ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
☒ | Accelerated filer | ☐ | ||||
Non-accelerated filer |
☐ | Smaller reporting company | ||||
Emerging growth company |
Item 1. |
BUSINESS |
• | we seek to have the capability to develop first-in-class |
• | we seek to develop drugs that either can differentiate themselves in competitive markets by addressing aspects of CNS diseases and other diseases which are not adequately treated by currently marketed drugs or can be effective with fewer side effects. |
• | continue to commercialize CAPLYTA, which has been approved by the FDA for the treatment of schizophrenia in adults, in the United States; |
• | commercialize CAPLYTA, which has been approved by the FDA for the treatment of bipolar depression in adults, in the United States; |
• | complete the development of lumateperone for additional neuropsychiatric indications, such as MDD; |
• | expand the commercial potential of lumateperone by investigating its usefulness in additional neurological areas, such as autism spectrum disorder, and in additional neuropsychiatric indications, such as sleep disorders associated with neuropsychiatric and neurological disorders; |
• | continue to advance our other product candidates in clinical development such as lenrispodun, for the treatment of CNS and other disorders; ITI-1284, for the treatment of neuropsychiatric disorders and behavioral disturbances in dementia; and ITI-333, for substance use disorders, pain and psychiatric comorbidities including depression and anxiety; and |
• | advance the earlier stage product candidates in our pipeline. |
Summary Description of Patent or Patent Application |
United States or Foreign Jurisdiction |
Expiration Date | ||
ITI-007 Product Patent (approved drug product—lumateperone tosylate—in any pharmaceutical form) |
Granted: |
March 12, 2028 (US: does not include expected 6-month extension in US for pediatric studies) |
Summary Description of Patent or Patent Application |
United States or Foreign Jurisdiction |
Expiration Date | ||
ITI-007 Crystal Form Patent (approved drug product—lumateperone tosylate—in solid crystalline form) |
Granted: |
December 1, 2029 (US; does not include expected 6-month extension for pediatric studies; additional patent term extension possible through 2033**);March 12, 2029 (ex-US) | ||
Pending in IL, IN | ||||
ITI-007 Dosage and Method of Treatment Patents (including schizophrenia, bipolar depression, sleep disorder indications) |
Granted: Pending: US (continuation), EP, IN, KR (divisional), MX (divisional) |
December 28, 2029 (US; does not include expected 6-month extension for pediatric studies; additional patent term extension possible through 2033**);May 27, 2029 (ex-US) | ||
ITI-007 Residual Symptoms Patent (treatment of negative/residual symptoms of schizophrenia) |
Granted: Pending: US (continuation), AU (divisional), JP (divisional), EP (divisional), IN, KR (divisional), MX (divisional), CA, BR IL, CN |
December 3, 2034 (US and ex-US; does not include expected US 6-month extension for pediatric studies;) | ||
Patents for Additional Dosage Forms |
Granted: Pending: US (continuation), AU, CA, CN, EP, IN, IL, JP, KR, MX, RU |
2037-2039 | ||
Patents for Additional Indications (including post-traumatic stress disorder, impulse control disorder, symptoms associated with dementia, acute depression, and acute anxiety) |
Granted: Granted |
2033-2034 |
* | Orange-Book listed U.S. patents (NB: U.S. 8,598,119 and U.S. 9,586,960 have been requested for delisting as they have been superseded by RE48,839 and RE48,825, respectively) |
** | We have filed patent term extension applications on two U.S. patents. The U.S. Patent and Trademark Office, or USPTO, has not completed its review of these applications. In the United States, we are permitted to extend the term of one U.S. patent for lumateperone or the use thereof. Accordingly, on completion of the USPTO’s review of our patent term extension applications, we must select one of the two patents to which any patent term extension granted will attach. Patent terms may be subject to change not only due to potential patent term extensions but also to any terminal disclaimer that reduces patent term, as well as other factors. Because the U.S. patent laws and related judicial interpretations change, modifications or new interpretations of the laws may impact our patent terms. |
• | identifying and validating targets; |
• | screening compounds against targets; |
• | preclinical studies and clinical trials of potential pharmaceutical products; and |
• | obtaining FDA and other regulatory clearances. |
• | capital resources; |
• | research and development resources; |
• | manufacturing capabilities; and |
• | sales and marketing. |
• | completion of extensive preclinical laboratory tests, animal studies, and formulation studies in accordance with the FDA’s Good Laboratory Practice, or GLP, regulations; |
• | submission to the FDA of an Investigational New Drug application, or IND, for human clinical testing, which must become effective before human clinical trials may begin; |
• | performance of adequate and well-controlled human clinical trials to establish the safety and efficacy of the drug for each proposed indication; |
• | submission to the FDA of an NDA after completion of all clinical trials; |
• | satisfactory completion of an FDA pre-approval inspection of the manufacturing facility or facilities at which the API and finished drug product are produced and tested to assess compliance with current Good Manufacturing Practices, or cGMPs; |
• | satisfactory completion of FDA inspections of clinical trial sites to assure that data supporting the safety and effectiveness of product candidates has been generated in compliance with Good Clinical Practices; and |
• | FDA review and approval of the NDA prior to any commercial marketing or sale of the drug in the United States. |
• | Phase 1 usually involves the initial introduction of the investigational drug into a limited population, typically healthy humans, to evaluate its short-term safety, dosage tolerance, metabolism, pharmacokinetics and pharmacologic actions, and, if possible, to gain an early indication of its effectiveness. |
• | Phase 2 usually involves trials in a limited patient population to (i) evaluate dosage tolerance and appropriate dosage; (ii) identify possible adverse effects and safety risks; and (iii) evaluate preliminarily the efficacy of the drug for specific targeted indications. Multiple Phase 2 clinical trials may be conducted by the sponsor to obtain information prior to beginning larger and more expensive Phase 3 clinical trials. |
• | Phase 3 trials, commonly referred to as pivotal studies, are undertaken in an expanded patient population at multiple, geographically dispersed clinical trial centers to further evaluate clinical efficacy and test further for safety by using the drug in its final form. |
• | The federal Anti-Kickback Law, which prohibits, among other things, knowingly or willingly offering, paying, soliciting or receiving remuneration, directly or indirectly, in cash or in kind, to induce or reward the purchasing, leasing, ordering or arranging for or recommending the purchase, lease or order of any health care items or service for which payment may be made, in whole or in part, by federal health care programs such as Medicare and Medicaid; |
• | The federal civil False Claims Act, which prohibits, among other things, individuals or entities from knowingly presenting, or causing to be presented, a false or fraudulent claim for payment of government funds or knowingly making, using or causing to be made or used, a false record or statement material to an obligation to pay money to the government or knowingly concealing or knowingly and improperly avoiding, decreasing or concealing an obligation to pay money to the federal government; |
• | The federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which imposes criminal liability for knowingly and willfully executing a scheme to defraud any healthcare benefit program, knowingly and willfully embezzling or stealing from a health care benefit program, willfully obstructing a criminal investigation of a health care offense, or knowingly and willfully making false statements relating to healthcare matters; |
• | The federal Physician Payment Sunshine Act, being implemented as the Open Payments Program, requires certain pharmaceutical manufacturers to engage in extensive tracking of payments and other transfers of value to physicians and teaching hospitals, and to submit such data to the Centers for Medicare and Medicaid Studies, or CMS, which will then make all of this data publicly available on the CMS website; and |
• | Analogous state laws and regulations, including state anti-kickback and false claims laws, which may apply to items or services reimbursed under Medicaid and other state programs or, in several states, |
apply regardless of the payer, as well as other state laws that require pharmaceutical companies to report expenses related to the marketing and promotion of pharmaceutical products, prohibit certain gifts or payments to health care providers in the state, and/or require pharmaceutical companies to implement compliance programs or marketing codes of conduct. |
Item 1A. |
RISK FACTORS |
• | In order to execute our business plan and achieve profitability, we need to effectively commercialize CAPLYTA, which received FDA approval in December 2019 for the treatment of schizophrenia in adults and in December 2021 for the treatment of bipolar depression in adults. |
• | If we do not obtain regulatory approval of lumateperone for other indications in the United States, or for any indication in foreign jurisdictions, we will not be able to market lumateperone for other indications or in other jurisdictions, which will limit our commercial revenues. |
• | If our newly established sales and marketing capabilities or our third-party relationships for the commercialization of lumateperone are not effective, lumateperone may not be successfully commercialized. |
• | We have generated limited revenue from product sales and there is no guarantee that our revenue from the sale of CAPLYTA or other product candidates, if approved, will be substantial. |
• | There is no guarantee that our planned clinical trials for lumateperone will be successful. |
• | We expect our net losses to continue for at least a few years and are unable to predict the extent of future losses or when we will become profitable, if ever. |
• | We may require additional funding, which may not be available to us on acceptable terms, or at all, and, if not so available, may require us to delay, limit, reduce or cease our operations. |
• | Even though the FDA has granted approval of CAPLYTA for the treatment of schizophrenia and bipolar depression, the terms of the approval may limit its commercial potential. Additionally, CAPLYTA is still subject to ongoing regulatory requirements. |
• | Delays, suspensions and terminations in our clinical trials could result in increased costs to us, delay our ability to generate product revenues and therefore may have a material adverse effect on our business, results of operations and future growth prospects. |
• | Safety issues with our product candidates or approved product, or with product candidates or approved products of third parties that are similar to our product candidates, could give rise to delays in the regulatory approval process, restrictions on labeling or product withdrawal after approval. |
• | Preliminary and interim data from our clinical studies that we may announce or publish from time to time may change as more patient data become available. |
• | We rely on third parties to conduct our clinical trials and perform data collection and analysis, which may result in costs and delays that prevent us from successfully commercializing our product candidates. |
• | Even if we successfully complete the clinical trials of one or more of our product candidates, the product candidates may fail for other reasons. |
• | We are subject to ongoing regulatory obligations and restrictions with regard to lumateperone and, following regulatory approval of any of our product candidates, we will be subject to ongoing regulatory obligations and restrictions with regard to such product candidates, which may result in significant expense and limit our ability to commercialize lumateperone and our other potential products. |
• | CAPLYTA and our product candidates, if approved, may not gain acceptance among physicians, patients, or the medical community, thereby limiting our potential to generate revenues, which will undermine our future growth prospects. |
• | CAPLYTA has only recently been, and our other product candidates have never been, manufactured on a commercial scale, and there are risks associated with scaling up manufacturing to commercial scale. In particular, we will need to develop larger scale manufacturing processes that are more efficient and cost-effective to commercialize our product candidates which may not be successful. |
• | We rely on third-party manufacturers to manufacture and supply lumateperone and our other product candidates for us. If one of our suppliers or manufacturers fails to perform adequately or fulfill our needs, we may be required to incur significant costs and devote significant efforts to find new suppliers or manufacturers. We may also face significant delays in our clinical trials, regulatory approvals and product introductions and commercialization. |
• | We will need to continue to manage our organization and we may encounter difficulties with our staffing and any future transitions, which could adversely affect our results of operations. |
• | Our ability to compete may be undermined if we do not adequately protect our proprietary rights. |
• | Our ability to generate product revenues will be diminished if lumateperone or any of our other potential products does not receive coverage from payors or sell for inadequate prices, or if patients are unable to obtain adequate levels of reimbursement. |
• | Many of our competitors have greater resources and capital than us, putting us at a competitive disadvantage. If our competitors develop and market products that are more effective than lumateperone or our other product candidates, they may reduce or eliminate our commercial opportunity. |
• | The COVID-19 pandemic could continue to have a material impact on our business, financial condition and results of operations, including our commercial operations and sales, clinical trials and preclinical studies. |
• | Numerous factors could result in substantial volatility in the trading price of our stock. |
• | The price of our common stock could be subject to volatility related or unrelated to our operations. |
• | Our management has broad discretion over the use of our cash and we may not use our cash effectively, which could adversely affect our results of operations. |
• | the efficacy, cost, approved use, and side-effect profile of CAPLYTA regimens relative to competitive treatment regimens for the treatment of schizophrenia and bipolar depression; |
• | the effectiveness of our commercial strategy for the marketing of CAPLYTA, including our pricing strategy and the effectiveness of our efforts to obtain adequate third-party reimbursements; |
• | maintaining and successfully monitoring commercial manufacturing arrangements for CAPLYTA with third-party manufacturers to ensure they meet our standards and those of regulatory authorities, including the FDA, which extensively regulate and monitor pharmaceutical manufacturing facilities; |
• | our ability to meet the demand for commercial supplies of CAPLYTA; |
• | the acceptance of CAPLYTA by patients, the medical community and third-party payors; and |
• | the effect of recent or potential health care legislation in the United States. |
• | the amount of product sales from lumateperone; |
• | the costs of maintaining and expanding our sales and marketing capabilities for lumateperone; |
• | the costs of preparing applications for regulatory approvals for lumateperone in additional indications other than in schizophrenia and bipolar depression, and potentially in jurisdictions other than the United States, and for other product candidates, as well as the costs required to support review of such applications; |
• | the costs of manufacturing and distributing lumateperone for commercial use in the United States; |
• | our ability to obtain regulatory approval for, and subsequently generate product sales from, lumateperone in additional indications other than in schizophrenia and bipolar depression or in jurisdictions other than the United States; |
• | the progress in, and the costs of, our preclinical studies and clinical trials and other research and development programs; |
• | the scope, prioritization and number of our research and development programs; |
• | the ability of any future collaborators and us to reach the milestones, and other events or developments, triggering payments under any future collaboration agreements or to otherwise make payments under such agreements; |
• | our ability to enter into new, and to maintain any existing, collaboration and license agreements; |
• | the extent to which any future collaborators are obligated to reimburse us for clinical trial costs under any future collaboration agreements; |
• | the costs involved in filing, prosecuting, enforcing and defending patent claims and other intellectual property rights; |
• | the costs of maintaining or securing manufacturing and supply arrangements for clinical or commercial production of lumateperone or our other product candidates; |
• | the costs of preparing applications for regulatory approvals for our product candidates; |
• | the costs of preparing for and establishing, or contracting for, sales and marketing capabilities if we obtain regulatory approvals for our product candidates; |
• | the costs involved in expanding the accounting and data management systems to support commercial operations; and |
• | the costs associated with litigation, including the costs incurred in defending against any product liability claims that may be brought against us related to lumateperone or our other product candidates. |
• | withdrawal of approval, addition of warnings or narrowing of the approved indication in the product label; |
• | requirement of a Risk Evaluation and Mitigation Strategy to mitigate the risk of off-label use in populations where the FDA may believe that the potential risks of use may outweigh its benefits; |
• | voluntary or mandatory recalls; |
• | warning letters; |
• | suspension of any ongoing clinical studies; |
• | refusal by the FDA or other regulatory authorities to approve pending applications or supplements to approved applications filed by us, or suspension or revocation of product approvals; |
• | restrictions on operations, including restrictions on the marketing or manufacturing of the product or the imposition of costly new manufacturing requirements; or |
• | seizure or detention, or refusal to permit the import or export of products. |
• | we may be required to conduct additional clinical trials or implement a Risk Evaluation and Mitigation Strategies program prior to or following approval; |
• | regulatory authorities may not approve our product candidates or, as a condition of approval, may require specific warnings and contraindications; |
• | regulatory authorities may withdraw their approval of the product and require us to take our drug off the market; |
• | we may have limitations on how we promote our drugs; |
• | sales of products may decrease significantly; |
• | we may be subject to litigation or product liability claims; and |
• | our reputation may suffer. |
• | we may not be able to control the amount and timing of resources that our collaborators may devote to the drug candidates; |
• | our collaborators may experience financial difficulties; |
• | we may be required to relinquish important rights, such as marketing and distribution rights; |
• | business combinations or significant changes in a collaborator’s business strategy may also adversely affect a collaborator’s willingness or ability to complete its obligations under any arrangement; |
• | a collaborator could independently move forward with a competing drug candidate developed either independently or in collaboration with others, including our competitors; and |
• | collaborative arrangements are often terminated or allowed to expire, which would delay the development and may increase the cost of developing our drug candidates. |
• | fail to receive the regulatory approvals required to market them as drugs; |
• | be subject to proprietary rights held by others requiring the negotiation of a license agreement prior to marketing; |
• | be difficult or expensive to manufacture on a commercial scale; |
• | have adverse side effects that make their use less desirable; or |
• | fail to compete with product candidates or other treatments commercialized by our competitors. |
• | our ability to provide acceptable evidence of safety and efficacy; |
• | the scope of the approved indication(s) for the product; |
• | the inclusion of any warnings or contraindications in the product label; |
• | pricing and cost effectiveness, which may be subject to regulatory control; |
• | our ability to obtain sufficient third-party insurance coverage or reimbursement; |
• | effectiveness of our or our collaborators’ sales and marketing strategy; |
• | relative convenience and ease of administration; |
• | patient adherence to treatment; |
• | prevalence and severity of any adverse side effects; and |
• | availability of alternative treatments. |
• | imposition of an annual, nondeductible fee on any entity that manufactures or imports certain branded prescription drugs and biologic agents, apportioned among these entities according to their market share in certain government health care programs; |
• | an increase in the statutory minimum rebates a manufacturer must pay under the Medicaid Drug Rebate Program, retroactive to January 1, 2010, to 23% and 13% of the average manufacturer price for most branded and generic drugs, respectively; |
• | expansion of health care fraud and abuse laws, including the False Claims Act and the Anti-Kickback Statute, new government investigative powers, and enhanced penalties for noncompliance; |
• | a Medicare Part D coverage gap discount program, in which manufacturers agreed to offer 50% point-of-sale |
• | extension of manufacturers’ Medicaid rebate liability to covered drugs dispensed to individuals who are enrolled in Medicaid managed care organizations; |
• | expansion of eligibility criteria for Medicaid programs; |
• | expansion of the entities eligible for discounts under the Public Health Service pharmaceutical pricing program; |
• | requirements to report certain financial arrangements with physicians and teaching hospitals, including reporting any “payments or transfers of value” made or distributed to prescribers, teaching hospitals and other health care providers and reporting any ownership and investment interests held by physicians and their immediate family members and applicable group purchasing organizations during the preceding calendar year; |
• | a requirement to annually report drug samples that manufacturers and distributors provide to physicians; and |
• | a Patient-Centered Outcomes Research Institute to oversee, identify priorities in, and conduct comparative clinical effectiveness research, along with funding for such research. |
• | we may not have been the first to make the inventions covered by our pending patent applications or issued patents; |
• | we may not have been the first to file patent applications for our products, product candidates or the technologies we rely upon; |
• | others may independently develop similar or alternative technologies or duplicate any of our technologies; |
• | our disclosures in patent applications may not be sufficient to meet the statutory requirements for patentability; |
• | any or all of our pending patent applications may not result in issued patents; |
• | we may not seek or obtain patent protection in all countries that will eventually provide a significant business opportunity; |
• | any patents issued to us or our collaborators may not provide a basis for commercially viable products, may not provide us with any competitive advantages or may be challenged by third parties; |
• | our proprietary technologies may not be patentable; |
• | others may design around our patent claims to produce competitive products which fall outside of the scope of our patents; |
• | others may identify prior art which could invalidate our patents; and |
• | changes to patent laws may limit the exclusivity rights of patent holders. |
• | identifying and validating targets; |
• | screening compounds against targets; |
• | preclinical studies and clinical trials of potential pharmaceutical products; |
• | obtaining FDA and other regulatory approvals; and |
• | commercializing pharmaceutical products. |
• | decreased demand for our products or product candidates that we may develop; |
• | injury to our reputation; |
• | withdrawal of clinical trial participants; |
• | initiation of investigations by regulators; |
• | costs to defend the related litigation; |
• | a diversion of management’s time and our resources; |
• | substantial monetary awards to trial participants or patients; |
• | product recalls, withdrawals or labeling, marketing or promotional restrictions; |
• | loss of revenue; |
• | exhaustion of any available insurance and our capital resources; |
• | the inability to commercialize our products or product candidates; and |
• | a decline in our stock price. |
• | the success of our commercialization of CAPLYTA in the United States for the treatment of schizophrenia and bipolar depression; |
• | timing and announcement of regulatory developments, submissions and approvals or preliminary, interim or final results of clinical trials; |
• | actual or anticipated quarterly variation in our results of operations or the results of our competitors; |
• | announcements of medical innovations or new products or product candidates by our competitors; |
• | issuance of new or changed securities analysts’ reports or recommendations for our stock; |
• | developments or disputes concerning our intellectual property or other proprietary rights; |
• | commencement of, or our involvement in, litigation; |
• | market conditions in the biopharmaceutical industry; |
• | any future sales of our common stock or other securities in connection with raising additional capital or otherwise; |
• | any major change to the composition of our board of directors or management; and |
• | general economic conditions and slow or negative growth of our markets. |
• | the accuracy of our estimates regarding expenses, revenues, uses of cash, cash equivalents and investment securities, capital requirements and the need for additional financing; |
• | our expectations regarding our commercialization of CAPLYTA, including the impact of COVID-19 on the commercialization of CAPLYTA and our ability to adapt our approach as appropriate; |
• | the duration and severity of the COVID-19 pandemic and its impact on our business; |
• | the supply and availability of and demand for our product; |
• | the initiation, cost, timing, progress and results of our development activities, non-clinical studies and clinical trials; |
• | the timing of and our ability to obtain and maintain regulatory approval, or submit an application for regulatory approval, of lumateperone and our other existing product candidates, any product candidates that we may develop, and any related restrictions, limitations, and/or warnings in the label of any approved product candidates; |
• | our plans to research, develop and commercialize lumateperone and our other current and future product candidates; |
• | the election by any collaborator to pursue research, development and commercialization activities; |
• | our ability to obtain future reimbursement and/or milestone payments from our collaborators; |
• | our ability to attract collaborators with development, regulatory and commercialization expertise; |
• | our ability to obtain and maintain intellectual property protection for our product candidates; |
• | our ability to successfully commercialize lumateperone and our other product candidates; |
• | the size and growth of the markets for lumateperone and our other product candidates and our ability to serve those markets; |
• | the rate and degree of market acceptance of any current or future products; |
• | the success of competing drugs that are or become available; |
• | regulatory developments in the United States and other countries; |
• | the performance of our third-party suppliers and manufacturers and our ability to obtain alternative sources of raw materials; |
• | our ability to obtain additional financing; |
• | our use of the proceeds from our securities offerings; |
• | any restrictions on our ability to use our net operating loss carryforwards; |
• | our exposure to investment risk, interest rate risk and capital market risk; and |
• | our ability to attract and retain key scientific, management or sales and marketing personnel. |
Item 1B. |
UNRESOLVED STAFF COMMENTS |
Item 2. |
PROPERTIES |
Item 3. |
LEGAL PROCEEDINGS |
Item 4. |
MINE SAFETY DISCLOSURES |
Item 5. |
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Item 6. |
[RESERVED] |
Item 7. |
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
• | direct costs of formulating, manufacturing and packaging drug product; |
• | overhead costs consisting of labor, share-based compensation, shipping, outside inventory management and other miscellaneous operating costs; and |
• | royalty payments on product sales. |
• | internal recurring costs, such as costs relating to labor and fringe benefits, materials, supplies, facilities and maintenance; and |
• | fees paid to external parties who provide us with contract services, such as pre-clinical testing, manufacturing and related testing, clinical trial activities and license milestone payments. |
• | salaries and related benefit costs of a dedicated sales force; |
• | sales operation costs; and |
• | marketing and promotion expenses. |
• | salaries and related benefit costs; |
• | patent, legal, and professional costs; and |
• | office and facilities overhead. |
For the Year Ended December 31, |
||||||||||||
2021 |
2020 | 2019 | ||||||||||
Revenues, net |
$ |
83,803 |
$ | 22,813 | $ | 61 | ||||||
Expenses |
||||||||||||
Cost of product sales |
8,035 |
1,895 | — | |||||||||
Research and development |
88,845 |
65,782 | 89,125 | |||||||||
Selling, general and administrative |
272,611 |
186,364 | 64,948 | |||||||||
|
|
|
|
|
|
|||||||
Total costs & expenses |
369,491 |
254,041 | 154,073 | |||||||||
|
|
|
|
|
|
|||||||
Loss from operations |
(285,688 |
) |
(231,228 | ) | (154,012 | ) | ||||||
Interest income, net |
1,568 |
4,235 | 6,292 | |||||||||
Income tax expense |
(6 |
) |
(13 | ) | (2 | ) | ||||||
|
|
|
|
|
|
|||||||
Net loss |
$ |
(284,126 |
) |
$ | (227,006 | ) | $ | (147,722 | ) | |||
|
|
|
|
|
|
2021 |
2020 | |||||||
External costs |
$ |
53,166 | $ | 38,791 | ||||
Internal costs |
35,679 | 26,991 | ||||||
|
|
|
|
|||||
Total Research and development expenses |
$ |
88,845 | $ | 65,782 | ||||
Lumateperone costs |
$ |
48,633 | $ | 32,884 | ||||
Manufacturing costs of drug candidates |
4,960 | 5,585 | ||||||
Share- based compensation |
11,456 | 8,415 | ||||||
Other projects and overhead |
23,796 | 18,898 | ||||||
|
|
|
|
|||||
Total Research and development expenses |
$ |
88,845 | $ | 65,782 | ||||
|
|
|
|
• | completion of extensive pre-clinical laboratory tests, animal studies, and formulation studies in accordance with the FDA’s Good Laboratory Practice, or GLP, regulations; |
• | submission to the FDA of an Investigational New Drug application, or IND, for human clinical testing, which must become effective before human clinical trials may begin; |
• | performance of adequate and well-controlled human clinical trials to establish the safety and efficacy of the drug for each proposed indication; |
• | submission to the FDA of a New Drug Application, or NDA, after completion of all clinical trials; |
• | satisfactory completion of an FDA pre-approval inspection of the manufacturing facility or facilities at which the active pharmaceutical ingredient, or API, and finished drug product are produced and tested to assess compliance with current Good Manufacturing Practices, or cGMPs; |
• | satisfactory completion of FDA inspections of clinical trial sites to assure that data supporting the safety and effectiveness of product candidates has been generated in compliance with Good Clinical Practices; and |
• | FDA review and approval of the NDA prior to any commercial marketing or sale of the drug in the United States. |
Item 7A. |
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Item 8. |
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
Index to Financial Statements and Financial Statement Schedules |
Number | |||
F-1 | ||||
F-3 |
||||
F-4 |
||||
F-5 |
||||
F-6 |
||||
F-7 |
||||
F-8 |
Item 9. |
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
Item 9A. |
CONTROLS AND PROCEDURES |
• | pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; |
• | provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and |
• | provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements. |
Item 9B. |
OTHER INFORMATION |
Item 9C. |
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS |
Item 10. |
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
Item 11. |
EXECUTIVE COMPENSATION |
Item 12. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
Item 13. |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
Item 14. |
PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Item 15. |
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES | |
Item 15(a). |
The following documents are filed as part of this annual report on Form 10-K: | |
Item 15(a)(1) and (2) |
See “Index to Financial Statements and Financial Statement Schedules” at Item 8 to this Annual Report on Form 10-K. Other financial statement schedules have not been included because they are not applicable or the information is included in the financial statements or notes thereto. | |
Item 15(a)(3) |
Exhibits |
Exhibit Number |
Exhibit Description |
Filed Herewith |
Incorporated by Reference herein from Form or Schedule |
Filing Date |
SEC File/ Reg. Number | |||||||
32.1 | Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | X | ||||||||||
101 | .INS | Inline XBRL Instance Document—the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | X | |||||||||
.SCH | Inline XBRL Taxonomy Extension Schema Document. | X | ||||||||||
.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document. | X | ||||||||||
.DEF | Inline XBRL Taxonomy Extension Definition. | X | ||||||||||
.LAB | Inline XBRL Taxonomy Extension Label Linkbase Document. | X | ||||||||||
.PRE | Inline XBRL Taxonomy Presentation Linkbase Document. | X | ||||||||||
104 | Cover Page Interactive Date File (formatted as Inline XBRL and contained in Exhibit 101). | X |
* | Management contract or compensatory plan or arrangement. |
** | Confidential treatment has been granted for portions of this Exhibit. Redacted portions filed separately with the Securities and Exchange Commission. |
*** | Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. |
Item 16. |
FORM 10-K SUMMARY |
INTRA-CELLULAR THERAPIES, INC. | ||||||
Date: March 1, 2022 | By: | /s/ Sharon Mates, Ph.D. | ||||
Sharon Mates, Ph.D. | ||||||
Chairman, President and Chief Executive Officer |
Signatures |
Title |
Date | ||||
By: | /s/ Sharon Mates, Ph.D. |
Chairman, President and Chief Executive | March 1, 2022 | |||
Sharon Mates, Ph.D. | Officer (principal executive officer) | |||||
By: | /s/ Lawrence J. Hineline |
Senior Vice President of Finance and | March 1, 2022 | |||
Lawrence J. Hineline | Chief Financial Officer (principal financial officer and principal accounting officer) | |||||
By: | /s/ Sir Michael Rawlins, M.D., FRCP, FMedSci |
Director | March 1, 2022 | |||
Sir Michael Rawlins, M.D., FRCP, FMedSci | ||||||
By: | /s/ Joel S. Marcus |
Director | March 1, 2022 | |||
Joel S. Marcus | ||||||
By: | /s/ Rory B. Riggs |
Director | March 1, 2022 | |||
Rory B. Riggs | ||||||
By: | /s/ Robert L. Van Nostrand |
Director | March 1, 2022 | |||
Robert L. Van Nostrand |
Clinical trial expenses | ||
Description of the Matter | As described in Note 2 to the consolidated financial statements, at each consolidated balance sheet date, the Company is required to estimate its |
expenses resulting from its obligations under contracts with vendors, clinical research organizations and consultants, and under clinical site agreements in connection with conducting clinical trials. The Company recorded accrued expenses for the clinical trial accruals, which are included in accrued and other current liabilities on the December 31, 2021 consolidated balance sheet and also recorded prepaid clinical trial expenses, which are included in prepaid expenses and other current assets on the December 31, 2021 consolidated balance sheet. The amounts recorded for clinical trial accruals and for prepaid clinical trial expenses, within the aforementioned balance sheet captions represent the Company’s estimate of the unpaid and prepaid clinical trial expenses based on the Auditing the Company’s clinical trial accruals and prepaid clinical trial expenses, specifically as it relates to active studies with greater than 15% expected enrollment, involved a high degree of subjectivity due to the significant estimation required in determining the progress to completion of specific tasks conducted under its clinical trials and the costs of those tasks that will be invoiced by the vendors, clinical research organizations and consultants, and under clinical site agreements subsequent to the date that the consolidated financial statements are issued. | ||
How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design, and tested the operating effectiveness of controls over the Company’s estimation of the clinical trial expenses, including the process of estimating the expenses incurred to date based on the progress of the clinical trials which have achieved greater than 15% of expected enrollment. For example, we tested controls over management’s review of the clinical trial expense calculation, the significant assumptions about the status of research and development services incurred, and the completeness and accuracy of the data used to calculate the estimates. To test the clinical trial accruals and prepaid clinical trial expenses, we performed procedures that included, among others, reading each agreement and change order with the vendors, clinical research organizations and consultants, and under clinical site agreements, and evaluating the significant assumptions described above and the methods used in developing the clinical trial estimates and calculating the amounts that were unpaid and prepaid at the balance sheet date. We made direct inquiries of financial and clinical personnel, and observed management hold discussions with the Clinical Research Organization on the status of the clinical trials, progress to completion of clinical trials, method of allocating contractual charges to specific tasks performed during the clinical trials, and the status of change orders. We compared the current estimate of expenses incurred to estimates previously made by management. We also assessed the historical accuracy of management’s estimates and examined payments made to service providers after the consolidated balance sheet date. |
December 31, 2021 |
December 31, 2020 |
|||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ |
$ | ||||||
Investment securities, available-for-sale |
||||||||
Restricted cash |
||||||||
Accounts receivable, net |
||||||||
Inventory |
||||||||
Prepaid expenses and other current assets |
||||||||
|
|
|
|
|||||
Total current assets |
||||||||
Property and equipment, net |
||||||||
Right of use assets, net |
||||||||
Other assets |
||||||||
|
|
|
|
|||||
Total assets |
$ |
$ | ||||||
|
|
|
|
|||||
Liabilities and stockholders’ equity |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ |
$ | ||||||
Accrued and other current liabilities |
||||||||
Accrued customer programs |
||||||||
Lease liabilities, short-term |
||||||||
Accrued employee benefits |
||||||||
|
|
|
|
|||||
Total current liabilities |
||||||||
Lease liabilities |
||||||||
|
|
|
|
|||||
Total liabilities |
||||||||
Stockholders’ equity: |
||||||||
Common stock, $ |
||||||||
Additional paid-in capital |
||||||||
Accumulated defici t |
( |
) |
( |
) | ||||
Accumulated comprehensive (loss) income |
( |
) |
||||||
|
|
|
|
|||||
Total stockholders’ equity |
||||||||
|
|
|
|
|||||
Total liabilities and stockholders’ equity |
$ |
$ | ||||||
|
|
|
|
Years Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Revenues |
||||||||||||
Product sales, net |
$ |
$ | $ | |||||||||
Grant revenue |
||||||||||||
|
|
|
|
|
|
|||||||
Total revenues, net |
||||||||||||
Operating expenses: |
||||||||||||
Cost of product sales |
||||||||||||
Research and development |
||||||||||||
Selling, general and administrative |
||||||||||||
|
|
|
|
|
|
|||||||
Total operating expenses |
||||||||||||
Loss from operations |
( |
) |
( |
) | ( |
) | ||||||
Interest income |
||||||||||||
|
|
|
|
|
|
|||||||
Loss before provision for income taxes |
( |
) |
( |
) | ( |
) | ||||||
Income tax expense |
( |
) |
( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Net loss |
$ |
( |
) |
$ | ( |
) | $ | ( |
) | |||
|
|
|
|
|
|
|||||||
Net loss per common share: |
||||||||||||
Basic & Diluted |
$ |
( |
) |
$ | ( |
) | $ | ( |
) | |||
Weighted average number of common shares: |
||||||||||||
Basic & Diluted |
Years Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Net loss |
$ |
( |
) |
$ | ( |
) | $ | ( |
) | |||
Other comprehensive income: |
||||||||||||
Unrealized (loss) gain on investment securities |
( |
) |
||||||||||
|
|
|
|
|
|
|||||||
Comprehensive loss |
$ |
( |
) | $ | ( |
) | $ | ( |
) | |||
|
|
|
|
|
|
Common Stock |
Additional Paid-in Capital |
Accumulated Deficit |
Accumulated Comprehensive Income (Loss) |
Total Stockholders’ Equity |
||||||||||||||||||||
Shares |
Amount |
|||||||||||||||||||||||
Balance at December 31, 2018 |
$ | $ | $ | ( |
) | $ | ( |
) | $ | |||||||||||||||
Exercise of stock options and issuances of restricted stock |
— | — | ||||||||||||||||||||||
Stock issued for services |
— | — | ||||||||||||||||||||||
Share-based compensation |
— | — | — | — | ||||||||||||||||||||
Net loss |
— | — | — | ( |
) | — | ( |
) | ||||||||||||||||
Other comprehensive income |
— | — | — | — | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2019 |
$ | $ | $ | ( |
) | $ | $ | |||||||||||||||||
Common shares issued |
— | — | ||||||||||||||||||||||
Exercise of stock options and issuances of restricted stock |
— | — | ||||||||||||||||||||||
Stock issued for services |
— | — | ||||||||||||||||||||||
Share-based compensation |
— | — | — | — | ||||||||||||||||||||
Net loss |
— | — | — | ( |
) | — | ( |
) | ||||||||||||||||
Other comprehensive income |
— | — | — | — | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2020 |
$ |
$ |
$ |
( |
) |
$ |
$ |
|||||||||||||||||
Exercise of stock options and issuances of restricted stock |
— |
— |
||||||||||||||||||||||
Stock issued for services |
— |
— |
— |
|||||||||||||||||||||
Share-based compensation |
— |
— |
— |
— |
||||||||||||||||||||
Net loss |
— |
— |
— |
( |
) |
— |
( |
) | ||||||||||||||||
Other comprehensive loss |
— |
— |
— |
— |
( |
) |
( |
) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2021 |
$ |
$ |
$ |
( |
) |
$ |
( |
) |
$ |
|||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
||||||||||||
2021 |
2020 | 2019 | ||||||||||
Cash flows used in operating activities |
||||||||||||
Net loss |
$ |
( |
) |
$ | ( |
) | $ | ( |
) | |||
Adjustments to reconcile net loss to net cash used in operating activities: |
||||||||||||
Depreciation |
||||||||||||
Share-based compensation |
||||||||||||
Stock issued for services |
||||||||||||
Amortization of premiums and discounts on investment securities, net |
( |
) |
( |
) | ( |
) | ||||||
Changes in operating assets and liabilities: |
||||||||||||
Accounts receivable, net |
( |
) |
( |
) | — | |||||||
Inventory |
( |
) |
( |
) | — | |||||||
Prepaid expenses and other assets |
( |
) |
( |
) | ||||||||
Long term deferred tax asset, net |
||||||||||||
Accounts payable |
( |
) | ( |
) | ||||||||
Accrued liabilities and other |
||||||||||||
Lease liabilities, net |
( |
) |
( |
) | ||||||||
|
|
|
|
|
|
|||||||
Net cash used in operating activities |
( |
) |
( |
) | ( |
) | ||||||
Cash flows (used in) provided by investing activities |
||||||||||||
Purchases of investments |
( |
) |
( |
) | ( |
) | ||||||
Maturities of investments |
||||||||||||
Purchases of property and equipment |
( |
) |
( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Net cash (used in) provided by investing activities |
( |
) | ||||||||||
Cash flows provided by financing activities |
||||||||||||
Proceeds from exercise of stock options |
||||||||||||
Proceeds of public offerings, net |
— | |||||||||||
|
|
|
|
|
|
|||||||
Net cash provided by financing activities |
||||||||||||
Net increase (decrease) in cash, cash equivalents, and restricted cash |
( |
) | ||||||||||
Cash, cash equivalents, and restricted cash at beginning of period |
||||||||||||
|
|
|
|
|
|
|||||||
Cash, cash equivalents, and restricted cash at end of period |
$ |
$ | $ | |||||||||
|
|
|
|
|
|
|||||||
Cash paid for taxes |
$ |
$ | $ | |||||||||
|
|
|
|
|
|
|||||||
Non-cash investing and financing activities |
||||||||||||
Right of use assets under operating vehicle fleet leases |
$ |
$ | $ | — | ||||||||
|
|
|
|
|
|
|||||||
Right of use assets under operating real estate leases |
$ |
— |
$ | $ | ||||||||
|
|
|
|
|
|
|||||||
The following table provides a reconciliation of cash, cash equivalents and restricted cash reported within the consolidated balance sheets that sum to the total of the same such amounts shown in the consolidated statements of cash flows: | | |||||||||||
Cash and cash equivalents |
$ |
$ | $ | |||||||||
Restricted cash |
— | |||||||||||
|
|
|
|
|
|
|||||||
Total cash, cash equivalents and restricted cash |
$ |
$ | $ | |||||||||
|
|
|
|
|
|
• | Level 1—Fair value is determined by using unadjusted quoted prices that are available in active markets for identical assets and liabilities. |
• | Level 2—Fair value is determined by using inputs other than Level 1 quoted prices that are directly or indirectly observable. Inputs can include quoted prices for similar assets and liabilities in active markets or quoted prices for identical assets and liabilities in inactive markets. Related inputs can also include those used in valuation or other pricing models, such as interest rates and yield curves that can be corroborated by observable market data. |
• | Level 3—Fair value is determined by inputs that are unobservable and not corroborated by market data. Use of these inputs involves significant and subjective judgments to be made by a reporting entity—e.g., determining an appropriate adjustment to a discount factor for illiquidity associated with a given security. |
Fair Value Measurements at Reporting Date Using |
||||||||||||||||
December 31, 2021 |
Quoted Prices in Active Markets for Identical Assets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
|||||||||||||
Money Market Funds |
$ | $ | $ | — | $ | — | ||||||||||
U.S. Government Agency Securities |
— | — | ||||||||||||||
Certificates of Deposit |
— | — | ||||||||||||||
Commercial Paper |
— | — | ||||||||||||||
Corporate Notes/Bonds |
— | — | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ |
$ |
$ |
$ |
— |
||||||||||||
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using |
||||||||||||||||
December 31, 2020 |
Quoted Prices in Active Markets for Identical Assets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
|||||||||||||
Money Market Funds |
$ | $ | $ | — | $ | — | ||||||||||
U.S. Government Agency Securities |
— | — | ||||||||||||||
Certificates of Deposit |
— | — | ||||||||||||||
Commercial Paper |
— | — | ||||||||||||||
Corporate Notes/Bonds |
— | — | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ |
$ |
$ |
$ |
— |
||||||||||||
|
|
|
|
|
|
|
|
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Stock options |
||||||||||||
RSUs |
||||||||||||
TSR RSUs |
December 31, 2021 |
||||||||||||||||
Amortized Cost |
Unrealized Gains |
Unrealized (Losses) |
Estimated Fair Value |
|||||||||||||
U.S. Government Agency Securities |
$ | $ | — | $ | ( |
) | $ | |||||||||
Certificates of Deposit |
||||||||||||||||
Commercial Paper |
( |
) | ||||||||||||||
Corporate Notes/Bonds |
( |
) | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ |
$ |
$ |
( |
) |
$ |
|||||||||||
|
|
|
|
|
|
|
|
December 31, 2020 |
||||||||||||||||
Amortized Cost |
Unrealized Gains |
Unrealized (Losses) |
Estimated Fair Value |
|||||||||||||
U.S. Government Agency Securities |
$ | $ | $ | ( |
) | $ | ||||||||||
Certificates of Deposit |
— | — | ||||||||||||||
Commercial Paper |
( |
) | ||||||||||||||
Corporate Notes/Bonds |
( |
) | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ |
$ |
$ |
( |
) |
$ |
|||||||||||
|
|
|
|
|
|
|
|
December 31, 2021 |
December 31, 2020 |
|||||||
Raw materials |
$ |
$ | ||||||
Work in process |
||||||||
Finished goods |
||||||||
|
|
|
|
|||||
$ |
$ | |||||||
|
|
|
|
December 31, 2021 |
December 31, 2020 |
|||||||
Computer equipment |
$ |
$ | ||||||
Furniture and fixtures |
||||||||
Scientific equipment |
||||||||
Leasehold improvements |
||||||||
|
|
|
|
|||||
|
|
|
|
|||||
Less accumulated depreciation |
( |
) |
( |
) | ||||
|
|
|
|
|||||
$ |
$ | |||||||
|
|
|
|
Lease Assets and Liabilities –Real Estate |
Classification |
December 31, 2021 |
December 31, 2020 |
|||||||
Assets |
||||||||||
Right of use assets, net |
Operating lease right of use assets | $ | $ | |||||||
|
|
|
|
|||||||
$ | $ | |||||||||
|
|
|
|
|||||||
Liabilities |
||||||||||
Current |
||||||||||
Lease liabilities, short-term |
Operating lease liabilities | $ | $ | |||||||
Non-Current |
||||||||||
Lease liabilities |
Non-current operating lease liabilities |
|||||||||
|
|
|
|
|||||||
Total lease liabilities |
$ | $ | ||||||||
|
|
|
|
|||||||
Weighted average remaining lease term |
||||||||||
Weighted average discount rate |
% | % | ||||||||
Operating lease cost |
$ | $ | ||||||||
Variable lease cost |
$ | $ |
Year ending December 31, 2022 |
$ | |||
Year ending December 31, 2023 |
||||
Year ending December 31, 2024 |
||||
Year ending December 31, 2025 |
||||
Year ending December 31, 2026 |
||||
Thereafter |
||||
|
|
|||
Total |
||||
Less: Present value discount |
( |
) | ||
|
|
|||
Total Lease liability |
||||
Less: Current portion |
( |
) | ||
|
|
|||
Long-term lease liabilities |
$ | |||
|
|
Lease Assets and Liabilities – Fleet |
Classification |
December 31, 2021 |
December 31, 2020 |
|||||||
Assets |
||||||||||
Right of use assets, net |
Operating lease right of use assets | $ | $ | |||||||
|
|
|
|
|||||||
$ |
$ |
|||||||||
|
|
|
|
|||||||
Liabilities |
||||||||||
Current |
||||||||||
Lease liabilities, short-term |
Operating lease liabilities | $ | $ | |||||||
Non-Current |
||||||||||
Lease liabilities |
Non-current operating lease liabilities |
|||||||||
|
|
|
|
|||||||
Total lease liabilities |
$ | $ | ||||||||
|
|
|
|
|||||||
Weighted average remaining lease term |
||||||||||
Weighted average discount rate |
% | % | ||||||||
Operating lease cost |
$ | $ | ||||||||
Variable lease cost |
$ | $ |
Year ending December 31, 2022 |
$ | |||
Year ending December 31, 2023 |
||||
Year ending December 31, 2024 |
||||
Year ending December 31, 2025 |
||||
Thereafter |
||||
|
|
|||
Total |
||||
|
|
|||
Less: Present value discount |
( |
) | ||
Total operating lease liabilities |
||||
|
|
|||
Less: Current portion |
( |
) | ||
|
|
|||
Long-term lease liabilities |
$ | |||
|
|
Years Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Inventoriable costs |
$ |
$ | — | |||||||||
Research and development |
$ | |||||||||||
Selling, general and administrative |
||||||||||||
|
|
|
|
|
|
|||||||
Total share-based compensation expense |
$ |
$ | $ | |||||||||
|
|
|
|
|
|
2021 |
2020 |
2019 |
||||||||||
Dividend yield |
% |
% | % | |||||||||
Expected volatility |
% |
% | % | |||||||||
Weighted-average risk-free interest rate |
% |
% | % | |||||||||
Expected term (in years) |
Number of Shares |
Weighted- Average Exercise Price |
Weighted- Average Contractual Life |
||||||||||
Outstanding at December 31, 2020 |
$ | |||||||||||
Options granted in 2021 |
||||||||||||
Options exercised in 2021 |
( |
) | ||||||||||
|
|
|
|
|
|
|||||||
Outstanding at December 31, 2021 |
$ | |||||||||||
|
|
|
|
|||||||||
Vested and expected to vest at December 31, 2021 |
$ | |||||||||||
|
|
|
|
|||||||||
Exercisable at December 31, 2021 |
$ | |||||||||||
|
|
|
|
Number of Shares |
Weighted- Average Grant Date Fair Value Per Share |
Weighted- Average Contractual Life |
||||||||||
Outstanding at December 31, 2020 |
$ | |||||||||||
Time based RSUs vested in 2021 |
( |
) | $ | |||||||||
Time based RSUs cancelled in 2021 |
( |
) | $ | |||||||||
|
|
|
|
|
|
|||||||
Outstanding at December 31, 2021 |
$ | |||||||||||
|
|
|
|
|||||||||
Vested and expected to vest at December 31, 2021 |
$ | |||||||||||
|
|
|
|
|||||||||
Exercisable at December 31, 2021 |
$ | |||||||||||
|
|
|
|
Number of Shares |
Weighted- Average Exercise Price |
Weighted- Average Contractual Life |
||||||||||
Outstanding at December 31, 2020 |
$ | |||||||||||
Options granted 2021 |
$ | |||||||||||
Options exercised 2021 |
( |
) | $ | |||||||||
Options canceled or expired 2021 |
( |
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Exhibit 4.2
DESCRIPTION OF THE REGISTRANTS SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
Intra-Cellular Therapies, Inc. (the Company or we) has one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended: our common stock, par value $0.0001 per share.
DESCRIPTION OF COMMON STOCK
We are authorized to issue 175,000,000 shares of common stock, par value $0.0001 per share, and 5,000,000 shares of preferred stock, par value $0.0001 per share.
The following summary of certain provisions of our common stock does not purport to be complete. You should refer to our restated certificate of incorporation, as amended, and our restated bylaws, both of which are incorporated by reference as exhibits to the Companys Annual Report on Form 10-K of which this Exhibit is a part. The summary below is also qualified by provisions of applicable law.
General
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors by our stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend rights of any series of preferred stock that we may designate and issue in the future.
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately our net assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. There are no redemption or sinking fund provisions applicable to the common stock. Our outstanding shares of common stock are validly issued, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A., with offices at 250 Royall Street, Canton, Massachusetts 02021.
Stock Exchange Listing
Our common stock is listed for quotation on The Nasdaq Global Select Market under the symbol ITCI.
CERTAIN PROVISIONS OF DELAWARE LAW AND OF THE COMPANYS
CERTIFICATE OF INCORPORATION AND BYLAWS
Anti-Takeover Provisions
The provisions of Delaware law and our restated certificate of incorporation, as amended, and restated bylaws could discourage or make it more difficult to accomplish a proxy contest or other change in our management or the acquisition of control by a holder of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or could deter, transactions that stockholders may otherwise consider to be in their best interests or in our best interests. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve an actual or threatened change of our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. Such provisions also may have the effect of preventing changes in our management.
Delaware Statutory Business Combinations Provision
We are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law. Section 203 prohibits a publicly-held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a business combination is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and, subject to certain exceptions, an interested stockholder is a person who, together with his or her affiliates and associates, owns, or within three years prior, did own, 15% or more of the corporations voting stock.
Classified Board of Directors; Removal of Directors for Cause
Pursuant to our restated certificate of incorporation, as amended, and restated bylaws, our board of directors is divided into three classes, with the term of office of the first class to expire at the first annual meeting of stockholders following the initial classification of directors, the term of office of the second class to expire at the second annual meeting of stockholders following the initial classification of directors, and the term of office of the third class to expire at the third annual meeting of stockholders following the initial classification of directors. At each annual meeting of stockholders, directors elected to succeed those directors whose terms expire, other than directors elected by the holders of any series of preferred stock under specified circumstances, will be elected for a three-year term of office. All directors elected to our classified board of directors will serve until the election and qualification of their respective successors or their earlier resignation or removal. Members of the board of directors may only be removed for cause and only by the affirmative vote of at least 80% of our outstanding voting stock. These provisions are likely to increase the time required for stockholders to change the composition of the board of directors. For example, at least two annual meetings will be necessary for stockholders to effect a change in a majority of the members of the board of directors.
Advance Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors
Our restated bylaws provide that, for nominations to the board of directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholders notice generally must be delivered not less than 90 days nor more than 120 days prior to the first anniversary of the previous years annual meeting date. For a special meeting, the notice must generally be delivered not earlier than the 90th day prior to the meeting and not later than the later of (1) the 60th day prior to the meeting or (2) the 10th day following the day on which public announcement of the meeting is first made. Detailed requirements as to the form of the notice and information required in the notice are specified in the restated bylaws. If it is determined that business was not properly brought before a meeting in accordance with our bylaw provisions, such business will not be conducted at the meeting.
Special Meetings of Stockholders
Special meetings of the stockholders may be called only by our board of directors pursuant to a resolution adopted by a majority of the total number of directors.
No Stockholder Action by Written Consent
Any action to be effected by our stockholders must be effected at a duly called annual or special meeting of the stockholders.
Super Majority Stockholder Vote Required for Certain Actions
The Delaware General Corporation Law provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporations certificate of incorporation or bylaws, unless the corporations certificate of incorporation or bylaws, as the case may be, require a greater percentage. Our restated certificate of incorporation, as amended, requires the affirmative vote of the holders of at least 80% of our outstanding voting stock to amend or repeal any of the provisions discussed in this section of this Exhibit. This 80% stockholder vote would be in addition to any separate class vote that might in the future be required pursuant to the terms of any preferred stock that might then be outstanding. An 80% vote is also required for any amendment to, or repeal of, our restated bylaws by the stockholders. Our restated bylaws may be amended or repealed by a simple majority vote of the board of directors.
Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the Agreement), is effective this 12th day of September, 2018 (the Effective Date) between Dr. Suresh Durgam (Executive) and Intra-Cellular Therapies, Inc. (the Company).
1. Title; Capacity. Subject to terms set forth herein, the Company agrees to employ Executive in the position of Senior Vice President, Medical Affairs and Late Stage Clinical Development. Executive shall serve in an executive capacity and shall perform such duties as are assigned to Executive from time to time, consistent with the Bylaws of the Company and as required by the Companys Board of Directors (the Board). During the term of his employment with the Company, Executive will devote his best efforts and substantially all of his business time and attention to the business of the Company. Notwithstanding the foregoing, or any other provision of this Agreement, it shall not be a breach or violation of this Agreement for the Executive to (i) serve on civic or charitable boards or committees, (ii) with the express written permission of the Company serve on corporate boards of companies that do not present a conflict of interest or compete directly or indirectly with the Company, (iii) deliver lectures, fulfill speaking engagements or teach at educational institutions, or (iv) manage personal investments, so long as such activities do not significantly interfere with or significantly detract from the performance of the Executives responsibilities to the Company in accordance with this Agreement. The Board has approved the Executives participation in the activities listed on Schedule A to this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date, and shall continue for three (3) years from that date, unless terminated prior thereto by either the Company or the Executive as provided in Section 4. If either the Company or the Executive does not wish to renew this Agreement when it expires at the end of the initial or any renewal term hereof, as hereinafter provided, or if either the Company or the Executive wishes to renew this Agreement on different terms than those contained herein, it or he shall give written notice in accordance with Section 13 below of such intent to the other party at least sixty (60) days prior to the expiration date. In the absence of such notice, this Agreement shall be renewed on the same terms and conditions contained herein for a term of one year from the date of expiration. The parties expressly agree that designation of a term and renewal provisions in this Agreement does not in any way limit the right of the parties to terminate this Agreement at any time as hereinafter provided. Reference herein to the term of this Agreement shall refer both to the initial term and any successive term as the context requires. Should the Company elect not to renew this Agreement for reasons other than death or Disability (as defined in Section 4.3 below), or Cause (as defined in Section 4.1 below), the Executive shall be eligible for the same severance payments and benefits as Executive would receive under Section 5.2 and on the same conditions as if Executive had been terminated by the Company without Cause, provided that Executive executes a Release of claims in favor of the Company as defined in Section 5.2(a). Provided however, Executive shall not receive any such severance payments and benefits unless he executes the Release within the consideration period specified therein and until the Release becomes effective and can no longer be revoked by Executive under its terms. Executives ability to receive such payment and benefits is further conditioned upon his: returning all Company property; complying with his post termination obligations under this Agreement and
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the Proprietary Information, Inventions, and Non-Competition Agreement between the Executive and the Company; and complying with the Release including without limitation any non-disparagement and confidentiality provisions contained therein. Executive shall not be eligible for any severance payments and benefits if either the Executive or the Company wishes to renew this Agreement on different terms than those contained herein.
3. Compensation and Benefits.
3.1 Salary. Executive will receive for Executives services to be rendered under this Agreement an initial annualized base salary at the rate of $420,000 per year, subject to annual review and adjustment by the Company in the discretion of the Board, payable subject to standard federal and state payroll withholding requirements in accordance with the Companys standard payroll practices (Base Salary).
3.2 Incentive Compensation. In addition to Executives Base Salary, the Executive shall be eligible during the term of this Agreement for such bonus payments and/or equity grants as awarded to the Executive by the Board.
3.3 Policies and Fringe Benefits. The employment relationship between the parties shall also be subject to the Companys personnel policies and procedures as they may be interpreted, adopted, revised or deleted from time to time in the Companys sole discretion. The Executive will be eligible to participate on the same basis as other executive level employees in the Companys benefit plans in effect from time to time during his employment. All matters of eligibility for coverage or benefits under any benefit plan shall be determined in accordance with the provisions of such plan. The Company reserves the right to change, alter, or terminate any benefit plan in its sole discretion. While this Agreement is in effect, the Company will provide the Executive with life insurance, for which the Executive may designate the beneficiary or beneficiaries in an amount of $150,000, and long-term disability insurance.
3.4 Reimbursement of Certain Expenses. The Company will reimburse Executive for reasonable business expenses in accordance with the Companys expense reimbursement policies.
4. Termination of Employment. Either Executive or the Company may terminate the employment relationship at any time, for any reason, in accordance with this Section 4.
4.1 Termination for Cause. At the election of the Company, the employment relationship may be terminated for Cause upon written notice by the Company to Executive specifying the provision or provisions of this Section 4.1 upon which the decision to terminate is based. For the purposes of this Section 4.1, Cause for termination shall be deemed to exist upon the occurrence of any of the following:
(a) a good faith finding by the Company that Executive has engaged in gross negligence or gross misconduct that is materially injurious to the Company;
(b) Executives conviction of a felony or crime involving fraud or embezzlement of Company property;
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(c) Executives material breach of this Agreement which, if curable, has not been cured by Executive within 60 days after he shall have received written notice from the Company stating with reasonable specificity the nature of such breach;
(d) material breach of fiduciary duty; or
(e) refusal to follow or implement a clear and reasonable directive of the Board as a whole, or an officer of the Company, provided that such directive is ethical and legal and which, if curable, has not been cured by Executive within 60 days after he shall have received written notice from the Company stating with reasonable specificity the nature of such refusal.
4.2 Termination by the Company Without Cause or by the Executive for Good Reason. At the election of the Company it may terminate Executives employment for reasons other than Cause, death or Disability, at any time upon written notice by the Company to Executive. The Executive may resign from Executives employment for Good Reason within sixty (60) days after the occurrence of one of the events specified below, by giving prior written notice, provided that Executive has not consented in writing to one of the specified events or been notified previously of the Companys intention to terminate Executives employment. As used in this Agreement Good Reason shall mean:
(a) The assignment to Executive of any duties or responsibilities which result in the material diminution of Executives position;
(b) a 5% or greater reduction by the Company in Executives annual Base Salary;
(c) a material change in the geographic location at which the Executive is required to perform services; or
(d) material breach by the Company of any material provision of this Agreement; provided however, that any actions taken by the Company to accommodate a disability of the Executive or pursuant to the Family and Medical Leave Act shall not be a Good Reason for purposes of this Agreement. Notwithstanding the occurrence of any of the events enumerated in Section 4.2 (a) through (d), such occurrence shall not be deemed to constitute Good Reason if, within 30 days after the giving by Executive of notice of the occurrence or existence of an event or circumstance specified above, such event or circumstance has been fully corrected (provided that such right of correction by the Company shall only apply to the first such notice given by Executive). In the absence of such correction, Executives resignation shall be effective thirty (30) days following the Executives notice.
4.3 Death or Disability. The Executives employment will terminate upon the death or determination of disability of Executive. As used in this Agreement, the determination of disability shall occur when the Executive is unable due to a physical or mental condition to perform the essential functions of his position with or without reasonable accommodation for 90 consecutive days, or 180 days in the aggregate whether or not consecutive, during any 360-day period, or based on the written certification by a licensed physician of the likely continuation of such condition for such period. A determination of disability shall be made by a physician satisfactory to both Executive and the Company, provided that if Executive and the Company do not agree on a physician, Executive and the Company shall each select a physician and these two together shall select a third physician, whose determination as to disability shall be binding on all parties. This definition shall be interpreted and applied consistent with the Americans with Disabilities Act, the Family and Medical Leave Act, and other applicable law.
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4.4 Termination by Executive without Good Reason. At the election of Executive, he may terminate employment upon not less than 30 days prior written notice by Executive to the Company.
5. Effect of Termination.
5.1 General; Termination for Cause or by the Executive Without Good Reason. In the event that Executives employment is terminated for any reason, the Company shall pay to Executive the compensation and benefits, including payment for accrued but untaken vacation days, payable to Executive through the last day of Executives actual employment by the Company. If the termination is by the Company for Cause pursuant to Section 4.1 or at the election of Executive pursuant to Section 4.4, the Company shall have no further obligations under this Agreement.
5.2 Termination by the Company Without Cause or by the Executive for Good Reason.
(a) Employee shall not receive any of the benefits pursuant to this Section 5.2 unless he executes a general release in favor of the Company, in a form acceptable to the Company and substantially similar to the form attached hereto as Schedule B (the Release) within the consideration period specified therein (the Release Review Period) and until the Release becomes effective and can no longer be revoked by Employee under its terms. Employees ability to receive benefits pursuant to this Section 5.2 is further conditioned upon his: returning all Company property; complying with his post termination obligations under this Agreement and the Proprietary Information, Inventions and Non-Competition Agreement; and complying with the Release including without limitation any non-disparagement and confidentiality provisions contained therein.
(b) In the event that Executives employment is terminated pursuant to Section 4.2 by the Company without Cause or by the Executive for Good Reason, the Company shall pay to Executive as severance twelve months of his annual Base Salary then in effect, together with an additional amount calculated by dividing by 365 the number of days employed in the year of termination and multiplying that number by the amount of the Executives previous years bonus (if any), such amount to be paid in one lump sum on the date the Release becomes effective, subject to standard payroll deductions and withholdings, provided, however, that if the Release Review Period begins in one tax year and ends in a later tax year, the payments under this Section 5.2(b) will be made following the date that the Release is effective that occurs in the later tax year . Additionally, if Executive timely elects and remains eligible for continued coverage under COBRA, the Company, as part of this Agreement, will pay that portion of Executives COBRA premiums it was paying prior to the Separation Date for twelve (12) months.
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(c) In the event Executives employment is terminated pursuant to Section 4.2, and not for Cause, death or Disability, all unvested equity awards shall become fully vested, all unvested stock options shall become fully vested and exercisable and any ISOs issued to Executive will automatically convert to a non-qualified options on the 91st day following termination, provided it has not been exercised, subject to the terms of the applicable stock plan and option agreement.
(d) Termination for Death or Disability. In the event that Executives employment is terminated by death or because of Disability pursuant to Section 4.3, in addition to the payment of accrued salary and unused vacation provided in Section 5.1, the Company shall pay to Executives estate or to Executive, as the case may be, compensation which would otherwise be payable to Executive through the end of the month in which such termination occurs, and payment for any accrued but untaken vacation days.
5.3 Code Sections 409A and 280G.
(a) In the event that the payments or benefits set forth in Section 5.2 of this Agreement constitute non-qualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the Code), then the following conditions apply to such payments or benefits:
(i) Any termination of Executives employment triggering payment of benefits under Section 5 must constitute a separation from service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits can commence. To the extent that the termination of Executives employment does not constitute a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated to be provided by Executive to Company at the time Executives employment terminates), any such payments under Section 5 that constitute deferred compensation under Section 409A of the Code shall be delayed until after the date of a subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 5.3(a) shall not cause any forfeiture of benefits on Executives part, but shall only act as a delay until such time as a separation from service occurs.
(ii) Notwithstanding any other provision with respect to the timing of payments under Section 5.2 if, at the time of Executives termination, Executive is deemed to be a specified employee of Company (within the meaning of Section 409A(a)(2)(B)(i) of the Code), then limited only to the extent necessary to comply with the requirements of Section 409A of the Code, any payments to which Executive may become entitled under Section 5 which are subject to Section 409A of the Code (and not otherwise exempt from its application) shall be withheld until the first (1st) business day of the seventh (7th) month following the termination of Executives employment, at which time Executive shall be paid an aggregate amount equal to the accumulated, but unpaid, payments otherwise due to Executive under the terms of Section 5.
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(b) It is intended that each installment of the payments and benefits provided under Section 5 of this Agreement shall be treated as a separate payment for purposes of Section 409A of the Code. Neither Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code.
(c) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner that avoids the inclusion of compensation in income under Section 409A of the Code, or the payment of increased taxes, excise taxes or other penalties under Section 409A of the Code. The parties intend this Agreement to be in compliance with Section 409A of the Code. Executive acknowledges and agrees that Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under this Agreement, including but not limited to consequences related to Section 409A of the Code.
(d) If any payment or benefit Executive would receive under Section 5.4 of this Agreement, when combined with any other payment or benefit Executive receives pursuant to a Change of Control (for purposes of this section, a Payment) would: (i) constitute a parachute payment within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax), then such Payment shall be either: (A) the full amount of such Payment; or (B) such lesser amount (with cash payments being reduced before equity compensation) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employments taxes, income taxes, and the Excise Tax, results in Executives receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.
5.4 Effect of a Change in Control.
(a) In the event either (i) Executives employment with the Company is terminated by the Company for reasons other than death or Disability (as defined above) within three months before or 12 months following a Change in Control (as defined below) or (ii) Executive terminates his employment for Good Reason (as defined above) within three months before or 12 months following a Change in Control (as defined below), then provided that Executive executes the Release (as defined in Section 5.2) within the consideration period specified therein and it becomes effective and can no longer be revoked by Executive under its terms, and provided further that Executive returns all Company property complies with his post termination obligations under this Agreement and the Proprietary Information, Inventions and Non-Competition Agreement, and complies with the Release including without limitation any non-disparagement and confidentiality provisions contained therein, Executive shall be entitled to the payments, equity acceleration and benefits described in this Section 5.4 in lieu of, and not in addition to, the benefits provided for in Section 5.2. The Company shall pay to the Executive, in lieu of the severance described in Section 5.2(a), severance equivalent to 18 months of his annual Base Salary then in effect, together with an additional amount calculated by dividing by 365 the number of days employed in the year of termination and multiplying that number by the amount of the Executives previous years bonus (if any), paid in a lump sum on the eighth day following the date the Release becomes effective, subject to standard payroll deductions and
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withholdings, provided, however, that if the Release Review Period begins in one tax year and ends in a later tax year, the payments under this Section 5.4(a) will be made following the date that the Release is effective that occurs in the later tax year. On the date of termination of Executives employment, any unvested equity awards granted to the Executive shall immediately vest and, in the case of stock options, become exercisable. Additionally, if Executive timely elects and remains eligible for continued coverage under COBRA, the Company, as part of this Agreement, will pay that portion of Executives COBRA premiums it was paying prior to the Separation Date for eighteen (18) months.
(b) Definition of Change in Control. For purposes of this Agreement, a Change in Control means the occurrence of any of the following events:
(i) a sale, lease or other disposition of all or substantially all of the assets of the Company;
(ii) a consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (and its parent) following the consolidation, merger or reorganization; or
(iii) any transaction (or series of related transactions involving a person or entity, or a group of affiliated persons or entities) in which in excess of fifty percent (50%) of the Companys outstanding voting power is transferred.
Notwithstanding the above, a Change in Control shall not be deemed to occur on account of the sale or acquisition of the Companys capital stock by institutional investors or venture capital firms for the primary purpose of obtaining financing for the Company.
6. No Mitigation. Executive shall have no obligation to mitigate any amount of any payment or benefit contemplated by this agreement.
7. Cooperation. For one month following termination of the Executives employment for any reason, and, additionally, for the number of months for which the Executive is receiving severance following termination, he will reasonably cooperate with the Company in all matters relating to the winding up of his pending work including, but not limited to, any litigation in which the Company is involved, and the orderly transfer of any such pending work to such other employees as may be designated by the Company. The Company will reimburse the Executive for any out-of-pocket expenses associated with such cooperation.
8. Insurance and Indemnification. The Company shall purchase a directors and officers insurance policy for which Executive shall receive usual and customary coverage for all acts undertaken as an officer of the Company. In addition, the Company shall indemnify Executive to the fullest extent permitted by its charter, bylaws and by law for all costs, charges, damages, fees including without limitation, attorneys fees or other expenses that Executive incurs or potentially may incur in connection with Executives duties herewith and also enter into an indemnification agreement with Executive.
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9. Pronouns. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa.
10. Complete Agreement. This Agreement constitutes the entire agreement between Executive and the Company with regard to the subject matter hereof. This Agreement is the complete, final, and exclusive embodiment of their agreement with regard to this subject matter and supersedes any prior oral discussions or written communications and agreements. This Agreement is entered into without reliance on any promise or representation other than those expressly contained herein, and it cannot be modified or amended except in writing signed by Executive and an authorized officer of the Company. The parties have entered into a separate Proprietary Information, Inventions, and Non-Competition Agreement and have or may enter into separate equity grant agreements. These separate agreements govern other aspects of the relationship between the parties, have or may have provisions that survive termination of the Executives employment under this Agreement, may be amended or superseded by the parties without regard to this agreement and are enforceable according to their terms without regard to the enforcement provision of this Agreement. In the event of a conflict between this Agreement and any other agreement between the Executive and the Company, this Agreement shall control.
11. Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and Executive.
12. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of New York and any action arising from or relating to this Agreement shall be commenced in the Federal or State courts located in New York County.
13. Notices. Any notices required hereunder to be in writing shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by electronic mail, telex or confirmed facsimile if sent during normal business hours on the day sent, and, if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company at its primary office location and to Employee at Employees address as listed on the Company payroll, or at such other address as the Company or the Employee may designate by ten (10) days advance written notice to the other.
14. Successors and Assigns.
14.1 Assumption by Successors. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise and whether or not after a Change in Control) to all or substantially all of the business or assets of the Company to assume in writing prior to such succession and to agree to perform its obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Successions by virtue of the sale of stock shall be governed by operation of law.
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14.2 Successor Benefits. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation into which the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of Executive are personal and shall not be assigned by Executive.
15. Miscellaneous.
15.1 No Waiver. No delay or omission by either party in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by either party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
15.2 Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
15.3 Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
15.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.
INTRA-CELLULAR THERAPIES, INC. |
EXECUTIVE | |||||
By: | /s/ Lawrence Hineline |
/s/ Suresh Durgam | ||||
LAWRENCE HINELINE | DR. SURESH DURGAM | |||||
CHIEF FINANCIAL OFFICER |
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SCHEDULE A
PERMITTED ACTIVITIES
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SCHEDULE B
RELEASE OF CLAIMS
This Release of Claims (Release) is made as of _______________ by and between ________________ (the Executive) and Intra-Cellular Therapies, Inc. (the Company) f(together, the Parties).
1. In consideration for Executives execution of this Release, the Company will make a severance payment to Executive in the amount set forth in the Employment Agreement between the Executive and the Company. This amount will be paid following the Effective Date (as defined below) in accordance with the Employment Agreement, provided the Company has received the executed Agreement from Executive on or before that date. This payment will be subject to standard payroll deductions and withholdings. If Executive timely elects and remains eligible for continued coverage under COBRA, the Company will pay that portion of Executives COBRA premiums it was paying prior to the Separation Date for the time period set forth in the Employment Agreement between the Executive and the Company.
2. Executive hereby releases, acquits and forever discharges the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, stockholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, which were known or through reasonable diligence should have been known, arising out of or in any way related to Releases, events, acts or conduct at any time prior to the date Executive executes this Settlement Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with Executives employment with the Company, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, any and all claims and causes of action that the Company, its parents and subsidiaries, and its and their respective officers, directors, agents, servants, employees, attorneys, shareholders, successors, assigns or affiliates:
| has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing; |
| has discriminated against him on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With Disabilities Act; the Family and Medical Leave Act; the New York State Law Human Rights Law; the New York City Human Rights Law; the Employee Retirement Income Security Act; Section 510; and the National Labor Relations Act; |
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| has violated any statute, public policy or common law (including but not limited to claims for retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; detrimental reliance; loss of consortium to him or any member of his family and/or promissory estoppel). |
Excluded from this Release are any claims which cannot be waived by law. Executive is waiving, however, his right to any monetary recovery should any governmental agency or entity, such as the EEOC or the DOL, pursue any claims on his behalf. Executive acknowledges that he is knowingly and voluntarily waiving and releasing any rights he may have under the ADEA, as amended. Executive also acknowledges that (i) the consideration given to his in exchange for the waiver and release in this Release is in addition to anything of value to which he was already entitled, and (ii) that he has been paid for all time worked, have received all the leave, leaves of absence and leave benefits and protections for which he is eligible, and have not suffered any on-the-job injury for which he has not already filed a claim. Executive further acknowledges that he has been advised by this writing that: (a) his waiver and release do not apply to any rights or claims that may arise after the execution date of this Release; (b) he has been advised hereby that he has the right to consult with an attorney prior to executing this Release; (c) he has twenty-one (21) days to consider this Release (although Executive may choose to voluntarily execute this Release earlier and if he does he will sign the Consideration Period waiver below); (d) he has seven (7) days following his execution of this Release to revoke the Release; and (e) this Release shall not be effective until the date upon which the revocation period has expired unexercised (the Effective Date), which shall be the eighth day after Executive executes this Release.
3. On or before the last day of Executives employment, Executive agrees to return to the Company all Company documents (and all copies thereof) and other Company property that Executive has had in his possession at any time, including, but not limited to, Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property (including, but not limited to, computers), credit cards, entry cards, identification badges and keys; and, any materials of any kind that contain or embody any proprietary or confidential information of the Company (and all reproductions thereof). Executive shall coordinate the return of Company property with Allen Fienberg, Vice President of Business Development or an appropriated officer designated by the Board of Directors.
4. Executive further agrees that both during and after Executives employment Executive acknowledges his continuing obligations under his Proprietary Information, Inventions and Non-Competition Agreement not to use or disclose any confidential or proprietary information of the Company and to refrain from certain solicitation and competitive activities.
5. It is understood that Executive shall hold the provisions of this Release in strictest confidence and shall not publicize or disclose it in any manner whatsoever; provided, however, that: (a) Executive may disclose this Release to his immediate family; (b) Executive may disclose this Release in confidence to his attorney, accountant, auditor, tax preparer, and financial advisor; and (c) Executive may disclose this Release insofar as such disclosure may be required by law.
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6. Executive agrees not to disparage the Company, and the Companys attorneys, directors, managers, partners, employees, agents and affiliates, in any manner likely to be harmful to them or their business, business reputation or personal reputation; provided that Executive may respond accurately and fully to any question, inquiry or request for information when required by legal process.
7. This Release does not constitute an admission by the Company of any wrongful action or violation of any federal, state, or local statute, or common law rights, including those relating to the provisions of any law or statute concerning employment actions, or of any other possible or claimed violation of law or rights.
8. Executive agrees that upon any breach of this Release Executive will forfeit all amounts paid or owing to Executive under this Release. Executive further acknowledges that it may be impossible to assess the damages caused by violation of the terms of paragraphs 3, 4, 5 and 6 of this Release and further agree that any threatened or actual violation or breach of those paragraphs of this Release will constitute immediate and irreparable injury to the Company. Executive therefore agrees that any such breach of this Release is a material breach of this Release, and, in addition to any and all other damages and remedies available to the Company upon Executives breach of this Release, the Company shall be entitled to an injunction to prevent Executive from violating or breaching this Release. Executive agrees that if the Company is successful in whole or part in any legal or equitable action against Executive under this Release, Executive agree to pay all of the costs, including reasonable attorneys fees, incurred by the Company in enforcing the terms of this Release.
9. This Release constitutes the complete, final and exclusive embodiment of the entire Release between the Parties with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Release may not be modified or amended except in a writing signed by both Executive and a duly authorized officer of the Company. This Release will bind the heirs, personal representatives, successors and assigns of the Parties, and inure to the benefit of the Parties, their heirs, successors and assigns. If any provision of this Release is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Release and the provision in question will be modified by the court so as to be rendered enforceable. This Release will be deemed to have been entered into and will be construed and enforced in accordance with the laws of the State of New York as applied to contracts made and to be performed entirely within New York.
IN WITNESS WHEREOF, the Parties have duly authorized and caused this Agreement to be executed as follows:
INTRA-CELLULAR THERAPIES, INC. | ||||||
|
By: |
| ||||
[NAME] | [Name] | |||||
Date |
Date |
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Exhibit 10.13
INTRA-CELLULAR THERAPIES, INC.
EMPLOYEE PROPRIETARY INFORMATION,
INVENTIONS, AND NON-COMPETITION AGREEMENT
In consideration of my employment or continued employment by INTRA-CELLULAR THERAPIES, INC. (the Company), and the compensation now and hereafter paid to me, I hereby agree as follows:
1. | NONDISCLOSURE. |
1.1 Recognition of Companys Rights; Nondisclosure. At all times during my employment and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Companys Proprietary Information (defined below), except as such disclosure, use or publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain Companys written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to my work at Company and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information shall be the sole property of the Company and its assigns. I have been informed and acknowledge that the unauthorized taking of the Companys trade secrets may subject me to civil and/or criminal penalties.
1.2 Proprietary Information. The term Proprietary Information shall mean any and all confidential and/or proprietary knowledge, data or information of the Company. By way of illustration but not limitation, Proprietary Information includes (a) tangible and intangible information relating to antibodies and other biological materials, cell lines, samples of assay components, media and/or cell lines and procedures and formulations for producing any such assay components, media and/or cell lines, formulations, products, processes, know-how, designs, formulas, methods, developmental or experimental work, clinical data, improvements, discoveries, plans for research, new products (Inventions); (b) marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is understood that, at all such times, I am free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill, knowledge, know-how and experience to whatever extent and in whichever way I wish.
1.3 Third Party Information. I understand, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information (Third Party Information) subject to a duty on the Companys part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company) or use, except in connection with my work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the Company I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company.
2. | ASSIGNMENT OF INVENTIONS. |
2.1 Proprietary Rights. The term Proprietary Rights shall mean all trade secret, patent, copyright, mask work and other intellectual property rights or moral rights throughout the world. Moral rights refers to any rights to claim authorship of an Invention or to object to or prevent the modification of any Invention, or to withdraw from circulation or control the publication or distribution of any Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a moral right.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have set forth on Exhibit A (Previous Inventions) attached hereto a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as Prior Inventions). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit A for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company product, process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions without the Companys prior written consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are hereinafter referred to as Company Inventions.
2.4 Unassigned Inventions. I recognize that this Agreement will not be deemed to require assignment of any Invention that was developed entirely on my own time without using the Companys equipment, supplies, facilities, or trade secrets and neither related to the Companys actual or anticipated business, research or development, nor resulted from work performed by me for the Company.
2.5 Obligation to Keep Company Informed. During the period of my employment and for six (6) months after termination of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf within a year after termination of employment. The Company will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to the Company pursuant to this Agreement.
2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular Company Invention to a third party, including without limitation the United States, as directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are works made for hire, pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Inventions in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my termination for the time actually spent by me at the Companys request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.
3. | RECORDS. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all Proprietary Information developed by me and all Inventions made by me during the period of my employment at the Company, which records shall be available to and remain the sole property of the Company at all times. |
4. | DUTY OF LOYALTY DURING EMPLOYMENT. I understand that my employment with the Company requires my full attention and effort. I agree that during the period of my employment by the Company I will not, without the Companys express written consent, engage in any employment or business activity other than for the Company, including but not limited to employment or business activity which is competitive with, or would otherwise conflict with, my employment by the Company. |
5. | NO SOLICITATION OF EMPLOYEES, CONSULTANTS, CONTRACTORS OR CUSTOMERS. I agree that for the period of my employment by the Company and for one (1) year after the date my employment by the Company ends for any reason, including but not limited to voluntary termination by me or involuntary termination by the Company, I will not, either directly or through others, (i) solicit or attempt to solicit any employee of the Company to end his or her relationship with the Company; and (ii) solicit any consultant, contractor, or customer of the Company, with whom I had contact or whose identity I learned as a result of my employment with the Company to diminish or materially alter its relationship with the Company. |
The parties agree that for purposes of this Agreement, a customer is any person or entity to which the Company has provided goods or services at any time during the period commencing six (6) months prior to my employment with the Company and ending on the date my employment with the Company ends.
6. | NON-COMPETE PROVISION. I agree that for the period of my employment with the Company, and for the period of one (1) year after the later of (1) the date my employment ends for any reason, including but not limited to voluntary termination by me or involuntary termination by the Company; or (2) the date a court of competent jurisdiction enters an order enforcing this provision, I will not provide services, similar to those I provided to the Company, to any person or entity in competition (as defined below) with the Company. I acknowledge that this non-compete provision is limited to the types of activities and services I provided in my employment with the Company. |
At the present time, the Company engages in the research and discovery of genes and their function, and therefore entities and individuals which provide similar products or services are defined as in competition with the Company. The parties understand that the scope and nature of my activities and services, and the Companys business, products or services, may change as the Company develops. The parties agree that the scope of this provision will change to cover any changes in my activities or services, as well as any changes in the Companys business, products or services, during my employment.
7. | NO CONFLICTING AGREEMENT OR OBLIGATION. I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement or obligation of any kind made prior to my employment by the Company, including agreements or obligations I may have with prior employers or entities for which I have provided services. I have not entered into, and I agree I will not enter into, any agreement or obligation either written or oral in conflict herewith. |
8. | RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Proprietary Information of the Company. I further agree that any property situated on the Companys premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. Prior to leaving, I will cooperate with the Company in completing and signing the Companys termination statement. |
9. | LEGAL AND EQUITABLE REMEDIES. I recognize that in the course of employment with the Company, I will have access to Proprietary Information, to Third Party Information, and to employees, consultants, contractors, clients, and customers of the Company. I also recognize that the services I will be employed to provide are personal and unique. I understand that because of this the Company may sustain irreparable injury if I violate this Agreement. In order to limit or prevent such irreparable injury, the Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement. |
10. | NOTICES. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing. |
11. | NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the Company, I authorize the Company to provide notice of my rights and obligations under this Agreement to my subsequent employer and to any other entity or person to whom I provide services. |
12. | GENERAL PROVISIONS. |
12.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of New York, as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents. I hereby expressly consent to the personal jurisdiction of the state and federal courts for New York County, New York in any lawsuit filed there against me by Company arising from or related to this Agreement.
12.2 Severability. In case any one or more of the provisions, subsections, or sentences contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
12.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.
12.4 Survival. The provisions of this Agreement shall survive the termination of my employment and the assignment of this Agreement by the Company to any successor in interest or other assignee.
12.5 Employment At-Will. I agree and understand that I am employed at-will, and that nothing in this Agreement shall change this at-will status or confer any right with respect to continuation of employment by the Company, nor shall it interfere in any way with my right or the Companys right to terminate my employment at any time, with or without cause.
12.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
12.7 Entire Agreement. The obligations pursuant to Sections 1 and 2 of this Agreement shall apply to any time during which I was previously employed, or am in the future employed, by the Company as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment with the Company.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: September 12, 2018
/s/ Suresh Durgam | ||
(Signature) | ||
Dr. Suresh Durgam | ||
(Printed Name) | ||
ACCEPTED AND AGREED TO: | ||
INTRA-CELLULAR THERAPIES, INC. | ||
By: | /s Lawrence Hineline | |
Title: | Chief Financial Officer | |
430 E. 29th St. | ||
(Address) | ||
New York, NY |
Dated: September 18, 2018
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the following Registration Statements:
(1) Registration Statement (Form S-3 No. 333-235817) of Intra-Cellular Therapies, Inc.,
(2) Registration Statement (Form S-3 No. 333-233537) of Intra-Cellular Therapies, Inc.,
(3) Registration Statement (Form S-8 No. 333-243716) pertaining to the Intra-Cellular Therapies, Inc. Amended and Restated 2018 Equity Incentive Plan of Intra-Cellular Therapies, Inc.,
(4) Registration Statement (Form S-8 No. 333-236828) pertaining to the Intra-Cellular Therapies, Inc. 2019 Inducement Award Plan of Intra-Cellular Therapies, Inc.,
(5) Registration Statement (Form S-8 No. 333-225799) pertaining to the Intra-Cellular Therapies, Inc. 2018 Equity Incentive Plan of Intra-Cellular Therapies, Inc.,
(6) Registration Statement (Form S-8 No. 333-205070) pertaining to the Intra-Cellular Therapies, Inc. Amended and Restated 2013 Equity Incentive Plan of Intra-Cellular Therapies, Inc.,
(7) Registration Statement (Post-Effective Amendment No. 3 to Form S-1 on Form S-3 No. 333-191238) of Intra-Cellular Therapies, Inc., and
(8) Registration Statement (Form S-8 No. 333-193310) pertaining to the ITI, Inc. 2003 Equity Incentive Plan, as amended, and the Intra-Cellular Therapies, Inc. 2013 Equity Incentive Plan of Intra-Cellular Therapies, Inc.;
of our reports dated March 1, 2022, with respect to the consolidated financial statements of Intra-Cellular Therapies, Inc. and the effectiveness of internal control over financial reporting of Intra-Cellular Therapies, Inc. included in this Annual Report (Form 10-K) of Intra-Cellular Therapies, Inc. for the year ended December 31, 2021.
/s/ Ernst & Young LLP
Baltimore, Maryland
March 1, 2022
Exhibit 31.1
CERTIFICATIONS UNDER SECTION 302
I, Sharon Mates, Ph.D., certify that:
1. I have reviewed this annual report on Form 10-K of Intra-Cellular Therapies, Inc.;
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 light of 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 registrants 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 material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which 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 provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants 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 adversely affect the registrants 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 registrants internal control over financial reporting.
Date: March 1, 2022
/s/ Sharon Mates, Ph.D. |
Sharon Mates, Ph.D. |
Chairman, President and Chief Executive Officer (principal executive officer) |
Exhibit 31.2
CERTIFICATIONS UNDER SECTION 302
I, Lawrence J. Hineline, certify that:
1. I have reviewed this annual report on Form 10-K of Intra-Cellular Therapies, Inc.;
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 light of 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 registrants 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 material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which 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 provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants 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 adversely affect the registrants 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 registrants internal control over financial reporting.
Date: March 1, 2022
/s/ Lawrence J. Hineline |
Lawrence J. Hineline |
Senior Vice President of Finance and Chief Financial Officer (principal financial officer and principal accounting officer) |
Exhibit 32.1
CERTIFICATIONS UNDER SECTION 906
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), each of the undersigned officers of Intra-Cellular Therapies, Inc., a Delaware corporation (the Company), does hereby certify, to such officers knowledge, that:
The Annual Report for the year ended December 31, 2021 (the Form 10-K) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and the information contained in the Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: March 1, 2022 | /s/ Sharon Mates, Ph.D. | |
Sharon Mates, Ph.D. | ||
Chairman, President and Chief Executive Officer (principal executive officer) | ||
Dated: March 1, 2022 | /s/ Lawrence J. Hineline | |
Lawrence J. Hineline | ||
Senior Vice President of Finance and Chief Financial Officer (principal financial officer and principal accounting officer) |