Commitments | 10. Commitments and Contingencies Selexis Commercial License Agreements In April 2013, the Company entered into commercial license agreements with Selexis for each of the ONS‑3010, ONS‑1045 and ONS‑1050 biosimilar product candidates (which agreements were subsequently amended on May 21, 2014). Under the terms of each commercial license agreement, the Company acquired a non-exclusive worldwide license under the Selexis Technology to use the applicable Selexis expression technology along with the resulting Selexis materials/cell lines, each developed under the research license, to manufacture and commercialize licensed and final products, with a limited right to sublicense. The Company paid an upfront licensing fee to Selexis for each commercial license and also agreed to pay a fixed milestone payment for each licensed product. In addition, the Company is required to pay a low single-digit royalty on a final product-by-final product and country-by-country basis, based on worldwide net sales of such final products by the Company or any of the Company’s affiliates or sublicensees during the royalty term. The royalty term for each final product in each country is the period commencing from the first commercial sale of the applicable final product in the applicable country and ending on the expiration of the specified patent coverage. At any time during the term, the Company has the right to terminate its royalty payment obligation by providing written notice to Selexis and paying Selexis a royalty termination fee. Each of the Company’s commercial agreements with Selexis will expire upon the expiration of all applicable Selexis patent rights. Either party may terminate the related agreement in the event of an uncured material breach by the other party or in the event the other party becomes subject to specified bankruptcy, winding up or similar circumstances. Either party may also terminate the related agreement under designated circumstances if the Selexis Technology infringes third-party intellectual property rights. In addition, the Company has the right to terminate each of the commercial agreements at any time at its convenience; however, with respect to the agreements relating to ONS‑3010 and ONS‑1045, this right is subject to the licensee’s consent pursuant to a corresponding letter the Company executed in conjunction with the standby agreement entered into between Selexis and Laboratories Liomont, S.A. de C.V. (“Liomont”) in November 2014. The standby agreement permits Liomont to assume the license under the applicable commercial agreement for Mexico upon specified triggering events involving the Company’s bankruptcy, insolvency or similar circumstances. Technology license The Company entered into a technology license agreement with Selexis that will require milestone payments of $381,174 (based on an exchange rate on September 30, 2020 for converting Swiss Francs to U.S. dollars) to the licensor by the Company upon achievement of certain clinical milestones and pay a single digit royalty on net sales by the Company utilizing such technology. The Company also has the contractual right to buy out the royalty payments at a future date. Litigation On July 20, 2020, Liomont, filed a complaint against the Company in the U.S. District Court of the Southern District of New York alleging certain breach of contract claims under the June 25, 2014 strategic development, license and supply agreement relating to the biosimilar development program for ONS-3010 and ONS-1045. According to the complaint, Liomont is claiming $3,000,000 in damages due. The Company disputes the claims in the Liomont complaint, believes they are without merit, and intends to defend against these claims vigorously. Leases Prior to October 1, 2019, the Company accounted for leases under ASC 840, Accounting for Leases . Effective October 1, 2019, the Company adopted the guidance of ASC 842, Leases , which requires an entity to recognize a right-of-use asset and a lease liability for virtually all leases. The implementation of ASC 842 did not have a material impact on the Company’s consolidated financial statements and did not have a significant impact on the Company’s liquidity. The Company adopted ASC 842 using a modified retrospective approach. As a result, the comparative financial information for fiscal year 2019 has not been updated and the required disclosures prior to the date of adoption have not been updated and continue to be reported under the accounting standards in effect for that period. Corporate office and warehouse leases On May 6, 2020, the Company terminated its lease agreement for approximately 66,000 square feet of office, manufacturing and laboratory space located in Cranbury, New Jersey, which previously served as its headquarters, and relocated its corporate office to Monmouth Junction, New Jersey, a site previously used as a warehouse location. In consideration for the termination of the Cranbury lease, the Company agreed to make payments to the landlord totaling $981,987, payable in eight monthly installments commencing May 1, 2020. The Company’s Monmouth Junction, New Jersey lease matures in September 2021. In connection with the lease termination, the Company recorded a liability of $981,987 at May 11, 2020, the cease-use date, that represents the undiscounted future termination payments as the termination period is less than a year. The Company derecognized the assets and liabilities associated with the financing lease and recorded a charge of $680,017 to general and administrative expense. At September 30, 2020, the lease termination obligation of $356,987 is included in accounts payable on the consolidated balance sheets. A rollforward of the charges incurred to general and administrative expense for the year ended September 30, 2020: Balance Expensed / Accrued Cash Non-cash Balance October 1, 2019 Expense Payments Adjustments September 30, 2020 Lease termination payments $ — $ 981,987 $ (625,000) $ — $ 356,987 Assets and liabilities derecognition — (842,514) — 842,514 — Other charges — 540,544 (540,544) — — $ — $ 680,017 $ (1,165,544) $ 842,514 $ 356,987 Office and laboratory lease termination obligation In August 2018, the Company entered into a lease termination agreement effective September 1, 2018, to terminate the lease for office and laboratory space in Cranbury, New Jersey which was due to expire in March 2026. In consideration for the termination of the lease, the Company agreed to make payments to the landlord totaling up to $5.8 million, which includes (i) $287,615 upon execution of the termination agreement, (ii) $50,000 per month for up to 30 months, commencing September 1, 2018, and (iii) a $4.0 million payment, in any event, on or before February 1, 2021. The Company and landlord agreed that the $174,250 security deposit will be used to pay the 7 t h , 8 th , 9 th and a portion of the 10 th monthly payments. The Company may pay the final $4.0 million payment at any time, whereupon the Company’s obligation to make the remaining monthly payments terminates. In connection with the lease termination, the Company recorded a $4.2 million liability at September 1, 2018, the cease-use date that represents the present value of the future termination payments. The Company derecognized the assets and liabilities associated with the financing lease and recorded a lease termination charge of $4.2 million to general and administrative expense for the year ended September 30, 2018. At September 30, 2020, the lease termination obligation is included in accrued expenses and in other liabilities at September 30, 2019 on the consolidated balance sheets. A rollforward of the charges incurred to general and administrative expense for the years ended September 30, 2020 and 2019 is as follows: Balance Expensed / Accrued Cash Balance October 1, 2019 Expense Payments September 30, 2020 Lease termination payments $ 3,909,448 $ 661,663 $ (600,000) $ 3,971,111 Balance Expensed / Accrued Cash Balance Lease termination payments $ 3,850,081 $ 485,117 $ (425,750) $ 3,909,448 Equipment leases The Company has equipment leases with terms between 12 and 36 months and has recorded those leases as finance leases. The equipment leases bear interest between 4.0% and 13.0%. Certain lease agreements contain provisions for future rent increases. Payments due under the lease contracts include minimum payments that the Company is obligated to make under the non-cancelable initial terms of the leases as the renewal terms are at the Company’s option. Lease expense is recorded as research and development or general and administrative based on the use of the leased asset The components of lease cost for the year ended September 30, 2020 are as follows: Year ended September 30, 2020 Finance lease cost: Amortization of right-of-use assets $ 182,967 Interest on lease liabilities 905,027 Total finance lease cost 1,087,994 Operating lease cost 174,500 Total lease cost $ 1,262,494 Rent expense under operating leases was $1,139,714 for the year ended September 30, 2019. Amounts reported in the consolidated balance sheets for leases where the Company is the lessee as of September 30, 2020 are as follows: September 30, 2020 Operating leases: Right-of-use asset $ 166,986 Operating lease liabilities 187,486 Finance leases: Right-of-use asset $ — Financing lease liabilities 72,260 Weighted-average remaining lease term (years): Operating leases 1.0 Finance leases 2.4 Weighted-average discount rate: Operating leases Finance leases Other information related to leases for the year ended September 30, 2020 are as follows: Year ended September 30, 2020 Cash paid for amounts included in the measurement of lease obligations: Operating cash flows from finance leases $ 905,027 Operating cash flows from operating leases 187,500 Financing cash flows from finance leases 215,074 Right-of-use assets obtained in exchange for lease obligations: Operating leases $ — Finance leases — Future minimum payments under noncancelable operating leases at September 30, 2020 are as follows for the years ending September 30: Operating leases Finance leases 2021 $ 195,000 $ 34,869 2022 — 29,605 2023 — 13,149 2024 — 4,383 Total undiscounted lease payments $ 195,000 $ 82,006 Less: Imputed interest 7,514 9,746 Total lease obligations $ 187,486 $ 72,260 Employee Benefit Plan The Company maintains a defined contribution 401(k) plan in which employees may contribute up to 100% of their salary and bonus, subject to statutory maximum contribution amounts. The Company matches 100% of the first 3% of employee contributions. The Company assumes all administrative costs of the Plan. For the years ended September 30, 2020 and 2019, the expense relating to the matching contribution was $48,315 and $125,828, respectively. |