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UNITED STATESSECURITIES AND ExCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)☒☒ QUARTERLY REpORT pURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES ExCHANGE ACT OF 1934
For the quarterly period ended September 30, 2017
or
☐☐ TRANSITION REpORT pURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES ExCHANGE ACT OF 1934For the transition period from: to
Commission File Number 000-21937
CERUS CORpORATION(Exact name of registrant as specified in its charter)
Delaware 68-0262011(State or other jurisdiction ofincorporation or organization)
(I.R.S. EmployerIdentification No.)
2550 Stanwell Dr.Concord, California
94520
(Address of principal executive offices) (Zip Code)
(925) 288-6000(Registrant’s telephone number, including area code)
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 thepreceding 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 90days. YES ☒ NO ☐
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 submittedand posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submitand post such files). YES ☒ NO ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growthcompany. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ Accelerated filer ☒
Non-accelerated filer ☐ (Do not check if a smaller reporting company) Smaller reporting company ☐
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revisedfinancial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES ☐ NO ☒
As of October 26, 2017, there were 114,086,442 shares of the registrant’s common stock outstanding.
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CERUS CORpORATION
QUARTERLY REpORT ON FORM 10-Q
THREE AND NINE MONTHS ENDED SEpTEMBER 30, 2017
TABLE OF CONTENTS pART I FINANCIAL INFORMATION
Item 1. Financial Statements 3 Unaudited Condensed Consolidated Balance Sheets – September 30, 2017 and December 31, 2016 3 Unaudited Condensed Consolidated Statements of Operations – Three and nine months ended September 30, 2017 and 2016 4 Unaudited Condensed Consolidated Statements of Comprehensive Loss – Three and nine months ended September 30, 2017 and 2016 5 Unaudited Condensed Consolidated Statements of Cash Flows – Nine months ended September 30, 2017 and 2016 6 Notes to Unaudited Condensed Consolidated Financial Statements 7
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 23Item 3. Quantitative and Qualitative Disclosures About Market Risk 35Item 4. Controls and Procedures 35
pART II OTHER INFORMATION
Item 1. Legal Proceedings 35Item 1A. Risk Factors 35Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 67Item 3. Defaults Upon Senior Securities 67Item 4. Mine Safety Disclosures 67Item 5. Other Information 67Item 6. Exhibits 68
SIGNATURES 70
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pART I: FINANCI AL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CERUS CORpORATION
CONDENSED CONSOLIDATED BALANCE SHEETS(in thousands)
September 30, December 31, 2017 2016 (Unaudited)
ASSETS Current assets:
Cash and cash equivalents $ 16,985 $ 22,560 Short-term investments 42,645 45,116 Investment in marketable equity securities — 3,952 Accounts receivable 10,476 6,868 Inventories 14,250 12,531 Other current assets 4,078 3,078
Total current assets 88,434 94,105 Non-current assets:
Property and equipment, net 2,342 2,985 Goodwill 1,316 1,316 Intangible assets, net 587 738 Restricted cash 256 184 Other assets 4,151 4,148
Total assets $ 97,086 $ 103,476
LIABILITIES AND STOCkHOLDERS' EQUITY Current liabilities:
Accounts payable $ 12,501 $ 8,587 Accrued liabilities 10,681 11,218 Debt - current — 6,934 Deferred product revenue - current 686 149
Total current liabilities 23,868 26,888 Non-current liabilities:
Debt - non-current 29,780 12,441 Manufacturing and development obligations - non-current 5,623 4,770 Other non-current liabilities 632 1,590
Total liabilities 59,903 45,689 Commitments and contingencies Stockholders' equity:
Common stock 112 103 Additional paid-in capital 746,916 718,299 Accumulated other comprehensive (loss) income (28) 103 Accumulated deficit (709,817) (660,718)
Total stockholders' equity 37,183 57,787 Total liabilities and stockholders' equity $ 97,086 $ 103,476
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
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CERUS CORpORATION
CONDENSED CONSOLIDATED STATEMENTS OF OpERATIONSUNAUDITED
(in thousands, except per share data)
Three Months Ended Nine Months Ended September 30, September 30, 2017 2016 2017 2016
Product revenue $ 10,797 $ 10,175 $ 27,328 $ 27,058 Cost of product revenue 5,348 5,451 13,402 14,690
Gross profit on product revenue 5,449 4,724 13,926 12,368 Government contracts revenue 2,285 261 5,380 261 Operating expenses:
Research and development 7,886 7,033 25,927 22,507 Selling, general and administrative 12,180 12,161 39,907 36,314 Amortization of intangible assets 50 50 151 151
Total operating expenses 20,116 19,244 65,985 58,972 Loss from operations (12,382) (14,259) (46,679) (46,343)Non-operating (expense) income, net:
Foreign exchange loss — (61) (59) (77)Interest expense (1,090) (586) (2,122) (1,899)Other income, net 104 114 3,722 293
Total non-operating (expense) income, net (986) (533) 1,541 (1,683)Loss before income taxes (13,368) (14,792) (45,138) (48,026)Provision (benefit) for income taxes 50 (416) 3,961 1,379 Net loss $ (13,418) $ (14,376) $ (49,099) $ (49,405)
Net loss per share: Basic $ (0.12) $ (0.14) $ (0.46) $ (0.49)Diluted $ (0.12) $ (0.14) $ (0.46) $ (0.49)
Weighted average shares outstanding used for calculating net loss per share:
Basic 109,846 102,769 106,159 101,273 Diluted 109,846 102,769 106,159 101,273
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
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CERUS CORpORATION
CONDENSED CONSOLIDATED STATEMENTS OF COMpREHENSIvE LOSSUNAUDITED(in thousands)
Three Months Ended Nine Months Ended September 30, September 30, 2017 2016 2017 2016
Net loss $ (13,418) $ (14,376) $ (49,099) $ (49,405)Other comprehensive (losses) gains:
Unrealized (losses) gains on available-for-sale investments, net of taxes of zero and $137 forthe three months ended September 30, 2017 and 2016, respectively, and zero and $(2,126) forthe nine months ended September 30, 2017 and 2016, respectively (9) 260 (131) (4,051)
Comprehensive loss $ (13,427) $ (14,116) $ (49,230) $ (53,456)
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
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CERUS CORpORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWSUNAUDITED(in thousands)
Nine Months Ended September 30, 2017 2016
Operating activities Net loss $ (49,099) $ (49,405)Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization 1,359 1,394 Stock-based compensation 7,008 5,966 Non-cash interest expense 282 820 Deferred income taxes 19 18 Non-cash tax expense from other unrealized loss on available-for-sale securities 3,825 1,246 Gain on sale of investment in marketable equity securities (3,466) — Changes in operating assets and liabilities: Accounts receivable (3,608) (1,647)Inventories (1,800) (1,432)Other assets (379) 354 Accounts payable 4,022 1,562 Accrued liabilities and other non-current liabilities (1,477) 258 Manufacturing and development obligations 600 (3,258)Deferred product revenue 514 306
Net cash used in operating activities (42,200) (43,818)Investing activities
Capital expenditures (354) (359)Purchases of investments (50,183) (71,760)Proceeds from maturities and sale of investments 55,566 33,500
Net cash provided by (used in) investing activities 5,029 (38,619)Financing activities
Net proceeds from equity incentives 2,421 2,710 Net proceeds from public offering 18,840 22,146 Proceeds from loans 30,000 — Repayment of debt (19,593) (591)
Net cash provided by financing activities 31,668 24,265 Net decrease in cash, cash equivalents and restricted cash (5,503) (58,172)Cash, cash equivalents and restricted cash, beginning of period 22,744 71,630
Cash, cash equivalents and restricted cash, end of period $ 17,241 $ 13,458
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
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CERUS CORpORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTSUNAUDITED
Note 1. Summary of Significant Accounting policies
principles of Consolidation and Basis of presentation
The accompanying unaudited condensed consolidated financial statements include those of Cerus Corporation and its subsidiary, Cerus Europe B.V. (together with CerusCorporation, hereinafter “Cerus” or the “Company”) after elimination of all intercompany accounts and transactions. These unaudited condensed consolidated financial statementshave been prepared in accordance with accounting principles generally accepted in the United States of America, or U.S. (“GAAP”) for interim financial information and pursuantto the rules and regulations of the Securities and Exchange Commission (“SEC”). Accordingly, they do not include all of the information and footnotes required by GAAP forcomplete financial statements. In the opinion of management, all adjustments, consisting of normal recurring entries, considered necessary for a fair presentation have been made.Operating results for the three and nine months ended September 30, 2017, are not necessarily indicative of the results that may be expected for the year ending December 31, 2017,or for any future periods.
These unaudited condensed consolidated financial statements and notes thereto should be read in conjunction with the Company’s audited consolidated financial statements andnotes thereto for the year ended December 31, 2016, which were included in the Company’s 2016 Annual Report on Form 10-K, filed with the SEC on March 8, 2017. Theaccompanying condensed consolidated balance sheet as of December 31, 2016, has been derived from the Company’s audited consolidated financial statements as of that date .
Use of Estimates
The preparation of financial statements requires management to make estimates, assumptions and judgments that affect the reported amounts of assets, liabilities, revenue andexpenses, and related disclosures of contingent assets and liabilities. On an ongoing basis, management evaluates its estimates, including those related to the accounts receivable,inventory reserves, fair values of investments, stock-based compensation, intangible assets and goodwill, useful lives of intangible assets and property and equipment, incometaxes, and accrued liabilities, among others. The Company bases its estimates on historical experience, future projections, and on various other assumptions that are believed to bereasonable under the circumstances. Actual results may differ from those estimates under different assumptions or conditions.
Revenue
The Company recognizes revenue in accordance with Accounting Standards Codification (“ASC”) Topic 605-25, “Revenue Recognition – Arrangements with MultipleDeliverables,” as applicable. Revenue is recognized when (i) persuasive evidence of the arrangement exists; (ii) delivery has occurred or services have been rendered; (iii) pricingis fixed or determinable; and (iv) collectability is reasonably assured. The Company’s main sources of revenues for the three and nine months ended September 30, 2017 and 2016were product revenue from sales of the INTERCEPT Blood System for platelets and plasma (“platelet and plasma systems” or “disposable kits”) and UVA illumination devices(“illuminators”).
Revenue related to product sales is generally recognized when the Company fulfills its obligations for each element of an agreement. For all sales of the Company’s INTERCEPTBlood System products, the Company uses a binding purchase order or signed sales contract as evidence of an arrangement. The Company sells its platelet and plasma systemsdirectly to blood banks, hospitals, universities, government agencies, as well as to distributors in certain regions. Generally, the Company’s contracts with its customers do notprovide for open return rights, except within a reasonable time after receipt of goods in the case of defective or non-conforming product. Deliverables and the units of accountingvary according to the provisions of each purchase order or sales contract. For revenue arrangements with multiple elements, the Company determines whether the deliveredelements meet the criteria as separate units of accounting. Such criteria require that the deliverable have stand-alone value to the customer and that if a general right of return existsrelative to the delivered item, delivery or performance of the undelivered item(s) is considered probable and substantially in the control of the Company. Once the Companydetermines if the deliverable meets the criteria for a separate unit of accounting, the Company must determine how the consideration should be allocated between the deliverablesand how the separate units of accounting should be recognized as revenue. Consideration received is allocated to elements that are identified as discrete units of accounting.Because the Company has no vendor specific objective evidence or third party evidence for its systems due to the Company’s variability in its pricing across the regions into whichit sells its products, the allocation of product revenue is based on best estimated selling price for the products sold. The objective of best estimated selling price is to determine theprice at which the Company would transact a sale, had the product been sold on a stand-alone basis. The Company determines best estimated selling price for its systems byconsidering multiple factors. The Company regularly reviews best estimated selling price.
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The Company receives reimbursement under its U.S. government contract that supports research and development of defined projects. The contract generally provides forreimbursement of approved costs incurred under the terms of the contract. Revenue related to the cost reimbursement provisions under the Company’s U.S. government contract arerecognized as the qualified direct and indirect costs on the projects are incurred. The Company invoices under its U.S. government contract using the provisional rates in thegovernment contract and thus is subject to future audits at the discretion of government. These audits could result in an adjustment to revenue previously reported, whichadjustments potentially could be significant. The Company believes that revenue for periods not yet audited has been recorded in amounts that are expected to be realized uponfinal audit and settlement. Costs incurred related to services performed under the contract are included as a component of research and development or selling, g eneral andadministrative expenses in the Company’s consolidated statements of operations. The Company’s use of estimates in recording accrued liabilities for government contract activities(see “Use of Estimates” above) affects the revenue recorded from d evelopment funding and under the government contract.
Research and Development Expenses
In accordance with ASC Topic 730, “Accounting for Research and Development Expenses,” research and development (“R&D”) expenses are charged to expense when incurred,including cost incurred pursuant to the terms of any contract that has been awarded to the Company by the U.S. government. Research and development expenses include salariesand related expenses for scientific and regulatory personnel, payments to consultants, supplies and chemicals used in in-house laboratories, costs of R&D facilities, depreciation ofequipment and external contract research expenses, including clinical trials, preclinical safety studies, other laboratory studies, process development and product manufacturing forresearch use.
The Company’s use of estimates in recording accrued liabilities for R&D activities (see “Use of Estimates” above) affects the amounts of R&D expenses recorded fromdevelopment funding and under the government contract. Actual results may differ from those estimates under different assumptions or conditions.
Cash Equivalents
The Company considers all highly liquid investments with original maturities of three months or less from the date of purchase to be classified as cash equivalents. Theseinvestments primarily consist of money market instruments, and are classified as available-for-sale.
Investments
Investments with original maturities of greater than three months primarily include corporate debt and U.S. government agency securities are designated as available-for-sale andclassified as short-term investments or investment in marketable equity securities, in accordance with ASC Topic 320, “ Accounting for Certain Investments in Debt and EquitySecurities ”. Available-for-sale securities are carried at estimated fair value. The Company views its available-for-sale portfolio as available for use in its current operations.Unrealized gains and losses derived by changes in the estimated fair value of available-for-sale securities were recorded in “Net unrealized (losses) gains on available-for-saleinvestments, net of taxes” on the Company’s unaudited condensed consolidated statements of comprehensive loss. Realized gains (losses) from the sale of available-for-sale investments were recorded in “Other income, net” on the Company’s unaudited condensed consolidated statements of operations. The costs of securities sold are based on thespecific identification method, if applicable. The Company reported the amortization of any premium and accretion of any discount resulting from the purchase of debt securities asa component of interest income.
The Company also reviews its available-for-sale securities on a regular basis to evaluate whether any security has experienced an other-than-temporary decline in fair value. Other-than-temporary declines in market value, if any, are recorded in “Other income, net” on the Company’s unaudited condensed consolidated statements of operations.
Restricted Cash
As of September 30, 2017 and December 31, 2016, the Company had certain non-U.S. dollar denominated deposits recorded as “Restricted cash” in compliance with certainforeign contractual requirements.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash equivalents, available-for-sale securities and accountsreceivable.
Pursuant to the Company’s investment policy, substantially all of the Company’s cash, cash equivalents and available-for-sale securities are maintained at major financialinstitutions of high credit standing. The Company monitors the financial credit worthiness of the issuers of its investments and limits the concentration in individual securities andtypes of investments that exist within its investment portfolio. Generally, all of the Company’s investments carry high credit quality ratings, which is in accordance with its
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investment policy. At September 30, 2017 , the Company does not believe there is significant financial risk from non -performance by the issuers of the Company’s cashequivalents and short-term investments.
Concentrations of credit risk with respect to trade receivables exist. On a regular basis, including at the time of sale, the Company performs credit evaluations of its significantcustomers that it expects to sell to on credit terms. Generally, the Company does not require collateral from its customers to secure accounts receivable. To the extent that theCompany determines specific invoices or customer accounts may be uncollectible, the Company establishes an allowance for doubtful accounts against the accounts receivable onits unaudited condensed consolidated balance sheets and records a charge on its unaudited condensed consolidated statements of operations as a component of selling, general andadministrative expenses.
The Company had two and three customers that accounted for more than 10% of the Company’s outstanding trade receivables at September 30, 2017 and December 31, 2016,respectively. These customers cumulatively represented approximately 42% and 46% of the Company’s outstanding trade receivables at September 30, 2017 and December 31,2016, respectively. To date, the Company has not experienced collection difficulties from these customers.
Inventories
At September 30, 2017 and December 31, 2016, inventory consisted of work-in-process and finished goods only. Finished goods include INTERCEPT disposable kits, illuminators,and certain replacement parts for the illuminators. Platelet and plasma systems’ disposable kits generally have a two-year life from the date of manufacture. Illuminators andreplacement parts do not have regulated expiration dates. Work-in-process includes certain components that are manufactured over a protracted length of time before being sold to,and ultimately incorporated and assembled by Fresenius Kabi Deutschland GmbH or Fresenius, Inc. (with their affiliates, “Fresenius”) into the finished INTERCEPT disposablekits. The Company maintains an inventory balance based on its current sales projections, and at each reporting period, the Company evaluates whether its work-in-processinventory would be sold to Fresenius for production of finished units in order to sell to existing and prospective customers within the next twelve-month period. It is not customaryfor the Company’s production cycle for inventory to exceed twelve months. Instead, the Company uses its best judgment to factor in lead times for the production of its work-in-process and finished units to meet the Company’s forecasted demands. If actual results differ from those estimates, work-in-process inventory could potentially accumulate forperiods exceeding one year. At September 30, 2017 and December 31, 2016, the Company classified its work-in-process inventory as a current asset on its consolidated balancesheets based on its evaluation that the work-in-process inventory would be sold to Fresenius for finished disposable kit production within each respective subsequent twelve-monthperiod.
Inventory is recorded at the lower of cost, determined on a first-in, first-out basis, or net realizable value. The Company uses significant judgment to analyze and determine if thecomposition of its inventory is obsolete, slow-moving or unsalable and frequently reviews such determinations. The Company writes down specifically identified unusable,obsolete, slow-moving, or known unsalable inventory that has no alternative use in the period that it is first recognized by using a number of factors including product expirationdates, open and unfulfilled orders, and sales forecasts. Any write-down of its inventory to net realizable value establishes a new cost basis and will be maintained even if certaincircumstances suggest that the inventory is recoverable in subsequent periods. Costs associated with the write-down of inventory are recorded in “Cost of product revenue” on theCompany’s consolidated statements of operations. At both September 30, 2017 and December 31, 2016, the Company had $0.2 million recorded for potential obsolete, expiring orunsalable product.
property and Equipment, net
Property and equipment is comprised of furniture, equipment, leasehold improvements, construction-in-progress, information technology hardware and software and is recorded atcost. At the time the property and equipment is ready for its intended use, it is depreciated on a straight-line basis over the estimated useful lives of the assets (generally three to fiveyears). Leasehold improvements are amortized on a straight-line basis over the shorter of the lease term or the estimated useful lives of the improvements.
Goodwill and Intangible Assets, net
Intangible assets, net, which include a license for the right to commercialize the INTERCEPT Blood System in Asia, are subject to ratable amortization over the original estimateduseful life of ten years. The amortization of the Company’s intangible assets, net, is recorded in “Amortization of intangible assets” on the Company’s consolidated statements ofoperations. Goodwill is not amortized but instead is subject to an impairment test performed on an annual basis, or more frequently if events or changes in circumstances indicatethat goodwill may be impaired. Such impairment analysis is performed on August 31 of each fiscal year, or more frequently if indicators of impairment exist. The test for goodwillimpairment may be assessed using qualitative factors to determine whether it is more likely than not that the fair value of a reporting unit is less than the carrying amount. If theCompany determines that it is more likely than not that the fair value of a reporting unit is less than the carrying amount, the Company must then proceed with performing thequantitative goodwill impairment test. The Company may choose not to perform the qualitative assessment to test goodwill for
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impairment and proceed directly to the quantitative impairment test; however, the Company may revert to the qualitative assessment to test goodwill for impairment in anysubsequent period. The quantitative goodwill impairment test compares t he fair value of each reporting unit with its respective carrying amount, including goodwill. The Companyhas determined that it operates in one reporting unit and estimates the fair value of its one reporting unit using the enterprise approach under which it considers the quoted marketcapitalization of the Company as reported on the Nasdaq Global Market. The Company considers quoted market prices that are available in active markets to be the best evidenceof fair value. The Company also considers other f actors, which include future forecasted results, the economic environment and overall market conditions. If the fair value of thereporting unit exceeds its carrying amount, goodwill of the reporting unit is considered not impaired. If the carrying amount of the reporting unit’s goodwill exceeds the implied fairvalue of that goodwill, an impairment loss is recognized in an amount equal to that excess, limited to the carrying amount of goodwill in the Company’s one reporting unit .
The Company performs an impairment test on its intangible assets, in accordance ASC Topic 360-10, “Property, Plant and Equipment,” if certain events or changes incircumstances occur which indicate that the carrying amounts of its intangible assets may not be recoverable. If the intangible assets are not recoverable, an impairment loss wouldbe recognized by the Company based on the excess amount of the carrying value of the intangible assets over its fair value. For further details regarding the impairment analysis,reference is made to the section below under “Long-lived Assets.” See Note 4 in the Notes to Unaudited Condensed Consolidated Financial Statements for further informationregarding the Company’s impairment analysis and the valuation of goodwill and intangible assets, net.
Long-lived Assets
The Company evaluates its long-lived assets for impairment by continually monitoring events and changes in circumstances that could indicate carrying amounts of its long-livedassets may not be recoverable. When such events or changes in circumstances occur, the Company assesses recoverability by determining whether the carrying value of such assetswill be recovered through the undiscounted expected future cash flows. If the expected undiscounted future cash flows are less than the carrying amount of these assets, theCompany then measures the amount of the impairment loss based on the excess of the carrying amount over the fair value of the assets. The Company did not recognize impairmentcharges related to its long-lived assets during the three and nine months ended September 30, 2017 and 2016.
Foreign Currency Remeasurement
The functional currency of the Company’s foreign subsidiary is the U.S. dollar. Monetary assets and liabilities denominated in foreign currencies are remeasured in U.S. dollarsusing the exchange rates at the balance sheet date. Non-monetary assets and liabilities denominated in foreign currencies are remeasured in U.S. dollars using historical exchangerates. Product revenues and expenses are remeasured using average exchange rates prevailing during the period. Remeasurements are recorded in the Company’s consolidatedstatements of operations.
Stock-Based Compensation
The Company accounts for stock-based compensation in accordance with ASC Topic 718, Compensation - Stock Compensation. Stock-based compensation expense is measured atthe grant-date based on the fair value of the award and is recognized as expense on a straight-line basis over the requisite service period, which is the vesting period, and is adjustedfor estimated forfeitures. To the extent that stock options contain performance criteria for vesting, stock-based compensation is recognized once the performance criteria areprobable of being achieved.
For stock-based awards issued to non-employees, the Company follows ASC Topic 505-50, Equity Based Payment to Non-Employees and considers the measurement date at whichthe fair value of the stock-based award is measured to be the earlier of (i) the date at which a commitment for performance by the grantee to earn the equity instrument is reached or(ii) the date at which the grantee’s performance is complete. The Company recognizes stock-based compensation expense for the fair value of the vested portion of the non-employee stock-based awards in its consolidated statements of operations.
See Note 10 in the Notes to Unaudited Condensed Consolidated Financial Statements for further information regarding the Company’s stock-based compensation expenses.
Income Taxes
The Company accounts for income taxes using an asset and liability approach in accordance with ASC Topic 740, Accounting for Income Taxes . Under this method, deferred taxassets and liabilities are determined based on differences between the financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and lawsthat will be in effect when the differences are expected to reverse. ASC Topic 740 requires derecognition of tax positions that do not have a greater than 50% likelihood of beingrecognized upon review by a taxing authority having full knowledge of all relevant information. Use of a valuation allowance as described in ASC Topic 740 is not an appropriatesubstitute for derecognition of a tax position. The Company recognizes
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accrued interest and penalties related to unrecognized tax benefits in its income tax expense. To date, the Company has not recognized any interest and penalties in its unauditedcondensed consolidated statements of operations, nor has it accrued for or made payments for interest and penalties. Although the Company believes it more likely than not that ataxing authority would agree with its current tax positions, there can be no assurance that the tax positions the Company has taken wil l be substantiated by a taxing authority ifreviewed. The Company’s U.S. federal tax years 1998 through 2016 and California tax years through 2015 remain subject to examination by the taxing jurisdictions due tounutilized net operating losses and research credits. The Company continues to carry a full valuation allowance on all of its net deferred tax assets, except for its indefinite livedintangibles.
Net Loss per Share
Basic net loss per share is computed by dividing net loss by the weighted average number of common shares outstanding for the period. Diluted net loss per share gives effect to allpotentially dilutive common shares outstanding for the period. The potentially dilutive securities include stock options, employee stock purchase plan rights and restricted stockunits, which are calculated using the treasury stock method.
For the three and nine months ended September 30, 2017 and 2016, all potentially dilutive securities outstanding have been excluded from the computation of dilutive weightedaverage shares outstanding because such securities have an antidilutive impact due to losses reported. The table below presents shares underlying stock options, restricted stock units, and employee stock purchase plan rights that were excluded from the calculation of the weightedaverage number of shares outstanding used for the calculation of diluted net loss per share. These are excluded from the calculation due to their anti-dilutive effect for the three andnine months ended September 30, 2017 and 2016 (shares in thousands): Three Months Ended Nine Months Ended September 30, September 30,
2017 2016 2017 2016 Weighted average number of anti-dilutive potential shares:
Stock options 17,629 15,851 17,424 15,506 Restricted stock units 1,313 699 1,211 519 Employee stock purchase plan rights — 5 11 2
Total 18,942 16,555 18,646 16,027
Guarantee and Indemnification Arrangements
The Company recognizes the fair value for guarantee and indemnification arrangements issued or modified by the Company. In addition, the Company monitors the conditions thatare subject to the guarantees and indemnifications in order to identify if a loss has occurred. If the Company determines it is probable that a loss has occurred, then any suchestimable loss would be recognized under those guarantees and indemnifications. Some of the agreements that the Company is a party to contain provisions that indemnify thecounter party from damages and costs resulting from claims that the Company’s technology infringes the intellectual property rights of a third party or claims that the sale or use ofthe Company’s products have caused personal injury or other damage or loss. The Company has not received any such requests for indemnification under these provisions and hasnot been required to make material payments pursuant to these provisions.
The Company generally provides for a one-year warranty on certain of its INTERCEPT blood-safety products covering defects in materials and workmanship. The Companyaccrues costs associated with warranty obligations when claims become known and are estimable. The Company has not experienced significant or systemic warranty claims nor isit aware of any existing current warranty claims. Accordingly, the Company had not accrued for any future warranty costs for its products at September 30, 2017 and December 31,2016.
Fair value of Financial Instruments
The Company applies the provisions of fair value relating to its financial assets and liabilities. The carrying amounts of accounts receivables, accounts payable, and other accruedliabilities approximate their fair value due to the relative short-term maturities. Based on the borrowing rates currently available to the Company for loans with similar terms, theCompany believes the fair value of its debt approximates their carrying amounts. The Company measures and records certain financial assets and liabilities at fair value on arecurring basis, including its available-for-sale securities. The Company classifies instruments within Level 1 if quoted prices are available in active markets for identical assets,which include the Company’s cash accounts and money market funds. The Company classifies instruments in Level 2 if the instruments are valued using observable inputs toquoted market prices, benchmark yields, reported trades, broker/dealer quotes or alternative pricing sources with reasonable levels of price transparency. These instruments
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include the Company’s corporate debt and U.S. government agency securities holdings. The available-for- sale securities are held by a custodian who obtains investment pricesfrom a third party pricing provider that uses standard inputs (observable in the market) to models which vary by asset class. The Company classifies instruments in Level 3 if one ormore significant inputs or significant value drivers are unobservable. The Company assesses any transfers among fair value measurement levels at the end of each reporting period.
See Note 2 in the Notes to Unaudited Condensed Consolidated Financial Statements for further information regarding the Company’s valuation of financial instruments.
New Accounting pronouncements
In May 2014, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606), which provides a singlecomprehensive model for entities to use in accounting for revenue arising from contracts with customers and will supersede most current revenue recognition guidance. This ASUis based on the principle that revenue is recognized to depict the transfer of goods or services to customers in an amount that reflects the consideration to which the entity expects tobe entitled in exchange for those goods or services. The ASU also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arisingfrom customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. In March 2016, theFASB issued ASU No. 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net) , whichclarifies how to identify the unit of accounting for the principal versus agent evaluation and how to apply the control principle to certain types of arrangements. In April 2016, theFASB issued ASU No. 2016-10, Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing, which clarifies the implementationguidance on identifying performance obligations and licensing. In May 2016, the FASB issued ASU No. 2016-12, Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients, which addresses certain issues on assessing collectability, presentation of sales taxes, noncash consideration, and completedcontracts and contract modifications at transition. In December 2016, the FASB issued ASU No. 2016-20, Technical Corrections and Improvements to Topic 606, Revenue fromContracts with Customers, which makes technical corrections and improvements to the new revenue standard. These ASUs will be effective for the Company in the first quarter offiscal year 2018, using one of two retrospective application methods. The Company will adopt this ASU on January 1, 2018, using the modified retrospective approach. To date theCompany has primarily derived its revenues from product sales of its INTERCEPT Blood System and reimbursement under its U.S. government contract. The Company hascategorized its current revenue streams into homogenous populations based on the terms and conditions included in the contracts of its customers to date. The Company is currentlyin the process of finalizing the evaluation of the impact of the adoption to the Company’s financial statements, and is evaluating the accounting policies as well as the disclosurerequirements under the new standard. The Company will continue to monitor industry activities and any additional guidance provided by regulators, standards setters, or theaccounting profession as an ongoing component of its assessment and implementation plans. The Company currently anticipates that the adoption of ASU 2014-09 will not have amaterial impact on its consolidated financial statements.
In January 2016, the FASB issued ASU No. 2016-01, Financial Instruments-Overall (Subtopic 825-10) , which requires all equity investments to be measured at fair value withchanges in the fair value recognized through net income (other than those accounted for under equity method of accounting or those that result in consolidation of the investee). Theamendments also require an entity to present separately in other comprehensive income the portion of the total change in the fair value of a liability resulting from a change in theinstrument-specific credit risk when the entity has elected to measure the liability at fair value in accordance with the fair value option for financial instruments. In addition, thisASU eliminates the requirement to disclose the fair value of financial instruments measured at amortized cost for entities that are not public business entities and the requirement todisclose the method(s) and significant assumptions used to estimate the fair value that is required to be disclosed for financial instruments measured at amortized cost on thebalance sheet for public business entities. The standard is effective for annual periods beginning after December 15, 2017, and interim periods thereafter, with early applicationpermitted. The adoption of this ASU is not expected to have a material impact on the Company’s consolidated financial statements.
In February 2016, the FASB issued ASU No. 2016-02, Leases , which, for operating leases, requires a lessee to recognize a right-of-use asset and a lease liability, initially measuredat the present value of the lease payments, in its balance sheet. The standard also requires a lessee to recognize a single lease cost, calculated so that the cost of the lease is allocatedover the lease term, on a generally straight-line basis. The standard is effective for annual periods beginning after December 15, 2018, and interim periods thereafter, with earlyapplication permitted. The Company does not anticipate early adoption of the new standard and is currently assessing the future impact of this ASU on its consolidated financialstatements. The Company anticipates that the Company’s operating lease commitments will be subject to the new standard and be recognized as operating lease liabilities and right-of-use assets upon the adoption of this ASU, which will increase the Company’s total assets and total liabilities.
In March 2016, the FASB issued ASU No. 2016-09, Compensation-Stock Compensation (Topic 718) : Improvements to Employee Share-Based Payment Accounting , whichrequires entities to record all excess tax benefits and tax deficiencies as income tax expense
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or benefit in the income statement when awards vest or are settled, and eliminates additiona l paid-in capital pools. The ASU also changes the accounting for an employee’s use ofshares to satisfy the employer’s statutory income tax withholding obligation, and the accounting for forfeitures, and provides two practical expedients for nonpublic enti ties. TheCompany adopted this ASU in the first quarter of fiscal year 2017 and it did not have a significant impact on the Company’s consolidated financial statements.
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, which requiresmeasurement and recognition of expected credit losses for financial assets held. The standard is effective for annual periods beginning after December 15, 2019, and interim periodsthereafter, with early application permitted. The Company does not anticipate early adoption of the new standard and is currently assessing the future impact of this ASU on theCompany’s consolidated financial statements.
In January 2017, the FASB issued ASU No. 2017-04, Intangibles—Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment , which removes Step 2 from thegoodwill impairment test and modifies the goodwill impairment to be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carryingamount of goodwill allocated to that report unit. The standard is effective for annual periods beginning after December 15, 2019, and interim periods thereafter, with earlyapplication permitted for impairment tests performed after January 1, 2017. The Company adopted this ASU in the first quarter of fiscal year 2017 and it had no impact on theCompany’s consolidated financial statements.
In May 2017, the FASB issued ASU No. 2017-09, Compensation-Stock Compensation (Topic 718) : Scope of Modification Accounting , which provides guidance about whichchanges to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The standard is effective for annual periodsbeginning after December 15, 2017, and interim periods thereafter, with early application permitted. The adoption of this ASU is not expected to have a material impact on theCompany’s consolidated financial statements.
Note 2. Available-for-sale Securities and Fair value on Financial Instruments
Available-for-sale Securities
The following is a summary of available-for-sale securities at September 30, 2017 (in thousands):
September 30, 2017
Amortized Cost Gross
Unrealized Gain Gross
Unrealized Loss Fair value Money market funds $ 6,603 $ — $ — $ 6,603 United States government agency securities 14,780 — (10) 14,770 Corporate debt securities 27,893 — (18) 27,875
Total available-for-sale securities $ 49,276 $ — $ (28) $ 49,248
The following is a summary of available-for-sale securities at December 31, 2016 (in thousands):
December 31, 2016
Amortized Cost Gross
Unrealized Gain Gross
Unrealized Loss Fair value Money market funds $ 8,991 $ — $ — $ 8,991 United States government agency securities 8,030 — (1) 8,029 Corporate debt securities 37,110 — (23) 37,087 Marketable equity securities — 3,952 — 3,952
Total available-for-sale securities $ 54,131 $ 3,952 $ (24) $ 58,059
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Available-for-sale securities at September 30, 2017 and December 31, 2016, consisted of the following by contractual maturity (in thousands):
September 30, 2017 December 31, 2016 Amortized Cost Fair value Amortized Cost Fair value One year or less $ 43,261 $ 43,244 $ 54,131 $ 54,107 Marketable equity securities — — — 3,952 Greater than one year and less than five years 6,015 6,004 — —
Total available-for-sale securities $ 49,276 $ 49,248 $ 54,131 $ 58,059
The following tables show all available-for-sale marketable securities in an unrealized loss position for which an other-than-temporary impairment has not been recognized and therelated gross unrealized losses and fair value, aggregated by investment category and length of time that individual securities have been in a continuous unrealized loss position (inthousands): September 30, 2017 Less than 12 Months 12 Months or Greater Total Fair value Unrealized Loss Fair value Unrealized Loss Fair value Unrealized Loss
United States government agency securities $ 11,771 $ (10) $ — $ — $ 11,771 $ (10)Corporate debt securities 25,625 (17) 2,000 (1) 27,625 (18)
Total available-for-sale securities $ 37,396 $ (27) $ 2,000 $ (1) $ 39,396 $ (28)
December 31, 2016 Less than 12 Months 12 Months or Greater Total Fair value Unrealized Loss Fair value Unrealized Loss Fair value Unrealized Loss
United States government agency securities $ 6,035 $ (1) $ — $ — $ 6,035 $ (1)Corporate debt securities 34,086 (23) — — 34,086 (23)
Total available-for-sale securities $ 40,121 $ (24) $ — $ — $ 40,121 $ (24)
As of September 30, 2017, the Company considered the declines in market value of its marketable securities investment portfolio to be temporary in nature and did not consider anyof its investments other-than-temporarily impaired. The Company typically invests in highly-rated securities, and its investment policy limits the amount of credit exposure to anyone issuer. The policy generally requires investments to be investment grade, with the primary objective of minimizing the potential risk of principal loss. Fair values weredetermined for each individual security in the investment portfolio. When evaluating an investment for other-than-temporary impairment, the Company reviews factors such as thelength of time and extent to which fair value has been below its cost basis, the financial condition of the issuer and any changes thereto, changes in market interest rates, and theCompany’s intent to sell, or whether it is more likely than not it will be required to sell, the investment before recovery of the investment’s cost basis. During the three and ninemonths ended September 30, 2017 and 2016, the Company did not recognize any other-than-temporary impairment loss. The Company has no current requirement or intent to sellthe securities in an unrealized loss position. The Company expects to recover up to (or beyond) the initial cost of investment for securities held.
The Company recognized zero and $3.5 million of realized gains from the sale of available-for-sale investments during the three and nine months ended September 30, 2017, whichwere reclassified out of accumulated other comprehensive income into “Other income, net” on the Company’s consolidated statements of operations. The Company did not recordany gross realized losses from the sale or maturity of available-for-sale investments during the three and nine months ended September 30, 2016.
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Fair Value Disclosures
The Company uses certain assumptions that market participants would use to determine the fair value of an asset or liability in pricing the asset or liability in an orderly transactionbetween market participants at the measurement date. The identification of market participant assumptions provides a basis for determining what inputs are to be used for pricingeach asset or liability. A fair value hierarchy has been established which gives precedence to fair value measurements calculated using observable inputs over those usingunobservable inputs. This hierarchy prioritized the inputs into three broad levels as follows:
• Level 1: Quoted prices in active markets for identical instruments
• Level 2: Other significant observable inputs (including quoted prices in active markets for similar instruments)
• Level 3: Significant unobservable inputs (including assumptions in determining the fair value of certain investments)
Money market funds are highly liquid investments and are actively traded. The pricing information on these investment instruments are readily available and can be independentlyvalidated as of the measurement date. This approach results in the classification of these securities as Level 1 of the fair value hierarchy.
To estimate the fair value of Level 2 debt securities as of September 30, 2017, the Company’s primary service relies on inputs from multiple industry-recognized pricing sources todetermine the price for each investment. Corporate debt and U.S. government agency securities are systematically priced by this service as of the close of business each businessday. If the primary pricing service does not price a specific asset a secondary pricing service is utilized.
The fair values of the Company’s financial assets and liabilities were determined using the following inputs at September 30, 2017 (in thousands):
Balance sheet
Quotedprices inActive
Markets forIdenticalAssets
SignificantOther
ObservableInputs
SignificantUnobservable
Inputs classification Total (Level 1) (Level 2) (Level 3)
Money market funds Cash and cash equivalents $ 6,603 $ 6,603 $ — $ — United States government agency securities Short-term investments 14,770 — 14,770 — Corporate debt securities Short-term investments 27,875 — 27,875 —
Total financial assets $ 49,248 $ 6,603 $ 42,645 $ —
The fair values of the Company’s financial assets and liabilities were determined using the following inputs at December 31, 2016 (in thousands):
Balance sheet
Quotedprices inActive
Markets forIdenticalAssets
SignificantOther
ObservableInputs
SignificantUnobservable
Inputs classification Total (Level 1) (Level 2) (Level 3)
Money market funds Cash and cash equivalents $ 8,991 $ 8,991 $ — $ — United States government agency securities Short-term investments 8,029 — 8,029 — Corporate debt securities Short-term investments 37,087 — 37,087 — Marketable equity securities Marketable equity securities 3,952 3,952 — —
Total financial assets $ 58,059 $ 12,943 $ 45,116 $ —
The Company did not have any transfers among fair value measurement levels during the three and nine months ended September 30, 2017.
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Note 3. Inventories
Inventories at September 30, 2017 and December 31, 2016, consisted of the following (in thousands):
September 30, December 31, 2017 2016
Work-in-process $ 3,523 $ 5,044 Finished goods 10,727 7,487
Total inventories $ 14,250 $ 12,531
Note 4. Goodwill and Intangible Assets, net
Goodwill
During the three and nine months ended September 30, 2017, the Company did not dispose of or recognize additional goodwill. The Company performed its annual review ofgoodwill on August 31, 2017, and noted no impairment as of that date. As of September 30, 2017, the Company has not identified any indicators of goodwill impairment.
Intangible Assets, net
The following is a summary of intangible assets, net at September 30, 2017 (in thousands):
September 30, 2017
GrossCarryingAmount
AccumulatedAmortization
NetCarryingAmount
Acquisition-related intangible assets: Reacquired license - INTERCEPT Asia $ 2,017 $ (1,430) $ 587
Total intangible assets $ 2,017 $ (1,430) $ 587
The following is a summary of intangible assets, net at December 31, 2016 (in thousands):
December 31, 2016
GrossCarryingAmount
AccumulatedAmortization
NetCarryingAmount
Acquisition-related intangible assets: Reacquired license - INTERCEPT Asia $ 2,017 $ (1,279) $ 738
Total intangible assets $ 2,017 $ (1,279) $ 738
During the three and nine months ended September 30, 2017 and 2016, there were no impairment charges recognized related to the acquired intangible assets.
At September 30, 2017, the expected amortization expense of the intangible assets, net is less than $0.1 million for the remaining three months of 2017, $0.2 million annuallybeginning with the year ending December 31, 2018, through the year ending December 31, 2019, and $0.1 million for the year ending December 31, 2020. Note 5. Marketable Equity Investments
The Company held an investment in preferred shares of Aduro which it had historically accounted for under the cost method of accounting with a net carrying value of zero. InApril 2015, Aduro’s common stock began trading on the NASDAQ Global Select Market, under the symbol “ADRO”. At the time of Aduro’s initial public offering (“IPO”), theCompany’s preferred shares in Aduro converted to 396,700 shares of common stock, and the fair value of the Company’s investment became readily determinable and, as a resultbecame a marketable equity security. Therefore, the Company no longer accounted for the investment in Aduro under the cost basis of accounting. The Company reflected theinvestment in Aduro as an available-for-sale security included in investment in marketable equity securities on the Company’s unaudited condensed consolidated balance sheet(Note 2) and adjusted the carrying value of this investment to fair value each quarterly reporting period, with changes in fair value recorded within other comprehensive income(loss), net of tax. During the nine months ended September 30, 2017, the Company sold its remaining shares of Aduro common stock and recognized a gain of $3.5 million in“Other income, net” on the Company’s consolidated statements of operations. As of September 30, 2017, the Company had no remaining investment in Aduro’s common stock.
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Note 6. Accrued Liabilities
Accrued liabilities at September 30, 2017 and December 31, 2016, consisted of the following (in thousands):
September 30, December 31, 2017 2016
Accrued compensation and related costs $ 5,546 $ 7,098 Accrued professional services 3,454 2,511 Accrued insurance premiums 675 476 Other accrued expenses 1,006 1,133
Total accrued liabilities $ 10,681 $ 11,218
Note 7. Debt
Debt at September 30, 2017, consisted of the following (in thousands):
September 30, 2017 principal Unamortized Discount Total
Loan and Security Agreement $ 30,000 $ (220) $ 29,780 Less: debt - current — — — Debt - non-current $ 30,000 $ (220) $ 29,780
Debt at December 31, 2016, consisted of the following (in thousands):
December 31, 2016
principal Unamortized Discount Net Carrying
value Loan and Security Agreement $ 19,499 $ (124) $ 19,375 Less: debt - current (7,013) 79 (6,934)Debt - non-current $ 12,486 $ (45) $ 12,441
Principal and interest payments on debt at September 30, 2017, are expected to be as follows (in thousands): Year ended December 31, principal Interest Total
2017 $ — $ 609 $ 609 2018 — 2,445 2,445 2019 7,857 2,178 10,035 2020 8,571 1,489 10,060 2021 8,572 785 9,357 2022 5,000 2,535 7,535
Total $ 30,000 $ 10,041 $ 40,041
Loan and Security Agreement
On June 30, 2014, the Company entered into a five year loan and security agreement with (the “Term Loan Agreement”) with Oxford Finance LLC ( “Oxford”) to borrow up to$30.0 million in term loans in three equal tranches (the “Term Loans”). On June 30, 2014, the Company received $10.0 million from the first tranche (“Term Loan A”). The secondtranche of $10.0 million (“Term Loan B”) was drawn on June 15, 2015. Term Loan A bore an interest rate of 6.95%. Term Loan B bore an interest rate of 7.01%. Term Loans Aand B were set to mature on June 1, 2019.
On September 29, 2015, the Term Loan Agreement was amended to extend (i) the period in which the third tranche could have been drawn and (ii) the interest-only period for alladvances under the Term Loan Agreement. The Company was required to make interest only payments through June 2016, followed by thirty-six months of equal principal andinterest payments thereafter. On July 28, 2016, the Term Loan Agreement was amended to include an additional interest-only period for all advances under the Term LoanAgreement. As amended, the Company was required to make interest only payments from August 2016 through January 2017, followed by twenty-nine months of equal principaland interest payments thereafter. On April 27, 2017, the Term Loan Agreement
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was amended to include an additional interest-only period for all advances u nder the Term Loan Agreement. As amended, the Company was required to make interest onlypayments from May 2017 through December 2017, followed by eighteen months of equal principal and interest payments thereafter. The Company determined that these amendments to the Term Loan Agreement resulted in debt modifications. As a result, the accounting treatment for the Term Loan continues under the interest method, with a new effectiveinterest rate based on revised cash flows calculated on a prospective basis up on the execution of each of these amendments to the Term Loan Agreement. The Company was alsorequired to make a final payment equal to 7% of the principal amounts of the Term Loans drawn payable on the earlier to occur of maturity or prepayment. The costs associatedwith the final payment are recognized as interest expense over the life of the Term Loans. The Company could prepay at any time the Term Loans subject to declining prepaymentfees over the term of the Term Loan Agreement. The Company pledged al l current and future assets, excluding its intellectual property and 35% of the Company’s investment inits subsidiary, Cerus Europe B.V., as security for borrowings under the Term Loan Agreement.
On July 31, 2017 (the “Closing Date”), the Company entered into an amended and restated loan and security agreement (the “Amended Credit Agreement”) with Oxford, whichamends and restates in its entirety the Term Loan Agreement. The Amended Credit Agreement provides for secured growth capital term loans of up to $40.0 million (the “2017Term Loans”). All of the Company’s current and future assets, excluding its intellectual property and 35% of the Company’s investment in Cerus Europe B.V., are secured for itsborrowings under the Amended Credit Agreement. The 2017 Term Loans are available in two tranches. The first tranche of $30.0 million (“2017 Term Loan A”) was drawn by theCompany on July 31, 2017, with the proceeds used in part to repay in full all of the outstanding term loans under the Term Loan Agreement of $17.6 million. The second tranche of$10.0 million (“2017 Term Loan B”) will be made available to the Company upon the Company’s achieving consolidated trailing six-month revenues as defined in the agreement(the “Revenue Milestone”). If the Revenue Milestone is achieved, the Company may draw the 2017 Term Loan B through the earlier of (i) January 31, 2019, and (ii) the date whichis 60 days after the achievement of the Revenue Milestone. The 2017 Term Loans require interest-only payments through February 1, 2019, followed by 42 months payments ofequal principal plus declining interest payments. However, if the Company draws the 2017 Term Loan B, then the interest-only period will be extended through August 1, 2019,and the amortization period will be reduced to 36 months. Interest on 2017 Term Loan A and 2017 Term Loan B will bear interest at a rate equal to the greater of (i) 8.01% and (ii)the three-month U.S. LIBOR rate plus 6.72%. The Company will also be required to make a final payment fee of 8.00% of the principal amounts of the 2017 Term Loans. TheAmended Credit Agreement contains certain nonfinancial covenants, with which the Company was in compliance at September 30, 2017.
Note 8. Commitments and Contingencies
Operating Leases
The Company leases its office facilities, located in Concord, California and Amersfoort, the Netherlands, and certain equipment and automobiles under non-cancelable operatingleases with initial terms in excess of one year that require the Company to pay operating costs, property taxes, insurance and maintenance. The operating leases expire at variousdates through 2021, with certain of the leases providing for renewal options, provisions for adjusting future lease payments based on the consumer price index, and the right toterminate the lease early. The Company’s leased facilities qualify as operating leases under ASC Topic 840, “Leases” and as such, are not included on its consolidated balancesheets.
Financed Leasehold Improvements
In 2010, the Company financed $1.1 million of leasehold improvements. The Company pays for the financed leasehold improvements as a component of rent and is required toreimburse its landlord over the remaining life of the respective leases. At September 30, 2017, the Company had an outstanding liability of $0.3 million related to these leaseholdimprovements, of which $0.1 million was reflected in “Accrued liabilities” and $0.2 million was reflected in “Other non-current liabilities” on the Company’s consolidated balancesheets.
Purchase Commitments
The Company is party to agreements with certain suppliers for certain components of the INTERCEPT Blood System. Certain of these agreements require minimum purchasecommitments from the Company. Note 9. Stockholders’ Equity
Sales Agreement
On May 5, 2016, the Company entered into Amendment No. 2 to the Controlled Equity Offering SM Sales Agreement, dated August 31, 2012, as previously amended on March 21,2014, (together, the “Amended Cantor Agreement”) with Cantor Fitzgerald & Co. (“Cantor”) that provides for the issuance and sale of shares of the Company’s common stockhaving an aggregate offering price of up to $132.2 million through Cantor over the term of the Amended Cantor Agreement. As a result of Amendment No. 2, at May 5, 2016,
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the Company had $70 million of common stock available to be sold under the Amended Cantor Agreement. Under the Amended Cantor Agreement, Cantor also acts as theCompany’s sales agent and receives compensation based on an aggregate of 2% of the gross pr oceeds on the sale price per share of its common stock. The issuance and sale ofthese shares by the Company pursuant to the Amended Cantor Agreement are deemed an “at-the-market” offering and are registered under the Securities Act of 1933, as amended. During the nine months ended September 30, 2017, 7.6 million shares of the Company’s million shares of the Company’s common stock were sold under the Amended CantorAgreement for net proceeds of $19.3 million. At September 30, 2017, the Company had $42.6 million of common stock available to be sold under Amendment No. 2 to theAmended Cantor Agreement. On August 4, 2017, the Company entered into Amendment No. 3 to the Amended Cantor Agreement. In connection with Amendment No. 3, the Company filed a new shelfregistration statement on Form S-3 (the “New Registration Statement”). Amendment No. 3 will become effective upon the effectiveness of the New Registration Statement. As aresult of Amendment No. 3, the Amended Cantor Agreement will provide, when effective, for the issuance and sale of shares of the Company’s common stock having an aggregateoffering price of up to $70.0 million through Cantor following the effectiveness of the New Registration Statement, which amount includes any unsold shares of common stockpreviously available for sale under the Amended Cantor Agreement. As of September 30, 2017, the New Registration Statement had not been declared effective by the U.S.Securities and Exchange Commission and, as a result, Amendment No. 3 has not become effective. Note 10. Stock-Based Compensation
Employee Stock Purchase Plan
The Company maintains an Employee Stock Purchase Plan (the “Purchase Plan”), which is intended to qualify as an employee stock purchase plan within the meaning ofSection 423(b) of the Internal Revenue Code. Under the Purchase Plan, the Company’s Board of Directors may authorize participation by eligible employees, including officers, inperiodic offerings. Under the Purchase Plan eligible employee participants may purchase shares of common stock of the Company at a purchase price equal to 85% of the lower ofthe fair market value per share on the start date of the offering period or the fair market value per share on the purchase date. The Purchase Plan consists of a fixed offering periodof 12 months with two purchase periods within each offering period. At September 30, 2017, the Company had 1.2 million shares available for future issuance.
2008 Equity Incentive Plan and Inducement Plan
The Company also maintains an equity compensation plan to provide long-term incentives for employees, contractors, and members of its Board of Directors. The Companycurrently grants equity awards from one plan, the 2008 Equity Incentive Plan (the “2008 Plan”). The 2008 Plan allows for the issuance of non-statutory and incentive stock options,restricted stock, restricted stock units (“RSUs”), stock appreciation rights, other stock-related awards, and performance awards which may be settled in cash, stock, or otherproperty. On June 6, 2012 and June 12, 2013, the stockholders approved amendments to the 2008 Plan (collectively the “Amended 2008 Plan”) such that the Amended 2008 Planhad reserved for issuance an amount not to exceed 19.5 million shares. On June 10, 2015, the Company’s stockholders approved an amendment and restatement of the 2008 Planthat increased the aggregate number of shares of common stock authorized for issuance under the 2008 Plan by 5,000,000 shares. On June 7, 2017, the Company’s stockholdersapproved an amendment and restatement of the 2008 Plan that increased the aggregate number of shares of common stock authorized for issuance under the 2008 Plan by 6,000,000shares. Awards under the Amended 2008 Plan generally have a maximum term of 10 years from the date of the award. The Amended 2008 Plan generally requires options to begranted at 100% of the fair market value of the Company’s common stock subject to the option on the date of grant. Options granted by the Company to employees generally vestover four years. RSUs are measured based on the fair market value of the underlying stock on the date of grant and will generally vest over three years. Performance-based stock orcash awards granted under the Amended 2008 Plan are limited to either 500,000 shares of common stock or $1.0 million per recipient per calendar year. The attainment of anyperformance-based awards granted shall be conclusively determined by a committee designated by the Company’s Board of Directors. On August 31, 2016, the Company’s Boardof Directors adopted the Cerus Corporation Inducement Plan (the “Inducement Plan”), and reserved 1, 250,000 shares of its common stock under the Inducement Plan to be usedexclusively for the issuance of non-statutory stock options and restricted stock units to individuals who were not previously employees or directors of the Company, or who hadexperienced a bona fide period of non-employment, as an inducement material to the individual’s entry into employment with the Company within the meaning of Rule 5635(c)(4)of the NASDAQ Listing Rules. The Inducement Plan was approved by the Company’s Board of Directors without stockholder approval pursuant to Rule 5635(c)(4), and the termsand conditions of the Inducement Plan are substantially similar to the Amended 2008 Plan. Effective June 7, 2017, the Company no longer issues shares from the Inducement Plan.
At September 30, 2017, the Company had an aggregate of approximately 26.4 million shares of its common stock subject to outstanding options or RSUs, or remaining availablefor future issuance under the Amended 2008 Plan, of which approximately
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17. 4 million shares and 1. 3 million shares were subject to outstanding options and outstanding RSUs, respectively, and approximately 7. 7 million shares were available forfuture issuance under the Amended 2008 Plan. The Company’s policy is to issue new shares of common stock upon the exercise of options or vesting of RSUs.
Activity under the Company’s equity incentive plans related to stock options is set forth below (in thousands except per share amounts):
Number of
Options Outstanding
WeightedAverageExerciseprice perShare
Balances at December 31, 2016 15,787 $ 4.39 Granted 3,260 4.15 Forfeited (830) 5.24 Expired (298) 7.80 Exercised (540) 3.12
Balances at September 30, 2017 17,379 4.29
Activity under the Company’s equity incentive plans related to RSUs is set forth below (in thousands except per share amounts):
Number ofShares
Outstanding
WeightedAverage
Grant DateFair valueper Share
Balances at December 31, 2016 739 $ 5.26 Granted 918 4.18 Forfeited (102) 4.58 Vested (269) 5.35
Balances at September 30, 2017 1,286 4.52
The Company uses the Black-Scholes option pricing model to determine the grant-date fair value of stock options and employee stock purchase plan rights. The Black-Scholesoption pricing model is affected by the Company’s stock price, as well as assumptions regarding a number of complex and subjective variables, which include the expected term ofthe grants, actual and projected employee stock option exercise behaviors, including forfeitures, the Company’s expected stock price volatility, the risk-free interest rate andexpected dividends. The Company recognizes the grant-date fair value of the stock award as stock-based compensation expense on a straight-line basis over the requisite serviceperiod, which is the vesting period, and is adjusted for estimated forfeitures. Note 11. Income Taxes
For the three months ended September 30, 2017, the Company recorded a tax expense of less than $0.1 million primarily for the earnings of its European subsidiary. For the ninemonths ended September 30, 2017, the Company recorded a tax expense of $4.0 million, which was primarily due to the sale of the Company’s shares of Aduro. For the three andnine months ended September 30, 2016, the Company recorded a tax benefit of $0.4 million and an income tax expense of $1.4 million, respectively, which were largely the resultof changes in the fair value of the Company’s investment in Aduro. Note 12. Development and License Agreements
Agreements with Fresenius
Fresenius manufactures and supplies the platelet and plasma systems to the Company under a supply agreement. Under the previous agreements with Fresenius, the Company wasrequired to pay royalties to Fenwal Inc. (“Fenwal”), a subsidiary of Fresenius, on INTERCEPT Blood System product sales at royalty rates that varied by product. In addition,Fresenius was obligated to sell, and the Company was obligated to purchase, up to a certain specified annual volume of finished disposable kits for the platelet and plasma systemsfrom Fresenius for both clinical and commercial use. The pricing was fixed for finished kits with successive decreasing pricing tiers at various annual production volumes.Fresenius was also obligated to purchase and maintain specified inventory levels of the Company’s proprietary inactivation compounds and adsorption media from the Company atfixed prices.
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In October 2015, the Company entered into an Amended and Restated Manufacturing and Supply Agreement (the “2015 Agreement”) with Fresenius, which amended and restatedits previous agreements. Under the 2015 Agreement, Fresenius continues to be obligated to sell and the Company is obligated to purchase finished disposable kits for theCompany’s platelet and plasma systems and the Company’s red blood cell system product candidate (the “RBC Sets”). The 2015 Agreement permits the Company to purchaseplatelet and plasma systems and RBC Sets from third parties to the extent necessary to maintain supply qualifications with such third parties or where local or regionalmanufacturing is needed to obtain product registrations or sales. Pricing terms per unit are initially fixed and declin e at specified annual production levels, and are subject to certainadjustments after the initial pricing term. Under the 2015 Agreement, the Company is no longer required to make royalty payments to Fenwal for the sale of products after June 30,2015. Und er the 2015 Agreement, the Company maintains the amounts due from the components sold to Fresenius as a current asset on its accompanying consolidated balancesheets until such time as the Company purchases finished disposable kits using those components.
The 2015 Agreement also requires the Company to make certain payments totaling €8.6 million (“Manufacturing and Development Payments”) to Fresenius in 2016 and onDecember 31 of the earlier of (a) the year of achievement of certain production volumes or (b) 2022. Because these payments represent unconditional payment obligations, theCompany recognized its liability for these payments at their net present value at discount rate of 9.72% based on the Company’s effective borrowing rate at that time. TheManufacturing and Development Payments liability is accreted through interest expense based on the estimated timing of its ultimate settlement. As of September 30, 2017, theCompany had paid $3.4 million (€3.1 million) and accrued $5.6 million (€4.8 million) related to the Manufacturing and Development Payments, which was included in“Manufacturing and development obligations - non-current” on the Company’s Consolidated Balance Sheets. As of December 31, 2016, the Company had accrued $4.8 million(€4.5 million) related to the Manufacturing and Development Payments, which was included in “Manufacturing and development obligations - non-current” on the Company’sConsolidated Balance Sheets.
The Manufacturing and Development Payments will be made to support certain projects Fresenius will perform on behalf of the Company related to R&D activities andmanufacturing efficiency activities. The Company allocated $4.8 million to R&D activities and $2.4 million to manufacturing efficiency activities based on their market value inOctober 2015. The prepaid asset related to amounts paid up front for the R&D activities to be conducted by Fresenius on behalf of the Company is expensed over the period whichsuch activities occur. The manufacturing efficiency asset is expensed on a straight line basis over the life of the 2015 Agreement. As of September 30, 2017 and December 31,2016, the prepaid asset related to amounts paid up front for the R&D activities to be conducted by Fresenius on behalf of the Company was included in “Other current assets” and“Other assets” on the Company’s Consolidated Balance Sheets at $0.2 million and $0.9 million, respectively, and at $2.2 million and $2.0 million, respectively. As ofSeptember 30, 2017 and December 31, 2016, the manufacturing efficiency asset was included in “Other assets” on the Company’s Consolidated Balance Sheets at $1.9 million and$2.1 million, respectively.
The initial term of the 2015 Agreement extends through July 1, 2025 (the “Initial Term”) and is automatically renewed thereafter for additional two year terms (each, a “RenewalTerm”), subject to termination by either party upon (i) two years written notice prior to the expiration of the Initial Term or (ii) one year written notice prior to the expiration of anyRenewal Term. Under the 2015 Agreement, the Company has the right, but not the obligation, to purchase certain assets and assume certain liabilities from Fresenius.
The Company made payments to Fresenius of $3.0 million and $4.8 million relating to the manufacturing of the Company’s products during the three months ended September 30,2017 and 2016, respectively, and $9.4 million and $11.8 million during the nine months ended September 30, 2017 and 2016, respectively. At September 30, 2017 andDecember 31, 2016, the Company owed Fresenius $6.0 million and $3.0 million, respectively, for INTERCEPT disposable kits manufactured. At September 30, 2017 andDecember 31, 2016, amounts due from Fresenius were $1.0 million and $0.3 million, respectively, and were included in Other current assets in the Company’s condensedconsolidated balance sheet.
Agreement with BARDA
In June 2016, the Company entered into an agreement with the Biomedical Advanced Research and Development Authority (“BARDA”) to support the Company’s developmentand implementation of pathogen reduction technology for platelet, plasma, and red blood cells.
The five-year agreement with BARDA includes a base period (the “Base Period”) and options (each an “Option Period”) with committed funding of up to $88.2 million for clinicaldevelopment of the INTERCEPT Blood System for red blood cells (the “red blood cell system”) and subsequent Option Periods that, if exercised by BARDA and completed,would bring the total funding opportunity to $186.2 million over the five-year contract period. If exercised by BARDA, subsequent options would fund activities related to broaderimplementation of the platelet and plasma system or the red blood cell system in areas of Zika virus risk, clinical and regulatory development prog rams in support of the potentiallicensure of the red blood cell system in the U.S., and development, manufacturing and scale-up activities for the red blood cell system. The Company is responsible for co-investment of $5.0 million and would be responsible for an additional $9.6 million , if certain options were to be exercised. BARDA will make periodic assessments of theCompany’s progress and the continuation of the agreement is based on the Company’s success in completing the required tasks
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under the Base Period and each Option Period (if and to the extent any Option Periods are exercised by BARDA). BARDA has rights under certain contract clauses to terminate theagreement, including the ability to terminate the agreement for convenience at any time.
Under the contract, the Company is reimbursed and recognizes revenue as allowable direct contract costs are incurred plus allowable indirect costs, based on approved provisionalindirect billing rates, which permit recovery of fringe benefits, overhead and general and administrative expenses. As of September 30, 2017 and December 31, 2016, $2.0 millionand $1.0 million, respectively, of billed and unbilled amounts were included in accounts receivable on the Company’s condensed consolidated balance sheets related to BARDA. Note 13. Segment, Customer and Geographic Information
The Company continues to operate in only one segment, blood safety. The Company’s chief executive officer is the chief operating decision maker who evaluates performancebased on the net revenues and operating loss of the blood safety segment. The Company considers the sale of all of its INTERCEPT Blood System products to be similar in natureand function, and any revenue earned from services is minimal.
The Company’s operations outside of the U.S. include a wholly-owned subsidiary headquartered in Europe. The Company’s operations in the U.S. are responsible for the R&D andglobal and domestic commercialization of the INTERCEPT Blood System, while operations in Europe are responsible for the commercialization efforts of the platelet and plasmasystems in Europe, the Commonwealth of Independent States and the Middle East. Product revenues are attributed to each region based on the location of the customer, and in thecase of non-product revenues, on the location of the collaboration partner.
The Company had the following significant customers that accounted for more than 10% of the Company’s total product revenue, each of which operates in a country outside of theU.S., during the three and nine months ended September 30, 2017 and 2016 (in percentages):
Three Months Ended Nine Months Ended September 30, September 30, 2017 2016 2017 2016
Etablissement Francais du Sang 25% 16% 15% 10% Advanced Technology Comp. KSC * 19% * 12%
* Represents an amount less than 10% of product revenue.
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OpERATIONS
This discussion and analysis should be read in conjunction with our unaudited condensed consolidated financial statements and the accompanying notes included in this QuarterlyReport on Form 10-Q and the audited consolidated financial statements and accompanying notes included in our Annual Report on Form 10-K for the year ended December 31,2016. Operating results for the three and nine months ended September 30, 2017 are not necessarily indicative of results that may occur in future periods.
This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of theSecurities and Exchange Act of 1934, as amended, that involve risks and uncertainties. The forward-looking statements are contained principally in this Item 2, “Management’sDiscussion and Analysis of Financial Condition and Results of Operations” and in Item 1A, “Risk Factors.” These statements relate to future events or to our future operating orfinancial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materiallydifferent from any future results, performances or achievements expressed or implied by the forward-looking statements. These forward-looking statements may include, but are notlimited to, statements about:
• future sales of and our ability to effectively commercialize and achieve market acceptance of the INTERCEPT Blood System, including our ability to comply withapplicable United States (U.S.), and foreign laws, regulations and regulatory requirements;
• our ability to manage the growth of our business and attendant cost increases, including in connection with the commercialization of the INTERCEPT BloodSystem in the U.S., as well as our ability to manage the risks attendant to our international operations;
• the timing or likelihood of regulatory submissions and approvals and other regulatory actions or interactions, including our anticipated CE mark submission forthe red blood cell system;
• our ability to obtain and maintain regulatory approvals of the INTERCEPT Blood System;
• our ability to obtain adequate clinical and commercial supplies of the INTERCEPT Blood System from our sole source suppliers for a particular product orcomponent they manufacture;
• the initiation, scope, rate of progress, results and timing of our ongoing and proposed preclinical and clinical trials of the INTERCEPT Blood System;
• the successful completion of our research, development and clinical programs and our ability to manage cost increases associated with preclinical and clinicaldevelopment of the INTERCEPT Blood System;
• the amount and availability of funding we may receive under our agreement with the Biomedical Advanced Research and Development Authority, or BARDA;
• our ability to transition distribution of the INTERCEPT Blood System from third parties to a direct sales model in certain international markets;
• the ability of our products to inactivate the emerging viruses and other pathogens that we may target in the future;
• our ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of others; and
• our estimates regarding the sufficiency of our cash resources, our ability to continue as a going concern and our need for additional funding.
In some cases, you can identify forward-looking statements by terms such as “anticipate,” “will,” “believe,” “estimate,” “expect,” “plan,” “may,” “should,” “could,” “would,”“project,” “predict,” “potential,” and similar expressions intended to identify such forward-looking statements. Forward-looking statements reflect our current views with respect tofuture events, are based on assumptions, and are subject to risks and uncertainties. There can be no assurance that any of the events anticipated by forward-looking statements willoccur or, if any of them do occur, what impact they will have on our business, results of operations and financial condition. Certain important factors could cause actual results todiffer materially from those discussed in such statements, including the rate of customer adoption in the U.S. and our ability to achieve market acceptance of our products in theU.S. and international markets, whether our preclinical and clinical data or data from commercial use will be considered sufficient by regulatory authorities to grant marketingapproval for our products or for product extensions or additional claims for our products, our ability to obtain reimbursement approval for our products, our ability to complete thedevelopment and testing of additional configurations or redesigns of our products, our need for additional financing in the near term and our ability to access funding under ouragreement with BARDA, the impacts of regulation of our products by domestic and foreign regulatory authorities, our limited experience in sales, marketing and regulatory supportfor the INTERCEPT Blood System, our reliance on Fresenius and third parties
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to manufacture certain components of the INTERCEPT Blood System, incompatibility of our platelet system with some commercial platelet collection methods, our need tocomplete our red blood cell system’s commercial design, more effective product offerings by, or clinical setbacks of, our competitors, product liability, our use of hazardousmaterials in the development of our products, business interruption due to earthquake, our expectation of continuing losses, protection of our intellectual property righ ts, volatilityin our stock price, on-going compliance with the requirements of the Sarbanes-Oxley Act of 2002 and other factors discussed below and under the caption “Risk Factors” in Item1A of this Quarterly Report on Form 10-Q. We discuss many of these risks in this Quarterly Report on Form 10-Q in greater detail in the section entitled “Risk Factors” under PartII, Item 1A below. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Also, forward-looking st atements represent our estimatesand assumptions only as of the date of this Quarterly Report on Form 10-Q. You should read this Quarterly Report on Form 10-Q and the documents that we incorporate byreference in and have filed as exhibits to this Quarterl y Report on Form 10-Q completely. Our actual future results may be materially different from what we expect. Except asrequired by law, we assume no obligation to update or revise any forward-looking statements to reflect new information or future events, even if new information becomesavailable in the future. You should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements.
Overview
Since our inception in 1991, we have devoted substantially all of our efforts and resources to the research, development, clinical testing and commercialization of the INTERCEPTBlood System. The INTERCEPT Blood System is designed for three blood components: platelets, plasma and red blood cells. The INTERCEPT Blood System for platelets, orplatelet system, and the INTERCEPT Blood System for plasma, or plasma system, have received CE marks and FDA approval and are being marketed and sold in a number ofcountries around the world.
The platelet system is approved in the U.S. for ex vivo preparation of pathogen-reduced apheresis platelet components in order to reduce the risk of transfusion-transmittedinfection, or TTI, including sepsis, and to potentially reduce the risk of transfusion-associated graft versus host disease or TA-GVHD. The plasma system is approved in the U.S.for ex vivo preparation of plasma in order to reduce the risk of TTI when treating patients requiring therapeutic plasma transfusion.
The INTERCEPT Blood System for red blood cells, or the red blood cell system, is currently in development and has not been commercialized anywhere in the world. Wecompleted our European Phase III clinical trial of our red blood cell system for acute anemia patients and have another ongoing European Phase III clinical trial of our red bloodcell system for chronic anemia patients. In the U.S., we successfully completed a Phase II recovery and lifespan study in 2014. In 2016, we reached agreement with the FDA on aclinical trial protocol for a controlled, randomized, double-blind study, known as RedeS, which is assessing safety in 600 patients receiving red blood cell transfusions in regionsheavily impacted by the Zika virus epidemic, including Puerto Rico and Florida. In addition, we will need to successfully conduct and complete two additional license-enablingPhase III clinical trials before the FDA will consider our red blood cell product for approval. Although we plan to complete additional development activities to support ananticipated CE mark submission for the red blood cell system, such development activities, could prolong development of our red blood cell system, and we do not expect toreceive any regulatory approvals of our red blood cell system in the next twelve months, if ever. We must demonstrate an ability to define, test and meet acceptable specificationsfor our GMP manufactured compounds used to prepare INTERCEPT-treated red blood cells before we can submit and seek regulatory approval of our red blood cell system.Developing a methodology and assay that is sufficiently sensitive and robust may be time consuming, and delays or failures in such development efforts could in-turn delay ourability to obtain regulatory approvals. We understand that while the acute anemia Phase III clinical trial in Europe may be sufficient to receive CE mark approval in Europe, wemay need to generate additional safety data from commercial use and/or achieve a successful outcome in the ongoing chronic anemia Phase III clinical trial of our red blood cellsystem in order to achieve broad market acceptance. In addition, these trials may need to be supplemented by additional, successful Phase III clinical trials for approval in certaincountries. If such additional Phase III clinical trials are required, they would likely need to demonstrate equivalency of INTERCEPT-treated red blood cells compared toconventional red blood cells and significantly lower lifespan for INTERCEPT-treated red blood cells compared to non-treated red blood cells may limit our ability to obtain anyregulatory approvals for the red blood cell system. As part of our development activities, we will need to successfully complete a number of in vitro studies prior to receiving anyregulatory approvals in Europe and certain additional activities, including the RedeS trial and two separate license-enabling Phase III clinical trials, prior to receiving any regulatoryapprovals in the U.S. Successful completion of these activities may require capital beyond that which we currently have or that may be available to us under our agreement with theBiomedical Advanced Research and Development Authority, or BARDA, and we may be required to obtain additional capital in order to complete the development of and obtainany regulatory approvals for the red blood cell system. In addition, if we are unable to develop sufficient quantities of the active compounds for our products meeting definedquality and regulatory specifications or if our suppliers are not able to maintain regulatory compliance, we may experience delays in testing, conducting trials or obtainingapprovals, and our product development costs would likely increase.
In 2016, we entered into a five-year agreement with BARDA, part of the U.S. Department of Health and Human Services’ Office of the Assistant Secretary for Preparedness andResponse, to receive funding from BARDA to support the development of our red blood
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cell system, including clinical and regulatory development programs in s upport of potential licensure, and development, manufacturing and scale-up activities, as well as activitiesrelated to broader implementation of all three INTERCEPT systems in areas of Zika virus risk. Under the contract, BARDA reimburses us as allowable direct contract costs areincurred plus allowable indirect costs. See our discussion under “BARDA” below for more information .
Our near-term capital requirements are dependent on various factors, including operating costs and working capital investments associated with commercializing the INTERCEPTBlood System, including in connection with the continuing U.S. commercial launch and market penetration of our platelet and plasma systems, costs to develop differentconfigurations of existing products and new products, including our illuminator, costs associated with planning, enrolling and completing ongoing studies, and the post-approvalstudies we are required to conduct in connection with the FDA approval of the platelet system, costs associated with pursuing potential regulatory approvals in other geographieswhere we do not currently sell our platelet and plasma systems, costs associated with conducting in vitro studies and clinical development of our red blood cell system in Europeand the U.S., including our ongoing European Phase III clinical trial of our red blood cell system for chronic anemia patients, costs associated with performing the agreed-uponactivities under our BARDA agreement, and costs related to creating, maintaining and defending our intellectual property. Our long-term capital requirements will also bedependent on the success of our sales efforts, competitive developments, the timing, costs and magnitude of our longer-term clinical trials and other development activities relatedto our platelet, plasma and red blood cell systems, including required post-approval studies for the platelet system, market preparedness and product launch activities for any of ourproducts in geographies where we do not currently sell our products, and regulatory factors. Until we are able to generate a sufficient amount of product revenue and generatepositive net cash flows from operations, which we may never do, meeting our long-term capital requirements is in large part reliant on continued access to funds under our BARDAagreement and the public and private equity and debt capital markets, as well as on collaborative arrangements with partners, augmented by cash generated from operations andinterest income earned on the investment of our cash balances. We believe that our available cash and cash equivalents and short-term investments, as well as cash received fromproduct sales and under our agreement with BARDA, will be sufficient to meet our capital requirements for at least the next twelve months. If, in the near term, we are unable togenerate sufficient product revenue, or access sufficient funds under our BARDA agreement or the public and private equity and debt capital markets, we may be unable to executesuccessfully on our operating plan. We have based our cash sufficiency estimate on assumptions that may prove to be incorrect. If our assumptions prove to be incorrect, we couldconsume our available capital resources sooner than we currently expect or in excess of amounts than we currently expect, which could adversely affect our commercialization andclinical development activities.
We have borrowed and in the future may borrow additional capital from institutional and commercial banking sources to fund future growth, including pursuant to our amendedand restated loan and security agreement, or the Amended Credit Agreement, with Oxford Finance, as described below, or potentially pursuant to new arrangements with differentlenders. We may borrow funds on terms that may include restrictive covenants, including covenants that restrict the operation of our business, liens on assets, high effective interestrates, financial performance covenants and repayment provisions that reduce cash resources and limit future access to capital markets. In addition, we expect to continue to pursueaccess to the equity capital markets to support our development efforts and operations. To the extent that we raise additional capital by issuing equity securities, our stockholdersmay experience substantial dilution. To the extent that we raise additional funds through collaboration or partnering arrangements, we may be required to relinquish some of ourrights to our technologies or rights to market and sell our products in certain geographies, grant licenses on terms that are not favorable to us, or issue equity that may besubstantially dilutive to our stockholders.
As a result of economic conditions, general global economic uncertainty, political change, and other factors, we do not know whether additional capital will be available whenneeded, or that, if available, we will be able to obtain additional capital on reasonable terms. If we are unable to raise additional capital due to the volatile global financial markets,general economic uncertainty or other factors, we may need to curtail planned development or commercialization activities. In addition, we may need to obtain additional funds tocomplete development activities for the red blood cell system necessary for potential regulatory approval in Europe, if costs are higher than anticipated or we encounter delays. Wemay need to obtain additional funding to conduct additional randomized controlled clinical trials for existing or new products, particularly if we are unable to access any additionalportions of the funding contemplated by our BARDA agreement, and we may choose to defer such activities until we can obtain sufficient additional funding or, at such time, ourexisting operations provide sufficient cash flow to conduct these trials.
Although we received FDA approval of our platelet and plasma systems in December 2014, our commercial efforts in 2017 continue to be largely focused on implementingINTERCEPT with customers with whom we have previously signed agreements and developing awareness of INTERCEPT’s product profile relative to other platelet and plasmaproducts, including conventional, un-treated components. Significant product revenue from customers in the U.S. may not occur, if at all, until we have been able to successfullyimplement the platelet and plasma systems and demonstrate that they are economical, safe and efficacious for potential customers. We recognize product revenues from the sale ofour platelet and plasma systems in a number of countries around the world including those in Europe, the Commonwealth of Independent States, or CIS, and the Middle East. If weare unable to gain widespread commercial adoption in markets where our blood safety products are approved for commercialization, including the U.S., we will have difficultiesachieving profitability. In order to commercialize all of our products and product candidates, we will be
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required to conduct significant research, development, preclinical and clinical evaluation, commercialization and regulatory compliance activities for our products and productcandidates, which, together with anticipated selling, general and administrative expenses, are expected to result in substantial losses. Accordingly, we may never achieve aprofitable level of operations in the future.
In addition to the product revenues from sales of our platelet and plasma systems, we anticipate that we will continue to recognize revenue from our BARDA agreement. Werecognize revenue associated with the BARDA agreement as qualified costs are incurred for reimbursement over the performance period.
Fresenius
Through June 30, 2015, we paid royalties to Fenwal Inc., or Fenwal, a subsidiary of Fresenius, on INTERCEPT Blood System product sales under certain agreements that arosefrom the sale of the transfusion therapies division of Baxter International Inc., or Baxter, in 2007 to Fenwal (Fenwal was subsequently acquired by Fresenius in 2012), at rates thatvaried by product: 10% of product sales for the platelet system and 3% of product sales for the plasma system. Fresenius assumed Fenwal’s rights and obligations under thoseagreements, including our manufacturing and supply agreement. In this report, references to Fresenius include references to its predecessors-in-interest, Fenwal and Baxter.
In November 2013, we amended our manufacturing and supply agreement with Fresenius with the new terms effective January 1, 2014, which we refer to as the 2013 Agreement.Under the 2013 Agreement, Fresenius was obligated to sell, and we were obligated to purchase up to a certain specified annual volume of finished disposable kits for the plateletand plasma systems from Fresenius for both clinical and commercial use. Once the specified annual volume of disposable kits was purchased from Fresenius, we were able topurchase additional quantities of disposable kits from other third-party manufacturers. The amended terms also provided for fixed pricing for finished kits with successivedecreasing pricing tiers at various annual production volumes. In addition, the 2013 Agreement required us to purchase additional specified annual volumes of sets if and when anadditional Fresenius manufacturing site was identified and qualified to make INTERCEPT disposable kits, subject to mutual agreement on pricing for disposable kits manufacturedat the additional site. Fresenius was also obligated to purchase and maintain specified inventory levels of our proprietary inactivation compounds and compound adsorption devicesfrom us at fixed prices.
In October 2015, we entered into a ten year Amended and Restated Manufacturing and Supply Agreement, or the 2015 Agreement, with Fresenius, which amended and restated the2013 Agreement. Under the 2015 Agreement, Fresenius continues to be obligated to sell and we are obligated to purchase finished disposable kits for our platelet, plasma and redblood cell systems. The 2015 Agreement permits us to purchase platelet, plasma and red blood cell systems from third parties to the extent necessary to maintain supplyqualifications with such third parties or where local or regional manufacturing is needed to obtain product registrations or sales. Pricing terms are initially fixed and decline atspecified annual production levels, and are subject to certain adjustments after the initial pricing term.
Under the 2015 Agreement, we are no longer required to make royalty payments to Fenwal for the sale of products after June 30, 2015. Under the 2015 Agreement, we maintain theamounts due from the components sold to Fresenius as a current asset on our accompanying consolidated balance sheets until such time as we purchase finished disposable kitsusing those components. The 2015 Agreement also requires us to make certain payments totaling €8.6 million, or the Manufacturing and Development Payments, to Fresenius in2016 and on December 31 of the earlier of (a) the year of achievement of certain production volumes or (b) 2022. Because these payments represent unconditional paymentobligations, we recognize our liability for these payments at their net present value. The Manufacturing and Development Payments liability is accreted through interest expensebased on the estimated timing of its ultimate settlement. As of September 30, 2017, we had accrued $5.6 million (€4.8 million) related to the Manufacturing and DevelopmentPayments.
The Manufacturing and Development Payments will be made to support certain projects Fresenius will perform on our behalf related to research and development, or R&Dactivities and manufacturing efficiency activities. We allocated $4.8 million to R&D activities and $2.4 million to manufacturing efficiency activities based on their market value inOctober 2015. The prepaid asset related to amounts paid up front for the R&D activities to be conducted by Fresenius on our behalf is expensed over the period in which suchactivities occur. The manufacturing efficiency asset is expensed on a straight line basis over the life of the 2015 Agreement.
The initial term of the 2015 Agreement extends through July 1, 2025, or the Initial Term, and is automatically renewed thereafter for additional two year terms, or Renewal Terms,subject to termination by either party upon (i) two years written notice prior to the expiration of the Initial Term or (ii) one year written notice prior to the expiration of anyRenewal Term. Under the 2015 Agreement, we have the right, but not the obligation, to purchase certain assets and assume certain liabilities from Fresenius. In the event thatFresenius refuses or is unable to continue operating under the 2015 Agreement, we may be unable to maintain inventory levels or otherwise meet customer demand, and ourbusiness and operating results would be materially and adversely affected.
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Likewise, if we conclude that supply of the INTERCEPT Blood System or components from Fresenius and others is uncer tain, we may choose to build and maintain inventories ofraw materials, work-in-process components, or finished goods, which would consume capital resources faster than we anticipate and may cause our supply chain to be less efficient.Like most regulated manufacturing processes, our ability to produce our products is dependent on our or our suppliers’ ability to source components and raw materials which mayat times be in short demand or obsolete. In such cases, we and/or Fresenius or other suppliers may n eed to source, qualify and obtain approval for replacement materials orcomponents which would likely prove to be disruptive and consume capital resources sooner than we anticipate.
BARDA
In June 2016, we entered into an agreement with BARDA to support our development and implementation of pathogen reduction technology for platelet, plasma, and red bloodcells, including access to funding that could potentially support various activities, including funding studies necessary to support a potential PMA submission to the FDA for the redblood cell system, and acceleration of commercial scale up activities to facilitate potential adoption of the red blood cell system by U.S. blood centers.
The five-year agreement with BARDA provides for the reimbursement of certain amounts incurred by us in connection with our satisfaction of certain contractual milestones.Under the agreement, we are reimbursed and recognize revenue as qualified direct contract costs are incurred plus allowable indirect costs, based on approved provisional indirectbilling rates, which permit recovery of fringe benefits, overhead and general and administrative expenses. BARDA has exercised its option to provide reimbursement of ourexpenses during a base period, or the Base Period, and options, or Option Periods of up to $88.2 million for expenses related to the clinical development of the red blood cellsystem. If we were to satisfy subsequent milestones and BARDA were to exercise additional options, the total funding opportunity under the BARDA agreement could reach up to$186.2 million over the five-year agreement period. If exercised by BARDA in its sole discretion, each subsequent option would fund activities related to broader implementationof the platelet and plasma system or the red blood cell system in areas of Zika virus risk, clinical and regulatory development programs in support of the potential licensure of thered blood cell system in the U.S., and development, manufacturing and scale-up activities for the red blood cell system. We are currently responsible for co-investment ofapproximately $5.0 million and would be responsible for an additional $9.6 million, if certain additional options were exercised by BARDA. BARDA will make periodicassessments of our progress and the continuation of the agreement is based on our success in completing the required tasks under the Base Period and each Option Period (if and tothe extent any Option Periods are exercised by BARDA). BARDA has rights under certain contract clauses to terminate the agreement, including the ability to terminate forconvenience at any time.
Although BARDA has committed to reimburse us for up to $88.2 million in expenses, we may not receive all of these funds if BARDA were to terminate the agreement. Amountspayable under the BARDA agreement are subject to future audits at the discretion of the government. These audits could result in an adjustment to revenue previously reported,which potentially could be significant.
Equity and Debt Agreements
Cantor
On May 5, 2016, we entered into Amendment No. 2 to the Controlled Equity Offering SM Sales Agreement, dated August 31, 2012, as previously amended on March 21, 2014,which together we refer to as the Cantor Agreement, with Cantor Fitzgerald & Co., or Cantor, that provides for the issuance and sale of shares of our common stock over the termof the Cantor Agreement having an aggregate offering price of up to $132.2 million, $70.0 million of which was available at May 5, 2016, through Cantor. Under the CantorAgreement, Cantor acts as our sales agent and receives compensation based on an aggregate of 2% of the gross proceeds on the sale price per share of our common stock. Theissuance and sale of these shares by us pursuant to the Cantor Agreement are deemed an “at-the-market” offering and are available under the Securities Act of 1933, as amended.During the nine months ended September 30, 2017, 7.6 million shares of our common stock were sold under the Cantor Agreement for net proceeds of $19.3 million. AtSeptember 30, 2017, we had $42.6 million of common stock available to be sold under the Cantor Agreement, subject to the continued effectiveness of our current shelf registrationstatement.
On August 4, 2017, we entered into Amendment No. 3 to the Cantor Agreement. In connection with Amendment No. 3, we filed a new shelf registration statement on Form S-3, orNew Registration Statement. Amendment No. 3 will become effective upon the effectiveness of the New Registration Statement. As amended by Amendment No. 3, the CantorAgreement will provide for the issuance and sale of shares of our common stock with an aggregate offering price of up to $70.0 million through Cantor following the effectivenessof the New Registration Statement, which amount includes any unsold shares of common stock previously available for sale under the Cantor Agreement prior to the effectivenessof the New Registration Statement. As of September 30, 2017, the New Registration Statement had not been declared effective by the U.S. Securities and Exchange Commissionand, as a result, Amendment No. 3 has not become effective. We can make no assurance regarding the initial or continued effectiveness of the New Registration Statement.
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Debt Agreement
On June 30, 2014, we entered into a five year loan and security agreement with Oxford Finance, or the Term Loan Agreement. On June 30, 2014, we received $10.0 million fromthe first tranche, or Term Loan A. On June 15, 2015, we received $10.0 million from the second tranche, or Term Loan B. Term Loan A bore an interest rate of 6.95%, and TermLoan B bore an interest rate of 7.01%. Term Loans A and B were set to mature on June 1, 2019.
On September 29, 2015, the Term Loan Agreement was amended to extend (i) the period in which the third tranche could have been drawn and (ii) the interest-only period for alladvances under the Term Loan Agreement. Following the amendment to the Term Loan Agreement, we were required to make interest only payments through June 2016 followedby thirty-six months of equal principal and interest payments thereafter. On July 28, 2016, the Term Loan Agreement was amended to include an additional interest-only period forall advances under the Term Loan Agreement. As amended, we were required to make interest only payments from August 2016 through January 2017, followed by twenty-ninemonths of equal principal and interest payments thereafter. On April 27, 2017, the Oxford Term Loan Agreement was amended to include an additional interest-only period for alladvances under the Term Loan Agreement. As amended, we were required to make interest only payments from May 2017 through December 2017 followed by eighteen months ofequal principal and interest payments thereafter. We were also required to make a final payment equal to 7% of the principal amounts of the Term Loans drawn payable on theearlier to occur of maturity or prepayment.
On July 31, 2017, we entered into an amended and restated loan and security agreement, or the Amended Credit Agreement, which amended and restated the Term LoanAgreement in its entirety. The Amended Credit Agreement provides for secured growth capital term loans, or 2017 Term Loans, of up to $40.0 million. All of our current andfuture assets, excluding our intellectual property and 35% of our investment in Cerus Europe B.V., are secured for the borrowings under the Amended Credit Agreement. The 2017Term Loans are available in two tranches. The first tranche of $30.0 million, or 2017 Term Loan A, was drawn by us on July 31, 2017, with the proceeds in part to repay in full allof the outstanding the term loans under the Term Loan Agreement of $17.6 million. The second tranche of $10.0 million, or 2017 Term Loan B, will be made available to us uponour achieving consolidated trailing six-month revenues as defined in the agreement, or the Revenue Milestone. If the Revenue Milestone is achieved, we may draw the 2017 TermLoan B through the earlier of (i) January 31, 2019, and (ii) the date which is 60 days after the achievement of the Revenue Milestone. The 2017 Term Loans require interest-onlypayment through February 1, 2019, followed by 42 months of equal principal payments plus declining interest payments. However, if we draw the 2017 Term Loan B, then theinterest-only period will be extended through August 1, 2019, and the amortization period will be reduced to 36 months. Interest on 2017 Term Loan A and 2017 Term Loan B willbear interest at a rate equal to the greater of (i) 8.01% and (ii) the three-month U.S. LIBOR rate plus 6.72%. We will also be required to make a final payment fee of 8.00% of theprincipal amounts of the 2017 Term. The Amended Credit Agreement contains certain nonfinancial covenants, with which we were in compliance at September 30, 2017. See Note7, “Debt”, in the Notes to our unaudited consolidated financial statements for details of our debt agreements.
Critical Accounting policies and Management Estimates
Critical accounting policies are those that require significant judgment and/or estimates by management at the time that the financial statements are prepared such that materiallydifferent results might have been reported if other assumptions had been made. We consider certain accounting policies related to revenue recognition, inventory, accrued expenses,goodwill and intangible assets, stock-based compensation and income taxes to be critical policies. We have no changes to our critical accounting policies since we filed our 2016Form 10-K with the SEC on March 8, 2017. For a description of our other critical accounting policies, please refer to our 2016 Annual Report on Form 10-K.
Results of Operations
Three and nine months ended September 30, 2017 and 2016
Revenue Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Product revenue $ 10,797 $ 10,175 $ 622 6% $ 27,328 $ 27,058 $ 270 1%Government contracts revenue 2,285 261 2,024 775% 5,380 261 5,119 1,961%Total revenue $ 13,082 $ 10,436 $ 2,646 25% $ 32,708 $ 27,319 $ 5,389 20% Product revenue increased during the three months ended September 30, 2017, compared to the three months ended September 30, 2016, primarily due to year-over-year growth inU.S. and EMEA sales of disposable kits for our platelet system and our illuminator device, and, to a lesser extent, due to improved foreign exchange rates for the Euro. Productrevenue remained flat during the nine months ended September 30, 2017, compared to the nine months ended September 30, 2016, while we experienced year-over-year growth insales of platelet disposable kits, this growth was substantially offset by decreased sales of disposable kits for our plasma products, primarily concentrated in France.
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We anticipate product revenue for INTERCEPT disposable kits will increase in future periods as the INTERCEPT Blood System gains market acceptance in geographies wherecommercialization efforts are underway, and as national adoption of the platelet system continues in Fr ance, as well as from continued contribution from U.S. sales and newlyaccessible geographies. However, a deterioration of the Euro relative to the U.S. dollar has in the past and could in the future have a material impact on our product revenues , asthe m ajority of our product revenue is expected to come from Euro denominated markets over the near term . As a result of these and other factors, the historical results may not beindicative of INTERCEPT Blood System product revenue in the future.
We recognized $2.3 million and $5.4 million of revenue from our BARDA agreement during the three and nine months ended September 30, 2017, as a result of the direct andindirect contract costs incurred in the Base Period under the BARDA agreement, and to a lesser extent, under certain options exercised under the BARDA agreement. Werecognized $0.3 million revenue from our BARDA agreement during the three and nine months ended September 30, 2016. As our RedeS study enrolls at more sites and as theother qualified clinical and development activities increase under the options exercised, we anticipate reported BARDA revenue will increase.
Cost of Product Revenue
Our cost of product revenue consists of the cost of the INTERCEPT Blood System sold, provisions for obsolete, slow-moving and unsaleable product, certain order fulfillmentcosts, to the extent applicable and costs for idle facilities. Inventory is accounted for on a first-in, first-out basis. Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Cost of product revenue $ 5,348 $ 5,451 $ (103) (2%) $ 13,402 $ 14,690 $ (1,288) (9%) Cost of product revenue remained relatively flat during the three months ended September 30, 2017, compared to the three months ended September 30, 2016. Cost of productrevenue was impacted by foreign exchange rates, the quantity and relative mix of disposable kits sold during the reported periods and the quantity of illuminators sold, all withgenerally offsetting effects. Cost of product revenue decreased during the nine months ended September 30, 2017, compared to the nine months ended September 30, 2016, as aresult of improved mix of cost of goods sold, notably a higher proportion of lower cost disposable kits for the platelet system and to a lesser extent, inventory managementefficiencies in the current year compared to the prior year.
Our realized gross margin on product sales was 50% during the three months ended September 30, 2017, up from 46% during the three months ended September 30, 2016. Ourrealized gross margin on product sales was 51% during the nine months ended September 30, 2017, up from 46% during the nine months ended September 30, 2016. The increasein gross margins on product sales during the three months ended September 30, 2017, was primarily due to increased demand for disposable kits for the platelet system andfavorable Euro foreign exchange rates. The increase in gross margins on product sales during the nine months ended September 30, 2017, was primarily due to increased demandfor disposable kits for the platelet system and inventory management efficiencies.
Changes in our gross margins on product sales are affected by various factors, including the volume of product manufactured and the relative per unit pricing in our agreement withFresenius, exchange rate of the Euro relative to the U.S. dollar, manufacturing and supply chain costs, the mix of product sold, and the mix of customers to which products are sold.We may encounter unforeseen manufacturing difficulties which, at a minimum, may lead to higher than anticipated costs, scrap rates, or delays in manufacturing products. Inaddition, we may face competition which may limit our ability to maintain existing selling prices for our products which in turn would negatively affect our reported gross marginson product sales. Our gross margins on product sales may be impacted in the future based on all of these and other criteria.
We expect to maintain inventory levels that will be sufficient to meet forecasted demand for a relatively short time period and plan to continue to manufacture at levels above thoseproduced in 2016.
Research and Development Expenses
Our research and development expenses include salaries and related expenses for our scientific personnel, non-cash stock based compensation, payments to consultants, costs toprepare and conduct preclinical and clinical trials, third-party costs for development activities, certain regulatory costs, costs associated with our facility related infrastructure, andlaboratory chemicals and supplies. Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Research and development $ 7,886 $ 7,033 $ 853 12% $ 25,927 $ 22,507 $ 3,420 15%
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Research and development expenses increased during the three and nine months ended September 30, 2017 compared to the three and nine months ended September 30, 2016primarily due to the increased headcount costs and costs associated with clinical development of our INTERCEPT red blood cell system, our pursuit of supplement al approvals forthe platelet and plasma systems, and activities related to the BARDA agreement.
We expect to incur additional research and development costs associated with planning, enrolling and completing our required post-approval studies for the platelet system,pursuing potential regulatory approvals in other geographies where we do not currently sell our platelet and plasma systems, planning and conducting in vitro studies and clinicaldevelopment of our red blood cell system in Europe and the U.S., completing activities to support a potential CE mark submission for our red blood cell system in Europe, newproduct development and product enhancements, including increased claims, and costs associated with performing the activities under our BARDA agreement. Due to the inherentuncertainties and risks associated with developing biomedical products, including, but not limited to, intense and changing government regulation, uncertainty of future preclinicalstudies and clinical trial results and uncertainty associated with manufacturing, it is not possible to reasonably estimate the costs to complete these research and developmentprojects. We face numerous risks and uncertainties associated with the successful completion of our research and development projects, which risks and uncertainties are discussedin further detail under “Item 1A— Risk Factors ” in Part II of this Quarterly Report on Form 10-Q.
Selling, General, and Administrative Expenses
Selling, general, and administrative expenses include salaries and related expenses for administrative personnel, non-cash stock based compensation, expenses for ourcommercialization efforts in a number of countries around the world including those in U.S., Europe, the CIS and the Middle East, Asia, Latin America, and expenses foraccounting, tax, internal control, legal and facility and infrastructure related expenses, and insurance premiums. Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Selling, general and administrative $ 12,180 $ 12,161 $ 19 0% $ 39,907 $ 36,314 $ 3,593 10% Selling, general, and administrative expenses remained flat during the three months ended September 30, 2017, compared to the three months ended September 30, 2016. Selling,general, and administrative expenses increased during the nine months ended September 30, 2017 , compared to the nine months ended September 30, 2016 , primarily due toincreased commercial activity in the U.S. and to a lesser extent, the costs associated with administering the contract with BARDA for INTERCEPT red blood cell development, andbad debt expense related to an uncollectible receivable balance from a former customer.
We anticipate our selling, general, and administrative spending to remain reasonably consistent over the coming year.
Amortization of Intangible Assets
Amortization of intangible assets relates to a license to commercialize the INTERCEPT Blood System in certain Asian countries. These intangible assets are being amortized overan estimated useful life of ten years and will be reviewed for impairment. Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Amortization of intangible assets $ 50 $ 50 $ — 0% $ 151 $ 151 $ — 0% Amortization of intangible assets remained flat during the three and nine months ended September 30, 2017, compared to the three and nine months ended September 30, 2016.
We expect that the amortization of our intangible assets to remain relatively consistent in future periods, unless facts and circumstances arise which may result in our intangibleassets being impaired.
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Non-Operating Expense, Net
Non-operating expense, net consists of foreign exchange gains and losses, interest charges incurred on our debt, and other non-operating gains and losses, including interest earnedfrom our short-term investment portfolio. Three Months Ended Nine Months Ended September 30, September 30, (in thousands, except percentages) 2017 2016 Change 2017 2016 Change Foreign exchange loss $ — $ (61) $ 61 (100%) $ (59) $ (77) $ 18 (23%) Interest expense (1,090) (586) (504) 86% (2,122) (1,899) (223) 12% Other income, net 104 114 (10) (9%) 3,722 293 3,429 1,170% Total non-operating (expense) income, net $ (986) $ (533) $ (453) 85% $ 1,541 $ (1,683) $ 3,224 (192%)
Foreign exchange loss
Foreign exchange loss remained relatively flat during the three and nine months ended September 30, 2017.
Interest expense
Interest expense increased for the three and nine months ended September 30, 2017, compared to the three and nine months ended September 30, 2016, primarily due to increasedaverage outstanding debt balance under our Amended Credit Agreement with Oxford (see discussion under the heading “Debt” below).
Other income, net
Other income, net remained relatively flat during the three months ended September 30, 2017, compared to the three months ended September 30, 2016. Other income, netincreased during the nine months ended September 30, 2017, compared to the nine months ended September 30, 2016, primarily due to the realized gain from the sale of our Adurocommon stock of approximately $3.5 million.
Provision for Income Taxes
For the three months ended September 30, 2017, we recorded a tax expense of less than $0.1 million which was primarily related to earnings of our European subsidiary. Forthe nine months ended September 30, 2017, we recorded a tax expense of $4.0 million, which was primarily due to the gain on the sale of our shares of Aduro. For the three andnine months ended September 30, 2016, we recorded a tax benefit of $0.4 million and a tax expense of $1.4 million, respectively, which were largely the result of changes in thefair value of our investments, primarily shares of Aduro.
We do not provide for U.S. income taxes on undistributed earnings of our foreign operations as we intend to permanently reinvest such earnings outside the U.S. Due to our historyof cumulative operating losses, management has concluded that, after considering all of the available objective evidence, it is not likely that all our net deferred tax assets will berealized. Accordingly, all of our U.S. deferred tax assets continue to be subject to a valuation allowance as of September 30, 2017.
As of September 30, 2017, there have been no material changes to our total amount of unrecognized tax benefits. Liquidity and Capital Resources
In recent years, our sources of capital have primarily consisted of public issuance of common stock, debt instruments, and to a lesser extent, cash from product sales.
At September 30, 2017, we had cash and cash equivalents and restricted cash of $17.0 million and $0.3 million respectively, compared to $22.6 million and $0.2 million,respectively at December 31, 2016. Our cash equivalents primarily consist of money market instruments, which are classified for accounting purposes as available-for-sale. Inaddition, we had $42.6 million of short-term investments at September 30, 2017, and $49.1 million of short-term investments and investments in marketable equity securities atDecember 31, 2016. We also had total indebtedness under our Amended Credit Agreement of approximately $29.8 million at September 30, 2017 and $19.4 million atDecember 31, 2016. Excess cash is typically invested in highly liquid instruments of short-term investments with high-quality credit rated corporate and government agency fixed-income securities in accordance with our investment policy.
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Operating Activities
Net cash used in operating activities was $42.2 million for the nine months ended September 30, 2017, compared to $43.8 million net cash used during the nine months endedSeptember 30, 2016. The decrease in net cash used in operating activities was primarily related to the Manufacturing and Development Payments to Fresenius during the ninemonths ended September 30, 2016, that did not reoccur in the current period. The decrease was also related to the timing of payments related to accounts payable during the ninemonths ended September 30, 2017, as compared to the same period in 2016 .
Investing Activities
Net cash provided by investing activities was $5.0 million for the nine months ended September 30, 2017, compared to $38.6 million net cash used during the nine months endedSeptember 30, 2016. The change period over period was primarily the result of lower purchases of investments, and higher proceeds from the sale of our investment in Adurocommon stock and maturities of investments in marketable securities, during the nine months ended September 30, 2017, as compared to the same period in 2016.
Financing Activities
Net cash provided by financing activities was $31.7 million during the nine months ended September 30, 2017, compared to $24.3 million net cash provided during the nine monthsended September 30, 2016. The change was primarily due to the proceeds received from the 2017 Term Loans described in more detail below, partially offset by the repayment ofTerm Loans A and B under the original Term Loan Agreement, during the nine months ended September 30, 2017.
Working Capital
Working capital decreased to $64.6 million at September 30, 2017, from $67.2 million at December 31, 2016, primarily due to the cash used to support ongoing operations whichresulted in lower cash and cash equivalent balances, and timing of payments related to accounts payable. This was partially offset by the impact of the Amended Credit Agreementand proceeds received from public offerings.
Capital Requirements
Our near-term capital requirements are dependent on various factors, including operating costs and working capital investments associated with commercializing the INTERCEPTBlood System, including in connection with expanding our U.S. commercial capabilities for our platelet and plasma systems, costs to develop different configurations of existingproducts and new products, including our illuminator, costs associated with planning, enrolling and completing ongoing studies, and the post-approval studies we are required toconduct in connection with the FDA approval of the platelet system, costs associated with pursuing potential regulatory approvals in other geographies where we do not currentlysell our platelet and plasma systems, costs associated with conducting in vitro studies and clinical development of our red blood cell system in Europe and the U.S., including ourongoing European Phase III clinical trial of our red blood cell system for chronic anemia patients, costs associated with performing the agreed-upon activities under our BARDAagreement, and costs related to creating, maintaining and defending our intellectual property. Our long-term capital requirements will also be dependent on the success of our salesefforts, competitive developments, the timing, costs and magnitude of our longer-term clinical trials and other development activities related to our platelet, plasma and red bloodcell systems, including required post-approval studies for the platelet system, market preparedness and product launch activities for any of our products in geographies where we donot currently sell our products, and regulatory factors. Until we are able to generate a sufficient amount of product revenue and generate positive net cash flows from operations,which we may never do, meeting our long-term capital requirements is in large part reliant on continued access to funds under our BARDA agreement and the public and privateequity and debt capital markets, as well as on collaborative arrangements with partners, augmented by cash generated from operations and interest income earned on the investmentof our cash balances. We believe that our available cash and cash equivalents and short-term investments, as well as cash to be received from product sales and under our agreementwith BARDA, will be sufficient to meet our capital requirements for at least the next twelve months following the issuance of these financial statements. If we are unable togenerate sufficient product revenue, or access sufficient funds under our BARDA agreement or the public and private equity and debt capital markets, we may be unable to executesuccessfully on our operating plan. We have based our cash sufficiency estimate on assumptions that may prove to be incorrect. If our assumptions prove to be incorrect, we couldconsume our available capital resources sooner than we currently expect or in excess of amounts than we currently expect, which could adversely affect our commercialization andclinical development activities.
We have borrowed and in the future may borrow additional capital from institutional and commercial banking sources to fund future growth, including pursuant to our AmendedCredit Agreement with Oxford Finance, as described below, or potentially pursuant to new arrangements with different lenders. We may borrow funds on terms that may includerestrictive covenants, including covenants that restrict the operation of our business, liens on assets, high effective interest rates and repayment provisions that reduce cashresources and limit future access to capital markets. In addition, we expect to continue to opportunistically seek access to the equity capital markets to support our developmentefforts and operations. To the extent that we raise additional capital by issuing equity securities, our stockholders may experience substantial dilution. To the extent that we raiseadditional funds through collaboration or partnering
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arrangements, we may be required to relinquish some of our rights to our technologies or rights to market and sell our products in certain geographies, grant licenses on terms thatare not favorable to us, or issue equity that may be substantially dilutive to our stockholders .
While we expect to receive significant funding under our five-year agreement with BARDA, which reimburses us for amounts incurred by us in connection with certain specifieddevelopment and clinical activities related to our red blood cell system, our abil ity to obtain the funding we expect to receive under the agreement is subject to various risks anduncertainties, including BARDA’s ability to terminate the agreement for convenience at any time and our ability to achieve the required milestones under the agreement. Inaddition, access to federal contracts is subject to the authorization of funds and approval of our research plans by various organizations within the federal government, including theU.S. Congress. The general economic environment, coupled with tight federal budgets, has led to a general decline in the amount available for government funding. If BARDAwere to eliminate, reduce or delay funding under our agreement, this would have a significant negative impact on the programs associated with such funding and could have asignificant negative impact on our revenues and cash flows. In addition, if we are unable to reach agreement with the FDA on a license-enabling Phase III clinical trial design forour red blood cell system, our agreement with BARDA will be severely limited in scope or could be terminated altogether, and our ability to complete the development activitiesrequired for licensure in the U.S. may require additional capital beyond which we currently have. If alternative sources of funding are not available, we may be forced to suspend orterminate development activities related to the red blood cell system in the U.S.
As a result of economic conditions, general global economic uncertainty, political change and other factors, we do not know whether additional capital will be available whenneeded, or that, if available, we will be able to obtain additional capital on reasonable terms. If we are unable to raise additional capital due to the volatile global financial markets,general economic uncertainty or other factors, we may need to curtail planned development or commercialization activities. In addition, we may need to obtain additional funds tocomplete development activities for the red blood cell system necessary for potential regulatory approval in Europe, if costs are higher than anticipated or we encounter delays. Wemay need to obtain additional funding to conduct additional randomized controlled clinical trials for existing or new products, particularly if we are unable to access any additionalportions of the funding contemplated by our BARDA agreement, and we may choose to defer such activities until we can obtain sufficient additional funding or, at such time, ourexisting operations provide sufficient cash flow to conduct these trials. Commitments and Off-Balance Sheet Arrangements
Off-balance sheet arrangements
We did not have any off-balance sheet arrangements as of September 30, 2017.
Minimum purchase requirements
Our minimum purchase commitments include certain components of our INTERCEPT Blood System which we purchase from third party manufacturers. As of September 30,2017, we had minimum purchase commitments of $10.9 million.
Manufacturing and development obligations
On October 19, 2015, we entered into the 2015 Agreement with Fresenius. The 2015 Agreement calls for a remaining payment of $6.5 million (€5.5 million) on December 31 ofthe year in which certain production volumes are achieved, or December 31, 2022, whichever occurs first. We expect to achieve the production threshold in 2019.
Operating leases
We generally lease our office facilities and certain equipment and automobiles under non-cancelable operating leases with initial terms in excess of one year that require us to payoperating costs, property taxes, insurance and maintenance. The operating leases expire at various dates through 2021, with certain of the leases providing for renewal options,provisions for adjusting future lease payments, which is based on the consumer price index and the right to terminate the lease early. Our leased facilities qualify as operating leasesunder ASC Topic 840, “Leases” and as such, are not included on our unaudited condensed consolidated balance sheets. As of September 30, 2017, our total future lease paymentsunder non-cancelable operating leases were $2.6 million.
Other commitments
Our other commitments primarily consist of obligations for business insurance financing and our landlord financed leasehold improvements, which are in addition to the operatingleases we have for office and laboratory space. We pay for the financed leasehold improvements as a component of rent and are required to reimburse our landlords over theremaining life of the respective leases. As of September 30, 2017, we had an outstanding liability of $0.7 million related to the remaining payments for the financed businessinsurance and $0.3 million related to these leasehold improvements.
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Debt
On June 30, 2014, we entered into the Term Loan Agreement with Oxford Finance. On June 30, 2014, we received $10.0 million from Term Loan A. On June 15, 2015, wereceived $10.0 million from Term Loan B. On September 29, 2015, the Term Loan Agreement was amended to extend the period in which the third tranche could have been drawnand the interest-only period for all advances under the Term Loan Agreement. Term Loan A bore an interest rate of 6.95%, and Term Loan B bore an interest rate of 7.01%. TermLoans A and B were set to mature on June 1, 2019. Following the amendment, we were required to make interest only payments through June 2016 followed by thirty-six monthsof equal principal and interest payments thereafter. We are also required to make a final payment equal to 7% of the principal amounts of the Term Loans drawn payable on theearlier to occur of maturity or prepayment.
On July 28, 2016, the Term Loan Agreement was further amended to include an additional interest-only period for all advances under the Term Loan Agreement. As amended, wewere required to make interest only payments from August 2016 through January 2017 followed by twenty-nine months of equal principal and interest payments thereafter.
On April 27, 2017, the Term Loan Agreement was further amended to include an additional interest-only period for all advances under the Term Loan Agreement. As amended, weare required to make interest only payments from May 2017 through December 2017 followed by eighteen months of equal principal and interest payments thereafter.
On July 31, 2017, or the Closing Date, we entered into Amended Credit Agreement with Oxford, which amends and restates in its entirety the Term Loan Agreement. TheAmended Credit Agreement provides for secured growth capital term loans of up to $40.0 million (the “2017 Term Loans”). All of our current and future assets, excluding ourintellectual property and 35% of our investment in Cerus Europe B.V., are secured for the borrowings under the Amended Credit Agreement. The 2017 Term Loans are available intwo tranches. The first tranche of $30.0 million (“2017 Term Loan A”) was drawn by us on July 31, 2017, with the proceeds used in part to repay in full all of the outstanding termloans under the Term Loan Agreement of $17.6 million. The second tranche of $10.0 million (“2017 Term Loan B”) will be made available to us upon our achieving consolidatedtrailing six-month revenues as defined in the agreement (the “Revenue Milestone”). If the Revenue Milestone is achieved, we may draw the 2017 Term Loan B through the earlierof (i) January 31, 2019 and (ii) the date which is 60 days after the achievement of the Revenue Milestone. The 2017 Term Loans require interest-only payments through February 1,2019 followed by 42 months of equal principal payments plus declining interest payments. However, if we draw the 2017 Term Loan B, then the interest-only period will beextended through August 1, 2019 and the amortization period will be reduced to 36 months. Interest on 2017 Term Loan A and 2017 Term Loan B will bear interest at a rate equalto the greater of (i) 8.01% and (ii) the three-month U.S. LIBOR rate plus 6.72%. We will also be required to make a final payment fee of 8.00% of the principal amounts of the2017 Term Loans. The Amended Credit Agreement contained certain nonfinancial covenants, with which we were in compliance at September 30, 2017. While we believe that ouravailable cash and cash equivalents and short-term investments, as well as cash to be received from product sales and under our agreement with BARDA, will be sufficient to meetour capital requirements for at least the next twelve months, if we are unable to generate sufficient product revenue, or access sufficient funds under our BARDA agreement or thepublic and private equity and debt capital markets, we may be unable to execute successfully on our operating plan. If we were to default under the Amended Credit Agreement,our lenders could foreclose on our assets, including substantially all of our cash, which is held in accounts with our lenders. We pledged all current and future assets, excluding ourintellectual property and 35% of our investment in our subsidiary, Cerus Europe B.V., as security for borrowings under the Amended Credit Agreement.
Financial Instruments
Our investment policy is to manage our marketable securities portfolio to preserve principal and liquidity while maximizing the return on the investment portfolio to assist us infunding our operations. We currently invest our cash and cash equivalents in money market funds and interest-bearing accounts with financial institutions. Our money market fundsare classified as Level 1 in the fair value hierarchy, in which quoted prices are available in active markets, as the maturity of money market funds are relatively short and thecarrying amount is a reasonable estimate of fair value. Our available-for-sale securities related to corporate debt and U.S. government agency securities are classified as Level 2 inthe fair value hierarchy, which uses observable inputs to quoted market prices, benchmark yields, reported trades, broker/dealer quotes or alternative pricing sources withreasonable levels of price transparency. We maintain portfolio liquidity by ensuring that the securities have active secondary or resale markets. We did not record any other-than-temporary impairment losses during the three and nine months ended September 30, 2017 or the year ended December 31, 2016. Adverse global economic conditions have had, andmay continue to have, a negative impact on the market values of potential investments.
New Accounting pronouncements
See “New Accounting Pronouncements” section in Note 1, “Summary of Significant Accounting Policies” in the Notes to our unaudited condensed consolidated financialstatements.
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ITEM 3. QUANTITATIvE AND QUALITAT IvE DISCLOSURES ABOUT MARkET RISk
During the nine months ended September 30, 2017, there were no material changes to our market risk disclosures as set forth under, “Item 7A – Quantitative and QualitativeDisclosures About Market Risk ,” in Part II of our Annual Report on Form 10-K for the year ended December 31, 2016.
ITEM 4. CONTROLS AND pROCEDURES
Evaluation of Disclosure Controls and Procedures
Our principal executive officer and principal financial officer are responsible for establishing and maintaining “disclosure controls and procedures” (as defined in Rules 13a-15(e)and 15d-15(e), promulgated under the Securities Exchange Act of 1934, as amended) for our company. Based on their evaluation of our disclosure controls and procedures as of theend of the period covered by this Quarterly Report on Form 10-Q, our principal executive officer and principal financial officer have concluded that our disclosure controls andprocedures were effective as of September 30, 2017.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting which occurred during our fiscal quarter ended September 30, 2017, that have materially affected, or isreasonably likely to materially affect, our internal control over financial reporting.
Limitations on the Effectiveness of Controls
A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Because of theinherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues, if any, within a company have been detected.Accordingly, our disclosure controls and procedures are designed to provide reasonable assurance, not absolute assurance, that the objectives of our disclosure control system aremet and, as set forth above, our principal executive officer and principal financial officer have concluded, that based on their evaluation as of the end of the period covered by thisQuarterly Report on Form 10-Q, our disclosure controls and procedures were effective to provide reasonable assurance that the objective of our disclosure control system were met. pART II: OTHER INFORMATION
ITEM 1. LEGAL pROCEEDINGS
None.
ITEM 1A. RISk FACTORS
Our business faces significant risks. If any of the events or circumstances described in the following risks actually occurs, our business may suffer, the trading price of our commonstock could decline and our financial condition or results of operations could be harmed. These risks should be read in conjunction with the other information set forth in thisreport. The risks and uncertainties described below are not the only ones facing us. There may be additional risks faced by our business. Other events that we do not currentlyanticipate or that we currently deem immaterial also may adversely affect our financial condition or results of operations.
We depend substantially upon the commercial success of the INTERCEPT Blood System for platelets and plasma in the United States, or U.S., and our inability to successfullycommercialize the INTERCEPT Blood System in the U.S. would have a material adverse effect on our business, financial condition, results of operations and growthprospects.
We have invested a significant portion of our efforts and financial resources on the development of the INTERCEPT Blood System for platelets and plasma for the U.S. market. Asa result, our business is substantially dependent on our ability to successfully commercialize the INTERCEPT Blood System in the U.S. in a timely manner. In December 2014, wereceived U.S. regulatory approval of the INTERCEPT Blood System for platelets and plasma, with certain restrictions regarding usage and although the INTERCEPT BloodSystem is now commercially available in the U.S., we have no prior experience commercializing any products in the U.S. and we may be unable to commercialize the INTERCEPTBlood System in the U.S. successfully or in a timely manner, or at all. In addition, although we received FDA approval of our platelet and plasma systems in December 2014, ourcommercial efforts in 2017 will continue to be largely focused on implementing INTERCEPT to customers with whom we have previously signed agreements and developingawareness of INTERCEPT’s product profile relative to other platelet and plasma products, including conventional, un-treated components. Significant product revenue fromcustomers in the U.S. may not occur, if at all, until we have been able to successfully implement the platelet and plasma systems and demonstrate that they are economical, safe andefficacious for potential customers. Based on our experience in foreign jurisdictions, and our experience with U.S. customers to date, some
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potential customers in the U.S. have chosen to first validate our technology or conduct other pre-adoption activities prior to purchasing or deciding whether to adopt theINTERCEPT Blood System for commercial use, which ma y never occur. In addition, potential customers and certain existing customers must obtain site-specific licenses from theCenter for Biologics Evaluation and Research, or CBER, prior to engaging in interstate transport of blood components processed using the INTERCEPT Blood System, whichcould significantly delay or preclude our ability to successfully commercialize the INTERCEPT Blood System to those customers for the portion of their business involved ininterstate commerce. Until those licenses are obta ined, U.S. blood centers will be limited to sales to hospital customers within the state in which the INTERCEPT-treated plateletsor plasma are processed. Further, the hospital customers of any of our new blood center customers will need to go through the administrative process of generating internal trackingcodes to integrate INTERCEPT-treated products into their inventories, which may further delay customer adoption in the U.S. The availability of platelets in the U.S. is currentlyconstrained. Should U. S. blood centers prioritize obtaining and selling conventional, untreated platelet components over INTERCEPT-treated components, we may not achievewidespread market adoption. If we are not successful in achieving market adoption of the INTERCEPT Blood Sys tem in the U.S., we may never generate substantial productrevenue, and our business, financial condition, results of operations and growth prospects would be materially and adversely affected.
Our ability to successfully commercialize the INTERCEPT Blood System for platelets and plasma in the U.S. will depend on our ability to:
• achieve market acceptance and generate product sales through execution of sales agreements on commercially reasonable terms;
• enter into and maintain sufficient manufacturing arrangements for the U.S. market with our third party suppliers;
• create market demand for the INTERCEPT Blood System through our education, marketing and sales activities;
• hire, train, deploy, support and maintain a qualified U.S.-based commercial organization and field sales force;
• expand the labeled indications of use for the INTERCEPT Blood System and/or design, develop and test new product configurations;
• comply with requirements established by the FDA, including post-marketing requirements and label restrictions; and
• comply with other U.S. healthcare regulatory requirements.
In addition to the other risks described herein, our ability to successfully commercialize the INTERCEPT Blood System for platelets and plasma in the U.S. is subject to a numberof risks and uncertainties, including those related to:
• the highly concentrated U.S. blood collection market that is dominated by a small number of blood collection organizations;
• availability of donors;
• regulatory and licensing requirements, including the CBER licensing process that U.S.-based blood centers are required to follow in order to obtain the requiredsite-specific licenses to engage in interstate transport of blood components processed using the INTERCEPT Blood System;
• changed or increased regulatory restrictions or requirements;
• the amount available for reimbursement pursuant to codes we have obtained under the Healthcare Common Procure Coding System, or HCPCS, and pricing foroutpatient use of INTERCEPT-treated blood components;
• any supply or manufacturing problems or delays arising with any of our suppliers, many of whom are our sole suppliers for the particular product or componentthey manufacture, including the ability of such suppliers to maintain FDA approval to manufacture the INTERCEPT Blood System and to comply with FDA-mandated current Good Manufacturing Practice, or cGMP, and Quality System Regulation, or QSR, requirements;
• dependency upon any third party manufacturer that supplies products required by blood centers to process and store blood components consistent with ourapproved specifications and claims, including but not limited to, apheresis collection devices, disposable blood bags and reagents, and PAS;
• changes in healthcare laws and policy, including changes in requirements for blood product coverage by U.S. federal healthcare programs; and
• acceptance of the INTERCEPT Blood System as safe, effective and economical from the broad constituencies involved in the healthcare system.
In addition to the above, our ability to successfully commercialize the INTERCEPT Blood System in the U.S. is dependent on our ability to operate without infringing on theintellectual property rights of others. For example, we are aware of a U.S. patent issued to a
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third-party that covers methods to remove psoralen compounds from blood products. We have reviewed the patent and believe there exists substantial questions concerning itsvalidity. We cannot be certain, however, that a court would hold the pate nt to be invalid or not infringed by our platelet or plasma systems. In this regard, whether or not weinfringe this patent will not be known with certainty unless and until a court interprets the patent in the context of litigation. In the event that we a re found to infringe any validclaim of this patent, we may, among other things, be required to pay damages, cease the use and sale of our platelet and plasma systems and/or obtain a license from the owner ofthe patent, which we may not be able to do at a reasonable cost or at all.
These and the other risks described below related to the commercialization of the INTERCEPT Blood System could have a material adverse effect on our ability to successfullycommercialize the INTERCEPT Blood System for platelets and plasma in the U.S.
The INTERCEPT Blood System may not achieve broad market adoption.
In order to increase market adoption of the INTERCEPT Blood System and to increase market demand in the U.S., we must address issues and concerns from broad constituenciesinvolved in the healthcare system, from blood centers to patients, transfusing physicians, key opinion leaders, hospitals, private and public sector payors, regulatory bodies andpublic health authorities. We may be unable to demonstrate to these constituencies that the INTERCEPT Blood System is safe, effective and economical or that the benefits ofusing the INTERCEPT Blood System products justify their cost and outweigh their risks.
The use of the platelet system results in some processing loss of platelets. If the loss of platelets leads to increased costs, or the perception of increased costs for our customers, orour customers or prospective customers believe that the loss of platelets reduces the efficacy of the transfusion unit, or our process requires changes in blood center or clinicalregimens, prospective customers may not adopt our platelet system. Additionally existing customers may not believe they can justify any perceived operational change orinefficiency by itself or in conjunction with a blood component availability shortage. Certain customers that attempt to optimize collection practices in order to produce the highestvolume of transfusable units with those collections may experience a less optimized yield as result of adopting INTERCEPT over conventional platelet products. Certain studieshave indicated that transfusion of conventionally prepared platelets may yield higher post-transfusion platelet counts (according to a measurement called “corrected countincrement”) and may be more effective than transfusion of INTERCEPT-treated platelets. Although certain other studies demonstrate that INTERCEPT-treated platelets retaintherapeutic function comparable to conventional platelets, prospective customers may choose not to adopt our platelet system due to considerations relating to corrected countincrement, efficacy or other factors.
The INTERCEPT Blood System does not inactivate all known pathogens, and the inability of the INTERCEPT Blood System to inactivate certain pathogens may limit its marketadoption. For example, our products have not been demonstrated to be effective in the reduction of certain non-lipid-enveloped viruses, including hepatitis A and E viruses, due tothese viruses’ biology. In addition, our products have not demonstrated a high level of reduction for human parvovirus B-19, which is also a non-lipid-enveloped virus. Althoughwe have shown high levels of reduction of a broad spectrum of lipid-enveloped viruses, prospective customers may choose not to adopt our products based on considerationsconcerning inability to inactivate, or limited reduction, of certain non-lipid-enveloped viruses. Similarly, although our products have been demonstrated to effectively inactivatespore-forming bacteria, our products have not been shown to be effective in reducing bacterial spores once formed. In addition, our products do not inactivate prions since prions donot contain nucleic acid. While transmission of prions has not been a major problem in blood transfusions, and we are not aware of any competing products that inactivate prions,the inability to inactivate prions may limit market adoption of our products. Furthermore, due to limitations of detective tests, we cannot exclude that a sufficient quantity ofpathogen or pathogens may still be present in active form, which could present a risk of infection to the transfused patient. Should INTERCEPT-treated components containdetectable levels of pathogens after treatment, the efficacy of INTERCEPT may be called into question, whether or not any remaining pathogens are the result of INTERCEPT’sefficacy or other factors. Such uncertainties may limit the market adoption of our products.
In 2015, we conducted a Phase I clinical study protocol under an investigational device exemption, or IDE, to treat plasma derived from convalesced patients that were previouslyinfected with the Ebola virus and had recovered from the disease according to the criteria set by the Centers for Disease Control and Prevention. The transfusion of convalescedplasma from Ebola survivors is believed to pass on antibodies to the disease from the survivor to the recipient of the plasma transfusion. INTERCEPT use under the IDE waslimited to pathogen reduction claims that relied on existing clinical data that we had regarding reduction of certain pathogens in donated plasma. Accordingly, the study was notdesigned to generate any data on the efficacy of INTERCEPT to inactivate the Ebola virus, and we still do not have any clinical or commercial data on the efficacy of INTERCEPTto inactivate the Ebola virus, and therefore, we do not know the effectiveness of INTERCEPT to inactivate the Ebola virus. This may negatively impact a customer’s desire to adoptINTERCEPT in those countries where addressing an Ebola virus outbreak is a primary concern.
We have conducted studies of our products in both in vitro and in vivo environments using well-established tests that are accepted by regulatory bodies. When an in vitro test wasnot generally available or not well-established, we conducted in vivo studies in mammalian models to predict human responses. Although we have no reason to believe that the invitro and in vivo studies are not
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predictive of actual results in humans, we cannot be certain that the results of these in vitro and in vivo studies accurately predict the actual results in humans in all cases. Inaddition, strains of infectious agents in living donors may be different from those strains commercially available or for which we have tested and for which we have receiv edapproval of the inactivation claims for our products. To the extent that actual results in human patients differ, commercially available or tested strains prove to be different, orcustomers or potential customers perceive that actual results differ fro m the results of our in vitro or in vivo testing, market acceptance of our products may be negatively impacted.
If customers experience operational or technical problems with the use of INTERCEPT Blood System products, market acceptance may be reduced or delayed. For example, ifadverse events arise from incomplete reduction of pathogens, improper processing or user error, or if testing of INTERCEPT-treated blood samples fails to reliably confirmpathogen reduction, whether or not directly attributable to the INTERCEPT Blood System, customers may refrain from purchasing our products. Furthermore, should customerscommunicate operational problems or suspected product failure, we will need to investigate and report imputability to the relevant regulatory authorities in a timely manner. Wemay be required to file reports on such complaints or product failure before we have the ability to obtain conclusive data as to imputability which may cause concern with existingand prospective customers or regulators. The United States is currently experiencing a shortage of platelet components in many markets. Should customers feel that INTERCEPTtreatment has a negative impact on the number of transfusable platelet units able to be manufactured from available donors, our ability to convince a blood center to treat increasingproportions of its platelet units may be negatively impacted. In addition, there is a risk that further studies that we or others may conduct, including the post-approval studies we arerequired to conduct as a condition to the FDA approval of the platelet system, will show results inconsistent with previous studies. Should this happen, potential customers maydelay or choose not to adopt our products and existing customers may cease use of our products. In addition, some hospitals may decide to purchase and transfuse bothINTERCEPT-treated blood components and conventional blood components. Managing such a dual inventory of blood products may be challenging, and hospitals may need toamend their product labels and inventory management systems before being able to move forward with INTERCEPT. This may require coordination between hospital suppliers andblood centers, which in turn may cause delay in market adoption. Further, in certain markets, potential customers may require us to develop, sell, and support data managementapplication software for their operations before they would consider adopting INTERCEPT. Such software development efforts may be costly or we may be unsuccessful indeveloping a data management application that would be broadly accepted. Developing, maintaining and supporting software can be time consuming, costly and may requireresources and skill sets that we do not possess. Failure to do so may limit market adoption in geographies where we commercialize the INTERCEPT Blood System, including theU.S.
Market adoption of our products is affected by blood center and healthcare facility budgets and the availability of reimbursement from governments, managed care payors, such asinsurance companies, and/or other third parties. In many jurisdictions, due to the structure of the blood products industry, we have little control over budget and reimbursementdiscussions, which generally occur between blood centers, healthcare facilities such as hospitals, and national or regional ministries of health and private payors. Even if aparticular blood center is prepared to adopt the INTERCEPT Blood System, its hospital customers may not accept or may not have the budget to purchase INTERCEPT-treatedblood products. Since blood centers would likely not eliminate the practice of screening donors or testing blood for some pathogens prior to transfusion, even after implementingour products, some blood centers may not be able to identify enough cost offsets or hospital pricing increases to afford to purchase our products. Budgetary concerns may be furtherexacerbated by economic legislation in certain countries and by proposals by legislators at both the U.S. federal and state levels, regulators, healthcare facilities and third partypayors to keep healthcare costs down, which may limit the adoption of new technologies, including our products. In some jurisdictions, including in the U.S. for in-patienttreatment, commercial use of our products is not approved for reimbursement by governmental or commercial third party payors for health care services and may never beapproved for specific reimbursement. In the U.S., we obtained HCPCS reimbursement codes for INTERCEPT treated platelets and plasma in the outpatient setting in 2015. Thecosts and expenses incurred by the blood center related to donor blood are typically included in the price that the blood center charges a hospital for a unit of blood. Even afterblood components treated with our products are approved for reimbursement by governmental or commercial third party payors, including under HCPCS codes, the costs andexpenses related to use of the INTERCEPT Blood System will not be directly reimbursed, but instead may be incorporated within the reimbursement structure for medicalprocedures and/or products at the site of patient care. If the costs to the hospital for INTERCEPT-processed blood products cannot be easily, readily, or fully incorporated into theexisting reimbursement structure, hospital billing and/or reimbursement for these products could be impacted, thus negatively impacting hospitals’ acceptance and uptake of ourproducts.
The market for the INTERCEPT Blood System is highly concentrated with few customers, including often-dominant regional or national blood collection entities. Even where ourproducts receive regulatory approval and reimbursement is available, failure to effectively market, promote, distribute, price or sell our products to any of these customers couldsignificantly delay or even diminish potential product revenue in those geographies. Moreover, the market for pathogen reduction systems in the U.S. is highly concentrated anddominated by a small number of blood collection organizations. In the U.S., the American Red Cross represents the largest single portion of the blood collection market. While weentered into a multi-year commercial agreement with the American Red Cross in February 2016, we cannot guarantee the volume or timing of commercial purchases that theAmerican Red Cross may make, if any, under our agreement. Our ability to gain significant market penetration in the U.S. is largely dependent on utilization of
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INTERCEPT and distribution of INTERCEPT treated blood components by the American Red Cross. The American Red Cross is a large organization and broad-based utilizationof INTERCE PT and distribution of INTERCEPT treated products may be concentrated in a limited number of centers or may occur slowly, if at all. Conversely, given the largerelative size of the American Red Cross, should they deploy the technology rapidly, our resourc es may be inadequate to fulfill the American Red Cross’s and other customers’demands, which could result in a loss of product revenues or customer contracts, or both. In many countries in Western Europe and in Japan, various national blood transfusion services or Red Cross organizations collect, store and distribute virtually all of their respective nations’ blood and blood components supply. In Europe, the largest markets for ourproducts are in Germany, France, and England. In Germany, decisions on produ ct adoption are made on a regional or even blood center-by-blood center basis, but depend on bothlocal approvals and centralized regulatory approvals from the Paul Ehrlich Institute, or PEI. Obtaining these approval requires blood center support and effor t to obtain theapprovals, which even if they put forth the effort to obtain those approval, may take a significant period of time to obtain, if ever. Product specifications that receive marketingauthorization from the PEI may differ from product specific ations that have been adopted in other territories where we rely on CE mark approval, thereby necessitating marketspecific modifications to the commercial product, which may not be economical or technically feasible for us.
In July 2017, we entered into new agreements with the Établissement Français du Sang, or the EFS, to supply illuminators, platelet and plasma disposable kits. Although theagreement suggests that the EFS aims to standardize production of its platelets using the INTERCEPT Blood System, we cannot provide assurance that this will happen or that itwould be sustainable should it occur. In addition, we cannot provide any assurance that we will be able to secure any subsequent contracts with EFS or that the terms, including thepricing or committed volumes, if any, of any future contract will be equivalent or superior to the terms under our current contract. If the final commercial terms of any subsequentcontract are less favorable than the terms under our existing contract, our financial results may be adversely impacted.
In Japan, the Japanese Red Cross controls a significant majority of blood transfusions and exerts a high degree of influence on the adoption and use of blood safety measures inJapan. The Japanese Red Cross has been reviewing preclinical and clinical data on pathogen reduction of blood over a number of years and has yet to make a formal determinationto adopt any pathogen reduction approach. We also understand that the Japanese Red Cross has begun formal evaluation of a competing technology. Before the Japanese Red Crossconsiders our products, we understand that we may need to commit to making certain product configuration changes, which are currently under development but may not beeconomically or technologically feasible for us to accomplish.
Given the concentrated nature of many of the largest potential customers, should those customers choose to adopt and standardize their production on the INTERCEPT BloodSystem, our ability to meet such significant demand may be constrained due to a variety of factors, including supply issues, manufacturing disruptions, or obsolescence of parts,among others. If we encounter such disruptions or supply shortages, we may have to allocate available products to customers, which could negatively impact our business andreputation or cause those customers to look for alternatives to the INTERCEPT Blood System.
We expect to continue to generate losses.
We may never achieve a profitable level of operations. Our cost of product sold, research and development and selling, general and administrative expenses have resulted insubstantial losses since our inception. The platelet and plasma systems have been approved in the U.S. only since December 2014 and are not approved in many countries aroundthe world. The red blood cell system is in the development stage and may never emerge from the development stage as a marketed product. We may be required to reduce the salesprice for our products in order to make our products economically attractive to our customers and to governmental and private payors, or to compete favorably with other bloodsafety interventions or other pathogen reduction technologies, which may reduce or altogether eliminate any gross profit on sales. At our present and expected near-term saleslevels of the platelet and plasma systems, our costs to manufacture, distribute, market, sell, and support the systems are and are expected to continue to be in excess of our revenue.We expect our losses to continue at least until we are able to gain widespread commercial adoption, which may never occur. We expect to incur additional research anddevelopment costs associated with the development of different configurations of existing products including our illuminator, development of new products, planning, enrolling andcompleting ongoing clinical and non-clinical studies, including the post-approval studies we are required to conduct in connection with the FDA approval of the platelet system,pursuing potential regulatory approvals in other geographies where we do not currently sell our platelet and plasma systems, planning and conducting in vitro studies and clinicaldevelopment of our red blood cell system in Europe and the U.S., and completing activities to support a potential CE mark submission for our red blood cell system in Europe.These costs could be substantial and could extend the period during which we expect to operate at a loss, particularly if we experience any difficulties or delays in completing theactivities.
In certain countries, governments have issued regulations relating to the pricing and profitability of medical products and medical product companies. Healthcare reform in the U.S.has also placed downward pressure on the pricing of medical products that could have a negative impact on our profit margins.
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Adverse market and economic conditions may exacerbate certain risks affecting our business.
Sales of our products are dependent on purchasing decisions of and/or reimbursement from government health administration authorities, distribution partners and otherorganizations. As a result of adverse conditions affecting the global economy and credit and financial markets, disruptions due to political instability or terrorist attacks, economiesand currencies largely affected by declining commodity prices or otherwise, these organizations may defer purchases, may be unable to satisfy their purchasing or reimbursementobligations, or may delay payment for the INTERCEPT Blood System.
The sales of our products in Europe and CIS countries are denominated in Euros and other currencies. As a result, we are exposed to foreign exchange risk, and our results ofoperations have been and will continue to be impacted by fluctuations in the exchange rate between the U.S. dollar and other currencies, in particular the Euro. In addition, therehave been concerns for the overall stability and suitability of the Euro as a single currency given the economic and political challenges facing individual Eurozone countries.Continuing deterioration in the creditworthiness of Eurozone countries, the withdrawal of, or the announcement of the withdrawal of, one or more member countries from theEuropean Union, or E.U., following the United Kingdom ’s, or U.K.’s, referendum in which voters approved an exit from the E.U., or the failure of the Euro as a commonEuropean currency or an otherwise diminished value of the Euro could materially and adversely affect our product revenue.
A meaningful amount of our product revenue has come from sales to our distributor in Russia and other CIS countries. Low worldwide oil prices and the ongoing civil, political andeconomic disturbances in Russia, Turkey and Ukraine, and their spillover effect on surrounding areas, along with the impact of sanctions imposed against Russia by certainEuropean nations and the U.S., have significantly devalued the Russian Ruble and other CIS currencies and may continue to have a negative impact on the Russian and other CIScountries’ economies, particularly if sanctions continue to be levied against Russia or are strengthened from those currently in place from either the E.U., U.S. or both. Forexample, in July 2017, the U.S. congressional leaders reached an agreement on additional sanctions against Russia, which are expected to be signed into law by the Trumpadministration. While our agreement with our Russian and other CIS distributors calls for sales, invoicing and collections to be denominated in Euros, if significant sanctionscontinue or are strengthened, if new sanctions are imposed in connection with Russia’s alleged interference in the U.S. election or otherwise, if worldwide oil prices continue toremain low and/or if measures taken by the Russian government to support the Ruble fail, the Russian economy and value of the Ruble or other CIS currencies may further weakenor remain weak, and our business in Russia and other CIS countries may be negatively impacted further or never recover to historical levels. Similarly, low worldwide oil pricesand current political conflicts may negatively impact potential future sales of our products in the Middle East and other oil producing exporters.
In addition, terrorist attacks and civil unrests in some of the countries where we do business, and the resulting need for enhanced security measures may impact our ability todeliver services, threaten the safety of our employees, and increase our costs of operations.
Our products, blood products treated with the INTERCEPT Blood System and we are subject to extensive regulation by domestic and foreign authorities. If our preclinical andclinical data are not considered sufficient by a country’s regulatory authorities to grant marketing approval, we will be unable to commercialize our products and generateproduct revenue in that country. Our investigational red blood cell system requires extensive additional testing and development.
Our products, both those sold commercially and those under development are subject to extensive and rigorous regulation by local, state and federal regulatory authorities in theU.S. and by foreign regulatory bodies. These regulations are wide-ranging and govern, among other things:
• development;
• testing;
• manufacturing;
• labeling;
• storage;
• clinical trials;
• product safety;
• pre-market clearance or approval;
• sales and distribution;
• use standards and documentation;
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• conformity assessment procedures;
• product traceability and record keeping procedures;
• post-launch surveillance and post-approval studies;
• quality;
• advertising and promotion;
• product import and export; and
• reimbursement.
Our products must satisfy rigorous standards of safety and efficacy and we must adhere to quality standards regarding manufacturing and customer-facing business processes inorder for the FDA and international regulatory authorities to approve them for commercial use. For our product candidates, we must provide the FDA and international regulatoryauthorities with preclinical, clinical and manufacturing data demonstrating that our products are safe, effective and in compliance with government regulations before the productscan be approved for commercial sale. The process of obtaining required regulatory approvals is expensive, uncertain and typically takes a number of years. We may continue toencounter significant delays or excessive costs in our efforts to secure necessary approvals or licenses, or we may not be successful at all. In addition, our labeling claims may notbe consistent across markets. Our approved labels from the FDA limit our current approvals to certain platelet collection platforms and a particular storage solution for theparticular collection platform. For instance, our FDA approved claims permit apheresis collection of platelets on the Fresenius Amicus device while stored in an additive solution orfor apheresis collection of platelets collected on the Terumo Trima device and stored in 100% plasma. Such discrepant collection methodologies and storage solutions andconditions also exist for red blood cells. We may be required to provide the FDA with data for each permutation for which blood banking treatment practices exist which may betime consuming, costly and limit the potential size of the U.S. market that can use our products. In addition, in order to generate data that would be satisfactory to the FDA, we needto test our products with different blood center production configurations producing otherwise saleable products for the blood center. As such, we will generally need to purchaseblood components which are expensive and may be limited during periods of low availability. For example, we continue to experience such availability constraints for platelets.Any such inability to procure blood components at a reasonable price, or at all, to conduct studies in order to generate data sufficient for label claim expansions may negativelyimpact our business opportunities.
Clinical and Preclinical
Clinical trials are particularly expensive and have a high risk of failure. Any of our trials may fail or may not achieve results sufficient to attain market acceptance, which couldprevent us from achieving profitability. We do not know whether we will begin or complete clinical trials on schedule, if at all. Clinical trials can be delayed for a variety ofreasons, including delays in obtaining regulatory approval to commence a study, delays in reaching agreement on acceptable clinical study agreement terms with prospectiveclinical sites, delays in obtaining institutional review board, ministry of health or ethical committee approval to conduct a study at a prospective clinical site, delays in recruitingsubjects to participate in a study, delays in the conduct of the clinical trial by personnel at the clinical site or due to our inability to actively and timely monitor clinical trial sitesbecause of travel restrictions, political instability or terrorist activity or concerns over employee safety. For example, our chronic anemia trial is currently ongoing in Turkey. Wehave in the past restricted and may again in the future need to restrict travel to Turkey for monitoring site visits or to otherwise manage the trial due to state department issued travelwarnings and restrictions. Significant delays in clinical testing could also materially impact our clinical trials. For example, our RedeS red blood cell study is ongoing in PuertoRico which has seen massive destruction from the recent hurricanes. The blood centers and hospitals have been significantly impacted, causing delays in enrollment and progresson the trial for the time being as they recover from the storms. We are evaluating and working toward enrolling patients in Florida, though we cannot be certain when or if we willever be successful in expanding the study beyond Puerto Rico. Criteria for regulatory approval in blood safety indications are evolving, reflecting competitive advances in thestandard of care against which new product candidates are judged, as well as changing market needs and reimbursement levels. Clinical trial design, including enrollment criteria,endpoints and anticipated label claims are thus subject to change, even if original objectives are being met. As a result, we do not know whether any clinical trial will result inmarketable products. Typically, there is a high rate of failure for product candidates in preclinical studies and clinical trials and products emerging from any successful trial may notreach the market for several years.
Enrollment criteria for certain of our clinical trials may be quite narrow, further delaying the clinical trial process. For instance, clinical trials previously conducted usingINTERCEPT-treated plasma for patients with thrombotic thrombocytopenic purpura lasted approximately four years due in part to the difficulties associated with enrollingqualified patients. In addition, enrollment criteria have impacted the speed with which we were able to enroll patients in our ongoing Phase III red blood cell system trial in chronicanemia in Europe and thus far in our Phase III red blood cell system clinical trial in Puerto Rico. Consequently, we may be unable to recruit suitable patients into clinical trials on atimely basis, if at all, which may lead to higher costs or the inability to complete the clinical trials. We cannot rely on interim results of trials to predict their final results, andacceptable results in early trials might not be
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repeated in later trials. Any trial may fail to produce result s satisfactory to the FDA or foreign regulatory authorities. In addition, preclinical and clinical data can be interpreted indifferent ways, which could delay, limit or prevent regulatory approval. Negative or inconclusive results from a preclinical study or clinical trial, or adverse medical events during aclinical trial could cause a preclinical study or clinical trial to be repeated, require other studies to be performed or cause a program to be terminated, even if other studies or trialsrelating to a program are successful.
We have conducted many toxicology studies to demonstrate the safety of the platelet and plasma systems, and we have conducted and plan to conduct toxicology studies for the redblood cell system throughout the product development process. At any time, the FDA and other regulatory authorities may require further toxicology or other studies to furtherdemonstrate our products’ safety, which could delay or preclude regulatory approval and commercialization. In addition, the FDA or foreign regulatory authorities may alterguidance at any time as to what constitutes acceptable clinical trial endpoints or trial design, which may necessitate a redesign of our product or proposed clinical trials and cause usto incur substantial additional expense or time in attempting to gain regulatory approval. Regulatory agencies weigh the potential risks of using our pathogen reduction productsagainst the incremental benefits, which may be difficult or impossible to quantify.
If any additional product candidates receive approval for commercial sale in the U.S., or if we obtain approval for expanded label claims for the platelet system or plasma system,the FDA may require one or more post-approval clinical or in vitro studies as a condition of approval, such as the post-approval clinical study we are required to conduct inconnection with the approval of the platelet system and the additional post-approval study that we are required to conduct on recovery and survival of platelets suspended in 100%plasma in connection with the recent expanded label claim that we received for the platelet system. Each of these studies and any additional studies that the FDA may require couldinvolve significant expense and may require us to secure adequate funding to complete. In addition, enrollment of post-marketing studies may be difficult to complete timely ifcustomers of blood centers are reluctant to accept conventional, non-INTERCEPT treated products once INTERCEPT products become available to them. Other regulatoryauthorities outside of the U.S. may also require post-marketing studies. Governments or regulatory authorities may impose new regulations or other changes or we may discoverthat we are subject to additional regulations that could further delay or preclude regulatory approval and subsequent adoption of our potential products. We cannot predict theadoption, implementation or impact of adverse governmental regulation that might arise from future legislative or administrative action. Furthermore, any guidance document ormandate that prescribes use of INTERCEPT may impose a compliance requirement on blood centers that operate and process blood components in a manner for which we do notyet have approved label claims. Our inability to meet such operational or processing constraints may impair our potential results permanently or until we are able to obtain suchclaims.
Outside the U.S., regulations vary by country, including the requirements for regulatory and marketing approvals or clearance, the time required for regulatory review and thesanctions imposed for violations. In addition to CE mark documentation, countries outside the E.U. may require clinical data submissions, registration packages, import licenses orother documentation. Regulatory authorities in Japan, China, Taiwan, South Korea, Vietnam, Thailand, Singapore and elsewhere may require in-country clinical trial data, amongother requirements, or that our products be widely adopted commercially in Europe and the U.S., or may delay approval decisions until our products are more widely adopted. Inaddition to the regulatory requirements applicable to us and to our products, there are regulatory requirements in several countries around the world, including the U.S., Germany,Canada, Austria, Australia and other countries, applicable to prospective customers of INTERCEPT Blood System products, the blood centers that process and distribute blood andblood products. In those countries, blood centers and other customers are required to obtain approved license supplements from the appropriate regulatory authorities before makingavailable blood products processed with our pathogen reduction systems to hospitals and transfusing physicians. Our customers may lack the resources or capability to obtain suchregulatory approvals. For example, in the U.S., blood centers are required to obtain site-specific licenses from CBER prior to engaging in interstate transport of blood componentsprocessed using the INTERCEPT Blood System. In Germany, blood centers need to obtain marketing authorizations before they can submit for reimbursement or sell to hospitals.Blood centers that do submit applications or supplements for manufacturing and sale may face disapproval or delays in approval that could further delay or deter them from usingour products. The regulatory impact on potential customers could slow or limit the potential sales of our products.
Red Blood Cell System
Our red blood cell system is currently in development and has not been commercialized anywhere in the world. Significant development and financial resources will be required toprogress the red blood cell system into a commercially viable product and to obtain the necessary regulatory approvals for the product. Final development of the red blood cellsystem may never occur and failure can occur any time during the process. Any failure or delay in completing the development activities for the red blood cell system wouldprevent or delay its commercialization, which could materially and adversely affect our business, financial condition, results of operations, growth prospects and potential futuremarket adoption of any of our products, including the red blood cell system. Many of the factors described above that can contribute to the failure or delay of a clinical trial couldimpact the trials we conduct for our red blood cell system. Even if we are successful in earlier clinical trials, the results of those early trials may not be predictive of results obtainedin later and larger clinical trials of the red blood cell system or the results of routine use if we are able to commercialize the red blood cell system. In those cases, the FDA orforeign regulatory agencies may require we engage in additional clinical trials or
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conduct further studies or analysis which m ay be costly and time-consuming. Furthermore, regulators may require clinical data for our red blood cell system under each collectionand processing method using various additive or storage solutions before they would grant approval for any such configura tion. If we were unable to collect data under eachconfiguration or if we elect to pursue certain configurations over others for initial approval, our market opportunity may be limited. In some instances, we are relying on contractresearch organizations a nd other third parties to assist us in designing, managing, monitoring and otherwise carrying out our clinical trials and development activities for the redblood cell system. We do not control these third parties and, as a result, they may not treat our a ctivities as their highest priority, or in the manner in which we would prefer, whichcould result in delays, inefficient use of our resources and could distract personnel from other activities. Additionally, if we, our contract research organizations or o ther thirdparties assisting us or our study sites fail to comply with applicable good clinical practices, the clinical data generated in our trials may be deemed unreliable and the FDA orforeign regulatory agencies may require us to perform additional cl inical trials before approving the red blood cell system for commercialization. We cannot assure you that, uponinspection, regulatory agencies will determine that any of our clinical trials comply with good clinical practices. In addition, our clinical tr ials must be conducted with productproduced under the FDA’s cGMP regulations and similar regulations outside of the U.S. Our failure or the failure of our product manufacturers to comply with these regulationsmay require us to repeat or redesign clinical trials, which would delay the regulatory approval process. We must demonstrate an ability to define, test and meet acceptablespecifications for our GMP manufactured compounds used to prepare INTERCEPT-treated red blood cells before we can submit and seek regulatory approval of our red blood cellsystem. Failure to develop a methodology and assay that is sufficiently sensitive and robust may be time consuming, which in-turn would delay our ability to obtain regulatoryapprovals. In addition, existing lots of these red blood cell compound s manufactured under GMP may be dispositioned by regulators or ourselves as un suitable for eithercommercial or clinical use which would impact our ability to produce INTERCEPT treated-red blood cells for ongoing and future clinical trials and may require changes to themanufacturing process of our red blood cell compounds or new pr oduction of the compounds, all of which would be costly and time consuming and impact our ability to performunder our contract with BARDA. Further, we are currently in the process of negotiating a commercial supply agreement with the manufacturer of the p rocessing kits used in the red blood cell clinical trials. If we are unable to reach agreement on terms, our ability to complete our contemplated Phase III clinical tria ls may be adversely impacted. There canbe no guarantee that we will reach agreement or that, if an agreement is reached, that it will be on terms favorable to us.
In 2003, we terminated Phase III clinical trials evaluating a prior generation of the red blood cell system in acute and chronic anemia patients. The trials were terminated due to thedetection of antibody reactivity to INTERCEPT-treated red blood cells in two patients in the 2003 chronic anemia trial. Although the antibody reactivity was not associated withany adverse events, we developed process changes designed to diminish the likelihood of antibody reactivity in red blood cells treated with our modified process. In a subsequentPhase I clinical trial that we initiated in the fourth quarter of 2008 to evaluate recovery and survival of treated red blood cells with the modified process, there were no adverseevents reported. Based on the results from that trial, we obtained approval for and commenced two Phase III clinical trials in Europe using the modified process in patients withacute and chronic anemia, respectively. We successfully completed the acute anemia Phase III clinical trial, with the INTERCEPT Blood System for red blood cells meeting itsprimary endpoint. However, we cannot assure you that the adverse events observed in the terminated 2003 Phase III clinical trials of our earlier red blood cell system will not beobserved in the ongoing chronic anemia Phase III or any future clinical trials of our red blood cell system. In addition, although our completed Phase III clinical trial in acuteanemia patients using our modified process met its primary endpoint, we cannot assure you that the same or similar results will be observed in our ongoing Phase III chronicanemia or any potential future clinical trials using our modified process.
We will need to successfully conduct and complete license-enabling Phase III clinical trials in the U.S. before the FDA will consider our red blood cell product for approval. Therecan be no assurance that we will be able to successfully complete perquisite Phase III clinical trials or otherwise generate sufficient Phase III clinical data, nor can there be anyassurance that we and the FDA will agree to any trial protocol we propose or that we will otherwise obtain FDA clearance to initiate a potential license-enabling Phase III clinicaltrial. In part, we will seek to introduce supplemental clinical data we obtained from European clinical trials, though we cannot assure you that we will be able to demonstratecomparability or that the FDA will allow supplemental clinical European data. The FDA will require us to place a clinical hold on any clinical trial if we see a hemolytic reactionassociated with treatment emergent antibodies with amustaline specificity in patients receiving INTERCEPT-treated red blood cells in that trial. Should we experience such anincident, we will need to investigate the underlying cause of the hemolytic reaction, which in many patient populations may be difficult for us to assess imputability which may leadto a complete halt of the clinical trial, may irreparably harm our red blood cell product’s reputation and we may be forced to suspend or terminate development activities related tothe red blood cell system in the U.S ., which would have a material adverse effect on our business and business prospects. In addition, if we are unable to generate sufficientperquisite Phase III clinical data and/or reach agreement with the FDA on a license-enabling Phase III clinical trial design for our red blood cell system, our agreement withBARDA will be severely limited in scope or could be terminated altogether.
We completed our European Phase III clinical trial of our red blood cell system for acute anemia patients and have another European Phase III clinical trial of our red blood cellsystem for chronic anemia patients ongoing. Although we plan to complete development activities to support an anticipated CE mark submission, such activities, including anyadditional studies required by the FDA prior to its review of any proposed U.S. Phase III clinical trial protocol, could prolong development of the red blood cell system, and wecannot predict when we would receive regulatory approval of our red blood cell system, if ever. We understand that while the acute
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anemia Phase III clinical trial in Europe may be sufficient to receive CE mark approval in the E.U. , we may need to generate additional safety data from commercial use and/orachieve a successful outcome in the ongoing chronic anemia Phase III clinical trial for our red blood cell system in order to achieve broad market accepta nce. Failure tosuccessfully complete such clinical trials and generate a body of data in chronic patients in a clinical or commercial setting may delay regulatory approval, commercialization ormarket adoption. In addition, the trials may need to be suppl emented by additional, successful Phase III clinical trials for approval in certain countries. If such additional Phase IIIclinical trials are required, they would likely need to demonstrate equivalency of INTERCEPT-treated red blood cells compared to con ventional red blood cells and thesignificantly lower lifespan for INTERCEPT-treated red blood cells compared to non-treated red blood cells may limit our ability to obtain regulatory approval for the product. Anumber of trial design issues that could imp act efficacy, regulatory approval and market acceptance will need to be resolved prior to the initiation of further clinical trials. Inaddition, if we are unable to secure the full amount of funding contemplated by the BARDA agreement for any reason, our ability to complete the development activities requiredfor potential licensure in the U.S. may require additional capital beyond which we currently have, and we may be required to obtain additional capital in order to complete thedevelopment of and obtai n any regulatory approvals for the red blood cell system. Further, while we believe that our available cash and cash equivalents and short-terminvestments, as well as cash to be received from product sales and under our agreement with BARDA, will be suffi cient to meet our capital requirements for at least the nexttwelve months , if we are unable to generate sufficient product revenue, or access sufficient funds under our BARDA agreement or the public and private equity and debt capitalmarkets, we may be unable to execute successfully on our operating plan. If alternative sources of funding are not available, we may be forced to suspend or terminate developmentactivities related to the red blood cell system in the U.S . which would have a material adverse effect on our business and business prospects. If we are unsuccessful in advanci ngthe red blood cell system through clinical trials, resolving process and product design issues or in obtaining subsequent regulatory approvals and acceptable reimbursement rates,we may never realize a return on our R&D expenses incurred to date for the red blood cell system program. Regulatory delays can also materially impact our product developmentcosts. If we experience delays in testing, conducting trials or approvals, our product development costs will increase , which costs may not be reimbursable to us under the BARDAagreement . Even if we were to successfully complete and receive approval for our red blood cell system, potential blood center customers may object to working with a potentchemical, like amustaline, the active compound in the red bl ood cell system, or may require modifications to automate the process, which would result in additional developmentcosts, any of which could limit any market acceptance of the red blood cell system. If the red blood cell system were to face such objection s from potential customers, we maychoose to pay for capital assets, specialized equipment or personnel for the blood center, which would have a negative impact on any potential contribution margin from red bloodcell system sales.
Platelet and Plasma Systems
In 2007, we obtained a CE mark approval from E.U. regulators for our platelet system, and have subsequently received a renewal in 2012 and again in 2017, in accordance with thefive year renewal schedule . We or our customers have received approval for the sale and/or use of INTERCEPT-treated platelets within the Europe in France, Switzerland,Germany and Austria. We or our customers may also be required to conduct additional testing in order to obtain regulatory approval in countries that do not recognize the CE markas being adequate for commercializing the INTERCEPT Blood System in those countries. The level of additional product testing varies by country, but could be expensive or take along time to complete. In addition, regulatory agencies are able to withdraw or suspend previously issued approvals due to changes in regulatory law, our inability to maintaincompliance with regulations or other factors.
In 2006, we obtained a CE mark approval from E.U. regulators for our plasma system, and have subsequently received a renewal in 2011 and again in 2016, in accordance with thefive year renewal schedule. We or our customers have received approval for the sale and/or use INTERCEPT-treated plasma within Europe in France, Switzerland, Austria andGermany. In some countries, including several in Europe, we or our customers may be required to perform additional clinical studies or submit manufacturing and marketingapplications in order to obtain regulatory approval. If we or our customers are unable to obtain or maintain regulatory approvals for the use and sale or continued sale and use ofINTERCEPT-treated platelets or plasma, market adoption of our products will be negatively affected and our growth prospects would be materially and adversely impacted.
In December 2014, the FDA approved the platelet system for ex vivo preparation of pathogen-reduced apheresis platelet components in order to reduce the risk of transfusion-transmitted infection, or TTI, including sepsis, and to potentially reduce the risk of transfusion-associated graft versus host disease, or TA-GVHD. Also in December 2014, theFDA approved the plasma system for ex vivo preparation of plasma in order to reduce the risk of TTI when treating patients requiring therapeutic plasma transfusion. We haveconducted and are conducting additional in vitro studies for our platelet system to potentially expand our label claims to include, among others, platelets collected from pooledrandom donors, storage of INTERCEPT-treated platelets for up to seven days rather than five days, and a new processing set for triple dose collections. Failure to obtain any ofthese label expansion claims may negatively affect market adoption and our growth prospects would be materially and adversely affected.
As a condition to the initial FDA approval of the platelet system, we are required to conduct a post-approval clinical study of the platelet system. Successful enrollment andcompletion of this study requires that we develop sufficient INTERCEPT production
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capabilities w ith U.S. blood center customers. Delays in delivering INTERCEPT systems to blood centers that can supply INTERCEPT-treated platelets to hospitals involved inthe study may lead to increased costs to us and may jeopardize our ability to complete the study i n a timeframe acceptable to the FDA. Furthermore, blood centers ’ ability toproduce INTERCEPT-treated platelets and supply hospitals enrolled in the study may be negatively impacted by a shortage of overall platelet availability, constraints in producingp latelets in compliance with our approved claims or operational inefficiencies experienced as a result of INTERCEPT treatment. In addition, we must identify and contract withhospitals that have the desire and ability to participate and contribute to the st udy in a timely manner and who are willing to purchase INTERCEPT-treated platelets from our bloodcenter customers. If we are unable to complete this study, in a timely manner or at all, or the results of this study reveal unacceptable safety risks, we cou ld be required to performadditional studies, which may be costly, and even lose U.S. marketing approval of the platelet system. Further, we are required to conduct a post-approval recovery and survivalclinical study in connection with the recent label ex pansion approval for the use of the platelet system to treat platelets suspended in 100% plasma. Successful enrollment andcompletion of this additional study will also require that we identify and contract with hospitals that have the desire and ability t o participate and contribute to the study in a timelymanner and who are willing to purchase INTERCEPT-treated platelets from our blood center customers. If we are unable to complete this study, in a timely manner or at all, or theresults of this study re veal unacceptable safety risks, we could be required to perform additional studies, which may be costly. In addition to these studies, the FDA may alsorequire us to commit to perform other lengthy post-marketing studies, for which we would have to expend significant additional resources, which could have an adverse effect onour operating results, financial condition and stock price. In addition, there is a risk that these studies will show results inconsistent with our previous studies. Should this happen ,potential customers may delay or choose not to adopt the INTERCEPT Blood System and existing customers may cease use of the INTERCEPT Blood System.
The execution and completion of our ongoing IDE studies will continue to result in additional costs, and will continue to require attention and resources from our clinical,regulatory and management teams, which may adversely affect our commercialization efforts and other regulatory and clinical programs.
Post-Marketing Approval
We are also required to continue to comply with applicable FDA and other regulatory requirements now that we have obtained approval for the INTERCEPT Blood System forplatelets and plasma. These requirements relate to, among other things, labeling, packaging, storage, advertising, promotion, record-keeping and reporting of safety and otherinformation. In addition, our manufacturers and their facilities are required to comply with extensive FDA and foreign regulatory agency requirements, including, in the U.S.,ensuring that quality control and manufacturing procedures conform to cGMP and current QSR requirements. As such, we and our contract manufacturers are subject to continualreview and periodic inspections. Accordingly, we and others with whom we work must continue to expend time, money and effort in all areas of regulatory compliance, includingmanufacturing, production and quality control. We are also required to report certain adverse events and production problems, if any, to the FDA and foreign regulatory authorities,when applicable, and to comply with requirements concerning advertising and promotion for our products. For example, our promotional materials and training methods mustcomply with FDA and other applicable laws and regulations, including the prohibition of the promotion of unapproved, or off-label, use. If the FDA determines that ourpromotional materials or training constitutes promotion of an off-label use, it could request that we modify our training or promotional materials or subject us to regulatory orenforcement actions, including the issuance of an untitled letter, a warning letter, injunction, seizure, civil fine or criminal penalties. It is also possible that other federal, state orforeign enforcement authorities might take action if they consider our promotional or training materials to constitute promotion of an off-label use, or a violation or any otherfederal or state law that applies to us, such as laws prohibiting false claims for reimbursement. Any enforcement action brought by a federal, state or foreign authority could resultin significant civil, criminal and/or administrative penalties, damages, fines, disgorgement, individual imprisonment, additional reporting obligations and oversight if we becomesubject to a corporate integrity agreement or other agreement to resolve allocations of non-compliance with these laws, exclusion from participation in government programs, suchas Medicare and Medicaid, injunctions, private “qui tam” actions brought by individual whistleblowers in the name of the government, or refusal to allow us to enter intogovernment contracts, contractual damages, administrative burdens, diminished profits and future earnings, additional reporting requirements and/or oversight if we become subjectto a corporate integrity agreement or similar agreement. In addition, our reputation could be damaged and adoption of the products could be impaired. Although our policy is torefrain from statements that could be considered off-label promotion of our products, the FDA or another regulatory agency could disagree and conclude that we have engaged inoff-label promotion. In addition, the off-label use of our products may increase the risk of product liability claims. Product liability claims are expensive to defend, divert ourmanagement’s attention, result in substantial damage awards against us and harm our reputation.
Should a regulatory agency question a reported adverse event, we may not be able to rule out product failure as the cause, whether or not product failure is the cause of the reportedadverse event. If a regulatory agency suspects or discovers problems with a product, such as adverse events of unanticipated severity or frequency, or problems with the facility orthe manufacturing process at the facility where the product is manufactured, or problems with the quality of product manufactured, or disagrees with the promotion, marketing, orlabeling of a product, a regulatory agency may impose restrictions on use of that product, including requiring withdrawal of the
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product from t he market. Our failure to comply with applicable regulatory requirements could result in enforcement action by regulatory agencies, which may include any of thefollowing sanctions:
• adverse publicity, warning letters, fines, injunctions, consent decrees and civil penalties;
• repair, replacement, recall or seizure of our products;
• operating restrictions or partial suspension or total shutdown of production;
• delaying or refusing our requests for approval of new products, new intended uses or modifications to our existing products and regulatory strategies;
• refusal to grant export or import approval for our products;
• withdrawing marketing approvals that have already been granted, resulting in prohibitions on sales of our products; and
• criminal prosecution.
Any of these actions, in combination or alone, could prevent us from selling our products and harm our business. In addition, any government investigation of alleged violations oflaw could require us to expend significant time and resources in response and could generate negative publicity. Any failure to comply with ongoing or changing regulatoryrequirements may significantly and adversely affect our ability to successfully commercialize and generate additional product revenues from our platelet and plasma systems or anyfuture products. If regulatory sanctions are applied or if regulatory approval is withdrawn, the value of our company and our operating results will be adversely affected.Additionally, if we are unable to continue to generate product revenues from the sale of our platelet and plasma systems, our potential for achieving operating profitability will bediminished and the need for additional capital to fund our operations will be increased.
In addition, the regulations to which we are subject are complex and have tended to become more stringent over time. Regulatory changes could result in restrictions on our abilityto carry on or expand our operations, higher than anticipated costs or lower than anticipated sales.
A significant portion of the f unding for the development of the red blood cell system is expected to come from our BARDA agreement, and if BARDA were to eliminate, reduceor delay funding from our agreement, this could have a significant, negative impact on our revenues and cash flows, and we may be forced to suspend or terminate our U.S.red blood cell development program or obtain alternative sources of funding.
We anticipate that a significant portion of the funding for the development of the red blood cell system will come from our agreement with BARDA . In this regard, in June 2016,we entered into an agreement with BARDA that is worth up to approximately $186.2 million to support the development of the red blood cell system. However, our agreement withBARDA only reimburses certain specified development and clinical activities that have been authorized by BARDA pursuant to the base period and certain options of theagreement and the potential exercise of subsequent option periods. To date, BARDA has committed approximately $88.2 million under the base period of the agreement andoptions exercised in 2016 . Accordingly, our ability to receive any of the additional $98.0 million in funding provided for under the BARDA agreement is dependent on BARDAexercising additional options under t he agreement, which it may do or not do at its sole discretion. In addition, BARDA is entitled to terminate our BARDA agreement forconvenience at any time, in whole or in part, and is not required to provide continued funding beyond reimbursement of amounts currently incurred and obligated by us as a resultof contract performance . Moreover, the continuation of our BARDA agreement depends in large part on our ability to meet development milestones previously agreed to withBARDA and on our compliance with certain operating procedures and protocols. BARDA may suspend or terminate the agreement should we fail to achieve key milestones, or failto comply with the operating procedures and processes approved by BARDA and its audit agency. There can be no assurance that we will be able to achieve these milestones orcontinue to comply with these procedures and protocols. For instance, our RedeS study is currently being conducted in Puerto Rico. Given the recent hurricanes and destruction toPuerto Rico, our ability to enroll patients and make meaningful progress with the RedeS study has been negatively impacted and the successful completion of the RedeS study willlikely require enrolling in sites outside of Puerto Rico. Our ability to meet the expectations of BARDA under our contract is largely dependent on our ability to attract, hire andretain personnel with competencies that are in short supply. In addition, in many instances we must identify third-party suppliers, negotiate terms acceptable to us and BARDA andensure ongoing compliance by these suppliers with the obligations covered by our BARDA contract. If we are unable to provide adequate supplier oversight or if suppliers areunable to comply with the requirements of the contract, our ability to meet the an ticipated milestones may be impaired. There can also be no assurance that our BARDA agreementwill not be terminated, that our BARDA agreement will be extended through the exercise of subsequent option periods, that any such extensions would be on terms favorable to us,or that we will otherwise obtain the funding that we anticipate to obtain under our agreement with BARDA. Moreover, changes in government budgets and agendas may result in adecreased and deprioritized emphasis on supporting the development of pathogen reduction technology. If our BARDA agreement is terminated or suspended, if there is anyreduction or delay in funding under our BARDA agreement, or if BARDA determines not to exercise some or all of the options provided for under the agreement, our revenues and
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cash flows could be significantly and negatively impacted and we may be forced to seek alternative sources of funding, which may not be available on non-dilutive terms, termsfavorable to us or at all. If alternative sources of funding a re not available, we may be forced to suspend or terminate development activities related to the red blood cell system inthe U.S.
In addition, u nder the BARDA agreement, BARDA will regularly review our development efforts and clinical activities. Under certain circumstances, BARDA may advise us todelay certain activities and invest additional time and resources before proceeding. If we follow such BARDA advice, overall red blood cell program delays and costs associatedwith additional resources for which we had not planned may result. Also, the costs associated with following such advice may or may not be reimbursed by BARDA under ouragreement. Finally, we may decide not to follow the advice provided by BARDA and instead pursue activities that we believe are in the best interests of our red blood cell programand our business , even if BARDA would not reimburse us under our agreement.
Unfavorable provisions in government contracts, including in our contract with BARDA, may harm our business, financial condition and operating results.
U.S. government contracts typically contain unfavorable provisions and are subject to audit and modification by the government at its sole discretion, which will subject us toadditional risks. For example, under our agreement with BARDA, the U.S. government has the power to unilaterally:
• a udit and object to any BARDA agreement-related costs and fees on grounds that they are not allowable under the Federal Acquisition Regulation, or FAR, andrequire us to reimburse all such costs and fees;
• suspend or prevent us for a set period of time from receiving new contracts or grants or extending our existing agreement based on violations or suspectedviolations of laws or regulations;
• c laim nonexclusive, nontransferable rights to product manufactured and intellectual property developed under the BARDA agreement and may, under certaincircumstances involving public health and safety, license such inventions to third parties without our co nsent;
• c ancel, terminate or suspend our BARDA agreement based on violations or suspected violations of laws or regulations;
• t erminate our BARDA agreement in whole or in part for the convenience of the government for any reason or no reason, including if fu nds become unavailable tothe U.S. Department of Health and Human Services’ Office of the Assistant Secretary for Preparedness and Response;
• r educe the scope and value of our BARDA agreement;
• d ecline to exercise an option to continue the BARDA agreement;
• direct the course of the development of the red blood cell system in a manner not chosen by us;
• r equire us to perform the option periods provided for under the BARDA agreement even if doing so may cause us to forego or delay the pursuit of other red bloodc ell program opportunities with greater commercial potential;
• take actions that result in a longer development timeline than expected;
• limit the government’s financial liability to amounts appropriated by the U.S. Congress on a fiscal-year basis, thereby leaving some uncertainty about the futureavailability of funding for the red blood cell program even after it has been funded for an initial period; and
• c hange certain terms and conditions in our BARDA agreement.
Generally, government contracts, including our agreement with BARDA, contain provisions permitting unilateral termination or modification, in whole or in part, at the U.S.government’s convenience. Termination-for-convenience provisions generally enable us to recover only our costs incurred or committed (plus a portion of the agreed fee) andsettlement expenses on the work completed prior to termination. Except for the amount of services received by the government, termination-for-default provisions do not permitrecovery of fees. In addition, in t he event of termination or upon expiration of our BARDA agreement, the U.S. government may dispute wind-down and termination costs andmay question prior expenses under the contract and deny payment of those expenses. Should we choose to challenge the U.S. government for denying certain payments under ourBARDA agreement , such a challenge could subject us to substantial additional expenses that we may or may not recover. Further, if our BARDA agreement is terminated forconvenience, or if we default by fail ing to perform in accordance with the contract schedule and terms, a significant negative impact on our cash flows and operations could result.
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In addition, government contracts normally contain additional requirements that may increase our costs of doing business and expose us to liability for failure to comply with theseterms and conditions. These requirements include, for example:
• specialized accounting systems unique to government contracts;
• mandatory financial audits and potential liability for price adjustments or recoupment of government funds after such funds have been spent;
• public disclosures of certain contract information, which may enable competitors to gain insights into our research program;
• mandatory internal control systems and policies; and
• mandatory socioeconomic compliance requirements, including labor standards, non-discrimination and affirmative action programs and environmental compliancerequirements.
If we fail to maintain compliance with these requirements, we may be subject to potential liability and to the termination of our BARDA agreement.
Furthermore, we will enter into agreements and subcontracts with third parties, including suppliers, consult ants and other third-party contractors, in order to satisfy our contractualobligations under our BARDA agreement. Negotiating and entering into such arrangements can be time-consuming and we may not be able to reach agreement with such thirdparties. Any such agreement must also be compliant with the terms of our BARDA agreement. Any delay or inability to enter into such arrangements or entering into sucharrangements in a manner that is non-compliant with the terms of our contract, may result in violation s of our BARDA agreement.
As a result of the unfavorable provisions in our BARDA agreement, we must undertake significant compliance activities. The diversion of resources from our development andcommercial programs to these compliance activities, as well as the exercise by the U.S. government of any rights under these provisions, could materially harm our business.
Laws and regulations affecting government contracts, including our BARDA agreement, make it more costly and difficult for us to successfully c onduct our business. Failureto comply with these laws and regulations could result in significant civil and criminal penalties and adversely affect our business.
We must comply with numerous laws and regulations relating to the administration and performa nce of our BARDA agreement . Among the most significant governmentcontracting regulations are:
• the FAR and agency-specific regulations supplemental to the FAR, which comprehensively regulate the procurement, formation, administration and performance ofgovernment contracts;
• the business ethics and public integrity obligations, which govern conflicts of interest and the hiring of former government employees, restrict the granting ofgratuities and funding of lobbying activities and incorporate other requirements such as the Anti-Kickback Statute, the Procurement Integrity Act, the False ClaimsAct and the U.S. Foreign Corrupt Practices Act;
• export and import control laws and regulations; and
• laws, regulations and executive orders restricting the exportation of certain products and technical data.
In addition, as a U.S. government contractor, we are required to comply with applicable laws, regulations and standards relating to our accounting practices and are subject toperiodic audits and reviews. As part of any such audit or review, the U.S. government may review the adequacy of, and our compliance with, our internal control systems andpolicies, including those relating to our purchasing, property, estimating, compensation and management information systems. Based on the results of its audits, the U.S.government may adjust our BARDA agreement-related costs and fees, including allocated indirect costs. This adjustment could impact the amount of revenues reported on ahistoric basis and could impact our cash flows under the contract prospectively. In addition, in the event BARDA determines that certain costs and fees were unallowable ordetermines that the allocated indirect cost rate was higher than the actual indirect cost rate, BARDA would be entitled to reco up any overpayment from us as a result. In addition, ifan audit or review uncovers any improper or illegal activity, we may be subject to civil and criminal penalties and administrative sanctions, including termination of our BARDAagreement, forfeiture of profits, suspension of payments, fines and suspension or prohibition from doing business with the U.S. government. We could also suffer serious harm toour reputation if allegations of impropriety were made against us, which could cause our stock price to decline. In addition, under U.S. government purchasing regulations, some ofour costs may not be reimbursable or allowed under our contracts. Further, as a U.S. government contractor, we are subject to an increased risk of investigations, criminal prosecution, civil fraud, whistleblower lawsuits and other legal actions and liabilities as compared to private sector commercial companies.
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If we or our third-party suppliers fail to comply with the FDA’s good manufacturing practice regulations, it could impair our ability to market our products in a cost-effectiveand timely manner.
In order to be used in clinical studies or sold in the U.S., our products are required to be manufactured in FDA-approved facilities. If any of our suppliers fail to comply with FDA’scGMP regulations or otherwise fail to maintain FDA approval, we may be required to identify an alternate supplier for our products or components. Our products are complex anddifficult to manufacture. Finding alternate facilities and obtaining FDA approval for the manufacture of the INTERCEPT Blood System at such facilities would be costly and time-consuming and would negatively impact our ability to generate product revenue from the sale of our platelet or plasma system in the U.S. and achieve operating profitability. Ourred blood cell system also needs to be manufactured in FDA-approved facilities, several of which, are not currently FDA-approved. Failure of our suppliers to meet cGMPregulations and failure to obtain or maintain FDA approval will negatively impact our ability to achieve FDA approval for our red blood cell system or may require that we identify,qualify and contract with alternative suppliers, if they are available, which would be time consuming, costly and result in further approval delays.
We and our third-party suppliers are also required to comply with the FDA-mandated cGMP and QSR requirements, which cover the methods and documentation of the design,testing, production, control, quality assurance, labeling, packaging, sterilization, storage and shipping of our products. The FDA audits compliance with cGMP and QSRrequirements through periodic announced and unannounced inspections of manufacturing and other facilities. The FDA may conduct inspections or audits at any time. If we or oursuppliers fail to adhere to cGMP and QSR requirements, have significant non-compliance issues or fail to timely and adequately respond to any adverse inspectional observationsor product safety issues, or if any corrective action plan that we or our suppliers propose in response to observed deficiencies is not sufficient, the FDA could take enforcementaction against us, which could delay production of our products and may include:
• untitled letters, warning letters, fines, injunctions, consent decrees and civil penalties;
• unanticipated expenditures to address or defend such actions;
• customer notifications or repair, replacement, refunds, recall, detention or seizure of our products;
• operating restrictions or partial suspension or total shutdown of production;
• refusing or delaying our requests for premarket approval of new products or modified products;
• withdrawing marketing approvals that have already been granted;
• refusal to grant export or import approval for our products; or
• criminal prosecution.
Any of the foregoing actions could have a material adverse effect on our reputation, business, financial condition and operating results. Furthermore, our key suppliers may notcontinue to be in compliance with all applicable regulatory requirements, which could result in our failure to produce our products on a timely basis and in the required quantities, ifat all. In addition, before any additional products would be considered for marketing approval in the U.S. or elsewhere, our suppliers will have to pass an audit by the FDA or otherregulatory agencies. We are dependent on our suppliers’ cooperation and ability to pass such audits. Such audits and any audit remediation may be costly. Failure to pass suchaudits by any of our suppliers would affect our ability to obtain licensure in the U.S. or elsewhere.
If we modify our FDA-approved products, we may need to seek additional approvals, which, if not granted, would prevent us from selling our modified products.
Any modifications to the platelet and plasma systems that could significantly affect their safety or effectiveness, including significant design and manufacturing changes, or thatwould constitute a major change in their intended use, manufacture, design, components, or technology requires approval of a new PMA or PMA supplement. However, certainchanges to a PMA-approved device do not require submission and approval of a new PMA or PMA supplement and may only require notice to FDA in a PMA Annual Report. TheFDA requires every supplier to make this determination in the first instance, but the FDA may review any supplier’s decision. The FDA may not agree with our decisions regardingwhether new clearances or approvals are necessary. Our products could be subject to recall if the FDA determines, for any reason, that our products are not safe or effective or thatappropriate regulatory submissions were not made. If new regulatory approvals are required, this could delay or preclude our ability to market the modified system. For example,due to the obsolescence of certain parts, we have redesigned the illuminators used in the platelet and plasma systems, and we will need to receive approval of this redesign from theFDA. In addition, in order to address the entire market in the U.S., we will need to obtain approval for additional configurations of the platelet system, including triple dosecollections and random donor platelets. Our approved labels from the FDA limit our current approvals to certain platelet collection platforms and a particular storage solution forthe particular collection platform. For instance, our approved claims permit apheresis collection of platelets on the Fresenius Amicus device while stored in an additive solution orfor apheresis collection of platelets collected on the Terumo Trima device and stored in
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100% plasma. Such discrepant collection methodologies and storage solutions and conditions also exist for red blood cells. We may be required to provide the FDA with data foreach permutation for which blood banking treatment pr actices exist which may be time consuming, costly and limit the potential size of the U.S. market that can use our products.We have conducted and may conduct additional in vitro studies for our platelet system to potentially expand our label claims to inc lude, among others, platelets collected frompooled random donors, storage of INTERCEPT-treated platelets for up to seven days rather than five days, and a new processing set for triple dose collections. Our failure to obtainFDA and foreign regulatory app rovals of new platelet and plasma product configurations could significantly limit product revenues from sales of the platelet and plasma systems.In any event, delays in receipt or failure to receive approvals, the loss of previously received approvals, o r the failure to comply with any other existing or future regulatoryrequirements, could reduce our sales and negatively impact our profitability potential and future growth prospects. In addition, if the FDA or other regulatory or accrediting bodywere to mandate safety interventions, including the option of pathogen reduction technology, when we had not received approval for all operational configurations, the market towhich we could sell our products may be limited until we obtain such approvals , if eve r, or may be permanently impaired if competing options are more broadly available . Inaddition, we may seek to expand use of our products under new PMA approvals or PMA supplements. For instance we may perform additional studies and seek regulatory approval for INTERCEPT-treated cryoprecipitate from human plasma or to develop, test and seek approval for an INTERCEPT-treated lyophilized plasma product. Such products mayrequire a change in business model whereby we are selling the finished component to hospi tal s rather than an illuminator and disposable kit to blood centers. We have noexperience selling to hospitals nor do we have experience or expertise complying with regulations governing finished biologics. If we are unable to successfully market such products to hospitals or comply with unique regulations, our ability to monetize and deliver such products will be negatively impacted.
We operate a complex global commercial organization, with limited experience in many countries, including the U.S. We have limited resources and experience complyingwith regulatory, legal, tax and political complexities as we expand into new and increasingly broad geographies.
We are responsible for worldwide sales, marketing, distribution, maintenance and regulatory support of the INTERCEPT Blood System. If we fail in our efforts to develop ormaintain such internal competencies or establish acceptable relationships with third parties to support us in these areas on a timely basis, our ability to commercialize theINTERCEPT Blood System may be irreparably harmed.
We have a wholly-owned subsidiary, headquartered in the Netherlands, dedicated primarily to selling and marketing the platelet and plasma systems in Europe, the CIS and theMiddle East. Our commercial activities for the U.S., Latin and South America and Asia are based out of our headquarters in Concord, California with certain support from ourEuropean headquarters in the Netherlands, with certain individuals servicing Latin and South America and Asia, domiciled outside of the U.S. Our commercial organizationfocused on the U.S. market has limited resources and is relatively inexperienced, and as a result, has limited to no experience selling and marketing our platelet and plasma systems.Given the large relative size of the American Red Cross, should they deploy INTERCEPT rapidly under our commercial agreement, our resources may be inadequate to fulfill theAmerican Red Cross’ and other customers’ demands, which could result in a loss of product revenues or customer contracts, or both. We will need to maintain and may need toincrease our competence and size in a number of functions, including sales, deployment and product support, marketing, regulatory, inventory and logistics, customer service, creditand collections, risk management, and quality assurance systems in order to successfully support our commercialization activities in all of the jurisdictions we currently sell andmarket, or anticipate selling and marketing, our products. Many of these competencies require compliance with U.S., E.U., South American, Asian and local standards andpractices, including regulatory, legal and tax requirements, with some of which we have limited experience. In this regard, should we obtain regulatory approval in an increasednumber of geographies, we will need to ensure that we maintain a sufficient number of personnel or develop new business processes to ensure ongoing compliance with themultitude of regulatory requirements in those territories. Hiring, training and retaining new personnel is costly, time consuming and distracting to existing employees andmanagement. We have limited experience operating on a global scale and we may be unsuccessful complying with the variety and complexity of laws and regulations in a timelymanner, if at all. In addition, in some cases, the cost of obtaining approval and maintaining compliance with certain regulations and laws may exceed the product revenue that werecognize from such a territory, which would adversely affect our results of operations and could adversely affect our financial condition. Furthermore, we may choose to seekalternative ways to sell or treat blood components with our products. These may include new business models, which may include selling kits to blood centers, performinginactivation ourselves, staffing blood centers or selling services or other business model changes. We have no experience with these types of business models, or the regulatoryrequirements or licenses needed to pursue such new business models. Additionally, such business models may be viewed as a threat to existing customers. We cannot assure youthat we will pursue such business models or if we do, that we will be successful or that our existing customers will not feel threatened.
Further, in June 2016, the U.K. held a referendum in which voters approved an exit from the E.U., commonly referred to as “Brexit,” and the U.K. government delivered a notice ofwithdrawal in March 2017, with the U.K. scheduled to exit the E.U. by April 20 19. The withdrawal could, among other outcomes, disrupt the free movement of goods, servicesand people between the U.K. and the E.U., undermine bilateral cooperation in key policy areas and significantly disrupt trade between the U.K. and the E.U. We may also face
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new regulatory costs and challenges as result of Brexit that could have a material adverse effect on our operations. In addition, Brexit could lead to legal uncertainty and potentiallydivergent national laws and regulations as the U.K. determine s which E.U. laws to replace or replicate. Altered regulations could add time and expense to the process by which ourproduct candidates receive regulatory approval in the E.U. Given the lack of comparable precedent, it is unclear what financial, regulator y, trade and legal implications thewithdrawal of the U.K. from the E.U. will have and how such withdrawal will affect us .
We rely on third parties to market, sell, distribute and maintain our products and to maintain customer relationships in certain countries.
We have entered into distribution agreements, generally on a geographically exclusive basis, with distributors in certain regions. We rely on these distributors to obtain andmaintain any necessary in-country regulatory approvals, as well as market and sell the INTERCEPT Blood System, provide customer and technical product support, maintaininventories, and adhere to our quality system in all material respects, among other activities. Generally, our distribution agreements require distributors to purchase minimumquantities in a given year over the term of the agreement. Failure by our distributors to meet these minimum purchase obligations may impact our financial results. In addition,failure by our distributors to provide an accurate forecast impacts our ability to predict the timing of product revenue and our ability to accurately forecast our product supply needs.While our contracts generally require distributors to exercise diligence, these distributors may fail to commercialize the INTERCEPT Blood System in their respective territories.For example, our distributors may fail to sell product inventory they have purchased from us to end customers or may sell competing products ahead of or in conjunction withINTERCEPT. In addition, initial purchases of illuminators or INTERCEPT disposable kits by these third parties may not lead to follow-on purchases of platelet and plasmasystems’ disposable kits. Agreements with our distributors typically require the distributor to maintain quality standards that are compliant with standards generally accepted formedical devices. We may be unable to ensure that our distributors are compliant with such standards. Further, we have limited visibility into the identity and requirements of bloodbanking customers these distributors may have. Accordingly, we may be unable to ensure our distributors properly maintain illuminators sold or provide quality technical servicesto the blood banking customers to which they sell. In addition, although our agreements with our distributors generally require compliance with local anti-corruption laws, the U.S.Foreign Corrupt Practices Act, and other local and international regulations, we have limited ability to control the actions of our distributors to ensure they are in compliance.Noncompliance by a distributor could expose us to civil or criminal liability, fines and/or prohibitions on selling our products in certain countries.
Currently, a fairly concentrated number of distributors make up a significant portion of our product revenue and we may have little recourse, short of termination, in the event that adistributor fails to execute according to our expectations and contractual provisions. In the past, we have experienced weaker than expected growth due to declining performance bycertain of our distributors. Periodically, we transition certain territories to new distribution partners or our direct sales force where we believe we can improve performance relativeto the distributor. Because new distribution partners or our direct sales force may have limited experience marketing and selling our products in certain territories, or at all, wecannot be certain that they will perform better than the predecessor distributor. In certain cases, our distributors hold the regulatory approval to sell INTERCEPT for their particulargeography. Termination, loss of exclusivity or transitioning from these distributors would require us to negotiate a transfer of the applicable regulatory approvals to us or newdistributors which may be difficult to do in a timely manner, or at all. We expect that our product revenue will be adversely impacted with the loss or transition of one or more ofthese distributors. If we choose to terminate distributor agreements, we would either need to reach agreement with, qualify, train and supply a replacement distributor or supply andservice end-user customer accounts in those territories ourselves. Although our distribution agreements generally provide that the distributor will promptly and efficiently transferits existing customer agreements to us, there can be no assurance that this will happen in a timely manner or at all or that the distributor will honor its outstanding commitments tous. In addition, terminated distributors may own illuminators placed at customer sites and may require us to repurchase those devices or require end-user customers to purchase newdevices from us. Additionally, we may need terminated distributors to cooperate with us or a new distributor in transitioning sub-distributor relationships and contracts, hospitalcontracts, public tenders, or regulatory certificates or licenses held in their name. These factors may be disruptive for our customers and our reputation may be damaged as a result.Our distribution partners may have more established relationships with potential end user customers than a new distributor or we may have in particular territory, which couldadversely impact our ability to successfully commercialize our products in these territories. In addition, it may take longer for us to be paid if payment timing and terms in thesenew arrangements are less favorable to us than those in our existing distributor arrangements. As we service end-user accounts directly rather than through distributors, we incuradditional expense, our working capital is negatively impacted due to longer periods from cash collection from direct sales customers when compared to the timing of cashcollection from our former distribution partners and we may be exposed to additional complexity including local statutory and tax compliance. Current or transitioning distributorsmay irreparably harm relationships with local existing and prospective customers and our standing with the blood banking community in general. In the event that we are unable tofind alternative distributors or mobilize our own sales efforts in the territories in which a particular distributor operates, customer supply, our reputation and our operating resultsmay be adversely affected. In addition, in territories where new distributors are responsible for servicing end-user accounts, there will be a period of transition in order to properlyqualify and train these new distributors, which may disrupt the operations of our customers and adversely impact our reputation and operating results.
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Our products are a novel technology in the U.S. and blood centers and clinicians have little to no experience with pathogen reduction systems. Further, we have no priorexperience commercializing products in the U.S. We may be unable to develop and maintain an effective and qualified U.S. based commercial organization or educate bloodcenters, clinicians and hospital personnel. As a result, we may not be able to successfully educate the market on the value of pathogen reduction or commercialize our plateletand plasma systems in the U.S.
Our ability to generate significant product revenue from our platelet and plasma systems depends in part on our ability to achieve market acceptance of, and to otherwise effectivelymarket, our platelet and plasma systems in the U.S. Even if we are able to achieve market acceptance in the U.S. or newly commercialized markets, we have provided and maycontinue to provide adoption incentives which may negatively impact our reported sales. As a company, we have no prior experience in commercializing any products in the U.S.and we still need to attract, retain, train and support sales, marketing and scientific affairs personnel and other commercial talent. For example, we need to attract and retain medicalscience liaisons, or MSLs, to help educate hospitals and physicians on our products, clinical trial history and publications. MSLs are highly educated and trained professionals andthe hiring and employment market for MSLs is highly competitive. As such, we need to commit significant additional management and other resources in order to maintain andexpand our MSL team and sales and marketing functions. We may be unable to develop and maintain adequate MSL, sales and marketing capabilities for the U.S. market and wealso may not be able to devote sufficient resources to the advertising, promotion and sales efforts for the platelet and plasma systems in the U.S. We will also have to compete withother life sciences and medical device companies to recruit, hire, train and retain the MSL, sales and marketing personnel that we anticipate we need. For these and other reasons,we may be unable to develop and maintain an effective and qualified U.S.-based commercial organization in a cost-effective manner or realize a positive return on our investment.If we are unable to develop and maintain an effective and qualified U.S.-based commercial organization in a timely manner or at all, we may fail to realize the full sales potential ofour platelet and plasma systems in the U.S. In addition, should we seek and obtain approval for unique biological products created by use of the INTERCEPT blood system, wemay choose to sell the treated end product directly to hospitals using our commercial organization. We have no experience selling biological end products directly to hospitalswhich may cause a distraction for our commercial organization or we may be viewed as a competitive threat to our blood center customers.
Our manufacturing supply chain exposes us to significant risks.
We do not own our own manufacturing facilities, but rather manufacture our products using a number of third party suppliers, many of whom are our sole suppliers for theparticular product or component that we procure. We rely on various contracts and our relationships with these suppliers to ensure that the sourced products are manufactured insufficient quantities, timely, to our exact specifications and at prices we agree upon with the supplier. The price that we pay to some of our suppliers is dependent on the volume ofproducts or components that we order. If we are unable to meet the volume tiers that afford the most favorable pricing, our gross margins will be negatively impacted.
In October 2015, we amended and restated our manufacturing and supply agreement with Fresenius. Under the amended agreement, Fresenius is obligated to sell, and we areobligated to purchase finished disposable kits for the platelet, plasma and red blood cell kits from Fresenius with certain exceptions permitted. The initial term of the amendedagreement extends through July 1, 2025, and is automatically renewed thereafter for additional two year renewal terms, subject to termination by either party upon (i) two yearswritten notice prior to the expiration of the initial term or (ii) one year written notice prior to the expiration of any renewal term. We and Fresenius each have normal and customarytermination rights, including termination for material breach. Fresenius is our sole supplier for the manufacture of these products. Fresenius may fail to manufacture an adequatesupply of INTERCEPT disposable kits which would harm our business. Disruptions to our supply chain as a result of any potential ensuing protests, strikes or other work-stoppageswould be detrimental to our business and operating results. While we and Fresenius recently entered into the amended agreement, in the event Fresenius refuses or is unable tocontinue operating under the amended agreement, we may be unable to maintain inventory levels or otherwise meet customer demand, and our business and operating results wouldbe materially and adversely affected.
We also have contracts with other third-party suppliers, including Ash Stevens for the manufacture of amotosalen, our proprietary compound for reducing pathogens that is used inour platelet and plasma systems; Purolite, and separately, Porex, for the manufacture of components of the compound adsorption devices used in our platelet and plasma systems;and NOVA for the manufacture of illuminators and certain components of the INTERCEPT Blood System. These independent suppliers are currently our sole qualified suppliersfor such components and products.
Our manufacturing and supply agreement with Ash Stevens currently extends through December 31, 2017, and is automatically renewable thereafter for periods of two years each,but may be terminated by Ash Stevens provided that Ash Stevens notifies us in writing at least two years in advance. We have not been notified by Ash Stevens of their intention toterminate the agreement. Although we are not subject to minimum annual purchase requirements under the manufacturing and supply agreement with Ash Stevens, we may berequired to pay a maintenance fee of up to $50,000 a year if specified quantities of amotosalen are not purchased in any year. We have incurred these maintenance fees in the pastand may incur these maintenance fees in future periods.
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In April 2017, we entered into an amended and restated manufacturing and supply agreement with Porex for the manufacture and supply of compound adsorption devices used inour p latelet and plasma systems. Porex is our sole supplier for certain components of and manufacturing of the compound adsorption devices. Under the amended and restatedPorex agreement, we are no longer subject to a minimum annual purchase requirement; howeve r, Porex has the right to terminate the agreement, upon twelve months’ prior writtennotice, if annual production falls below a mutually agreed threshold. If not sooner terminated, the amended and restated Porex agreement expires on December 31, 2019. In addition, we entered into an amended and restated supply agreement with Purolite, which supplies other components of the compound adsorption devices, in April 2014. Theamended supply agreement expires in April 2021 and will automatically renew for an addit ional year unless either party has provided notice not to renew at least two years prior tothe expiration. Under the terms of the amended agreement, pricing is volume based and is subject to annual, prospective adjustments based on a Producer Price Index subject to anannual cap. Our agreement with NOVA, which manufacturers our illuminators, currently extends through September 2018 and is automatically renewable for one year terms, butmay be terminated by NOVA on at least twelve months’ prior written noti ce. We have not been notified by NOVA of their intention to terminate the agreement.
Facilities at which the INTERCEPT Blood System or its components are manufactured may cease operations for planned or unplanned reasons or may unilaterally change theformulations of certain commercially available reagents that we use, causing at least temporary interruptions in supply. Even a temporary failure to supply adequate numbers ofINTERCEPT Blood System components may cause an irreparable loss of customer goodwill. Although we are actively evaluating alternate suppliers for certain components, we donot have qualified suppliers beyond those on which we currently rely, and we understand that Fresenius relies substantially on sole suppliers of certain materials for our products. Inaddition, suppliers from whom our contract manufacturers source components and raw materials may cease production or supply of those components to our contractmanufacturers. For example, we understand that certain plastics used to make INTERCEPT disposable kits are no longer available. As a result, we and our manufacturers haveidentified alternate plastics but will need to qualify and validate those plastics before we can seek regulatory approval and begin to utilize them in commercial manufacturing.Identification and qualification of alternate suppliers is time consuming and costly, and there can be no assurance that we will be able to demonstrate equivalency of alternatecomponents or suppliers or that we will receive regulatory approval in the U.S. or other jurisdictions. If we conclude that supply of the INTERCEPT Blood System or componentsfrom suppliers is uncertain, we may choose to build and maintain inventories of raw materials, work-in-process components, or finished goods, which would consume capitalresources faster than we anticipate and may cause our supply chain to be less efficient.
Currently NOVA is manufacturing illuminators to meet customer demand and maintain our own inventory levels. Subject to obsolescence, we may be required to identify andqualify replacement components for illuminators and in doing so, we may be required to conduct additional studies, which could include clinical trials to demonstrate equivalencyor validate any required design or component changes. We and our customers rely on the availability of spare parts to ensure that customer platelet and plasma production is notinterrupted. If we are not able to supply spare parts for the maintenance of customer illuminators, our ability to keep existing customers or sign up new customers may benegatively impacted. Due to the obsolescence of certain parts, we have redesigned the illuminators used in the platelet and plasma systems, and we will need to receive approval ofthis redesign from the FDA. Our failure to obtain FDA and foreign regulatory approvals of a new illuminator could constrain our ability to penetrate the U.S. market and mayotherwise significantly limit product revenue from sales of the platelet and plasma systems. In any event, delays in receipt or failure to receive these approvals could reduce oursales and negatively impact our profitability potential and future growth prospects. Furthermore, we understand that components used in the redesigned illuminator are no longercommercially available beyond what we and Nova have stockpiled or to which we have access under final buy transactions. We will need to continue investing in subsequentversions of the illuminator to enhance functionality and manage obsolescence. In addition, our illuminators contain embedded proprietary software that runs on software code wehave developed and that we own. Changes to certain components due to obsolescence, illuminator redesign or market demand, may require us to modify the existing software codeor to develop new illuminator software. Our ability to develop new illuminator software, correct coding flaws and generally maintain the software code is reliant on third-partycontractors who, in some cases, have sole knowledge of the software code. Our ability to develop and maintain the illuminator software may be impaired if we are not able tocontinue contracting with those key third-party contracted developers or if we are unable to source alternate employees or consultants to do so. Software development is inherentlyrisky and may be time consuming and costly.
In the event that alternate manufacturers are identified and qualified, we will need to transfer know-how relevant to the manufacture of the INTERCEPT Blood System to suchalternate manufacturers; however, certain of our supplier’s materials, manufacturing processes and methods are proprietary to them, which will impair our ability to establishalternate sources of supply, even if we are required to do so as a condition of regulatory approval. We may be unable to establish alternate suppliers without having to redesigncertain elements of the platelet and plasma systems. Such redesign may be costly, time consuming and require further regulatory review and approvals. We may be unable toidentify, select, and qualify such manufacturers or those third parties able to provide support for development and testing activities on a timely basis or enter into contracts withthem on reasonable terms, if at all. Moreover, the inclusion of components manufactured by new suppliers could require us to seek new or updated approvals from regulatoryauthorities, which could result in delays in product delivery. We may not receive any such required regulatory approvals. We cannot assure you that any amendments to existingmanufacturing agreements or any new manufacturing agreements that we may enter into
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will contain terms more favorable to us than those that we currently have with our manufacturers. Many of the existing agreements we have with suppliers contain provisions thatwe h ave been operating under for an extended period of time, including pricing. Should we enter into agreements or amend agreements with any manufacturer with less favorableterms, including pricing, our results of operations may be impacted, our recourse agai nst such manufacturers may be limited, and the quality of our products may be impacted.
Raw materials, components or finished product may not meet specifications or may be subject to other nonconformities. In the past, non-conformities in certain component lotshave caused delays in manufacturing of INTERCEPT disposable kits. Similarly, we have experienced non-conformities and out of specification results in certain componentmanufacturing needed for commercial sale and regulatory submissions. Non-conformities can increase our expenses and reduce gross margins or result in delayed regulatorysubmissions. Should non-conformities occur in the future, we may be unable to manufacture products to meet customer demand, which would result in lost sales and could causeirreparable damage to our customer relationships. Later discovery of problems with a product, manufacturer or facility may result in additional restrictions on the product,manufacturer or facility, including withdrawal of the product from the market. We are subject to risks and costs of product recall, which include not only potential out-of-pocketcosts, but also potential interruption to our supply chain. In such an event, our customer relations could be harmed and we would incur unforeseen losses.
In the event of a failure by Fresenius or other manufacturers to perform their obligations to supply components of the INTERCEPT Blood System to us, damages recoverable by usmay be insufficient to compensate us for the full loss of business opportunity. Many of our supply agreements contain limitations on incidental and consequential damages that wemay recover. A supplier’s potential liability in the event of non-performance may not be sufficient to compel the supplier to continue to act in conformity with our agreements. Ourproduct supply chain requires us to purchase certain components in minimum quantities and may result in a production cycle of more than one year. Significant disruptions to anyof the steps in our supply chain process may result in longer productions cycles which could lead to inefficient use of cash or may impair our ability to supply customers withproduct.
We may encounter unforeseen manufacturing difficulties which, at a minimum, may lead to higher than anticipated costs, scrap rates, or delays in manufacturing products. Inaddition, we may not receive timely or accurate demand information from distributors or customers, or may not accurately forecast demand ourselves for the INTERCEPT BloodSystem. Further, certain distributors and customers require, and potential future distributors or customers may require, product with a minimum shelf life. If customers requiringminimum shelf-lives order smaller quantities or do not purchase product as we anticipate, or at all, we may have elevated inventory levels with relatively short shelf-lives whichmay lead to increased write-offs and inefficient use of our cash. Should we choose not to fulfill smaller orders with minimum shelf lives, our product sales may be harmed. We willneed to destroy or consume outdated inventory in product demonstration activities, which may in turn lead to elevated product demonstration costs and/or reduced gross margins. Inorder to meet minimum shelf-life requirements, we may need to manufacture sufficient product to meet estimated forecasted demand. As a result, we may carry excess work-in-process or finished goods inventory, which would consume capital resources and may become obsolete, or our inventory may be inadequate to meet customer demand. Our plateletand plasma systems’ disposable kits have a two-year shelf life from the date of manufacture. Should we change or modify any of our product configurations or components, suchfuture configurations of our products may not achieve the same shelf life that existing products have. We and our distributors may be unable to ship product to customers prior tothe expiration of the product shelf life, a risk that is heightened if we elect to increase our inventory levels in order to mitigate supply disruptions. We have entered into certainpublic tenders, some which call for us to maintain certain minimum levels of inventory. If our suppliers fail to produce components or our finished products satisfactorily, timely, atacceptable costs, and in sufficient quantities, we may incur delays, shortfalls and additional expenses, or non-compliance with certain public tenders which may in turn result inpermanent harm to our customer relations or loss of customers. In addition, certain large national customers, like those in France or the U.K. may choose to convert all of theiroperation to INTERCEPT. Should we or our suppliers encounter any manufacturing issues, we may not be able to satisfy all of the global demand or may have to allocate availableproduct to certain customers which may negatively impact our customers operations and consequently, our reputation. Conversely, we may choose to overstock inventory in orderto mitigate any unforeseen potential disruption to manufacturing which could consume our cash resources faster than we anticipate and may cause our supply chain to be lessefficient.
Obsolescence or shortage of raw materials, key components of and accessories to the INTERCEPT Blood System, may impact our ability to supply our customers, maynegatively impact the operational costs of our customers and may increase the prices at which we sell our products, resulting in slower than anticipated growth or negativefuture financial performance.
The manufacture, supply and availability of key components of, and accessories to, our products are dependent upon a limited number of third parties and the commercial adoptionand success of our products is dependent upon the continued availability of these components or accessories. For example, our customers rely on continued availability of third-party supplied plastics, saline and reagents for processing, storing and manufacturing blood components. If the blood product industry experiences shortages of these components oraccessories, the availability and use of our products may be impaired. Additionally, the current international shortage
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of saline has adversely impacted our ability to source the optimal fill weight of saline vials for use in our chronic anemia study of the red blood cell system. As a result, we were required to purchase saline vials with higher than preferred fill weights at a higher cost.
With respect to the manufacture of our products, our third party manufacturers source components and raw materials for the manufacture of the INTERCEPT processing sets.Certain of these components are no longer commercially available, are nearing end-of-life or are available only from a limited number of suppliers. We and our third partymanufacturers do not have guaranteed supply contracts with all of the raw material or component suppliers for our products, which magnifies the risk of shortage and obsolescenceand decreases our manufacturers’ ability to negotiate pricing with their suppliers. Any shortage or obsolescence of raw materials, components or accessories or our inability tocontrol costs associated with raw materials, components or accessories, could increase our costs to manufacture our products. Further, if any supplier to our third partymanufacturers is unwilling or unable to provide high quality raw materials in required quantities and at acceptable prices, our manufacturers may be unable to find alternativesources or may fail to find alternative suppliers at commercially acceptable prices, on satisfactory terms, in a timely manner, or at all. If any of these events were to occur, ourproduct quality, competitive position, reputation and business could suffer, we could experience cancellations of customer orders, refusal by customers to accept deliveries or areduction in our prices and margins to the detriment of our financial performance and results of operations.
We are subject to federal, state and foreign laws governing our business practices which, if violated, could result in substantial penalties and harm our reputation andbusiness.
We are subject to a number of laws that affect our sales, marketing and other promotional activities by limiting the kinds of financial arrangements we may have with hospitals,physicians, healthcare providers or other potential purchasers of our products. These laws are often broadly written, and it is often difficult to determine precisely how these lawswill be applied to specific circumstances. For example, within the E.U., the control of unlawful marketing activities is a matter of national law in each of the member states. Themember states of the E.U. closely monitor perceived unlawful marketing activity by companies. We could face civil, criminal and administrative sanctions if any member statedetermines that we have breached our obligations under its national laws. Industry associations also closely monitor the activities of member companies. If these organizations orauthorities name us as having breached our obligations under their regulations, rules or standards, our reputation would suffer and our business and financial condition could beadversely affected.
In addition, there are numerous U.S. federal and state healthcare regulatory laws, including, but not limited to, anti-kickback laws, false claims laws, privacy laws, and transparencylaws. Our relationships with healthcare providers and entities, including but not limited to, hospitals, physicians, healthcare providers and our customers are or will be subject toscrutiny under these laws. Violations of these laws can subject us to penalties, including, but not limited to, administrative, civil and criminal penalties, damages, fines,disgorgement, imprisonment, exclusion from participation in federal and state healthcare programs, including the Medicare and Medicaid programs, additional reportingrequirements and/or oversight if we become subject to a corporate integrity agreement or similar agreement to resolve allegations of non-compliance with these laws, and thecurtailment of our operations. Healthcare fraud and abuse regulations are complex, and even minor irregularities can potentially give rise to claims that a statute or prohibition hasbeen violated. The laws that may affect our ability to operate include, but are not limited to:
• the federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully offering, paying, soliciting, or receivingany remuneration, directly or indirectly, overtly or covertly, in cash or in kind, in exchange for or to induce, the referral of an individual for, the purchase, lease,order or recommendation of, any good, facility, item or service for which payment may be made, in whole or in part, under federal healthcare programs such asMedicare and Medicaid;
• federal false claims laws that prohibit, among other things, knowingly presenting, or causing to be presented, claims for payment or approval from Medicare,Medicaid or other federal payors that are false or fraudulent, or knowingly making a false statement to improperly avoid, decrease or conceal an obligation to paymoney to the federal government, and which may apply to entities that provide coding and billing advice to customers;
• the civil monetary penalties statute, which imposes penalties against any person or entity who, among other things, is determined to have presented or caused to bepresented, a claim to a federal healthcare program that the person knows, or should know, is for an item or service that was not provided as claimed or is false orfraudulent;
• the federal Health Insurance Portability and Accountability Act of 1996, as amended, or HIPAA, which created federal criminal laws that prohibit executing ascheme to defraud any healthcare benefit program, including private payors, or making false statements relating to healthcare matters;
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• HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, or HITECH, and their respective implementingregulations, which impose requirements on certain covered healthcare providers, health plans and healthcare clearinghouses as we ll as their business associates thatperform services for them that involve individually identifiable health information, relating to the privacy, security and transmission of individually identifiablehealth information without appropriate authorization, including mandatory contractual terms as well as directly applicable privacy and security standards andrequirements;
• the Federal Trade Commission Act and similar laws regulating advertisement and consumer protections; and
• foreign or U.S. state law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or servicesreimbursed by any third-party payor, including commercial insurers; U.S. state laws that require device companies to comply with the industry’s voluntarycompliance guidelines and the relevant compliance guidance promulgated by the U.S. federal government or otherwise restrict payments that may be made tohealthcare providers; U.S. state laws that require device manufacturers to report information related to payments and other transfers of value to physicians and otherhealthcare providers or marketing expenditures; and U.S. state laws governing the privacy and security of certain health information, many of which differ fromeach other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
We are also subject to foreign laws and regulations covering data privacy and the protection of health-related and other personal information. In this regard, E.U. member states andother foreign jurisdictions, including Switzerland, have adopted data protection laws and regulations which impose significant compliance obligations. For example, the E.U. DataProtection Directive, as implemented into national laws by the E.U. member states, imposes strict obligations and restrictions on the ability to collect, analyze and transfer personaldata, including health data from clinical trials and adverse event reporting. The E.U. Data Protection Directive prohibits the transfer of personal data to countries outside of theEuropean Economic Area, or EEA, such as the U.S., which are not considered by the European Commission, or EC, to provide an adequate level of data protection. Switzerland hasadopted similar restrictions. Although there are legal mechanisms to allow for the transfer of personal data from the EEA and Switzerland to the U.S., a recent judgment of theEuropean Court of Justice that invalidated the EC decision on the U.S. safe harbor has increased uncertainty around the adequacy of these legal mechanisms. This means that it willno longer be possible to transfer personal data from the E.U. to entities in the U.S. that rely on safe harbor certification as a legal basis for the transfer of such data. In addition, dataprotection authorities from the different E.U. member states may interpret the E.U. Data Protection Directive and national laws differently, and guidance on implementation andcompliance practices are often updated or otherwise revised, which adds to the complexity of processing personal data in the E.U. If we fail to comply with applicable data privacylaws, or if the legal mechanisms we rely upon to allow for the transfer of personal data from the EEA or Switzerland to the U.S. (or other countries not considered by the EC toprovide an adequate level of data protection) are not considered adequate, we could be subject to government enforcement actions and significant penalties against us, and ourbusiness could be adversely impacted if our ability to transfer personal data outside of the EEA or Switzerland is restricted, which could adversely impact our operating results.Further, the European Commission has approved a new data protection regulation, known as the General Data Protection Regulation, or GDPR, which has been finalized and is dueto enter into force on May 25, 2018. This GDPR is intended to replace the current E.U. Data Protection Directive, and is expected to introduce new data protection requirementsand substantial fines for breaches of the data protection rules. Once GDPR becomes effective, it may increase our responsibility and liability in relation to personal data that weprocess, and we may be required to put in place additional compliance mechanisms.
We are also subject to the U.S. Foreign Corrupt Practices Act and anti-corruption laws, and similar laws with a significant anti-corruption intent in foreign countries. In general,there is a worldwide trend to strengthen anticorruption laws and their enforcement. Any violation of these laws by us or our agents or distributors could create a substantial liabilityfor us, subject our officers and directors to personal liability and also cause a loss of reputation in the market. We currently operate in many countries where the public sector isperceived as being more or highly corrupt. Our strategic business plans include expanding our business in regions and countries that are rated as higher risk for corruption activity,such as China, India and Russia. Becoming familiar with and implementing the infrastructure necessary to comply with laws, rules and regulations applicable to new businessactivities and mitigate and protect against corruption risks could be quite costly. In addition, failure by us or our agents or distributors to comply with these laws, rules andregulations could delay our expansion into high-growth markets, could damage market perception of our business and could adversely affect our existing business operations.Increased business in higher risk countries could also subject us and our officers and directors to increased scrutiny and increased liability.
Further, the United States Patient Protection and Affordable Care Act, or the ACA, among other things, amends the intent requirements of the federal Anti-Kickback Statute andcertain criminal statutes governing healthcare fraud. A person or entity can now be found guilty of violating the statute without actual knowledge of the statute or specific intent toviolate it. In addition, the ACA provides that the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statuteconstitutes a false or fraudulent claim for purposes of the federal False Claims Act. Moreover, while we do not submit claims and our customers make the ultimate decision on howto submit claims, from time-to-time, we may provide reimbursement guidance to our customers. If a government authority were to conclude that we provided improper advice toour
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customers or encouraged the submission of false claims for reimbursement, we could face action against us by government authorities. Any violations of these laws, or any actionagainst us for violation of these laws, even if we successfully defend against it, could result in a material adverse effect on our reputation, business, results of operations andfinancial condition.
Because of the breadth of these laws and the narrowness of the statutory exceptions and regulatory safe harbors available under such laws, it is possible that some of our businessactivities, including our relationships with healthcare providers and entities, including, but not limited to, hospitals, physicians, healthcare providers and our distributors, and certainsales and marketing practices, including the provision of certain items and services to our customers, could be subject to challenge under one or more of such laws.
To enforce compliance with the healthcare regulatory laws, federal and state enforcement bodies have recently increased their scrutiny of interactions between healthcarecompanies and healthcare providers, which has led to a number of investigations, prosecutions, convictions and settlements in the healthcare industry. Responding to investigationscan be time-and resource-consuming and can divert management’s attention from the business. Additionally, as a result of these investigations, healthcare providers and entitiesmay have to agree to additional onerous compliance and reporting requirements as part of a consent decree or corporate integrity agreement. Any such investigation or settlementcould increase our costs or otherwise have an adverse effect on our business.
In addition, there has been a recent trend of increased U.S. federal and state regulation of payments and transfers of value provided to healthcare professionals or entities. Section6002 of the ACA known as the Physician Payment Sunshine Act that imposes new annual reporting requirements on device manufacturers for payments and other transfers of valueprovided by them, directly or indirectly, to physicians and teaching hospitals, as well as ownership and investment interests held by physicians and their family members. Amanufacturer’s failure to submit timely, accurately and completely the required information for all payments, transfers of value or ownership or investment interests may result incivil monetary penalties of up to an aggregate of $150,000 per year, and up to an aggregate of $1.0 million per year for “knowing failures.” Manufacturers must submit reports bythe 90th day of each subsequent calendar year. Due to the difficulty in complying with the Physician Payment Sunshine Act, we cannot assure you that we will successfully reportall payments and transfers of value provided by us, and any failure to comply could result in significant fines and penalties. Some states, such as California and Connecticut, alsomandate implementation of commercial compliance programs, and other states, such as Massachusetts and Vermont, impose restrictions on device manufacturer marketingpractices and tracking and reporting of gifts, compensation and other remuneration to healthcare professionals and entities. The shifting commercial compliance environment andthe need to build and maintain robust and expandable systems to comply with different compliance and reporting requirements in multiple jurisdictions increase the possibility thatwe may fail to comply fully with one or more of these requirements.
Although compliance programs can mitigate the risk of investigation and prosecution for violations of these laws, the risks cannot be entirely eliminated. Any action against us forviolation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses and divert our management’s attention from the operation of ourbusiness.
Most of these laws apply to not only the actions taken by us, but also actions taken by our distributors or other third party agents. We have limited knowledge and control over thebusiness practices of our distributors and agents, and we may face regulatory action against us as a result of their actions which could have a material adverse effect on ourreputation, business, results of operations and financial condition.
In addition, the scope and enforcement of these laws is uncertain and subject to rapid change in the current environment of healthcare reform, especially in light of the lack ofapplicable precedent and regulations. U.S. federal or state regulatory authorities might challenge our current or future activities under these laws. Any such challenge could have amaterial adverse effect on our reputation, business, results of operations and financial condition. Any U.S. federal or state or foreign regulatory review of us, regardless of theoutcome, would be costly and time-consuming. Additionally, we cannot predict the impact of any changes in these laws, whether or not retroactive. Compliance with these andother changing regulations will increase our costs and may require increasing management attention.
Legislative, regulatory, or other healthcare reforms may make it more difficult and costly for us to obtain regulatory approval of our products and to produce, market anddistribute our products after approval is obtained.
Regulatory guidance and regulations are often revised or reinterpreted by the regulatory agencies in ways that may significantly affect our business and our products. Any newregulations or revisions or reinterpretations of existing regulations may impose additional costs or lengthen review times of our products. Delays in receipt of, or failure to receive,regulatory approvals for our new products or product configurations would have a material adverse effect on our business, results of operations and financial condition.
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Federal and state governments in the U.S. have recently enacted legislation to overhaul the nation’s healthcare system. While the goal of healthcare reform is to expand coverage tomore individuals, it also involves increased government price controls, additional regulatory mandates and other meas ures designed to constrain medical costs. The ACAsignificantly impacts the medical device industry. Among other things, the ACA:
• imposes an annual excise tax of 2.3% on entities that manufacture or import eligible medical devices offered for sale in the U.S.;
• establishes a new Patient-Centered Outcomes Research Institute to oversee and identify priorities in comparative clinical effectiveness research in an effort tocoordinate and develop such research;
• implements payment system reforms including a national pilot program on payment bundling to encourage hospitals, physicians and other providers to improve thecoordination, quality and efficiency of certain healthcare services through bundled payment models; and
• creates an independent payment advisory board that will submit recommendations to reduce Medicare spending if projected Medicare spending exceeds a specifiedgrowth rate.
Since its enactment, there have been judicial and Congressional challenges to numerous provisions of the ACA, as well as recent efforts by the Trump administration to repeal orreplace certain aspects of the ACA. Since January 2017, President Trump has signed two Executive Orders designed to delay the implementation of certain provisions of the ACAor otherwise circumvent some of the requirements for health insurance mandated by the ACA. The Trump administration has also announced that it will discontinue the payment ofcost-sharing reduction, or CSR, payments to insurance companies until Congress approves the appropriation of funds for the CSR payments. The loss of the CSR payments isexpected to increase premiums on certain policies issued by qualified health plans under the ACA. A bipartisan bill to appropriate funds for CSR payments has been introduced inthe Senate, but the future of that bill is uncertain. Further, each chamber of Congress has put forth multiple bills designed to repeal or repeal and replace portions of the AffordableCare Act. Although none of these measures has been enacted by Congress to date, Congress may consider other legislation to repeal and replace elements of the Affordable CareAct. Any repeal and replace legislation may have the effect of limiting the amounts that government agencies will pay for healthcare products and services, which could result inreduced demand for our products or additional pricing pressure, or may lead to significant deregulation, which could make the introduction of competing products and technologiesmuch easier. Policy changes, including potential modification or repeal of all or parts of the ACA or the implementation of new health care legislation could result in significantchanges to the health care system, which could have a material adverse effect on our business, results of operations and financial condition.
In addition, other legislative changes have been proposed and adopted since the ACA was enacted. On August 2, 2011, President Obama signed into law the Budget Control Act of2011, which, among other things, created the Joint Select Committee on Deficit Reduction to recommend to Congress proposals in spending reductions. The Joint SelectCommittee did not achieve a targeted deficit reduction of at least $1.2 trillion for the years 2013 through 2021, triggering the legislation’s automatic reduction to severalgovernment programs. This includes reductions to Medicare payments to providers of 2% per fiscal year, which went into effect in April 2013 and will stay in effect through 2025,unless additional congressional action is taken. On January 2, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 which, among other things, furtherreduced Medicare payments to several providers, including hospitals, and increased the statute of limitations period for the government to recover overpayments to providers fromthree to five years.
The Trump administration has publicly stated a core goal is to deregulate wherever possible. It is unclear if this contraction in regulation would also apply to guidance documentsthat would impact our industry. For example, the FDA has indicated that they will finalize guidance prescribing steps blood centers would have to comply with to safeguard plateletproducts from bacterial contamination. The initial draft guidance prescribed our technology as an option. Should the administration remove such guidance documentation, marketuptake for INTERCEPT platelets may be impaired. Conversely, any significant deregulation could make the introduction of competing products and technologies much easier thanthe burden faced by us in order to receive FDA approval. We expect that additional U.S federal and state and foreign healthcare reform measures will be adopted in the future, anyof which could limit the amounts that governments will pay for healthcare products and services, which could result in reduced demand for our products or additional pricingpressure.
Our platelet and plasma products and product candidates are not compatible with some collection, production and storage methods or combinations thereof. Further, bloodcenters using INTERCEPT must have access to those certain devices, blood bags, assays or platelet additive solutions that are compatible with our products.
The equipment and materials used to collect platelets vary by manufacturer and by geographic region. Platelets may be collected from a single donor by apheresis using anautomated collection machine. Apheresis devices currently used in the U.S. and European markets differ, among other characteristics, in their ability to collect platelets in reducedvolumes of plasma. Platelet collection device manufacturers may need to modify device collection parameters or software before a prospective customer could use INTERCEPT. If
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these manufacturers are no t cooperative or are resistant to assist their customers or do not assist with making such modifications, the potential market for our products may belimited. Platelet concentrates may also be prepared from whole blood by pooling together platelets from m ultiple donors. There are two commonly used methods for preparingwhole blood platelets: the buffy coat method, which is used extensively in Europe, and the pooled random donor method, which is used in the U.S. Our platelet system is designedto work with platelets collected and stored in storage solutions, called InterSol and SSP+, and for platelets suspended in 100% plasma. Fresenius is the exclusive manufacturer ofInterSol and MacoPharma of SSP+, both widely-used PASs . Many of our customers and prospect ive customers use InterSol or SSP+ in connection with INTERCEPT treatment.Similarly, many of our customers combine multiple plasma components from whole blood donations before treating the combined plasma product with INTERCEPT. Grifolsmakes such a produ ct (Plasmix). Customers’ ability to use our INTERCEPT products may be impaired should manufacturers of those products, including those sold by Grifols, notprovide access to the products allowing for the combination of multiple components. Should manufactu rers of collection devices, compatible assays and blood bags, pooling sets or platelet additive solutions fail to obtain or maintain regulatory approval , experience unexpected production disruption, or decide to cease distribution of those respective produ ctsto customers and prospective customers, our ability to sell the INTERCEPT Blood System may be impaired and acceptance in the marketplace could be harmed .
In order to address the entire market in the U.S., Japan, and potentially elsewhere, we will need to develop and test additional configurations of the platelet system. For example, inthe U.S., we understand a significant number of platelet concentrates are derived from larger volumes collected from apheresis donors split into three therapeutic transfusable doses.Future configurations of the platelet system will be needed to treat platelet donations with such processing parameters. We estimate that the majority of platelets used in the U.S.are collected by apheresis, though a significant minority is prepared from pooled random donor platelets derived from whole blood collections. In addition, many blood centers mayview pooled random donor platelets treated with INTERCEPT as an economically optimal approach. In order to gain regulatory approvals for a pathogen reduction systemcompatible with triple dose collections, and random donor platelets, we will need to perform additional product development and testing, including additional clinical trials. Wehave conducted and may conduct additional in vitro studies for our platelet system to potentially expand our label claims to include, among others, platelets collected from pooledrandom donors, storage of INTERCEPT-treated platelets for up to seven days rather than five days, and a new processing set for triple dose collections. In the U.S, our approvedlabels for the platelet system from the FDA limit our current approvals to certain platelet collection platforms and a particular storage solution for the particular collection platform.For instance, our approved claims permit apheresis collection of platelets on the Fresenius Amicus device while stored in an additive solution or for apheresis collection of plateletscollected on the Terumo Trima device and stored in 100% plasma. We may be required to provide the FDA with data for each permutation for which blood banking treatmentpractices exist which may be time consuming, costly and limit the potential size of the U.S. market that can use our products. Our failure to obtain FDA and foreign regulatoryapprovals of any new configurations could significantly limit product revenue from sales of the platelet system. In addition, given that there is some loss of platelets using ourproduct, blood centers may need to increase collection volumes in order to use our product and maintain an adequate concentration for a triple therapeutic dose. In any event, delaysin receipt or failure to receive approval could reduce our sales and negatively impact our profitability potential and future growth prospects. Similarly, to achieve market acceptancein certain geographies, we may be required to design, develop and test new product configurations for the platelet and plasma systems. In addition, if the FDA or other regulatory oraccrediting body were to mandate safety interventions, including the option of pathogen reduction technology, when we had not received approval for all operationalconfigurations, the market to which we could sell our products may be limited until we obtain such approvals, if ever, or may be permanently impaired if competing options aremore broadly available. In addition, we will need to continue to generate acceptable data in order to conform with the evolving collection practices such as automated whole-bloodcollection. If we are unable to conform to evolving collection practices our ability to address those portions of the market may be compromised. These development activities willincrease our costs significantly and may not be successful. We may need to demonstrate the safety and efficacy of our platelet system using a variety of configurations before ourplatelet system would be approved for such configurations. Delays in obtaining any future approvals would adversely affect our ability to introduce new or enhanced products in atimely manner, which in turn would harm our product revenue and potential future profitability.
If our competitors develop products superior to ours, market their products more effectively than we market our products, or receive regulatory approval before our products,our commercial opportunities could be reduced or eliminated.
We expect our products will continue to encounter significant competition. The INTERCEPT Blood System products compete with other approaches to blood safety currently inuse and may compete with future products that may be developed by others. Our success will depend in part on our ability to respond quickly to customer and prospective customerneeds, successfully receive and maintain regulatory approvals, and adapt to medical and technological changes brought about by the development and introduction of new products.Competitors’ products or technologies may make our products obsolete or non-competitive before we are able to generate any significant product revenue. In addition, competitorsor potential competitors may have substantially greater financial and other resources than we have. They may also have greater experience in preclinical testing, human clinicaltrials and other regulatory approval procedures. If competitors’ products experience significant problems, customers and potential customers may question the safety and efficacy ofall pathogen reduction technologies, including the INTERCEPT Blood System. Such questions and concerns may impair our ability to market and sell the INTERCEPT BloodSystem.
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Several companies have, or are developing, technologies that are, or in the future may be, the basis for products that will directly compete with or reduce the market for ourpathogen reduction systems. A number of companies are specifically f ocusing on alternative strategies for pathogen reduction in platelets and plasma.
These alternative strategies may be more effective in reducing certain types of pathogens from blood products, including certain non-lipid-enveloped viruses, such as hepatitis Aand E viruses, which our products have not demonstrated an ability to inactivate, or human parvovirus B-19, which is also a non-lipid-enveloped virus, for which our products havenot demonstrated a high level of inactivation. While studies have demonstrated that our products can effectively inactivate a broad spectrum of pathogens in blood components,market adoption of our products may be reduced if customers determine that competitors’ products inactivate a broader range of pathogens that are of particular interest to thetransfusion medicine community. In addition, customers and prospective customers may believe that our competitors’ products are safer, more cost effective or easier to implementand incorporate into existing blood processing procedures than INTERCEPT Blood System products. In Europe, several companies, including Grifols S.A., Octapharma AG,MacoPharma International and Kedrion Biopharma, are developing or selling commercial pathogen reduction systems or services to treat fresh frozen plasma.
MacoPharma has received CE Mark for a UVC-based product for pathogen reduced platelets. MacoPharma currently has a Phase III clinical trial underway in Germany to generateadditional data for expanded approval. In addition, Terumo BCT, a subsidiary of Terumo Corporation, has developed a pathogen reduction system for blood products and has beenissued CE marks for its system for both platelets and plasma. We further understand that Terumo BCT developed a pathogen reduction system for whole blood and has recentlycompleted a clinical trial of its whole blood system in Ghana, receiving a class II CE mark. Terumo’s products may offer competitive advantages over our INTERCEPT BloodSystem. Terumo Corporation is a large Japanese-based, multinational corporation with more mature products and relationships than we have. Our ability to commercialize ourproducts in certain markets, particularly in Japan, may be negatively affected by Terumo’s resources and their pre-existing relationships with regulators and customers. ShouldTerumo BCT’s product be approved for use and commercialized in Japan, our products would likely directly compete with their products and we believe we would likely eitherneed to establish operations in Japan or partner with a local Japanese company.
Octapharma AG received FDA approval in January 2013 to sell treated fresh frozen plasma for certain indications and is currently commercially available. Should Octapharmaenter into exclusive agreements with key customers, our plasma system may encounter market resistance and we will have a more limited market into which we can sell.
In addition, we understand that Octapharma received approval to sell fresh frozen plasma in France. Octapharma’s entry into the French market may pose a competitive threat toother pathogen reduced plasmas, including INTERCEPT and may in turn limit the potential market available to us in France.
Other companies developing competing products may also offer and sell other blood-banking products and services. As a result, competitors may have pre-existing long-termrelationships with customers and may be able to offer synergies for both pathogen reduction and non-pathogen reduction products that we are unable to offer. Regulatory agenciesmay mandate use of competing products which would limit our ability to sell our products in those markets.
New methods of testing whole blood for specific pathogens have been approved by the FDA and in Europe, as have tests for bacteria in platelets. Other companies are marketingrapid, point-of-care bacterial tests, and developing synthetic blood product substitutes and products to stimulate the growth of platelets. Development and commercialization of anyof these or other related technologies could limit the potential market for our products as would a mandate of any competing technology other than INTERCEPT.
We may be liable and we may need to withdraw our products from the market if our products harm people. We may be liable if an accident occurs in our controlled use ofhazardous materials. Our insurance coverage may be inadequate to offset losses we may incur.
We are exposed to potential liability risks inherent in the testing and marketing of medical devices. We may be liable if any of our products cause injury, illness or death. Althoughwe will have completed preclinical and clinical safety testing prior to marketing our products, there may be harmful effects caused by our products that we are unable to identify inpreclinical or clinical testing. In particular, unforeseen, rare reactions or adverse side effects related to long-term use of our products may not be observed until the products are inwidespread commercial use. Because of the limited duration and number of patients receiving blood components treated with the INTERCEPT Blood System products in clinicaltrials, it is possible that harmful effects of our products not observed in preclinical and clinical testing could be discovered after a marketing approval has been received. Forexample, in cases where we have obtained regulatory approval for our products, we have demonstrated pathogen reduction to specified levels based on well-established tests.However, there is no way to determine, after treatment by our products, whether our products have completely inactivated all of the pathogens that may be present in bloodcomponents. There is also no way to determine whether any residual amount of a pathogen remains in the blood component treated by our products and there is no way to excludethat such residual
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amount would be enou gh to cause disease in the transfused patient or was a result of a potential defect or lack of efficacy of our products. For ethical reasons, we cannot conducthuman testing to determine whether an individual who receives a transfusion of a blood component containing a pathogen that was inactivated using the INTERCEPT BloodSystem might show positive results if tested for an antibody against that pathogen. While we believe, based on the clinical experience of our scientists, that the level of inactivatedpa thogens would likely be too small to induce a detectable antibody response in diagnostic tests, we cannot exclude that a transfused patient might show positive results if testedfor an antibody against that pathogen. We could be subject to a claim from a p atient that tests positive, even though that patient did not contract a disease. In addition, shouldpersonnel at clinical study sites or ultimately, potential customers, be harmed by amustaline, or believe they have been or could be harmed by amustaline, our insurance coveragemay be insufficient to provide coverage for any related potential liabilities. Amustaline is considered a potent chemical and is the active compound of our red blood cell system.
We maintain product liability insurance, but do not know whether the insurance will provide adequate coverage against potential liabilities. If we cannot successfully defendourselves against product liability claims, we may incur substantial liabilities or be required to limit commercialization of our products.
Our research and development activities involve the controlled use of hazardous materials, including certain hazardous chemicals, radioactive materials and infectious pathogens,such as HIV and hepatitis viruses. Although we believe that our safety procedures for handling and disposing of hazardous materials are adequate and comply with regulatoryrequirements, we cannot eliminate the risk of accidental contamination or injury. If an accident occurs, we could be held liable for any damages that result.
A recall of our products, either voluntarily or at the direction of the FDA or another governmental authority, or the discovery of serious safety issues with our products thatleads to corrective actions, could have a significant adverse impact on us.
The FDA and similar foreign governmental authorities have the authority to require the recall of commercialized products in the event of material deficiencies or defects in designor manufacture of a product or in the event that a product poses an unacceptable risk to health. The FDA’s authority to require a recall must be based on an FDA finding that thereis reasonable probability that the device would cause serious injury or death. Manufacturers may also, under their own initiative, recall a product if any material deficiency in adevice is found or withdraw a product to improve device performance or for other reasons. The FDA requires that certain classifications of recalls be reported to the FDA within tenworking days after the recall is initiated. A government-mandated or voluntary recall by us or one of our distributors could occur as a result of an unacceptable risk to health,component failures, malfunctions, manufacturing errors, design or labeling defects or other deficiencies and issues. Regulatory agencies in other countries have similar authority torecall devices because of material deficiencies or defects in design or manufacture that could endanger health. Any recall would divert management attention and financialresources and could cause the price of our stock to decline, expose us to product liability or other claims and harm our reputation with customers. Such events could impair ourability to supply our products in a cost-effective and timely manner in order to meet our customers’ demands. Companies are required to maintain certain records of recalls, even ifthey are not reportable to the FDA or similar foreign governmental authorities. We may initiate voluntary recalls involving our products in the future that we determine do notrequire notification of the FDA or foreign governmental authorities. If the FDA or foreign governmental authorities disagree with our determinations, they could require us toreport those actions as recalls. A future recall announcement could harm our reputation with customers and negatively affect our sales. In addition, the FDA or a foreigngovernmental authority could take enforcement action for failing to report the recalls when they were conducted.
In addition, under the FDA’s medical device reporting regulations, we are required to report to the FDA any incident in which our products may have caused or contributed to adeath or serious injury or in which our product malfunctioned and, if the malfunction were to recur, would likely cause or contribute to death or serious injury. Repeated productmalfunctions may result in a voluntary or involuntary product recall. We are also required to follow detailed recordkeeping requirements for all firm-initiated medical devicecorrections and removals, and to report such corrective and removal actions to FDA if they are carried out in response to a risk to health and have not otherwise been reported underthe medical device reporting regulations. If we do not adequately address problems associated with our devices, we may face additional regulatory enforcement action, includingFDA warning letters, product seizure, injunctions, administrative penalties, or civil or criminal fines. We may also be required to bear other costs or take other actions that mayhave a negative impact on our sales as well as face significant adverse publicity or regulatory consequences, which could harm our business, including our ability to market ourproducts in the future.
Any adverse event involving our products, whether in the U.S. or abroad could result in future voluntary corrective actions, such as recalls or customer notifications, or agencyaction, such as inspection, mandatory recall or other enforcement action. Any corrective action, whether voluntary or involuntary, as well as defending ourselves in a lawsuit, willrequire the dedication of our time and capital, distract management from operating our business and may harm our reputation and financial results.
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If we fail to obtain the capital necessary to fund our future operations or if we are unable to generate positive cash flows from our operations, we will need to curtail planneddevelopment or sales and commercialization activities.
Our near-term capital requirements are dependent on various factors, including operating costs and working capital investments associated with commercializing the INTERCEPTBlood System, including in connection with the continuing U.S. commercial launch of our platelet and plasma systems, costs to develop different configurations of existingproducts and new products, including our illuminator, costs associated with planning, enrolling and completing ongoing studies, and the post-approval studies we are required toconduct in connection with the FDA approval of the platelet system, costs associated with pursuing potential regulatory approvals in other geographies where we do not currentlysell our platelet and plasma systems, costs associated with conducting in vitro studies and clinical development of our red blood cell system in Europe and the U.S., including ourongoing European Phase III clinical trial of our red blood cell system for chronic anemia patients, costs associated with performing the agreed-upon activities under our BARDAagreement, and costs related to creating, maintaining and defending our intellectual property. Our long-term capital requirements will also be dependent on the success of our salesefforts, competitive developments, the timing, costs and magnitude of our longer-term clinical trials and other development activities related to our platelet, plasma and red bloodcell systems, including required post-approval studies for the platelet system, market preparedness and product launch activities for any of our products in geographies where we donot currently sell our products, and regulatory factors. Until we are able to generate a sufficient amount of product revenue and generate positive net cash flows from operations,which we may never do, meeting our long-term capital requirements is in large part reliant on continued access to funds under our BARDA agreement and the public and privateequity and debt capital markets, as well as on collaborative arrangements with partners, augmented by cash generated from operations and interest income earned on the investmentof our cash balances. While we believe that our available cash and cash equivalents and short-term investments, as well as cash received from product sales and under ouragreement with BARDA, will be sufficient to meet our capital requirements for at least the next twelve months, if we are unable to generate sufficient product revenue, or accesssufficient funds under our BARDA agreement or the public and private equity and debt capital markets, we may be unable to execute successfully on our operating plan. We havebased our cash sufficiency estimate on assumptions that may prove to be incorrect. If our assumptions prove to be incorrect, we could consume our available capital resourcessooner than we currently expect or in excess of amounts than we currently expect, which could adversely affect our commercialization and clinical development activities.
We have borrowed and in the future may borrow additional capital from institutional and commercial banking sources to fund future growth, including pursuant to our amendedand restated loan and security agreement, or Amended Credit Agreement, with Oxford Finance, as described below, or potentially pursuant to new arrangements with differentlenders. We may borrow funds on terms that may include restrictive covenants, including covenants that restrict the operation of our business, liens on assets, high effective interestrates and repayment provisions that reduce cash resources and limit future access to capital markets. In addition, we expect to continue to opportunistically seek access to the equitycapital markets to support our development efforts and operations. To the extent that we raise additional capital by issuing equity securities, our stockholders may experiencesubstantial dilution. To the extent that we raise additional funds through collaboration or partnering arrangements, we may be required to relinquish some of our rights to ourtechnologies or rights to market and sell our products in certain geographies, grant licenses on terms that are not favorable to us, or issue equity that may be substantially dilutive toour stockholders.
While we expect to receive significant funding under our five-year agreement with BARDA, our ability to obtain the funding we expect to receive under the agreement is subject tovarious risks and uncertainties, including with respect to BARDA’s ability to terminate the agreement for convenience at any time. In addition, access to federal contracts is subjectto the authorization of funds and approval of our research plans by various organizations within the federal government, including the U.S. Congress. T he general economicenvironment, coupled with tight federal budgets, has led to a general decline in the amount available for government funding. If BARDA were to eliminate, reduce or delay fundingunder our agreement, this would have a significant negative impact on the programs associated with such funding and could have a significant negative impact on our revenues andcash flows. In addition, if we are unable to reach agreement with the FDA on a license-enabling Phase III clinical trial design for our r ed blood cell system, our agreement withBARDA will be severely limited in scope or could be terminated altogether, and our ability to complete the development activities required for licensure in the U.S. may requireadditional capital beyond which we cur rently have. If alternative sources of funding are not available, we may be forced to suspend or terminate development activities related tothe red blood cell system in the U.S.
As a result of economic conditions, general global economic uncertainty, political change, and other factors, we do not know whether additional capital will be available whenneeded, or that, if available, we will be able to obtain additional capital on reasonable terms. If we are unable to raise additional capital due to the volatile global financial markets,general economic uncertainty or other factors, we may need to curtail planned development or commercialization activities. In addition, we may need to obtain additional funds tocomplete development activities for the red blood cell system necessary for potential regulatory approval in Europe, if costs are higher than anticipated or we encounter delays. Wemay need to obtain additional funding to conduct additional randomized controlled clinical trials for existing or new products , particularly if we are unable to access the anyadditional portions of the funding contemplated by our BARDA agreement, and we may choose to defer such activities until we can obtain sufficient additional funding or, at suchtime, our existing operations provide sufficient cash flow to conduct these trials.
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Covenants in our Amended Credit Agreement restrict our business and operations in many ways and if we do not effectively manage our covenants, our financial conditionsand results of operations coul d be adversely affected. In addition, our operations may not provide sufficient cash to meet the repayment obligations of our debt incurred underthe Amended Credit Agreement .
Our Amended Credit Agreement with Oxford Finance provides $40.0 million of term loan funds, due July 1, 2022, of which $30.0 million has been borrowed to date. All of ourcurrent and future assets, except for intellectual property and 35% of our investment in our subsidiary, Cerus Europe B.V., are secured for our borrowings under the AmendedCredit Agreement . The Amended Credit Agreement requires that we comply with certain covenants applicable to us and our subsidiary, including among other things, covenantsrestricting dispositions, changes in business, management, ownership or business locations, mergers or acquisitions, indebtedness, encumbrances, distributions, investments,transactions with affiliates and subordinated debt, any of which could restrict our business and operations, particularly our ability to respond to changes in o ur business or to takespecified actions to take advantage of certain business opportunities that may be presented to us. In addition, receipt of a qualified audit opinion (other than as to going concern or aqualification resulting solely from the schedul ed maturity of term loans occurring within one year from the date such opinion is delivered) would be a violation of an affirmativecovenant under the Amended Credit Agreement. While we believe that our available cash and cash equivalents and short-term investments, as well as cash to be received fromproduct sales and under our agreement with BARDA, will be sufficient to meet our capital requirements for at least the next twelve months , if we are unable to generate sufficientproduct revenue, or access sufficient funds under our BARDA agreement or the public and private equity and debt capital markets, we may be unable to execute successfully on ouroperating plan. Our failure to comply with any of the covenants could result in a default under the Amended Credit Agreement, which could permit the lenders to declare all or partof any outstanding borrowings to be immediately due and payable, or to refuse to permit additional borrowings under the Amended Credit Agreement. If we are unable to repaythose amounts, the lenders under the Amended Credit Agreement could proceed against the collateral granted to them to secure that debt, which would seriously harm our business.In addition, should we be unable to comply with these covenants or if we default on any portion of our outstanding borrowings, the lenders can also impose a 5% penalty.Moreover, our ability to access the final $10.0 million under the Amended Credit Agreement is subject to our ability to achieve a certain revenue threshold, which condition wemay not be able to meet and which could adversely affect our liquidity. Before we would consider accessing the final $10.0 million under the Amended Credit Agreement, ifavailable, we must first satisfy ourselves that we will have access to future alternate sources of capital, including cash flow from our own operations, equity capital markets or debtcapital markets in order to repay any principal borrowed, which we may be unable to do, in which case, our liquidity and ability to fund our operations may be substantiallyimpaired.
Virtually all of our research and development activities and the significant majority of our general and administrative activities are performed in or managed from a single sitethat may be subject to lengthy business interruption in the event of a severe earthquake. We also may suffer loss of computerized information and may be unable to maketimely filings with regulatory agencies in the event of catastrophic failure of our data storage and backup systems.
Virtually all of our research and development activities and the significant portion of our general and administrative activities are performed in or managed from our facilities inConcord, California, which are within an active earthquake fault zone. Should a severe earthquake occur, we might be unable to occupy our facilities or conduct research anddevelopment and general and administrative activities in support of our business and products until such time as our facilities could be repaired and made operational. Our propertyand casualty and business interruption insurance in general does not cover losses caused by earthquakes. While we have taken certain measures to protect our scientific,technological and commercial assets, a lengthy or costly disruption due to an earthquake would have a material adverse effect on us. We have also taken measures to limit damagethat may occur from the loss of computerized data due to power outage, system or component failure or corruption of data files. However, we may lose critical computerized data,which may be difficult or impossible to recreate, which may harm our business. We may be unable to make timely filings with regulatory agencies in the event of catastrophicfailure of our data storage and backup systems, which may subject us to fines or adverse consequences, up to and including loss of our ability to conduct business.
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Significant disruptions of information technology systems or breaches of data security could adversely affect our business.
Our business is increasingly dependent on complex and interdependent information technology systems, including internet-based systems, databases and programs, to support ourbusiness processes as well as internal and external communications. As use of information technology systems has increased, deliberate attacks and attempts to gain unauthorizedaccess to computer systems and networks have increased in frequency and sophistication. Our information technology, systems and networks are potentially vulnerable tobreakdown, malicious intrusion and computer viruses which may result in the impairment of production and key business processes or loss of data or information. We are alsopotentially vulnerable to data security breaches—whether by employees or others—which may expose sensitive data to unauthorized persons. For example, we have in the past andmay in the future be subject to “phishing” attacks in which third parties send emails purporting to be from reputable sources. Phishing attacks may attempt to obtain personalinformation, infiltrate our systems to initiate wire transfers or otherwise obtain proprietary or confidential information. Although we have not experienced any losses as a result ofsuch attacks or any other breaches of data security, such breaches could lead to the loss of trade secrets or other intellectual property, or could lead to the public exposure ofpersonal information (including sensitive personal information) of our employees, clinical trial patients, distributors, customers and others. Breaches and other inappropriate accesscan be difficult to detect and any delay in identifying them could increase their harm. While we have implemented security measures to protect our data security and informationtechnology systems, such measures may not prevent such events. Any such breaches of security and inappropriate access could disrupt our operations, harm our reputation orotherwise have a material adverse effect on our business, financial condition and results of operations.
If we fail to attract, retain and motivate key personnel or to retain the members of our executive management team, our operations and our future growth may be adverselyaffected.
We are highly dependent upon our executive management team and other critical personnel, including our specialized research and development, regulatory and operationspersonnel, many of whom have been employed with us for many years and have a significant amount of institutional knowledge about us and our products. We do not carry “keyperson” insurance. If one or more members of our executive management team or other key personnel were to retire or resign, our ability to achieve development, regulatory oroperational milestones for commercialization of our products could be adversely affected if we are unable to replace them with employees of comparable knowledge andexperience. In addition, we may not be able to retain or recruit other qualified individuals, and our efforts at knowledge transfer could be inadequate. If knowledge transfer,recruiting and retention efforts are inadequate, significant amounts of internal historical knowledge and expertise could become unavailable to us.
We also rely on our ability to attract, retain and motivate skilled and highly qualified personnel in order to grow our company. Competition for qualified personnel in the medicaldevice and pharmaceutical industry is very intense. If we are unable to attract, retain and motivate quality individuals, our business, financial condition, ability to perform under ourBARDA agreement, or results of operations and growth prospects could be adversely affected. Even if we are able to identify and hire qualified personnel commensurate with ourgrowth objectives and opportunities, the process of integrating new employees is time consuming, costly and distracting to existing employees and management. Such disruptionsmay have an adverse impact on our operations, our ability to service existing markets and customers, or our ability to comply with regulations and laws.
All of the employees of our subsidiary, Cerus Europe B.V., are employed outside the U.S., including in France, where labor and employment laws are relatively stringent and, inmany cases, grant significant job protection to certain employees, including rights on termination of employment. In addition, one of our manufacturing partners that we aredependent on is located in France and may have employees that are members of unions or represented by a works council as required by law. These more stringent labor andemployment laws to the extent that they are applicable, coupled with the requirement to consult with the relevant unions or works’ councils, could increase our operational costswith respect to our own employees and could result in passed through operational costs by our manufacturing partner. If the increased operational costs become significant, ourbusiness, financial condition and results of operations could be adversely impacted.
Our ability to use our net operating loss carryforwards and certain other tax attributes is uncertain and may be limited.
Our ability to use our federal and state net operating loss, or NOL, carryforwards to offset potential future taxable income and related income taxes that would otherwise be due isdependent upon our generation of future taxable income before the expiration dates of the NOL carryforwards, and we cannot predict with certainty when, or whether, we willgenerate sufficient taxable income to use all of our NOL carryforwards. In addition, utilization of NOL carryforwards to offset potential future taxable income and related incometaxes that would otherwise be due is subject to annual limitations under the “ownership change” provisions of Sections 382 of the Internal Revenue Code of 1986, as amended, orthe Code, and similar state provisions, which may result in the expiration of NOL carryforwards before future utilization. In general, under the Code, if a corporation undergoes an“ownership change,” generally defined as a greater than 50% change (by value) in its equity ownership over a three-year period, the corporation’s ability to use its pre-change NOLcarryforwards and other pre-change tax attributes (such as research and development credit carryforwards) to offset its post-change taxable income or taxes may be limited. Ourequity offerings and other changes in our stock ownership, some of which
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are outside of our control, may have resulted or could in the future result in an ownership change. Although we have completed studies to provide reasonable assurance that anownership change limitation would not ap ply, we cannot be certain that a taxing authority would reach the same conclusion. If, after a review or audit, an ownership changelimitation were to apply, utilization of our domestic NOL and tax credit carryforwards could be limited in future periods an d a portion of the carryforwards could expire beforebeing available to reduce future income tax liabilities.
We may not be able to protect our intellectual property or operate our business without infringing intellectual property rights of others.
Our commercial success will depend, in part, on obtaining and maintaining patent protection on our products and successfully defending our products against third-partychallenges. Our technology will be protected from unauthorized use only to the extent that it is covered by valid and enforceable patents or effectively maintained as trade secrets.As a result, our success depends in part on our ability to:
• obtain patents;
• protect trade secrets;
• operate without infringing upon the proprietary rights of others; and
• prevent others from infringing on our proprietary rights.
We cannot be certain that our patents or patents that we license from others will be enforceable and afford protection against competitors. Our patents or patent applications, ifissued, may be challenged, invalidated or circumvented. Our patent rights may not provide us with proprietary protection or competitive advantages against competitors withsimilar technologies. Others may independently develop technologies similar to ours or independently duplicate our technologies. For example, we are aware of a U.S. patent issuedto a third-party that covers methods to remove psoralen compounds from blood products. We have reviewed the patent and believe there exist substantial questions concerning itsvalidity. We cannot be certain, however, that a court would hold the patent to be invalid or not infringed by our platelet or plasma systems. In this regard, whether or not weinfringe this patent will not be known with certainty unless and until a court interprets the patent in the context of litigation. In the event that we are found to infringe any validclaim of this patent, we may, among other things, be required to pay damages, cease the use and sale of our platelet and plasma systems and/or obtain a license from the owner ofthe patent, which we may not be able to do at a reasonable cost or at all. Our patents expire at various dates between now and 2031. Recent patent applications will, if granted,result in patents with later expiration dates. In addition, we have a license from Fresenius to U.S. and foreign patents relating to the INTERCEPT Blood System, which expire atvarious dates between 2018 and 2024. Due to the extensive time required for development, testing and regulatory review of our potential products, our patents may expire or remainin existence for only a short period following commercialization. This would reduce or eliminate any advantage of the patents.
We cannot be certain that we were the first to make the inventions covered by each of our issued patents or pending patent applications or that we were the first to file patentapplications for such inventions. We may need to license the right to use third-party patents and intellectual property to continue development and commercialization of ourproducts, including in connection with our planned commercialization of the platelet and plasma systems in the U.S. We may not be able to acquire such required licenses onacceptable terms, if at all. If we do not obtain such licenses, we may need to design around other parties’ patents, or we may not be able to proceed with the development,manufacture or sale of our products.
Our patents do not cover all of the countries in which we are selling, and planning to sell, our products. We will not be able to prevent potential competitors from using ourtechnology in countries where we do not have patent coverage. Further, the laws of some foreign countries may not protect intellectual property rights to the same extent as the lawsof the U.S., including the CIS countries, China and India, jurisdictions where we are currently expanding our commercialization efforts through distributors. In certain countries,compulsory licensing laws exist that may be used to compel a patent owner to grant licenses to third parties, for reasons such as non-use of the patented subject matter within acertain period of time after patent grant or commercializing in a manner that is cost-prohibitive in the country. In those countries, we may have limited remedies if our patents areinfringed or if we are compelled to grant a license for INTERCEPT to a third party, which could materially diminish the value of such patents. This could adversely impact ourpotential product revenue opportunities.
We may face litigation requiring us to defend against claims of infringement, assert claims of infringement, enforce our patents, protect our trade secrets or know-how or determinethe scope and validity of others’ proprietary rights. Patent litigation is costly. In addition, we may require interference proceedings before the U.S. Patent and Trademark Office todetermine the priority of inventions relating to our patent applications. Litigation or interference proceedings could be expensive and time consuming, and we could be unsuccessfulin our efforts to enforce our intellectual property rights. We may rely, in certain circumstances, on trade secrets to protect our technology. However, trade secrets are difficult toprotect. We protect our proprietary technology and processes, in part, by
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confidentiality agreements with employees, consultants and contractors. These agreements may be breached and we may not have adequate remedies for any breach or our tradesecrets may otherwise become known or be independen tly discovered by competitors. To the extent that our employees, consultants or contractors use intellectual property ownedby others, disputes also may arise as to the rights in related or resulting know-how and inventions.
As our international operations grow, we may be subject to adverse fluctuations in exchange rates between the U.S. dollar and foreign currencies, tariffs and other traderestrictions.
Our international operations are subject to risks typical of an international business, including, among other factors: differing political, economic, and regulatory climates, differenttax structures and foreign exchange volatility. We do not currently enter into any hedging contracts to normalize the impact of foreign exchange fluctuations. As a result, our futureresults could be materially affected by changes in these or other factors.
Product sales of the INTERCEPT Blood System sold outside of the U.S. are typically invoiced to customers in Euros. In addition, we purchase finished INTERCEPT disposablekits for our platelet and plasma systems and incur certain operating expenses in Euros and other foreign currencies. Our exposure to foreign exchange rate volatility is a direct resultof our product sales, cash collection and cash payments for expenses to support our international operations. Foreign exchange rate fluctuations are recorded as a component ofother income, net on our consolidated statements of operations. Significant fluctuations in the volatility of foreign currencies relative to the U.S. dollar may materially affect ourresults of operations. For example, the announcement of Brexit caused severe volatility in global currency exchange rate fluctuations that resulted in the strengthening of the U.S.dollar against foreign currencies in which we transact business, and should this foreign exchange volatility continue, it could cause volatility in our results of operations. Inaddition, in a period where the U.S. dollar is strengthening/weakening as compared to Euros and other currencies we transact in, our product revenues and expenses denominated inEuros or other foreign currencies are translated into U.S. dollars at a lower/higher value than they would be in an otherwise constant currency exchange rate environment.
Currently we do not have a formal hedging program to mitigate the effects of foreign currency volatility. As our commercial operations grow globally, our operations are exposedto more currencies and as a result our exposure to foreign exchange risk will grow.
Additionally, the Trump administration has called for substantial changes to foreign trade policy and has raised the possibility of imposing significant increases in tariffs oninternational trade. We also rely on various U.S. corporate tax provisions related to international commerce. If we are subject to new regulations, or if restrictions and tariffsincrease our operating costs in the future, and we are not able to recapture those costs from our customers, or if such initiatives, regulations, restrictions or tariffs make it moredifficult for us to compete in overseas markets, our business, financial condition and results of operations could be adversely impacted.
We currently have a limited trading volume, which results in higher price volatility for, and reduced liquidity of, our common stock.
Our shares of common stock are currently quoted on the Nasdaq Global Market under the symbol “CERS.” The market for our common stock has been limited due to low tradingvolume and the small number of brokerage firms acting as market makers. Active trading markets generally result in lower price volatility and more efficient execution of buy andsell orders. The absence of an active trading market increases price volatility and reduces the liquidity of our common stock. As long as this condition continues, the sale of asignificant number of shares of common stock at any particular time could be difficult to achieve at the market prices prevailing immediately before such shares are offered, whichmay limit our ability to effectively raise money. In addition, due to the limitations of our market and the volatility in the market price of our stock, investors may face difficulties inselling shares at attractive prices when they want to sell. As a result of this lack of trading activity, the quoted price for our common stock is not necessarily a reliable indicator ofits fair market value.
We are obligated to develop and maintain proper and effective internal control over financial reporting. In the future, we may not complete our analysis of our internal controlover financial reporting in a timely manner, or these internal controls may not be determined to be effective, which may adversely affect investor confidence in our companyand, as a result, the value of our common stock.
We are required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control overfinancial reporting. This assessment includes disclosure of any material weakness identified by our management in our internal control over financial reporting, as well as astatement that our independent registered public accounting firm has issued an attestation report on the effectiveness of our internal control over financial reporting.
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Complying with Section 404 requires a rigorous compliance program as well as adequate time and resources. As a result of expanding our commercialization efforts, developing,improving and expanding our core information technology systems as well as impleme nting new systems to support our sales, supply chain activities and reporting capabilities, allof which require significant management time and support, we may not be able to complete our internal control evaluation, testing and any required remediation i n a timelyfashion. Additionally, if we identify one or more material weaknesses in our internal control over financial reporting, we will not be unable to assert that our internal controls areeffective. For example, our management concluded that our inte rnal control over financial reporting was ineffective as of December 31, 2014, because material weaknesses existedin our internal control over financial reporting related to the valuation of our inventory and cost of product revenue and the timeliness and accuracy of recording adjustments tocertain accrued liabilities as reported on our consolidated balance sheets and statements of operations. Although we have been able to successfully remediate those internal controldeficiencies, to the extent we identi fy future weaknesses or deficiencies, there could be material misstatements in our consolidated financial statements and we could fail to meetour financial reporting obligations. As a result, our ability to obtain additional financing, or obtain additiona l financing on favorable terms, could be materially and adverselyaffected which, in turn, could materially and adversely affect our business, our financial condition and the value of our common stock. If we are unable to assert that our internalcontrol o ver financial reporting is effective in the future, or if our independent registered public accounting firm is unable to express an opinion or expresses an adverse opinion onthe effectiveness of our internal controls in the future, investor confidence in the accuracy and completeness of our financial reports could be further eroded, which would have amaterial adverse effect on the price of our common stock.
Provisions of our charter documents, our stockholder rights plan, our compensatory arrangements and Delaware law could make it more difficult for a third party to acquireus, even if the offer may be considered beneficial by our stockholders.
Provisions of the Delaware General Corporation Law could discourage potential acquisition proposals and could delay, deter or prevent a change in control. The anti-takeoverprovisions of the Delaware General Corporation Law impose various impediments to the ability of a third party to acquire control of us, even if a change in control would bebeneficial to our existing stockholders. In addition, Section 203 of the Delaware General Corporation Law, unless its application has been waived, provides certain default anti-takeover protections in connection with transactions between us and an “interested stockholder”. Generally, Section 203 prohibits stockholders who, alone or together with theiraffiliates and associates, own more than 15% of the subject company from engaging in certain business combinations for a period of three years following the date that thestockholder became an interested stockholder of such subject company without approval of the board or the vote of two-thirds of the shares held by the independent stockholders.Our board of directors has also adopted a stockholder rights plan, or “poison pill,” which would significantly dilute the ownership of a hostile acquirer. Additionally, provisions ofour amended and restated certificate of incorporation and bylaws could deter, delay or prevent a third party from acquiring us, even if doing so would benefit our stockholders,including without limitation, the authority of the board of directors to issue, without stockholder approval, preferred stock with such terms as the board of directors may determine.In addition, our executive employment agreements, change of control severance benefit plan and equity incentive plans and agreements thereunder provide for certain severancebenefits in connection with a change of control of us, including single-trigger equity vesting acceleration benefits with respect to outstanding stock options, which could increasethe costs to a third party acquirer and/or deter such third party from acquiring us. ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF pROCEEDS
None.
ITEM 3. DEFAULTS UpON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
ITEM 5. OTHER INFORMATION
None.
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ITEM 6. E xHIBITS Exhibit Number Description of Exhibit
3.1 (1) Amended and Restated Certificate of Incorporation of Cerus Corporation.
3.2 (1) Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Cerus Corporation.
3.3 (6) Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Cerus Corporation.
3.4 (1) Certificate of Designation of Series C Junior Participating Preferred Stock of Cerus Corporation.
3.5 (2) Amended and Restated Bylaws of Cerus Corporation.
4.1 (3) Specimen Stock Certificate.
4.2 (4) Rights Agreement, dated as of November 3, 1999, as amended as of August 6, 2001, between Cerus Corporation and Wells Fargo Bank, N.A. (formerly knownas Norwest Bank Minnesota, N.A.).
4.3 (5) Amendment to Rights Agreement, dated as of October 28, 2009, between Cerus Corporation and Wells Fargo Bank, N.A. (which includes the form of RightsCertificate as Exhibit B thereto).
10.1(7) Amendment No. 3 to Controlled Equity Offering SM Sales Agreement, dated August 4, 2017, by and between Cerus Corporation and Cantor Fitzgerald & Co. 10.2 †
Amended and Restated Loan and Security Agreement, dated July 31, 2017, by and among Cerus Corporation and Oxford Finance LLC, as collateral agent and alender.
10.3
First Amendment to Loan and Security Agreement, effective July 31, 2017, by and among Cerus Corporation and Oxford Finance LLC, as collateral agent anda lender.
31.1 Certification of the Principal Executive Officer of Cerus Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of the Principal Financial Officer of Cerus Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 (8) Certification of the Principal Executive Officer and Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS XBRL Instance Document.
101.SCH XBRL Taxonomy Extension Schema Document.
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB XBRL Taxonomy Extension Label Linkbase Document.
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document.
† Registrant has requested confidential treatment for portions of this exhibit.(1) Incorporated by reference to the like-described exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-21937), for the quarter ended September 30, 2012.(2) Incorporated by reference to the like-described exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-21937), filed with the SEC on June 19, 2008.(3) Incorporated by reference to the like-described exhibit to the Registrant’s Registration Statement on Form S-1 (File No. 333-11341) and amendments thereto.(4) Incorporated by reference to the like-described exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-21937), for the quarter ended June 30, 2009.(5) Incorporated by reference to the like-described exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-21937), filed with the SEC on October 30, 2009.(6) Incorporated by reference to the like-described exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-21937), for the quarter ended June 30, 2014.( 7 ) Incorporated by reference to the like-described exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-21937), for the quarter ended June 30, 2017.
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(8) This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission, and is not incorporated by referenceinto any fi ling of the Registrant under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the dateof the Form 10-Q), irrespective of any general incorporation language contained in such filing.
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SIGNA TURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto dulyauthorized. CERUS CORPORATION Date: November 3, 2017 /s/ Kevin D. Green Kevin D. Green
Vice President, Finance and Chief Financial Officer(on behalf of registrant and as Principal Financial Officer)
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[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
Exhibit 10.2
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (as the same may from time to time be amended, modified, supplemented orrestated, this “ Agreement ”) dated as of July 31, 2017 (the “ Effective Date ”) among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at133 North Fairfax Street, Alexandria, Virginia 22314 (“ Oxford ”), as collateral agent (in such capacity, “ Collateral Agent ”), the Lenders listed on Schedule 1.1 hereof orotherwise a party hereto from time to time including Oxford in its capacity as a Lender (each a “ Lender ” and collectively, the “ Lenders ”), and CERUS CORPORATION, aDelaware corporation with offices located at 2550 Stanwell Drive, Concord, CA 94520 (“ Borrower ”), provides the terms on which the Lenders shall lend to Borrower andBorrower shall repay the Lenders, and amends and restates in its entirety that certain Loan and Security Agreement dated as of June 30, 2014, as amended from time to time, by andamong Collateral Agent, Oxford, in its capacity as a Lender, and other lenders party thereto from time to time and Borrower (the “ Original Agreement ”) provides the terms onwhich the Lenders shall lend to Borrower and Borrower shall repay the Lenders. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS
1.1 Accounting terms not defined in this Agreement shall be construed in accordance with GAAP. Calculations and determinations must be madein accordance with GAAP. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement,unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “ Dollars ” or “ $ ” are United StatesDollars, unless otherwise noted.
2. LOANS AND TERMS OF pAYMENT
2.1 promise to pay. Borrower hereby unconditionally promises to pay each Lender, the outstanding principal amount of all Term Loans advancedto Borrower by such Lender and accrued and unpaid interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement.
2.2 Term Loans.
(a) Availability . (i) Subject to the terms and conditions of this Agreement, the Lenders agree, severally and not jointly, tomake term loans to Borrower on the Effective Date in an aggregate amount of Thirty Million Dollars ($30,000,000.00) according to each Lender’s Term A Loan Commitment asset forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “ Term A Loan ”, and collectively as the “ Term A Loans ”). After repayment, no Term ALoan may be re‑borrowed. Subject to the terms and conditions of the Original Agreement, the Lenders, severally and not jointly, loaned to Borrower advances according to eachLender’s Term Loan Commitment (as defined in the Original Agreement) as set forth on Schedule 1.1 of the Original Agreement (such term loans referred to singly as “ OriginalTerm Loan ”, and collectively as “ Original Term Loans ”), of which an aggregate principal amount of Seventeen Million Six Hundred Thirty Thousand Five Hundred NineDollars and Forty Four cents ($17,630,509.44) remains outstanding on the date hereof and shall, as of the Effective Date, be governed by the terms and provisions of thisAgreement. The Original Term Loans are evidenced by, among other things, : (1) that certain Term A Loan – Note No. 1, issued on June 30, 2014 (“ Original Note 1 ”) in theoriginal principal amount of Five Million Dollars ($5,000,000.00), of which Four Million Four Hundred Seven Thousand Four Hundred Forty Eight Dollars Thirty cents ($4,407,448.30) of principal amount remain outstanding; (2) that certain Term A Loan – Note No. 2, issued on June 30, 2014 (“ Original Note 2 ”) in the original principal amount ofFive Million Dollars ($5,000,000.00), of which Four Million Four Hundred Seven Thousand Four Hundred Forty Eight Dollars Thirty cents ($ 4,407,448.30) of principal amountremain outstanding; (3) that certain Term B Loan – Note 1, issued on June 15, 2015 (“ Original Note 3 ”) in the original principal amount of Five Million Dollars ($5,000,000.00),of which Four Million Four Hundred Seven Thousand Eight Hundred Six Dollars Forty Two cents ($ 4,407,806.42) of principal amount remain outstanding; and (4) that certainTerm B Loan – Note 2, issued on June 15, 2015 (“ Original Note 4, ” and together with Original Note 1, Original Note 2 and Original Note 3, the “ Original Notes ”) in theoriginal principal amount of Five Million Dollars ($5,000,000.00), of
which Four Million Four Hundred Seven Thousand Eight Hundred Six Dollars Forty Two cents ($ 4,407,806.42) of principal amount remain outstanding. The Original Notes shallremain outstanding and shall represent, effective as of the Effective Date, the respective principal amounts of the Original Term Loans outstanding that are evidenced thereby andset forth above as equivalent principal amounts of the Term A Loans being issued hereunder and shall be governed in all respects by the terms of this Agreement. The balance ofthe aggregate principal amount of the Term A Loans shall be evidenced by Secured Promissory Notes issued hereunder.
(ii) Subject to the terms and conditions of this Agreement, the Lenders agree, severally and notjointly, during the Second Draw Period, to make term loans to Borrower in an aggregate amount of Ten Million Dollars ($10,000,000.00) according to each Lender’s Term B LoanCommitment as set forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “ Term B Loan ”, and collectively as the “ Term B Loans ”). Afterrepayment, no Term B Loan may be re‑borrowed.
(b) Repayment . Borrower shall make monthly payments of interest only commencing on the first (1 st ) Payment Datefollowing the Funding Date of each Term Loan, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediatelypreceding the Amortization Date. Borrower agrees to pay, on the Funding Date of each Term Loan, any initial partial monthly interest payment otherwise due for the periodbetween the Funding Date of such Term Loan and the first Payment Date thereof. Commencing on the Amortization Date, and continuing on the Payment Date of each monththereafter, Borrower shall make consecutive equal monthly payments of principal, together with applicable interest, in arrears, to each Lender, as calculated by Collateral Agent(which calculations shall be deemed correct absent manifest error) based upon: (1) the amount of such Lender’s Term Loan, (2) the effective rate of interest, as determined inSection 2.3(a), and (3) a repayment schedule equal to (i) forty-two (42) months, if the Term B Loans are not made hereunder and (ii) thirty-six months (36), if the Term B Loans aremade hereunder. All unpaid principal and accrued and unpaid interest with respect to each Term Loan is due and payable in full on the Maturity Date. Each Term Loan may onlybe prepaid in accordance with Sections 2.2(c) and 2.2(d).
(c) Mandatory Prepayments . If the Term Loans are accelerated following the occurrence and continuance of an Event ofDefault, Borrower shall immediately pay to Lenders, payable to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of: (i) all outstandingprincipal of the Term Loans plus accrued and unpaid interest thereon through the prepayment date, (ii) the Final Payment, (iii) the Prepayment Fee, plus (iv) all other Obligationsthat are due and payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts. Notwithstanding (but without duplication with) theforegoing, on the Maturity Date, if the Final Payment had not previously been paid in full in connection with the prepayment of the Term Loans in full, Borrower shall pay toCollateral Agent, for payment to each Lender in accordance with its respective Pro Rata Share, the Final Payment in respect of the Term Loan(s).
(d) Permitted Prepayment of Term Loans .
(i) Borrower shall have the option to prepay all, but not less than all, of the Term Loans advanced bythe Lenders under this Agreement, provided Borrower (i) provides written notice to Collateral Agent of its election to prepay the Term Loans at least [ * ] days prior to suchprepayment, and (ii) pays to the Lenders on the date of such prepayment, payable to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of(A) all outstanding principal of the Term Loans plus accrued and unpaid interest thereon through the prepayment date, (B) the Final Payment, (C) the Prepayment Fee, plus (D) allother Obligations that are due and payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts.
(ii) Notwithstanding anything herein to the contrary, Borrower shall also have the option to prepaypart of Term Loans advanced by the Lenders under this Agreement, provided Borrower (i) provides written notice to Collateral Agent of its election to prepay the Term Loans atleast [ * ] days prior to such prepayment, (ii) any [ * ] shall be [ * ] of (x) [ * ] and (y) [ * ] , and (iii) pays to the Lenders on the date of such prepayment, payable to each Lender inaccordance with its respective Pro Rata Share, an amount equal to the sum of (A) the portion of outstanding principal of such Term Loans plus all accrued and unpaid interestthereon through the prepayment date, (B) the applicable Final Payment, and (C) all other Obligations that are then due and payable, including Lenders’ Expenses and interest at theDefault Rate with respect to any past due amounts, and (D) the
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applicable Prepayment Fee with respect to the portion of such Term Loans being prepaid. For the purposes of clarity, any partial prepayment shall be applied pro-rata to alloutstanding amounts under each Term Loan, and shall be applied pro-rata within each Term Loan tranche to reduce amortization payments under Section 2.2(b) on a pro-rata basis.
2.3 payment of Interest on the Credit Extensions.
(a) Interest Rate. Subject to Section 2.3(b), the principal amount outstanding under the Term Loans shall accrue interest at afloating per annum equal to the Basic Rate, determined by Collateral Agent on the Funding Date of the applicable Term Loan and then monthly therafter, which interest shall bepayable monthly in arrears in accordance with Sections 2.2(b) and 2.3(e). Interest shall accrue on each Term Loan commencing on, and including, the Funding Date of such TermLoan, and shall accrue on the principal amount outstanding under such Term Loan through and including the day on which such Term Loan is paid in full.
(b) Default Rate . Immediately upon the occurrence and during the continuance of an Event of Default, Obligations shallaccrue interest at a floating per annum rate equal to the rate that is otherwise applicable thereto plus five percentage points (5.00%) (the “ Default Rate ”). Payment or acceptanceof the increased interest rate provided in this Section 2.3(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwiseprejudice or limit any rights or remedies of Collateral Agent.
(c) 360‑Day Year . Interest shall be computed on the basis of a three hundred sixty (360) day year, and the actual number ofdays elapsed.
(d) Debit of Accounts . Collateral Agent and each Lender may debit (or ACH) any deposit accounts, maintained byBorrower, including the Designated Deposit Account, for principal and interest payments or any other amounts Borrower owes the Lenders under the Loan Documents whendue. Any such debits (or ACH activity) shall not constitute a set‑off.
(e) Payments . Except as otherwise expressly provided herein, all payments by Borrower under the Loan Documents shallbe made to the respective Lender to which such payments are owed, at such Lender’s office in immediately available funds on the date specified herein. Unless otherwise provided,interest is payable monthly on the Payment Date of each month. Payments of principal and/or interest received after 2:00 p.m. Eastern time are considered received at the openingof business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional fees or interest, asapplicable, shall continue to accrue until paid. All payments to be made by Borrower hereunder or under any other Loan Document, including payments of principal and interest,and all fees, expenses, indemnities and reimbursements, shall be made without set‑off, recoupment or counterclaim, in lawful money of the United States and in immediatelyavailable funds.
2.4 Secured promissory Notes. The Term Loans shall be evidenced by a Secured Promissory Note or Notes in the form attached as Exhibit Dhereto (each a “ Secured promissory Note ”), and shall be repayable as set forth in this Agreement. Borrower irrevocably authorizes each Lender to make or cause to be made, onor about the Funding Date of any Term Loan or at the time of receipt of any payment of principal on such Lender’s Secured Promissory Note, an appropriate notation on suchLender’s Secured Promissory Note Record reflecting the making of such Term Loan or (as the case may be) the receipt of such payment. The outstanding amount of each TermLoan set forth on such Lender’s Secured Promissory Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure torecord, or any error in so recording, any such amount on such Lender’s Secured Promissory Note Record shall not limit or otherwise affect the obligations of Borrower under anySecured Promissory Note or any other Loan Document to make payments of principal of or interest on any Secured Promissory Note when due. Upon receipt of an affidavit of anofficer of a Lender as to the loss, theft, destruction, or mutilation of its Secured Promissory Note , Borrower shall issue, in lieu thereof, a replacement Secured Promissory Note inthe same principal amount thereof and of like tenor.
2.5 Fees. Borrower shall pay to Collateral Agent:
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(a) Facility Fee . A non-refundable facility fee to be shared between the Lenders pursuant to their respective Commitment
Percentages payable as follows: (i) Seventy Five Thousand Dollars ($75,000.00) shall be due and payable and fully earned on the Effective Date and (ii) if applicable, Twenty FiveThousand Dollars ($25,000.00) shall be due and payable and fully earned on the Funding Date of the Term B Loan;
(b) Original Agreement Final Payment . On the Effective Date, the Final Payment (as defined in the Original Agreement)due to Oxford under the Original Agreement in the amount of One Million Four Hundred Thousand Dollars ($1,400,000.00). For the sake of clarity, the Original Agreement FinalPayment shall not reduce the Final Payment otherwise due in connection with Section 2.5(c) hereof;
(c) Final Payment . The Final Payment, when due hereunder, to be shared between the Lenders in accordance with theirrespective Pro Rata Shares;
(d) Prepayment Fee . The Prepayment Fee, when due hereunder, to be shared between the Lenders in accordance with theirrespective Pro Rata Shares; and
(e) Lenders’ Expenses . All Lenders’ Expenses (including reasonable attorneys’ fees and expenses for documentation andnegotiation of this Agreement) incurred through and after the Effective Date, when due.
2.6 Withholding. Payments received by the Lenders from Borrower hereunder will be made free and clear of and without deduction for any andall present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any governmental authority (including any interest,additions to tax or penalties applicable thereto). Specifically, however, if at any time any Governmental Authority, applicable law, regulation or international agreement requiresBorrower to make any withholding or deduction from any such payment or other sum payable hereunder to the Lenders, Borrower hereby covenants and agrees that the amount duefrom Borrower with respect to such payment or other sum payable hereunder will be increased to the extent necessary to ensure that, after the making of such required withholdingor deduction, each Lender receives a net sum equal to the sum which it would have received had no withholding or deduction been required and Borrower shall pay the full amountwithheld or deducted to the relevant Governmental Authority. Borrower will, upon request, furnish the Lenders with proof reasonably satisfactory to the Lenders indicating thatBorrower has made such withholding payment; provided, however, that Borrower need not make any withholding payment if the amount or validity of such withholding payment iscontested in good faith by appropriate and timely proceedings and as to which payment in full is bonded or reserved against by Borrower. The agreements and obligations ofBorrower contained in this Section 2.6 shall survive the termination of this Agreement.
3. CONDITIONS OF LOANS
3.1 Conditions precedent to Initial Credit Extension. Each Lender’s obligation to make a Term A Loan is subject to the condition precedentthat Collateral Agent and each Lender shall consent to or shall have received, in form and substance satisfactory to Collateral Agent and each Lender, such documents, andcompletion of such other matters, as Collateral Agent and each Lender may reasonably deem necessary or appropriate, including, without limitation:
(a) original Loan Documents, each duly executed by Borrower and each Loan Party;
(b) duly executed original Control Agreements with respect to any Collateral Accounts maintained by Borrower and eachLoan Party and required under Section 6.6;
(c) duly executed original Secured Promissory Notes in favor of each Lender according to its Term A Loan CommitmentPercentage, as contemplated in Section 2.2(a)(i) hereof;
(d) the Operating Documents and good standing certificates of Borrower and each Loan Party certified by the Secretary ofState (or equivalent agency) of Borrower’s and such Loan Parties’ jurisdiction of
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organization or formation and each jurisdiction in which Borrower and each Loan Party is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to theEffective Date ;
(e) a completed Perfection Certificate for Borrower and each of its Subsidiaries;
(f) the Annual Projections, for the current calendar year;
(g) duly executed original officer’s certificate for Borrower and each Loan Party that is a party to the Loan Documents, in aform acceptable to Collateral Agent and the Lenders;
(h) certified copies, dated as of date no earlier than thirty (30) days prior to the Effective Date, of financing statementsearches, as Collateral Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statementseither constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released;
(i) subject to the Post Closing Letter, a landlord’s consent executed in favor of Collateral Agent in respect of each ofBorrower’s and each Subsidiaries’ leased locations where Borrower or any Subsidiary maintains Collateral having a book value in excess of Five Hundred Thousand Dollars($500,000.00);
(j) subject to the Post Closing Letter, a bailee waiver executed in favor of Collateral Agent in respect of each third partybailee where Borrower or any Subsidiary maintains Collateral having a book value in excess of Five Hundred Thousand Dollars ($500,000.00);
(k) evidence satisfactory to Collateral Agent and the Lenders that the insurance policies required by Section 6.5 hereof are infull force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Collateral Agent, for the ratable benefitof the Lenders;
(l) a duly executed legal opinion of counsel to Borrower dated as of the Effective Date; and
(m) payment of the fees and Lenders’ Expenses then due as specified in Section 2.5 hereof.
3.2 Conditions precedent to all Credit Extensions. The obligation of each Lender to make each Credit Extension, including the initial CreditExtension, is subject to the following conditions precedent:
(a) receipt by Collateral Agent of an executed Disbursement Letter in the form of Exhibit B attached hereto;
(b) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on thedate of the Disbursement Letter and on the Funding Date of each Credit Extension; provided, however, that such materiality qualifier shall not be applicable to any representationsand warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to aspecific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the CreditExtension. Each Credit Extension is Borrower’s representation and warranty on that date that the representations and warranties in Section 5 hereof are true, accurate and completein all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified bymateriality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in allmaterial respects as of such date;
(c) in such Lender’s sole discretion, there has not been any Material Adverse Change or any material adverse deviation byBorrower from the Annual Projections of Borrower presented to and accepted by Collateral Agent and each Lender;
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(d) to the extent not delivered at the Effective Date, duly executed original Secured Promissory Notes, in number, form and
content acceptable to each Lender, and in favor of each Lender according to its Commitment Percentage, with respect to each Credit Extension made by such Lender after theEffective Date;
(e) if the [ * ] is for [ * ] , then the [ * ] have received [ * ] , which [ * ] be mutually be acceptable [ * ] ; and
(f) payment of the fees and Lenders’ Expenses then due as specified in Section 2.5 hereof.
3.3 Covenant to Deliver. Borrower agrees to deliver to Collateral Agent and the Lenders each item required to be delivered to Collateral Agentunder this Agreement as a condition precedent to any Credit Extension. Borrower expressly agrees that a Credit Extension made prior to the receipt by Collateral Agent or anyLender of any such item shall not constitute a waiver by Collateral Agent or any Lender of Borrower’s obligation to deliver such item, and any such Credit Extension in the absenceof a required item shall be made in each Lender’s sole discretion.
3.4 procedures for Borrowing. Subject to the prior satisfaction of all other applicable conditions to the making of a Term Loan set forth in thisAgreement, to obtain a Term Loan, Borrower shall notify the Lenders (which notice shall be irrevocable) by electronic mail, facsimile, or telephone by 12:00 noon Eastern timethree (3) Business Days prior to the date the Term Loan is to be made. Together with any such electronic, facsimile or telephonic notification, Borrower shall deliver to the Lendersby electronic mail or facsimile a completed Disbursement Letter executed by a Responsible Officer or his or her designee. The Lenders may rely on any telephone notice given bya person whom a Lender reasonably believes is a Responsible Officer or designee. On the Funding Date, each Lender shall credit and/or transfer (as applicable) to the DesignatedDeposit Account, an amount equal to its Term Loan Commitment.
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest. Borrower hereby grants Collateral Agent, for the ratable benefit of the Lenders, to secure the payment andperformance in full of all of the Obligations, a continuing security interest in, and pledges to Collateral Agent, for the ratable benefit of the Lenders, the Collateral, whereverlocated, whether now owned or hereafter acquired or arising, and all proceeds and products thereof. Borrower represents, warrants, and covenants that the security interest grantedherein is and shall at all times continue to be a first priority perfected security interest in the Collateral, subject only to Permitted Liens that are permitted by the terms of thisAgreement to have priority to Collateral Agent’s Lien. If Borrower shall acquire a commercial tort claim (as defined in the Code), Borrower, shall promptly notify Collateral Agentin a writing signed by Borrower, as the case may be, of the general details thereof (and further details as may be required by Collateral Agent) and grant to Collateral Agent, for theratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form andsubstance reasonably satisfactory to Collateral Agent.
If this Agreement is terminated, Collateral Agent’s Lien in the Collateral shall continue until the Obligations (other than inchoate indemnity obligations) are repaid infull in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to make Credit Extensions hasterminated, Collateral Agent shall, at the sole cost and expense of Borrower, release its Liens in the Collateral and all rights therein shall revert to Borrower.
4.2 Authorization to File Financing Statements. Borrower hereby authorizes Collateral Agent to file financing statements or take any otheraction required to perfect Collateral Agent’s security interests in the Collateral, without notice to Borrower, with all appropriate jurisdictions to perfect or protect Collateral Agent’sinterest or rights under the Loan Documents, including a notice that any disposition of the Collateral, except to the extent permitted by the terms of this Agreement, by Borrower, orany other Person, shall be deemed to violate the rights of Collateral Agent under the Code.
4.3 pledge of Collateral. Borrower hereby pledges, assigns and grants to Collateral Agent, for the ratable benefit of the Lenders, a securityinterest in all the Shares, together with all proceeds and substitutions
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thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncashproceeds of the foregoing, as security for the performance of the Obligations. Within ten (10) days of the certification of any Shares, the certificate or certificates for the Shareswill be delivered to Collateral Agent, accompanied by an instrument of assignment duly executed in blank by Borrower. To the extent required by the terms and conditionsgoverning the Shares, Borrower shall cause the books of each entity whose Shares are part of the Collateral and any transfer agent to reflect the pledge of the Shares. Upon theoccurrence and during the continuance of an Event of Default hereunder, Collateral Agent may effect the transfer of any securities included in the Collateral (including but notlimited to the Shares) into the name of Collateral Agent and cause new (as applicable) certificates representing such securities to be issued in the name of Collateral Agent or itstransferee. Borrower will execute and deliver such documents, and take or cause to be taken such actions, as Collateral Agent may reasonably request to perfect or continue theperfection of Collateral Agent’s security interest in the Shares. Unless an Event of Default shall have occurred and be continuing, Borrower shall be entitled to exercise any votingrights with respect to the Shares and to give consents, waivers and ratifications in respect thereof, provided that no vote shall be cast or consent, waiver or ratification given oraction taken which would be inconsistent with any of the terms of this Agreement or which would constitute or create any violation of any of such terms. All such rights to voteand give consents, waivers and ratifications shall terminate upon the occurrence and continuance of an Event of Default.
5. REpRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Collateral Agent and the Lenders as follows:
5.1 Due Organization, Authorization: power and Authority. Borrower and each of its Subsidiaries is duly existing and in good standing as aRegistered Organization in its jurisdictions of organization or formation and Borrower and each of its Subsidiaries is qualified and licensed to do business and is in good standing inany jurisdiction in which the conduct of its businesses or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected tohave a Material Adverse Change. In connection with this Agreement, Borrower and each of its Subsidiaries has delivered to Collateral Agent a completed perfection certificatesigned by an officer of Borrower or such Subsidiary (each a “ perfection Certificate ” and collectively, the “ perfection Certificates ”). Borrower represents and warrants that(a) Borrower and each of its Subsidiaries’ exact legal name is that which is indicated on its respective Perfection Certificate and on the signature page of each Loan Document towhich it is a party; (b) Borrower and each of its Subsidiaries is an organization of the type and is organized in the jurisdiction set forth on its respective Perfection Certificate;(c) each Perfection Certificate accurately sets forth each of Borrower’s and its Subsidiaries’ organizational identification number or accurately states that Borrower or suchSubsidiary has none; (d) each Perfection Certificate accurately sets forth Borrower’s and each of its Subsidiaries’ place of business, or, if more than one, its chief executive officeas well as Borrower’s and each of its Subsidiaries’ mailing address (if different than its chief executive office); (e) Borrower and each of its Subsidiaries (and each of its respectivepredecessors) have not, in the past five (5) years, changed its jurisdiction of organization, organizational structure or type, or any organizational number assigned by its jurisdiction;and (f) all other information set forth on the Perfection Certificates pertaining to Borrower and each of its Subsidiaries, is accurate and complete (it being understood and agreedthat Borrower and each of its Subsidiaries may from time to time update certain information in the Perfection Certificates (including the information set forth in clause (d) above)after the Effective Date to the extent permitted by one or more specific provisions in this Agreement); such updated Perfection Certificates subject to the review and approval ofCollateral Agent. If Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, Borrower shall notify Collateral Agent of such occurrence andprovide Collateral Agent with such Person’s organizational identification number within five (5) Business Days of receiving such organizational identification number.
The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been duly authorized, and do not(i) conflict with any of Borrower’s or such Subsidiaries’ organizational documents, including its respective Operating Documents, (ii) contravene, conflict with, constitute a defaultunder or violate any material Requirement of Law applicable thereto, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination oraward of any Governmental Authority by which Borrower or such Subsidiary, or any of their property or assets may be bound or affected, (iv) require any action by, filing,registration, or qualification with, or Governmental Approval from, any Governmental Authority
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(except such Governmental Approvals which have already been obtained and are in full force and effect) or are being obtained pursuant to Section 6.1(b), or (v) constitute an eventof default under any material agreement by which Borrower or any of such Subsidiaries, or their respective properties, is bound. Neither Borrower nor any of its Subsidiaries is indefault under any agreement to which it is a party or by which it or any of its assets is bound in which such default could reasonably be expected to have a Material AdverseChange.
5.2 Collateral.
(a) Borrower and each its Subsidiaries have good title to, have rights in, and the power to transfer each item of the Collateralupon which it purports to grant a Lien under the Loan Documents, free and clear of any and all Liens except Permitted Liens, and neither Borrower nor any of its Subsidiaries haveany Deposit Accounts, Securities Accounts, Commodity Accounts or other investment accounts other than the deposit, operating or the other investment accounts, if any, describedin the Perfection Certificates delivered to Collateral Agent in connection herewith with respect of which Borrower or such Subsidiary has given Collateral Agent notice and takensuch actions as are necessary to give Collateral Agent a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors.
(b) On the Effective Date, and except as disclosed on the Perfection Certificate (i) the Collateral is not in the possession ofany third party bailee (such as a warehouse), and (ii) no such third party bailee possesses components of the Collateral in excess of Five Hundred Thousand Dollars($500,000.00). None of the components of the Collateral shall be maintained at locations other than as disclosed in the Perfection Certificates on the Effective Date or as permittedpursuant to Section 6.11.
(c) All Inventory is in all material respects of good and marketable quality, free from material defects.
(d) Borrower and each of its Subsidiaries is the sole owner of the Intellectual Property each respectively purports to own,free and clear of all Liens other than Permitted Liens. Except as noted on the Perfection Certificates, neither Borrower nor any of its Subsidiaries is a party to, nor is bound by, anymaterial license or other material agreement with respect to which Borrower or such Subsidiary is the licensee that (i) prohibits or otherwise restricts Borrower or its Subsidiariesfrom granting a security interest in Borrower’s or such Subsidiaries’ interest in such material license or material agreement or any other property, or (ii) for which a default under ortermination of could interfere with Collateral Agent’s or any Lender’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent and each Lender within[ * ] days of Borrower or any of its Subsidiaries entering into or becoming bound by any license or agreement with respect to which Borrower or any Subsidiary is the licensee(other than over‑the‑counter software that is commercially available to the public).
5.3 Litigation. Except as disclosed (i) on the Perfection Certificates, or (ii) in accordance with Section 6.9 hereof, there are no actions, suits,investigations, or proceedings pending or, to the knowledge of the Responsible Officers, threatened in writing by or against Borrower or any of its Subsidiaries involving more thanTwo Hundred Fifty Thousand Dollars ($250,000.00).
5.4 No Material Deterioration in Financial Condition; Financial Statements. All consolidated financial statements for Borrower and itsSubsidiaries, delivered to Collateral Agent fairly present, in conformity with GAAP, in all material respects the consolidated financial condition of Borrower and its Subsidiaries,and the consolidated results of operations of Borrower and its Subsidiaries. There has not been any material deterioration in the consolidated financial condition of Borrower andits Subsidiaries since the date of the most recent financial statements submitted to any Lender.
5.5 Solvency. Borrower and each of its Subsidiaries is Solvent.
5.6 Regulatory Compliance. Neither Borrower nor any of its Subsidiaries is an “investment company” or a company “controlled” by an“investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is engaged as one of its important activities inextending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and
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each of its Subsidiaries have complied in all material respects with the Federal Fair Labor Standards Act. Neither Borrower nor any of its Subsidiaries is a “holding company” oran “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of2005. Neither Borrower nor any of its Subsidiaries has violated any laws, ordinances or rules, the violation of which could reasonably be expected to have a Material AdverseChange. Neither Borrower’s nor any of its Subsidiaries’ properties or assets has been used by Borrower or such Subsidiary or, to Borrower’s knowledge, by previous Persons, indisposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with applicable laws. Borrower and each of its Subsidiaries hasobtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary to continuetheir respective businesses as currently conducted.
None of Borrower, any of its Subsidiaries, or any of Borrower’s or its Subsidiaries’ Affiliates or any of their respective agents acting or benefiting in any capacity inconnection with the transactions contemplated by this Agreement is (i) in violation of any Anti‑Terrorism Law, (ii) engaging in or conspiring to engage in any transaction thatevades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti‑Terrorism Law, or (iii) is a Blocked Person. None ofBorrower, any of its Subsidiaries, or to the knowledge of Borrower and any of their Affiliates or agents, acting or benefiting in any capacity in connection with the transactionscontemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any BlockedPerson, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similarexecutive order or other Anti‑Terrorism Law.
5.7 Investments. Neither Borrower nor any of its Subsidiaries owns any stock, shares, partnership interests or other equity securities except forPermitted Investments.
5.8 Tax Returns and payments; pension Contributions. Borrower and each of its Subsidiaries has timely filed all required tax returns andreports or extensions thereof, and Borrower and each of its Subsidiaries, has timely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions owed byBorrower and such Subsidiaries, in all jurisdictions in which Borrower or any such Subsidiary is subject to taxes, including the United States, unless such taxes are being contestedin accordance with the following sentence. Borrower and each of its Subsidiaries, may defer payment of any contested taxes, provided that Borrower or such Subsidiary, (a) ingood faith contests its obligation to pay the taxes by appropriate proceedings promptly and diligently instituted and conducted, (b) notifies Collateral Agent in writing of thecommencement of, and any material development in, the proceedings, and (c) posts bonds or takes any other steps required to prevent the Governmental Authority levying suchcontested taxes from obtaining a Lien upon any of the Collateral that is other than a “ permitted Lien .” Neither Borrower nor any of its Subsidiaries is aware of any claims oradjustments proposed for any of Borrower’s or such Subsidiaries’, prior tax years which could result in additional taxes becoming due and payable by Borrower or itsSubsidiaries. Borrower and each of its Subsidiaries have paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance withtheir terms, and neither Borrower nor any of its Subsidiaries have, withdrawn from participation in, and have not permitted partial or complete termination of, or permitted theoccurrence of any other event with respect to, any such plan which could reasonably be expected to result in any liability of Borrower or its Subsidiaries, including any liability tothe Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
5.9 Use of proceeds. Borrower shall use the proceeds of the Credit Extensions solely as working capital and to fund its general businessrequirements in accordance with the provisions of this Agreement, and not for personal, family, household or agricultural purposes.
5.10 Shares. Borrower has full power and authority to create a first lien on the Shares and no disability or contractual obligation exists that wouldprohibit Borrower from pledging the Shares pursuant to this Agreement. To Borrower’s knowledge, there are no subscriptions, warrants, rights of first refusal or other restrictionson transfer relative to, or options exercisable with respect to the Shares. The Shares have been and will be duly authorized and validly issued, and are fully paid andnon‑assessable. To Borrower’s knowledge, the Shares are not the subject of any present or threatened suit, action, arbitration, administrative or other proceeding, and Borrowerknows of no reasonable grounds for the institution of any such proceedings.
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5.11 Full Disclosure . No written representation, warranty or other statement of Borrower or any of its Subsidiaries in any certificate or written
statement given to Collateral Agent or any Lender, as of the date such representation, warranty, or other statement was made, taken together with all such written certificates andwritten statements given to Collateral Agent or any Lender, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statementscontained in the certificates or statements not misleading (it being recognized that the projections and forecasts provided by Borrower in good faith and based upon reasonableassumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecastedresults).
5.12 Definition of “ knowledge. ” For purposes of the Loan Documents, whenever a representation or warranty is made to Borrower’s knowledgeor awareness, to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of theResponsible Officers.
6. AFFIRMATIvE COvENANTS
Borrower shall, and shall cause each of its Subsidiaries to, do all of the following:
6.1 Government Compliance.
(a) Maintain its and all its Subsidiaries’ legal existence and good standing in their respective jurisdictions of organizationand maintain qualification in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Change. Comply with all laws,ordinances and regulations to which Borrower or any of its Subsidiaries is subject, the noncompliance with which could reasonably be expected to have a Material Adverse Change.
(b) Obtain and keep in full force and effect, all of the material Governmental Approvals necessary for the performance byBorrower and its Subsidiaries of their respective businesses and obligations under the Loan Documents and the grant of a security interest to Collateral Agent for the ratable benefitof the Lenders, in all of the Collateral. Borrower shall promptly provide copies to Collateral Agent of any material Governmental Approvals obtained by Borrower or any of itsSubsidiaries.
6.2 Financial Statements, Reports, Certificates.
(a) Deliver to each Lender:
(i) as soon as available, but no later than (A) (x) [ * ] days after the last day of each January and thelast month of each fiscal quarter, and (y) [ * ] days after the last day of each month other than January and the last month of each fiscal quarter, a company prepared consolidatedand consolidating balance sheet and income statement covering the consolidated operations of Borrower and its Subsidiaries for such month and (B) [ * ] days after last day of eachquarter, a company prepared cash flow statement prepared on a quarterly basis at the end of each March, June, September and December; each certified by a Responsible Officerand in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than [ * ] days after the last day of Borrower’s fiscal year orwithin [ * ] days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than as togoing concern or a qualification resulting solely from the scheduled maturity of the Term Loans occurring within one year from the date such opinion is delivered) on the financialstatements from Ernst & Young or another independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion ;
(iii) as soon as available after approval thereof by Borrower’s Board of Directors, but no later than [ *] days after the last day of each of Borrower’s fiscal years, Borrower’s annual financial projections for the entire current fiscal year as approved by Borrower’s Board of Directors,which such annual financial projections shall be set forth in a quarter‑by‑quarter format (such annual financial projections as originally
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delivered to Collateral Agent and the Lenders are referred to herein as the “ Annual projections ”; provided that, any revisions of the Annual Projections approved by Borrower’sBoard of Directors shall be delivered to Collateral Agent and the Lenders no later than [ * ] days after such approval);
(iv) within [ * ] days of delivery, copies of all statements, reports and notices made available toBorrower’s security holders or holders of Subordinated Debt;
(v) within [ * ] days of filing, all reports on Form 10‑K, 10‑Q and 8‑K filed with the Securities andExchange Commission,
(vi) prompt notice of any amendments of or other changes to the Operating Documents of Borroweror any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially adversely affect thevalue of the Intellectual Property;
(viii) as soon as available, but no later than [ * ] days after the last day of each month, copies of themonth‑end account statements for each depository, operating and/or investment account(s) maintained by Borrower or its Subsidiaries, which statements may be provided toCollateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other information as reasonably requested by Collateral Agent or any Lender.
Notwithstanding the foregoing, documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with theSEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto,on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i)(x) above but no later than [ * ]days after the last day of the last month of each fiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true andcorrect entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the solecost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior written notice (provided that no notice shall be required when an Event ofDefault has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct acollateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event ofDefault has occurred and is continuing.
6.3 Inventory; Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances betweenBorrower, or any of its Subsidiaries, and their respective Account Debtors shall follow Borrower’s, or such Subsidiary’s, customary practices as they exist at the EffectiveDate. Borrower must promptly notify Collateral Agent and the Lenders of all returns, recoveries, disputes and claims that involve more than Five Hundred Thousand Dollars($500,000.00) individually or in the aggregate in any calendar year.
6.4 Taxes; pensions. Timely file and require each of its Subsidiaries to timely file, all required tax returns and reports or extensions thereof andtimely pay, and require each of its Subsidiaries to timely file, all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by Borrower or itsSubsidiaries, except for deferred payment of any taxes contested pursuant to the terms of Section 5.8 hereof, and shall deliver to Lenders, on demand, appropriate certificatesattesting to such payments, and pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with the terms of such plans.
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6.5 Insurance . Keep Borrower’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in
Borrower’s and its Subsidiaries’ industry and location and as Collateral Agent may reasonably request. Insurance policies shall be in a form, with companies, and in amounts thatare standard for companies in Borrower’s and its Subsidiaries’ industry and location and reasonably satisfactory to Collateral Agent and Lenders. All property policies shall have alender’s loss payable endorsement showing Collateral Agent as lender loss payee and waive subrogation against Collateral Agent, and all liability policies shall show, or haveendorsements showing, Collateral Agent, as additional insured. The Collateral Agent shall be named as lender loss payee and/or additional insured with respect to any suchinsurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or byindependent instruments furnished to the Collateral Agent, that it will give the Collateral Agent [ * ] days prior written notice before any such policy or policies shall be materiallyaltered or canceled. At Collateral Agent’s request, Borrower shall deliver certified copies of policies and evidence of all premium payments. Except to the extent the same areapplied to the repair or replacement of any damaged or destroyed property within [ * ] days of receipt thereof, upon the occurrence of an Event of Default, proceeds payable underany policy shall, at Collateral Agent’s option, be payable to Collateral Agent, for the ratable benefit of the Lenders, on account of the Obligations. If Borrower or any of itsSubsidiaries fails to obtain insurance as required under this Section 6.5 or to pay any amount or furnish any required proof of payment to third persons, Collateral Agent and/or anyLender may make, at Borrower’s expense, all or part of such payment or obtain such insurance policies required in this Section 6.5, and take any action under the policies CollateralAgent or such Lender deems prudent.
6.6 Operating Accounts.
(a) Maintain all of Borrower’s and each Loan Party’s Collateral Accounts in accounts which are subject to a ControlAgreement in favor of Collateral Agent. Notwithstanding the foregoing, no Foreign Subsidiary which is a Loan Party shall be required to deliver to Collateral Agent a ControlAgreement to the extent perfection is not recognized under local laws, as reasonably determined by Collateral Agent.
(b) Borrower shall provide Collateral Agent [ * ] days’ prior written notice before Borrower or any Loan Party establishesany Collateral Account at or with any Person other than Comerica Bank or as otherwise disclosed in the Perfection Certificates. In addition, for each Collateral Account thatBorrower or any Loan Party, at any time maintains, Borrower or such Loan Party shall cause the applicable bank or financial institution at or with which such Collateral Account ismaintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Collateral Agent’s Lien in such CollateralAccount in accordance with the terms hereunder, and to the extent such perfection is recognized under local laws, prior to the establishment of such Collateral Account, whichControl Agreement may not be terminated without prior written consent of Collateral Agent. The provisions of the previous sentence shall not apply to (i) deposit accountsexclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s, or any of its Loan Parties’, employees and identifiedto Collateral Agent by Borrower as such in the Perfection Certificates, (ii) accounts maintained by Cerus B.V. and disclosed in the Perfection Certificates or (iii) RestrictedAccounts.
(c) Neither Borrower nor any Loan Party shall maintain any Collateral Accounts except Collateral Accounts maintained inaccordance with Sections 6.6(a) and (b). Without limiting the foregoing, neither Borrower nor any Loan Party shall establish any Collateral Account, foreign or domestic, otherthan subject to Control Agreements, or other appropriate instrument with respect to such Collateral Account to perfect Lender’s Lien in such Collateral Account, to the extent suchperfection is recognized under local laws, in favor of and in form and substance reasonably acceptable to Lender, into which Borrower’s cash or Cash Equivalents are credited orotherwise maintained; provided that Cerus B.V. shall be permitted to maintain accounts with ABN AMRO and Bank of America as disclosed in the Perfection Certificates, notsubject to Control Agreements (or similar) provided the aggregate amount in such accounts shall not exceed 300% of (i) Cerus B.V.’s immediately preceding month’s operatingexpenses plus (ii) any amounts representing 2% of the commission on gross sales paid by Borrower to Cerus BV as set forth in the Commissionaire Agreement, at anytime. Notwithstanding the foregoing, in no event shall Cerus BV's operating expenses exceed 300% of Cerus B.V.'s operating expenses for the immediately preceding twelve (12)calendar month period, calculated as of the end of each calendar month for such twelve (12) calendar month period then ended.
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6.7 protection of Intellectual property Rights. Borrower and each of its Subsidiaries shall: (a) use commercially reasonable efforts to protect,
defend and maintain the validity and enforceability of its Intellectual Property that is material to Borrower’s business; (b) promptly advise Collateral Agent in writing of any knownmaterial infringement by a third party of its Intellectual Property; and (c) not allow any Intellectual Property material to Borrower’s business to be abandoned, forfeited or dedicatedto the public without Collateral Agent’s prior written consent.
6.8 Litigation Cooperation. Commencing on the Effective Date and continuing through the termination of this Agreement, make available toCollateral Agent and the Lenders, without expense to Collateral Agent or the Lenders, Borrower and each of Borrower’s officers, employees and agents and Borrower’s Books, tothe extent that Collateral Agent or any Lender may reasonably deem them necessary to prosecute or defend any third‑party suit or proceeding instituted by or against CollateralAgent or any Lender with respect to any Collateral or relating to Borrower.
6.9 Notices of Litigation and Default. Borrower will give prompt written notice to Collateral Agent and the Lenders of any litigation orgovernmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs toBorrower or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000.00) or more or which could reasonably be expected to have a Material Adverse Change. Withoutlimiting or contradicting any other more specific provision of this Agreement, promptly (and in any event within [ * ] days) upon Borrower becoming aware of the existence of anyEvent of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, Borrower shall give written notice to Collateral Agentand the Lenders of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passageof time, or both, would constitute an Event of Default.
6.10 Intentionally Omitted.
6.11 Landlord Waivers; Bailee Waivers. In the event that Borrower or any of its Subsidiaries, after the Effective Date, intends to add any newoffices or business locations, including warehouses, or otherwise store any portion of the Collateral (other than with new manufacturers provided Borrower provides prior writtennotice to Collateral Agent) with, or deliver any portion of the Collateral to, a bailee, in each case pursuant to Section 7.2 and in each case excluding Excluded Property, thenBorrower or such Subsidiary will first receive the written consent of Collateral Agent and, in the event that the Collateral at any new location is valued in excess of Five HundredThousand Dollars ($500,000.00) in the aggregate, such bailee or landlord, as applicable, must execute and deliver a bailee waiver or landlord waiver, as applicable, in form andsubstance reasonably satisfactory to Collateral Agent prior to the addition of any new offices or business locations, or any such storage with or delivery to any such bailee, as thecase may be.
6.12 Creation/Acquisition of Subsidiaries. In the event Borrower, or any of its Subsidiaries creates or acquires any Subsidiary, Borrower shallprovide prior written notice to Collateral Agent and each Lender of the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required byCollateral Agent or any Lender to cause each such Subsidiary to become a co‑Borrower hereunder or to guarantee the Obligations of Borrower under the Loan Documents and, ineach case, grant a continuing pledge and security interest in and to the assets of such Subsidiary (substantially as described on Exhibit A hereto); and Borrower (or its Subsidiary, asapplicable) shall grant and pledge to Collateral Agent, for the ratable benefit of the Lenders, a perfected security interest in the Shares of each such newly created Subsidiary;provided, however, that solely in the circumstance in which Borrower or any Subsidiary creates or acquires a Foreign Subsidiary in an acquisition permitted by Section 7.7 hereof,Permitted Investments or otherwise approved by the Required Lenders, (i) such Foreign Subsidiary shall not be required to guarantee the Obligations of Borrower under the LoanDocuments and grant a continuing pledge and security interest in and to the assets of such Foreign Subsidiary, and (ii) Borrower shall not be required to grant and pledge toCollateral Agent, for the ratable benefit of Lenders, a perfected security interest in more than sixty-five percent (65%) of the Shares of such Foreign Subsidiary, if Borrowerdemonstrates to the reasonable satisfaction of Collateral Agent that such Foreign Subsidiary providing such guarantee or pledge and security interest or Borrower providing aperfected security interest in more than sixty five-percent (65%) of the
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Shares would create a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code.
6.13 Financial Covenant. Borrower shall effective as of its fiscal quarter ending [ * ] and prior to the Funding Date of Term B Loans, achieveconsolidated trailing twelve-month revenues of at least [ * ] , determined by Collateral Agent at the end of the fiscal quarter ending on [ * ] and for each fiscal quarter thereafter ofBorrower, based upon written evidence satisfactory to Collateral Agent. Upon the Funding Date of Term B Loans, Borrower shall achieve, as determined by Collateral Agent atthe end of each fiscal quarter of Borrower based on written evidence acceptable to Collateral Agent, consolidated trailing six (6) month revenues, equal to at least [ * ] . While theTerm B Loans are outstanding, Borrower must [ * ] that are acceptable to Collateral Agent in its discretion for the purposes of updating [ * ] and upon [ * ] , the [ * ] shallautomatically be deemed to have been updated by such new [ * ] . While the Term B Loans are outstanding, Borrower’s failure to [ * ] to Collateral Agent in its discretion for thepurposes of updating [ * ] shall be an Event of Default hereunder.
6.14 Further Assurances .
(a) Execute any further instruments and take further action as Collateral Agent or any Lender reasonably requests to perfector continue Collateral Agent’s Lien in the Collateral or to effect the purposes of this Agreement.
(b) Deliver to Collateral Agent and Lenders, within [ * ] Business Days after the same are sent or received, copies of allmaterial correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of theGovernmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change.
7. NEGATIvE COvENANTS
Borrower shall not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Required Lenders:
7.1 Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “ Transfer ”), or permit any of its Subsidiaries toTransfer, all or any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn out, obsolete or surplus Equipment; (c) inconnection with Permitted Liens, Permitted Investments and Permitted Licenses; (d) Transfers from any Subsidiary of Borrower to Borrower; (e) the sale by, and leaseback to,Borrower of laboratory equipment in the ordinary course of Borrower’s business provided that Borrower (i) does not incur any Indebtedness in connection therewith (ii) and anysuch Transfer constitutes a Permitted Investment and; (e) payments of taxes and other dispositions and uses of cash and Cash Equivalents (i) in connection with transactions notprohibited hereunder in the ordinary course of business or (ii) in connection with transactions that (A) are approved by Borrower’s board of directors (to the extent Board approvalis required by Borrower’s policies or other organizational documents), (B) are customary for the Borrower’s industry and (C) not otherwise prohibited hereunder; or (f) otherTransfers of property having a book value not exceeding Five Hundred Thousand Dollars ($500,000.00) during any fiscal year.
7.2 Changes in Business, Management, Ownership, or Business Locations. (a) Engage in or permit any of its Subsidiaries to engage in anybusiness other than the businesses engaged in by Borrower as of the Effective Date or reasonably related or incidental thereto; (b) liquidate or dissolve; or (c) (i) any Key Personshall cease to be actively engaged in the management of Borrower unless written notice thereof is provided to Collateral Agent within [ * ] days of such change, or (ii) enter intoany transaction or series of related transactions in which the stockholders of Borrower who were not stockholders immediately prior to the first such transaction own more thanforty nine percent (49%) of the voting stock of Borrower immediately after giving effect to such transaction or related series of such transactions (other than by the sale ofBorrower’s equity securities in a public offering, a private placement of public equity or to venture capital investors so long as Borrower identifies to Collateral Agent the venturecapital investors prior to the closing of the transaction). Borrower shall not, without at least [ * ] days’ prior written notice to Collateral Agent: (A) add any new offices or businesslocations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or
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property of Borrower or any of its Subsidiaries or is Excluded Property); (B) change its jurisdiction of organization, (C) change its organizational structure or type, (D) change itslegal name, or (E) change any organizational number (if any) assigned by its jurisdiction of organization.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire,or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock, shares or property of another Person except where (a) total cash consideration, for all suchtransactions, does not in the aggregate exceed Five Hundred Thousand Dollars ($500,000.00) in any fiscal year of Borrower; (b) such transactions are accretive to Borrower; (c)such transactions do not result in a Change in Control; (d) no Event of Default has occurred and is continuing or would exist after giving effect to the transactions; and (e) Borroweris the surviving legal entity. A Subsidiary may merge or consolidate into another Subsidiary (provided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided asecured Guaranty of Borrower’s Obligations hereunder) or with (or into) Borrower provided Borrower is the surviving legal entity, and as long as no Event of Default is occurringprior thereto or arises as a result therefrom. Without limiting the foregoing, Borrower shall not, without Collateral Agent’s prior written consent, enter into any binding contractualarrangement with any Person to attempt to facilitate a merger or acquisition of Borrower, unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii)such agreement does not give such Person the right to claim any break-up or similar fees, payments or damages from Borrower or any of its Subsidiaries in excess of Five HundredThousand Dollars ($500,000) in the aggregate as a result of any failure to proceed with or close such merger or acquisition, except to the extent any such break-up or similar fees,payments or damages are to be funded solely from cash proceeds received by Borrower from a third party and (iii) Borrower notifies Collateral Agent in advance of entering intosuch an agreement.
7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than, in each case, PermittedIndebtedness.
7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign or convey any right to receive income, including thesale of any Accounts, or permit any of its Subsidiaries to do so, except, in each case, for Permitted Liens, or permit any Collateral not to be subject to the first priority securityinterest granted herein (except for Permitted Liens that are permitted by the terms of this Agreement to have priority over Collateral Agent’s Lien), or enter into any agreement,document, instrument or other arrangement (except with or in favor of Collateral Agent, for the ratable benefit of the Lenders) with any Person which directly or indirectly prohibitsor has the effect of prohibiting Borrower, or any of its Subsidiaries, from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’sor such Subsidiary’s Intellectual Property, except in each case as is otherwise permitted in Section 7.1 hereof and the definition of “ permitted Liens ” herein.
7.6 Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to the terms of Section 6.6 hereof.
7.7 Distributions; Investments. (a) Pay any dividends (other than dividends payable solely in capital stock) or make any distribution or payment inrespect of or redeem, retire or purchase any capital stock except that Borrower or any Subsidiary may (i) repurchase the stock of current or former employees, directors orconsultants pursuant to stock repurchase agreements or stock purchase plans so long as such repurchases do not exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in theaggregate per fiscal year, (ii) repurchase the stock of current or former employees, directors or consultants pursuant to stock repurchase agreements by the cancellation ofindebtedness owed by such former employees regardless of whether an Event of Default exists, (iii) convert any of its convertible securities into other securities pursuant to theterms of such convertible securities or otherwise in exchange thereof, (iv) purchase for value of any rights distributed in connection with any stockholder rights plan, (v) purchasesof capital stock or options to acquire such capital stock with the proceeds received from a substantially concurrent issuance of capital stock or convertible securities; (vi) purchasesof capital stock pledged as collateral for loans to employees; (vii) purchases of capital stock in connection with (i) the exercise of stock options or stock appreciation rights or (ii)the satisfaction of withholding tax obligations; in each case, by way of cashless (or, “net”) exercise; and (viii) cash payments in lieu of the issuance of fractional shares uponconversion of convertible securities; or (b) directly or indirectly make any Investment other than Permitted Investments, or permit any of its Subsidiaries to do so.
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7.8 Transactions with Affiliates . Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower or
any of its Subsidiaries, except for (a) transactions that are in the ordinary course of Borrower’s or such Subsidiary’s business, upon fair and reasonable terms that are no lessfavorable to Borrower or such Subsidiary than would be obtained in an arm’s length transaction with a non ‑affiliated Person, (b) Subordinated Debt, (c) equity investments byBorrower’s investors in Borrower or its Subsidiaries, (d) transactions among Borrower and its Subsidiaries and among Borrower’s Subsidiaries provided that such transactions arePermitted Investments; (e) reasonable and customary fees paid to members of Borrower’s or a Subsidiary’s Board of Directors in the ordinary course of business; and (f)employment arrangements in the ordinary course of business.
7.9 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, orother similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would increase theamount thereof or adversely affect the subordination thereof to Obligations owed to the Lenders.
7.10 Compliance. Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Actof 1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of theFederal Reserve System), or use the proceeds of any Credit Extension for that purpose; fail to meet the minimum funding requirements of ERISA, permit a Reportable Event orProhibited Transaction, as defined in ERISA, to occur if the violation could reasonably be expected to have a Material Adverse Change; fail to comply with the Federal Fair LaborStandards Act or violate any other law or regulation, if the violation could reasonably be expected to have a Material Adverse Change, or permit any of its Subsidiaries to do so;withdraw or permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with respect to, anypresent pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any material liability of Borrower or any of its Subsidiaries,including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
7.11 Compliance with Anti‑‑Terrorism Laws. Collateral Agent hereby notifies Borrower and each of its Subsidiaries that pursuant to therequirements of Anti‑Terrorism Laws, and Collateral Agent’s policies and practices, Collateral Agent is required to obtain, verify and record certain information and documentationthat identifies Borrower and each of its Subsidiaries and their principals, which information includes the name and address of Borrower and each of its Subsidiaries and theirprincipals and such other information that will allow Collateral Agent to identify such party in accordance with Anti‑Terrorism Laws. Neither Borrower nor any of its Subsidiariesshall, nor shall Borrower or any of its Subsidiaries permit any Affiliate to, directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with anyPerson listed on the OFAC Lists. Borrower and each of its Subsidiaries shall immediately notify Collateral Agent if Borrower or such Subsidiary has knowledge that Borrower, orany Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over oncharges involving money laundering or predicate crimes to money laundering. Neither Borrower nor any of its Subsidiaries shall, nor shall Borrower or any of its Subsidiaries,permit any Affiliate to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making orreceiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property orinterests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti‑Terrorism Law, or (iii) engage in or conspire to engage in anytransaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or otherAnti‑Terrorism Law.
7.12 Cerus Bv Accounts . Allow Cerus BV to take any such action that results in the assignment, transfer, pledge, or other disposition of any ofthe following accounts established at ABN Amro and Bank of America referred to in the Perfection Certificates or (ii) establish any other accounts other than accounts listed in thisSection 7.12. In no event shall the aggregate balance of the accounts referenced in this Section 7.12 exceed the greater of (i) amounts permitted under Section 6.6 or (ii) TenMillion Dollars ($10,000,000.00).
7.13 Commissionaire Agreement . Amend or modify the Commissionaire Agreement.
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8. EvENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “ Event of Default ”) under this Agreement:
8.1 payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any otherObligations within [ * ] Business Days after such Obligations are due and payable (which [ * ] Business Day grace period shall not apply to payments due on the Maturity Date orthe date of acceleration pursuant to Section 9.1 (a) hereof). During the cure period, the failure to cure the payment default is not an Event of Default (but no Credit Extension willbe made during the cure period);
8.2 Covenant Default.
(a) Borrower or any Loan Party fails or neglects to perform any obligation in Sections 6.2 (Financial Statements, Reports,Certificates), 6.4 (Taxes), 6.5 (Insurance), 6.6 (Operating Accounts), 6.13 (Financial Covenant) or 6.14 (Further Assurances) or Borrower violates any covenant in Section 7; or
(b) Borrower, or any Loan Party, fails or neglects to perform, keep, or observe any other term, provision, condition, covenantor agreement contained in this Agreement or any Loan Documents, and as to any default (other than those specified in this Section 8) under such other term, provision, condition,covenant or agreement that can be cured, has failed to cure the default within [ * ] days after the occurrence thereof; provided, however, that if the default cannot by its nature becured within the [ * ] day period or cannot after diligent attempts by Borrower be cured within such [ * ] day period, and such default is likely to be cured within a reasonable time,then Borrower shall have an additional period (which shall not in any case exceed [ * ] days) to attempt to cure such default, and within such reasonable time period the failure tocure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made during such cure period). Grace periods provided under this Section shall notapply, among other things, to financial covenants or any other covenants set forth in subsection (a) above;
8.3 Material Adverse Change. A Material Adverse Change occurs;
8.4 Attachment; Levy; Restraint on Business.
(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower or any of its Subsidiariesor of any entity under control of Borrower or its Subsidiaries on deposit with any Lender or any Lender’s Affiliate or any bank or other institution at which Borrower or any of itsSubsidiaries maintains a deposit, operating or investment account, or (ii) a notice of lien, levy, or assessment is filed against Borrower or any of its Subsidiaries or their respectiveassets by any government agency, and the same under subclauses (i) and (ii) hereof are not, within [ * ] days after the occurrence thereof, discharged or stayed (whether through theposting of a bond or otherwise); provided, however, no Credit Extensions shall be made during any [ * ] day cure period; and
(b) (i) any material portion of Borrower’s or any of its Subsidiaries’ assets is attached, seized, levied on, or comes intopossession of a trustee or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower or any of its Subsidiaries from conducting any part of its business;
8.5 Insolvency. (a) Borrower or any of its Subsidiaries is or becomes Insolvent (or any Dutch Subsidiary gives notice under section 36(2) of the1990 Tax Collection Act ( Invorderingswet 1990) (irrespective of whether this notice is pursuant to section 60 of the Act on the Financing of Social Insurances ( Wet financieringsociale verzekeringen )); (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower or any of itsSubsidiaries and not dismissed or stayed within [ * ] days (but no Credit Extensions shall be made while Borrower or any Subsidiary is Insolvent and/or until any InsolvencyProceeding is dismissed);
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8.6 Other Agreements . There is a default in any agreement to which Borrower or any of its Subsidiaries is a party with a third party or parties
resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Five Hundred Thousand Dollars($500,000.00) or that could reasonably be expected to have a Material Adverse Change after any applicable grace or cure period; provided, however, that the Event of Defaultunder this Section 8.6 caused by the occurrence of a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Collateral Agentreceiving written notice from the party asserting such breach or default of such cure or waiver of the breach or default under such other agreement, if at the time of such cure orwaiver under such other agreement (x) Collateral Agent or any Lender has not declared an Event of Default under this Agreement and/or exercised any rights with respect thereto;(y) any such cure or waiver does not result in an Event of Default under any other provision of this Agreement or any Loan Document; and (z) in connection with any such cure orwaiver under such other agreement, the terms of any agreement with such third party are not modified or amended in any manner which could in the good faith business judgmentof Collateral Agent be materially less advantageous to Borrower;
8.7 Judgments. One or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at leastFive Hundred Thousand Dollars ($500,000.00) (not covered by independent third‑party insurance as to which liability has been accepted by such insurance carrier) shall berendered against Borrower or any of its Subsidiaries and shall remain unsatisfied, unvacated, or unstayed for a period of [ * ] days after the entry thereof (provided that no CreditExtensions will be made prior to the satisfaction, vacation, or stay of such judgment, order or decree);
8.8 Misrepresentations. Borrower or any Loan Party or any Person acting for Borrower or any Loan Party makes any representation, warranty, orother statement now or later in this Agreement, any Loan Document or in any writing delivered to Collateral Agent and/or Lenders or to induce Collateral Agent and/or the Lendersto enter this Agreement or any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made;
8.9 Subordinated Debt. A default or breach occurs under any agreement between Borrower or any Loan Party and any creditor of Borrower orany Loan Party that signed a subordination, intercreditor, or other similar agreement with Collateral Agent or the Lenders, or any creditor that has signed such an agreement withCollateral Agent or the Lenders breaches any terms of such agreement;
8.10 Governmental Approvals. Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an adverse manner, ornot renewed in the ordinary course for a full term and such revocation, rescission, suspension, modification or non‑renewal has resulted in or could reasonably be expected to resultin a Material Adverse Change; or
8.11 Lien priority . Any Lien created hereunder or by any other Loan Document shall at any time fail to constitute a valid and perfected Lien onany of the Collateral purported to be secured thereby, subject to no prior or equal Lien, other than Permitted Liens which are permitted to have priority in accordance with the termsof this Agreement; provided, this Event of Default shall not apply to the extent any defective perfection has resulted from the acts of Collateral Agent or any Lender.
9. RIGHTS AND REMEDIES
9.1 Rights and Remedies.
(a) Upon the occurrence and during the continuance of an Event of Default, Collateral Agent may, and at the writtendirection of Required Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to Borrower, (ii) by notice to Borrowerdeclare all Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations shall be immediately due and payable without anyaction by Collateral Agent or the Lenders) or (iii) by notice to Borrower suspend or terminate the obligations, if any, of the Lenders to advance money or extend credit forBorrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described inSection 8.5 occurs all obligations, if any, of the Lenders to advance
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money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediatelyterminated without any action by Collateral Agent or the Lenders).
(b) Without limiting the rights of Collateral Agent and the Lenders set forth in Section 9.1(a) above, upon the occurrence andduring the continuance of an Event of Default, Collateral Agent shall have the right at the written direction of the Required Lenders, without notice or demand, to do any or all ofthe following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Borrower that Collateral Agent or anyLender holds or controls, or (b) any amount held or controlled by Collateral Agent or any Lender owing to or for the credit or the account of Borrower; and/or
(iii) commence and prosecute an Insolvency Proceeding or consent to Borrower commencing anyInsolvency Proceeding.
(c) Without limiting the rights of Collateral Agent and the Lenders set forth in Sections 9.1(a) and (b) above, upon theoccurrence and during the continuance of an Event of Default, Collateral Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in anyorder that Collateral Agent considers advisable, notify any Person owing Borrower money of Collateral Agent’s security interest in such funds, and verify the amount of suchaccount;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateraland/or its security interest in the Collateral. Borrower shall assemble the Collateral if Collateral Agent requests and make it available in a location as Collateral Agent reasonablydesignates. Collateral Agent may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, orcompromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Borrower grants Collateral Agent a license to enter and occupy anyof its premises, without charge, to exercise any of Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale,the Collateral. Collateral Agent is hereby granted a non‑exclusive, royalty‑free license or other right to use, without charge, Borrower’s and each of its Subsidiaries’ labels, patents,copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to theCollateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Collateral Agent’s exercise of its rights under this Section 9.1,Borrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Collateral Agent, for the benefit of the Lenders;
(iv) place a “hold” on any account maintained with Collateral Agent or the Lenders and/or deliver anotice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of a copy of Borrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall haveany right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Borroweror any of its Subsidiaries; and
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(vii) subject to clauses 9.1(a) and (b), exercise all rights and remedies available to Collateral Agent
and each Lender under the Loan Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof).
Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Collateral Agent shall have the right to exercise any and allremedies referenced in this Section 9.1 without the written consent of Required Lenders following the occurrence of an Exigent Circumstance. As used in the immediatelypreceding sentence, “ Exigent Circumstance ” means any event or circumstance that, in the reasonable judgment of Collateral Agent, imminently threatens the ability of CollateralAgent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or materialwaste thereof, or failure of Borrower or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment ofCollateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral.
9.2 power of Attorney. Borrower hereby irrevocably appoints Collateral Agent as its lawful attorney ‑in‑fact, exercisable upon the occurrence andduring the continuance of an Event of Default, to: (a) endorse Borrower’s or any of its Subsidiaries’ name on any checks or other forms of payment or security; (b) sign Borrower’sor any of its Subsidiaries’ name on any invoice or bill of lading for any Account or drafts against Account Debtors; (c) settle and adjust disputes and claims about the Accountsdirectly with Account Debtors, for amounts and on terms Collateral Agent determines reasonable; (d) make, settle, and adjust all claims under Borrower’s insurance policies;(e) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action toterminate or discharge the same; and (f) transfer the Collateral into the name of Collateral Agent or a third party as the Code or any applicable law permits. Borrower herebyappoints Collateral Agent as its lawful attorney‑in‑fact to sign Borrower’s or any of its Subsidiaries’ name on any documents necessary to perfect or continue the perfection ofCollateral Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations (other than inchoate indemnity obligations) havebeen satisfied in full and Collateral Agent and the Lenders are under no further obligation to make Credit Extensions hereunder. Collateral Agent’s foregoing appointment asBorrower’s or any of its Subsidiaries’ attorney in fact, and all of Collateral Agent’s rights and powers, coupled with an interest, are irrevocable until all Obligations (other thaninchoate indemnity obligations) have been fully repaid and performed and Collateral Agent’s and the Lenders’ obligation to provide Credit Extensions terminates.
9.3 protective payments. If Borrower or any of its Subsidiaries fail to obtain the insurance called for by Section 6.5 or fails to pay any premiumthereon or fails to pay any other amount which Borrower or any of its Subsidiaries is obligated to pay under this Agreement or any other Loan Document, Collateral Agent mayobtain such insurance or make such payment, and all amounts so paid by Collateral Agent are Lenders’ Expenses and immediately due and payable, bearing interest at the DefaultRate, and secured by the Collateral. Collateral Agent will make reasonable efforts to provide Borrower with notice of Collateral Agent obtaining such insurance or making suchpayment at the time it is obtained or paid or within a reasonable time thereafter. No such payments by Collateral Agent are deemed an agreement to make similar payments in thefuture or Collateral Agent’s waiver of any Event of Default.
9.4 Application of payments and proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence andduring the continuance of an Event of Default, (a) Borrower irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received byCollateral Agent from or on behalf of Borrower or any of its Subsidiaries of all or any part of the Obligations, and, as between Borrower on the one hand and Collateral Agent andLenders on the other, Collateral Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manneras Collateral Agent may deem advisable notwithstanding any previous application by Collateral Agent, and (b) the proceeds of any sale of, or other realization upon all or any partof the Collateral shall be applied: first, to the Lenders’ Expenses; second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions ofthe United States Bankruptcy Code, would have accrued on such amounts); third, to the principal amount of the Obligations outstanding; and fourth, to any other indebtedness orobligations of Borrower owing to Collateral Agent or any Lender under the Loan Documents. Any balance remaining shall be delivered to Borrower
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or to whoever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out the foregoing, (x) amounts received shall beapplied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (y) each of the Persons entitled to receive a payment in anyparticular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category. Any reference in this Agreement to anallocation between or sharing by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall refer to Pro Rata Share unless expresslyprovided otherwise. Collateral Agent, or if applicable, each Lender, shall promptly remit to the other Lenders such sums as may be necessary to ensure the ratable repayment ofeach Lender’s portion of any Term Loan and the ratable distribution of interest, fees and reimbursements paid or made by Borrower. Notwithstanding the foregoing, a Lenderreceiving a scheduled payment shall not be responsible for determining whether the other Lenders also received their scheduled payment on such date; provided, however, if it islater determined that a Lender received more than its ratable share of scheduled payments made on any date or dates, then such Lender shall remit to Collateral Agent or otherLenders such sums as may be necessary to ensure the ratable payment of such scheduled payments, as instructed by Collateral Agent. If any payment or distribution of any kind orcharacter, whether in cash, properties or securities, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of suchLender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lender for application to the payments of amounts due on the otherLenders’ claims. To the extent any payment for the account of Borrower is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another asis necessary to ensure that such return of payment is on a pro rata basis. If any Lender shall obtain possession of any Collateral, it shall hold such Collateral for itself and as agentand bailee for Collateral Agent and other Lenders for purposes of perfecting Collateral Agent’s security interest therein.
9.5 Liability for Collateral. So long as Collateral Agent and the Lenders comply with reasonable banking practices regarding the safekeeping ofthe Collateral in the possession or under the control of Collateral Agent and the Lenders, Collateral Agent and the Lenders shall not be liable or responsible for: (a) the safekeepingof the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or otherPerson. Borrower bears all risk of loss, damage or destruction of the Collateral.
9.6 No Waiver; Remedies Cumulative. Failure by Collateral Agent or any Lender, at any time or times, to require strict performance byBorrower of any provision of this Agreement or any other Loan Document shall not waive, affect, or diminish any right of Collateral Agent or any Lender thereafter to demandstrict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by Collateral Agent and the Required Lenders and then is onlyeffective for the specific instance and purpose for which it is given. The rights and remedies of Collateral Agent and the Lenders under this Agreement and the other LoanDocuments are cumulative. Collateral Agent and the Lenders have all rights and remedies provided under the Code, any applicable law, by law, or in equity. The exercise byCollateral Agent or any Lender of one right or remedy is not an election, and Collateral Agent’s or any Lender’s waiver of any Event of Default is not a continuingwaiver. Collateral Agent’s or any Lender’s delay in exercising any remedy is not a waiver, election, or acquiescence.
9.7 Demand Waiver. Borrower waives, to the fullest extent permitted by law, demand, notice of default or dishonor, notice of payment andnonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, andguarantees held by Collateral Agent or any Lender on which Borrower or any Subsidiary is liable.
10. NOTICES
All notices, consents, requests, approvals, demands, or other communication (collectively, “ Communication ”) by any party to this Agreement or any other LoanDocument must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit inthe U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by facsimile transmission; (c) one (1)Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand‑delivered by messenger, all of which shall be addressed to theparty to be notified and sent to the address, facsimile number, or email address
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indicated below. Any of Collateral Agent, Lender or Borrower may change its mailing address or facsimile number by giving the other party written notice thereof in accordancewith the terms of this Section 10.
If to Borrower: CERUS CORPORATION2550 Stanwell DriveConcord, CA 94520Attn: Chrystal Menard, Chief Legal OfficerFax: [ * ]Email: [ * ]
with a copy (which shall not constitutenotice) to:
Cooley LLP101 California Street, 5th FloorSan Francisco, CA 94111Attn: Maricel Mojares-MooreFax: [ * ]Email: [ * ]
If to Collateral Agent: OXFORD FINANCE LLC
133 North Fairfax StreetAlexandria, Virginia 22314Attention: Legal DepartmentFax: [ * ]Email: [ * ]
with a copy (which shall not constitutenotice) to:
Greenberg Traurig, LLPOne International PlaceBoston, MA 02110Attn: Jonathan BellFax: [ * ]Email: [ * ]
11. CHOICE OF LAW, vENUE AND JURY TRIAL WAIvER
California law (including, for the avoidance of doubt, this Section 11) governs the Loan Documents without regard to principles of conflicts of law. Borrower, Lenders andCollateral Agent each submit to the exclusive jurisdiction of the State and Federal courts in the City of California, Borough of Manhattan. NOTWITHSTANDING THEFOREGOING, COLLATERAL AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITSPROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH COLLATERAL AGENT AND THE LENDERS (IN ACCORDANCE WITH THE PROVISIONS OFSECTION 9.1) DEEM NECESSARY OR APPROPRIATE TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE COLLATERAL AGENT’S AND THELENDERS’ RIGHTS AGAINST BORROWER OR ITS PROPERTY. Borrower expressly submits and consents in advance to such jurisdiction in any action or suit commenced inany such court, and Borrower hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consentsto the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other processissued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at theaddress set forth in, or subsequently provided by Borrower in accordance with, Section 10 of this Agreement and that service so made shall be deemed completed upon the earlierto occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, first class, registered or certified mail return receipt requested, proper postage prepaid.
TO THE FULLEST ExTENT pERMITTED BY AppLICABLE LAW, BORROWER, COLLATERAL AGENT, AND THE LENDERS EACH WAIvE THEIR RIGHTTO A JURY TRIAL OF ANY CLAIM OR
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CAUSE OF ACTION ARISING OUT OF OR BASED UpON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMpLATED TRANSACTION,INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIvER IS A MATERIAL INDUCEMENT FOR EACH pARTY TOENTER INTO THIS AGREEMENT. EACH pARTY HAS REvIEWED THIS WAIvER WITH ITS COUNSEL.
WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY, if the above waiver ofthe right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by areference to a private judge, mutually selected by the parties (or, if they cannot agree, by the Presiding Judge of the Santa Clara County, California Superior Court) appointed inaccordance with California Code of Civil Procedure Section 638 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction of thefederal courts), sitting without a jury, in Santa Clara County, California; and the parties hereby submit to the jurisdiction of such court. The reference proceedings shall beconducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive. The private judge shall have the power, amongothers, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers. Allsuch proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed. If during the course of any dispute, a party desires toseek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Santa Clara County,California Superior Court for such relief. The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidenceapplicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discoveryapplicable to judicial proceedings. The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manneras a trial court judge. The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law,and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit the right of any party at any time toexercise self‑help remedies, foreclose against collateral, or obtain provisional remedies. The private judge shall also determine all issues relating to the applicability, interpretation,and enforceability of this paragraph.
12. GENERAL pROvISIONS
12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may nottransfer, pledge or assign this Agreement or any rights or obligations under it without Collateral Agent’s and each Lender’s prior written consent (which may be granted or withheldin Collateral Agent’s and each Lender’s discretion, subject to Section 12.6). The Lenders have the right, without the consent of or notice to Borrower, to sell, transfer, assign,pledge, negotiate, or grant participation in (any such sale, transfer, assignment, negotiation , or grant of a participation, a “Lender Transfer”) all or any part of, or any interest in,the Lenders’ obligations, rights, and benefits under this Agreement and the other Loan Documents; provided , however , that any such Lender Transfer (other than a transfer,pledge, sale or assignment to an Eligible Assignee) of its obligations, rights, and benefits under this Agreement and the other Loan Documents shall require the prior writtenconsent of the Required Lenders (such approved assignee, an “ Approved Lender ”) . Borrower and Collateral Agent shall be entitled to continue to deal solely and directly withsuch Lender in connection with the interests so assigned until Collateral Agent shall have received and accepted an effective assignment agreement in form satisfactory toCollateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee orApproved Lender as Collateral Agent reasonably shall require. Notwithstanding anything to the contrary contained herein, so long as no Event of Default has occurred and iscontinuing, no Lender Transfer (other than a Lender Transfer in connection with (x) assignments by a Lender due to a forced divestiture at the request of any regulatory agency; or(y) upon the occurrence of a default, event of default or similar occurrence with respect to a Lender’s own financing or securitization transactions) shall be permitted, withoutBorrower’s consent, to any Person which is an Affiliate or Subsidiary of Borrower, a direct competitor of Borrower or a vulture hedge fund, each as determined by CollateralAgent.
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12.2 Indemnification. Borrower agrees to indemnify, defend and hold Collateral Agent and the Lenders and their respective directors, officers,
employees, agents, attorneys, or any other Person affiliated with or representing Collateral Agent or the Lenders (each, an “ Indemnified person ”) harmless against: (a) allobligations, demands, claims, and liabilities (collectively, “ Claims ”) asserted by any other party in connection with; related to; following; or arising from, out of or under, thetransactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; orarising from, out of or under, the transactions contemplated by the Loan Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable attorneys’fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further indemnifies,defends and holds each Indemnified Person harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs,expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative,response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceedinginitiated by or on behalf of Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission,fee or compensation claimed by any broker (other than any broker retained by Collateral Agent or Lenders) asserting any right to payment for the transactions contemplated herebywhich may be imposed on, incurred by or asserted against such Indemnified Person as a result of or in connection with the transactions contemplated hereby and the use or intendeduse of the proceeds of the loan proceeds except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements directlycaused by such Indemnified Person’s gross negligence or willful misconduct.
12.3 Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.
12.4 Severability of provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability ofany provision.
12.5 Correction of Loan Documents. Collateral Agent and the Lenders may correct patent errors and fill in any blanks in this Agreement and theother Loan Documents consistent with the agreement of the parties so long as Collateral Agent and the Lenders provide Borrower with written notice of such correction and allowsBorrower at least [ * ] days to object to such correction. In the event of such objection, such correction shall not be made except by an amendment signed by Collateral Agent, theLenders and Borrower.
12.6 Amendments in Writing; Integration. (a) No amendment, modification, termination or waiver of any provision of this Agreement or anyother Loan Document, no approval or consent thereunder, or any consent to any departure by Borrower or any of its Subsidiaries therefrom, shall in any event be effective unlessthe same shall be in writing and signed by Borrower, Collateral Agent and the Required Lenders provided that:
(i) no such amendment, waiver or other modification that would have the effect of increasing orreducing a Lender’s Term Loan Commitment or Commitment Percentage shall be effective as to such Lender without such Lender’s written consent;
(ii) no such amendment, waiver or modification that would affect the rights and duties of CollateralAgent shall be effective without Collateral Agent’s written consent or signature;
(iii) no such amendment, waiver or other modification shall, unless signed by all the Lenders directlyaffected thereby, (A) reduce the principal of, rate of interest on or any fees with respect to any Term Loan or forgive any principal, interest (other than default interest) or fees(other than late charges) with respect to any Term Loan (B) postpone the date fixed for, or waive, any payment of principal of any Term Loan or of interest on any Term Loan(other than default interest) or any fees provided for hereunder (other than late charges or for any termination of any commitment); (C) change the definition of the term “Required Lenders ” or the percentage of Lenders which shall be required for the Lenders to take any action hereunder; (D) release all or substantially all of any material portion ofthe Collateral, authorize Borrower to sell or otherwise dispose of all or substantially all or any material portion of the Collateral or release any Guarantor of all or any portion of the
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Obligations or its guaranty obligations with respect thereto, except, in each case with respect to this clause (D), as otherwise may be expressly permitted under this Agreement orthe other Loan Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 12.6 or the definitions of theterms used in this Section 12.6 insofar as the definitions affect the substance of this Section 12.6; (F) consent to the assignment, delegation or other transfer by Borrower of any ofits rights and obligations under any Loan Document or release Borrower of its payment obligations under any Loan Document, except, in each case with respect to this clause (F),pursuant to a merger or consolidation permitted pursuant to this Agreement; (G) amend any of the provisions of Section 9.4 or amend any of the definitions of Pro Rata Share,Term Loan Commitment, Commitment Percentage or that provide for the Lenders to receive their Pro Rata Shares of any fees, payments, setoffs or proceeds of Collateralhereunder; (H) subordinate the Liens granted in favor of Collateral Agent securing the Obligations; or (I) amend any of the provisions of Section 12.10. It is hereby understood andagreed that all Lenders shall be deemed directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F), (G) and(H) of the preceding sentence;
(iv) the provisions of the foregoing clauses (i), (ii) and (iii) are subject to the provisions of anyinterlender or agency agreement among the Lenders and Collateral Agent pursuant to which any Lender may agree to give its consent in connection with any amendment, waiver ormodification of the Loan Documents only in the event of the unanimous agreement of all Lenders.
(b) Other than as expressly provided for in Section 12.6(a)(i)‑(iii), Collateral Agent may, if requested by the RequiredLenders, from time to time designate covenants in this Agreement less restrictive by notification to a representative of Borrower.
(c) This Agreement and the Loan Documents represent the entire agreement about this subject matter and supersede priornegotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Agreement andthe Loan Documents merge into this Agreement and the Loan Documents.
12.7 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each ofwhich, when executed and delivered, is an original, and all taken together, constitute one Agreement.
12.8 Survival. All covenants, representations and warranties made in this Agreement continue in full force and effect until this Agreement hasterminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of thisAgreement) have been satisfied. The obligation of Borrower in Section 12.2 to indemnify each Lender and Collateral Agent, as well as the confidentiality provisions inSection 12.9 below, shall survive until the statute of limitations with respect to such claim or cause of action shall have run.
12.9 Confidentiality. In handling any confidential information of Borrower, the Lenders and Collateral Agent shall exercise the same degree ofcare that it exercises for their own proprietary information, but disclosure of information may be made: (a) subject to the terms and conditions of this Agreement, to the Lenders’and Collateral Agent’s Subsidiaries or Affiliates, or in connection with a Lender’s own financing or securitization transactions and upon the occurrence of a default, event of defaultor similar occurrence with respect to such financing or securitization transaction; (b) to prospective transferees (other than those identified in (a) above) or purchasers of anyinterest in the Credit Extensions (provided, however, the Lenders and Collateral Agent shall, except upon the occurrence and during the continuance of an Event of Default, obtainsuch prospective transferee’s or purchaser’s agreement to the terms of this provision or to similar confidentiality terms); (c) as required by law, regulation, subpoena, or other order;(d) to Lenders’ or Collateral Agent’s regulators or as otherwise required in connection with an examination or audit; (e) as Collateral Agent reasonably considers appropriate inexercising remedies under the Loan Documents; and (f) to third party service providers of the Lenders and/or Collateral Agent so long as such service providers have executed aconfidentiality agreement with the Lenders and Collateral Agent with terms no less restrictive than those contained herein. Confidential information does not include informationthat either: (i) is in the public domain or in the Lenders’ and/or Collateral Agent’s possession when disclosed to the Lenders and/or Collateral Agent, or becomes part of the publicdomain after disclosure to the Lenders and/or
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Collateral Agent; or (ii) is disclosed to the Lenders and/or Collateral Agent by a third party, if the Lenders and/or Collateral Agent does not know that the third party is prohibitedfrom disclosing the information. Collateral Agent and the Lenders may use confidential information for any purpose, including, without limitation, for the development of clientdatabases, reporting purposes, and market analysis so long as Lender does not disclose Borrower’s identity or person associated with Borrower unless otherwise expressly permittedby this Agreement. The provisions of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 12.9supersede all prior agreements, understanding, representations, warranties, and negotiations between the parties about the subject matter of this Section 12.9.
12.10 Right of Set Off. Borrower hereby grants to Collateral Agent and to each Lender, a lien, security interest and right of set off as security forall Obligations to Collateral Agent and each Lender hereunder, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now orhereafter in the possession, custody, safekeeping or control of Collateral Agent or the Lenders or any entity under the control of Collateral Agent or the Lenders (including aCollateral Agent affiliate) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, CollateralAgent or the Lenders may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacyof any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE COLLATERAL AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITHRESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCHDEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.11 Cooperation of Borrower. If necessary, Borrower agrees to (i) execute any documents (including new Secured Promissory Notes)reasonably required to effectuate and acknowledge each assignment of a Term Loan Commitment or Loan to an assignee in accordance with Section 12.1, (ii) make Borrower’smanagement available to meet with Collateral Agent and prospective participants and assignees of Term Loan Commitments or Credit Extensions (which meetings shall beconducted no more often than twice every twelve months unless an Event of Default has occurred and is continuing) during reasonable business hours and upon reasonable priorwritten notice, and (iii) assist Collateral Agent or the Lenders in the preparation of information relating to the financial affairs of Borrower as any prospective participant orassignee of a Term Loan Commitment or Term Loan reasonably may request. Subject to the provisions of Section 12.9, Borrower authorizes each Lender to disclose to anyprospective participant or assignee of a Term Loan Commitment, any and all information in such Lender’s possession concerning Borrower and its financial affairs which has beendelivered to such Lender by or on behalf of Borrower pursuant to this Agreement, or which has been delivered to such Lender by or on behalf of Borrower in connection with suchLender’s credit evaluation of Borrower prior to entering into this Agreement.
12.12 Effect of Amendment and Restatement . Except as otherwise set forth herein, this Agreement is intended to and does completely amendand restate, without novation, the Original Agreement. All security interests granted under the Original Agreement are hereby confirmed and ratified and shall continue to secureall Obligations under this Agreement. For the avoidance of doubt, any reference to the Original Agreement in any Loan Document (including, without limitation, any accountcontrol agreement entered into pursuant to the Original Agreement) shall be deemed to mean this Agreement.
13. DEFINITIONS
13.1 Definitions. As used in this Agreement, the following terms have the following meanings:
“ Account ” is any “account” as defined in the Code with such additions to such term as may hereafter be made, and includes, without limitation, all accountsreceivable and other sums owing to Borrower.
“ Account Debtor ” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made.
“ Affiliate ” of any Person is a Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common controlwith the Person, and each of that Person’s senior executive
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officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.
“ Agreement ” is defined in the preamble hereof.
“ Amortization Date ” is (i) February 1, 2019, if the Term B Loans are not funded hereunder, and (ii) August 1, 2019, if the Term B Loans are funded hereunder.
“ Annual projections ” is defined in Section 6.2(a).
“ Anti‑‑Terrorism Laws ” are any laws relating to terrorism or money laundering, including Executive Order No. 13224 (effective September 24, 2001), the USAPATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.
“ Approved Fund ” is any (i) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding orotherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business or (ii) any Person (other than a natural person) which temporarilywarehouses loans for any Lender or any entity described in the preceding clause (i) and that, with respect to each of the preceding clauses (i) and (ii), is administered or managed by(a) a Lender, (b) an Affiliate of a Lender or (c) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender.
“ Approved Lender ” is defined in Section 12.1.
“ Basic Rate ” is, with respect to a Term Loan, the per annum rate of interest (based on a year of three hundred sixty (360) days) equal to the greater of (i) eight andon hundredths percent (8.01%) and (ii) the sum of (a) the three (3) month U.S. LIBOR rate reported in The Wall Street Journal on the last Business Day of the month thatimmediately precedes the month in which the interest will accrue, plus (b) six and seventy-two hundredths percent (6.72%). Notwithstanding the foregoing, the Basic Rate for theTerm Loan for the period from the Effective Date through and including July 31, 2017 shall be 8.01917%.
“ Blocked person ” is any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned orcontrolled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with whichany Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti‑Terrorism Law, (d) a Person that commits, threatens or conspires to commit or supports“terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national” or “blocked person” on the most current list published byOFAC or other similar list.
“ Borrower ” is defined in the preamble hereof.
“ Borrower’s Books ” are Borrower’s or any of its Subsidiaries’ books and records including ledgers, federal, and state tax returns, records regarding Borrower’s orits Subsidiaries’ assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“ Business Day ” is any day that is not a Saturday, Sunday or a day on which Collateral Agent is closed.
“ Cash Equivalents ” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof havingmaturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating fromeither Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., and (c) certificates of deposit maturing no more than one (1) year after issue provided that the accountin which any such certificate of deposit is maintained is subject to a Control Agreement in favor of Collateral Agent. For the avoidance of doubt, the direct purchase by Borroweror any of its Subsidiaries of any Auction Rate Securities, or purchasing participations in, or
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entering into any type of swap or other derivative transaction, or otherwise holding or engaging in any ownership interest in any type of Auction Rate Security by Borrower or anyof its Subsidiaries shall be conclusively determined by the Lenders as an ineligible Cash Equivalent, and any such transaction shall expressly violate each other provision of thisAgreement governing Permitted Investments. Notwithstanding the foregoing, Cash Equivalents does not include and Borrower, and each of its Subsidiaries, are prohibited frompurchasing, purchasing participations in, entering into any type of swap or other equivalent derivative transaction, or otherwise holding or engaging in any ownership interest in anytype of debt instrument, including, without limitation, any corporate or municipal bonds with a long ‑term nominal maturity for which the interest rate is reset through a dutchauction and more commonly referred to as an auction rate security (each, an “ Auction Rate Security ”).
“ Cerus B.v. ” means Cerus Europe B.V., an entity organized under the laws of the Netherlands and a wholly-owned Subsidiary of Borrower.
“ Claims ” are defined in Section 12.2.
“ Code ” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of California; provided, that, to the extent thatthe Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such termcontained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priorityof, or remedies with respect to, Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of California,the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to suchattachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions .
“ Collateral ” is any and all properties, rights and assets of Borrower described on Exhibit A .
“ Collateral Account ” is any Deposit Account, Securities Account, or Commodity Account, or any other bank account maintained by Borrower or any Loan Party atany time.
“ Collateral Agent ” is, Oxford, not in its individual capacity, but solely in its capacity as agent on behalf of and for the benefit of the Lenders.
“ Collateral Assignment ” is that certain Collateral Assignment of Commissionaire Agreement by Borrower in favor of Lender and acknowledged and agreed to byCerus B.V., dated as of the Closing Date.
“ Commissionaire Agreement ” is that certain Commissionaire Agreement between Borrower and Cerus B.V. dated as of January 1, 2007.
“ Commissionaire Agreement Amendment ” is that certain First Amendment to Commissionaire Agreement between Borrower and Cerus B.V., dated on or aboutthe Closing Date, in form and content acceptable to Lender.
“ Commitment percentage ” is set forth in Schedule 1.1 , as amended from time to time.
“ Commodity Account ” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made.
“ Communication ” is defined in Section 10.
“ Compliance Certificate ” is that certain certificate in the form attached hereto as Exhibit C .
“ Contingent Obligation ” is, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend, letter of creditor other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co‑made, discounted or sold with recourse by that Person, or for which
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that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency orcommodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currencyexchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is thestated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for itdetermined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“ Control Agreement ” is any control agreement entered into among the depository institution at which Borrower or any of its Subsidiaries maintains a DepositAccount or the securities intermediary or commodity intermediary at which Borrower or any of its Subsidiaries maintains a Securities Account or a Commodity Account, Borrowerand such Subsidiary, and Collateral Agent pursuant to which Collateral Agent obtains control (within the meaning of the Code) for the benefit of the Lenders over such DepositAccount, Securities Account, or Commodity Account.
“ Copyrights ” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative workthereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“ Credit Extension ” is any Term Loan or any other extension of credit by Collateral Agent or Lenders for Borrower’s benefit.
“ Deeds of pledge ” means that certain Agreement and Deed of First Right of Pledge in respect of the shares in Cerus B.V., that certain Disclosed Deed of Pledge ofBank Account Receivables between Borrower, as pledger, and Collateral, Agent as pledgee, that certain Undisclosed Deed of pledge of Moveable Assets between Borrower, aspledger, and Collateral Agent, as pledgee, and such other documents or instruments reasonably determined by Collateral Agent to be necessary in connection therewith; each inform and content reasonably acceptable to Collateral Agent.
“ Default Rate ” is defined in Section 2.3(b).
“ Deposit Account ” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.
“ Designated Deposit Account ” is Borrower’s operating account disclosed in the Perfection Certificate of Borrower, maintained with Comerica Bank.
“ Disbursement Letter ” is that certain form attached hereto as Exhibit B .
“ Dollars , ” “ dollars ” and “$” each mean lawful money of the United States.
“ Dutch Agreements ” means the Dutch Organizational Documents, board resolutions, any required shareholders resolutions and updated shareholders register ofCerus B.V., the Deeds of Pledge; the Commissionaire Agreement Amendment, the Collateral Assignment and all other documents, certificates, instruments and other agreementsentered into in connection with or related to such documents.
“ Dutch Organizational Documents ” means Trade Register Extract, the Deed of Incorporation and the Articles of Association.
“ Effective Date ” is defined in the preamble of this Agreement.
“ Eligible Assignee ” is (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any commercial bank, savings and loan association or savings bankor any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended) and which extends credit or buys loans as
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one of its businesses, including insurance companies, mutual funds, lease financing companies and commercial finance companies, in each case, which either (A) has a rating ofBBB or higher from Standard & Poor’s Rating Group and a rating of Baa2 or higher from Moody’s Investors Service, Inc. at the date that it becomes a Lender or (B) has totalassets in excess of Five Billion Dollars ($5,000,000,000.00), and in each case of clauses (i) through (iv), which, through its applicable lending office, is capable of lending toBorrower without the imposition of any withholding or similar taxes; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include, unless an Event of Defaulthas occurred and is continuing, (i) Borrower or any of Borrower’s Affiliates or Subsidiaries or (ii) a direct competitor of Borrower or a vulture hedge fund, each as determined byCollateral Agent. Notwithstanding the foregoing, (x) in connection with assignments by a Lender due to a forced divestiture at the request of any regulatory agency, the restrictionsset forth herein shall not apply and Eligible Assignee shall mean any Person or party and (y) in connection with a Lender’s own financing or securitization transactions, therestrictions set forth herein shall not apply and Eligible Assignee shall mean any Person or party providing such financing or formed to undertake such securitization transactionand any transferee of such Person or party upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction;provided that no such sale, transfer, pledge or assignment under this clause (y) shall release such Lender from any of its obligations hereunder or substitute any such Person or partyfor such Lender as a party hereto until Collateral Agent shall have received and accepted an effective assignment agreement from such Person or party in form satisfactory toCollateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee asCollateral Agent reasonably shall require.
“ Equipment ” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery,fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ ERISA ” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.
“ Event of Default ” is defined in Section 8.
“ Excluded property ” means illuminators placed with customers, research institutions and scientists in the ordinary course of business.
“ Final payment ” is a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest) due on the earliest to occurof (a) the Maturity Date, or (b) the acceleration of any Term Loan, or (c) the prepayment of a Term Loan pursuant to Section 2.2(c) or (d), equal to the original principal amount ofsuch Term Loan multiplied by the Final Payment Percentage, payable to Lenders in accordance with their respective Pro Rata Shares. For the avoidance of doubt, the calculation ofany Final Payment shall not include the principal amount prepaid in accordance with Section 2.2(d)(ii) if a Final Payment based on such principal amount was made at the time ofsuch prepayment.
“ Final payment percentage ” is eight percent (8.00%).
[ * ] is defined in Section [ * ] .
“ Foreign Subsidiary ” is a Subsidiary that is not an entity organized under the laws of the United States or any territory thereof.
“ Funding Date ” is any date on which a Credit Extension is made to or on account of Borrower which shall be a Business Day.
“ GAAp ” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute ofCertified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may beapproved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination.
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“ General Intangibles ” are all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made,
and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whetherpublished or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, any tradesecret rights, including any rights to unpatented inventions, payment intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, routelists, telephone numbers, domain names, claims, income and other tax refunds, security and other deposits, options to purchase or sell real or personal property, rights in alllitigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man, property damage, and businessinterruption insurance), payments of insurance and rights to payment of any kind.
“ Governmental Approval ” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of,issued by, from or to, or other act by or in respect of, any Governmental Authority.
“ Governmental Authority ” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body,court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchangeand any self‑regulatory organization.
“ Guarantor ” is any Person providing a Guaranty in favor of Collateral Agent.
“ Guaranty ” is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“ Indebtedness ” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bondsand letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, and (d) Contingent Obligations.
“ Indemnified person ” is defined in Section 12.2.
“ Insolvency proceeding ” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law,including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief and forthe purposes hereof, in relation to any procedure or step taken in the Netherlands (i) bankruptcy ( failissement ), suspension of payments ( surséance van betaling ), emergencyprocedure ( noodregeling ) or any other procedure having the effect that the entity to which it applies loses the free management or ability to dispose of its property (irrespective ofwhether that procedure is provisional or final; and (ii) dissolution ( ontbinding ) or any other procedure having the effect that the entity to which it applies ceases to exist, shall alsoqualify as a proceeding or as referred to herein.
“ Insolvent ” means not Solvent.
“ Intellectual property ” means all of Borrower’s or any Subsidiary’s right, title and interest in and to the following:
(a) its Copyrights, Trademarks and Patents;
(b) any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions,know‑how, operating manuals;
(c) any and all source code;
(d) any and all design rights which may be available to Borrower;
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(e) any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right,
but not the obligation, to sue for and collect such damages for said use or infringement of the Intellectual Property rights identified above; and
(f) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
“ Inventory ” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without
limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as istemporarily out of any Person’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“ Investment ” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance, payment or capitalcontribution to any Person.
“ key person ” is each of Borrower’s (i) Chief Executive Officer, who is William M. Greenman as of the Effective Date and (ii) Chief Financial Officer, who isKevin D. Green as of the Effective Date.
“ Lender ” is any one of the Lenders.
“ Lenders ” are the Persons identified on Schedule 1.1 hereto and each assignee that becomes a party to this Agreement pursuant to Section 12.1.
“ Lenders’ Expenses ” are all audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses, as well as appraisal fees, fees incurredon account of lien searches, inspection fees, and filing fees) for preparing, amending, negotiating, administering, defending and enforcing the Loan Documents (including, withoutlimitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Collateral Agent and/or the Lenders in connection with the LoanDocuments.
“ Lien ” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest, or other encumbrance of any kind, whether voluntarily incurred or arising byoperation of law or otherwise against any property.
“ Loan Documents ” are, collectively, this Agreement, the Perfection Certificates, each Compliance Certificate, each Disbursement Letter, the Dutch Agreements,the Post Closing Letter, any subordination agreements, any note, or notes or guaranties executed by Borrower or any other Person, and any other present or future agreemententered into by Borrower, any Guarantor or any other Person for the benefit of the Lenders and Collateral Agent in connection with this Agreement; all as amended, restated, orotherwise modified.
“ Loan party ” is each of Borrower and any Subsidiary of Borrower that is a co-borrower or Guarantor hereunder.
“ Material Adverse Change ” is (a) a material impairment in the perfection or priority of Collateral Agent’s Lien in the Collateral or in the value of such Collateral;(b) a material adverse change in the business, operations or condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole; or (c) a material impairment of theprospect of repayment of any portion of the Obligations.
“ Maturity Date ” is July 1, 2022.
“ Obligations ” are all of Borrower’s obligations to pay when due any debts, principal, interest, Lenders’ Expenses, the Prepayment Fee, the Final Payment, and otheramounts Borrower owes the Lenders now or later, in connection with, related to, following, or arising from, out of or under, this Agreement or, the other Loan Documents, orotherwise, and including interest accruing after Insolvency Proceedings begin (whether or not
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allowed) and debts, liabilities, or obligations of Borrower assigned to the Lenders and/or Collateral Agent, and the performance of Borrower’s duties under the Loan Documents.
“ OFAC ” is the U.S. Department of Treasury Office of Foreign Assets Control.
“ OFAC Lists ” are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed.Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any otherapplicable Executive Orders.
“ Operating Documents ” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’sjurisdiction of organization on a date that is no earlier than thirty (30) days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws in current form, (b) if suchPerson is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similaragreement), each of the foregoing with all current amendments or modifications thereto.
“ Original Agreement ” is defined in the preamble hereof.
“ Original Notes ” is defined in Section 2.2.
“ patents ” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues,extensions and continuations-in-part of the same.
“ payment Date ” is the first (1 st ) calendar day of each calendar month, commencing on September 1, 2017.
“ perfection Certificate ” and “ perfection Certificates ” is defined in Section 5.1.
“ permitted Indebtedness ” is:
(a) Borrower’s Indebtedness to the Lenders and Collateral Agent under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date and disclosed on the Perfection Certificate(s);
(c) Subordinated Debt;
(d) unsecured Indebtedness to trade creditors incurred in the ordinary course of business;
(e) Indebtedness consisting of capitalized lease obligations and purchase money Indebtedness, in each case incurred byBorrower or any of its Subsidiaries to finance the acquisition, repair, improvement or construction of fixed or capital assets of such person, provided that (i) the aggregateoutstanding principal amount of all such Indebtedness does not exceed Five Hundred Thousand Dollars ($500,000.00) at any time and (ii) the principal amount of suchIndebtedness does not exceed the lower of the cost or fair market value of the property so acquired or built or of such repairs or improvements financed with such Indebtedness(each measured at the time of such acquisition, repair, improvement or construction is made);
(f) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of Borrower’sbusiness; and
(g) any obligations with respect to corporate credit cards or merchant services issued for the account of Borrower or anySubsidiary in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000.00);
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(h) all obligations arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement,
interest rate collar agreement, or other agreement or arrangement designated to protect Borrower or a Subsidiary against fluctuation in interest rates, currency exchange rates orcommodity prices;
(i) Indebtedness relating to the financing of insurance premiums in an aggregate amount not to exceed One Million FiveHundred Thousand Dollars ($1,500,000.00);
(j) Reimbursement obligations pursuant to a bond in favor of PG&E in an aggregate amount not to exceed One HundredFifty Thousand Dollars ($150,000.00);
(k) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Borrower orany Subsidiary in the ordinary course of business in an aggregate amount not to exceed One Hundred Fifty Thousand Dollars ($150,000.00);
(l) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through(k) above, provided that the principal amount thereof is not increased except by an amount equal to a reasonable premium or other reasonable amount paid in connection with suchrefinancing and by an amount equal to any existing, but unutilized, commitment thereunder, or the terms thereof are not modified to impose materially more burdensome termsupon Borrower, or its Subsidiary, as the case may be;
(m) Investments under clause (f) of the definition “Permitted Investments”;
(n)Indebtedness for tenant improvement loans with landlords in an aggregate amount not to exceed One Million Five Hundred Thousand Dollars($1,500,000.00); and
(o) Other unsecured Indebtedness not to exceed Five Hundred Thousand Dollars ($500,000).
“ permitted Investments ” are:
(a) Investments disclosed on the Perfection Certificate(s) and existing on the Effective Date;
(b) (i) Investments consisting of cash and Cash Equivalents, and (ii) any other Investments permitted by Borrower’sinvestment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Collateral Agent;
(c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions inthe ordinary course of Borrower;
(d) Investments consisting of deposit, securities and/or commodities accounts in which Collateral Agent has a perfectedsecurity interest;
(e) Investments in connection with Transfers permitted by Sections 7.1, 7.3 and 7.7;
(f) Investments (i) by Borrower in Subsidiaries (other than Cerus B.V.) not to exceed Two Hundred Fifty Thousand Dollars($250,000.00) in the aggregate in any fiscal year or another Borrower; (ii) by Borrower in Cerus B.V. not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in theaggregate in any fiscal year; and (iii) by Subsidiaries in other Subsidiaries not to exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate in any fiscal year or inBorrower;
(g) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances inthe ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employeestock purchase plans or agreements approved by Borrower’s Board of Directors; not to exceed Five Hundred Thousand Dollars ($500,000.00) in the aggregate for (i) and (ii) in anyfiscal year;
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(h) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or
suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
(i) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and supplierswho are not Affiliates, in the ordinary course of business; provided that this paragraph (i) shall not apply to Investments of Borrower in any Subsidiary;
(j) Investments constituting interest rate, currency or commodity swap agreement, interest rate cap agreement, interest ratecollar agreement, or other agreement or arrangement designated to protect Borrower or a Subsidiary against fluctuation in interest rates, currency exchange rates or commodityprices;
(k) Investments in joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the non-exclusive licensing of technology and licensing that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areasoutside of the United States or Europe, the development of technology or the providing of technical support, provided that any cash investments by Borrower do not exceed FiveHundred Thousand Dollars ($500,000.00) in the aggregate in any fiscal year; and
(l) Other Investments not to exceed Five Hundred Thousand Dollars ($500,000.00).
“ permitted Licenses ” are (A) licenses of over-the-counter software that is commercially available to the public, and (B) non‑exclusive and exclusive licenses forthe use of the Intellectual Property of Borrower or any of its Subsidiaries entered into in the ordinary course of business, provided , that, with respect to each such license describedin clause (B), (i) no Event of Default has occurred or is continuing at the time of such license; (ii) the license constitutes an arms‑length transaction, the terms of which, on theirface, do not provide for a sale or assignment of any Intellectual Property and do not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to pledge, grant asecurity interest in or lien on, or assign or otherwise Transfer any Intellectual Property; (iii) in the case of any exclusive license, (x) Borrower delivers [ * ] days’ prior writtennotice and a brief summary of the terms of the proposed license to Collateral Agent and the Lenders and delivers to Collateral Agent and the Lenders copies of the final executedlicensing documents in connection with the exclusive license promptly upon consummation thereof, and (y) any such license could not result in a legal transfer of title of thelicensed property but may be exclusive in respects other than territory and may be exclusive as to territory only as to discrete geographical areas outside of the United States; and(iv) all upfront payments, royalties, milestone payments or other proceeds arising from the licensing agreement that are payable to Borrower or any of its Subsidiaries are paid to aDeposit Account that is governed by a Control Agreement.
“ permitted Liens ” are:
(a) Liens existing on the Effective Date and disclosed on the Perfection Certificates or arising under this Agreement and theother Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) beingcontested in good faith and for which Borrower maintains adequate reserves on its Books, provided that no notice of any such Lien has been filed or recorded under the InternalRevenue Code of 1986, as amended, and the Treasury Regulations adopted thereunder;
(c) Liens securing Indebtedness permitted under clause (e) of the definition of “ permitted Indebtedness ,” (i) on property(including accessions, additions, parts, replacements, fixtures, improvements and attachments thereto, and the proceeds thereof) acquired or held by Borrower or its Subsidiariesincurred for financing such property (including accessions, additions, parts, replacements, fixtures, improvements and attachments thereto, and the proceeds thereof) other thanAccounts, Inventory, and financed Equipment, or (ii) existing on property (and accessions, additions, parts, replacements, fixtures, improvements and attachments thereto, and theproceeds thereof) when acquired other than Accounts, Inventory, and financed Equipment, if the Lien is
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confined to such property (including accessions, additions, parts, replacements, fixtures, improvements and attachments thereto;
(d) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary courseof business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000.00), and which arenot delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing theforfeiture or sale of the property subject thereto;
(e) Liens to secure payment of workers’ compensation, employment insurance, old‑age pensions, social security and otherlike obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);
(f) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described in (a) through (c),but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increaseexcept to the extent permitted under clause (l) of the definition of “ permitted Indebtedness ”;
(g) leases or subleases of real property granted in the ordinary course of Borrower’s business (or, if referring to anotherPerson, in the ordinary course of such Person’s business), and leases, subleases, non‑exclusive licenses or sublicenses of personal property (other than Intellectual Property) grantedin the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicensesdo not prohibit granting Collateral Agent or any Lender a security interest therein;
(h) banker’s liens, rights of setoff and Liens in favor of financial institutions incurred in the ordinary course of businessarising in connection with Borrower’s deposit accounts or securities accounts held at such institutions solely to secure payment of fees and similar costs and expenses and providedsuch accounts are maintained in compliance with Section 6.6 hereof;
(i) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default underSection 8.4 or Section 8.7;
(j) Liens consisting of Permitted Licenses;
(k) rights of customers and scientists with respect to illuminators placed in the possession of such customers and scientists inthe ordinary course of business;
(l) Liens incurred or deposits made in the ordinary course of Borrower’s or a Subsidiary’s business, securing liabilities in theaggregate amount not to exceed Five Hundred Thousand Dollars ($500,000.00) to secure the performance of tenders, statutory obligations, surety, bid and appeal bonds, bids,leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations;
(m) Liens comprised of security deposits or bank guarantees in favor of landlords, not to exceed the aggregate amount ofFive Hundred Thousand Dollars ($500,000.00);
(n) Liens securing Indebtedness under clauses (g), (h), (i), or (k) of the definition “Permitted Indebtedness” on cashcollateral in restricted bank accounts (the “Restricted Bank Accounts”);
(o) Liens securing Subordinated Debt; and
(p) Liens securing Indebtedness under clause (o) in favor of the applicable landlord.
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“ person ” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“ post Closing Letter ” is that certain Post Closing Letter dated as of the Effective Date by and between Collateral Agent and Borrower.
“ prepayment Fee ” is, with respect to any Term Loan subject to prepayment prior to the Maturity Date, whether by mandatory or voluntary prepayment, accelerationor otherwise, an additional fee payable to the Lenders in amount equal to:
(i) for a prepayment made on or after the Funding Date of such Term Loan through and including thefirst anniversary of the Funding Date of such Term Loan, three percent (3.00%) of the principal amount of such Term Loan prepaid;
(ii) for a prepayment made after the date which is after the first anniversary of the Funding Date ofsuch Term Loan through and including the second anniversary of the Funding Date of such Term Loan, two percent (2.00%) of the principal amount of the Term Loans prepaid;
(iii) for a prepayment made after the date which is after the second anniversary of the Funding Dateof such Term Loan through and including the third anniversary of the Funding Date of such Term Loan, one percent (1.00%) of the principal amount of the Term Loans prepaid;and
(iv) for a prepayment made after the third anniversary of the Funding Date of such Term Loan andprior to the Maturity Date, one half of one percent (0.50%) of the principal amount of the Term Loans prepaid.
“ pro Rata Share ” is, as of any date of determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place)determined by dividing the outstanding principal amount of Term Loans held by such Lender by the aggregate outstanding principal amount of all Term Loans.
“ Registered Organization ” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“ Required Lenders ” means (i) for so long as all of the Persons that are Lenders on the Effective Date (each an “ Original Lender ”) have not assigned ortransferred any of their interests in their Term Loan, Lenders holding one hundred percent (100%) of the aggregate outstanding principal balance of the Term Loan, or (ii) at anytime from and after any Original Lender has assigned or transferred any interest in its Term Loan, Lenders holding at least sixty six percent (66%) of the aggregate outstandingprincipal balance of the Term Loan and, in respect of this clause (ii), (A) each Original Lender that has not assigned or transferred any portion of its Term Loan, (B) each assigneeor transferee of an Original Lender’s interest in the Term Loan, but only to the extent that such assignee or transferee is an Affiliate or Approved Fund of such Original Lender, and(C) any Person providing financing to any Person described in clauses (A) and (B) above; provided, however, that this clause (C) shall only apply upon the occurrence of a default,event of default or similar occurrence with respect to such financing.
“ Requirement of Law ” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common), treaty, rule or regulationor determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Personor any of its property is subject.
“ Responsible Officer ” is any of the President, Chief Executive Officer, or Chief Financial Officer of Borrower acting alone.
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“ Revenue Event ” is the receipt of evidence by, in form and substance reasonably acceptable to, Collateral Agent, of the first achievement by Borrower after the
Effective Date of consolidated trailing six-month revenues of [ * ] .
“ Second Draw period ” is the period commencing on the date of the occurrence of the Revenue Event and ending on the earliest of (i) January 31, 2019; (ii) the datewhich is sixty days after the occurrence of the Revenue Event and (iii) the occurrence of an Event of Default; provided, however, that the Second Draw Period shall not commenceif on the date of the occurrence of the Revenue Event an Event of Default has occurred and is continuing.
“ Secured promissory Note ” is defined in Section 2.4.
“ Secured promissory Note Record ” is a record maintained by each Lender with respect to the outstanding Obligations owed by Borrower to Lender and creditsmade thereto.
“ Securities Account ” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made.
“ Shares ” is one hundred percent (100%) of the issued and outstanding capital stock, membership units or other securities owned or held of record by Borrower orBorrower’s Subsidiary, in any Subsidiary; provided that, with respect to Borrower’s interest in Cerus B.V., and in the event Borrower demonstrates to Collateral Agent’s reasonablesatisfaction, that a pledge of more than sixty five percent (65%) of the Shares of such Subsidiary which is a Foreign Subsidiary, creates a present and existing adverse taxconsequence to Borrower under the U.S. Internal Revenue Code, “Shares” shall mean sixty‑five percent (65%) of the issued and outstanding capital stock, membership units orother securities owned or held of record by Borrower or its Subsidiary in such Foreign Subsidiary.
“ Solvent ” is, with respect to any Person: the fair salable value of such Person’s consolidated assets (including goodwill minus disposition costs) exceeds the fairvalue of such Person’s liabilities; such Person is not left with unreasonably small capital after the transactions in this Agreement; and such Person is able to pay its debts (includingtrade debts) as they mature.
“ Subordinated Debt ” is indebtedness incurred by Borrower or any of its Subsidiaries subordinated to all Indebtedness of Borrower and/or its Subsidiaries to theLenders (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Collateral Agent and the Lenders entered into betweenCollateral Agent, Borrower, and/or any of its Subsidiaries, and the other creditor), on terms acceptable to Collateral Agent and the Lenders.
“ Subsidiary ” is, with respect to any Person, any Person of which more than fifty percent (50%) of the voting stock or other equity interests (in the case of Personsother than corporations) is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries.
“ Term Loan ” is defined in Section 2.2(a)(iii) hereof.
“ Term A Loan ” is defined in Section 2.2(a)(i) hereof.
“ Term B Loan ” is defined in Section 2.2(a)(ii) hereof.
“ Term Loan Commitment ” is, for any Lender, the obligation of such Lender to make a Term Loan, up to the principal amount shown on Schedule 1.1 . “ TermLoan Commitments ” means the aggregate amount of such commitments of all Lenders.
“ Trademarks ” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections,and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.
38[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
“ Transfer ” is defined in Section 7.1.
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the Effective Date.
BORROWER: CERUS CORPORATION By /s/ Kevin D. Green Name: Kevin D. Green Title: VP Finance and Chief Financial Officer COLLATERAL AGENT AND LENDER: OXFORD FINANCE LLC By /s/ Colette H. Featherly Name: Colette H. Featherly Title: Senior Vice President
[ Signature Page to Loan and Security Agreement ] [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
SCHEDULE 1.1
Lenders and Commitments
Term A Loans – Original Term Loans Lender Term Loan Commitment Commitment percentage
OXFORD FINANCE LLC $ 17,630,509.44 100.00%TOTAL $ 17,630,509.44 100.00%
Term A Loans - New Lender Term Loan Commitment Commitment percentage
OXFORD FINANCE LLC $12,369,490.56 100.00%TOTAL $ 12,369,490.56 100.00%
Term B Loans
Lender Term Loan Commitment Commitment percentageOXFORD FINANCE LLC $10,000,000.00 100.00%
TOTAL $10,000,000.00 100.00%
Aggregate (all Term Loans) Lender Term Loan Commitment Commitment percentage
OXFORD FINANCE LLC $40,000,000.00 100.00%TOTAL $40,000,000.00 100.00%
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT A
Description of Collateral
The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property:
All goods, Accounts (including health‑care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchiseagreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible orelectronic), cash, deposit accounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by awriting), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and
All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments,accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (i) more than sixty-five percent (65%) of the Shares of Cerus B.V., (ii) the Restricted Bank Accounts,(iii) more than sixty-five percent (65%) of the total combined voting power of all classes of stock entitled to vote the shares of capital stock (the “Shares”) of any ForeignSubsidiary other than Cerus B.V., if Borrower demonstrates to Collateral Agent’s reasonable satisfaction that a pledge of more than sixty five percent (65%) of the Shares of suchSubsidiary creates a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code, (iv) any Intellectual Property; provided, however, theCollateral shall include all Accounts and all proceeds of Intellectual Property; provided, if a judicial authority (including a U.S. Bankruptcy Court) would hold that a securityinterest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then theCollateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral Agent’s securityinterest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property; or (v) any license or contract, in each case if the granting of a Lien insuch license or contract is prohibited by or would constitute a default under the agreement governing such license or contract or equipment and other property subject to a Liendescribed in clause (c) of the definition of Permitted Liens if the granting of a Lien in such equipment or other property is prohibited by or would constitute a default under theagreement governing such equipment (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would berendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expirationof any such prohibition, such equipment or other property shall automatically be subject to the security interest granted in favor of Lender hereunder and become part of the“Collateral.”
Pursuant to the terms of a certain negative pledge arrangement with Collateral Agent and the Lenders, Borrower has agreed not to encumber any of its IntellectualProperty.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT B
Form of Disbursement Letter
[see attached]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
DISBURSEMENT LETTER
[______]
The undersigned, being the duly elected and acting of CERUS CORPORATION, a Delaware corporation with offices located at 2550 Stanwell Drive, Concord,CA 94520 (“ Borrower ”), does hereby certify to OxFORD FINANCE LLC (“ Oxford ” and “ Lender ”), as collateral agent (the “ Collateral Agent ”) in connection with thatcertain Amended and Restated Loan and Security Agreement dated as of July 31, 2017, by and among Borrower, Collateral Agent and the Lenders from time to time party thereto(the “ Loan Agreement ”; with other capitalized terms used below having the meanings ascribed thereto in the Loan Agreement) that:
1. The representations and warranties made by Borrower in Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in allmaterial respects as of the date hereof except to the extent such representations and warranties are made as of an earlier date, then such representations and warrantiesshall be true and correct in all material respect as of such earlier date.
2. No event or condition has occurred that would constitute an Event of Default under the Loan Agreement or any other Loan Document.
3. Borrower is in compliance with the covenants and requirements contained in Sections 4, 6 and 7 of the Loan Agreement.
4. All conditions referred to in Section 3 of the Loan Agreement to the making of the Loan to be made on or about the date hereof have been satisfied orwaived by Collateral Agent.
5. No Material Adverse Change has occurred.
6. The undersigned is a Responsible Officer.
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7. The proceeds of the Term [A][B] Loan shall be disbursed as follows:
Disbursement from Oxford: Loan Amount $_______________
Plus: ‑‑Deposit Received $__________
Less: ‑‑Facility Fee ($_________)‑‑Interim Interest ($_________)--Final Payment due under Original Agreement ($ [________] )--Aggregate principal amount of Original Term Loans currently outstanding that areconverting to Term A Loans
($[________])
‑‑Lender’s Legal Fees ($_________) Net proceeds due from Oxford: $_______________ TOTAL TERM [A][B] LOAN NET pROCEEDS FROM LENDERS $_______________
8. The Term [A][B] Loan shall amortize in accordance with the Amortization Table attached hereto.
9. The aggregate net proceeds of the Term Loans shall be transferred to the Designated Deposit Account as follows:
Account Name: CERUS CORPORATION
Bank Name: [_______]
Bank Address: [___________________________________]
Account Number: [___________________________________]
ABA Number: [__________________]
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Dated as of the date first set forth above.
BORROWER: CERUS CORPORATION By Name: Title: COLLATERAL AGENT AND LENDER: OXFORD FINANCE LLC By Name: Title:
[ Signature Page to Disbursement Letter ] [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
AMORTIZATION TABLE
( Term [A][B] Loan )
[see attached]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT C
Compliance Certificate
TO: OXFORD FINANCE LLC, as Collateral Agent andLender
FROM: CERUS CORPORATION
The undersigned authorized officer (“ Officer ”) of CERUS CORPORATION (“ Borrower ”), hereby certifies that in accordance with the terms and conditions of the Amendedand Restated Loan and Security Agreement by and among Borrower, Collateral Agent, and the Lenders from time to time party thereto (the “ Loan Agreement ;” capitalized termsused but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
(a) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below;
(b) There are no Events of Default, except as noted below;
(c) Except as noted below, all representations and warranties of Borrower stated in the Loan Documents are true and correct in all material respects on thisdate and for the period described in (a), above; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already arequalified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurateand complete in all material respects as of such date.
(d) Borrower, and each of Borrower’s Subsidiaries, has timely filed all required tax returns and reports, Borrower, and each of Borrower’s Subsidiaries, hastimely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by Borrower, or Subsidiary, except as otherwise permitted pursuant to the termsof Section 5.8 of the Loan Agreement;
(e) No Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrowerhas not previously provided written notification to Collateral Agent and the Lenders.
Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of Borrower, further certifies that the attached financial statements are preparedin accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter orfootnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements.
please indicate compliance status since the last Compliance Certificate by circling Yes, No, or N/A under “Complies” column.
Reporting Covenant Requirement Actual Complies
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
Financialstatements
Monthly within (x) [ * ] days with respect to January and the last month of each quarter and (y) [ * ] dayswith respect each month other than January and the last month of each quarter (other than quarterlywithin [ * ] days for cash flow statements)
YesNoN/A
Annual (CPAAudited)statements
Within [ * ] days after FYE YesNoN/A
Annual FinancialProjections/Budget(prepared on amonthly basis)
Annually (within [ * ] days after FYE), and when revised YesNoN/A
8‑K, 10‑K and10‑Q Filings If applicable, within [ * ] days of filing YesNoN/A
ComplianceCertificate
Monthly within (x) [ * ] days with respect to January and the last month of each quarter and (y) [ * ] dayswith respect each month other than January and the last month of each quarter YesNoN/A
Total amount ofBorrower’s cashand cashequivalents at thelast day of themeasurementperiod
$________YesNoN/A
Total amount ofBorrower’sSubsidiaries’ cashand cashequivalents at thelast day of themeasurementperiod
$________YesNoN/A
Total amount ofBorrower’strailing 12 monthrevenue
Prior to the Funding Date of the Term B Loans, [ * ] , beginning with the quarter ending December 31, 2017 $________YesNoN/A
Total amount ofBorrower’strailing 6 monthrevenue
After the Funding Date of the Term B Loans, [ * ] $________YesNoN/A
Deposit and Securities Accounts(Please list all accounts; attach separate sheet if additional space needed) Institution Name Account Number New Account? Account Control Agreement in place?
Yes No Yes No
Yes No Yes No
Yes No Yes No
Yes No Yes No
Other Matters Have there been any changes in management since the last Compliance Certificate? Yes No Have there been any transfers/sales/disposals/retirement of Collateral or IP prohibited by theLoan Agreement? Yes No
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
Have there been any new or pending claims or causes of action against Borrower that involvemore than Five Hundred Thousand Dollars ($500,000.00)? Yes No
Have there been any amendments of or other changes to the Operating Documents of Borroweror any of its Subsidiaries? If yes, provide copies of any such amendments or changes with thisCompliance Certificate.
Yes No
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
Exceptions Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.” Attach separate sheet if additional space needed.) CERUS CORPORATION By Name: Title: Date:
LENDER USE ONLY Received by: Date: Verified by: Date: Compliance Status:YesNo
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT D
Form of Secured promissory Note
[see attached]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
SECURED pROMISSORY NOTE
(Term [A][B] Loan)
$____________________ Dated: [____]
FOR VALUE RECEIVED, the undersigned, CERUS CORPORATION, a Delaware corporation with offices located at 2550 Stanwell Drive, Concord, CA 94520 (“Borrower ”) HEREBY PROMISES TO PAY to the order of OXFORD FINANCE LLC (“ Lender ”) the principal amount of [___________] MILLION DOLLARS($______________) or such lesser amount as shall equal the outstanding principal balance of the Term [A][B] Loan made to Borrower by Lender, plus interest on the aggregateunpaid principal amount of such Term [A][B] Loan, at the rates and in accordance with the terms of the Amended and Restated Loan and Security Agreement dated July 31, 2017by and among Borrower, Lender, Oxford Finance LLC, as Collateral Agent, and the other Lenders from time to time party thereto (as amended, restated, supplemented or otherwisemodified from time to time, the “ Loan Agreement ”). If not sooner paid, the entire principal amount and all accrued and unpaid interest hereunder shall be due and payable on theMaturity Date as set forth in the Loan Agreement. Any capitalized term not otherwise defined herein shall have the meaning attributed to such term in the Loan Agreement.
Principal, interest and all other amounts due with respect to the Term [A][B] Loan, are payable in lawful money of the United States of America to Lender as set forth in the LoanAgreement and this Secured Promissory Note (this “ Note ”). The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto,shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.
The Loan Agreement, among other things, (a) provides for the making of a secured Term [A][B] Loan by Lender to Borrower, and (b) contains provisions for acceleration of thematurity hereof upon the happening of certain stated events.
This Note may not be prepaid except as set forth in Section 2.2 (c) and Section 2.2(d) of the Loan Agreement.
This Note and the obligation of Borrower to repay the unpaid principal amount of the Term [A][B] Loan, interest on the Term [A][B] Loan and all other amounts due Lender underthe Loan Agreement is secured under the Loan Agreement.
Presentment for payment, demand, notice of protest and all other demands and notices of any kind in connection with the execution, delivery, performance and enforcement of thisNote are hereby waived.
Borrower shall pay all reasonable fees and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender in the enforcement or attempt to enforceany of Borrower’s obligations hereunder not performed when due.
This Note shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of California.
The ownership of an interest in this Note shall be registered on a record of ownership maintained by Lender or its agent. Notwithstanding anything else in this Note to the contrary,the right to the principal of, and stated interest on, this Note may be transferred only if the transfer is registered on such record of ownership and the transferee is identified as theowner of an interest in the obligation. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as the owner in fact thereof forall purposes and shall not be bound to recognize any equitable or other claim to or interest in this Note on the part of any other person or entity.
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IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date hereof.
BORROWER: CERUS CORPORATION By Name: Title:
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
LOAN INTEREST RATE AND pAYMENTS OF pRINCIpAL
DateprincipalAmount Interest Rate
Scheduledpayment Amount Notation By
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
CORpORATE BORROWING CERTIFICATE
BORROWER : CERUS CORPORATION DATE : July 31, 2017LENDER: OXFORD FINANCE LLC, as Collateral Agent and Lender I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware .
3. Attached hereto as Exhibit A and Exhibit B , respectively, are true, correct and complete copies of (i) Borrower’s Articles/Certificate of Incorporation (includingamendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws. Neither suchArticles/Certificate of Incorporation nor such Bylaws have been amended, annulled, rescinded, revoked or supplemented, and such Articles/Certificate of Incorporation and suchBylaws remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s Board of Directors at a duly held meeting of such directors (or pursuant to a unanimous writtenconsent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified, repealed, rescinded,amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
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RESOLvED , that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf ofBorrower:
Name Title Signature
Authorizedto Add orRemove
Signatories
□ □ □ □
RESOLvED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add or remove anyindividuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLvED FURTHER , that such individuals may, on behalf of Borrower:
Borrow Money . Borrow money from the Lenders.Execute Loan Documents . Execute any loan documents any Lender requires.Grant Security . Grant Collateral Agent a security interest in any of Borrower’s assets.Negotiate Items . Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest andreceive cash or otherwise use the proceeds.Further Acts . Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents oragreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLvED FURTHER , that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
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5. T he persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the authorized signingofficers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of B orrower, hereby certify as to paragraphs 1 through 5 above, as [print title]
of the date set forth above.
By:
Name:
Title:
[ Signature Page to Corporate Borrowing Certificate ] [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT A
Articles/Certificate of Incorporation (including amendments)
[see attached]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
ExHIBIT B
Bylaws
[see attached]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
DEBTOR: CERUS CORpORATION SECURED pARTY: OxFORD FINANCE LLC,
as Collateral Agent
ExHIBIT A TO UCC FINANCING STATEMENT
Description of Collateral
The Collateral consists of all of Debtor’s right, title and interest in and to the following personal property:
All goods, Accounts (including health‑care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchiseagreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible orelectronic), cash, deposit accounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by awriting), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and
All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments,accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (i) more than sixty-five percent (65%) of the Shares of Cerus B.V., (ii) the Restricted Bank Accounts,(iii) more than sixty-five percent (65%) of the total combined voting power of all classes of stock entitled to vote the shares of capital stock (the “Shares”) of any ForeignSubsidiary other than Cerus B.V., if Borrower demonstrates to Collateral Agent’s reasonable satisfaction that a pledge of more than sixty five percent (65%) of the Shares of suchSubsidiary creates a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code, (iv) any Intellectual Property; provided, however, theCollateral shall include all Accounts and all proceeds of Intellectual Property; provided, if a judicial authority (including a U.S. Bankruptcy Court) would hold that a securityinterest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then theCollateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral Agent’s securityinterest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property; or (v) any license or contract, in each case if the granting of a Lien insuch license or contract is prohibited by or would constitute a default under the agreement governing such license or contract or equipment and other property subject to a Liendescribed in clause (c) of the definition of Permitted Liens if the granting of a Lien in such equipment or other property is prohibited by or would constitute a default under theagreement governing such equipment (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would berendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expirationof any such prohibition, such equipment or other property shall automatically be subject to the security interest granted in favor of Lender hereunder and become part of the“Collateral.”
Pursuant to the terms of a certain negative pledge arrangement with Collateral Agent and the Lenders, Debtor has agreed not to encumber any of its IntellectualProperty.
Capitalized terms used but not defined herein have the meanings ascribed in the Uniform Commercial Code in effect in the State of California as in effect from timeto time (the “Code”) or, if not defined in the Code, then in the Amended and Restated Loan and Security Agreement by and between Debtor, Secured Party and the other Lendersparty thereto (as modified, amended and/or restated from time to time).
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARkED BY BRACkETS, HAS BEEN OMITTED AND FILED SEpARATELY WITH THE SECURITIES AND ExCHANGE COMMISSION pURSUANT TORULE 24B-2 OF THE SECURITIES ExCHANGE ACT OF 1934, AS AMENDED.
Exhibit 10.3FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT to Loan and Security Agreement (this “ Amendment ”) is made effective as of July 31, 2017 (the “ First Amendment Date ”) andmade, by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (in itsindividual capacity, “ Oxford ”; and in its capacity as Collateral Agent, “ Collateral Agent ”), the Lenders listed on Schedule 1.1 thereof from time to time including Oxford in itscapacity as a Lender (each a “ Lender ” and collectively, the “ Lenders ”) and CERUS CORPORATION, a Delaware corporation with offices located at 2550 Stanwell Drive,Concord, CA 94520 (“ Borrower ”).
WHEREAS, Collateral Agent, Borrower and Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of datehereof (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”) pursuant to which Lenders have provided to Borrower certain loans inaccordance with the terms and conditions thereof; and
WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms andconditions set forth herein;
NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt andadequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined shall have the respective meanings given to them in the Loan Agreement.
2. Section 2.2(a)(i) of the Loan Agreement is hereby amended and restated in its entirety as follows:
(a) Availability . (i) Subject to the terms and conditions of this Agreement, the Lenders agree, severally andnot jointly, to make term loans to Borrower on the Effective Date in an aggregate amount of Thirty Million Dollars ($30,000,000.00) according to each Lender’sTerm A Loan Commitment as set forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “ Term A Loan ”, and collectively as the “Term A Loans ”). After repayment, no Term A Loan may be re‑borrowed. Subject to the terms and conditions of the Original Agreement, the Lenders, severallyand not jointly, loaned to Borrower advances according to each Lender’s Term Loan Commitment (as defined in the Original Agreement) as set forth on Schedule 1.1of the Original Agreement (such term loans referred to singly as “ Original Term Loan ”, and collectively as “ Original Term Loans ”), of which an aggregateprincipal amount of Seventeen Million Six Hundred Thirty Thousand Five Hundred Nine Dollars and Forty Four cents ($17,630,509.44) remains outstanding on thedate hereof and shall, as of the Effective Date, be governed by the terms and provisions of this Agreement. The Original Term Loans are evidenced by, among otherthings, : (1) that certain Term A Loan – Note No. 1, issued on June 30, 2014 (“ Original Note 1 ”) in the original principal amount of Five Million Dollars($5,000,000.00), of which Four Million Four Hundred Seven Thousand Four Hundred Forty Eight Dollars Thirty cents ($ 4,407,448.30) of principal amount remainoutstanding; (2) that certain Term A Loan – Note No. 2, issued on June 30, 2014 (“ Original Note 2 ”) in the original principal amount of Five Million Dollars($5,000,000.00), of which Four Million Four Hundred Seven Thousand Four Hundred Forty Eight Dollars Thirty cents ($ 4,407,448.30) of principal amount remainoutstanding; (3) that certain Term B Loan – Note 1, issued on June 15, 2015 (“ Original Note 3 ”) in the original principal amount of Five Million Dollars($5,000,000.00), of which Four Million Four Hundred Seven Thousand Eight Hundred Six Dollars Forty Two cents ($ 4,407,806.42) of principal amount remainoutstanding; and (4) that certain Term B Loan – Note 2, issued on June 15, 2015 (“ Original Note 4, ” and together with Original Note 1, Original Note 2 andOriginal Note 3, the “ Original Notes ”) in the original principal amount of Five Million Dollars ($5,000,000.00), of which Four Million Four Hundred SevenThousand Eight Hundred Six Dollars Forty Two cents ($ 4,407,806.42) of principal amount remain outstanding. Each Original Note shall be amended and restatedon the Effective Date and as amended and restated shall represent, effective as of the Effective Date, the respective principal amount of the Original Term Loansoutstanding that is evidenced by such Original Note and set forth above as equivalent principal amount of the Term A Loans being issued hereunder and shall begoverned in all respects by the terms of
this Agreement. The balance of the aggregate principal amount of the Term A Loans shall be evidenced by Secured Promissory Notes issued hereunder.
3. Footnote 1 on the Schedule 1.1 to the Loan Agreement is hereby amended and restated in its entirety as follows:
Oxford provided terms loans earlier to Borrower, an aggregated principal amount of $17,630,509.44 of which is outstanding immediately prior to the EffectiveDate. Such aggregate principal amount shall convert to Term A Loans hereunder and will be evidenced by Amended and Restated Promissory Notes showingapplicable principal balances as of July 31, 2017. New Secured Promissory Notes evidencing the Term A Loans hereunder shall be issued on the Effective Date inthe respective amounts of $7,000,000.00 and $5,369,490.56.
4. Limitation of Amendment.
a. The amendments set forth in Sections 2 through 3 above are effective for the purposes set forth herein and shall be limited precisely as written and shallnot be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwiseprejudice any right, remedy or obligation which Lenders or Borrower may now have or may have in the future under or in connection with any LoanDocument, as amended hereby.
b. This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties,covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full forceand effect.
5. To induce Collateral Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Collateral Agent and Lenders as follows:
a. Borrower has the power and due authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amendedby this Amendment;
b. The organizational documents of Borrower delivered to Collateral Agent on the Effective Date, and updated pursuant to subsequent deliveries by the
Borrower to the Collateral Agent, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to bein full force and effect; and
c. This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or othersimilar laws of general application and equitable principles relating to or affecting creditors’ rights.
6. Except as expressly set forth herein, the Loan Agreement shall continue in full force and effect without alteration or amendment. This Amendment and the Loan
Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements.
7. This Amendment shall be deemed effective as of the First Amendment Date upon (a) the due execution and delivery to Collateral Agent of this Amendment by eachparty hereto and (b) Borrower’s payment of all Lenders’ Expenses incurred through the date hereof, which may be debited from any of Borrower’s accounts.
8. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one andthe same instrument.
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9. This Amendment and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of California.
[ Balance of Page Intentionally Left Blank ]
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IN WITNESS WHEREOF , the parties hereto have caused this First Amendment to Loan and Security Agreement to be executed effective as of the date first set
forth above.
BORROWER: CERUS CORPORATION By /s/ Kevin D. Green Name: Kevin D. Green Title: VP, Finance and CFO COLLATERAL AGENT AND LENDER: OXFORD FINANCE LLC By /s/ Colette H. Featherly Name: Colette H. Featherly Title: Senior Vice President
[Signature page to First Amendment to Loan and Security Agreement]
Exhibit 31.1
CERTIFICATION
I, William M. Greenman, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Cerus Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in lightof the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that materialinformation relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period inwhich this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to providereasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generallyaccepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of thedisclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (theregistrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internalcontrol over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditorsand the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adverselyaffect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financialreporting.
Date: November 3, 2017 /s/ William M. Greenman William M. Greenman
President and Chief Executive Officer(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION
I, Kevin D. Green, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Cerus Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in lightof the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that materialinformation relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period inwhich this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to providereasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generallyaccepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of thedisclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (theregistrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internalcontrol over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditorsand the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adverselyaffect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financialreporting.
Date: November 3, 2017 /s/ Kevin D. Green Kevin D. Green
Vice President, Finance and Chief Financial Officer(Principal Financial Officer)
Exhibit 32.1
CERTIFICATION
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and Section 1350 of Chapter 63 of Title18 of the United States Code (18 U.S.C. §1350), William M. Greenman, the Chief Executive Officer of Cerus Corporation (the “Company”) and Kevin D. Green, the ChiefFinancial Officer of the Company, hereby certify that, to the best of their knowledge:
1. The Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2017, and to which this Certification is attached as Exhibit 32.1 (the “PeriodicReport”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Exchange Act, and
2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
IN WITNESS WHEREOF, the undersigned have set their hands hereto as of the 3rd day of November, 2017.
/s/ William M. Greenman William M. GreenmanPresident and Chief Executive Officer (Principal Executive Officer) /s/ Kevin D. Green Kevin D. GreenVice President, Finance and Chief Financial Officer (PrincipalFinancial Officer)
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference intoany filing of Cerus Corporation under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of theForm 10-Q), irrespective of any general incorporation language contained in such filing.