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For example, we have limited access to our New Jersey office as a result of state-imposed restrictions.
+Added: Furthermore, the recent Biden administration's executive order requiring all on-site and remote federal employees, contractors and sub-contractors to be vaccinated against COVID-19 or receive an approved medical or religious exemption by December 8, 2021 may apply to us because of our Federal Supply Schedule Medical Equipment and Supply contract.
+Added: Failure to comply with the executive order could lead to loss of the contract, which could have a material adverse effect on our business, revenues, financial condition and result of operations.
+Added: In light of the executive order, we implemented a mandatory COVID-19 vaccination policy for all employees.
+Added: There are, however, ongoing challenges in the federal courts regarding the validity of the executive order, which could lead to future changes to our own policies depending on the outcome of those cases.
+Added: All of our U.S.
+Added: employees have to provide proof of vaccination sub ject to medical and religious exemptions.
+Added: To the extent an employee qualifies for a medical or religious exemption, we will collaborate with the exempt employee to explore reasonable accommodation options that may permit the employee to perform the essential functions of their job without being vaccinated.
+Added: We will be unable to accommodate an employee's exemption request if such accommodation would prevent an employee from performing the essential functions of their job, or would result in undue hardship, which includes, but not limited to, a risk of harm to others.
+Added: There can be no assurance that this policy or any future policies whether adopted in order to comply with applicable rules and regulations or otherwise will not have an adverse effect on our recruitment and retention of, and relations with our employees.
The coronavirus pandemic may also impact our ability to sell our product, ship our product on a timely basis and may increase our costs.
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Officially imposed quarantines and self-quarantines could also interfere with patients’ ability to see a health care provider and obtain our gammaCore therapy.
−Removed: The degree to which coronavirus impacts our results will continue to depend on future developments that are highly uncertain and cannot be predicted, including, without limitation, the timing, extent, trajectory and duration of the pandemic, the development, rollout and availability of effective treatments and vaccines, the imposition of protective public safety measures, and how quickly and to what extent normal economic and operating conditions can resume, if at all.
+Added: The degree to which coronavirus impacts our results will continue to depend on future developments that are highly uncertain and cannot be predicted, including, without limitation, the timing, extent, trajectory and duration of the pandemic, the development, rollout and availability of effective treatments and vaccines, the imposition of protective public safety measures, vaccine mandates, the transmissibility and effects of new coronavirus variants such as those experienced with respect to the Omicron variant beginning in early December 2021, and how quickly and to what extent normal economic and operating conditions can resume, if at all.
These uncertainties may result in delays or modifications to our plans, initiatives and results.
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Developments related to coronavirus have been rapidly changing, and additional impacts and risks may arise that we are not aware of or able to appropriately respond to currently.
−Removed: Our ability to market gammaCore Sapphire CV under the EUA may be adversely affected to the extent that (i) the coronavirus pandemic subsides, regardless of whether or not the EUA is terminated, revoked or expires, and (ii) other treatments or vaccines for coronavirus are developed and made available.
−Removed: Furthermore, there are a number of preventative vaccines in development with two having received an Emergency Use Authorization approval and others potentially nearing regulatory approval.
−Removed: Additionally, the United States and other countries around the world have recently begun to approve and commence distributing COVID-19 vaccines in their jurisdictions.
−Removed: The broad distribution of COVID-19 vaccines may reduce demand for gammaCore Sapphire CV treatment as it may no longer be considered medically necessary.
More generally, in the future, our business, financial results, and financial condition may be negatively impacted by the effects of other disease outbreaks, epidemics, pandemics, or similar widespread public health concerns.
Risk Related to our Financial Position, Operating Results and Need for Additional Capital
+Added: We recently launched new cash pay initiatives, including our gConcierge and gCDirect programs, and patients and providers may be slow to adopt these programs or their pricing which could adversely impact our business and financial results.
+Added: We currently have a small cash-pay business channel, which includes the recently launched e-commerce websites for our gConcierge and gCDirect programs, and intend to expand our direct-to-consumer business channel by increasing our advertising and promotional activities in 2022.
+Added: This will require significant investment and expansion of our sales and marketing capabilities and further development by us and third parties of telehealth features relating to this business channel.
+Added: We have limited experience with scaling and commercializing a direct-to-consumer cash-pay business channel in the United States and abroad, which may impact our ability to rely on this channel as a positive source of revenue.
+Added: If we are unsuccessful in executing our commercialization efforts in this business channel and do not achieve the sales levels that we expect, we will be unable to recover these investments.
+Added: Additionally, there is a risk that potentially lower pricing of our therapy in the direct-to-consumer cash-pay business channel could lead to lower pricing and reimbursement in our legacy business channels and, therefore, have an adverse impact on our financial position and results of operations, and heighten our need to obtain additional capital to support our business.
+Added: If third-party payers do not provide adequate coverage and reimbursement for the use of gammaCore, it may affect our ability to generate significant revenues.
+Added: Some of our success in marketing and commercializing gammaCore depends and will continue to depend on whether U.S.
+Added: and international government health administrative authorities, private health insurers and other payer organizations provide adequate coverage and reimbursement for the cost of our products.
+Added: Many third-party payers do not currently cover VNS for any indications other than epilepsy because they have determined all other VNS modalities to be investigational or experimental.
+Added: If physicians or insurers do not find our clinical data compelling or wish to wait for additional studies, they may choose not to use or provide coverage and reimbursement for gammaCore.
+Added: We cannot provide assurance that data we or others may generate in the future will be consistent with that observed in our existing clinical studies, or that our current or future published clinical evidence will be sufficient to obtain adequate coverage and reimbursement for our products.
+Added: Moreover, if we cannot obtain adequate coverage for and reimbursement of the cost of our products, we cannot provide assurance that patients will be willing to incur the full cost of our gammaCore therapy.
+Added: In the United States, we expect to derive nearly all of our sales from prescriptions of gammaCore written by physicians.
+Added: Access to adequate coverage and reimbursement by third-party payers for our gammaCore therapy or the willingness of patients to bear the entire cost of our therapy is essential in the acceptance of our products by physician, patients and other customers for our therapy.
+Added: Third-party payers, whether foreign or domestic, or governmental or commercial, are developing increasingly sophisticated methods of controlling healthcare costs.
+Added: In addition, in the United States, no uniform policy of coverage and reimbursement for our gammaCore therapy exists among third-party payers.
+Added: Therefore, coverage and reimbursement for our gammaCore therapy can differ significantly from payer to payer.
+Added: In addition, payers continually review new technologies for possible coverage and can, without notice, deny coverage for these new products and procedures.
+Added: As a result, the coverage determination process is often a time-consuming and costly process that will require us to provide scientific and clinical support for the use of our gammaCore therapy to each payer separately, with no assurance that coverage and adequate reimbursement will be obtained or maintained if obtained.
+Added: Reimbursement systems in international markets vary significantly by country and by region within some countries, and reimbursement approvals must be obtained on a country-by-country basis.
+Added: In many international markets, a product must be approved for reimbursement before it can be approved for sale in that country.
+Added: Further, many international markets have government-managed healthcare systems that control reimbursement for new devices and procedures.
+Added: In most markets, there are private insurance systems as healthcare systems that control reimbursement for new devices and procedures.
+Added: In most markets, there are private insurance systems as well as government-managed systems.
+Added: If sufficient and timely coverage and reimbursement is not available for our current or future products or if reimbursement rates change, in either the United States or internationally, the demand for our product and our revenues will be adversely affected.
+Added: We have a limited history commercializing our gammaCore therapy through direct-to-consumer channels and commercial success is uncertain.
+Added: As a small company with a limited history of selling our gammaCore therapy and which has primarily focused on physician adoption and commercial payer and government sales channel to date, we have limited experience engaging in direct-to-consumer commercial activities and limited established relationships with marketing agencies, analytic platforms, and social media following, all of which is becoming increasingly important to direct-to-consumer initiatives.
+Added: We may be unable to gain broader market acceptance in direct-to-consumer channels of gammaCore therapy in the United States or abroad for a number of reasons, including:
+Added: established competitors with strong relationships with customers, including ecommerce and telehealth platforms, systems, marketing agencies and a critical mass of existing patients ;
+Added: limitations in our ability to demonstrate differentiation and advantages of our product compared to competing products and the relative safety, efficacy and ease of use of our product;
+Added: the limited size of our marketing team and the learning curve required to gain experience selling our product direct-to-consumer;
+Added: insufficient financial or other resources to support our commercialization efforts necessary to reach profitability;
+Added: the introduction and market acceptance of new, more effective or less expensive competing products and technologies.
+Added: Any significant disruption to our e-commerce business could result in lost sales.
+Added: We recently launched new cash pay initiatives for our gammaCore therapy, including our e-commerce websites in both the United States and United Kingdom.
+Added: Online sales are subject to a number of risks.
+Added: System interruptions or delays could cause potential patients to fail to purchase our products and could harm our brand.
+Added: The operation of our direct-to-consumer ecommerce business depends on our ability to maintain the efficient and uninterrupted operation of online prescription generation, order-taking and fulfillment operations.
+Added: Our ecommerce operations subject us to certain risks that could have an adverse effect on our operating results, including risks related to the computer systems that operate our website and related support systems, such as system failures, viruses, denial of service attacks, computer hackers, data privacy breaches and other disruptions.
+Added: If we are unable to continually add software and hardware, effectively upgrade our systems and network infrastructure and take other steps to improve the efficiency of our systems, system interruptions or delays could occur that would adversely affect our operating results.
+Added: We utilize third-party vendors for our customer-facing ecommerce technology, portions of our prescription generation, order management system, and fulfillment internationally.
+Added: We depend on our technology vendors to manage "up-time" of the front-end ecommerce store, manage regulatory control measures around prescriptions, the intake of our orders, and export orders for fulfillment.
+Added: Any failure on the part of our third-party ecommerce vendors or in our ability to transition third-party services effectively could result in lost sales and harm our business.
+Added: We are subject to increasing operating costs and inflation risks which may adversely affect our performance.
+Added: While we may attempt to offset potential increases in operating costs through a variety of measures focused on increasing revenues or reducing operating expenses, there is no assurance that we will be able to do so.
+Added: Therefore, operating costs may rise faster than associated revenues resulting in a material negative impact on our cash flow and margins.
+Added: We are also impacted by inflationary increases in wages and benefits whether driven by competition for talent or ordinary course pay increases, as well as other rising costs.
+Added: Increases in the rate of inflation could also significantly impact our cost base.
+Added: In all countries in which we operate, wage inflation, whether driven by competition for talent or ordinary course pay increases, may also increase the cost of our cost products and reduce our profitability if we are not able to pass those costs on to our patients and consumers or charge premium prices when justified by market demand.
We have a history of significant losses.
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To become and remain profitable, we must successfully commercialize our gammaCore therapy and continue to identify promising new areas of treatment with significant market potential.
−Removed: This will require us to be successful in a range of challenging activities, which may include obtaining adequate coverage and reimbursement from payers, marketing and selling any current and future product candidates for which we may obtain marketing clearance, approval or authorization, developing commercial scale manufacturing processes, completing future clinical trials of gammaCore for additional therapeutic indications, obtaining additional marketing clearance, approval or authorization from regulatory authorities, manufacturing, and satisfying any post-marketing requirements.
−Removed: We face a variety of challenges and risks that we will need to address and manage as we pursue our strategy, including our ability to achieve adequate payer coverage, develop and retain an effective sales force, achieve market acceptance of gammaCore among physicians, patients and third-party payers, and expand the use of gammaCore to additional therapeutic indications.
+Added: This will require us to be successful in a range of challenging activities, which may include obtaining adequate coverage and reimbursement from payers, marketing and selling any current and future product candidates for which we may obtain marketing clearance, approval or authorization, developing commercial scale manufacturing processes, completing future clinical trials of gammaCore for additional therapeutic indications, obtaining additional marketing clearance, approval or authorization from regulatory authorities, manufacturing, satisfying any post-marketing requirements, and developing the marketing and promotional expertise necessary to succeed in a direct-to-consumer approach.
+Added: We face a variety of challenges and risks that we will need to address and manage as we pursue our strategy, including our ability to achieve adequate payer coverage, develop and retain effective sales force and marketing personnel, achieve market acceptance of gammaCore among physicians, patients and third-party payers, and expand the use of gammaCore to additional therapeutic indications.
Because of the numerous risks and uncertainties associated with our commercialization efforts, as well as research and clinical development activities, we are unable to predict the timing or amount of increased expenses, or when, if ever, we will be able to achieve or maintain profitability.
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and UK commercial infrastructure.
−Removed: Even if we are able to increase sales of gammaCore, increase adoption of gammaCore therapy among physicians, payers, and patients and achieve desired payer coverage levels, we may not achieve profitability and even if we do, we may not be able to sustain or increase profitability in subsequent periods.
+Added: We expect to continue to incur substantial net losses and negative cash flows from operations as we commercialize gammaCore.
+Added: Even if we are able to increase sales of gammaCore, increase adoption of gammaCore therapy among physicians, payers, patients, and consumers and achieve desired payer coverage and reimbursement levels and increased consumer demand, we may not achieve profitability and even if we do, we may not be able to sustain or increase profitability in subsequent periods.
If we fail to become profitable or are unable to sustain profitability, then we may be unable to continue our operations at planned levels and be forced to further reduce or terminate our operations.
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There can be no assurance that we will have sufficient cash flow and liquidity to fund our planned activities, which could force us to significantly reduce or curtail our activities and ultimately, potentially cease operations.
−Removed: Our failure to become and remain profitable would decrease the value of our company and could impair our ability to raise capital, maintain our research and development efforts, expand our business or continue our operations.
+Added: Our failure to become and remain profitable would decrease the value of our company and could impair our ability to raise capital, maintain our research and development, and marketing efforts, expand our business or continue our operations.
A decline in the value of our company also could cause you to lose all or part of your investment.
−Removed: We will be required to obtain additional funds in the future, and these funds may not be available on acceptable terms or at all, which could impair our ability to continue as a going concern.
−Removed: Our operations have consumed substantial amounts of cash since inception, and we anticipate this continuing for at least the next 12 months as we continue seeking to invest in our business.
+Added: Our plans to expand our direct-to-consumer cash-pay business channel may not be able to generate significant revenues.
+Added: We currently have a small direct-to-consumer cash-pay business channel, which we are planning to expand in 2022 and beyond.
+Added: This will require significant investment in and expansion of our sales and marketing capabilities and use of third-party telehealth providers or development of our own telehealth platform.
+Added: If we are unsuccessful in executing our commercialization efforts in this business channel and do not achieve the sales levels that we expect, we may be unable to recover these investments.
+Added: Additionally, there is a risk that expanding our direct-to-consumer cash-pay business channel could depress pricing with third-party payers and, therefore, have an adverse impact on our results of operations.
+Added: We must successfully attract, hire, train and retain qualified professionals to service our direct-to-consumer sales channels and we must productively deploy our professionals to become profitable.
+Added: Identifying, recruiting, hiring and retaining professionals, including employees, independent contractors and consultants with diverse skill sets across our broad geography of operations, and consistent with servicing our existing, new and evolving sales channels, direct-to-consumer is critical to our sales strategy.
+Added: The market for qualified professionals is evolving, dynamic and increasingly challenging.
+Added: Our corporate reputation is a significant factor consumers’ evaluation of whether to buy our products or potential employees’ evaluation of whether to join our company.
+Added: If we are unable to recruit skilled professionals and if we do not deploy those professionals productively, our results of operations may be adversely impacted.
+Added: We must manage our sales and marketing team well and plan and train for future needs effectively while accurately predicting physician, patient, and consumer demand.
+Added: We may not be able to retain such talented professionals long-term for a variety of reasons including their desire to remain as independent content creators rather than full-time employees.
+Added: If we are unable to attract, hire, train and retain highly skilled professionals and productively deploy them on our sales and marketing efforts, we will jeopardize our ability to develop ongoing and future sales, which could adversely affect our financial condition and results of operations.
+Added: Competition for highly skilled professionals is intense in the markets where we operate, and we may experience significant employee turnover rates due to such competition.
+Added: If we are unable to retain professionals with specialized skills, our revenues, operating efficiency and profitability will decrease.
+Added: Cost reductions, such as reducing headcount, or voluntary departures that result from our failure to retain the professionals we hire, could negatively affect our reputation as an employer and our ability to hire skilled professionals to meet our business requirements.
+Added: Increased compensation to retain skilled professionals could lead to lower margins or to higher costs and price increases that may in turn lead to a decline in demand for our products.
+Added: Any significant growth in the market for our products and services or our entry into a new market may require an expansion of our employee base for managerial, marketing, operational, financial and other purposes.
+Added: During any period of growth, we may face problems related to our operational and financial systems and controls, including quality control and delivery and service capacities.
+Added: We would also need to continue to expand, train and manage our employee base.
+Added: Continued future growth will impose significant added responsibilities upon the members of management to identify, recruit, maintain, integrate and motivate new employees.
+Added: If we experience price fluctuations for our products and we are unable to reduce our expenses, including the per unit cost of producing our products, there may be a material adverse effect on our business, results of operations, financial condition and cash flows.
+Added: We anticipate that we will experience, price fluctuations for our products due to pricing pressure relating to our efforts to drive consumer demand.
+Added: We may also face pricing pressure from managed care organizations and other third-party payors due to increased market power of our payors as the medical device industry consolidates, and increased competition among suppliers, including manufacturing services providers.
+Added: If the prices for our products decrease and we are unable to reduce our expenses, including the cost of sourcing materials, logistics and the cost to manufacture our products, our sales , results of operations, financial condition and cash flows will be adversely affected.
+Added: The global COVID-19 pandemic may result in increased costs for manufacturing and outsourced services while also causing additional pressure to reduce the prices for our products if a recession or depression occurs and people are unable to afford our products.
+Added: We cannot predict the ultimate impact that the COVID-19 pandemic and its effects could have on our business operations, financial condition and cash flows.
+Added: Any increased or unexpected pricing pressures, costs, delays or failures to achieve cost savings, or unexpected risks we encounter in our business, including those caused by factors outside our control, could adversely affect our business, results of operations, financial condition and cash flows.
+Added: Future acquisitions, strategic investments or alliances could disrupt our business and harm our business, financial condition and operating results.
+Added: We may in the future explore potential acquisitions of companies or technologies, strategic investments, or alliances to strengthen our business.
+Added: Acquisitions involve numerous risks, any of which could harm our business, including:
+Added: regulatory hurdles;
+Added: anticipated benefits may not materialize;
+Added: cultural challenges associated with integrating employees from the acquired company into our organization;
+Added: integration of the acquired company's products and technology;
+Added: integration of the acquired company's accounting, management information, human resources and other administrative systems;
+Added: the need to implement or improve controls, procedures and policies at a business that prior to the acquisition may have lacked effective controls, procedures and policies;
+Added: coordination of product development and sales and marketing functions;
+Added: liability for activities of the acquired company before the acquisition, including relating to privacy and data security, patent and trademark infringement claims, violations of laws, commercial disputes, tax liabilities and other known and unknown liabilities;
+Added: litigation or other claims in connection with the acquired company, including claims from terminated employees, users, former stockholders or third parties.
+Added: Failure to appropriately mitigate these risks or other issues related to such acquisitions and strategic investments could result in reducing or completely eliminating any anticipated benefits of transactions, and harm our business generally.
+Added: Future acquisitions could also result in dilutive issuances of our equity securities, the incurrence of debt, contingent liabilities, amortization expenses or the impairment of goodwill, any of which could harm our business, financial condition and operating results.
+Added: We will be required to obtain additional funds in the future, and these funds may not be available on acceptable terms or at all.
+Added: Our operations have consumed substantial amounts of cash since inception, and we anticipate this continuing for at least the next 12 months from the date the financial statements included in this Annual Report are made available as we continue seeking to invest in our business.
We believe that our growth will depend, in part, on our ability to fund our commercial efforts for our gammaCore therapy, and to opportunistically pursue research and development activities for additional indications for our gammaCore therapy.
Our existing resources are unlikely to allow us to conduct all of the activities that we believe could be beneficial for our future growth.
−Removed: As a result, we may need to seek additional funds in the future or curtail or forgo some or all of such activities.
+Added: As a result, we will need to seek additional funds in the future or curtail or forgo some or all of such activities.
If we seek to and are unable to raise funds on favorable terms, or at all, we may not be able to support our commercialization efforts or increase our research and development activities and the growth of our business may be negatively impacted.
As a result, we may be unable to compete effectively.
−Removed: Although we expect that our existing capital resources and cash flow, will enable us to fund the operating expenses and capital expenditure requirements of our current operating plan for 12 months, this estimate is based on assumptions that may prove to be wrong, and we could exhaust or significantly diminish our available capital resources sooner than we expect.
+Added: Although we expect that our existing capital resources and cash flow, will enable us to fund the operating expenses and capital expenditure requirements of our current operating plan for at least the next 12 months from the date the financial statements included in the Annual Report are made available, this estimate is based on assumptions that may prove to be wrong, and we could exhaust or significantly diminish our available capital resources sooner than we expect.
Changes, including those relating to the payer and competitive landscape, our commercialization strategy, our development activities and regulatory matters, may occur beyond our control that would cause us to consume our available capital more quickly.
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the outcome, timing of, and costs involved with our plan to potentially expand our direct-to-consumer cash-pay business channel;
−Removed: the outcome, timing of, and costs involved in, making gammaCore Sapphire CV available pursuant to the EUA to facilitate its study and clinical use for the acute treatment of asthma exacerbations in known or suspected COVID-19 patients;
the scope and timing of our investment in our U.S.
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the need for us and third parties, including payers and service providers, to potentially need to implement new or revised policies, infrastructure and internal systems;
−Removed: our ability to hire additional personnel to support our operations, including as a public company;
+Added: our ability to hire additional personnel to support our operations;
the emergence and acceptance of competing therapies or other adverse market developments.
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Our failure to obtain additional necessary financing could impair our ability to conduct our operations, and any such failure to raise capital as and when needed could have a negative impact on our financial condition and on our ability to (i) pursue our business plans and strategies and (ii) maintain our listing on the Nasdaq Stock Market.
−Removed: In addition, our auditors’ report for our 2020 financial statements contains a statement concerning our ability to continue as a “going concern.” Our lack of sufficient liquidity could make it more difficult for us to secure additional financing terms acceptable to us, if at all, and may materially and adversely affect the terms of any financing that we may obtain and our stock price generally.
−Removed: Our continuation as a “going concern” is dependent upon, among other things, our ability to increase revenue, reduce operating expenses and obtain additional funding through the sale of equity and or debt securities, debt financing, a strategic transaction or otherwise.
+Added: Our lack of sufficient liquidity could make it more difficult for us to secure additional financing terms acceptable to us, if at all, and may materially and adversely affect the terms of any financing that we may obtain and our stock price generally.
+Added: Our ability to continue our operations depends upon, among other things, our ability to increase revenue, reduce operating expenses and obtain additional funding through the sale of equity and or debt securities, debt financing, a strategic transaction or otherwise.
However, there are significant risks and uncertainties as to our ability to achieve these goals or obtain required funding on commercially reasonable terms or at all, including as a result of the adverse impact on our business from the COVID-19 pandemic.
−Removed: Due to these risks and uncertainties, we may need to reduce our activities significantly more than our current operating plan and cash flow projections assume in order to fund operations for at least the next 12 months.
There can be no assurance that we will have sufficient cash flow and liquidity to fund our planned activities, which could force us to significantly reduce or curtail our activities and ultimately, potentially cease operations.
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While the adoption of the new standards will not change the cash flows, we receive from our contracts with customers, the changes to our reporting practices and the potential fluctuations in our reported results could cause a decline and/or fluctuation in the price of our common stock.
+Added: Changes in certain areas of our business have resulted in the adoption of new accounting principles.
+Added: Our evolving commercial strategy has resulted in the launch of cash pay models which under GAAP will lead to the cost of our goods being treated as licensed products pursuant to which the licensed starter kit will be classified as an "other asset" on the company's balance sheet and the cost of the starter kit will be recognized over the license period based on the estimated useful life of the kit, while the cost of goods sold related to the therapy will be expensed upon shipment.
+Added: This change results in a different accounting methodology which may affect the value of assets on our balance sheet.
+Added: The new accounting practices could cause our results of operations to have greater variability due to the impact of changes on the estimated recoverability of such asset values.
+Added: In addition, licensed product accounting is based off a series of useful life assumptions that may prove to be inaccurate and will be subject to change from time to time, all of which can result in fluctuations from period to period for balance sheet items and have a related impact on our results of operations.
Risks Related to Our Business and the Development of Our gammaCore Therapy
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Additionally, we may have to incur targeted marketing and other expenditures to achieve sales of the gammaCore Sapphire CV.
−Removed: We have no experience with commercializing a respiratory product in the United States.
+Added: We have limited experience with commercializing a respiratory product in the United States.
We did not recognize material revenue from sales of our gammaCore Sapphire CV during the fiscal year ended December 31, 2021.
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As a result of these and other significant challenges and uncertainties, there can be no assurance as to what impact, if any, the EUA will have on us, our business, operations or financial condition.
−Removed: Commercializing our gammaCore Sapphire CV therapy for the acute treatment of asthma exacerbations in known or suspected COVID-19 patients may require targeted investment in research and development and expansion of our sales and marketing capabilities.
−Removed: We may need to make targeted investments in research and development and expansion of our sales and marketing, distribution, and telehealth capabilities in order to commercialize gammaCore Sapphire CV therapy for the acute treatment of asthma exacerbations in known or suspected COVID-19 patients.
−Removed: If we are unsuccessful in our commercialization efforts and do not achieve the sales levels that we expect, we may be unable to recover these investments in research and development, sales and marketing, distribution and telehealth efforts, and our business and financial condition could be materially adversely affected.
−Removed: Our plans to potentially expand our direct-to-consumer cash-pay business channel may not be able to generate significant revenues.
−Removed: We currently have a small direct-to-consumer cash-pay business channel, which we are planning to potentially expand in the near future.
−Removed: This may require significant investment in and expansion of our sales and marketing capabilities and development of a telehealth platform.
−Removed: If we are unsuccessful in executing our commercialization efforts in this business channel and do not achieve the sales levels that we expect, we may be unable to recover these investments.
−Removed: Additionally, there is a risk that expanding our direct-to-consumer cash-pay business channel could depress pricing with third-party payers and, therefore, have an adverse impact on our results of operations.
−Removed: If third-party payers do not provide adequate coverage and reimbursement for the use of gammaCore, we may be unable to generate significant revenues.
−Removed: Our success in marketing and commercializing gammaCore depends and will depend in large part on whether U.S.
−Removed: and international government health administrative authorities, private health insurers and other payer organizations provide adequate coverage and reimbursement for the cost of our products.
−Removed: Many third-party payers do not currently cover VNS for any indications other than epilepsy because they have determined all other VNS modalities to be investigational or experimental.
−Removed: If physicians or insurers do not find our clinical data compelling or wish to wait for additional studies, they may choose not to use or provide coverage and reimbursement for gammaCore.
−Removed: We cannot provide assurance that data we or others may generate in the future will be consistent with that observed in our existing clinical studies, or that our current or future published clinical evidence will be sufficient to obtain adequate coverage and reimbursement for our products.
−Removed: Moreover, if we cannot obtain adequate coverage for and reimbursement of the cost of our products, we cannot provide assurance that patients will be willing to incur the full cost of our gammaCore therapy.
−Removed: In the United States, we expect to derive nearly all of our sales from prescriptions of gammaCore written by physicians.
−Removed: Access to adequate coverage and reimbursement by third-party payers for our gammaCore therapy is essential to the acceptance of our products by customers and patients, because without such coverage and reimbursement, customers and patients will have to be willing to bear the entire cost of our therapy.
−Removed: Third-party payers, whether foreign or domestic, or governmental or commercial, are developing increasingly sophisticated methods of controlling healthcare costs.
−Removed: In addition, in the United States, no uniform policy of coverage and reimbursement for our gammaCore therapy exists among third-party payers.
−Removed: Therefore, coverage and reimbursement for our gammaCore therapy can differ significantly from payer to payer.
−Removed: In addition, payers continually review new technologies for possible coverage and can, without notice, deny coverage for these new products and procedures.
−Removed: As a result, the coverage determination process is often a time-consuming and costly process that will require us to provide scientific and clinical support for the use of our gammaCore therapy to each payer separately, with no assurance that coverage and adequate reimbursement will be obtained or maintained if obtained.
−Removed: Reimbursement systems in international markets vary significantly by country and by region within some countries, and reimbursement approvals must be obtained on a country-by-country basis.
−Removed: In many international markets, a product must be approved for reimbursement before it can be approved for sale in that country.
−Removed: Further, many international markets have government-managed healthcare systems that control reimbursement for new devices and procedures.
−Removed: In most markets, there are private insurance systems as well as government-managed systems.
−Removed: If sufficient and timely coverage and reimbursement is not available for our current or future products, in either the United States or internationally, the demand for our products and our revenues will be adversely affected.
Regulatory requirements and changes to payers’ prescription benefit plans and medical pathway plans could adversely impact our business and financial results.
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In addition, possible sales in our EUA business channel to hospitals, which may involve higher credit risks than sales to other payers.
−Removed: Revenues from the sale of our gammaCore therapy depend on the continued availability of reimbursement by government and private insurance plans.
+Added: Revenues from the sale of our gammaCore therapy somewhat depend on the continued availability of reimbursement by government and private insurance plans.
The government’s Medicare regulations are complex and, as a result, the billing and collection process is time-consuming and typically involves the submission of claims to multiple payers whose payment of claims may be contingent upon the payment of another payer.
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The failure to obtain recognition by third-party payers under the pharmacy benefit model has required us to modify our commercialization strategy, our distribution model, our pricing, and our operations, any of which could have a material adverse effect on the sales of gammaCore and the results of our operations and financial condition.
−Removed: We must demonstrate to physicians and third-party payers the medical and economic benefits of our gammaCore therapy compared to those of our competitors or other available therapies and such comparisons may not be realizable.
+Added: We must demonstrate to patients, physicians and third-party payers the medical and economic benefits of our gammaCore therapy compared to those of our competitors or other available therapies and such comparisons may not be realizable.
Physicians play a significant role in determining the course of a patient’ s treatment and, as a result, the type of product that will be used to treat a patient.
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This competition could have a material adverse effect on potential acceptance, use, pricing and sales of gammaCore Sapphire CV.
−Removed: Acceptance of our gammaCore therapy depends on educating physicians as to the distinctive characteristics, perceived benefits, safety, ease of use and cost-effectiveness of our gammaCore therapy as compared to our competitors’ products and communicating to physicians the proper use of our gammaCore therapy.
−Removed: If we are not successful in convincing physicians of the merits of our gammaCore therapy or educating them on the benefits of our gammaCore therapy, they may not prescribe our gammaCore therapy and we may be unable to increase our sales, sustain our growth or achieve profitability.
+Added: Acceptance of our gammaCore therapy depends on educating patients and physicians as to the distinctive characteristics, perceived benefits, safety, ease of use and cost-effectiveness of our gammaCore therapy as compared to our competitors’ products and communicating to physicians the proper use of our gammaCore therapy.
+Added: If we are not successful in convincing patients and physicians of the merits of our gammaCore therapy or educating them on the benefits of our gammaCore therapy, they may not seek a prescription or prescribe our gammaCore therapy and we may be unable to increase our sales, sustain our growth or achieve profitability.
In addition, we believe support of our products by physicians is essential for market acceptance and adoption.
−Removed: If we do not receive support from physicians or long-term data does not show the benefits of using our gammaCore therapy, physicians may not use it.
+Added: If we do not receive support from physicians or long-term data does not show the benefits of using our gammaCore therapy, patients and physicians may not use it.
In such circumstances, our results of operations would be materially adversely affected.
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physician and payer acceptance of our gammaCore therapy;
+Added: patients' acceptance of gammaCore therapy;
+Added: payor adoption;
+Added: estimated useful life of products
the timing of when individual payer coverage becomes available;
+Added: patient and physician product returns;
the timing, expense and results of research and development activities, future clinical trials and regulatory clearance or approvals;
fluctuations in our expenses associated with expanding our commercial operations and operating as a public company;
+Added: fluctuations in our marketing spend to drive patient purchases;
the introduction of new products, therapies and technologies by competitors;
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We derive a material portion of our revenue from a limited number of customers, and the loss of one or more of these customers could adversely impact our business, results of operations, and financial condition.
−Removed: Our customer base is concentrated.
+Added: Our c ustomer base is concentrated.
During the years ended December 31, 2021 and 2020, revenue from VA/DoD facilities pursuant to our qualifying contract under the Federal Supply Schedule and open market sales represented 60 % and 58 % of our total revenue, respectively.
−Removed: In 2020, five specific VA/DoD facilities represented approximately 50% of our revenue from this channel, and two of those facilities each accounted for more than 10% individually.
+Added: In 2021, four specific VA/DoD facilities represented approximately 51 % of our revenue from this channel, and two of those facilities each accounted for more than 10% individually.
If we were to lose one or more of our significant customers, our revenue may significantly decline.
The loss of one or more of our significant customers could adversely affect our business, results of operations, and financial condition.
−Removed: Finally, any potential revenue from the EUA may fluctuate or be adversely impacted if and to the extent that (i) the coronavirus pandemic worsens, (ii) the coronavirus pandemic subsides, regardless of whether or not the EUA is terminated, revoked or expires, and (iii) other treatments or vaccines for coronavirus continue to be developed and made available.
−Removed: Additionally, the United States and other countries around the world have recently begun to approve and commence distributing COVID-19 vaccines in their jurisdictions.
−Removed: The broad distribution of COVID-19 vaccines may reduce demand for gammaCore Sapphire CV treatment as it may no longer be considered medically necessary.
−Removed: Any of these developments and potential related contingencies could adversely impact our business and results of operations and affect the comparability of our results between periods and introduce additional risk into our business as we may rely upon forecasts to build inventory in advance of anticipated sales.
+Added: In addition, our direct-to-consumer enablement platform is backed by a dispense who acts as a stocking distributor.
+Added: If the direct-to-consumer initiatives are successful, there may create a new concentrated customer.
+Added: Any issues that arise with respect to our direct-to-consum er enablement platform supplier could adversely affect our business, results of operations, and financial condition.
Because of these and other factors, it is likely that in some future period our operating results will not meet investor expectations or those of public market analysts.
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Moreover, we may not be able to locate suitable acquisition opportunities and this inability could impair our ability to grow or obtain access to technology or products that may be important to the development of our business.
+Added: We may seek to grow our business through acquisitions or investments in new or complementary businesses, products or technologies, through the licensing of products or technologies from third parties.
+Added: The failure to manage acquisitions, investments, licenses or other strategic alliances, or the failure to integrate them with our existing business, could harm our business.
+Added: Our success depends in part on our ability to continually enhance and broaden our product offerings in response to changing customer demands, competitive pressures, technologies and market pressures.
+Added: Accordingly, from time to time we may consider opportunities to acquire, make investments in or license other technologies, products and businesses that may enhance our capabilities, complement our current products or expand the breadth of our markets or customer base.
+Added: P otential and completed acquisitions, strategic investments, licenses and other alliances involve numerous risks, including:
+Added: difficulty assimilating or integrating acquired or licensed technologies, products or business operations;
+Added: issues maintaining uniform standards, procedures, controls and policies;
+Added: unanticipated costs associated with acquisitions or strategic alliances, including the assumption of unknown or contingent liabilities and the incurrence of debt or future write-offs of intangible assets or goodwill;
+Added: diversion of management's attention from our core business and disruption of ongoing operations;
+Added: adverse effects on existing business relationships with suppliers, distributors and customers;
+Added: risks associated with entering new markets in which we have limited or no experience;
+Added: potential losses related to investments in other companies;
+Added: potential loss of key employees of the acquired business;
+Added: increased legal and accounting compliance costs.
+Added: We do not know if we will be able to identify acquisitions or strategic relationships we deem suitable, whether we will be able to successfully complete any such transactions on favorable terms or at all or whether we will be able to successfully integrate any acquired business, product or technology into our business or retain any key personnel, suppliers or distributors.
+Added: To finance any acquisitions, investments or strategic alliances, we may choose to issue shares of our common stock or other equity-linked securities as consideration, which could dilute the ownership of our stockholders.
+Added: Additional funds may not be available on terms that are favorable to us, or at all.
+Added: If the price of our common stock is low or volatile, we may be unable to consummate any acquisitions, investments or strategic alliances using our stock as consideration.
If serious adverse events or other undesirable side effects are identified during the use of our gammaCore therapy in clinical trials or IITs (collectively and unless the context requires otherwise, “clinical trials”) , it may adversely affect our development of such product candidates.
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Undesirable side effects caused by our gammaCore therapy could also result in the delay or denial of regulatory clearance or approval by the FDA or other regulatory authorities or in more restrictive labels than we desire.
−Removed: Commercialization of our gammaCore Sapphire therapy for additional neurological conditions may require c linical trials, which are very expensive, time-consuming and difficult to design and implement and involve uncertain outcomes.
+Added: Commercialization of our gammaCore Sapphire therapy for additional neurological conditions may require c linical trials, which are very expensive, take a long time to complete, and are difficult to design and implement and involve uncertain outcomes.
Furthermore, results of earlier preclinical studies and clinical trials may not be predictive of results of future preclinical studies, clinical trials or commercial success.
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In addition, our clinical trials will compete with other clinical trials that are in the same therapeutic areas as we are targeting, and this competition will reduce the number and types of patients available to us, because some patients who might have opted to enroll in our trials may instead opt to enroll in a trial being conducted by one of our competitors.
−Removed: With respect to any trials of our gammaCore Sapphire CV, it is difficult to predict when such trials will achieve full enrollment, if at all, as the number of patients hospitalized with a confirmed diagnosis of, or presumed to be, COVID-19 is relatively unpredictable and susceptible to high fluctuations across countries and regions.
Delays in the completion of any clinical trial of our gammaCore therapy will increase our costs, slow down our expansion into additional treatment indications and approval process, and delay or potentially jeopardize our ability to commence product sales and generate future revenue.
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If we fail to develop and retain an effective sales force, our business could suffer.
−Removed: We have significantly reduced our sales force as part of our cost control efforts.
In order to continue to market and sell our gammaCore therapy, we may in the future need to substantially expand our direct sales force.
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Any of these risks may adversely affect our business.
−Removed: On July 10, 2020, we were granted an EUA from the FDA for use of our gammaCore Sapphire CV for the acute treatment of asthma exacerbations in known or suspected COVID-19 patients.
We have no history of commercializing respiratory products within the United States or selling our gammaCore therapy pursuant to an Emergency Use Authorization.
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the introduction and market acceptance of new, more effective or less expensive competing products and technologies.
−Removed: If our competitors are better able to develop and market CH and migraine treatments that are safer, more effective, less costly, easier to use or otherwise more attractive than our gammaCore therapy, our business and business prospects will be adversely impacted.
+Added: If our competitors are better able to develop and market primary headache treatments that are safer, more effective, less costly, easier to use or otherwise more attractive than our gammaCore therapy, our business and business prospects will be adversely impacted.
The pharmaceutical and medical device industries are highly competitive and subject to rapid innovation and change.
Our success depends, in part, upon our ability to establish a competitive position in the cluster and migraine markets by securing broad market acceptance of our gammaCore therapy.
−Removed: We believe that the primary competitive factors in the cluster and migraine markets are demonstrated clinical effectiveness, product safety, reliability and durability, ease of use, product support and service, minimal side effects and sales force experience and relationships.
+Added: We believe that the primary competitive factors in the primary headache markets including those for CH and migraine headache are cost, demonstrated clinical effectiveness, product safety, reliability and durability, ease of use, product support and service, minimal side effects and sales force experience and relationships.
We face significant competition in the United States and internationally, which we believe will intensify over time.
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Many of our competitors are large, well-established companies with substantially greater resources than us and have a long history of competing in the migraine markets.
−Removed: Furthermore, the competitive landscape for COVID-19 therapies is crowded and continues to evolve at a rapid pace.
Many of our current and potential competitors are publicly traded, or are divisions of publicly traded, major pharmaceutical and medical device companies that have substantially greater financial, technical, sales and marketing resources than we do.
We will face steep competition from Allergan plc, Amgen Inc., H.
−Removed: Lundbeck A/S, Novartis International AG, Teva Pharmaceutical Industries Ltd., and Eli Lilly and Company, among other established and potential competitors that may be better capitalized and have a history of commercializing products around the world.
+Added: Lundbeck A/S, Novartis International AG, Teva Pharmaceutical Industries Ltd., Biohaven Pharmaceuticals Inc.
+Added: and Eli Lilly and Company, among other established and potential competitors that may be better capitalized and have a history of commercializing products around the world.
Also, several neuromodulation devices are approved for the treatment and/or prevention of migraine, including Cefaly, Nerivo or any other neuromodulation devices that may be marketed for use in treating pain associated with primary headache.
Cefaly has been granted an OTC clearance allowing it to be sold without a prescription, and the impact of this clearance on the competitive landscape remains to be seen.
−Removed: Given the size of the existing and potential market in the United States, we expect that as we continue our commercial efforts in the United States our current and future competitors will take aggressive action to protect their current market position.
+Added: Given the size of the existing and potential market in the United States, we expect that as we continue our commercial efforts in the United States our current and future competitors including any who may compete with us in the direct-to-consumer channel, will take aggressive action to protect their current market position.
We will face significant competition in establishing our market share in the United States and may encounter unforeseen obstacles and competitive challenges in the United States.
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In addition, perception by physicians, payers or patients that a competitor’s product is superior to our gammaCore therapy or offers comparable benefits at a lower cost or lower incidence of undesirable side effects as compared against our gammaCore therapy, among other perception-driven outcomes in the market following competitors’ completion of their clinical trials, could have a material adverse effect on us.
−Removed: Finally, the competitive landscape for COVID-19 therapies is crowded and continues to evolve at a rapid pace.
−Removed: Various other companies, many with greater resources, are developing or commercializing treatments that potentially compete with gammaCore Sapphire CV.
−Removed: This competition could have a material adverse effect on potential acceptance, use, pricing and sales of gammaCore Sapphire CV.
Traditional products used to treat CH and migraine have been available for decades, while our gammaCore therapy has only been commercially available in Europe for several years, and for approximately three years in the United States, and, as a result, we have a limited track record compared to our competitors.
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Our international operations subject us to certain operating and compliance risks, which could adversely impact our results of operations and financial condition.
−Removed: Sales of gammaCore outside the United States represent a substantial and growing portion of our net sales.
−Removed: In 2012, we began selling gammaCore in the EU through distributors.
−Removed: We sell gammaCore directly in seven countries in the EU, in the United Kingdom through distributors and agents located in Doncaster, UK, and in five countries in Eastern Europe through a distributor located in Lithuania, as well as through distributors in Canada and Australia.
−Removed: The sale and shipment of gammaCore across international borders, as well as the purchase of components from international sources, subjects us to U.S.
−Removed: and foreign governmental trade, import and export, and customs regulations and laws.
+Added: Sales of gammaCore outside of the United States represents a substantial portion of our net sales.
+Added: In 2012, commercial operations began in the United Kingdom and Germany and we now sell gammaCore throughout Europe from our UK based subsidiary and via two distribution partners based in Belgium and Lithuania.
+Added: Outside of Europe we have a network of 8 distribution partners tasked with selling gammaCore to patients in Canada, Australia, New Zealand, United Arab Emirates, Bahrain, Oman, Saudi Arabia, Cyprus, China, Taiwan, Indonesia, Malaysia and Singapore.
+Added: The sale and shipment of gammaCore across international borders as well as the purchase of components from international sources, subjects us to US and foreign governmental trade and customs regulations and laws.
Compliance with these regulations and laws is costly and exposes us to penalties for non-compliance.
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jurisdictions may be harmed and our results of operations would suffer.
−Removed: Our loan pursuant to the Paycheck Protection Program, or the PPP, could be audited by U.S.
−Removed: regulatory authorities.
−Removed: An adverse finding thereunder could require us to return the full amount of the loan, and potentially subject us to fines and penalties.
−Removed: Because the COVID-19 pandemic affected, among other things, our access to prescribing physicians and potential prescribing physicians and their access to headache patients, on March 23, 2020 we suspended our earlier full-year revenue guidance until we could better understand the trajectory of our business, as well as announcing a reduction in our activities, and adjusting our cash runway expectations in response to the potential adverse impact caused by the COVID-19 pandemic.
−Removed: Compared to our earlier expectations, we believe that our results for the fiscal year ended December 31, 2020 reflect a negative impact from, among other things, the global pandemic.
−Removed: Moreover, our expectations for 2021 have also been adversely affected by both the uncertainty and potential negative impact of the global pandemic, which we believe may also have had an adverse effect on our access to debt and equity capital markets.
−Removed: Depending upon the duration and severity of the pandemic, the continuing effect on our results and outlook over the long term remains somewhat uncertain.
−Removed: In addition, the report of our auditors covering our consolidated financial statements at December 31, 2020 contained an explanatory paragraph stating that our recurring losses from operations and net capital deficiency raised substantial doubt about our ability to continue as a “going concern”.
−Removed: It was in this context that we believed we had a good faith basis that the economic uncertainty and negative impact on us and the economy as a whole due to the COVID-19 pandemic made an application for a loan pursuant to the PPP, under the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, necessary for the support of our ongoing operations in the current economic environment.
−Removed: On May 4, 2020, we entered into a PPP loan with Citibank, N.A.
−Removed: in an aggregate principal amount of approximately $1.4 million.
−Removed: The lack of clarity regarding loan eligibility under the Paycheck Protection Program has resulted in significant media coverage and controversy with respect to public companies applying for and receiving loans.
−Removed: On April 23, 2020, the Small Business Administration, or SBA, issued new guidance that questioned whether a public company with substantial market value and access to capital markets would qualify to participate in the PPP.
−Removed: Subsequently, on April 28, 2020 the Secretary of the Treasury and SBA announced that the government will review all PPP loans above $2 million in principal for which the borrower applies for forgiveness.
−Removed: On May 13, 2020, the SBA issued further guidance relating to the required necessity certification which provides a limited safe harbor for companies that received PPP loans having less than $2 million in principal to the effect that they will be deemed to have made the required certification concerning the necessity of the loan request in good faith.
−Removed: Nonetheless, should we be audited or reviewed by the U.S.
−Removed: Department of the Treasury as a result of filing an application for forgiveness or otherwise, such audit or review could result in the diversion of management’s time and attention and legal and reputational costs.
−Removed: If we were to be audited and receive an adverse finding in such audit, we could be required to return the full amount of the PPP loan and pay interest at a higher rate than 1.000% per annum, which could reduce our liquidity, and potentially subject us to fines and penalties.
−Removed: Official guidance and interpretations of the requirements of the program have been limited and have been changing over time.
−Removed: Despite our good-faith belief that we properly satisfied all eligibility requirements for the PPP loan and the recently published, limited safe-harbor, there has been increasing scrutiny of public companies that received loans, and there can be no assurance that we will not become subject to regulatory or other scrutiny by the SBA, the Department of the Treasury or any other regulatory, administrative, legislative or governmental authority, including a request or requirement for repayment of some or all of the loan, or otherwise incur adverse publicity and damage to our reputation.
−Removed: Under the terms of the CARES Act, PPP loan recipients can be granted forgiveness for all or a portion of the loan, with such forgiveness to be determined, subject to limitations, based on the use of the loan proceeds for payment of qualifying expenses and the Company maintaining its payroll levels over certain required thresholds.
−Removed: Although we intend to apply for forgiveness of the PPP loan, no assurance can be provided that we will obtain such forgiveness in whole or in part.
Our results may be impacted by changes in foreign currency exchange rates.
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We may not be able to establish or strengthen our brand.
−Removed: We believe that establishing and strengthening the electroCore and gammaCore brands is critical to achieving widespread acceptance of our gammaCore therapy to treat eCH, prevent CH, prevent and treat migraine, and treat acute asthma exacerbations in known or suspected COVID-19 patients, particularly because of the highly competitive nature of the market for headache therapies.
−Removed: Promoting and positioning our brand will depend largely on the success of our marketing efforts and our ability to provide physicians and patients with a reliable product.
−Removed: Given the established nature of our competitors, and our lack of commercialization in the United States, it is likely that our future marketing efforts will require us to incur significant additional expenses.
+Added: We believe that establishing and strengthening the electroCore and gammaCore brands is critical to achieving widespread acceptance of our gammaCore therapy to treat eCH, prevent CH, prevent and treat migraine, and treat acute asthma exacerbations in known or suspected COVID-19 patients and consumers, particularly because of the highly competitive nature of the market for headache therapies.
+Added: Promoting and positioning our brand will depend largely on the success of our marketing efforts, our direct-to-consumer initiatives, and our ability to provide physicians, patients, and consumers with a reliable product.
+Added: Given the established nature of our competitors, our lack of commercialization in the United States, and our lack of experience in the direct-to-consumer channels, it is likely that our future marketing efforts will require us to incur significant additional expenses.
These brand promotion activities may not yield increased sales and, even if they do, any sales increases may not offset the expenses we incur to promote our brand.
−Removed: If we fail to successfully promote and maintain our brand, or if we incur substantial expenses in an unsuccessful attempt to promote and maintain our brand, our gammaCore therapy may not be accepted by physicians, which would adversely affect our business, results of operations and financial condition.
+Added: If we fail to successfully promote, expand, and maintain our brand, or if we incur substantial expenses in an unsuccessful attempt to promote, expand, and maintain our brand, our gammaCore therapy may not be accepted by physicians and consumers, which would adversely affect our business, results of operations and financial condition.
We may face product liability claims that could result in costly litigation and significant liabilities.
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Any significant increase in damaged or defective products or expected returns could have a material adverse effect on our operating results for the period or periods in which such returns materialize.
−Removed: Additionally, damaged or defective products could (i) adversely affect our reputation and our end customers’ willingness to buy products from us, (ii) adversely affect market acceptance or perception of our products, (iii) increase our service costs, (iv) cause us to lose significant end-customers, and (v) subject us to liability for damages and divert our resources from other tasks, any of which could materially and adversely affect our business, results of operations and financial condition.
+Added: Additionally, damaged or defective products could (i) adversely affect our reputation and our end customers’ willingness to buy products from us, (ii) adversely affect market acceptance or perception of our products, (iii) increase our service costs, (iv) cause us to lose significant end-customers, and (v) subject us to liability for damages and divert our resources from other tasks, any of which could materially and adversely affect our business, asset valuations, results of operations and financial condition.
If we fail to retain our key executives or recruit and hire new employees, our operations and financial results may be adversely affected while we attract other highly qualified personnel.
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In addition, our financial condition may preclude us from giving additional cash compensation to mitigate this risk.
−Removed: Our future success also depends on our ability to retain executive officers and other key employees and attract new key employees.
Many executive officers and employees in the pharmaceutical and medical device industries are subject to strict non-compete or confidentiality agreements with their employers, which may include our main competitors.
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Our employees, independent contractors, consultants, commercial collaborators, principal investigators, CROs and vendors may engage in misconduct or other improper activities, including non-compliance with regulatory standards and requirements.
−Removed: We are exposed to the risk that our employees, independent contractors, consultants, commercial collaborators, principal investigators, CROs and vendors may engage in fraudulent conduct or other illegal activity.
−Removed: Misconduct by these parties could include intentional, reckless or negligent conduct or unauthorized activities that violates (1) the laws and regulations of the FDA and other similar regulatory authorities, including those laws requiring the reporting of true, complete and accurate information to such authorities, (2) manufacturing standards, (3) federal and state data privacy, security, fraud and abuse and other healthcare laws and regulations in the United States and abroad, such as the General Data Protection Regulation in the European Union, and (4) laws that require the true, complete and accurate reporting of financial information or data.
+Added: We are exposed to the risk that our employees, independent contractors, independent contractor influences, other content creators, consultants, commercial collaborators, principal investigators, CROs and vendors may engage in fraudulent conduct or other illegal activity.
+Added: Misconduct by these parties could include intentional, reckless or negligent conduct or unauthorized activities that violates (1) the laws and regulations of the FDA, FTC, and other similar regulatory authorities, including those laws requiring the reporting of true, complete and accurate information to such authorities, (2) manufacturing standards, (3) federal and state data privacy, security, fraud and abuse and other healthcare laws and regulations in the United States and abroad, such as the General Data Protection Regulation in the European Union, and (4) laws that require the true, complete and accurate reporting of financial information or data.
In particular, sales, marketing and business arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, misconduct, kickbacks, self-dealing and other abusive practices.
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The increasing use of social media could give rise to liability.
−Removed: Social media, including Facebook and Twitter, is increasingly being used to communicate about our clinical development programs and the conditions our gammaCore therapy is being developed to treat, and we are engaging in what we believe is appropriate social media usage in connection with our commercialization efforts for indications for which our therapy has been approved, and we intend to do the same for any future indications or products, if approved.
+Added: Social media, including Instagram, Snapchat, TikTok, Facebook and Twitter, is increasingly being used to communicate about our product, clinical development programs, and the conditions our gammaCore therapy is being developed to treat and we are engaging in what we believe is appropriate social media usage in connection with our commercialization efforts for indications for which our therapy has been approved.
+Added: We intend to do the same for any future indications or products, if approved.
Social media practices in the biopharmaceutical industry continue to evolve and regulations and regulatory guidance relating to such use are evolving and not always clear.
This evolution creates uncertainty and risk of noncompliance with regulations applicable to our business, resulting in potential regulatory actions against us, along with the potential for litigation related to off-label marketing or other prohibited activities.
−Removed: For example, for our clinical-stage candidates, patients may use social media channels to comment on their experience in an ongoing blinded clinical study or to report an alleged adverse event.
+Added: For example, for our clinical-stage candidates, patients and consumers may use social media channels to comment on their experience in an ongoing blinded clinical study or to report an alleged adverse event.
When such disclosures occur, there is a risk that study enrollment may be adversely impacted, we fail to monitor and comply with applicable adverse event reporting obligations or that we may not be able to defend our business or the public’s legitimate interests in the face of the political and market pressures generated by social media due to restrictions on what we may say about our investigational products.
There is also a risk of inappropriate disclosure of sensitive information or negative or inaccurate posts or comments about us on any online platform, including a blog on the Internet, or a post on a website, that can be distributed rapidly and could negatively harm our reputation.
−Removed: In addition, our employees may knowingly or inadvertently make use of social media in ways that may not comply with our company policies or other legal or contractual requirements, which may give rise to liability, lead to the loss of trade secrets or other intellectual property, or result in public exposure of personal information of our employees, clinical trial participants, customers, and others.
+Added: In addition, our employees may knowingly or inadvertently make use of social media in ways that may not comply with our company policies or other legal or contractual requirements, which may give rise to liability, lead to the loss of trade secrets or other intellectual property, or result in public exposure of personal information of our employees, clinical trial participants, customers, consumers, and others.
If any of these events were to occur or we otherwise fail to comply with applicable regulations, we could incur liability, face regulatory actions or incur other harm to our business.
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We have not entered into manufacturing, supply or quality agreements with suppliers of consumer electronic components, some of which supply components critical to our products.
−Removed: Although we believe that long-term agreements with these suppliers are not necessary as all the components in our products are either high-volume, non-custom commodity components or are readily available from multiple vendors, there can be no assurance that our multiple-source or sole-source suppliers will be able to meet our demand for their products and services, either because of the informal nature of our arrangements with those suppliers, or our limited experience with those suppliers, due to our relative importance as a customer to those suppliers, or due to supply chain disruptions that may arise such as those relating to the recent COVID-19, or Coronavirus pandemic or similar events.
−Removed: It may be difficult for us to assess their ability to timely meet our demand in the future based on past performance.
+Added: Although we believe that long-term agreements with these suppliers are not necessary as all the components in our products are either high-volume, non-custom commodity components or are readily available from multiple vendors, there can be no assurance that our multiple-source or sole-source suppliers will be able to meet our demand for their products and services, either because of the informal nature of our arrangements with those suppliers, or our limited experience with those suppliers, due to our relative importance as a customer to those suppliers, or due to supply chain disruptions that may arise such as those relating to COVID-19 and the Coronavirus pandemic, the armed conflict between Russia and Ukraine, trade sanctions and similar events.
+Added: It may be difficult for us to assess the ability of our suppliers to timely meet our demand in the future based on past performance.
While our suppliers have generally met our demand for their products on a timely basis in the past, they may subordinate our needs in the future to their other customers.
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If our third-party suppliers fail to deliver the required commercial quantities of materials, or the level of services we require, on a timely basis and at commercially reasonable prices, and we are unable to find one or more replacement suppliers capable of production at a substantially equivalent cost in substantially equivalent volumes and quality and on a timely basis, the continued commercialization of gammaCore would be impeded, delayed, limited or prevented, which could harm our business, results of operations, financial condition and prospects.
−Removed: In Europe, we rely in part on a single third-party distributor to effectively distribute a majority of our products.
+Added: In Europe, we rely on a single third-party distributor to effectively distribute the majority of our products.
We depend in part on a single third-party distributor for the warehousing, programming and shipment of our products in certain territories in Europe.
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To develop and expand our distribution, we must continue to scale and improve our processes and procedures that support our distributors.
+Added: In addition, our ability to recruit distributors as well as their effectiveness may be adversely affected by the armed conflict between Ukraine and Russia.
Further, if our relationship with a successful distributor terminates, we may be unable to replace that distributor without disruption to our business.
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Any such payment issues may materially affect our operating results until we are able to resolve the issues or find a sufficient replacement.
−Removed: We offer health care provider consults for gammaCore Sapphire CV in the United States and rely upon a third-party telehealth platform provider to do so.
+Added: We offer health care provider consults for gammaCore Sapphire in the United States and the United Kingdom and rely upon a third-party telehealth platform provider to do so.
In the future, we may need to engage other telehealth platform providers for sales of our other products.
−Removed: UpScript LLC, or UpScript, is our exclusive online telehealth provider for gammaCore Sapphire CV and its performance is not fully within our control.
−Removed: We are unable to ensure that UpScript will comply with applicable laws, and its failure to do so could have an adverse effect on our operating results and business.
+Added: We use telehealth providers for gammaCore Sapphire in the United States and the United Kingdom and their performance is not fully within our control.
+Added: We are unable to ensure that the telehealth providers will comply with applicable laws, and its failure to do so could have an adverse effect on our operating results and business.
Additionally, recruiting, training and retaining telehealth platform providers requires significant time and resources.
We may need to establish additional relationships with telehealth platform providers for the sales of our other products, but there can be no assurance that we will be able to do so at all or on terms favorable to us.
+Added: In the United States we are dependent on a third-party platform to provide patients with an end-to-end experience that would result in a prescription and purchase of gammaCore therapy.
+Added: In the United States, we have contracted with Vytal, LLC to provide an end-to-end e-commerce solution that will enable patients to obtain a prescription and purchase gammaCore directly from an online store.
+Added: The e-commerce and telehealth platform for gammaCore Sapphire and its performance is not fully within our control.
+Added: We are unable to ensure that the platform will operate consistently or that they will comply with applicable laws, including but not limited to privacy and patient information, and its failure to do so could have an adverse effect on our operating results and business.
+Added: Additionally, recruiting, training and retaining telehealth module providers requires significant time and resources which may alter the experience of patients in the online store.
+Added: We may need to establish additional relationships with e-commerce and/or telehealth platform providers for the sales of our other products, but there can be no assurance that we will be able to do so at all or on terms favorable to us.
+Added: Vytal, LLC operates its own dispense and will transact as a stocking distributor.
+Added: We are unable to ensure they will comply with applicable laws and its failure to do so could have an adverse effect on our operating results and business.
+Added: As a stocking distributor, we are unable to ensure they will have the financial resources to hold adequate inventory levels to support the demand and any shortage of supply may have an impact on our business and financial results.
Our status as a federal contractor subjects us to a wide variety of regulatory compliance, pricing, and contract-based requirements.
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Our status as a contractor on FSS means that we are obligated to comply with a variety of federal procurement laws, regulations, and contract terms that require commercial price disclosures, commercial-to-federal price indexing, and compliance with various federal programs.
−Removed: Furthermore, as a federal contractor, we are also subject to contractual remedies and potential administrative, civil, and criminal damages and penalties for noncompliance with contract terms, overbilling, or misconduct.
−Removed: The cost of maintaining compliance with these requirements could adversely impact us and our business and complying with these requirements could divert managerial and financial resources.
+Added: Furthermore, as a federal contractor, we are also subject to contractual remedies and potential administrative, civil, and criminal damages and penalties for noncompliance with contract terms, over billing, or misconduct.
+Added: Furthermore, the recent Biden administration's executive order requiring all on-site and remote federal employees, contractors and sub-contractors to be vaccinated against COVID-19 or receive an approved medical or religious exemption by December 8, 2021 may apply to us because of our Federal Supply Schedule Medical Equipment and Supply contract.
+Added: Failure to comply with the executive order could lead to loss of the contract, which could have a material adverse effect on our business, revenues, financial condition and result of operations.
+Added: In light of the executive order, we implemented a mandatory COVID-19 vaccination policy for all employees subject to religious and medical exemptions.
+Added: There are, however, ongoing challenges in the federal courts regarding the validity of the executive order, which could lead to future changes to our own policies depending on the outcome of those cases.
+Added: For now, the cost of maintaining compliance with these requirements could adversely impact us and our business and complying with these requirements could divert managerial and financial resources.
Additionally, failure to comply could result in us being excluded from the opportunity to renew existing federal contracts or to bid on federal future contracts for a period of time lasting up to several years.
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Our potential revenue in the United Kingdom is substantially dependent on government funding arrangements and changes in such government policy could cause material harm to our business.
−Removed: In the United Kingdom, an award from the NHS called the Innovation Technology Payment Program, or ITP, offers the potential for us to generate revenue from the treatment of CH.
−Removed: This award, which has been extended until March 2021, is the primary commercial channel from which our United Kingdom revenue is derived and is supported by a December 2019 recommendation for the use of gammaCore in CH from the National Institute for Health and Care Excellence, or NICE, as well as an adaptation of the NICE recommendation for NHS Scotland by Health Improvement Scotland.
+Added: Effective April 1, 2021, gammaCore Sapphire was included in a new long-term reimbursement policy.
+Added: The MTFM policy, supports the use of NICE-approved, clinically effective and cost-saving medical devices, diagnostics and digital technologies that will improve patient outcomes.
+Added: In December 2019, NICE published a Medical Technology Guidance document recommending the use of gammaCore for CH within the NHS.
+Added: In January 2021, gammaCore was recommended for use in treatment of CH in NHS Scotland.
+Added: This approval was an adoption of the NICE recommendation.
+Added: Recently, we have announced agreements with new distributors to make gammaCore Sapphire available in several countries beyond the U.S.
+Added: and United Kingdom.
The cost of compliance with applicable UK laws and regulations could negatively harm us and our business.
Additionally, the government funding arrangements provided by the NHS and NICE could be withdrawn if we do not comply with the terms and conditions of such arrangements, or if the programs are not extended or curtailed.
−Removed: Finally, NHS England has announced the launch of a new funding mechanism known as the MedTech Funding Mandate, or MTFM, in April 2021.
−Removed: Transition from the ITP to the MTFM could result in disruptions to our business in the United Kingdom.
Any of these contingencies could have an adverse effect on our potential UK revenue.
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We rely on third parties, such as CROs, clinical data management organizations, medical institutions and clinical investigators, to perform this function.
−Removed: Currently, we have a number of ongoing IITs, including IITs for nVNS stimulation in COVID-19 patients in Spain and the United States.
+Added: Currently, we have a number of ongoing IITs.
We frequently review both proposals for new trials and the performance of ongoing trials, and our reviews may result in changes to our future obligations.
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Risks Related to Intellectual Property
+Added: Our product development initiatives may be delayed or fail to succeed, and could also lead to challenging intellectual property rights issues.
+Added: We may seek to develop new products and technologies, including enhancements of our existing products for nVNS.
+Added: Developing new products and improving our existing products to meet the needs of current and future patients and consumers requires significant investment in research and development.
+Added: We do not know whether any such product development activities will result in products that meet necessary standards and performance criteria, whether the development will be completed on a timely basis, or if completed will lead to market acceptance and commercial success.
+Added: We will need to carefully manage our introduction of any new products.
+Added: If potential purchasers of new products believe such products will offer enhanced features or be sold for a more attractive price, they may delay purchases until such products are available.
+Added: We may also have excess or obsolete inventory as we transition to new products, and we have limited experience in managing product transitions.
+Added: Even if we are able to develop enhancements or new generations of our products successfully, these enhancements or new generations of products may not produce sales in excess of the costs of development and they may be quickly rendered obsolete by changing patient and customer preferences or the introduction by competitors of products embodying new technologies or features.
+Added: Delays could occur based on a number of issues including the need to investigate third party patents and potential infringement matters, which could impair our development and commercialization efforts.
We may in the future become involved in lawsuits to protect or enforce our intellectual property, which could be expensive and time consuming, and ultimately unsuccessful, and could result in the diversion of significant resources, thereby hindering our ability to effectively commercialize our existing or future products.
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Any such patent applications may have priority over our patent applications or issued patents, which could further require us to obtain rights from third parties to issued patents or pending patent applications covering such technologies to allow us to commercialize our technology.
−Removed: If another party has filed a U.S.
−Removed: patent application on inventions similar to ours, depending on when the timing of the filing date falls under certain patent laws, we may have to participate in a priority contest (such as an interference proceeding) declared by the USPTO to determine priority of invention in the United States.
There may be prior public disclosures of which we are not aware that could invalidate our patents or a portion of the claims of our patents.
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Occupational Safety and Health Administration requirements;
+Added: Federal Trade Commission;
+Added: health information privacy and security, including the Health Insurance Portability and Accountability Act of 1996, or HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, or HITECH, and comparable state laws;
New Jersey Department of Health Services requirements.
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Any such action could have a material effect on the reputation of our gammaCore therapy and on our business and financial position.
+Added: The advertising, marketing and labeling of medical devices is highly regulated by the FDA and Federal Trade Commission ("FTC").
+Added: Our efforts to promote our gammaCore therapy, including via direct-to-consumer marketing or social media initiatives, could subject us to additional scrutiny of our communication of risk information, benefits or claims, by the FDA, FTC, or both.
Further, regulations may change, and any additional regulation could limit or restrict our ability to use any of our technologies, which could harm our business.
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The medical device industry is regulated extensively by governmental authorities, principally the FDA and corresponding state and foreign regulatory agencies and authorities, such as the European Commission and the EEA member states, competent authorities and notified bodies.
−Removed: The FDA and other US, EEA and foreign governmental agencies and authorities regulate and oversee, among other things, with respect to medical devices:
+Added: The FDA, FTC and other US, EEA and foreign governmental agencies and authorities regulate and oversee, among other things, with respect to medical devices:
design, development and manufacturing;
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Moreover, in May 2017 the new MDR, entered into force.
−Removed: Following its entry into application in May 2021, the regulation will introduce substantial changes to the obligations with which medical device manufacturers must comply in the EU.
+Added: Following its entry into application in May 2021, the regulation introduced substantial changes to the obligations with which medical device manufacturers must comply in the EU.
High risk medical devices will be subject to additional scrutiny during the conformity assessment procedure.
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In the United States, there have been and continue to be a number of legislative initiatives to contain healthcare costs.
−Removed: The Affordable Care Act, which was passed in 2010, substantially changed the way health care is financed by both governmental and private insurers and significantly impacts the U.S.
−Removed: healthcare industry.
−Removed: Elements of the Affordable Care Act, including comparative effectiveness research and payment system reforms, including shared savings pilots, may significantly affect the payment for, and the availability of, healthcare services and result in fundamental changes to federal healthcare reimbursement programs, any of which may materially affect numerous aspects of our business.
−Removed: Certain provisions of the Affordable Care Act have been subject to judicial challenges as well as efforts to repeal or replace them or to alter their interpretation and implementation.
−Removed: For instance, the Tax Cuts and Jobs Acts was enacted, which, among other things, includes a provision repealing, effective January 1, 2019, the tax-based shared responsibility payment imposed by the Affordable Care Act on certain individuals who fail to maintain qualifying health coverage for all or part of a year that is commonly referred to as the “individual mandate.” Additional legislative changes, regulatory changes, and judicial challenges related to the Affordable Care Act remain possible.
−Removed: It is unclear how the Affordable Care Act, as well as efforts to repeal or replace, or invalidate, the Affordable Care Act, or portions thereof, will affect our business, financial condition and results of operations.
−Removed: It is possible that the Affordable Care Act, as currently enacted or as it may be amended or replaced in the future, and other healthcare reform measures that may be adopted in the future, could have a material adverse effect on our business and our industry generally.
−Removed: Specifically, the expansion in the government’s role in the U.S.
−Removed: healthcare industry may result in decreased profits to us, lower reimbursement by payers for our products, and/or reduced medical procedure volumes, all of which may have a material adverse impact on our business, financial condition, results of operations, or cash flows.
−Removed: In addition, other legislative changes have been proposed and adopted in the United States since the Affordable Care Act was enacted.
−Removed: On August 2, 2011, the Budget Control Act of 2011 among other things includes aggregate reductions of Medicare payments to providers of, on average, 2% per fiscal year, which went into effect on April 1, 2013, and, due to subsequent legislative amendments to the statute, will remain in effect through 2029 unless additional Congressional action is taken.
−Removed: On January 2, 2013, the American Taxpayer Relief Act of 2012 was signed into law which, among other things, further reduced Medicare payments to certain providers, including hospitals.
−Removed: We expect that additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments will pay for healthcare products and services, which could result in reduced demand for our product candidates or additional pricing pressures.
+Added: In March 2010, the ACA was signed into law, which included, among other things, comparative effectiveness research initiatives and payment system reforms, including shared savings pilots, and other provisions.
+Added: Since its enactment, there have been judicial and Congressional challenges to certain aspects of the ACA.
+Added: On June 17, 2021, the U.S.
+Added: Supreme Court dismissed the most recent judicial challenge to the ACA without specifically ruling on the constitutionality of the ACA.
+Added: Prior to the Supreme Court’s decision, President Biden issued an executive order to initiate a special enrollment period from February 15, 2021 through August 15, 2021 for purposes of obtaining health insurance coverage through the ACA marketplace.
+Added: The executive order also instructed certain governmental agencies to review and reconsider their existing policies and rules that limit access to healthcare, including among others, reexamining Medicaid demonstration projects and waiver programs that include work requirements, and policies that create unnecessary barriers to obtaining access to health insurance coverage through Medicaid or the ACA.
+Added: It is unclear how other healthcare reform measures of the Biden administration or other efforts, if any, to challenge, repeal or replace the ACA will impact the ACA or our business.
+Added: Any new limitations on, changes to, or uncertainty with respect to the ability of individuals to enroll in governmental reimbursement programs or other third-party payor insurance plans could impact demand for our product.
+Added: In addition, other legislative changes have been proposed and adopted in the United States since the ACA was enacted.
+Added: These changes included an aggregate reduction in Medicare payments to providers of 2% per fiscal year, which went into effect on April 1, 2013 and will remain in effect through 2030, with the exception of a temporary suspension from May 1, 2020 through December 31, 2021, unless additional Congressional action is taken.
+Added: In addition, on January 2, 2013, the American Taxpayer Relief Act of 2012, was signed into law which, among other things, further reduced Medicare payments to certain providers, including hospitals.
+Added: The Medicare Access and CHIP Reauthorization Act of 2015, enacted on April 16, 2015 (MACRA), repealed the formula by which Medicare made annual payment adjustments to physicians and replaced the former formula with fixed annual updates and a new system of incentive payments that began in 2019 that are based on various performance measures and physicians’ participation in alternative payment models such as accountable care organizations.
+Added: We expect that additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments will pay for healthcare products and services, which could result in reduced demand for our products or additional pricing pressures.
Risks Related to Our Common Stock
−Removed: Our failure to meet the continued listing requirements of the Nasdaq Stock Market, or Nasdaq, could result in a delisting of our common stock.
−Removed: If we fail to satisfy Nasdaq’s continued listing requirements, Nasdaq may take steps to delist our common stock.
−Removed: Such a delisting would likely have a negative effect on the price of our common stock and would impair stockholders’ ability to sell or purchase their common stock when they wish to do so.
−Removed: In the event of a delisting, we can provide no assurance that any action taken by us to restore compliance with listing requirements would allow our common stock to become listed again, stabilize the market price or improve the liquidity of our common stock, prevent our common stock from dropping below the Nasdaq minimum bid price requirement or prevent future non-compliance with Nasdaq’s listing requirements.
−Removed: A share price of less than $1.00 may impact our Nasdaq listing.
−Removed: If the closing bid price of our stock is less than $1.00 for 30 consecutive trading days, we would receive a deficiency letter from Nasdaq regarding our failure to comply with the minimum bid price requirement for continued listing.
−Removed: Such letter would trigger an automatic 180 calendar day period within which we could regain compliance.
−Removed: Compliance would be regained at any time during this period if the closing bid price of our stock is $1.00 per share or more for a minimum of 10 consecutive trading days.
−Removed: We may be eligible for an additional 180-day compliance period if we apply to transfer from the Nasdaq Global Select Stock Market to the Nasdaq Capital Market which would require us to (i) have at least $1 million in market value of publicly held shares, (ii) satisfy all requirements for initial listing on the Nasdaq Capital Market (except for the bid price requirement), and (iii) provide written notice to Nasdaq that we intend to regain compliance with the bid price requirement during such second 180-day compliance period, including by effecting a reverse stock split if necessary.
−Removed: However, there can be no guarantee that we will be eligible for the second 180-day compliance period or that if eligible, we will be able to regain compliance during such period.
−Removed: If we do not regain compliance during any applicable compliance periods, our stock could be delisted from Nasdaq.
−Removed: The failure to maintain our listing on Nasdaq could have an adverse effect on the liquidity and market price of our stock.
+Added: Our failure to meet the continued listing requirements of Nasdaq could result in a delisting of our common stock, which could negatively impact the market price and liquidity of our common stock and our ability to access the capital markets.
+Added: On December 20, 2021, we received a letter from the Listing Qualifications Department of the Nasdaq Stock Market LLC (“Nasdaq”) indicating that, based upon the closing bid price of our common stock for the last 30 consecutive business days, we did not meet the minimum bid price of $1.00 per share required for continued listing on The Nasdaq Global Select Market pursuant to Nasdaq Listing Rule 5450(a)(1).
+Added: Pursuant to the initial Nasdaq notice and Rule 5810(c)(3)(A) of the Nasdaq Listing Rules, we have 180 calendar days from the date of the notice, or until June 20, 2022, to regain compliance with the minimum bid price requirement in Rule 5450(a)(1) by achieving a closing bid price for our common stock of at least $1.00 per share over a minimum of 10 consecutive business days.
+Added: Such a delisting would have a negative effect on the price of our common stock, impair the ability to sell or purchase our common stock when persons wish to do so, and any delisting could materially adversely affect our ability to raise capital or pursue strategic , financing or other transactions on acceptable terms, or at all.
+Added: Delisting from the Nasdaq Global Select Market could also have other negative results, including the potential loss of institutional investor interest .
We are currently subject to securities class action lawsuits against us, which could result in adverse outcomes.
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We have broad discretion to determine how to use most of our financial resources and may use them in ways that may not enhance our operating results or the price of our common stock.
−Removed: Our management has broad discretion over the use of most of our financial resources, including proceeds from our IPO, our former stock purchase agreement with Lincoln Park Capital Fund, LLC, and our April and May 2020 private placements, and we could spend such proceeds in ways our stockholders may not agree with or that do not yield a favorable return, if at all.
−Removed: If we do not invest or apply our financial resources, including the proceeds from our IPO and such purchase agreement in ways that improve our operating results, we may fail to achieve expected financial results, which could cause our stock price to decline.
+Added: Our management has broad discretion over the use of most of our financial resources, including proceeds from financings and we could spend such proceeds in ways our stockholders may not agree with or that do not yield a favorable return, if at all.
+Added: If we do not invest or apply our financial resources, including the proceeds from such financings and such purchase agreement in ways that improve our operating results, we may fail to achieve expected financial results, which could cause our stock price to decline.
An active, liquid and orderly market for our common stock may not continue to be sustained, and our stockholders may not be able to resell their shares at a desired market price and could lose all or part of their investment.
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If we have to design and implement the internal control over financial reporting required to comply with this obligation, such process will be time consuming, costly and complicated.
−Removed: Our principal stockholders and management own a significant percentage of our stock and will be able to exert significant control over matters subject to stockholder approval.
−Removed: As of December 31, 2020 , our executive officers, directors, holders of 5% or more of our capital stock and their respective affiliates, including Core Ventures II, LLC and Core Ventures IV, LLC, entities controlled by two of our directors, Joseph P.
−Removed: Errico and Thomas J.
−Removed: Errico, M.D., b eneficially owned, including shares issuable upon the exercise or delivery of options, warrants, restricted stock units and deferred stock units that are currently vested or will vest within 60 days from the date hereof, approximately 6.4 million shares of our voting stock which represents approximately 14.
−Removed: % of our outstanding voting stock (treating all such vested options, warrants, restricted stock units and deferred stock units held by such persons as outstanding).
−Removed: These stockholders will have the ability to influence us through this ownership position.
−Removed: These stockholders may be able to determine all matters requiring stockholder approval.
−Removed: For example, these stockholders may be able to control elections of directors, amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction.
−Removed: This may prevent or discourage unsolicited acquisition proposals or offers for our common stock that our stockholders may feel are in their best interest .
Provisions in our charter documents and under Delaware law could discourage a takeover that stockholders may consider favorable and may lead to entrenchment of management.
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The enforceability of similar choice of forum provisions in some other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with any action, a court could find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or unenforceable.
−Removed: General Risk Factors
−Removed: We have incurred, currently incur and will incur significantly increased costs and devote substantial management time as a result of operating as a public company.
−Removed: As a public company, we have incurred and will incur significant legal, accounting and other expenses that we did not incur as a private company.
−Removed: For example, we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or Exchange Act, and will be required to comply with the applicable requirements of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act, as well as rules and regulations subsequently implemented by the SEC and Nasdaq, including the establishment and maintenance of effective disclosure and financial controls and certain corporate governance practices.
−Removed: We expect that compliance with these requirements will increase our legal and financial compliance costs and will make some activities more time consuming and costly.
−Removed: In addition, we expect that our management and other personnel will need to divert attention from operational and other business matters to devote substantial time to our public company requirements.
−Removed: In particular, we incur significant expenses and devote substantial management effort toward ensuring compliance with the requirements of Section 404 of the Sarbanes-Oxley Act, which will increase when we are no longer an emerging growth company, as defined by the Jumpstart Our Business Startups Act, or the JOBS Act.
−Removed: We will need to hire additional accounting and financial staff with appropriate public company experience and technical accounting knowledge and may need to establish an internal audit function.
−Removed: We cannot predict or estimate the amount of additional costs we may incur as a result of the foregoing or the timing of such costs.
−Removed: Additional compensation costs and any future equity awards will increase our compensation expense, which would increase our general and administrative expense and could adversely affect our profitability.
−Removed: We also expect that operating as a public company will make it more difficult and expensive for us to obtain director and officer liability insurance on reasonable terms.
−Removed: As a result, it may be more difficult for us to attract and retain qualified people to serve on our board of directors, our board committees or as executive officers.
+Added: The requirements of being a publicly traded company may strain our resources and divert management's attention.
+Added: As a publicly traded company, we have incurred, and will continue to incur, significant legal, accounting and other expenses that we did not incur as a private company.
+Added: In addition, the Sarbanes-Oxley Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), as well as rules subsequently implemented by the SEC and Nasdaq, have imposed various requirements on public companies.
+Added: Shareholder activism, the current political environment and the current high level of government intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and impact the manner in which we operate our business in ways we cannot currently anticipate.
+Added: Our management and other personnel will need to devote a substantial amount of time to these compliance initiatives.
+Added: Moreover, these rules and regulations will increase our legal and financial compliance costs and will make some activities more time-consuming and costly.
+Added: These rules and regulations may also make it more difficult and more expensive for us to obtain director and officer liability insurance.
+Added: Failure to comply with these public company requirements could subject us to enforcement actions by the SEC, divert management's attention, damage our reputation, and adversely affect our business, results of operations, or financial condition.
+Added: In particular, if our independent registered public accounting firm is not able to render the attestation report on our internal control over financial reporting in future annual reports on Form 10-K when required under Section 404 of the Sarbanes-Oxley Act, it could result in a loss of investor confidence in the accuracy, reliability, and completeness of our financial reports.
+Added: We expect that the future loss of our "emerging growth company" status and compliance with these additional internal control and auditor attestation requirements will require management to expend additional time while also condensing the time frame available to comply with SEC reporting requirements, which may further increase our legal and financial compliance costs.
Our stock price may be volatile, and you may not be able to resell shares of our common stock at or above the price you paid.
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These factors include those discussed in the other “Risk Factors” section of this Report on Form 10-K and others such as:
+Added: our operating results and financial position;
announcements related to regulatory clearance to market gammaCore for the treatment of various conditions in the United States;
−Removed: announcements related to the EUA for facilitating the study and clinical use of gammaCore Sapphire CV for the acute treatment of asthma exacerbations in known or suspected COVID 19 patients;
results from, or any delays in, clinical trial programs relating to our product candidates;
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adverse actions taken by regulatory agencies with respect to our clinical trials, manufacturing supply chain or sales and marketing activities;
−Removed: our operating results and financial position;
changes or developments in laws or regulations applicable to our products;
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If our existing stockholders sell, or indicate an intention to sell, substantial amounts of our common stock in the public market, the trading price of our common stock could decline.
−Removed: Certain of our former unitholders, including entities affiliated with certain of our directors and former directors, purchased common stock in our IPO at the IPO price per share.
+Added: Certain of our former unit holders, including entities affiliated with certain of our directors and former directors, purchased common stock in our IPO at the IPO price per share.
Shares which are held by our directors, executive officers and other affiliates may be subject to restrictions under Rule 144 of the Securities Act, among other restrictions that make such shares not freely tradable.
If these additional shares of common stock are sold pursuant to the applicable exemptions from such restrictions, or if it is perceived that they will be sold, in the public market, the trading price of our common stock could decline.
−Removed: Other than the stockholders who purchased an aggregate of 4,128,372 shares of common stock in our three private placement transactions in the second quarter of 2020, there are no holders of common stock entitled to rights with respect to the registration of their shares under the Securities Act.
−Removed: Sales of registered securities by those stockholders could have a material adverse effect on the trading price of our common stock.
Comprehensive U.S.
federal income tax reform could adversely affect us.
−Removed: On December 22, 2017, former President Trump signed into law the “Tax Cuts and Jobs Act”, or TCJA, that significantly reforms the Internal Revenue Code of 1986, or as amended, the Code.
+Added: New legislation or regulation which could affect our tax burden could be enacted by a governmental authority.
+Added: We cannot predict the timing or extent of such tax-related developments which could have a negative impact on our financial results.
+Added: federal legislation affecting the tax laws was enacted in December 2017, in the Tax Cuts and Jobs Act;
+Added: twice in March 2020, first in the Families First Coronavirus Response Act and again in the CARES Act;
+Added: in December, 2020 in the Consolidated Appropriates Act, 2021;
+Added: and in March 2021 in the American Rescue Plan Act of 2021.
The TCJA, among other things, includes changes to U.S.
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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.