015.  This increase was primarily attributable to a $1.0 million increase in salaries and personnel-related costs due to increased headcount, a $0.6 million increase in stock-based compensation expense related to stock option awards upon completion of our IPO, and a $0.3 million increase in accounting expenses, professional fees and legal fees primarily related to our IPO.

Other Expenses

Other expenses increased by $23.3 million, from $0.5 million for the three months ended June 30, 2014, to $23.8 million for the three months ended June 30, 2015.  This change was primarily attributable to a $21.1 million increase in the fair value adjustment related to our derivative and warrant liability, and a $1.9 million decrease in the gain from extinguishment of debt recognized in the second quarter of 2014 and related to the conversion of the 2013 Convertible Notes.

15


 

Comparison of the Six Months Ended June 30, 2015 and 2014 (in thousands):

 

 

 

Six Months Ended June 30,

 

 

Period-to-

 

 

 

2015

 

 

2014

 

 

Period Change

 

Revenue

 

$

 

 

$

 

 

$

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

Research and development

 

 

4,887

 

 

 

2,752