What changed in this filing

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Item 9A. Controls and Procedures

2021-03-18 compared with 2020-03-11 · 648 added, 587 removed, 833 unchanged (60% of the section changed)

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Based on that evaluation, our Chief Executive Officer and our Chief Business and Financial Officer concluded that our disclosure controls and procedures as of the end of the period covered by this report were effective.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over our financial reporting.

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(3) provide reasonable assurance regarding the prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material effect on our financial statements.

Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Business and Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework provided in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework).

Based on this evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2020.

The effectiveness of our internal control over financial reporting as of December 31, 2019 has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in their report which is included herein.

This Annual Report on Form 10-K does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting.

Management’s report was not subject to attestation by the Company’s independent registered public accounting firm, as allowed by the SEC.

Changes in Internal Control Over Financial Reporting

There has been no change in our internal control over financial reporting during the fiscal quarter ended December 31, 2019 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Report of Independent Registered Public Accounting Firm

To the Stockholders and the Board of Directors of Verastem, Inc.

Opinion on Internal Control over Financial Reporting

We have audited Verastem, Inc.’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control—

Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), (the COSO criteria).

In our opinion, Verastem, Inc.

(the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of Verastem, Inc.

as of December 31, 2019 and 2018, the related consolidated statements of operations and comprehensive loss, stockholders’

equity and cash flows for each of the three years in the period ended December 31, 2019, and the related notes of the Company and our report dated March 11, 2020 expressed unqualified opinion thereon.

Basis for Opinion

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control Over Financial Reporting.

Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.

federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audit in accordance with the standards of the PCAOB.

Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.

Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances.

We believe that our audit provides a reasonable basis for our opinion.

Definition and Limitations of Internal Control Over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company;

(2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company;

and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.

Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ Ernst & Young LLP

Boston, Massachusetts

March 11, 2020

There has been no change in our internal control over financial reporting during the fiscal quarter ended December 31, 2020 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Other Information

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333-177677) filed by the Registrant on January 13, 2012)

Certificate of Amendment to the Restated Certificate of Incorporation of Verastem, Inc.

(incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Registrant with the Securities and Exchange Commission on May 21, 2020)

Specimen certificate evidencing shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No.

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First Supplemental Indenture, dated as of October 17, 2018, by and between the Registrant and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 to Form 8-K filed by the Registrant on October 17, 2018)

Indenture, dated as of November 14, 2019, between Verastem, Inc.

and Wilmington Trust, National Association(incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed by the Registrant on November 20, 2019)

Description of Securities

Form of 5.00% Convertible Note due 2048 (2018 Notes) (included in Exhibit 4.3)

D escription of Securities

Form of Second Supplemental Indenture, by and between the Company and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 to the Quarterly Report on Form 10-Q filed by Registrant on November 9, 2020)

Form of 5.00% Convertible Note due 2048 (2020 Notes) (included in Exhibit 4.6)

2010 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registration Statement on Form S-1 (File No.

333-177677) filed by the Registrant on November 3, 2011)

Amended and Restated 2012 Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed by the Registrant on December 20, 2018)

Form of Incentive Stock Option Agreement under 2012 Incentive Plan (incorporated by reference to Exhibit 10.3 to Amendment No.

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333-177677) filed by the Registrant on January 13, 2012)

Form of Incentive Stock Option Agreement under Amended and Restated 2012 Incentive Plan (incorporated by reference to Exhibit 10.4 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

Form of Nonstatutory Stock Option Agreement under 2012 Incentive Plan (incorporated by reference to Exhibit 10.4 to Amendment No.

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333-177677) filed by the Registrant on January 13, 2012)

Form of Nonstatutory Stock Option Agreement under Amended and Restated 2012 Incentive Plan (incorporated by reference to Exhibit 10.6 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

Form of Restricted Stock Unit Agreement under 2012 Incentive Plan (incorporated by reference to Exhibit 10.16 to Amendment No.

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Amendment to Form of Restricted Stock Unit Agreement under 2012 Incentive Plan (incorporated by reference to Exhibit 10.25 to the Annual Report on Form 10-K filed by the Registrant on March 26, 2013)

Form of Restricted Stock Unit Agreement under Amended and Restated 2012 Incentive Plan (incorporated by reference to Exhibit 10.9 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

Form of Inducement Award Nonstatutory Stock Option Agreement (incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-8 filed by the Registrant with the Securities and Exchange Commission on December 19, 2014)

Form of Inducement Award Nonstatutory Stock Option Agreement (incorporated by reference to Exhibit 10.11 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

Form of Inducement Award Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.3 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, filed by the Registrant with the Securities and Exchange Commission on November 7, 2018)

2018 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed by the Registrant on December 20, 2018)

Form of Indemnification Agreement between the Registrant and each director (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on August 8, 2017)

Form of Inducement Award Nonstatutory Stock Option Agreement (incorporated by reference to Exhibit 10.11 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

2018 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed by the Registrant on December 20, 2018)

Form of Indemnification Agreement between the Registrant and each director and executive officer (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on August 8, 2017)

Lease Agreement, dated April 15, 2014, between the Registrant and Intercontinental Fund III 117 Kendrick Street LLC (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Registrant on April 18, 2014)

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Employment Agreement, dated March 1, 2012, between the Registrant and Daniel Paterson (incorporated by reference to Exhibit 10.18 to the Annual Report on Form 10-K filed by the Registrant on March 26, 2013)

10.18†

License Agreement, dated July 11, 2012, by and between the Registrant and Pfizer Inc.

(incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q filed by the Registrant on August 13, 2012)

10.19†

Letter Agreement, dated December 7, 2012, by and between the Registrant and Pfizer Inc.

(incorporated by reference to Exhibit 10.31 to the Annual Report on Form 10-K filed by the Registrant on March 6, 2014)

Amended and Restated Employment Agreement, dated November 22, 2013, by and between the Registrant and Robert Forrester (incorporated by reference to Exhibit 10.32 to the Annual Report on Form 10‑K filed by the Registrant on March 6, 2014)

Employment Agreement between the Registrant and Robert Gagnon, effective August 28, 2018 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Registrant on August 29, 2018)

10.22†

Amended and Restated License Agreement, dated November 1, 2016, by and between the Registrant and Infinity Pharmaceuticals, Inc.

(incorporated by reference to Exhibit 10.25 to the Annual Report on Form 10-K filed by the Registrant on March 23, 2017)

Loan and Security Agreement, dated March 21, 2017, by and between the Registrant, the Lender (as defined therein) and Hercules Capital, Inc.

(incorporated by reference to Exhibit 10.26 to the Annual Report on Form 10-K filed by the Registrant on March 23, 2017)

First Amendment to Loan and Security Agreement, dated January 4, 2018, by and between the Registrant, the Lender (as defined therein) and Hercules Capital, Inc.

(incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Registrant on January 4, 2018)

Second Amendment to Loan and Security Agreement, dated March 6, 2018, by and between the Registrant, the Lender (as defined therein) and Hercules Capital, Inc.

(incorporated by reference to Exhibit 10.28 to the Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

Third Amendment to Loan and Security Agreement, as amended, with Hercules Capital, Inc., as administrative agent, and the Lenders from time to time party thereto (incorporated by reference to Exhibit 10.1 to Form 8-K filed by the Registrant on October 11, 2018)

Employment Agreement between the Registrant and Joseph Lobacki, dated January 3, 2018 (incorporated by reference to Exhibit 10.29 of the Registrant’s Annual Report on Form 10-K filed by the Registrant on March 13, 2018)

10.28†

License and Collaboration Agreement, dated September 25, 2018, between Verastem, Inc.

and CSPC Pharmaceutical Group Limited (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on November 7, 2018)

10.29†

License and Collaboration Agreement, dated June 5, 2018, between Verastem, Inc.

and Yakult Honsha Co., Ltd.

(incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on August 8, 2018)

Employment Agreement between the Registrant and Brian Stuglik, dated July 29, 2019 (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed by the Registrant on August 1, 2019)

Fourth Amendment to the Loan and Security Agreement, as amended, with Hercules Capital Inc., as administrative agent, and the Lenders from time to time party thereto (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed by the Registrant on April 23, 2019)

Fifth Amendment to the Loan and Security Agreement, as amended, with Hercules Capital Inc., as administrative agent, and the Lenders from time to time party thereto (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed by the Registrant on November 20, 2019)

Consulting Agreement, dated June 21, 2019, between Robert Forrester and Verastem, Inc.

Separation Agreement, dated June 25, 2019, between Robert Forrester and Verastem, Inc.

10.35‡

License and Collaboration Agreement, dated July 25, 2019, between Verastem, Inc.

and Sanofi (incorporated by reference to Exhibit 10.1 to Quarterly Report on Form 10-Q filed by the Registrant on October 30, 2019)

Purchase Agreement, dated February 27, 2020 among Verastem, Inc.

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Consulting Agreement, dated June 27, 2019, between Joseph Lobacki and Verastem, Inc.

(incorporated by reference to Exhibit 10.37 to the Annual Report on Form 10-K filed by the Registrant on March 11, 2020)

License Agreement for CKI27, dated January 7, 2020, between Verastem, Inc.

and Chugai Pharmaceutical Co., Ltd..

(incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Form of Restricted Stock Unit Agreement under the 2012 Incentive Plan (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Form of Inducement Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.3 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Form of Incentive Stock Option Agreement under the 2012 Incentive Plan (Form of Restricted Stock Unit Agreement under the 2012 Incentive Plan (incorporated by reference to Exhibit 10.4 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Form of Nonstatutory Stock Option Agreement under the 2012 Incentive Plan (incorporated by reference to Exhibit 10.5 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Form of Inducement Nonstatutory Stock Option Agreement (incorporated by reference to Exhibit 10.6 to the Quarterly Report on Form 10-Q filed by the Registrant on May 7, 2020)

Amended and Restated 2012 Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K, filed by the Registrant with the Securities and Exchange Commission on May 21, 2020)

Asset Purchase Agreement by and between Secura Bio, Inc.

and Verastem, Inc.

(incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed by the Registrant on November 9, 2020)

Exchange Agreement by and between Verastem, Inc.

and Highbridge Tactical Credit Master Fund, L.P., dated November 6, 2020 (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q filed by the Registrant on November 9, 2020)

Subsidiaries of the Registrant

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on March 18, 2021 (furnished herewith)

XBRL Instance Document

XBRL Taxonomy Extension Schema Document

XBRL Taxonomy Extension Calculation Linkbase Document

XBRL Taxonomy Extension Definition Linkbase Document

XBRL Taxonomy Extension Label Linkbase Document

XBRL Taxonomy Extension Presentation Linkbase Document

Inline XBRL Instance Document

Inline XBRL Taxonomy Extension Schema Document

Inline XBRL Taxonomy Extension Calculation Linkbase Document

Inline XBRL Taxonomy Extension Definition Linkbase Document

Inline XBRL Taxonomy Extension Label Linkbase Document

Inline XBRL Taxonomy Extension Presentation Linkbase Document

Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)

Filed herewith.

Confidential treatment granted as to portions of the exhibit.

Confidential materials omitted and filed separately with the SEC.

Ce rtain confidential information contained in this exhibit has been omitted because it (i) is not material and (ii) would be competitively harmful if publicly disclosed .

Certain confidential information contained in this exhibit has been omitted because it (i) is not material and (ii) would be competitively harmful if publicly disclosed.

Confidential materials omitted will be filed separately with the SEC upon request.

Management contract or compensatory plan, contract or agreement.

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/s/ Michael Kauffman, M.D.,Ph.D.

Michael Kauffman, M.D., Ph.D.

Michael Kauffman, M.D., P h .D.

March 18, 2021

/s/ Alison Lawton

Alison Lawton

/s/ JOHN JOHNSON

March 18, 2021

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Consolidated Statements of Operations and Comprehensive Loss

Consolidated Statements of Stockholders’

Consolidated Statements of Stockholders’ Equity

Consolidated Statements of Cash Flows

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We have audited the accompanying consolidated balance sheets of Verastem, Inc.

(the Company) as of December 31, 2019 and 2018, the related consolidated statements of operations and comprehensive loss, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2019, and the related notes (collectively referred to as the “consolidated financial statements”).

(the Company) as of December 31, 2020 and 2019, the related consolidated statements of operations and comprehensive loss, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”).

In our opinion, the consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company at December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with U.S.

generally accepted accounting principles.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), and our report dated March 11, 2020 expressed an unqualified opinion thereon.

Basis for Opinion

These financial statements are the responsibility of the Company's management.

Our responsibility is to express an opinion on the Company’s financial statements based on our audits.

We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.

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Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud.

The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting.

As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting.

Accordingly, we express no such opinion.

Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks.

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We believe that our audits provide a reasonable basis for our opinion.

Critical Audit Matter

The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that:

(1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments.

The communication of the critical audit matter does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.

Accrued and Prepaid Clinical Trial Expense

Description of the Matter

As summarized in Note 6 to the consolidated financial statements, the Company’s total accrued expenses were $14.7 million at December 31, 2020, which included the estimated obligation for clinical trial expenses incurred as of December 31, 2020 but not paid as of that date.

In addition, the Company’s total prepaid expenses and other current assets were $3.5 million, which included amounts that were paid in advance of services incurred pursuant to clinical trials.

As discussed in Note 2 to the consolidated financial statements, the Company records research and

development expenses as incurred.

The Company’s determination of costs incurred to conduct research, such as the discovery and development of the Company’s product candidates as well as the related accrued expenses at each reporting period incorporates judgment and utilizes various assumptions, including an evaluation of the information provided to the Company by third parties on actual cost incurred but not yet billed, estimated time period over which services will be performed, and the level of effort to be expended in each period.

Payments for these activities are based on the terms of the individual arrangements, which often differ from the pattern of costs incurred.

Auditing the Company’s accrued and prepaid clinical trial expenses was especially challenging due to the large volume of information received from multiple vendors that perform service on the Company’s behalf.

While the Company’s estimates of accrued and prepaid clinical trial expenses are primarily based on information received from its vendors for each study, the Company may need to make an estimate for additional costs incurred.

Additionally, due to the long duration of clinical trials and the timing of vendor invoices, the actual amounts incurred are not typically known at the time the financial statements are issued.

How We Addressed the Matter in Our Audit

To evaluate the Company’s estimate of services incurred as of period end pursuant to its accrued and prepaid clinical trials expenses, our audit procedures included, among others, testing the accuracy and completeness of the underlying third-party and internally generated data used in determining the accrued and prepaid clinical trial expenses and evaluating the assumptions/estimates used by management to adjust the actual information received.

For example, to assess the nature and extent of the services incurred, we corroborated the progress of clinical trials with the Company’s research and development personnel that oversee the clinical trials and confirmed cost incurred to date information directly with vendors.

To evaluate the completeness and valuation of the accrual, we also tested subsequent payments and invoices received and inspected the Company’s contracts with vendors and any pending change orders to assess the impact to the accruals.

We also performed analytical reviews over fluctuations in accruals by study or other significant work order throughout the period subject to audit.

/s/ Ernst & Young LLP

We have served as the Company’s auditor since 2011.

Boston, Massachusetts

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Restricted cash

Liabilities and stockholders’

Long-term investments

Liabilities and stockholders’ equity

Current liabilities:

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Derivative liability, short-term

Current portion of long-term debt

Total current liabilities

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Total liabilities

Stockholders’

Stockholders’ equity:

Preferred stock, $ 0.0001 par value;

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Common stock, $ 0.0001 par value;

200,000 shares authorized, 80,118 and 73,806 shares issued and outstanding at December 31, 2019 and December 31, 2018, respectively

300,000 and 200,000 shares authorized, 170,456 and 80,118 shares issued and outstanding at December 31, 2020 and December 31, 2019, respectively

Additional paid-in capital

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Accumulated deficit

Total stockholders’

Total liabilities and stockholders’

Total stockholders’ equity

Total liabilities and stockholders’ equity

See accompanying notes to the consolidated financial statements.

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License and collaboration revenue

Sale of COPIKTRA license and related assets

Transition services revenue

Total revenue

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Cost of sales - intangible amortization

Cost of sales - sale of COPIKTRA license and related assets

Research and development

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Interest expense

Net loss per share—basic

Net loss per share—diluted

Loss on debt extinguishment

Net loss before income taxes

Income tax expense

Net loss per share—basic

Net loss per share—diluted

Weighted average common shares outstanding used in computing:

Net loss per share—basic

Net loss per share—diluted

Unrealized (loss) gain on available-for-sale securities

Net loss per share—basic

Net loss per share—diluted

Unrealized gain (loss) on available-for-sale securities

Comprehensive loss

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Verastem, Inc.

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(in thousands, except share data)

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Balance at December 31, 2017

Unrealized (loss) on available-for-sale marketable securities

Issuance of common stock resulting from follow-on offering, net of issuance costs of $324

Issuance of common stock resulting from at-the-market transactions, net of issuance costs of $112

Issuance of common stock resulting from exercise of stock options

Stock-based compensation expense

Balance at December 31, 2017

Unrealized gain on available-for-sale marketable securities

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Balance at December 31, 2019

Unrealized gain on available-for-sale marketable securities

Conversion of Notes into common stock

Change in fair value of conversion option of Notes on exchange

Issuance of common stock under Employee Stock Purchase Plan

Issuance of common stock resulting from vesting of restricted stock units

Issuance of common stock resulting from exercise of stock options

Issuance of common stock resulting from at-the-market transactions, net of issuance costs of $ 55

Issuance of common stock resulting from private investment in public equity offering, net of issuance costs of $ 6,171

Stock-based compensation expense

Balance at December 31, 2020

See accompanying notes to the consolidated financial statements.

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Stock-based compensation expense

Loss on debt extinguishment

Amortization of deferred financing costs, debt discounts and premiums and discounts on available-for-sale marketable securities

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Other long-term liabilities

Intangible assets & property, plant and equipment

Net cash used in operating activities

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Maturities of investments

Net cash provided by (used in) investing activities

Net cash (used in) provided by investing activities

Financing activities

Proceeds from long-term debt, net of issuance costs

Deferred debt financing costs

Repayment of long-term, debt

Proceeds from issuance of convertible senior notes, net of issuance costs

Proceeds from the exercise of stock options and employee stock purchase program

Principal payments on the convertible senior notes

Interest make-whole payments on the 2019 Notes

Proceeds from the exercise of stock options and employee stock purchase program

Settlement of restricted stock for tax withholdings

Proceeds from the issuance of common stock, net

Net cash (used in) provided by financing activities

Net cash provided by (used in) financing activities

(Decrease) increase in cash, cash equivalents and restricted cash

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Common stock issuance costs included in accounts payable and accrued expenses

Purchases of property and equipment included in accounts payable and accrued expenses

Settlement of restricted stock units for tax withholdings included in accrued expenses

Change in fair value of conversion option of Notes on exchange

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Verastem, Inc.

(the Company) is a biopharmaceutical company focused on developing and commercializing medicines to improve the survival and quality of life of cancer patients.

On September 24, 2018, the Company’s first commercial product, COPIKTRA®

(duvelisib), was approved by the U.S.

(the Company) is a development-stage biopharmaceutical company committed to the development and commercialization of new medicines to improve the lives of patients diagnosed with cancer.

The Company’s pipeline is focused on novel small molecule drugs that inhibit critical signaling pathways in cancer that promote cancer cell survival and tumor growth, particularly RAF/MEK inhibition and FAK inhibition.

The Company’s most advanced product candidates, VS-6766 and defactinib, are being investigated in both preclinical and clinical studies for treatment of various solid tumors, including, low-grade serous ovarian cancer, non-small cell lung cancer, colorectal cancer, pancreatic cancer, uveal melanoma, and endometrial cancer.

The Company believes that these compounds may be beneficial as therapeutics either as single agents or when used together in combination with other agents, other pathway inhibitors or other current and emerging standard of care treatments in cancers that do not adequately respond to currently available therapies.

On September 24, 2018, the Company’s first commercial product, COPIKTRA® (duvelisib), was approved by the U.S.

Food and Drug Administration (the FDA) for the treatment of adult patients with certain hematologic cancers including relapsed or refractory chronic lymphocytic leukemia/ small lymphocytic lymphoma (CLL/SLL) after at least two prior therapies and relapsed or refractory follicular lymphoma (FL) after at least two prior systemic therapies.

Its marketed product, COPIKTRA, and most advanced product candidates, defactinib and CH5126766, utilize a multi-faceted approach designed to treat cancers originating either in the blood or major organ systems.

The Company is currently developing its product candidates in both preclinical and clinical studies as potential therapies for certain cancers, including leukemia, lymphoma, lung cancer, head and neck cancer, ovarian cancer, colorectal cancer, lung cancer, pancreatic cancer, and mesothelioma.

The Company believes that these compounds may be beneficial as therapeutics either as single agents or when used in combination with immuno-oncology agents , other pathway inhibitors or other current and emerging standard of care treatments in aggressive cancers that do not adequately respond to currently available therapies.

On August 10, 2020, the Company and Secura Bio, Inc.

(Secura) entered into an asset purchase agreement (Secura APA).

Pursuant to the Secura APA, the Company sold to Secura its exclusive worldwide license, including certain related assets for the research, development, commercialization, and manufacture in oncology indications of products containing COPIKTRA (duvelisib).

The transaction closed on September 30, 2020.

Refer to Note 16.

License, collaboration and commercial agreements for a detailed discussion of the Secura APA.

The consolidated financial statements include the accounts of Verastem Securities Company and Verastem Europe GmbH, wholly-owned subsidiaries of the Company.

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All intercompany balances and transactions have been eliminated in consolidation.

The Company is subject to the risks associated with other life science companies, including, but not limited to, possible failure of preclinical testing or clinical trials, competitors developing new technological innovations, market acceptance and the commercial success of COPIKTRA, or any of the Company’s investigational product candidates following receipt of regulatory approval, protection of proprietary technology and the continued ability to obtain adequate financing to fund the Company’s future operations.

If the Company does not successfully commercialize COPIKTRA or any of its other product candidates, it will be unable to generate product revenue or achieve profitability and may need to raise additional capital.

The Company has historical losses from operations and anticipates that it will continue to incur losses as it continues the research and development of its product candidates and commercialization of COPIKTRA.

As of December 31, 2019, the Company had cash, cash equivalents, restricted cash and short-term investments of $111.3 million, inclusive of $35.7 million of restricted cash, and accumulated deficit of $524.8 million.

On March 3, 2020, the Company received gross proceeds of approximately $100.0 million from the sale of 46,511,628 shares of Common Stock (see Note 19).

The Company expects its existing cash resources, including the proceeds from the sale of Common Stock in March 2020, along with revenue the Company expects to generate from sales of COPIKTRA, will be sufficient to fund its planned operations through 12 months from the date of issuance of these consolidated financial statements.

The Company expects to finance the future development costs of its clinical product portfolio with its existing cash, cash equivalents and short-term investments, or through strategic financing opportunities that could include, but are not limited to collaboration agreements, future offerings of its equity, or the incurrence of debt.

The Company is subject to the risks associated with other life science companies, including, but not limited to, possible failure of preclinical testing or clinical trials, competitors developing new technological innovations, inability to obtain marketing approval of the Company’s product candidates, VS-6766 and defactinib, market acceptance and commercial success of the Company’s product candidates, VS-6766 and defactinib, following receipt of regulatory approval, and, protection of proprietary technology and the continued ability to obtain adequate financing to fund the Company’s future operations.

If the Company does not obtain marketing approval and successfully commercialize its product candidates, VS-6766 and defactinib, following regulatory approval, it will be unable to generate product revenue or achieve profitability and may need to raise additional capital.

The Company has historical losses from operations and anticipates that it will continue to incur losses as it continues the research and development of its product candidates.

As of December 31, 2020, the Company had cash, cash equivalents, restricted cash, and investments of $ 147.5 million, and accumulated deficit of $ 592.5 million.

The Company expects its existing cash resources will be sufficient to fund its planned operations through 12 months from the date of issuance of these consolidated financial statements.

The Company expects to finance the future development costs of its clinical product portfolio with its existing cash, cash equivalents and short-term investments, through future milestones and royalties received through the Secura APA or through strategic financing opportunities that could include, but are not limited to collaboration agreements, future offerings of its equity, or the incurrence of debt.

However, there is no guarantee that any of these strategic or financing opportunities will be executed or executed on favorable terms, and some could be dilutive to existing stockholders.

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The accompanying financial statements of the Company have been prepared in accordance with U.S.

generally accepted accounting principles (GAAP) under the assumption that the Company will continue as a going

concern for the next twelve months.

Accordingly, they do not include any adjustments that might result from the uncertainty related to the Company’s ability to continue as a going concern.

generally accepted accounting principles (GAAP) under the assumption that the Company will continue as a going concern for the next twelve months.

Accordingly, they do not include any adjustments that might result from the uncertainty related to the Company’s ability to continue as a going concern.

Use of estimates

The preparation of the Company’s financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes.

On an ongoing basis, management evaluates its estimates, including estimates related to revenue recognition, including returns, rebates, and other pricing adjustments, accruals and stock‑based compensation expense.

The Company bases its estimates on historical experience and other market-specific or other relevant assumptions that it believes to be reasonable.

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Total cash, cash equivalents and restricted cash

Amounts included in restricted cash as of December 31, 2019 represent cash that the Company is contractually obligated to maintain in accordance with the terms of the 2019 Term Loan Agreement, cash received pursuant to a funded research and development agreement with the Leukemia and Lymphoma Society (LLS) (the “LLS Research Funding Agreement”) restricted for future expenditures for specific R&D studies and cash held to collateralize outstanding letters of credit provided as a security deposit for the Company’s office space located in Needham, Massachusetts in the amount of approximately $35.0 million, $0.5 million, and $0.2 million respectively.

Restricted cash related to 2019 Term Loan Agreement and letters of credit are included in non-current restricted cash on the consolidated balance sheet, while cash related to LLS Research Funding Agreement is included in prepaid and other current assets on the consolidated balance sheet.

Amounts included in restricted cash as of December 31, 2018 represent cash received pursuant to the LLS Research Funding Agreement of $0.5 million, which is included in prepaid and other currents on the consolidated balance sheet and cash held to collateralize outstanding letters of credit provided as a security deposit for the Company’s office space located in Needham of $0.2 million, which is included in non-current restricted cash on the consolidated balance sheet.

Amounts included in restricted cash as of December 31, 2020 represents cash held to collateralize outstanding letters of credit provided as a security deposit for the Company’s office space located in Needham, Massachusetts in the amount of $ 0.2 million.

Amounts included in restricted cash as of December 31, 2019 represent (i) cash that the Company was contractually obligated to maintain in accordance with the terms of the Amended Term Loan Agreement, (ii) cash received pursuant to a funded research and development agreement with the Leukemia and Lymphoma Society (the LLS Research Funding Agreement) which is restricted for future expenditures for specific R&D studies and (iii) cash held to collateralize outstanding letters of credit provided as a security deposit for the Company’s office space located in Needham, Massachusetts in the amount of approximately $ 35.0 million, $ 0.5 million, and $ 0.2 million respectively.

Restricted cash related to Amended Term Loan Agreement is included in non-current restricted cash on the consolidated balance sheet at December 31, 2019.

Restricted cash related to the LLS Research Funding Agreement is included in prepaid expenses and other current assets on the consolidated balance sheet at December 31, 2019 .

Letters of credit are included in non-current restricted cash on the consolidated balance sheets at December 31, 2020 and December 31, 2019.

Fair value of financial instruments

The Company determines the fair value of its financial instruments based upon the fair value hierarchy, which prioritizes valuation inputs based on the observable nature of those inputs.

The fair value hierarchy applies

only to the valuation inputs used in determining the reported fair value of the investments and is not a measure of the investment credit quality.

The fair value hierarchy applies only to the valuation inputs used in determining the reported fair value of the investments and is not a measure of the investment credit quality.

The hierarchy defines three levels of valuation inputs:

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Level 3 inputs

Unobservable inputs that reflect the Company’s own assumptions about the assumptions market participants would use in pricing the asset or liability.

Items Measured at Fair Value on a Recurring Basis

The following table presents information about the Company’s financial instruments that are measured at fair value on a recurring basis (in thousands):

December 31, 2020

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Short-term investments

Long-term investments

Total financial assets

Derivative liability

December 31, 2019

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Total financial assets

Derivative liability

The investments and cash equivalents have been initially valued at the transaction price and subsequently valued, at the end of each reporting period, utilizing third party pricing services or other market observable data.

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After completing its validation procedures, the Company did not adjust or override any fair value measurements provided by the pricing services as of December 31, 2020 and 2019.

During 2019, a derivative liability was recorded as a result of the issuance of the 2019 Notes.

(see note 12).

During the year ended December 31, 2019, a derivative liability was recorded as a result of the issuance of 5.00 % Convertible Senior Second Lien Notes due 2048 (2019 Notes) (see Note 12 Convertible Senior Notes ).

The Company initially determined fair value of the liability upon issuance, and then again at the balance sheet date.

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The fair value of the derivative liability was determined using a Monte-Carlo simulation by calculating fair value of the 2019 Interest Make-Whole Payment to 2019 Note holders based on assumed timing of conversion of the 2019 Notes.

At November 14, 2019 the risk-adjusted discount rate was determined to be 12.06% and entity specific

cost of equity was determined to be 17.05%.

At November 14, 2019, the date the 2019 Notes were issued, the risk-adjusted discount rate was determined to be 12.06 % and entity specific cost of equity was determined to be 17.05 %.

At December 31, 2019, the risk-adjusted discount rate was determined to be 13.08 % and entity specific cost of equity was determined to be 16.54 %.

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December 31, 2019

During 2018, a derivative liability was initially recorded as a result of the issuance of the 2018 Notes.

(see note 12).

The Company initially determined fair value of the liability upon issuance, and then again upon the determination that the derivative instrument met the criteria to be reclassified into equity.

The fair value measurement of the derivative liability is classified as Level 3 under the fair value hierarchy as it has been valued using unobservable inputs.

These inputs include:

(1) a simulated share price at the time of conversion of the Notes, (2) assumed timing of conversion of the Notes, and (3) the risk-adjusted discount rate used to present value the probability-weighted cash flows.

Significant increases or decreases in any of those inputs in isolation could result in a significantly lower or higher fair value measurement.

The fair value of the derivative liability was determined using a binomial lattice model by calculating the fair value of the Notes with the conversion feature as compared to the fair value of the Notes without the conversion feature, with the difference representing the value of the conversion feature, or the derivative liability.

The fair value of the Notes with the conversion feature at issuance was assumed to equal the issuance par value of $150.0 million with an implied discount rate of 12.1% which was determined by discounting the cash flows generated by the binomial lattice model back to the issuance par value.

The fair value of the Notes without the conversion feature was calculated based on cash payment for the full par value of the Notes and was discounted by the implied discount rate of 12.1%.

The fair value of the Notes with and without the conversion feature upon the Company’s shareholders increasing the number of authorized shares of common stock was determined using a similar approach with an implied discount rate of 16.2%, which was determined be evaluating the increase in credit spreads of publicly traded debt over a similar time period.

The following table represents a reconciliation of the derivative liability recorded in connection with the issuance of the 2018 Notes (in thousands):

January 1, 2018

Fair value recognized upon issuance of 2018 Notes

Fair value adjustment

Reclassification to equity

Derivative liability extinguished upon conversion

December 31, 2020

During the year ended December 31, 2020 the derivative liability has been settled upon conversion of all 2019 Notes into shares of common stock (see Note 12.

Convertible Senior Notes ).

Fair Value of Financial Instruments

The fair value of the Company’s long-term debt is determined using a discounted cash flow analysis with current applicable rates for similar instruments as of the consolidated balance sheet dates.

The carrying value of the Company’s long-term debt, including the current portion, at December 31, 2019 and 2018, was approximately $35.1 million and $25.2 million, respectively.

The fair value of the Company’s long-term debt is determined using a discounted cash flow analysis with current applicable rates for similar instruments as of the consolidated balance sheet dates.

The carrying value of the Company’s long-term debt, including the current portion, at December 31, 2020 and 2019, was approximately $ 0.0 million and $ 35.1 million, respectively.

At December 31, 2020 and 2019, the Company estimates that the fair value of its long-term debt, including the current portion, was approximately $ 0.0 and $ 37.0 million, respectively.

The fair value of the Company’s long-term debt was determined using Level 3 inputs.

The fair value of the 2018 Notes and 2019 Notes was approximately $12.5 million and $50.5 million, respectively, as of December 31, 2019, which differs from the carrying value of the Notes.

The fair value of the Notes is influenced by our stock price and stock price volatility.

The fair value of the 2018 Notes and 2019 Notes was determined using Level 2 inputs.

The fair value of the Company’s long-term debt was determined using Level 3 inputs.

The fair value of the 2018 Notes and 2020 Notes (together with the 2019 Notes referred to as the Notes) was approximately $ 0.3 million and $ 30.0 million, respectively, as of December 31, 2020 which differs from the aggregate carrying value of the Notes of $ 19.1 million.

The fair value of the 2018 Notes and 2019 Notes was approximately $ 12.5 million and $ 50.5 million, respectively, as of December 31, 2019 which differs from the aggregate carrying value of the Notes of $ 68.6 million.

The fair value of the Notes is influenced by the Company’s

stock price, stock price volatility, and current market yields.

The fair value of the Notes was determined using Level 3 inputs.

Investments and cash equivalents consist of investments in a U.S.

Government money market funds, overnight repurchase agreements collateralized by government agency securities or U.S.

Treasury securities, corporate bonds and commercial paper of publicly traded companies that are classified as available‑for‑sale pursuant to Accounting Standards Codification (ASC) Topic 320, Investments—Debt and Equity Securities.

Treasury securities, corporate bonds and commercial paper of publicly traded companies that are classified as available-for-sale pursuant to Accounting Standards Codification (ASC) Topic 320, Investments—Debt and Equity Securities .

The Company classifies investments available to fund current operations as current assets on its consolidated balance sheets.

Investments are carried at fair value with unrealized gains and losses included as a component of accumulated other comprehensive income (loss), which is a separate component of stockholders’

equity, until such gains and losses are realized.

Investments are carried at fair value with unrealized gains and losses included as a component of accumulated other comprehensive income (loss), which is a separate component of stockholders’ equity, until such gains and losses are realized.

The fair value of these securities is based on quoted prices for identical or similar assets.

If a decline in the fair value is considered other-than-temporary, based on available evidence, the unrealized loss is transferred from other comprehensive loss to the consolidated statements of operations and comprehensive loss.

The Company reviews investments for other‑than‑temporary impairment whenever the fair value of an investment is less than the amortized cost and evidence indicates that an investment’s carrying amount is not recoverable within a reasonable period of time.

To determine whether an impairment is other‑than‑temporary, the Company considers the intent to sell, or whether it is more likely than not that the Company will be required to sell, the investment before recovery of the investment’s amortized cost basis.

Evidence considered in this assessment includes reasons for the impairment, compliance with the Company’s investment policy, the severity and the duration of the impairment and changes in value subsequent to year end.

The Company reviews investments for other-than-temporary impairment whenever the fair value of an investment is less than the amortized cost and evidence indicates that an investment’s carrying amount is not recoverable within a reasonable period of time.

To determine whether an impairment is other-than-temporary, the Company considers the intent to sell, or whether it is more likely than not that the Company will be required to sell, the investment before recovery of the investment’s amortized cost basis.

Realized gains and losses are determined using the specific identification method and are included in interest income in the consolidated statements of operations and comprehensive loss.

There were no realized gains or losses on investments for the years ended December 31, 2019, 2018 or 2017.

There were two debt securities and fourteen debt securities in an unrealized loss position as of December 31, 2019 and December 31, 2018, respectively.

There were no realized gains or losses on investments for the years ended December 31, 2020, 2019 or 2018 There were one debt security and two debt securities in an unrealized loss position as of December 31, 2020 and December 31, 2019, respectively.

None of these investments had been in an unrealized loss position for more than 12 months as of December 31, 2020 or December 31, 2019, respectively.

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As it was not more likely than not that the Company would be required to sell these securities before the recovery of their amortized cost basis, which may be at maturity, the Company did not consider these investments to be other-than-temporarily impaired as of December 31, 2020 and December 31, 2019, respectively.

Cash, cash equivalents and investments consist of the following (in thousands):

Cash, cash equivalents, restricted cash and investments consist of the following (in thousands):

December 31, 2020

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Cash and money market accounts

Corporate bonds and commercial paper (due within 90 days)

Total cash and cash equivalents

Corporate bonds and commercial paper (due within 1 year)

Corporate bonds, agency bonds and commercial paper (due within 90 days )

Total cash, cash equivalents & restricted cash:

Corporate bonds, agency bonds and commercial paper (due within 1 year )

Corporate bonds, agency bonds and commercial paper (due between 1 and 5 years )

Total investments

Total cash, cash equivalents and investments

Total cash, cash equivalents, restricted cash and investments

December 31, 2019

Cash and cash equivalents:

Cash, cash equivalents & restricted cash:

Cash and money market accounts

Corporate bonds and commercial paper (due within 90 days)

Total cash and cash equivalents

Corporate bonds, agency bonds and commercial paper (due within 90 days )

Total cash, cash equivalents & restricted cash:

Corporate bonds and commercial paper (due within 1 year )

Total investments

Total cash, cash equivalents and investments

Total cash, cash equivalents, restricted cash and investments

Concentrations of credit risk and off-balance sheet risk

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The Company mitigates this risk by maintaining its cash and cash equivalents and investments with high quality, accredited financial institutions.

The management of the Company’s investments is not discretionary on the part of these financial institutions.

As of December 31, 2019, the Company’s cash, cash equivalents and investments were deposited at three financial institutions and it has no significant off-balance sheet concentrations of credit risk, such as foreign currency exchange contracts, option contracts or other hedging arrangements.

As of December 31, 2019 and 2018, there were two customers that cumulatively made up more than 50% of the Company’s trade accounts receivable balance.

The management of the Company’s investments is not discretionary on the part of these financial institutions.

As of December 31, 2020, the Company’s cash, cash equivalents and investments were deposited at three financial institutions and it has no significant off-balance sheet concentrations of credit risk, such as foreign currency exchange contracts, option contracts or other hedging arrangements.

As of December 31, 2020 and 2019, there were two customers, that cumulatively made up more than 50 % of the Company’s trade accounts receivable balance.

The Company assesses the creditworthiness of all its customers and sets and reassesses customer credit limits to ensure collectability of any trade accounts receivable balances are assured.

For the year ended December 31, 2019 and 2018, four customers and two customers, respectively, individually accounted for greater than 10% of the Company’s total revenues.

For the year ended December 31, 2020 and 2019, four customers, individually accounted for greater than 10 % of the Company’s total product revenue, net and license and collaboration revenue.

Property and equipment

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The Company reviews its long-lived assets for impairment whenever events or changes in business circumstances indicate that the carrying value of assets may not be recoverable.

Recoverability is measured by comparison of the asset’s book value to future net undiscounted cash flows that the assets are expected to generate.

If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the book value of the assets exceed their fair value, which is measured based on the projected discounted future net cash flows arising from the assets.

No impairment losses have been recorded through December 31, 2020.

Other assets primarily consist of prepayments made to contract research organizations (CROs).

As of December 31, 2019 and 2018, other assets were primarily comprised of approximately $755,000 of prepaid CRO expenses that the Company assumed and paid to Infinity pursuant to the license agreement between the Company and Infinity.

Other assets primarily consisted of prepayments made to contract research organizations (CROs).

As of December 31, 2020 and 2019, other assets were primarily comprised of approximately $ 0.0 million and $ 0.8 million respectively, of prepaid CRO expenses that the Company assumed and paid to Infinity pursuant to the license agreement between the Company and Infinity.

As part of the sale of COPIKTRA to Secura, the prepaid balance was transferred to Secura and included in cost of sales - sale of COPIKTRA license and related assets in the statement of operations and comprehensive loss for the year ended December 31, 2020.

Research and development costs

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● costs associated with COPIKTRA prior to the Company concluding that regulatory approval is probable and that its net realizable value is recoverable.

The Company accounts for nonrefundable advance payments for goods and services that will be used in future research and development activities as expenses when the services have been performed or when the goods have been received rather than when the payment is made.

Costs for certain development activities, such as clinical trial expenses, are recognized based on an evaluation of the progress to completion of specific tasks using data such as patient enrollment, clinical site activations, and information provided to the Company by its vendor on their actual costs incurred or level of effort expended.

Payments for these activities are based on the terms of the individual arrangements, which may differ from the pattern of costs incurred, and are reflected on the consolidated balance sheets as prepaid expenses and other current assets or accrued expenses.

Stock-based compensation

The Company recognizes stock-based compensation expense for stock options, and restricted stock units (RSUs) issued to employees and directors based on the grant date fair value of the awards on a straight- line basis over the requisite service period, which typically is the vest period.

The Company recognized stock-based compensation for shares issued to employees under our employee stock purchase plan (ESPP) plan Historically, the Company recorded stock‑based compensation expense for stock options and RSUs issued to non‑employees based on the estimated fair value of the services received or of the equity instruments issued, whichever is more reliably measured, based on the vesting date fair value of the awards on a straight‑line basis over the vesting period.

The Company recognized stock-based compensation for shares issued to employees under the Company’s employee stock purchase plan (ESPP) plan Historically, the Company recorded stock ‑based compensation expense for stock options and RSUs issued to non‑employees based on the estimated fair value of the services received or of the equity instruments issued, whichever is more reliably measured, based on the vesting date fair value of the awards on a straight‑ line basis over the vesting period.

Effective January 1, 2019, the Company recognizes stock-based compensation expense for stock options and RSUs issued to non-employees based on the grant date fair value of the awards on the straight-line basis over the requisite service period.

Awards subject to performance-based vesting requirements are expensed utilizing an accelerated attribution model if achievement of the performance criteria is determined to be probable.

The Company accounts for forfeitures as they occur.

The grant date fair value of stock options is estimated using the Black- Scholes option pricing model that takes into account the fair value of its common stock, the exercise price, the expected life of the option, the expected volatility of its common stock, expected dividends on its common stock, and the risk-free interest rate over the expected life of the option.

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The expected term is applied to the stock option grant group as a whole, as the Company does not expect substantially different exercise or post-vesting termination behavior among its population.

The Company has not paid and do not anticipate paying cash dividends on our shares of common stock;

therefore, the expected dividend yield is assumed to be zero.

The Company issues shares under the Company’s employee stock purchase plan (ESPP) to employees.

Stock-based compensation expense for discounted purchases under the ESPP is measured using the Black-Scholes

model to compute the fair value of the lookback provision plus the purchase discount and is recognized as compensation expense over the offering period .

For annual periods ending on or before December 31, 2017, the computation of expected volatility is based on the historical volatility of five companies, including the Company and a representative group of four public biotechnology and life sciences companies with similar characteristics to the Company, including similar stage of product development and therapeutic focus.

As of the first quarter of 2018, the Company had sufficient company-specific historical and implied volatility information.

As such, for the annual period ending December 31, 2018, the computation of expected volatility is based only on the historical volatility of the Company’s common stock.

The Company has not paid and do not anticipate paying cash dividends on the Company’s shares of common stock;

therefore, the

expected dividend yield is assumed to be zero.

The computation of expected volatility is based on the historical volatility of the Company’s common stock.

The risk-free interest rate is based on a treasury instrument whose term is consistent with the expected term of the stock options.

The Company accounts for forfeitures as they occur.

Stock‑based awards issued to non-employees, including directors for non‑board related services, are accounted for based on the fair value of such services received or of the equity instruments issued, whichever is more reliably measured.

Stock option awards to non-employees are revalued at each reporting date and upon vesting using the Black‑Scholes option pricing model and are expensed on a straight‑line basis over the vesting period.

Effective January 1, 2019, the Company adopted FASB ASC Topic 842, Leases (ASC 842).

The Company issues shares under the Company’s employee stock purchase plan (ESPP) to employees.

Stock-based compensation expense for discounted purchases under the ESPP is measured using the Black-Scholes model to compute the fair value of the lookback provision plus the purchase discount and is recognized as compensation expense over the offering period .

Effective January 1, 2019, the Company adopted ASC Topic 842, Leases (ASC 842).

This standard requires lessees to recognize in the statement of financial position a liability to make lease payments and a right-of-use asset representing its right to use the underlying asset for the lease term for both finance and operating leases.

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A lease is identified where an arrangement conveys the right to control the use of identified property, plant, and equipment for a period of time in exchange for consideration.

Leases which are identified within the scope of ASC 842 and which have a term greater than one year are recognized on the Company’s consolidated balance sheets as right-of-use assets, lease liabilities and, if applicable, long-term lease liabilities.

The Company has elected not to recognize leases with terms of one year or less on its consolidated balance sheets.

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Revenue Recognition

The Company recognizes revenue when its customer obtains control of promised goods or services, in an amount that reflects the consideration which the Company expects to receive in exchange for those goods or services, in accordance with ASC 606 Revenue from Contracts with Customers .

To determine revenue recognition contracts with its customers, the Company performs the following five step assessment:

(i) identify the contract(s)

with a customer;

The Company recognizes revenue when its customer obtains control of promised goods or services, in an amount that reflects the consideration which the Company expects to receive in exchange for those goods or services in accordance with ASC Topic 606 Revenue from Contracts with Customers (ASC 606).

To determine revenue recognition for contracts with its customers, the Company performs the following five step assessment:

(i) identify the contract(s) with a customer;

(ii) identify the performance obligations in the contract;

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The Company then recognizes as revenue the amount of the transaction price that is allocated to the respective performance obligation when (or as) the performance obligation is satisfied.

Product Revenue, Net –

The Company sells COPIKTRA to a limited number of specialty pharmacies and specialty distributors in the United States.

These customers subsequently resell COPIKTRA either directly to patients, or to community hospitals or oncology clinics with in-office dispensaries who in turn distribute COPIKTRA to patients.

In addition to distribution agreements with customers, the Company also enters into arrangements with (1) certain government agencies and various private organizations (Third-Party Payers), which may provide for chargebacks or discounts with respect to the purchase of COPIKTRA, and (2) Medicare and Medicaid, which may provide for certain rebates with respect to the purchase of COPIKTRA.

The Company recognizes revenue on sales of COPIKTRA when a customer obtains control of the product, which occurs at a point in time (typically upon delivery).

Product Revenue, Net

Product Revenue, Net – The Company sold COPIKTRA to a limited number of specialty pharmacies and specialty distributors in the United States.

These customers subsequently resold COPIKTRA either directly to patients or to community hospitals or oncology clinics with in-office dispensaries who in turn distribute COPIKTRA to patients.

In addition to distribution agreements with customers, the Company also entered into arrangements with (1) certain government agencies and various private organizations (Third-Party Payers), which may provide for chargebacks or discounts with respect to the purchase of COPIKTRA, and (2) Medicare and Medicaid, which may provide for certain rebates with respect to the purchase of COPIKTRA.

The Company recognized revenue on sales of COPIKTRA when a customer obtains control of the product, which occurs at a point in time (typically upon delivery).

Product revenues are recorded at the wholesale acquisition costs, net of applicable reserves for variable consideration.

Components of variable consideration include trade discounts and allowances, Third-Party Payer chargebacks and discounts, government rebates, other incentives, such as voluntary co-pay assistance, product returns, and other allowances that are offered within contracts between the Company and customers, payors, and other indirect customers relating to the Company’s sale of COPIKTRA.

These reserves, as detailed below, are based on the amounts earned, or to be claimed on the related sales, and are classified as reductions of accounts receivable or a current liability.

These estimates take into consideration a range of possible outcomes based upon relevant factors such as customer contract terms, information received from third parties regarding the anticipated payor mix for COPIKTRA, known market events and trends, industry data, and forecasted customer buying and payment patterns.

Overall, these reserves reflect the Company’s best estimates of the amount of consideration to which it is entitled with respect to sales made.

The amount of variable consideration which is included in the transaction price may be constrained and is included in the net sales price only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized under contracts will not occur in a future period.

The Company’s analyses contemplate the application of the constraint in accordance with ASC 606.

For the year ended December 31, 2019, the Company determined a material reversal of revenue would not occur in a future period for the estimates detailed below and, therefore, the transaction price was not reduced further.

Actual amounts of consideration ultimately received may differ from the Company’s estimates.

If actual results in the future vary from the Company’s estimates, the Company will adjust these estimates, which would affect net product revenue and earnings in the period such variances become known.

The Company’s analyses contemplate the application of the constraint in accordance with ASC 606.

For the years ended December 31, 2020, 2019 and 2018, the Company determined a material reversal of revenue would not occur in a future period for the estimates detailed below and, therefore, the transaction price was not reduced further.

Actual amounts of consideration ultimately received may differ from the Company’s estimates.

Trade Discounts and Allowances:

The Company generally provides customers with invoice discounts on sales of COPIKTRA for prompt payment, which are explicitly stated in the Company’s contracts and are recorded as a reduction of revenue in the period the related product revenue is recognized.

In addition, the Company compensates its specialty distributor customers for sales order management, data, and distribution services.

The Company has determined such services are not distinct from the Company’s sale of COPIKTRA to the specialty distributor customers and, therefore, these payments have also been recorded as a reduction of revenue within the consolidated statements of operations and comprehensive loss through December 31, 2019.

The Company generally provided customers with invoice discounts on sales of COPIKTRA for prompt payment, which are explicitly stated in the Company’s contracts and are recorded as a reduction of revenue in the period the related product revenue is recognized.

In addition, the Company compensated its specialty distributor customers for sales order management, data, and distribution services.

Third-Party Payer Chargebacks, Discounts and Fees:

The Company executes contracts with Third-Party Payers which allow for eligible purchases of COPIKTRA at prices lower than the wholesale acquisition cost charged to customers who directly purchase the product from the Company.

In some cases, customers charge the Company for the difference between what they pay for COPIKTRA and the ultimate selling price to the Third-Party Payers.

The Company executed contracts with Third-Party Payers which allowed for eligible purchases of COPIKTRA at prices lower than the wholesale acquisition cost charged to customers who directly purchase the product from the Company.

In some cases, customers charged the Company for the difference between what they paid for COPIKTRA and the ultimate selling price to the Third-Party Payers.

These reserves are established in the same period that the related revenue is recognized, resulting in a reduction of product revenue and accounts receivable, net.

Chargeback amounts are generally determined at the time of resale to

the qualified Third-Party Payer by customers, and the Company generally issues credits for such amounts within a few weeks of the customer’s notification to the Company of the resale.

Chargeback amounts are generally determined at the time of resale to the qualified Third-Party Payer by customers, and the Company generally issues credits for such amounts within a few weeks of the customer’s notification to the Company of the resale.

Reserves for chargebacks consist of credits that the Company expects to issue for units that remain in the distribution channel inventories at the end of each reporting period that the Company expects will be sold to Third-Party Payers, and chargebacks that customers have claimed, but for which the Company has not yet issued a credit.

In addition, the Company compensates certain Third-Party Payers for administrative services, such as account management and data reporting.

These administrative service fees have also been recorded as a reduction of product revenue within the consolidated statements of operations and comprehensive loss through December 31, 2019.

In addition, the Company compensated certain Third-Party Payers for administrative services, such as account management and data reporting.

These administrative service fees have also been recorded as a reduction of product revenue within the consolidated statements of operations and comprehensive loss for the years ended December 31, 2020, 2019, and 2018.

Government Rebates:

The Company is subject to discount obligations under state Medicaid programs and Medicare.

The Company was subject to discount obligations under state Medicaid programs and Medicare.

These reserves are recorded in the same period the related revenue is recognized, resulting in a reduction of product revenue and the establishment of a current liability which is included in accrued expenses on the consolidated balance sheets.

For Medicare, the Company also estimates the number of patients in the prescription drug coverage gap for whom the Company will owe an additional liability under the Medicare Part D program.

The Company’s liability for these rebates consists of invoices received for claims from prior quarters that have not been paid or for which an invoice has not yet been received, estimates of claims for the current quarter, and estimated future claims that will be made for product that has been recognized as revenue, but which remains in the distribution channel inventories at the end of each reporting period.

Other Incentives:

Other incentives which the Company offers include voluntary co-pay assistance programs, which are intended to provide financial assistance to qualified commercially-insured patients with prescription drug co-payments required by payors.

Other incentives which the Company offered include voluntary co-pay assistance programs, which are intended to provide financial assistance to qualified commercially-insured patients with prescription drug co-payments required by payors.

The calculation of the accrual for co-pay assistance is based on an estimate of claims and the cost per claim that the Company expects to receive for product that has been recognized as revenue but remains in the distribution channel inventories at the end of each reporting period.

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The Company estimates product return liabilities using available industry data and its own sales information, including its visibility into the inventory remaining in the distribution channel.

Subject to certain limitations, the Company’s return policy allows for eligible returns of COPIKTRA for credit under the following circumstances:

● Receipt of damaged product;

● Shipment errors that were a result of an error by the Company;

Expired product that is returned during the period beginning three months prior to the product’s expiration and ending six months after the expiration date;

● Expired product that is returned during the period beginning three months prior to the product’s expiration and ending six months after the expiration date;

● Product subject to a recall;

● Product that the Company, at its sole discretion, has specified can be returned for credit.

As of December 31, 2019, the Company has not received any returns.

If taxes should be collected from customers relating to product sales and remitted to governmental authorities, they will be excluded from product revenue.

The Company expenses incremental costs of obtaining a contract when incurred if the expected amortization period of the asset that the Company would have recognized is one year or less.

However, no such costs were incurred during the year ended December 31, 2019.

Licenses and Sales of Intellectual Property

Exclusive Licenses of Intellectual Property - The Company may enter into collaboration and licensing arrangements for research and development, manufacturing, and commercialization activities with collaboration partners for the development and commercialization of its product candidates, which have components within the scope of ASC 606.

The arrangements generally contain multiple elements or deliverables, which may include (i) licenses, or options to obtain licenses, to the Company's intellectual property, (ii) research and development

activities performed for the collaboration partner, (iii) participation on joint steering committees, and (iv) the manufacturing of commercial, clinical or preclinical material.

The arrangements generally contain multiple elements or deliverables, which may include (i) licenses, or options to obtain licenses, to the Company’s intellectual property or sale of the Company’s license, (ii) research and development activities performed for the collaboration partner, (iii) participation on joint steering committees, and (iv) the manufacturing of commercial, clinical or preclinical material.

Payments pursuant to these arrangements typically include non-refundable, upfront payments, milestone payments upon the achievement of significant development events, research and development reimbursements, sales milestones, and royalties on product sales.

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and d) the measure of progress in step (v) above.

The Company uses judgment to determine whether milestones or other variable consideration, except for royalties, should be included in the transaction price as described further below.

If a license to the Company’s intellectual property is determined to be distinct from the other promises or performance obligations identified in the arrangement, the Company recognizes revenue from non-refundable, upfront fees allocated to the license when the license is transferred to the customer and the customer is able to use and benefit from the license.

The Company uses judgment to determine whether milestones or other variable consideration, except for royalties on license arrangements, should be included in the transaction price as described further below.

In assessing whether a promise or performance obligation is distinct from the other elements, the Company considers factors such as the research, development, manufacturing and commercialization capabilities of the collaboration partner and the availability of its associated expertise in the general marketplace.

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For licenses that are combined with other promises, the Company utilizes judgment to assess the nature of the combined performance obligation to determine whether the combined performance obligation is satisfied over time or at a point in time and, if over time, the appropriate method of measuring progress for purposes of recognizing revenue.

The Company evaluates the measure of progress of each reporting period and, if necessary, adjusts the measure of performance and related revenue recognition.

The Company evaluates the measure as of progress of each reporting period and, if necessary, adjusts the measure of performance and related revenue recognition.

The measure of progress, and thereby periods over which revenue should be recognized, is subject to estimates by management and may change over the course of the arrangement.

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If it is probable that a significant revenue reversal would not occur, the associated milestone value is included in the transaction price.

Milestone payments that are not within the control of the Company or the licensee, such as regulatory approvals, are not considered probable of

being achieved until those approvals are received.

Milestone payments that are not within the control of the Company or the licensee, such as regulatory approvals, are not considered probable of being achieved until those approvals are received.

The Company evaluates factors such as the scientific, clinical, regulatory, commercial, and other risks that must be overcome to achieve the respective milestone in making this assessment.

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Any such adjustments are recorded on a cumulative catch-up basis, which would affect revenues and earnings in the period of adjustment.

For arrangements that include sales-based royalties, including milestone payments based on a level of sales, and the license is deemed to be the predominant item to which the royalties relate, the Company recognizes revenue at the later of (i) when the related sales occur, or (ii) when the performance obligation to which some or all of the royalty has been allocated has been satisfied (or partially satisfied).

For license arrangements that include sales-based royalties, including milestone payments based on a level of sales, and the license is deemed to be the predominant item to which the royalties relate, the Company recognizes revenue at the later of (i) when the related sales occur, or (ii) when the performance obligation to which some or all of the royalty has been allocated has been satisfied (or partially satisfied).

To date, the Company has not recognized any royalty revenue resulting from any of its licensing arrangements.

For sales of license and intellectual property, that include sale-based royalties, including milestone payments based on a level of sales, the Company evaluates whether the royalties and sales based milestones are considered probable of being achieved and estimates the amount of royalties to include over the contractual term using the expected value method and estimates the sales-based milestones using the most likely amount method.

If it is probable that a significant revenue reversal would not occur, the associated royalty and milestone value is included in the transaction price.

Royalties and sales-based milestones for territories for which there is not regulatory approval are not considered probable until such regulatory approval is achieved.

The Company evaluates factors such as whether consideration is outside of the Company’s control, timeline for when the uncertainty will be resolved and historical sales of COPIKTRA if applicable.

There is considerable judgment involved in determining whether it is probable that a significant revenue reversal would not occur.

At the end of each subsequent reporting period, the Company reevaluates the probability of achievement of all milestones subject to constraint and amount of royalty revenue to be received and, if necessary, adjusts its estimate of the overall transaction price.

Any such adjustments are recorded on a cumulative catch-up basis, which would affect revenues and earnings in the period of adjustment.

Collaborative Arrangements:

Contracts are considered to be collaborative arrangements when they satisfy the following criteria defined in ASC 808, Collaborative Arrangements :

Contracts are considered to be collaborative arrangements when they satisfy the following criteria defined in ASC Topic 808, Collaborative Arrangements (ASC 808):

(i) the parties to the contract must actively participate in the joint operating activity and (ii) the joint operating activity must expose the parties to the possibility of significant risk and rewards, based on whether or not the activity is successful.

Payments received from or made to a partner that are the result of a collaborative relationship with a partner, instead of a customer relationship, such as co-development activities, are recorded as a reduction or increase to research and development expense, respectively.

For a complete discussion of the Company’s accounting for its license and collaboration agreements, see Note 16, License and collaboration agreements .

Accounts Receivable, Net

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The Company analyzes accounts that are past due for collectability and provides an allowance for receivables when collection becomes doubtful.

Given the nature and limited history of collectability of the Company’s accounts receivable, an allowance for doubtful accounts is not deemed necessary at December 31, 2019.

Given the nature and limited history of collectability of the Company’s accounts receivable, an allowance for doubtful accounts is not deemed necessary at December 31, 2020.

The Company capitalizes inventories manufactured in preparation for initiating sales of a product candidate when the related product candidate is considered to have a high likelihood of regulatory approval and the related costs are expected to be recoverable through sales of the inventories.

In determining whether or not to capitalize such inventories, the Company evaluates, among other factors, information regarding the product candidate’s safety and efficacy, the status of regulatory submissions and communications with regulatory authorities and the outlook for commercial sales, including the existence of current or anticipated competitive drugs and the availability of reimbursement.

In addition, the Company evaluates risks associated with manufacturing the product candidate, including the ability of the Company’s third-party suppliers to complete the validation batches and the remaining shelf life of the inventories.

Costs associated with manufacturing product candidates prior to satisfying the inventory capitalization criteria are charged to research and development expense as incurred.

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The Company assesses its finite-lived intangible assets for impairment if indicators are present or changes in circumstance suggest that impairment may exist.

Events that could result in an impairment include the receipt of additional clinical or nonclinical data regarding one of the Company’s drug candidates or a potentially competitive drug candidate, changes in the clinical development program for a drug candidate, or new information regarding potential sales for the drug.

If impairment indicators are present or changes in circumstance suggest that impairment may exist, the Company performs a recoverability test by comparing the sum of the estimated undiscounted cash flows of each finite-lived intangible asset to its carrying value on the consolidated balance sheets.

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Deferred tax assets are reduced by a valuation allowance if current evidence indicates that it is considered more likely than not that these benefits will not be realized.

The Company recognizes the tax effects of an uncertain tax position only if it is more likely than not that it will be sustained based solely on its technical merits as of the reporting date and only in an amount more likely than not that it will be sustained upon review by the tax authorities.

The Company evaluates uncertain tax positions on a quarterly basis and adjust the liability for changes in facts and circumstances, such as new regulations or interpretations by the taxing authorities, new information obtained during a tax examination, significant amendment to an existing tax law, or resolution of an examination.

To the extent that the final tax outcome of these matters is different than the amounts recorded, such differences will impact the income tax provision in the period in which such determination is made.

The resolution of its uncertain income tax positions is dependent on uncontrollable factors such as law changes, new case law, and the willingness of the income tax authorities to settle, including the timing thereof and other factors.

Although the Company does not anticipate significant changes to its uncertain income tax positions in the next twelve months, items outside of its control could cause its uncertain income tax positions to change in the future, which would be recorded in its statements of operations.

Interest and/or penalties related to income tax matters are recognized as a component of income tax expense.

Net operating loss (NOL) and tax credit carryforwards are subject to review and possible adjustment by the Internal Revenue Service and state tax authorities and may become subject to an annual limitation in the event of certain cumulative changes in the ownership interest of significant stockholders over a three-year period in excess of 50%, as defined under Sections 382 and 383 of the Internal Revenue Code, as well as similar state provisions.

This could limit the amount of tax attributes that can be utilized annually to offset future taxable income or tax liabilities.

The amount of the annual limitation is determined based on the value of the Company immediately prior to the ownership change.

Subsequent ownership changes may further affect the limitation in future years.

The Company experienced a greater than 50% change in ownership during the year ended December 31, 2020.

For more details please Note 14.

income taxes.

Net loss per share

Basic net loss per common share is calculated by dividing net loss applicable to common stockholders by the weighted-average number of common shares outstanding during the period.

Diluted net loss per common share is calculated by increasing the denominator by the weighted-average number of additional shares that could have been outstanding from securities convertible into common stock, such as stock options, restricted stock units and warrants (using the “treasury stock”

method) and Notes (using the “if-converted”

method), unless their effect on net loss per share is antidilutive.

The effect of computing diluted net loss per common share was antidilutive for any potentially issuable shares of common stock from the conversion of stock options, restricted stock units and warrants and, as such, have been excluded from the calculation.

However, under the “if-converted”

method, convertible instruments that are-in-the-money, are assumed to have been converted as of the beginning of the period or when issued, if later.

However, under the “if-converted” method, convertible instruments that are-in-the-money, are assumed to have been converted as of the beginning of the period or when issued, if later.

Additionally, the effects of any interest expense and changes in fair value of bifurcated derivatives shall be added back to the numerator of the diluted net loss per share calculation.

Refer to Note 13 for further details related to the calculation of net loss per share.

Refer to Note 13, net loss per share for further details related to the calculation of net loss per share.

Recently Issued Accounting Standards Updates

In November 2018, the Financial Accounting Standards Board (FASB) issued Accounting Standard Update (ASU) 2018-18, Collaborative Arrangements (Topic 808):

Clarifying the Interaction between Topic 808 and Topic 606 , which makes targeted improvements for collaborative arrangements to clarify that certain transactions between collaborative arrangement participants should be accounted for as revenue under Topic 606 when the collaborative arrangement participant is a customer in the context of a unit of account, adds unit of account guidance in Topic 808 to align with guidance in Topic 606, and clarifies presentation of certain revenues with a collaborative arrangement participant which are not directly related to a third party.

ASU 2018-18 is effective for annual and interim periods beginning after December 15, 2019, with early adoption permitted.

The Company has not elected to early adopt this standard and is currently evaluating the impact the adoption of the standard will have on its consolidated financial statements and related disclosures.

In August 2018, the Financial Accounting Standards Board (FASB) issued Accounting Standard Update (ASU) 2018-15, Intangibles-Goodwill and Other-Internal Use Software:

Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement that is a Service Contract , which aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software.

ASU 2018-15 is effective for annual and interim periods beginning after December 15, 2019, with early adoption permitted.

In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820):

Disclosure Framework—Changes to the Disclosure Requirements for Fair Value Measurement , which eliminates certain disclosure requirements for fair value measurements for all entities, requires public entities to disclose certain new information and modifies some disclosure requirements.

ASU 2018-13 is effective for all entities for annual and interim periods beginning after December 15, 2019.

An entity is permitted to early adopt either the entire standard or only the provisions that eliminate or modify requirements.

In June 2016, the FASB issued ASU No.

2016-13, Measurement of Credit Losses on Financial Instruments (“ASU 2016-13”).

In June 2016, the FASB issued Accounting Standard Update (ASU) No.

2016-13, Measurement of Credit Losses on Financial Instruments (ASU 2016-13).

ASU 2016-13 will replace the incurred loss impairment methodology under current GAAP with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates.

In November 2019, the FASB issued ASU 2019-10, Financial Instruments –

Credit Losses (Topic 326), Derivatives (Topic 815), and Leases (Topic 842) .

In November 2019, the FASB issued ASU 2019-10, Financial Instruments – Credit Losses (Topic 326), Derivatives (Topic 815), and Leases (Topic 842).

This ASU delayed the required adoption for SEC filers that are smaller reporting companies as of their determination on November 15, 2019, until annual and interim periods beginning after December 15, 2022, with early adoption permitted.

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In December 2019, the FASB issued ASU No 2019-12, Simplifying Accounting for Income Taxes (ASU 2019-12).

ASU 2019-12 removes certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocation, calculating income taxes in interim periods and adds certain guidance to remove complexity in certain areas.

ASU 2019-12 removes certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocations, calculating income taxes in interim periods, and adds certain guidance to remove complexity in certain areas.

ASU 2019-12 is effective for all entities for annual and interim periods beginning after December 15, 2020.

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In August 2020, the FASB issued No.

ASU 2020-06, Debt – Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging – Contracts in Entity’s Own Equity (Subtopic 815 – 40) (ASU 2020-06).

ASU 2020-06 simplifies the complexity associated with applying U.S.

GAAP for certain financial instruments with characteristics of liabilities and equity.

More specifically, the amendments focus on the guidance for convertible instruments and derivative scope exception for contracts in an entity’s own equity.

The ASU also simplifies the diluted earnings per share (EPS) calculation in certain areas.

For smaller reporting companies, ASU 2020-06 is effective for fiscal years beginning after December 15, 2023, and interim periods within those fiscal years.

The Company is currently evaluating the impact ASU 2020-06 will have on its consolidated financial statements and related disclosures.

Recently Adopted Accounting Standards Updates

In June 2018, the FASB issued ASU 2018-07, Compensation –

Stock Compensation (Topic 718):

Improvements to Nonemployee Share-Based Payment Accounting, which expands the scope of Topic 718 to include all share-based payment transactions for acquiring goods and services to be used or consumed in its own operations by issuing share-based payment awards.

ASU 2018-07 also clarifies that Topic 718 does not apply to share-based

payments used to effectively provide (1) financing to the issuer or (2) awards granted in conjunction with selling goods or services to customers as part of a contract and services from nonemployees.

ASU 2018-07 specifies that Topic 718 applies to all share-based payment transactions accounted for under ASC 606.

ASU 2018-07 was effective for annual and interim periods beginning after December 15, 2018, with early adoption permitted, but no earlier than the date on which ASC 606 is adopted.

The Company adopted this standard prospectively effective January 1, 2019.

The adoption of this ASU did not have an effect on the Company’s consolidated financial statements or related disclosures.

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) , which supersedes the guidance under FASB Accounting Standards Codification (ASC) Topic 840, Leases , resulting in the creation of FASB ASC Topic 842, Leases (ASC 842).

ASU 2016-02 requires lessees to recognize in the statement of financial position a liability to make lease payments and a right-of-use asset representing its right to use the underlying asset for the lease term for both finance and operating leases.

The guidance also eliminates the current real estate-specific provisions for all entities.

In July 2018, the FASB issued ASU 2018-11, Leases (Topic 842):

Targeted Improvements , which provides entities with relief from the costs of implementing certain aspects of the new leasing standard, ASU 2016-02.

Under the amendments in ASU 2018-11, entities may elect not to restate the comparative periods presented when transitioning to ASC 842 (optional transition method) and lessors may elect not to separate lease and non-lease components when certain conditions are met (lessor relief practical expedient).

The optional transition method applies to entities that have not yet adopted ASU 2016-02, which is effective for fiscal years, and interim periods within those years, beginning after December 15, 2018, with early adoption permitted.

The Company adopted this standard using the optional transition method effective January 1, 2019.

Upon adoption of this standard, the Company recognized a lease liability and a corresponding right-of use asset of $4.0 million and $3.4 million, respectively, and derecognized a deferred rent liability and a corresponding lease incentive obligation of $0.4 million and $0.2 million, respectively.

The Company did not record any cumulative effect adjustment to accumulated deficit as a result of adopting this standard.

The Company also elected to adopt the practical expedients upon transition, which permit companies to not reassess lease identification, classification, and initial direct costs under ASU 2016-02 for leases that commenced prior to the effective date.

During the third quarter of 2018, the Company began capitalizing inventory costs for COPIKTRA manufactured in preparation for its launch in the United States based on its evaluation of, among other factors, the status of the COPIKTRA NDA in the United States and the ability of its third-party suppliers to successfully manufacture commercial quantities of COPIKTRA, which provided the Company with reasonable assurance that the net realizable value of the inventory would be recoverable.

In November 2018, the Financial Accounting Standards Board (FASB) issued ASU 2018-18, Collaborative Arrangements (ASU 2018-18):

Clarifying the Interaction between ASC 808 and ASC 606, which makes targeted improvements for collaborative arrangements to clarify that certain transactions between collaborative arrangement participants should be accounted for as revenue under ASC 606 when the collaborative arrangement participant is a customer in the context of a unit of account, adds unit of account guidance in ASC 808 to align with guidance in ASC 606, and clarifies presentation of certain revenues with a collaborative arrangement participant which are not directly related to a third party.

ASU 2018-18 is effective for annual and interim periods beginning after December 15, 2019, with early adoption permitted.

This guidance requires entities to adopt on a retrospective basis to the date the Company adopted ASC 606.

The Company adopted ASU 2018-18 as of January 1, 2020 on a retrospective basis to January 1, 2018, the date at which the Company adopted ASC 606, and it did not have a material impact on the Company’s consolidated financial statements or disclosures.

In August 2018, the FASB issued ASU 2018-15, Intangibles-Goodwill and Other-Internal Use Software:

Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement that is a Service Contract, which aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software.

ASU 2018-15 is effective for annual and interim periods beginning after December 15, 2019, with early adoption permitted.

The Company adopted this standard effective January 1, 2020 on a prospective basis.

The adoption of this ASU did not have an effect on the Company’s financial statements or disclosures.

In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820):

Disclosure Framework—Changes to the Disclosure Requirements for Fair Value Measurement, which eliminates certain disclosure requirements for fair value measurements for all entities, requires public entities to disclose certain new information and modifies some disclosure requirements.

ASU 2018-13 is effective for all entities for annual and interim periods beginning after December 15, 2019.

The Company adopted this standard effective January 1, 2020 on a prospective basis.

The adoption of this ASU did not have an effect on the Company’s financial statements or disclosures.

Inventory consists of the following (in thousands):

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Total inventories

Costs incurred prior to the quarter-ended September 30, 2018 to manufacture COPIKTRA were expensed as operating expenses as incurred.

Pursuant to the Secura APA, discussed further in Note 16.

License, collaboration and commercial agreements , the Company sold its exclusive worldwide license for the research, development, commercialization, and manufacture in oncology indications of products containing COPIKTRA (duvelisib) and certain existing duvelisib inventory.

In connection with the sale to Secura, the Company expensed approximately $ 6.0 million of existing duvelisib inventory transferred to Secura as cost of sales – sale of COPIKTRA license and related assets for the year ended December 31, 2020.

Property and equipment, net

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Total property and equipment, net

During the year ended December 31, 2018, an amendment to the Company’s existing office space lease was executed whereby the Company relocated from its previous 15,197 rentable square foot location to an adjacent 27,810 rentable square foot location within the same building.

As a result of this amendment, the Company shortened the useful life of the leasehold improvements related to the original location and depreciated this balance through the date which it vacated the original space.

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Intangible assets

The Company’s intangible assets consist of the following (in thousands):

December 31, 2019

Estimated useful life

Acquired and in-licensed rights

accumulated amortization

Total intangible assets, net

Acquired and in-licensed rights as of December 31, 2019, consist of a $22.0 million milestone payment which became payable upon the FDA marketing approval on September 24, 2018 pursuant to the amended and restated license agreement with Infinity.

The Company made a milestone payment of $22.0 million to Infinity in November 2018.

The Company recorded approximately $1.6 million and $0.4 million in amortization expense related to finite-lived intangible assets during the year ended December 31, 2019 and December 31, 2018, respectively, using straight-line methodology.

Estimated future amortization expense for finite-lived intangible assets as of December 31, 2019 is approximately $1.6 million per year thereafter.

Intangible assets consisted of a $ 22.0 million milestone payment which became payable upon the FDA marketing approval for COPIKTRA on September 24, 2018, pursuant to the amended and restated license agreement with Infinity Pharmaceuticals, Inc.

The Company made the milestone payment of $ 22.0 million to Infinity in November 2018.

The Company recorded approximately $ 0.8 million, $ 1.6 million, and $ 0.4 million in amortization expense related to finite-lived intangible assets during the year ended December 31, 2020, December 31, 2019, and December 31, 2018, respectively, using the straight-line methodology.

On July 2, 2020, the Company’s intangible asset met the Held for Sale criteria and the Company ceased amortization.

Pursuant to the Secura APA, discussed further in Note 16.

License, collaboration and commercial agreements the Company sold its exclusive worldwide license for the research, development, commercialization, and manufacture in oncology indications of products containing COPIKTRA (duvelisib) to which the Company’s intangible asset related thereto.

In connection with the sale the Company expensed the remaining balance of $ 19.2 million as cost of sales – sale of COPIKTRA license and related assets during the year ended December 31, 2020.

Accrued expenses

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Compensation and related benefits

Contract research organization costs

Research and development expenses

Commercialization costs

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Long-term debt

On March 21, 2017 (Closing Date), the Company entered into a term loan facility of up to $25.0 million with Hercules Capital, Inc.

The term loan facility is governed by a loan and security agreement, dated March 21, 2017 (the Original Loan Agreement), which originally provided for up to four separate advances, of which an aggregate of $15.0 million were drawn down during the year ended December 31, 2017.

The Original Loan Agreement was amended on January 4, 2018, March 6, 2018, and October 11, 2018, (the Amended Loan Agreement) to increase the total borrowing limit under the Original Loan Agreement from $25.0 million up to $50.0 million (the Amended Term Loan), pursuant to certain conditions of funding.

On April 23, 2019 (the Fourth Amendment Date) and November 14, 2019 (the Fifth Amendment Date), the Company entered into the Fourth Amendment and Fifth Amendment (together the Amendments) to the Original Loan Agreement with Hercules.

The Amendments amend the Amended Loan Agreement (together, with the Amendments, the 2019 Term Loan Agreement).

Per the terms of the 2019 Term Loan Agreement, the Company may borrow up to an aggregate of $75.0 million, of which $35.0 million was outstanding immediately as of the Fourth Amendment Date (2019 Term A Loan) as a result of the existing outstanding principal of term loans of $25.0 million under the Amended Loan Agreement being converted into the 2019 Term A Loan, and an additional $10.0 million being drawn on the Fourth Amendment Date.

The remaining $40.0 million of borrowing capacity may be drawn in multiple tranches comprised of (i) a term loan in an amount of up to $15.0 million upon us generating cumulative net product revenues (as defined in the 2019 Term Loan Agreement) of either (a) $37.5 million on or before April 30, 2020 or (b) $50.0 million on or before June 30, 2020 (2019 Term B Loan), and (ii) a term loan in an amount of up to $25.0 million available through December 31, 2021, subject to Hercules’

approval and certain other conditions specified in the 2019 Term Loan Agreement (the 2019 Term C Loan, and together with the 2019 Term A Loan and 2019 Term B Loan, the 2019 Term Loan).

As of December 31, 2019, The Company has borrowed a total of $35.0 million in term loans.

The Fifth Amendment modified the financial covenants and collateral requirements.

As of the Fifth Amendment Date, the Company must maintain cash in an aggregate amount greater than or equal to 100% of the outstanding term loans as collateral, until the Company’s receipt of Net Product Revenues (as defined in the 2019 Term Loan Agreement) of at least $20 million on or before December 31, 2020, measured on a trailing six month basis (Initial Net Product Revenue Threshold).

As of December 31, 2019 the Company has not met the Initial Net Product Revenue Threshold and has recorded $35.0 million as non-current restricted cash on the consolidated balance sheet.

The 2019 Term Loan will mature on December 1, 2022 (2019 Term Loan Maturity Date).

Each advance accrues interest at a floating per annum rate equal to the greater of (a) 9.75% or (b) the lesser of (i) 12.00% and (ii) the sum of (x) 9.75% plus (y) (A) the prime rate minus (B) 5.50%.

The 2019 Term Loan provides for interest-only payments until April 1, 2021, which may be extended to December 1, 2021 pursuant to us generating $40.0 million

in net product revenue on a trailing six-month basis on or prior to December 31, 2020 provided that no event of default has occurred.

Thereafter, amortization payments will be payable monthly in equal installments of principal and interest (subject to recalculation upon a change in prime rates).

The 2019 Term Loan is secured by a lien on substantially all of our assets, other than intellectual property and contains customary covenants and representations, including a liquidity covenant, minimum net revenue covenant, financial reporting covenant and limitations on dividends, indebtedness, collateral, investments, distributions, transfers, mergers or acquisitions, taxes, corporate changes, deposit accounts, and subsidiaries.

On the Fourth Amendment Date, the Company was required to pay any outstanding accrued interest as well as the final payment fee equal to 4.5% on the outstanding principal balance of the Amended Term Loan, or $1.1 million.

No prepayment charges were due as a result of executing the Amendment or conversion of the existing term loans into 2019 Term A Loans.

The events of default under the 2019 Term Loan Agreement include, without limitation, and subject to customary grace periods, (i) any failure by us to make any payments of principal or interest under 2019 Term Loan Agreement, promissory notes or other loan documents, (ii) any breach or default in the performance of any covenant under the 2019 Term Loan Agreement, (iii) any making of false or misleading representations or warranties in any material respect, (iv) our insolvency or bankruptcy, (v) certain attachments or judgments on the assets of Verastem, Inc., or (vi) the occurrence of any material default under certain agreements or obligations of ours involving indebtedness, or (vii) the occurrence of a material adverse effect.

If an event of default occurs, Hercules is entitled to take enforcement action, including acceleration of amounts due under the 2019 Term Loan Agreement.

The 2019 Term Loan Agreement also contains other customary provisions, such as expense reimbursement and confidentiality.

Hercules has indemnification rights and the right to assign the 2019 Term Loan.

The Company assessed all terms and features of the 2019 Term Loan Agreement in order to identify any potential embedded features that would require bifurcation or any beneficial conversion features.

As part of this analysis, the Company assessed the economic characteristics and risks of the 2019 Term Loan Agreement, including put and call features.

The Company determined that all features of the 2019 Term Loan Agreement were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

On March 21, 2017, the Company entered into a term loan facility of up to $ 25.0 million with Hercules Capital, Inc.

The term loan facility is governed by a loan and security agreement, dated March 21, 2017 (the Original Loan Agreement).

The Original Loan Agreement was amended on January 4, 2018, March 6, 2018, October 11, 2018, April 23, 2019, and November 14, 2019 (the Amended Loan Agreement) to increase the total borrowing limit under the Original Loan Agreement from up to $ 25.0 million to up to $ 75.0 million, pursuant to certain conditions of funding.

Per the terms of the Amended Loan Agreement, the Company may borrow up to an aggregate of $ 75.0 million, of which $ 35.0 million was outstanding immediately as of April 23, 2019 (Fourth Amendment Date) (Amended Term A Loan) as a result of the existing outstanding principal of term loans of $ 25.0 million being converted into the Amended Term A Loan, and an additional $ 10.0 million being drawn on the Fourth Amendment Date.

The remaining $ 40.0 million of borrowing capacity may be drawn in multiple tranches comprised of (i) a term loan in an amount of up to $ 15.0 million upon the Company generating cumulative net product revenues (as defined in the Amended Loan Agreement) of either (a) $ 37.5 million on or before April 30, 2020 or (b) $ 50.0 million on or before June 30, 2020 (Amended Term B Loan), and (ii) a term loan in an amount of up to $ 25.0 million available through December 31, 2021, subject to Hercules’ approval and certain other conditions specified in the Amended Loan Agreement (the Amended Term C Loan, and together with the Amended Term A Loan and Amended Term B Loan, the Amended Term Loan).

The funding conditions for the Amended Term B Loan have not been met and expired on June 30, 2020.

Per the Amended Loan Agreement, the Company was required to maintain unrestricted and unencumbered cash in accounts subject to control agreements in favor of Hercules of an aggregate amount greater than or equal to 100 % of the outstanding debt obligations under the Amended Term Loan Agreement, unless and until the Company receives of Net Product Revenues (as defined in the Amended Loan Agreement) of at least $ 20 million on or before December 31, 2020, measured on a trailing six month basis (Initial Net Product Revenue Threshold).

The Company recorded a total $ 35.0 million in restricted cash on the consolidated balance sheet as of December 31, 2019.

The Amended Term Loan was scheduled to mature on December 1, 2022 (Amended Term Loan Maturity Date).

Each advance accrued interest at a floating per annum rate equal to the greater of (a) 9.75 % or (b) the lesser of (i) 12.00 % and (ii) the sum of (x) 9.75 % plus (y) (A) the prime rate (as defined in the Amended Loan Agreement) minus (B) 5.50 % .

The Amended Term Loan provided for interest-only payments until April 1, 2021, which could have been extended to December 1, 2021 subject to the Company generating $ 40.0 million in net product revenue on a trailing six-month basis on or prior to December 31, 2020 provided that no event of default has occurred.

The Amended Term Loan was secured by a lien on substantially all of the Company’s assets, other than intellectual property and contains customary covenants and representations, including a liquidity covenant, minimum net revenue covenant, financial reporting covenant and limitations on dividends, indebtedness, collateral, investments, distributions, transfers, mergers or acquisitions, taxes, corporate changes, deposit accounts, and subsidiaries.

The Company assessed all terms and features of the Amended Loan Agreement in order to identify any potential embedded features that would require bifurcation or any beneficial conversion features.

As part of this analysis, the Company assessed the economic characteristics and risks of the Amended Loan Agreement, including put and call features.

The Company determined that all features of the Amended Loan Agreement were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

The Company reassesses the features on a quarterly basis to determine if they require separate accounting.

There have been no changes to the Company’s original assessment through December 31, 2019.

The future principal payments under the 2019 Term Loan Agreement are as follows as of December 31, 2019 (in thousands):

Total principal payments

There have been no changes to the Company’s original assessment

On November 9, 2020, the Company repaid in full all principal, accrued and unpaid interest, fees, and expenses under the Amended Loan Agreement with Hercules in an aggregate amount of $ 37.4 million (the Payoff Amount).

The Payoff Amount includes the principal balance of $ 35.0 million, final payment fee of $ 1.8 million, prepayment penalty fee of $ 0.5 million, and accrued and unpaid interest of $ 0.1 million.

On November 9, 2020 the Amended Loan Agreement was terminated along with Hercules’ commitment to provide funding under any future term loans.

All liens on substantially all of the Company’s assets to secure the loans under the Amended Loan Agreement have been terminated and released.

The Payoff Amount, excluding accrued interest, exceeded the carrying amount of the Hercules debt on November 9, 2020 by $ 1.6 million.

As a result, the Company recorded a loss on debt extinguishment of $ 1.6 million included in the statements of operations and comprehensive loss for the year ended December 31, 2020.

Product revenue reserves and allowances

As of December 31, 2019, the Company’s sole source of product revenue has been from sales of COPIKTRA in the United States, which it began shipping to customers on September 25, 2018.

The following table summarizes activity in each of the product revenue allowance and reserve categories for the year ended December 31, 2019 (in thousands):

As of December 31, 2020, the Company’s sole source of product revenue has been from sales of COPIKTRA in the United States, which it began shipping to customers on September 25, 2018.

The following table summarizes activity in each of the product revenue allowance and reserve categories for the year ended December 31, 2020 and December 31, 2019 (in thousands):

Beginning Balance at December 31, 2018

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Effective February 15, 2018, the Company amended its lease agreement to relocate within the facility to another location consisting of 27,810 square feet of office space (the Amended Lease Agreement).

The Amended Lease Agreement extends the expiration date of the lease from September 2019 through May 2025.

The Amended Lease Agreement extends the expiration date of the lease from September 2019 through June 2025.

Pursuant to the Amended Lease Agreement, the initial annual base rent amount is approximately $ 660,000 , which increases during the lease term to $ 1.1 million for the last twelve-month period.

The Company has accounted for its Needham, Massachusetts office space as an operating lease.

The Company’s lease contains an option to renew and extend the lease terms and an option to terminate the lease prior to the expiration date.

The Company has not included the lease extension or the termination options within the right-of-use asset and lease liability on the consolidated balance sheets as neither option is reasonably certain to be exercised.

The Company’s lease includes variable non-lease components (e.g., common area maintenance, maintenance, consumables, etc.) that are not included in the right-of-use asset and lease liability and are reflected as an expense in the period incurred.

The Company does not have any other operating or finance leases.

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The elements of lease expense were as follows (dollar amounts in thousands):

December 31, 2019

Year ended December 31,

Lease Expense

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Lease Liability

The Company adopted ASU 2016-02 effective January 1, 2019 using the optional transition method permitted under ASU 2018-11.

Accordingly, periods presented prior to January 1, 2019 were not restated to reflect the accounting principles adopted under ASU 2016-02.

Prior to adoption, the Company recorded rent expense from its Needham office on a straight-line basis over the term of the lease with the deferred rent obligation included in accrued expenses (current portion) and other liabilities (noncurrent portion) in the consolidated balance sheet as of December 31, 2018.

The Company amortized any leasehold improvements over the lesser of the useful life of those improvements or the life of the lease.

For the year ended December 31, 2018, the Company recorded rent expense of $0.8 million.

At December 31, 2018, future minimum lease payments under non-cancelable leases under ASC 840 were as follows (in thousands):

As of December 31, 2019 and 2018, the Company had reserved the following shares of common stock for the issuance of common stock for vested restricted stock units, the exercise of stock options, and an outstanding warrant (in thousands):

As of December 31, 2020 and 2019, the Company had reserved the following shares of common stock for the issuance of common stock for vested restricted stock units, the exercise of stock options, employee stock purchase plan and Notes conversions to shares of common stock (in thousands):

Shares reserved under equity compensation plans

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Shares reserved for 2019 Notes

Shares reserved for 2020 Notes

Employee Stock Purchase Plan

Total shares reserved

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The holders of the common stock are also entitled to receive dividends whenever funds are legally available and when declared by the board of directors.

Private Investment in Public Equity (PIPE)

On February 27, 2020, the Company entered into a Securities Purchase Agreement (Purchase Agreement) with certain institutional investors in which the Company agreed to sell 46,511,628 shares of common stock at a purchase price of $ 2.15 per share, which represents 12.6 % premium to the last reported sale price of the Company’s common stock of $ 1.91 per share on February 27, 2020.

On March 3, 2020, the closing occurred.

The aggregate proceeds net of underwriting discounts and offering costs, were approximately $ 93.8 million.

At-the-market equity offering programs

On March 30, 2017, the Company established an at-the-market equity offering program (ATM) pursuant to which it was able to offer and sell up to $35.0 million of its common stock at then-current market prices from time to time through Cantor, as sales agent.

On March 30, 2017, the Company established an at-the-market equity offering program (ATM) pursuant to which it was able to offer and sell up to $ 35.0 million of its common stock at then-current market prices from time

to time through Cantor, as sales agent.

On August 28, 2017, the Company amended its sales agreement with Cantor to increase the maximum aggregate offering price of shares of common stock that can be sold under the ATM to $ 75.0 million.

Through December 31, 2018, the Company sold 11,518,354 shares under the ATM for net proceeds of approximately $47.3 million (after deducting commissions and other offering expenses).

During the year ended December 31, 2019, there were no sales under the ATM.

As of December 31, 2019 we can issue an additional $26.6 million of gross proceeds under this program.

During the year-ended December 31, 2020, the Company sold 6,769,559 shares under this program for net proceeds of approximately $ 12.2 million (after deducting commissions and other offering expenses).

Through December 31, 2020, the Company has sold a total of 18,287,913 shares under this program for net proceeds of approximately $ 59.6 million (after deducting commissions and other offering expenses).

Equity offering

On May 16, 2018, the Company entered into an underwriting agreement with Cantor relating to the underwritten offering of 7,777,778 shares (the Shares) of the Company’s common stock (the Underwriting Agreement).

Cantor agreed to purchase the Shares pursuant to the Underwriting Agreement at a price of $ 4.31 per share.

In addition, the Company granted Cantor an option to purchase, at the public offering price less any underwriting discounts and commissions, an additional 1,166,666 shares of the Company’s common stock, exercisable for 30 days from the date of the prospectus supplement.

The option was exercised by Cantor in full on May 23, 2018.

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The aggregate proceeds from Consonance, net of offering costs, were approximately $ 42.9 million.

On December 14, 2017, the Company entered into an underwriting agreement with BTIG, LLC relating to the underwritten offering of 8,422,877 shares of its common stock at a price of $2.97 per share, for aggregate proceeds, net of underwriting discounts and offering costs, of approximately $24.7 million.

Stock-based compensation

Stock‑based compensation expense as reflected in the Company’s consolidated statements of operations and comprehensive loss was as follows (in thousands):

Stock-based compensation expense as reflected in the Company’s consolidated statements of operations and comprehensive loss was as follows (in thousands):

Year ended December 31,

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All of the $ 8.1 million, $ 8.5 million, and $ 6.7 million, of stock-based compensation expense recorded during the years ended December 31, 2020, 2019 and 2018, respectively, was recorded to additional paid-in capital.

The Company has awards outstanding under two equity compensation plans, the Amended and Restated 2012 Incentive Plan (the 2012 Plan) and the 2010 Equity Incentive Plan (the 2010 Plan), as well as the inducement award program.

The Company has awards outstanding under two equity compensation plans, the Amended and Restated 2012 Incentive Plan (the Amended 2012 Plan) and the 2010 Equity Incentive Plan (the 2010 Plan), as well as the inducement award program.

Terms of stock award agreements, including vesting requirements, are determined by the board of directors, subject to the provisions of the individual plans.

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2012 Incentive Plan

The 2012 Plan became effective immediately upon the closing of the Company’s IPO in February 2012.

Upon effectiveness of the 2012 Plan, the Company ceased making awards under the 2010 Plan.

The 2012 Plan initially allowed the Company to grant awards for up to 3,428,571 shares of common stock, plus the number of shares of common stock available for grant under the 2010 Plan as of the effectiveness of the 2012 Plan (which was an additional 30,101 shares), plus that number of shares of common stock related to awards outstanding under the 2010 Plan which terminate by expiration, forfeiture, cancellation or otherwise.

The 2012 Plan included an “evergreen provision”

that allowed for an annual increase in the number of shares of common stock available for issuance under the 2012 Plan.

The annual increase was added on the first day of each year from 2013 through 2018 and was equal to the lesser of 1,285,714 shares of common stock and 4.0% of the number of shares of common stock outstanding, or a lesser amount as determined by the board of directors.

The 2012 Plan included an “evergreen provision” that allowed for an annual increase in the number of shares of common stock available for issuance under the 2012 Plan.

The annual increase was added on the first day of each year from 2013 through 2018

and was equal to the lesser of 1,285,714 shares of common stock and 4.0 % of the number of shares of common stock outstanding, or a lesser amount as determined by the board of directors.

On each of January 1, 2018, January 1, 2017 and January 1, 2016, the number of shares available for issuance under the 2012 Plan increased by 1,285,714 under this provision.

On December 18, 2018, the shareholders of the Company approved the Amended and Restated 2012 Incentive Plan which increased the maximum number of shares available for issuance under the 2012 Plan to 16,628,425 and eliminated the evergreen provision.

On May 19, 2020, the shareholders of the Company approved the Amended and Restated 2012 Incentive Plan which increased the maximum number of shares available for issuance by 13,000,000 shares.

Awards under the 2012 Plan may include the following award types:

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As of December 31, 2020, under the 2012 Plan, the Company has granted stock options for 21,727,798 shares of common stock, of which 8,496,099 have been forfeited and 1,735,524 have been exercised, and granted restricted stock units for 6,371,656 shares of common stock, of which 922,801 have been forfeited and 2,847,038 have vested.

The exercise price of each option has been equal to the closing price of a share of our common stock on the grant date.

The exercise price of each option has been equal to the closing price of a share of the Company’s common stock on the grant date.

As of December 31, 2020, 10,947,871 shares remain available for future issuance.

Inducement Award Program

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In December 2017, the Board of Directors authorized and reserved 2,500,000 additional shares of common stock under this program.

In June and December 2018, the Board

of Directors authorized and reserved 1,700,000 and 1,250,000 additional shares of common stock under this program, respectively.

In June and December 2018, the Board of Directors authorized and reserved 1,700,000 and 1,250,000 additional shares of common stock under this program, respectively.

In February 2020, the Board of Directors authorized the reduction of 2,033,367 shares available for issuance under this program.

The program is governed by the terms of the 2012 Plan, but shares issued pursuant to the program are not issued under the 2012 Plan.

As of December 31, 2020, the Company had granted options for 6,392,134 shares of common stock under the program, of which 4,722,689 have been forfeited and 543,446 have been exercised, and granted restricted stock units for 184,700 shares, of which 62,200 have been forfeited and 70,000 have vested.

As of December 31, 2019, 3,608,183 remain available for future issuance.

As of December 31, 2020, 2,879,688 shares remain available for future issuance.

Stock Options

A summary of the Company’s stock option activity and related information for the year ended December 31, 2019 is as follows:

A summary of the Company’s stock option activity and related information for the year ended December 31, 2020 is as follows:

Weighted-average

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Outstanding at December 31, 2019

( 1,498,355 )

Forfeited/cancelled

( 5,361,239 )

Outstanding at December 31, 2020

Vested at December 31, 2020

Vested and expected to vest at December 31, 2019(1)

This represents the number of vested options as of December 31, 2019, plus the number of unvested options expected to vest as of December 31, 2019.

The fair value of each stock option was estimated using a Black‑Scholes option‑pricing model with the following assumptions:

The fair value of each stock option was estimated using a Black-Scholes option-pricing model with the following weighted-average assumptions:

Year ended December 31,

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Expected term (years)

The Company recorded stock‑based compensation expense associated with employee stock options of $7.1 million, $5.6 million, and $4.5 million for the years ended December 31, 2019, 2018, and 2017, respectively.

The Company recorded stock-based compensation expense associated with employee and non-employee stock options of $ 4.3 million, $ 7.1 million, and $ 5.6 million, for the years ended December 31, 2020, 2019, and 2018, respectively.

The weighted-average grant date fair value of options granted in the years ended December 31, 2020, 2019, and 2018 was $ 1.62 , $ 1.44 , and $ 3.72 per share, respectively.

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The aggregate intrinsic value of options exercised (i.e., the difference between the market price at exercise and the price paid by employees to exercise the option) during the years ended December 31, 2020 and 2019 was $ 1.0 million and $ 0.1 million, respectively.

During the first quarter of 2018, the Company granted stock options to purchase a total of 582,500 shares of common stock to certain executives that vest only upon the achievement of specified performance conditions.

The Company determined that two of the performance conditions had been achieved as of December 31, 2018.

The Company has recognized approximately $0.1 million and $0.7 million of stock-based compensation expense during the year ended December 31, 2019 and 2018, respectively, related to awards that vest upon the achievement of performance conditions.

As December 31, 2019, a total of 260,000 performance-based options remain unvested which are expected to vest, which have a weighted average exercise price of $1.52 per share, weighted average remaining contractual term of 9.6 years and $0 aggregate intrinsic value.

In June 2016, the Company granted stock options to purchase a total of 500,000 shares of common stock to certain employees that vest only upon the achievement of specified performance conditions.

The Company determined that 50% of performance conditions had been achieved during the year ended December 31, 2016.

As a result, 250,000 shares vested in October 2016 and the Company recognized stock-based compensation expense related to these awards of approximately $0.2 million for the year ended December 31, 2016.

In September 2017, the Company determined that the remaining performance conditions had been achieved and as a result the remaining 250,000 shares vested and the Company recognized stock-based compensation expense of approximately $0.4 million during the year ended December 31, 2017.

The increase in stock-based compensation expense recognized for the awards which vested during the year ended December 31, 2017, as compared to the awards which vested during the year ended December 31, 2016, is a result of the revaluation of an award held by a non-employee to fair value on the vesting date.

At December 31, 2020, there was $ 7.1 million of total unrecognized compensation cost related to unvested stock options and the Company expects to recognize this cost over a remaining weighted-average period of 2.6 years.

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The Company awards RSUs to employees under its 2012 Incentive Plan and Inducement Award Program.

Each RSU entitles the holder to receive one share of the Company’s common stock when the RSU vests.

The RSUs generally vest in either (i) four substantially equal installments on each of the first four anniversaries of the vesting commencement date, or (ii) 100 percent on the first anniversary of the vesting commencement date, subject to the employee’s continued employment with, or service to, the Company on such vesting date.

Each RSU entitles the holder to receive one share of the Company’s common stock when the RSU vests.

Compensation expense is recognized on a straight-line basis.

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Outstanding at December 31, 2019

( 2,020,782 )

Forfeited/cancelled

Outstanding at December 31, 2020

The Company recorded stock‑based compensation expense associated with employee RSUs of $1.0 million, $0.4 million, and less than $0.1 million for the years ended December 31, 2019, 2018, and 2017, respectively.

No RSUs were granted during the years ended December 31, 2017.

The Company recorded stock-based compensation expense associated with employee and non-employee RSUs of $ 3.7 million, $ 1.0 million, and $ 0.4 million, for the years ended December 31, 2020, 2019, and 2018, respectively.

The total fair value of restricted stock units vested during the years ended December 31, 2020, 2019, and 2018 was approximately $ 3.8 million, $ 0.3 million, and $ 0.0 million, respectively.

At December 31, 2020, there was $ 3.8 million of total unrecognized compensation cost related to unvested RSUs and the Company expects to recognize this cost over a remaining weighted-average period of 1.5 years.

On March 27, 2020, the Company amended all outstanding stock options and RSUs awards held by employees (including executive officers), other than certain performance-based awards, to provide that, in the event of a change of control, such equity awards currently held by employees that are outstanding and unvested immediately prior to a change of control of the Company will become fully vested and, if applicable, exercisable

immediately prior to, and subject to the consummation of, such change of control.

The amendment was implemented to provide assurance to the Company’s existing employees and not in response to any change of control offer for the Company.

The modification affected 93 employees and will result in incremental stock compensation expense of $ 0.2 million to be recognized over the remaining requisite service period for each award.

The modification resulted in incremental stock compensation expense of $ 0.1 million recognized in the year ended December 31, 2020.

The Company modified all unvested equity awards held by employees included in the August 2020 Restructuring discussed in Note.

17 Restructurings .

On September 30, 2020, the Company accelerated all unvested awards held by employees included in the August 2020 Restructuring to be fully vested on September 30, 2020.

As a result of the modification, the Company recognized incremental stock compensation cost of approximately $ 0.5 million during year ended December 31, 2020 within selling, general and administrative expense in the consolidated statements of operations and comprehensive loss.

Employee stock purchase plan

At the Special Meeting of Stockholders, held on December 18, 2018, the stockholders approved the 2018 Employee Stock Purchase Plan (2018 ESPP).

On June 21, 2019, the board of directors of the Company amended and restated the 2018 ESPP, to account for certain non-material changes to the plan’s administration (the Amended and Restated 2018 ESPP).

The Amended and Restated 2018 ESPP provides eligible employees with the opportunity, through regular payroll deductions, to purchase shares of the Company’s common stock at 85% of the lesser of the fair market value of the common stock (a) on the date the option is granted, which is the first day of the purchase period, and (b) on the exercise date, which is the last business day of the purchase period.

The Amended and Restated 2018 ESPP generally allows for two six-month purchase periods per year beginning in January and July, or such other periods as determined by the compensation committee of our board of directors.

The Company has

reserved 2,000,000 shares of common stock for the administration of the Amended and Restated 2018 ESPP.

The fair value of shares expected to be purchased under the Amended and Restated 2018 ESPP was calculated using the Black-Scholes model with the following assumptions:

Six Months ended June 30,

Six Months ended December 31,

The Amended and Restated 2018 ESPP provides eligible employees with the opportunity, through regular payroll deductions, to purchase shares of the Company’s common stock at 85 % of the lesser of the fair market value of the common stock (a) on the date the option is granted, which is the first day of the purchase period, and (b) on the exercise date, which is the last business day of the purchase period.

The Company has reserved 2,000,000 shares of common stock for the administration of the Amended and Restated 2018 ESPP.

The fair value of shares expected to be purchased under the Amended and Restated 2018 ESPP was calculated using the Black-Scholes model with the following weighted-average assumptions:

Year ended December 31,

Risk-free interest rate

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Expected term (years)

For the year ended December 31, 2019, the Company has recognized $0.4 million of stock-based compensation expense under the Amended and Restated 2018 ESPP.

During the year ended December 31, 2019, the Company issued 341,701 shares of common stock for proceeds of $0.4 million under the Amended and Restated 2018 ESPP.

The Company has recognized $ 0.1 million and $ 0.4 million of stock-based compensation expense under the Amended and Restated 2018 ESPP, for the years ended December 31, 2020 and December 31, 2019 respectively.

During the year ended December 31, 2020 and December 31, 2019, the Company issued 358,193 shares and 341,701 shares, respectively, of common stock for proceeds of $ 0.4 million in each year under the Amended and Restated 2018 ESPP.

Convertible Senior Notes

On October 17, 2018, the Company closed a registered direct public offering of $150.0 million aggregate principal amount of the Company’s 5.00% Convertible Senior Notes due 2048 (the 2018 Notes), for net proceeds of approximately $145.3 million.

The 2018 Notes are governed by the terms of a base indenture for senior debt securities (the Base Indenture), as supplemented by the first supplemental indenture thereto (the Supplemental Indenture and together with the 2018 Base Indenture, the 2018 Indenture), each dated October 17, 2018, by and between the Company and Wilmington Trust, National Association, as trustee.

On October 17, 2018, the Company closed a registered direct public offering of $ 150.0 million aggregate principal amount of the Company’s 5.00 % Convertible Senior Notes due 2048 (the 2018 Notes), for net proceeds of approximately $ 145.3 million.

The 2018 Notes are senior unsecured obligations of the Company and bear interest at a rate of 5.00 % per annum, payable semi-annually in arrears on May 1 and November 1 of each year, beginning on May 1, 2019.

The 2018 Notes will mature on November 1, 2048, unless earlier repurchased, redeemed or converted in accordance with their terms,

The 2018 Notes are convertible into shares of the Company’s common stock, par value $0.0001 per share, together, if applicable, with cash in lieu of any fractional share, at an initial conversion rate of 139.5771 shares of common stock per $1,000 principal amount of the Notes, which corresponds to an initial conversion price of approximately $7.16 per share of common stock and represents a conversion premium of approximately 15.0% above the last reported sale price of the common stock of $6.23 per share on October 11, 2018.

The 2018 Notes are convertible into shares of the Company’s common stock, par value $ 0.0001 per share, together, if applicable, with cash in lieu of any fractional share, at an initial conversion rate of 139.5771 shares of common stock per $1,000 principal amount of the Notes, which corresponds to an initial conversion price of approximately $ 7.16 per share of common stock and represents a conversion premium of approximately 15.0 % above the last reported sale price of the common stock of $ 6.23 per share on October 11, 2018.

Upon conversion, converting noteholders will be entitled to receive accrued interest on their converted 2018 Notes.

To the extent the Company has insufficient authorized but unissued shares to settle conversions in shares of common stock, the Company would be required to settle the deficiency in cash.

The Company will have the right, exercisable at its option, to cause all Notes then outstanding to be converted automatically if the “Daily VWAP”

(as defined in the 2018 Indenture) per share of the Company’s common stock equals or exceeds 130% of the conversion price on each of at least 20 VWAP Trading Days (as defined in the 2018 Indenture), whether or not consecutive, during any 30 consecutive VWAP Trading Day period commencing on or after the date the Company first issued the 2018 Notes.

The Company will have the right, exercisable at its option, to cause all Notes then outstanding to be converted automatically if the “Daily VWAP” (as defined in the 2018 Indenture) per share of the Company’s common stock equals or exceeds 130 % of the conversion price on each of at least 20 VWAP Trading Days (as defined in the 2018 Indenture), whether or not consecutive, during any 30 consecutive VWAP Trading Day period commencing on or after the date the Company first issued the 2018 Notes.

The conversion rate is subject to adjustment from time to time upon the occurrence of certain events, including, but not limited to, the issuance of stock dividends and payment of cash dividends, but will not be adjusted for any accrued and unpaid interest.

1 unchanged sentence

On or after November 1, 2022, the Company may elect to redeem the 2018 Notes, in whole or in part, at a cash redemption price equal to the principal amount of the 2018 Notes to be redeemed, plus accrued and unpaid interest, if any.

Unless the Company has previously called all outstanding 2018 Notes for redemption, the 2018 Notes will be subject to repurchase by the Company at the holders’

option on each of November 1, 2023, November 1, 2028, November 1, 2033, November 1, 2038 and November 1, 2043 (or, if any such date is not a business day, on the next

business day) at a cash repurchase price equal to the principal amount of the 2018 Notes to be repurchased, plus accrued and unpaid interest, if any.

If a “Fundamental Change”

(as defined in the 2018 Indenture) occurs at any time, subject to certain conditions, holders may require the Company to purchase all or any portion of their 2018 Notes at a purchase price equal to 100% of the principal amount of the 2018 Notes to be purchased, plus accrued and unpaid interest.

If a “Fundamental Change”

occurs on or before November 1, 2022 and a holder elects to convert its Notes in connection with such change, such holder may be entitled to an increase in the conversion rate in certain circumstances as set forth in the Indenture.

The 2018 Notes are the Company’s senior, unsecured obligations and will be senior in right of payment to the Company’s future indebtedness that is expressly subordinated in right of payment to the 2018 Notes;

equal in right of payment with the Company’s existing and future indebtedness that is not so subordinated, and effectively subordinated to the Company’s existing and future secured indebtedness, to the extent of the value of the collateral securing such indebtedness.

The 2018 Notes are structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and (to the extent the Company is not a holder thereof) preferred equity, if any, of the Company’s subsidiaries.

Unless the Company has previously called all outstanding 2018 Notes for redemption, the 2018 Notes will be subject to repurchase by the Company at the holders’ option on each of November 1, 2023, November 1, 2028, November 1, 2033, November 1, 2038 and November 1, 2043 (or, if any such date is not a business day, on the next business day) at a cash repurchase price equal to the principal amount of the 2018 Notes to be repurchased, plus accrued and unpaid interest, if any.

If a “Fundamental Change” (as defined in the 2018 Indenture) occurs at any time, subject to certain conditions, holders may require the Company to purchase all or any portion of their 2018 Notes at a purchase price equal to 100 % of the principal amount of the 2018 Notes to be purchased, plus accrued and unpaid interest.

If a “Fundamental Change” occurs on or before November 1, 2022 and a holder elects to convert its Notes in connection with such change, such holder may be entitled to an increase in the conversion rate in certain circumstances as set forth in the Indenture.

The 2018 Indenture includes customary covenants and set forth certain events of default after which the 2018 Notes may be declared immediately due and payable and set forth certain types of bankruptcy or insolvency events of default involving the Company or certain of its subsidiaries after which the 2018 Notes become automatically due and payable

1 unchanged sentence

As part of this analysis, the Company assessed the economic characteristics and risks of the 2018 Notes, including the conversion, put and call features.

Per the terms of the 2018 Indenture, upon conversion of the 2018 Notes, a portion of the principal may be settled in cash until the date upon which the Company’s stockholders approve an increase in the number of authorized shares of common stock, or the Authorized Share Effective Date, as defined.

In consideration of this provision, the Company concluded the conversion feature required bifurcation as a derivative.

The fair value of the conversion feature derivative was determined based on the difference between the fair value of the 2018 Notes with the conversion option and the fair value of the 2018 Notes without the conversion option.

The fair value of the conversion feature derivative was

determined based on the difference between the fair value of the 2018 Notes with the conversion option and the fair value of the 2018 Notes without the conversion option.

The Company determined that the fair value of the derivative upon issuance of the 2018 Notes was $ 51.5 million and recorded this amount as a derivative liability and the offsetting amount as a debt discount as a reduction to the carrying value of the 2018 Notes on the closing date, or October 17, 2018 .

On December 18, 2018, the Authorized Share Effective Date was achieved as the Company’s stockholders approved an increase in the number of authorized shares of Common Stock.

Following this approval, no portion of the 2018 Notes are settleable in cash upon conversion.

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As of December 18, 2018, the fair value of the conversion option was reclassified to additional paid-in capital on the consolidated balance sheets as it qualified for a scope exception from derivative accounting.

Accordingly, the conversion feature will no longer be measured at fair value on the Company’s financial statements.

On November 14, 2019 and December 23, 2019, we entered into privately negotiated agreements to exchange approximately $114.3 million and $7.4 million, respectively, aggregate principal amount of the 2018 Notes for (i) approximately $62.9 million and $4.0 million, respectively, aggregate principal amount of 5.00% Convertible Senior Second Lien Notes due 2048 (the 2019 Notes) (ii) an aggregate of approximately $11.4 million and $0.7 million in 2018 Notes principal repayment and (iii) accrued interest on the 2018 Notes through November 14, 2019 and December 23, 2019, respectively.

Accordingly, the conversion feature will no longer be measured at fair value on the Company’s financial statements.

The Company determined that all other features of the 2018 Notes were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

The Company reassesses the features on a quarterly basis to determine if they require separate accounting.

There have been no changes to the Company’s original assessment through December 31, 2020.

On November 14, 2019 and December 23, 2019, the Company entered into privately negotiated agreements to exchange approximately $ 114.3 million and $ 7.4 million, respectively, aggregate principal amount of the 2018 Notes for (i) approximately $ 62.9 million and $ 4.0 million, respectively, aggregate principal amount of 2019 Notes (ii) an aggregate of approximately $ 11.4 million and $ 0.7 million in 2018 Notes principal repayment and (iii) accrued interest on the 2018 Notes through November 14, 2019 and December 23, 2019, respectively.

The 2019 Notes are governed by the terms of an indenture (the 2019 Indenture).

The 2019 Notes are senior secured obligations of the Company and bear interest at 5.00% per annum,

payable semi-annually in arrears on May 1 and November 1 of each year.

The 2019 Notes are senior secured obligations of the Company and bear interest at 5.00 % per annum, payable semi-annually in arrears on May 1 and November 1 of each year.

The 2019 Notes will mature on November 1, 2048, unless earlier repurchased, redeemed or converted in accordance with the terms.

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The change in fair value of the conversion option was determined to be $ 13.6 million.

The 2019 Notes are convertible into shares of our common stock, par value $0.0001 per share, together, if applicable, with cash in lieu of any fractional share, at an initial conversion rate of 606.0606 shares of common stock per $1,000 principal amount of the 2019 Notes, which corresponds to an initial conversion price of approximately $1.65 per share of common stock and represents a conversion premium of approximately 52.8% above the last reported sale price of our common stock of $1.08 per share on November 11, 2019.

We will have the right, exercisable at our option, to cause all 2019 Notes then outstanding to be converted automatically if the “Daily VWAP”

(as defined in the 2019 Indenture) per share of our common stock equals or exceeds 121% of the conversion price on each of at least 20 VWAP Trading Days, whether or not consecutive, during any 30 consecutive VWAP Trading Day period commencing on or after the date we first issued the 2019 Notes.

(Company’s Mandatory Conversion Option)

The 2019 Notes are convertible into shares of the Company’s common stock, par value $ 0.0001 per share, together, if applicable, with cash in lieu of any fractional share, at an initial conversion rate of 606.0606 shares of common stock per $1,000 principal amount of the 2019 Notes, which corresponds to an initial conversion price of approximately $ 1.65 per share of common stock and represents a conversion premium of approximately 52.8 % above the last reported sale price of the Company’s common stock of $ 1.08 per share on November 11, 2019.

The Company will have the right, exercisable at the Company’s option, to cause all 2019 Notes then outstanding to be converted automatically if the “Daily VWAP” (as defined in the 2019 Indenture) per share of the Company’s common stock equals or exceeds 121 % of the conversion price on each of at least 20 VWAP Trading Days, whether or not consecutive, during any 30 consecutive VWAP Trading Day period commencing on or after the date the Company first issued the 2019 Notes.

(Company’s Mandatory Conversion Option).

Upon conversion, converting noteholders will be entitled to receive accrued interest on their converted 2019 Notes.

In addition, if the 2019 Notes are converted with a conversion date that is on or prior to November 1, 2020, other than in connection with the Company’s exercise of the Company’s Mandatory Conversion Option then the consideration due upon any such conversion will also include a cash interest make-whole payment for all future scheduled interest payments on the converted 2019 Notes through November 1, 2020 (2019 Notes Interest Make-Whole Provision).

We assessed all terms and features of the 2019 Notes in order to identify any potential embedded features that would require bifurcation.

As part of this analysis, we assessed the economic characteristics and risks of the 2019 Notes, including the conversion, put and call features.

In consideration of the 2019 Notes Interest Make-Whole Provision, we concluded the provision required bifurcation as a derivative.

The Company assessed all terms and features of the 2019 Notes in order to identify any potential embedded features that would require bifurcation.

As part of this analysis, the Company assessed the economic characteristics and risks of the 2019 Notes, including the conversion, put and call features.

In consideration of the 2019 Notes Interest Make-Whole Provision, the Company concluded the provision required bifurcation as a derivative.

The fair value of the 2019 Interest Make-Whole Provision was determined using a Monte Carlo model.

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and recorded this amount as a derivative liability and the offsetting amount as a debt discount as a reduction to the carrying value of the 2019 Notes on the closing dates.

During the period November 14, 2019 to December 31, 2019, the Company paid out approximately $0.4 million in 2019 Interest Make-Whole payments which was recorded as a reduction of the derivative liability.

As of December 31, 2019, we determined the fair value of the 2019 Interest Make-Whole Provision was $0.5 million.

During the period November 14, 2019 to December 31, 2019, 2019 Note holders converted $ 9.5 million aggregate principal of 2019 Notes in exchange for 5,767,872 shares of common stock and $ 0.4 million of cash for 2019 Interest Make-Whole Provision payments.

As of December 31, 2019, the Company determined the fair value of the 2019 Interest Make-Whole Provision was $ 0.5 million.

The Company recorded the change in the fair value of the 2019 Interest Make-Whole Provision for the period from November 14, 2019 to December 31, 2019 of $ 0.6 million as other expense on the consolidated statements of operations and comprehensive loss.

The Company determined that all other features of the 2018 Notes and 2019 Notes were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

During the first three months of the year ended December 31, 2020, 2019 Note holders converted $ 57.4 million aggregate principal of 2019 Notes in exchange for 34,796,350 shares of common stock and $ 1.8 million of cash for the 2019 Note Interest Make-Whole Provision.

The Company recorded $ 1.3 million for the year ended December 31, 2020, as other expense for the change in fair value of the 2019 Notes Interest Make-Whole Provision in the consolidated statements of operations and comprehensive loss.

The Company determined that all other features of the 2019 Notes were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

As of December 31, 2020, all 2019 Notes have converted into shares of common stock..

On November 6, 2020, the Company entered into a privately negotiated agreement with an investor who is a holder of the Company’s 2018 Notes to exchange approximately $ 28.0 million aggregate principal amount of 2018 Notes for approximately $ 28.0 million aggregate principal amount of newly issued 5.00 % Convertible Senior Notes due 2048 (the 2020 Notes).

The issuance of the 2020 Notes closed on November 13, 2020.

The 2020 Notes are governed pursuant to the Base Indenture between the Company and Wilmington dated as of October 17, 2018 as supplemented by the second supplemental indenture thereto dated as of November 13, 2020 (the Supplemental Indenture and together with the Base Indenture, the 2020 Indenture).

The Company will have the right, exercisable at its option, to cause all 2020 Notes then outstanding to be converted automatically if the “Daily VWAP” (as defined in the 2020 Indenture) per share of the Company’s common stock equals or exceeds 123.08 % of the conversion price on each of at least 20 “VWAP Trading Days” (as defined in the 2020 Indenture), whether or not consecutive, during any 30 consecutive VWAP Trading Day period commencing on or after the date the Company first issued the 2020 Notes.

The initial conversion rate for the 2020 Notes is 307.6923 shares of the Company’s common stock per $1,000 principal amount of the 2020 Notes, which is equivalent to an initial conversion price of approximately $ 3.25 per share, representing an approximately 153.9 % premium to the sale price of $ 1.28 per share of the Company’s common stock on November 5, 2020, as reported on the Nasdaq Global Market.

Prior to November 1, 2023, the Company will not have the right to redeem the 2020 Notes.

On or after November 1, 2023, the Company may elect to redeem the 2020 Notes, in whole or in part, at a cash redemption price equal to the principal amount of the 2020 Notes to be redeemed, plus accrued and unpaid interest, if any.

Unless the Company has previously called all outstanding 2020 Notes for redemption, the 2020 Notes will be subject to repurchase by the Company at the holders’ option on each of November 1, 2023, November 1, 2028, November 1, 2033, November 1, 2038 and November 1, 2043 (or, if any such date is not a business day, on the next business day) at a cash repurchase price equal to the principal amount of the 2020 Notes to be repurchased, plus accrued and unpaid interest, if any.

If a Fundamental Change (as defined in the 2020 Indenture) occurs at any time, subject to certain conditions, holders may require the Company to purchase all or any portion of their 2020 Notes at a purchase price equal to 100 % of the principal amount of the 2020 Notes to be purchased, plus accrued and unpaid interest, if any, to, but excluding, the “Fundamental Change Repurchase Date” (as defined in the 2020 Indenture).

If a “Make-Whole Fundamental Change” (as defined in the 2020 Indenture) occurs on or before November 1, 2022 and a holder elects to convert its 2020 Notes in connection with such Make-Whole Fundamental Change, such holder may be entitled to an increase in the conversion rate in certain circumstances as set forth in the 2020 Indenture.

Upon conversion of the 2020 Notes, holders will receive a cash payment equal to the accrued and unpaid interest on the converted 2020 Notes.

The 2020 Notes are the Company’s senior unsecured obligations and will be senior in right of payment to the Company’s future indebtedness that is expressly subordinated in right of payment to the 2020 Notes, and equal in right of payment with the Company’s existing and future indebtedness that is not so subordinated, and effectively subordinated to the Company’s existing and future indebtedness, to the extent of the value of the collateral securing such indebtedness.

The 2020 Notes are structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and (to the extent the Company is not a holder thereof) preferred equity, if any, of the Company’s subsidiaries.

The Company determined the 2020 Notes exchange met the definition of a debt modification under ASC 470-50, Modifications and Extinguishments .

The Company reduced the carrying value of the 2020 Notes by the change in fair value of the conversion option driven by the reduction in conversion price.

The change in fair value of the conversion option was determined to be $ 2.3 million.

The Company determined that all features of the 2020 Notes were clearly and closely associated with a debt host and did not require bifurcation as a derivative liability, or the fair value of the feature was immaterial to the Company's consolidated financial statements.

The Company reassesses the features on a quarterly basis to determine if they require separate accounting.

There have been no changes to the Company’s original assessment through December 31, 2019.

The Company determined that the expected life of the 2018 Notes and 2019 Notes was equal to the period through November 1, 2023 as this represents the point at which the 2018 Notes and 2019 Notes are initially subject to repurchase by the Company at the option of the holders.

Accordingly, the total debt discount, inclusive of the fair value of the embedded conversion feature derivative at issuance, is being amortized using the effective interest method through November 1, 2023.

For the year ended December 31, 2019, the Company recognized an aggregate of $16.0 million of interest expense related to the 2018 and 2019 Notes.

For the year ended December 31, 2019, 2019 Note holders converted $9.5 million aggregate principal of 2019 Notes in exchange for 5,767,872 shares of common stock and $0.4 million of cash for 2019 Interest Make-Whole Provision.

There have been no changes to the Company’s original assessment through December 31, 2020.

The Company determined that the expected life of the 2018 Notes and 2020 was equal to the period through November 1, 2023 as this represents the point at which the 2018 Notes and 2020 Notes are initially subject to repurchase by the Company at the option of the holders.

Accordingly, the total debt discount, inclusive of the fair value of the embedded conversion feature derivative at issuance and change in fair value of conversion option upon exchange is being amortized using the effective interest method through November 1, 2023.

ended December 31, 2020, the Company recognized an aggregate of $ 12.1 million of interest expense related to the 2018 Notes, 2019 Notes and 2020 Notes.

Net Loss per Share

ASC 260 “Earnings Per Share”

requires the Company to calculate its net loss per share based on basic and diluted net loss per share, as defined.

ASC Topic 260, Earnings Per Share, requires the Company to calculate its net loss per share based on basic and diluted net loss per share, as defined.

Basic EPS excludes dilution and is computed by dividing net loss by the weighted average number of shares outstanding for the period.

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For the year ended December 31, 2018, the dilutive effect of the outstanding 2018 Notes issued by the Company is reflected in diluted EPS using the if-converted method.

The computation of basic and diluted net income (loss) per share attributable to common stockholders consists of the following:

The computation of basic and diluted net loss per share attributable to common stockholders consists of the following:

Year Ended December 31,

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Adjusted diluted net loss

Weighted average shares outstanding

Dilutive effect of the Notes

Weighted average diluted shares outstanding

Weighted average shares outstanding - basic

Effect of dilutive securities:

Weighted average shares outstanding - diluted

Net loss per share - basic

Net loss per share - diluted

For the year ended December 31, 2018, in calculating the effect of the Notes on diluted net loss per share, the change in fair value of the bifurcated derivative of $25.6 million is subtracted while the interest expense of $3.1 million is added to the Company’s net loss.

For the year ended December 31, 2018, in calculating the effect of the 2018 Notes on diluted net loss per share, the change in fair value of the bifurcated derivative of $ 25.6 million is subtracted while the interest expense of $ 3.1 million is added to the Company’s net loss.

As of December 31, 2018, upon conversion of all outstanding 2018 Notes, the Company would be required to issue 20,936,548 shares.

Under the “if-converted”

method, convertible instruments are assumed to have been converted as of the beginning of the period or when issued, if later.

Under the “if-converted” method, convertible instruments are assumed to have been converted as of the beginning of the period or when issued, if later.

Accordingly, the weighted average number of potentially issuable shares upon conversion of the 2018 Notes was determined by weighting the number of shares potentially issuable as of December 31, 2018, 20,936,548 shares, over the total number of days the 2018 Notes were outstanding for the period, 76 days , to calculate an additional 4,359,391 shares to be added to the denominator.

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Outstanding restricted stock units

Employee Stock Purchase Plan

Total potentially dilutive securities

As of December 31, 2019, the Company had federal and state net operating loss carryforwards of approximately $371.7 million and $392.3 million, respectively, which are available to reduce future taxable income.

As of December 31, 2020, the Company had federal and state NOL carryforwards of approximately $ 348.5 million and $ 231.9 million, respectively, which are available to reduce future taxable income.

The Company also had federal and state tax credits of $ 1.6 million and $ 0.6 million, respectively, which may be used to offset future tax liabilities.

The net operating loss (NOL) and tax credit carryforwards will expire at various dates through 2039, except for $136.3 million of federal net operating loss carryforwards which may be carried forward indefinitely.

NOL and tax credit carryforwards are subject to review and possible adjustment by the Internal Revenue Service and state tax authorities and may become subject to an annual limitation in the event of certain cumulative changes in the ownership interest of significant stockholders over a three‑year period in excess of 50%, as defined under Sections 382 and 383 of the Internal Revenue Code, as well as similar state provisions.

This could limit the amount of tax attributes that can be utilized annually to offset future taxable income or tax liabilities.

The amount of the annual limitation is determined based on the value of the Company immediately prior to the ownership change.

Subsequent ownership changes may further affect the limitation in future years.

The NOL and tax credit carryforwards will expire at various dates through 2037, except for $ 154.5 million of federal NOL carryforwards which may be carried forward indefinitely.

During the year ended December 31, 2020, the Company recorded income tax expense of $ 0.2 million, which primarily related to state income tax as a result of the sale of COPIKTRA license and related assets to Secura.

Refer to Note 16.

License, collaboration and commercial agreements for further discussion of the sale to Secura.

For the years ended December 31, 2020, 2019, and 2018 income tax expense consisted of the following (in thousands):

Year ended December 31,

Current tax expense:

Current income tax expense

Deferred income tax expense

Total income tax expense

A reconciliation of income taxes computed using the U.S.

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Change in the valuation allowance

The principal components of the Company’s deferred tax assets and liabilities are as follows (in thousands):

NOL and tax credit expiration under Section 382

The principal components of the Company’s deferred tax assets and liabilities are as follows (in thousands):

Deferred tax assets:

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Stock-based compensation

Installment sale

Total deferred tax assets

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Net deferred tax asset

The Company has recorded a valuation allowance against its deferred tax assets at December 31, 2019 and 2018 because the Company’s management believes that it is more likely than not that these assets will not be fully realized.

The increase in the valuation allowance of approximately $26.6 million in the year ended December 31, 2019 primarily relates to the generation of net operating losses and research and development credits.

The Company’s reserves related to taxes are based on a determination of whether and how much of a tax benefit taken by the Company in its tax filings or positions is more likely than not to be realized following resolution of any potential contingencies present related to the tax benefit.

From inception and through December 31, 2019, the Company had no unrecognized tax benefits or related interest and penalties accrued.

The Company has not conducted a study of research and development (R&D) credit carryforwards.

This study may result in an adjustment to the Company’s R&D credit carryforwards;

The Company has recorded a valuation allowance against its deferred tax assets at December 31, 2020 and 2019 because the Company’s management believes that it is more likely than not that these assets will not be fully realized.

The decrease in the valuation allowance of approximately $ 25.5 million in the year ended December 31, 2020 primarily relates to the loss of NOL carryforwards and research and development credits due to Section 382 of the Internal Revenue Code and similar provisions under state law discussed in the next paragraph

Section 382 of the Internal Revenue Code and similar provisions under state law limit the utilization of U.S.

and state NOL carryforwards following certain cumulative changes in the ownership interest of significant stockholders over a three-year period in excess of 50%.

Based on the Company’s analysis under Section 382, the Company believes that $ 41.4 million of its federal NOL carryforwards and $ 168.0 million of its state NOL carryforwards are limited by Section 382 and similar provisions under state law as of December 31, 2020 and have been written off in the year ended December 31, 2020.

Due to limitations under Section 382 the Company believes that its Research & Development (R&D) and Orphan Drug (OD) Credits will be limited as of December 31, 2020.

The portion of R&D and OD credits that were determined to be limited by Section 382 have been written off as of December 31, 2020.

The remaining unused carryforwards and credits remain available for future periods.

Due the Company’s full valuation allowance the write off of NOL carryforwards and R&D and OD credits did not have any impact to the statements of operation and comprehensive loss.

From inception and through December 31, 2020, the

Company had no unrecognized tax benefits or related interest and penalties accrued.

The Company has not conducted a study of R&D credit carryforwards.

This study may result in an adjustment to the Company’s R&D credit carryforwards;

however, until a study is completed and any adjustment is known, no amounts are being presented as an uncertain tax position.

A full valuation allowance has been provided against the Company’s R&D credits and, if an adjustment is required, this adjustment would be offset by an adjustment to the valuation allowance.

Thus, there would be no impact to the consolidated balance sheet or statement of operations if an adjustment were required.

The Company would recognize both accrued interest and penalties related to unrecognized benefits in income tax expense.

The Company’s uncertain tax positions are related to years that remain subject to examination by relevant tax authorities.

Since the Company is in a loss carryforward position, the Company is generally subject to examination by the U.S.

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The Company has entered into a lease agreement for approximately 27,810 square feet of office space in Needham, Massachusetts.

Please refer to Note 9 for further details regarding the minimum aggregate future lease commitments as of December 31, 2019.

Please refer to Note 9.

Leases for further details regarding the minimum aggregate future lease commitments as of December 31, 2019.

In conjunction with the execution of the Amended Lease Agreement, the Company has provided a security deposit in the form of a letter of credit in the amount of $ 0.2 million as of December 31, 2020 and December 31, 2019.

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The payment of these amounts, however, is contingent upon the occurrence of various future events, which have a high degree of uncertainty of occurring.

License and collaboration agreements

License, collaboration and commercial agreements

Secura Bio, Inc.

On August 10, 2020, the Company and Secura signed the Secura APA and on September 30, 2020, the transaction closed.

Pursuant to the Secura APA, the Company sold to Secura its exclusive worldwide license, including related assets, for the research, development, commercialization, and manufacture in oncology indications of products containing duvelisib.

The sale included certain intellectual property related to duvelisib in oncology indications, certain existing duvelisib inventory, claims and rights under certain contracts pertaining to duvelisib.

Pursuant to the Secura APA, Secura assumed all operational and financial responsibility for activities that were part of the Company’s duvelisib oncology program, including all commercialization efforts related to duvelisib in the United States and Europe, as well as the Company’s ongoing duvelisib clinical trials.

Further, Secura assumed all obligations with existing collaboration partners developing and commercializing duvelisib, which include Yakult Honsha Co., Ltd.

(Yakult), CSPC Pharmaceutical Group Limited (CSPC), and Sanofi.

Additionally, Secura assumed all royalty payment obligations due under the amended and restated license agreement with Infinity (Infinity License Agreement).

Pursuant to the terms of the Secura APA, Secura has paid the Company an up-front payment of $ 70.0 million in September 2020 and has agreed to pay the Company (i) regulatory milestone payments up to $ 45.0 million, consisting of a payment of $ 35.0 million upon receipt of regulatory approval of COPIKTRA in the United States for the treatment of peripheral T-cell lymphoma and a payment of $ 10.0 million upon receipt of the first regulatory approval for the commercial sale of COPIKTRA in the European Union for the treatment of peripheral T-cell lymphoma, (ii) sales milestone payments of up to $ 50.0 million, consisting of $ 10.0 million when total worldwide net sales of COPIKTRA exceed $ 100.0 million, $ 15.0 million when total worldwide net sales of COPIKTRA exceed $ 200.0 million and $ 25.0 million when total worldwide net sales of COPIKTRA exceed $ 300.0 million, (iii) low double-digit royalties on the annual aggregate net sales above $ 100.0 million in the United States, European Union, and the United Kingdom of Great Britain and Northern Ireland and (iv) 50 % of all royalty, milestone and sublicense revenue payments payable to Secura under the Company’s existing license agreements

with Sanofi, Yakult, and CSPC, and 50 % of all royalty and milestone payments payable to Secura under any license or sublicense agreement entered into by Secura in certain jurisdictions.

In connection with the Secura APA, the Company and Secura entered into a transition services agreement (Secura TSA).

Under the terms of the Secura TSA, the Company will provide certain support functions at Secura’s direction for a term of less than one year from the date of execution, unless earlier terminated or extended according to the terms of the Secura TSA (Secura TSA Services).

Secura may cancel the Secura TSA at sole discretion for any or no reason with five days ' notice.

Services performed are paid at a mutually agreed upon rate.

The Company evaluated the Secura APA and Secura TSA in accordance with ASC 606 as the Company concluded that the counterparty, Secura, is a customer.

The Company identified the following performance obligations under the Secura APA and Secura TSA:

● a bundled performance obligation consisting of delivery of the duvelisib global license and intellectual property, certain existing duvelisib inventory, certain duvelisib contracts and clinical trials, certain regulatory approvals, and certain regulatory documentation and books and records (the Bundled Secura Performance Obligation);

● Secura TSA Services.

The Company concluded that the duvelisib global license and intellectual property were not distinct within the context of the contract (i.e.

separately identifiable) because the other assets including certain existing duvelisib inventory, certain duvelisib contracts and clinical trials, certain regulatory approval, and certain regulatory documentation and books and records do not have stand-alone value from other duvelisib global license and intellectual property and Secura could not benefit from them without the duvelisib global license and intellectual property.

Consistent with the guidance under ASC 606-10-25-16A, the Company disregarded immaterial promised goods and services when determining performance obligations.

The Company has determined that the upfront payment of $ 70.0 million, future potential milestone payments and royalties including from Secura’s sublicensees should be allocated to the delivery of the Bundled Secura Performance Obligation.

The Company has the right to consideration for TSA services in an amount that corresponds directly with the value to Secura of the Company’s performance to date.

Consideration allocated to the Secura TSA Services will be recognized as such services are provided over the performance period using an output method based on the amount to which the Company has a right to invoice.

Future potential milestones and royalties were excluded from the transaction price, as all milestone amounts and royalties were fully constrained under the guidance.

As part of the Company’s evaluation of the constraint, the Company considered a number of factors in determining whether there is significant uncertainty associated with the future events that would result in the milestone payments and royalties.

Those factors include:

the amount of variable consideration is highly susceptible to factors outside of the Company’s influence, the uncertainty about the consideration is not expected to be resolved for a long period of time, with respect to future global royalties the Company considered that there is no history of selling COPIKTRA outside of the United States to be able to forecast results reliably.

Future potential milestone payments and royalties were fully constrained as the risk of significant revenue reversal related to these amounts has not yet been resolved.

During the year ended December 31, 2020, the Company recognized $ 70.0 million as sale of COPIKTRA license and related assets revenue related to delivery of the Bundled Secura Performance Obligation and $ 0.4 million in transition services revenue within the statements of operations and comprehensive loss.

The Company recognized approximately $ 31.2 million of cost of sales – sale of COPIKTRA license and related assets within the statements of operations and comprehensive income (loss) which consisted of $ 19.2 million, $ 6.0 million, $ 5.8 million and $ 0.2 million for the intangible asset, certain duvelisib inventory, net duvelisib contract prepaid balances and manufacturing equipment, respectively, which were delivered to Secura as part of the sale.

Chugai Pharmaceutical Co., Ltd (Chugai)

On January 7, 2020, the Company entered into a license agreement with Chugai (the Chugai Agreement) whereby Chugai granted the Company an exclusive worldwide license for the development, commercialization and manufacture of products containing VS-6766, a dual RAF/MEK inhibitor.

Under the terms of the Chugai Agreement, the Company received an exclusive right to develop and commercialize products containing VS-6766 at the Company’s own cost and expense.

The Company is required to pay Chugai a non-refundable payment of $ 3.0 million which was paid in February 2020.

The Company is further obligated to pay Chugai double-digit royalties on net sales of products containing VS-6766, subject to reduction in certain circumstances.

Chugai also obtained opt back rights to develop and commercialize VS-6766 (a) in the European Union, which option may be exercised through the date the Company submits a NDA to the FDA for a product which contains VS-6766 as the sole active pharmaceutical ingredient and (b) in Japan and Taiwan, which option may be exercised through the date the Company receives marketing authorization from the FDA for a product which contains VS-6766 as the sole active pharmaceutical ingredient.

As consideration for executing either option, Chugai would have to make a payment to the Company calculated on the Company’s development costs to date.

Chugai and the Company have made customary representations and warranties and have agreed to certain customary covenants, including confidentiality and indemnification.

Unless earlier terminated, the Chugai Agreement will expire upon the fulfillment of the Company’s royalty obligations to Chugai for the sale of any products containing the VS-6766, which royalty obligations expire on a product-by-product and country-by-country basis, upon the last to occur, in each specific country, of (a) expiration of valid patent claims covering such product or (b) 12 years from the first commercial sale of such product in such country.

The Company may terminate the Chugai Agreement upon 180 days ’ written notice.

Subject to certain limitations, Chugai may terminate the Chugai Agreement upon written notice if the Company challenges any patent licensed by Chugai to the Company under the Chugai Agreement.

Either party may terminate the license agreement in its entirety with 120 days ’ written notice for the other party’s material breach if such party fails to cure the breach.

Either party may also terminate the Chugai Agreement in its entirety upon certain insolvency events involving the other party.

The Company evaluated the license agreement with Chugai under ASC Topic 805, Business Combinations (ASC 805 ) and concluded that as the fair value of the gross assets acquired is concentrated in a single identifiable asset or group of similar assets, the transaction did not meet the requirements to be accounted for as a business combination and therefore was accounted for as an asset acquisition.

The Company recorded the up-front payment of $ 3.0 million as research and development expense within the consolidated statement of operations and comprehensive loss for the year ended December 31, 2020.

On July 11, 2012, the Company entered into a license agreement with Pfizer Inc.

(Pfizer), under which Pfizer granted the Company worldwide, exclusive rights to research, develop, manufacture and commercialize products containing certain of Pfizer’s inhibitors of focal adhesion kinase (the FAK Products) for all therapeutic, diagnostic and prophylactic uses in humans.

The Company is solely responsible, at its expense, for the clinical development of the FAK Products, which is to be conducted in accordance with an agreed upon development plan.

The Company is also responsible for all manufacturing and commercialization activities at its own expense.

Pfizer is required to provide the Company with an initial quantity of clinical supply of one of the FAK Products for an agreed upon price.

Under the agreement, the Company made a one-time cash payment to Pfizer in the amount of $ 1.5 million and issued 192,012 shares of its common stock.

Pfizer is also eligible to receive up to $ 2.0 million in developmental milestones and up to an additional $ 125.0 million based on the successful attainment of regulatory and commercial sales milestones.

Pfizer is also eligible to receive high single to mid-double-digit royalties on future net sales of the FAK Products.

The Company’s royalty obligations with respect to each FAK Product in each country begin on the date of first commercial sale of the FAK Product in that country, and end on the later of 10 years after the date of first commercial sale of the FAK Product in that country or the date of expiration or abandonment of the last claim contained in any issued patent or patent application licensed by Pfizer to the

Company that covers the FAK Product in that country.

The Company accounted for the license agreement as the licensing of in process research and development with no alternative future use.

Infinity Pharmaceuticals, Inc.

In November 2016, the Company entered into an amended and restated license agreement with Infinity under which it acquired an exclusive worldwide license for the research, development, commercialization, and manufacture of products in oncology indications containing duvelisib.

In connection with the license agreement, the Company assumed operational and financial responsibility for certain activities that were part of Infinity’s duvelisib program, including the DUO study for patients with relapsed/refractory CLL, and Infinity maintained a portion of the financial responsibility for the shutdown of certain other clinical studies.

The Company is obligated to use diligent efforts to develop and commercialize a product in an oncology indication containing duvelisib.

During the term of the license agreement, Infinity has agreed not to research, develop, manufacture or commercialize duvelisib in any other indication in humans or animals.

Pursuant to the terms of the license agreement, the Company was required to make the following payments to Infinity in cash or, at the Company’s election, in whole or in part, in shares of the Company’s common stock:

(i) $6.0 million upon the completion of the DUO study if the results of the DUO study met certain pre-specified criteria, which was paid in cash by the Company to Infinity in October 2017 and recorded as research and development expense in the consolidated statements of operations and comprehensive loss, and (ii) $22.0 million upon the approval of a NDA in the United States or an application for marketing authorization with a regulatory authority outside of the United States for a product in an oncology indication containing duvelisib, which was paid in cash by the Company to Infinity in November 2018 and recorded as an intangible asset in the consolidated balance sheets.

The Company is also obligated to pay Infinity royalties on worldwide net sales of any products in an oncology indication containing duvelisib ranging from the mid-single digits to the high single-digits.

In November 2016, the Company entered into the Infinity License Agreement with Infinity under which the Company acquired an exclusive worldwide license for the research, development, commercialization, and manufacture of products in oncology indications containing duvelisib.

The Company was obligated to use diligent efforts to develop and commercialize a product in an oncology indication containing duvelisib.

During the term of the Infinity License Agreement, Infinity has agreed not to research, develop, manufacture or commercialize duvelisib in any other indication in humans or animals.

Pursuant to the terms of the Infinity License Agreement, the Company was required to make the following payments to Infinity in cash or, at the Company’s election, in whole or in part, in shares of the Company’s common stock:

(i) $ 6.0 million upon the completion of the DUO study if the results of the DUO study met certain pre-specified criteria, which was paid in cash by the Company to Infinity in October 2017 and recorded as research and development expense in the consolidated statements of operations and comprehensive loss, and (ii) $ 22.0 million upon the approval of a NDA in the United States or an application for marketing authorization with a regulatory authority outside of the United States for a product in an oncology indication containing duvelisib, which was paid in cash by the Company to Infinity in November 2018 and was recorded as an intangible asset in the consolidated balance sheets.

The Company was also obligated to pay Infinity royalties on worldwide net sales of any products in an oncology indication containing duvelisib ranging from the mid-single digits to the high single-digits.

The royalties will expire on a product-by-product and country-by-country basis until the latest to occur of (i) the last-to-expire patent right covering the applicable product in the applicable country, (ii) the last-to-expire patent right covering the manufacture of the applicable product in the country of manufacture of such product, (iii) the expiration of non-patent regulatory exclusivity in such country and (iv) ten years following the first commercial sale of a product in a country, provided that if royalties on net sales for a product in the United States are payable solely on the basis of non-patent regulatory exclusivity, the applicable royalty on net sales for such product in the United States will be reduced by 50 %.

The royalties are also subject to reduction by 50 % of certain third-party royalty payments or patent litigation damages or settlements which might be required to be paid by the Company if litigation were to arise, with any such reductions capped at 50 % of the amounts otherwise payable during the applicable royalty payment period.

In addition to the foregoing, the Company is obligated to pay Infinity an additional royalty of 4% on worldwide net sales of any products in an oncology indication containing duvelisib to cover the reimbursement of research and development costs owed by Infinity to Mundipharma International Corporation Limited (MICL) and Purdue Pharmaceutical Products L.P.

In addition to the foregoing, the Company was obligated to pay Infinity an additional royalty of 4 % on worldwide net sales of any products in an oncology indication containing duvelisib to cover the reimbursement of research and development costs owed by Infinity to Mundipharma International Corporation Limited (MICL) and Purdue Pharmaceutical Products L.P.

Once Infinity has fully reimbursed MICL and Purdue, the royalty obligations will be reduced to 1 % of net sales in the United States.

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In exchange HCR has received the right to receive the royalties due to Infinity from us under the license agreement.

As a result, we now pay royalties previously due to Infinity to HCR.

We will continue to pay Infinity for the royalties due to MICL and Purdue described above.

The Company evaluated the license agreement with Infinity under ASC Topic 805 , Business Combinations, and ASU 2017-01 and concluded that as substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or group of similar assets, the transaction did not meet the requirements to be accounted for as a business combination and therefore was accounted for as an asset acquisition.

All consideration to be paid

under the license agreement is contingent in nature and will be recognized when the respective contingency is resolved.

During the year ended December 31, 2019 and 2018, the Company recorded royalty expense of $1.0 million, and $0.1 million, respectively related to the HCR, Infinity, MICL, and Purdue royalty payments, which are included in costs of sales - product within the consolidated statements of operation.

There were no royalties paid to Infinity or HCR during the year ended December 31, 2017.

On July 11, 2012, the Company entered into a license agreement with Pfizer Inc.

The Company is solely responsible, at its expense, for the clinical development of the FAK Products, which is to be conducted in accordance with an agreed upon development plan.

The Company is also responsible for all manufacturing and commercialization activities at its own expense.

Pfizer is required to provide the Company with an initial quantity of clinical supply of one of the FAK Products for an agreed upon price.

Under the agreement, the Company made a one-time cash payment to Pfizer in the amount of $1.5 million and issued 192,012 shares of its common stock.

Pfizer is also eligible to receive up to $2.0 million in developmental milestones and up to an additional $125.0 million based on the successful attainment of regulatory and commercial sales milestones.

Pfizer is also eligible to receive high single to mid-double-digit royalties on future net sales of the FAK Products.

The Company accounted for the license agreement as the licensing of in process research and development with no alternative future use.

As a result, the Company paid royalties previously due to Infinity to HCR.

The royalties due to MICL and Purdue described above are still paid to Infinity.

The Company evaluated the license agreement with Infinity under ASC 805 and concluded that as substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or group of similar assets, the transaction did not meet the requirements to be accounted for as a business combination and therefore was accounted for as an asset acquisition.

All consideration to be paid under the license agreement is contingent in nature and will be recognized when the respective contingency is resolved.

During the year ended December 31, 2020, 2019, and 2018, the Company recorded royalty expense of $ 1.3 million, $ 1.0 million, and $ 0.1 million, respectively related to the HCR, Infinity, MICL, and Purdue royalty payments, which are included in costs of sales - product within the consolidated statements of operation and comprehensive loss.

As discussed above under heading Secura Bio, Inc.

(Secura) as of September 30, 2020, Secura has assumed from the Company all responsibilities and obligations under the Infinity License Agreement.

All royalties due pursuant to the Infinity License Agreement are the sole responsible of Secura.

On July 25, 2019, the Company entered into a license and collaboration agreement with Sanofi (the Sanofi Agreement), under which the Company granted exclusive rights to Sanofi to develop and commercialize products containing duvelisib in Russia, the Commonwealth of Independent States (CIS), Turkey, the Middle East and Africa (collectively the “Sanofi Territory”) for the treatment, prevention, palliation or diagnosis of any oncology indication in humans or animals.

Under the terms of the Sanofi Agreement, Sanofi received the exclusive right to develop and commercialize products containing duvelisib in the Sanofi Territory under mutually agreed upon development and commercialization plans at Sanofi’s own cost and expense.

In addition, Sanofi received certain limited manufacturing rights in the event the Company is unable to manufacture or supply sufficient quantities of duvelisib or products containing duvelisib to Sanofi during the term of the Sanofi Agreement.

The Company retained all rights to duvelisib outside the Sanofi Territory, except for those territories previously and exclusively licensed to other partners.

Sanofi paid the Company an upfront, non-refundable payment of $ 5.0 million in August 2019.

The Company is also entitled to receive aggregate payments of up to $ 42.0 million if certain regulatory and commercial milestones are successfully achieved.

Sanofi is obligated to pay the Company double-digit royalties on net sales of products containing duvelisib in the Sanofi Territory, subject to reduction in certain circumstances.

Unless earlier terminated by either party, the Sanofi Agreement will expire upon the fulfillment of Sanofi’s royalty obligations to the Company for the sale of any products containing duvelisib in the Sanofi Territory, which royalty obligations expire, on a product-by-product and country-by-country basis, upon the last to occur, in each specific country, of (a) expiration of valid patent claims covering such product, (b) expiration of regulatory exclusivity for such product or (c) 10 years from the first commercial sale of such product in such country.

Sanofi may terminate the Sanofi Agreement on a product-by-product basis or on a country-by country basis at any time with 180 days ’ written notice.

Either party may terminate the Sanofi Agreement in its entirety with 60 days ’ written notice for the other party’s material breach if such party fails to cure the breach.

Subject to certain limitations, the Company may terminate the Sanofi Agreement immediately if Sanofi challenges any patent covering a product or compound licensed by the Company to Sanofi under the Sanofi Agreement.

The Company also has the right to terminate Sanofi’s rights to products containing duvelisib in any specific country if Sanofi fails to use certain efforts to develop and commercialize products containing duvelisib in such country.

Either party may terminate the Sanofi Agreement in its entirety upon certain insolvency events involving the other party.

The Company first assessed the Sanofi Agreement under ASC 808 to determine whether the Sanofi Agreement (or part of the Sanofi Agreement) represents a collaborative arrangement based on the respective risks, rewards and activities of the parties.

The Company accounts for collaborative arrangements (or elements within the contract that are deemed part of a collaborative arrangement), which represent a collaborative relationship and not a customer relationship, outside the scope of ASC 606.

The Company concluded that the Sanofi Agreement (or part of the Sanofi Agreement) does not represent a collaborative arrangement under ASC 808.

The Company then

considered each component in the Sanofi Agreement to determine if ASC 606 should be applied to those components.

Generally, the component in the Sanofi Agreement that falls under potential research and development activities is the development of duvelisib specifically in the Sanofi Territory.

For development of duvelisib specifically in the Sanofi Territory, the Company has concluded that Sanofi is a customer with regard to this component in the context of the Sanofi Agreement.

As such, the Sanofi Territory component and all related payments are within the scope of ASC 606.

The Company determined that there were two material promises associated with the Sanofi territory-specific activities:

(i) an exclusive license to develop and commercialize duvelisib in the Sanofi Territory and (ii) the initial technology transfer.

The Company determined that the exclusive license and initial technology transfer were not distinct from one another, as the license has limited value without the initial technology transfer.

Therefore, the exclusive license and initial technology transfer are combined as a single performance obligation.

The Company evaluated the option rights for manufacturing and supply services to determine whether they represent material rights to Sanofi and concluded that the options were not issued at a significant and incremental discount and therefore do not represent material rights.

As such, they are not performance obligations at the outset of the arrangement.

Based on this assessment, the Company concluded that one performance obligation exists at the outset of the Sanofi Agreement, which is the exclusive license combined with the initial technology transfer.

The Company has determined that the upfront payment of $ 5.0 million constituted the transaction price at the outset of the Sanofi Agreement.

Future potential milestone payments were fully constrained as the risk of significant revenue reversal related to these amounts has not yet been resolved.

The achievement of the future potential milestones is not within the Company’s control and is subject to certain regulatory approvals and therefore carry significant uncertainty.

The Company will reevaluate the likelihood of achieving future milestones at the end of each reporting period.

As all performance obligations have been satisfied, if the risk of significant revenue reversal is resolved, any future milestone revenue from the arrangement will be added to the transaction price (and thereby recognized as revenue) in the period the risk is relieved.

The Company satisfied the performance obligation upon delivery of the license and initial technology transfer and recognized the upfront payment of $ 5.0 million as license and collaboration revenue during the year ended December 31, 2019.

For the year ended December 31, 2020, the Company recognized $ 2.5 million of license revenue upon achievement of two development milestones which were paid in the year ended December 31, 2020.

As discussed above under heading Secura Bio, Inc.

(Secura as of September 30, 2020, Secura has assumed from the Company all responsibilities and obligations under the Sanofi Agreement.

After September 30, 2020, the Company is entitled to 50 % of future milestone payments and royalties pursuant to the Secura APA discussed under heading Secura Bio, Inc.

(Secura) above.

Future milestone and royalty payments pursuant to the Sanofi Agreement will be paid by Sanofi to Secura.

The Company’s portion of such milestone and royalty payments will be subsequently remitted to the Company by Secura.

Yakult Honsha Co., Ltd.

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Yakult paid the Company an upfront, non-refundable payment of $ 10.0 million in June 2018.

The Company is also entitled to receive aggregate payments of up to $90.0 million if certain development, regulatory and commercial milestones are successfully achieved.

The Company is also entitled to receive aggregate payments of up to $ 90.0 million if certain development, regulatory

and commercial milestones are successfully achieved.

Yakult is obligated to pay the Company a double-digit royalty on net sales of products containing duvelisib in Japan, subject to reduction in certain circumstances, and to fund certain global development costs related to worldwide clinical trials conducted by the Company in which Yakult has opted to participate (Global Clinical Trials) on a pro-rata basis.

Unless earlier terminated by either party, the Yakult Agreement will expire upon the fulfillment of Yakult’s royalty obligations to the Company for the sale of any products containing duvelisib in Japan, which royalty obligations expire, on a product-by-product basis, upon the last to occur of (a) expiration of valid claims covering such product, (b) expiration of regulatory exclusivity for such product or (c) 10 years from first commercial sale of such product.

Yakult may terminate the Yakult Agreement in its entirety at any time with 180 days’

written notice.

Either party may terminate the Yakult Agreement in its entirety with 60 days’

written notice for the other party’s material breach if such party fails to cure the breach.

The Company may terminate the Yakult Agreement if (i)

Yakult fails to use commercially reasonable efforts to develop and commercialize products containing duvelisib in Japan or (ii) Yakult challenges any patent licensed by the Company to Yakult under the Yakult Agreement.

Yakult may terminate the Yakult Agreement in its entirety at any time with 180 days ’ written notice.

Either party may terminate the Yakult Agreement in its entirety with 60 days ’ written notice for the other party’s material breach if such party fails to cure the breach.

The Company may terminate the Yakult Agreement if (i) Yakult fails to use commercially reasonable efforts to develop and commercialize products containing duvelisib in Japan or (ii) Yakult challenges any patent licensed by the Company to Yakult under the Yakult Agreement.

Either party may terminate the Yakult Agreement in its entirety upon certain insolvency events involving the other party.

Subsequently, on February 28, 2019, the Company entered into a supply agreement with Yakult (the Yakult Supply Agreement), under which the Company agreed to provide Yakult with drug product for clinical and commercial use in accordance with the Yakult Agreement.

Under the terms of the Yakult Supply Agreement, the Company also granted to Yakult a limited manufacturing license to fill, finish, package, and label the drug product solely for clinical and commercial purposes in Japan.

The Company first assessed the Yakult Agreement under ASC 808 to determine whether the Yakult Agreement (or part of the Yakult Agreement) represents a collaborative arrangement based on the risks and rewards and activities of the parties pursuant to the Yakult Agreement.

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Generally, the components in the Yakult Agreement fall under one of two potential research and development activities:

(i) the parties’

joint participation in Global Clinical Trials and (ii) the territory-specific development of duvelisib.

For the parties’

participation in the Global Clinical Trials, the Company concluded that the research and development activities and payments related to such activities are not within the scope of ASC 606 as Yakult is not a customer of the Company with regards to these activities in the context of the Yakult Agreement.

(i) the parties’ joint participation in Global Clinical Trials and (ii) the territory-specific development of duvelisib.

For the parties’ participation in the Global Clinical Trials, the Company concluded that the research and development activities and payments related to such activities are not within the scope of ASC 606 as Yakult is not a customer of the Company with regards to these activities in the context of the Yakult Agreement.

As such, costs incurred to execute the Global Clinical Trials will be recorded as research and development expense and payments received from Yakult related to such will be recorded as a reduction of research and development expense.

11 unchanged sentences

Future potential milestone payments were fully constrained as the risk of significant revenue reversal related to these amounts has not yet been resolved.

The achievement of the future potential milestones is not within the Company’s control and is subject to certain research and development success or regulatory approvals and therefore carry significant uncertainty.

The Company will reevaluate the likelihood of achieving future milestones at the end of each reporting period.

The Company has recognized $0.1 million of collaboration revenue under the Yakult Supply Agreement for the year ended December 31, 2019.

The Company satisfied the performance obligation upon delivery of the license and

initial technology transfer and recognized the upfront payment of $10.0 million as license revenue during year ended December 31, 2018.

As all performance obligations have been satisfied,

if the risk of significant revenue reversal is resolved, any future milestone revenue from the arrangement will be added to the transaction price (and thereby recognized as revenue) in the period the risk is relieved.

For the year ended December 31, 2020 and 2019 there have been no additional milestones achieved under the Yakult Agreement.

The Company satisfied the performance obligation upon delivery of the license and initial technology transfer and recognized the upfront payment of $ 10.0 million as license revenue during year ended December 31, 2018.

As discussed above under heading Secura Bio, Inc.

(Secura) as of September 30, 2020, Secura has assumed from the Company all responsibilities and obligations under the Yakult Agreement.

After September 30, 2020, the Company is entitled to 50 % of future milestone payments and royalties pursuant to the Secura APA discussed under heading Secura Bio, Inc.

(Secura) above.

Payments pursuant to the Yakult Agreement will be paid by Yakult to Secura.

The Company’s portion of such milestone and royalty payments will be subsequently remitted to the Company by Secura.

CSPC Pharmaceutical Group Limited (CSPC)

1 unchanged sentence

CSPC paid the Company a non-refundable exclusivity fee of $ 5.0 million in August 2018 (Exclusivity Fee) which was creditable against any payments agreed to under the terms of a potential definitive license agreement.

Subsequently, on September 25, 2018, the Company entered into a license and collaboration agreement with CSPC (the CSPC Agreement), under which the Company granted exclusive rights to CSPC to develop and commercialize products containing duvelisib in the People’s Republic of China (China), Hong Kong, Macau and Taiwan (collectively, the CSPC Territory) for the treatment, prevention, palliation or diagnosis of all oncology indications in humans.

Under the terms of the CSPC Agreement, CSPC received an exclusive right to develop and commercialize products containing duvelisib in the CSPC Territory under mutually agreed upon development and commercialization plans at its own cost and expense.

4 unchanged sentences

CSPC is obligated to pay the Company a double-digit royalty on net sales of products containing duvelisib in the CSPC Territory , subject to reduction in certain circumstances, and to fund certain global development costs related to worldwide clinical trials conducted by the Company in which CSPC has opted to participate (Global Clinical Trials) on a pro-rata basis.

Unless earlier terminated by either party, the CSPC Agreement will expire upon the fulfillment of CSPC’s royalty obligations to the Company for the sale of any products containing duvelisib in the CSPC Territory , which royalty obligations expire, on a product-by-product basis, upon the last to occur of (a) expiration of valid claims covering such product, (b) expiration of regulatory exclusivity for such product or (c) 10 years from first commercial sale of such product.

CSPC may terminate the CSPC Agreement in its entirety at any time with 180 days’

written notice.

Either party may terminate the CSPC Agreement in its entirety with 60 days’

written notice for the other party’s material breach if such party fails to cure the breach.

CSPC may terminate the CSPC Agreement in its entirety at any time with 180 days ’ written notice.

Either party may terminate the CSPC Agreement in its entirety with 60 days ’ written notice for the other party’s material breach if such party fails to cure the breach.

The Company may terminate the CSPC Agreement if (i) CSPC fails to use commercially reasonable efforts to develop and commercialize products containing duvelisib in the CSPC Territory or (ii) CSPC challenges any patent licensed by the Company to CSPC under the CSPC Agreement.

5 unchanged sentences

Generally, the components in the CSPC Agreement fall under one of two potential research and development activities:

(i) the parties’

joint participation in Global Clinical Trials and (ii) the territory-specific development of duvelisib.

For the parties’

participation in the Global Clinical Trials, the Company concluded that the research and development activities and payments related to such activities are not within the scope of ASC 606 as CSPC is not a customer of the Company with regards to these activities in the context of the CSPC Agreement.

(i) the parties’ joint participation in Global Clinical Trials and (ii) the territory-specific development of duvelisib.

For the parties’ participation in the Global Clinical Trials, the Company concluded that the research and development activities and payments related to such activities are not within the scope of ASC 606 as CSPC is not a customer of the Company with regards to these activities in the context of the CSPC Agreement.

As such, costs incurred to execute the Global Clinical Trials will be recorded as research and development expense and payments received from CSPC related to such will be recorded as a reduction of research and development expense.

11 unchanged sentences

Future potential milestone payments were fully constrained as the risk of significant revenue reversal related to these amounts has not yet been resolved.

The Company will reevaluate the likelihood of achieving future milestones at the end of each reporting period.

For the year ended December 31, 2019 there have been no additional milestones achieved under the CSPC Agreement.

For the year ended December 31, 2020 and 2019 there have been no additional milestones achieved under the CSPC Agreement.

The Company satisfied the performance obligation upon delivery of the license and initial technology transfer and recognized the upfront payment of $ 15.0 million as license revenue during the year ended December 31, 2018.

The Company retained all rights to duvelisib outside the Sanofi Territory, except for those territories previously and exclusively licensed to other partners.

Sanofi paid the Company an upfront, non-refundable payment of $5.0 million in August 2019.

The Company is also entitled to receive aggregate payments of up to $42.0 million if certain regulatory and commercial milestones are successfully achieved.

Sanofi is obligated to pay the Company double-digit royalties on net sales of products containing duvelisib in the Sanofi Territory, subject to reduction in certain circumstances.

Sanofi may terminate the Sanofi Agreement on a product-by-product basis or on a country-by country basis at any time with 180 days’

written notice.

Either party may terminate the Sanofi Agreement in its entirety with 60 days’

written notice for the other party’s material breach if such party fails to cure the breach.

Either party may terminate the Sanofi Agreement in its entirety upon certain insolvency events involving the other party.

The Company concluded that the Sanofi Agreement (or part of the Sanofi Agreement) does not represent a collaborative arrangement under ASC 808.

The Company then considered each component in the Sanofi Agreement to determine if ASC 606 should be applied to those components.