Collaboration and License Agreements | 3. Collaboration and License Agreements The Company has entered into the following license agreements: Nationwide Children’s Hospital In October 2013 (the “Effective Date”), the Company entered into an Exclusive License Agreement (the “Nationwide License”), which agreement was amended and restated in its entirety in January 2016, with Nationwide Children’s Hospital (“NCH”). Under the terms of the agreement, NCH granted the Company an exclusive, non-transferable, worldwide license to certain patents held by NCH for the therapy and treatment of SMA. The Company was also provided a license to the Investigational New Drug application (“IND”) for AVXS-101 (the “Product Candidate”) and was provided the right to become the sponsor of the IND after completion of the Phase 1 clinical trial. On October 14, 2015, the Company exercised the option and, as of November 6, 2015, the Company became the sponsor of the IND. Additionally, the Company was provided the U.S. marketing rights to the product upon receipt of regulatory approval. The Company is responsible for all clinical trial costs incurred by NCH that are not covered by third party research grants and the Company committed to spend not less than $9.4 million for the development of the Product Candidate during the first eight years of the Nationwide License. As consideration for the Nationwide License, on the Effective Date, the Company agreed to issue 331,053 shares of its common stock to NCH (the “Up-front Shares”), which represented 3% of the Company’s outstanding capital stock on a fully-diluted basis. The Nationwide License provides that for the 30 day period immediately following FDA approval of the Biologics License Application (“BLA”), NCH shall have the option (if it owns at least 50% of the shares issued to it pursuant to the agreement) to sell all, but not less than all, of the Up-front Shares back to the Company at a per share price equal to two times the price per share of preferred stock sold by the Company in its Class B Financing ($2.47 per share), with such consideration to be paid by the Company in four equal quarterly installments (the “Royalty Option”). The rights granted to the Company under the Nationwide License represent distinct components that need to be combined with other licensed intellectual property and know-how in order to complete the clinical development of AVXS-101 and have no alternative future use. Additionally, the Company did not acquire any employees in connection with the Nationwide License. As a result of the above, and the early-stage nature of the licensed technology, the Company concluded that the acquired rights did not meet the definition of a business, and therefore the Company accounted for the Nationwide License as an asset acquisition and expensed such amounts as research and development expense. In March 2015, the Company issued an additional 34,463 common shares to NCH, and in May 2015, the Company issued an additional 3,802 common shares to NCH in each case pursuant to the anti-dilution provisions of the Nationwide License. The Company recognized additional research and development expense of $473,164 in its consolidated financial statements for the year ended December 31, 2015, representing the fair value of the additional common shares that were granted. NCH’s anti-dilution protection right expired on May 29, 2015 upon achievement by the Company of a $100,000,000 market capitalization. On April 23, 2015, the Nationwide License was again amended to further extend the filing deadline for a registration statement to December 31, 2015 in exchange for a $100,000 payment by the Company to NCH. Such amount is included in research and development expense for the year ended December 31, 2015. The Nationwide License commenced on the Effective Date and terminates on the earliest of (a) the last to expire of the licensed patents or (b) 10 years from the date of first commercial sale of the Product Candidate. The Nationwide License can also be terminated (i) by the Company for convenience at any time after the first anniversary of the Effective Date upon six months prior written notice, (ii) by either party in the event of an uncured breach upon thirty days written notice, (iii) by NCH upon the bankruptcy/insolvency of the Company, and (iv) by NCH if it is sued by the Company for anything other than breach of the agreement. On January 13, 2016 (the “Amended and Restated Nationwide License Effective Date”), the Company and NCH amended and restated the Nationwide License (the “Amended and Restated Nationwide License”) in its entirety. The Amended and Restated Nationwide License grants the Company an exclusive, non-transferable (except to a transfer to an affiliate or in other specified circumstances), sublicensable, worldwide license to certain patents held by NCH for the therapy and treatment of SMA. NCH acknowledged that, as of the date of the Amended and Restated Nationwide License, the Company had fulfilled its requirement to spend not less than $9.4 million for the development of the Product Candidate in whole. The Royalty Option expired upon the effectiveness of the Amended and Restated Nationwide License. Accordingly, NCH no longer has the right to sell the Up-front Shares issued upon the Effective Date of the original NCH License back to the Company under any circumstances. Following the first commercial sale of the Product Candidate, the Company shall pay a low single digit royalty on net sales, if any, of the Product Candidate during the term of the Amended and Restated Nationwide License, subject to certain annual minimums. In addition, the Company must pay NCH a portion of sublicensing revenue received from its sublicense of the rights to the licensed technology at percentages between low-double digits and low-teens. The Amended and Restated Nationwide License commenced on the Amended and Restated Nationwide License Effective Date and terminates upon the expiration of the royalty term for the Product Candidate in each country in which it is sold. The Amended and Restated Nationwide License can also be terminated (i) by the Company for convenience at any time after the first anniversary of the Amended and Restated Nationwide License Effective Date upon six months prior written notice, (ii) by either party in the event of a material uncured breach upon thirty days written notice, (iii) by NCH upon the bankruptcy/insolvency of the Company, and (iv) by NCH if it is sued by the Company for anything other than a suit brought in response to any suit brought by NCH regarding the validity or enforceability of the NCH patents. REGENXBIO Inc. License On March 21, 2014, the Company entered into a License Agreement (the “REGENXBIO SMA License”) with ReGenX Biosciences, LLC (“ReGenX”), predecessor to REGENXBIO Inc. (“REGENXBIO”). Under the terms of the agreement, ReGenX granted the Company an exclusive, non-transferable, worldwide license to utilize ReGenX’s proprietary adeno-associated virus (“AAV”) gene delivery platform for the treatment of SMA, by in vivo gene therapy, using ReGenX’s AAV9 gene delivery vector. As consideration for the REGENXBIO SMA License, the Company paid an up-front fee of $2.0 million during the year ended December 31, 2014 which was recorded in research and development expenses. Additionally, the Company agreed to pay potential future milestones of up to $12.25 million in the aggregate (as later amended as described below), and a mid-single to low-double digit royalty on net sales, if any, of the Company’s Product Candidate using AAV9, subject to reduction in specified circumstances; and lower mid-double digit percentages of any sublicense fees the Company receives from sublicenses of the licensed intellectual property rights. The rights granted to the Company under the REGENXBIO SMA License represent distinct components that need to be combined with other licensed intellectual property and know-how in order to complete the clinical development of AVXS-101. Additionally, the Company did not acquire any employees or manufacturing capabilities in connection with the REGENXBIO SMA License. As a result, the Company accounted for the REGENXBIO SMA License as an asset acquisition. The REGENXBIO SMA License term continues until the last valid patent claim expires or lapses in all countries of the world. Additionally, the Company may terminate the REGENXBIO SMA License at any time upon a specified notice period and REGENXBIO SMA may terminate upon the breach or insolvency of the Company, if we are greater than a specified number of days late (after notice and cure periods) in paying money due under the REGENXBIO SMA License or if the Company, its affiliates, or sublicensees challenges the REGENXBIO SMA patents subject to the REGENXBIO SMA License. Either party may terminate the REGENXBIO SMA License for material breach if such breach is not cured within a specified number of days. On January 8, 2018, the Company entered into an amendment to the REGENXBIO SMA License. Under the terms of the amendment, REGENXBIO granted the Company an exclusive, worldwide commercial license, with rights to sublicense, to any recombinant AAV vector in REGENXBIO’s intellectual property portfolio during the term of the license agreement for the treatment of SMA in humans by in vivo gene therapy. As consideration for the amendment, the Company paid or is required to pay additional fees of $80 million upon entry into the amendment, $30 million on the first anniversary of the effective date of the amendment and $30 million on the second anniversary of the effective date of the amendment. In addition, pursuant to the amendment, the Company agreed to pay up to $120 million in the aggregate of potential future sales-based milestone payments for all REGENXBIO SMA licensed products. The Company also agreed to pay a mid‑single digit to low double-digit royalty percentages on net sales of REGENXBIO SMA licensed products using AAV9 and a low-double digit royalty percentage on net sales of any product candidate developed by the Company for the treatment of SMA using an AAV vector other than AAV9, in each case subject to a reduction in specified circumstances . The Company paid REGENXBIO $80 million upon entering the amendment on January 8, 2018. See Note 15 – Subsequent Events. The REGENXBIO SMA License term continues until the last valid patent claim expires or lapses in all countries of the world. Additionally, the Company may terminate the REGENXBIO SMA License at any time upon a specified notice period and REGENXBIO SMA may terminate upon the breach or insolvency of the Company, if we are greater than a specified number of days late (after notice and cure periods) in paying money due under the REGENXBIO SMA License or if the Company, its affiliates, or sublicensees challenges the REGENXBIO SMA patents subject to the REGENXBIO SMA License. Either party may terminate the REGENXBIO SMA License for material breach if such breach is not cured within a specified number of days. Asklepios Biopharmaceutical, Inc. License On May 29, 2015, the Company and Asklepios Biopharmaceutical, Inc. (“AskBio”) entered into a Non‑Exclusive License Agreement (the “AskBio License”). Under the terms of the AskBio License, AskBio granted the Company a non‑exclusive, non‑transferable, worldwide license to certain patents and know-how held by AskBio. As consideration for the AskBio License, the Company paid an up-front fee of $1.0 million and agreed to make potential future milestone payments of up to $9.6 million in the aggregate, and a tiered royalty on net sales, if any, of the Company’s Product Candidate, on a country‑by‑country basis, starting at percentages in the low‑single digits and increasing to mid‑single digits. These royalty rates are subject to potential reduction in specified circumstances, including, in the event the Company exercises its option to make a specified one‑time royalty option fee payment to AskBio. The Company must also pay AskBio a low double-digit percentage of all consideration the Company receives from any sublicense of the licensed technology. The rights granted to the Company under the AskBio License represent distinct components that need to be combined with other licensed intellectual property and know‑how in order to complete the clinical development of AVXS‑101. Additionally, the Company did not acquire any employees or manufacturing capabilities in connection with the AskBio License. As a result, the Company accounted for the AskBio License as an asset acquisition. The AskBio up‑front payment of $1.0 million is included in the research and development expense for the year ended December 31, 2015. The AskBio License term continues until the last valid patent claim expires or lapses in all countries of the world. Additionally, the Company may terminate the AskBio License at any time upon six months’ notice and AskBio may terminate upon the breach (after notice and cure periods) or insolvency of the Company. Additionally, AskBio may terminate the AskBio License in the event the Company (i) researches, develops or commercializes any AAV-based treatment for hemophilia or (ii) undergoes a change in control or is otherwise acquired by a third party that researches, develops or commercializes any AAV-based treatment for hemophilia, in each case, until April 1, 2019, unless such change in control is first approved by AskBio, such approval not to be unreasonably withheld if the party in control following such a change of control event agrees to additional restrictive measures as reasonably proposed by AskBio in its sole discretion prior to such change of control respecting the use of the AskBio licensed technology. The Company has entered into the following license agreements related to its planned new programs in Rett syndrome and a genetic form of amyotrophic lateral sclerosis (“ALS”) caused by mutations in the superoxide dismutase 1 gene (“genetic ALS”). REGENXBIO Inc. Effective June 7, 2017, the Company entered into an exclusive license agreement with REGENXBIO under certain patents and patent applications owned by the Trustees of the University of Pennsylvania and licensed to REGENXBIO, for the development and commercialization of products to treat Rett syndrome and genetic ALS using the AAV 9 vector (the “REGENXBIO Rett and ALS License.”) Under the REGENXBIO Rett and ALS License, REGENXBIO granted the Company an exclusive, worldwide license under the licensed patent rights to make, have made, use, import, sell and offer for sale any products covered by the REGENXBIO Rett and ALS License, or the REGENXBIO Rett and ALS licensed products, in the field of the treatment of (i) Rett syndrome in humans by in vivo gene therapy using AAV9 delivering the gene encoding for methyl CpG binding protein 2, and (ii) ALS caused by SOD1 mutation in humans by in vivo gene therapy using AAV9 delivering the gene encoding for SOD1, subject to certain rights reserved by REGENXBIO and its licensors. As consideration for the REGENXBIO Rett and ALS License, the Company agreed to make an up-front payment of $6 million, which was recorded within research and development expenses for the year ended December 31, 2017. Additionally, the Company agreed to pay up to $36 million in total milestone fees for products made under the REGENXBIO Rett and ALS License (“REGENXBIO Rett and ALS licensed products”), a low-double digit royalty percentage on net sales of products made under the REGENXBIO Rett and ALS licensed products, subject to reduction in specified circumstances, and a lower mid-double digit percentage of any sublicense fees the Company receives from sublicenses of the licensed intellectual property rights. The REGENXBIO Rett and ALS License will expire upon the later of (i) the expiration, lapse, abandonment or invalidation of the last valid claim of the licensed intellectual property to expire, lapse or become abandoned or unenforceable in all the countries of the world or (ii) seven years from the first commercial sale of each REGENXBIO Rett and ALS licensed product. Upon expiration of the REGENXBIO Rett and ALS License, the license granted to us becomes irrevocable, perpetual, royalty-free and fully paid-up. The Company has the right to terminate the REGENXBIO Rett and ALS License upon a specified period of prior written notice. Nationwide Children’s Hospital In September 2016, the Company entered into exclusive license agreements with NCH, pursuant to which NCH granted the Company exclusive, worldwide licenses under certain patent rights to make, have made, use, sell, offer for sale and import any products covered by each license, or NCH licensed products, and a non-exclusive, worldwide license under certain technical information to develop and manufacture the NCH licensed products, in the field of therapies and treatments of Rett syndrome and ALS in human use, respectively (each, an “NCH License” and together, the “NCH Licenses”). As consideration for the NCH Licenses, the Company paid an aggregate up-front fee of $0.3 million, which was recorded within research and development expenses during the year ended December 31, 2016. Following the first commercial sale of a licensed product under an applicable NCH License, the Company must begin paying NCH an aggregate low-single digit royalty on net sales of such licensed products. With certain exceptions, the Company is required to make certain development milestone-based payments to NCH under each NCH License and must also pay NCH a portion of sublicensing revenue received from the Company’s sublicense of the rights to licensed technology at a mid-single digit percentage. Unless terminated earlier, each NCH License will expire on a NCH licensed product-by-NCH licensed product and country-by-country basis upon the expiration of the royalty term for such NCH licensed product in such country. The royalty term will expire on the later of (i) the date on which the last relevant patent underlying the relevant NCH licensed product expires or (ii) the expiration of any orphan drug-based exclusive marketing rights conferred by any regulatory authority with respect to a NCH licensed product in a licensed territory. Each NCH License may be terminated prior to its expiration: · By the Company at any time after the second anniversary of the effective date of the applicable NCH License by providing six months' prior written notice to NCH; · By either party upon the other party's material breach of the applicable NCH License that is not cured within 90 days after receiving written notice of such breach, except in certain cases in which we may request a longer cure period; · By NCH in the event of the Company’s bankruptcy, insolvency or certain similar occurrences; or · By NCH if the Company or any of its affiliates bring any action or proceeding against NCH, other than a suit brought in response to any suit brought by NCH. |