Item 9A. Controls and Procedures
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures:
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Securities Exchange Act of 1934, as amended, or the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, we recognize that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and in reaching a reasonable level of assurance, we are required to apply our judgment in evaluating the cost-benefit relationship of possible controls and procedures.
As required by Rule 13a‑15(b) under the Exchange Act, our management, under the supervision and with the participation of our principal executive officer and principal financial officer, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as such term is defined in Rules 13a‑15(e) and 15d‑15(e) under the Exchange Act) as of December 31, 2021. Based on such evaluation, our principal executive officer and principal financial officer have concluded that, as of December 31, 2021, our disclosure controls and procedures were effective at the reasonable assurance level.
Management’s Annual Report on Internal Control Over Financial Reporting:
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management, including our Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2021 based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework) (the COSO criteria). Based on the above evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2021.
Our independent registered public accounting firm, Ernst & Young LLP, has audited the financial statements included in this Annual Report and has issued a report on the effectiveness of our internal control over financial reporting. The report of Ernst & Young LLP is included below.
Changes in Internal Control over Financial Reporting
T here were no other changes in our internal controls over financial reporting identified in connection with the evaluation required by Rules 13a‑15(d) and 15d‑15(d) of the Exchange Act that occurred during the fiscal quarter ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
Cytokinetics, Incorporated
Opinion on Internal Control Over Financial Reporting
We have audited Cytokinetics, Incorporated’s internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Cytokinetics, Incorporated (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the 2021 consolidated financial statements of the Company and our report dated February 25, 2022 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) 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 (3) 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.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young LLP
Redwood City, California
February 25, 2022
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I TEM 9B. O THE R INFORMATION
None.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
None.
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OF FICERS AND CORPORATE GOVERNANCE
The information regarding our directors and executive officers, our director nominating process and our audit committee is incorporated by reference from our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders, where it appears under the headings “Board of Directors” and “Executive Officers.”
Section 16(a) Beneficial Ownership Reporting Compliance
The information regarding our Section 16 beneficial ownership reporting compliance is incorporated by reference from our definitive Proxy Statement described above, where it appears under the headings “Section 16(a) Beneficial Ownership Reporting Compliance.”
Code of Ethics
We have adopted a Code of Ethics that applies to all our directors, officers and employees. We publicize the Code of Ethics through posting the policy on our website, www.cytokinetics.com. We will disclose on our website any waivers of, or amendments to, our Code of Ethics within four business days following the date of such amendment or waiver.
ITEM 11. EXECUT IVE COMPENSATION
The information required by this item is incorporated by reference from our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders, where it appears under the heading “Executive Compensation.”
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this item is incorporated by reference from our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders, where it appears under the headings “Certain Business Relationships and Related Party Transactions” and “Corporate Governance.”
ITEM 13. CERTAIN RELATIONSHIPS AND RELATE D TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this item is incorporated by reference from our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders, where it appears under the headings “Certain Business Relationships and Related Party Transactions” and “Board of Directors.”
ITEM 14. PRINCIPAL ACCOU NTING FEES AND SERVICES
The information required by this item is incorporated by reference from our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders, where it appears under the headings “Independent Registered Public Accounting Firm Services and Fees.”
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PART IV
ITEM 15. EXHIBTS AND FINAN CIAL STATEMENT SCHEDULES
a)
The following documents are filed as part of this Form 10-K:
( 1)
Financial Statements:
Our Consolidated Financial Statements are listed in the “Index to Consolidated Financial Statements” under Part II. Item 8 of this Annual Report on Form 10‑K.
(2)
Financial Statement Schedules:
Financial statement schedules have been omitted in this report because they are not applicable, not required under the instructions, or the information requested is set forth in the consolidated financial statements or related notes thereto.
b)
Exhibits:
EXHIBIT INDEX
Incorporated by Reference
Exhibit
Exh.
Filed
No.
Exhibits
Form
File No.
Filing Date
No.
Herewith
3.1
Amended and Restated Certificate of Incorporation.
S-3
333-174869
June 13, 2011
3.1
3.2
Certificate of Amendment of Amended and Restated Certificate of Incorporation.
10-Q
000-50633
August 4, 2011
3.2
3.3
Certificate of Amendment of Amended and Restated Certificate of Incorporation.
8-K
000-50633
June 25, 2013
5.1
3.4
Certificate of Amendment of Amended and Restated Certificate of Incorporation
8-K
000-50633
May 20, 2016
3.1
3.5
Amended and Restated Bylaws.
S-1
333-112261
January 27, 2004
3.2
4.1
Specimen Common Stock Certificate.
10-Q
000-50633
May 9, 2007
4.1
4.2
Form of Warrant
10-Q
000-50633
August 6, 2012
4.6
4.3
Form of Common Stock Warrant Issued Pursuant to that certain Loan and Security Agreement, dated as of October 19, 2015, by and among the Company, Oxford Finance LLC and Silicon Valley Bank
10-K
000-50633
March 3, 2016
4.6
4.4
Form of Warrant Issuable to Oxford Finance LLC
10-Q
000-50633
August 9, 2019
4.2
4.5
Form of Warrant Issuable to Silicon Valley Bank
10-Q
000-50633
August 9, 2019
4.3
4.6
Base Indenture, dated November 13, 2019, between the Company and U.S. Bank National Association, as Trustee
8-K
000-50633
November 13, 2019
4.1
4.7
First Supplemental Indenture, dated November 13, 2019, between the Company and U.S. Bank National Association, as Trustee (including the form of 4.00% Convertible Senior Note due 2026)
8-K
000-50633
November 13, 2019
4.2
4.8
Description of Securities
10-K
000-50633
March 4, 2020
4.8
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Incorporated by Reference
Exhibit
Exh.
Filed
No.
Exhibits
Form
File No.
Filing Date
No.
Herewith
10.1
Lease, dated July 24, 2019, by and between the Company and KR Oyster Point 1, LLC
10-Q
000-50633
November 1, 2019
10.52
10.2
First Amendment to Lease, dated May 12, 2020, by and between the Company and KR Oyster Point 1, LLC
10-K
000-50633
February 26, 2021
10.59
10.3
Second Amendment to Lease, dated January 26, 2021, by and between the Company and KR Oyster Point 1, LLC
10-K
000-50633
February 26, 2021
10.60
10.4
Third Amendment to Lease, dated January 26, 2021, by and between the Company and KR Oyster Point 1, LLC
X
10.5
Form of Indemnification Agreement between the Company and each of its directors and executive officers
10-Q
000-50633
August 5, 2008
10.1
10.6+
Amended and Restated Executive Employment Agreement, dated May 21, 2007, by and between the Company and Robert Blum
10-Q
000-50633
August 5, 2008
10.69
10.7+
Form of Amendment No. 1 to Amended and Restated Executive Employment Agreements
10-K
000-50633
March 12, 2009
10.68
10.8+
Amended and Restated 2004 Equity Incentive Plan
10-Q
000-50633
November 5, 2021
10.2
10.9+
Amended and Restated 2015 Employee Stock Purchase Plan
DEF 14A
000-50633
March 26, 2020
Appendix A
10.10+
Form of Option Agreement
10-K
000-50633
March 15, 2013
10.46
10.11+
Form of Restricted Stock Unit Award Agreement
10-K
000-50633
March 15, 2013
10.47
10.12+
Form of Executive Employment Agreement between the Company and its executive officers
10-K
000-50633
March 7, 2014
10.39
10.13# †
License and Collaboration Agreement, dated July 14, 2020, by and between the Company and Ji Xing Pharmaceuticals Limited
10-Q/A
000-50633
March 11, 2021
10.1
10.14
License and Collaboration Agreement, dated December 20, 2021, by and between the Company and Ji Xing Pharmaceuticals Limited .
X
10.15 #
Common Stock Purchase Agreement, dated December 20, 2021, by and between the Company and RTW Master Fund, Ltd.
X
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Incorporated by Reference
Exhibit
Exh.
Filed
No.
Exhibits
Form
File No.
Filing Date
No.
Herewith
10.16 #
Common Stock Purchase Agreement, dated December 20, 2021, by and between the Company and RTW Innovation Master Fund, Ltd.
X
10.17 #
Common Stock Purchase Agreement, dated December 20, 2021, by and between the Company and RTW Venture Fund Limited
X
10.18 #
Development Funding Loan Agreement, dated January 7, 2022, by and among Royalty Pharma Development Funding, LLC and the Company
X
10.19 # †
Royalty Purchase Agreement, dated February 1, 2017, by and between the Company and RPI Finance Trust
10-K
000-50633
March 6, 2017
10.44
10.20#
Amendment No. 1 to Royalty Purchase Agreement, dated January 7, 2022, by and between the Company and RPI Finance Trust
X
10.21#
Revenue Participation Right Purchase Agreement, dated January 7, 2022, by and between the Company and Royalty Pharma Investments 2019 ICAV
X
23.1
Consent of independent registered public accounting firm
X
24.1
Power of Attorney (included in the signature page to this report)
X
31.1
Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
X
31.2
Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
X
31.3
Certification of Principal Accounting Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
X
32.1
Certifications of the Principal Executive Officer, the Principal Financial Officer, and the Principal Accounting Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350) (1)
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
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Incorporated by Reference
Exhibit
Exh.
Filed
No.
Exhibits
Form
File No.
Filing Date
No.
Herewith
101.SCH
Inline XBRL Taxonomy Extension Schema Document
X
101.CAL
Inline XBRL Taxonomy Extension Calculation Linkbase Document
X
101.DEF
Inline XBRL Taxonomy Extension Definition Linkbase Document
X
101.LAB
Inline XBRL Taxonomy Extension Label Linkbase Document
X
101.PRE
Inline XBRL Taxonomy Extension Presentation Linkbase Document
X
104
Cover Page Interactive Data File (formatted as Inline XBRL in Exhibit 101)
X
#
Portions of this Exhibit have been omitted as being immaterial and would be competitively harmful if publicly disclosed
†
Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K and will be furnished on a supplemental basis to the Securities and Exchange Commission upon request
+
Management contract or compensatory plan.
(1)
This certification accompanies the Form 10-K to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of the Registrant under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-K), irrespective of any general incorporation language contained in such filing.
(b)
Exhibits
The exhibits listed under Item 15(a)(3) hereof are filed as part of this Form 10-K, other than Exhibit 32.1 which shall be deemed furnished.
(c)
Financial Statement Schedules
None — All financial statement schedules are omitted because the information is inapplicable or presented in the notes to the financial statements.
ITEM 16. FORM 10-K SUMMARY
None.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
CYTOKINETICS, INCORPORATED
By:
/ S / ROBERT I. BLUM
Robert I. Blum
President, Chief Executive Officer and Director
Dated: February 25, 2022
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert I. Blum, Ching Jaw, Mark A. Schlossberg and Robert Wong, and each of them, his true and lawful attorneys-in-fact, each with full power of substitution, for him in any and all capacities, to sign any amendments to this Annual Report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact or their substitute or substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities and Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ R OBERT I. B LUM
Robert I. Blum
President, Chief Executive Officer and Director (Principal Executive Officer)
February 25, 2022
/s/ C HING W. J AW
Ching W. Jaw
Senior Vice President, Chief Financial Officer (Principal Financial Officer)
February 25, 2022
/s/ R OBERT C. W ONG
Robert C. Wong
Vice President, Chief Accounting Officer (Principal Accounting Officer)
February 25, 2022
/s/ L. P ATRICK G AGE , P H D.
L. Patrick Gage, Ph.D.
Chairman of the Board of Directors
February 25, 2022
/s/ S ANTO J. C OSTA
Santo J. Costa
Director
February 25, 2022
/s/ J OHN T. H ENDERSON , M.B. C H .B.
John T. Henderson, M.B. Ch.B.
Director
February 25, 2022
/s/ E DWARD M. K AYE , M.D.
Edward M. Kaye, M.D.
Director
February 25, 2022
/s/ B. L YNNE P ARSHALL , E S q.
B. Lynne Parshall, Esq.
Director
February 25, 2022
/s/ S ANDFORD D. S MITH
Sandford D. Smith
Director
February 25, 2022
/s/ W ENDELL W IERENGA , P H .D.
Wendell Wierenga, Ph.D.
Director
February 25, 2022
/s/ N ANCY J. W YSENSKI
Director
February 25, 2022
Nancy J. Wysenski
/s/ M UNA B HANJI
Director
February 25, 2022
Muna Bhanji
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