UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
(Mark One)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number:
(Exact Name of Registrant as Specified in its Charter)
( State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including area code: (
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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The |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ☒ No ☐
Class of Stock |
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Shares Outstanding as of August 10, 2023 |
Class A ordinary shares, par value $0.0001 per share |
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Class B ordinary shares, par value $0.0001 per share |
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\`
Table of Contents
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Page |
PART I. |
2 |
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Item 1. |
2 |
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2 |
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3 |
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4 |
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6 |
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7 |
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Notes to Unaudited Condensed Consolidated Financial Statements |
8 |
Item 2. |
Management’s Discussion and Analysis of Financial Condition and Results of Operations |
22 |
Item 3. |
31 |
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Item 4. |
31 |
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PART II. |
32 |
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Item 1. |
32 |
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Item 1A. |
32 |
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Item 2. |
32 |
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Item 3. |
32 |
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Item 4. |
32 |
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Item 5. |
32 |
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Item 6. |
32 |
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34 |
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i
PART I—FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements.
ProKidney Corp.
Condensed Consolidated Balance Sheets
(in thousands, except share data)
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June 30, 2023 |
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December 31, 2022 |
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(Unaudited) |
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Assets |
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Cash and cash equivalents |
$ |
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$ |
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Marketable securities |
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Interest receivable |
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Prepaid assets |
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Prepaid clinical |
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Other current assets |
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Total current assets |
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Fixed assets, net |
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Right of use assets, net |
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Intangible assets, net |
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Total assets |
$ |
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$ |
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Liabilities and Shareholders' Deficit/Members' Equity |
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Accounts payable |
$ |
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$ |
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Lease liabilities |
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Accrued expenses and other |
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Income taxes payable |
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Total current liabilities |
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Income tax payable, net of current portion |
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Lease liabilities, net of current portion |
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Total liabilities |
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Redeemable noncontrolling interest |
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Shareholders’ deficit / members' equity: |
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Class A ordinary shares, $ |
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Class B ordinary shares, $ |
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Additional paid-in capital |
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Accumulated other comprehensive loss |
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Accumulated deficit |
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( |
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( |
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Total shareholders' deficit / members’ equity |
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( |
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( |
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Total liabilities and shareholders' deficit/members' equity |
$ |
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$ |
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The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
2
ProKidney Corp.
Condensed Consolidated Statements of Operations - Unaudited
(in thousands, except for share and per share data)
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Three Months Ended June 30, |
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Six Months Ended June 30, |
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2023 |
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2022 |
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2023 |
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2022 |
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Operating expenses |
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Research and development |
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$ |
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$ |
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$ |
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$ |
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General and administrative |
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Total operating expenses |
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Operating loss |
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( |
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( |
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( |
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( |
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Other income (expense): |
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Interest income |
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Interest expense |
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( |
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( |
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( |
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( |
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Net loss before income taxes |
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( |
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( |
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( |
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( |
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Income tax expense |
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Net loss before noncontrolling |
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( |
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( |
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( |
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( |
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Net loss attributable to noncontrolling interest |
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( |
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( |
) |
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Net loss available to Class A ordinary shareholders |
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$ |
( |
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$ |
( |
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$ |
( |
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$ |
( |
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Weighted average Class A ordinary shares outstanding: (1) |
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Basic and diluted |
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Net loss per share attributable to Class A ordinary shares: (1) |
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Basic and diluted |
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$ |
( |
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$ |
( |
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(1) The Company analyzed the calculation of net loss per share for periods prior to the Business Combination, as defined in Note 1, on July 11, 2022 and determined that it resulted in values that would not be meaningful to the users of the consolidated financial statements, as the capital structure completely changed as a result of the Business Combination. Therefore, net loss per share information has not been presented for periods prior to the Business Combination. For more information refer to Note 8.
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
3
ProKidney Corp.
Condensed Consolidated Statements of Comprehensive Loss - Unaudited
(in thousands, except for share and per share data)
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Three Months Ended June 30, |
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Six Months Ended June 30, |
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2023 |
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2022 |
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2023 |
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2022 |
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Net loss including noncontrolling interest |
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$ |
( |
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$ |
( |
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$ |
( |
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$ |
( |
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Other comprehensive (loss) income: |
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Unrealized gain (loss) on marketable securities |
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( |
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( |
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Other comprehensive loss |
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( |
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( |
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Total comprehensive loss including noncontrolling interest |
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( |
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( |
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( |
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( |
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Less: Total comprehensive loss attributable to noncontrolling interest |
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( |
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( |
) |
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Total comprehensive loss attributable to Class A ordinary shareholders |
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$ |
( |
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$ |
( |
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$ |
( |
) |
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$ |
( |
) |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
4
ProKidney Corp.
Condensed Consolidated Statements of Changes in Redeemable Noncontrolling Interest and Shareholders’ Deficit / Members’ Equity - Unaudited
(in thousands, except for share and per share data)
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For the Three Months Ended June 30, 2023 |
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Class A Ordinary Shares |
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Class B Ordinary Shares |
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Redeemable Noncontrolling Interest |
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Shares |
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Amount |
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Shares |
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Amount |
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Additional Paid-in Capital |
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Accumulated Other Comprehensive Loss |
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Accumulated Deficit |
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Total Shareholders' Deficit / Members' Equity |
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Balance as of April 1, 2023 |
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$ |
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$ |
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$ |
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$ |
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$ |
( |
) |
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$ |
( |
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$ |
( |
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Equity-based compensation |
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– |
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– |
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– |
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– |
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– |
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– |
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Issuance of Class A ordinary shares |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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Vesting of Class B restricted stock rights |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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Impact of equity transactions on redeemable noncontrolling interest |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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– |
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Unrealized loss on marketable securities |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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( |
) |
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– |
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( |
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Net loss |
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( |
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– |
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– |
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– |
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– |
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– |
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– |
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( |
) |
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( |
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Change in redemption value of noncontrolling interest |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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– |
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Balance as of June 30, 2023 |
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$ |
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$ |
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$ |
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$ |
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$ |
( |
) |
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$ |
( |
) |
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$ |
( |
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For the Three Months Ended June 30, 2022 |
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Class A |
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Class B |
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Accumulated |
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Total Members' |
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Units |
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Amount |
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Profits Interests |
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Deficit |
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Equity |
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Balance as of April 1, 2022 |
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( |
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Capital contribution |
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– |
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– |
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– |
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Equity-based payments |
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– |
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– |
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– |
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Net loss |
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– |
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– |
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– |
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( |
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( |
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Balance as of June 30, 2022 |
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$ |
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$ |
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$ |
( |
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$ |
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5
ProKidney Corp.
Condensed Consolidated Statements of Changes in Redeemable Noncontrolling Interest and Shareholders’ Deficit / Members’ Equity - Unaudited
(in thousands, except for share and per share data)
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For the Six Months Ended June 30, 2023 |
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Class A Ordinary Shares |
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Class B Ordinary Shares |
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Redeemable Noncontrolling Interest |
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Shares |
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Amount |
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Shares |
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Amount |
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Additional Paid-in Capital |
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Accumulated Other Comprehensive Loss |
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Accumulated Deficit |
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Total Shareholders' Deficit / Members' Equity |
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Balance as of January 1, 2023 |
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– |
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( |
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( |
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Equity-based compensation |
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– |
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– |
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– |
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– |
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– |
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– |
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Issuance of Class A ordinary shares |
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– |
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– |
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– |
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– |
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– |
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– |
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Vesting of Class B restricted stock rights |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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– |
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Impact of equity transactions on redeemable noncontrolling interest |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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– |
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Unrealized loss on marketable securities |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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( |
) |
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– |
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( |
) |
Net loss |
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( |
) |
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– |
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– |
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– |
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– |
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– |
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– |
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( |
) |
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( |
) |
Change in redemption value of noncontrolling interest |
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– |
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– |
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– |
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– |
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– |
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– |
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( |
) |
|
|
( |
) |
|
Balance as of June 30, 2023 |
|
$ |
|
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$ |
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$ |
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$ |
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$ |
( |
) |
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$ |
( |
) |
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$ |
( |
) |
||||||
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For the Six Months Ended June 30, 2022 |
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Class A |
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Class B |
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Accumulated |
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Total Members' |
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Units |
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Amount |
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Profits Interests |
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Deficit |
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Equity |
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|||||
Balance as of January 1, 2022 |
|
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|
$ |
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$ |
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$ |
( |
) |
|
$ |
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||||
Capital contribution |
|
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– |
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– |
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– |
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Equity-based payments |
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– |
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– |
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– |
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||
Net loss |
|
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– |
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– |
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– |
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|
( |
) |
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( |
) |
Balance as of June 30, 2022 |
|
|
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|
$ |
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$ |
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$ |
( |
) |
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$ |
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||||
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
6
ProKidney Corp.
Condensed Consolidated Statements of Cash Flows – Unaudited
(in thousands)
|
|
Six Months Ended June 30, |
|
|||||
|
|
2023 |
|
|
2022 |
|
||
Cash flows from operating activities |
|
|
|
|
|
|
||
Net loss before noncontrolling interest |
|
$ |
( |
) |
|
$ |
( |
) |
Adjustments to reconcile net loss before noncontrolling interest to net cash flows used |
|
|
|
|
|
|
||
Depreciation and amortization |
|
|
|
|
|
|
||
Equity-based compensation |
|
|
|
|
|
|
||
Gain on marketable securities, net |
|
|
( |
) |
|
|
|
|
Loss on disposal of equipment |
|
|
|
|
|
|
||
Changes in operating assets and liabilities |
|
|
|
|
|
|
||
Interest receivable |
|
|
( |
) |
|
|
|
|
Deferred offering costs |
|
|
|
|
|
( |
) |
|
Prepaid and other assets |
|
|
|
|
|
( |
) |
|
Accounts payable and accrued expenses |
|
|
|
|
|
( |
) |
|
Income taxes payable |
|
|
|
|
|
|
||
Net cash flows used in operating activities |
|
|
( |
) |
|
|
( |
) |
|
|
|
|
|
|
|
||
Cash flows used in investing activities |
|
|
|
|
|
|
||
Purchases of marketable securities |
|
|
( |
) |
|
|
|
|
Sales of marketable securities |
|
|
|
|
|
|
||
Purchase of equipment and facility expansion |
|
|
( |
) |
|
|
( |
) |
Net cash flows used in investing activities |
|
|
( |
) |
|
|
( |
) |
|
|
|
|
|
|
|
||
Cash flows from financing activities |
|
|
|
|
|
|
||
Payments on finance leases |
|
|
( |
) |
|
|
( |
) |
Borrowings under related party notes payable |
|
|
|
|
|
|
||
Net cash contribution |
|
|
|
|
|
|
||
Net cash flows (used in) provided by financing activities |
|
|
( |
) |
|
|
|
|
|
|
|
|
|
|
|
||
Net change in cash and cash equivalents |
|
|
( |
) |
|
|
|
|
Cash, beginning of period |
|
|
|
|
|
|
||
Cash, end of period |
|
$ |
|
|
$ |
|
||
|
|
|
|
|
|
|
||
Supplemental disclosure of non-cash investing activities: |
|
|
|
|
|
|
||
Right of use assets obtained in exchange for lease obligations |
|
$ |
|
|
$ |
|
||
Impact of equity transactions and compensation on redeemable noncontrolling interest |
|
$ |
|
|
$ |
|
||
Change in redemption value of noncontrolling interest |
|
$ |
|
|
$ |
|
||
Equipment and facility expansion included in accounts payable and |
|
$ |
|
|
$ |
|
||
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
7
ProKidney Corp.
Notes to Unaudited Condensed Consolidated Financial Statements
Note 1: Description of Business and Basis of Presentation
Description of Business
ProKidney Corp. (the “Company” or “ProKidney”) was originally incorporated as Social Capital Suvretta Holdings Corp. III (“SCS”). SCS was a blank check company incorporated as a Cayman Islands exempted company on
On January 18, 2022, SCS executed a definitive business combination agreement (the “Business Combination Agreement”), with ProKidney LP (“PKLP”), a limited partnership under the laws and regulations of Ireland. Pursuant to the terms of the Business Combination Agreement, PKLP became a subsidiary of SCS and was organized in an umbrella partnership corporation (“Up-C”) structure, which would provide potential future tax benefits for SCS when the equity holders ultimately exchanged their pass-through interests for Class A ordinary shares. The transaction closed (the “Closing”) on July 11, 2022 (the “Closing Date”). Upon consummation of the transaction, SCS changed its name to ProKidney Corp.
The business combination between SCS and PKLP (the “Business Combination”) resulted in gross proceeds of approximately $
The Business Combination was accounted for as a reverse recapitalization transaction between entities under common control, through which PKLP was considered the accounting acquiror and predecessor entity. The Business Combination was reflected as the equivalent of PKLP issuing stock for the net assets of SCS accompanied by a recapitalization with no goodwill or intangible assets recognized.
ProKidney Corp., through its operating subsidiaries, ProKidney, which is incorporated under the Cayman Islands Companies Act (as amended) as an exempted company (“ProKidney-KY”) and ProKidney LLC, a limited liability company under the laws of Delaware (“ProKidney-US”) is focused on the development of its Renal Autologous Cell Therapy, which has the potential to preserve kidney function in patients with chronic kidney disease or delay or eliminate the need for dialysis and organ transplantation.
Principles of Consolidation
ProKidney is a holding company, and its principal asset is a controlling equity interest in PKLP and its wholly-owned operating subsidiaries ProKidney-KY and ProKidney-US. The Company has determined that PKLP is a variable-interest entity for accounting purposes and that ProKidney is the primary beneficiary of PKLP because (through its managing member interest in PKLP and the fact that the senior management of ProKidney is also the senior management of PKLP) it has the power and benefits to direct all of the activities of PKLP, which include those that most significantly impact PKLP’s economic performance. The Company has therefore consolidated PKLP’s results pursuant to Accounting Standards Codification Topic 810, “Consolidation” in its Condensed Consolidated Financial Statements. As of June 30, 2023, various holders own non-voting interests in PKLP, representing a
All intercompany transactions and balances have been eliminated.
.
8
Note 2: Significant Accounting Policies
Unaudited Interim Financial Statements
The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The accompanying Condensed Consolidated Balance Sheet as of June 30, 2023, Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2023 and 2022, Condensed Consolidated Statements of Comprehensive Loss for the three and six months ended June 30, 2023 and 2022, Condensed Consolidated Statement of Changes in Redeemable Noncontrolling Interest and Shareholders’ Deficit / Members’ Equity for the three and six months ended June 30, 2023 and 2022 and Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 2023 and 2022 are unaudited. These unaudited financial statements have been prepared in accordance with the rules and regulations of the United States Securities and Exchange Commission (the “SEC”) for interim financial information. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements.
The unaudited interim financial statements have been prepared on the same basis as the annual financial statements and, in the opinion of management, reflect all adjustments (consisting of normal recurring adjustments) necessary to state fairly the Company’s financial position as of June 30, 2023, the results of operations for the three and six months ended June 30, 2023 and 2022 and cash flows for the six months ended June 30, 2023 and 2022. Certain prior year amounts have been reclassified to conform to the current year presentation. The December 31, 2022 Condensed Consolidated Balance Sheet included herein was derived from the audited financial statements but does not include all disclosures or notes required by GAAP for complete financial statements. These financial statements should be read in conjunction with the audited financial statements and the accompanying notes for the year ended December 31, 2022, contained in the Company’s Annual Report on Form 10-K filed with the SEC on March 28, 2023, as amended on April 27, 2023.
Any reference in these notes to applicable guidance is meant to refer to GAAP as found in the Accounting Standards Codification (“ASC”) and Accounting Standards Update (“ASU”) of the Financial Accounting Standards Board (“FASB”). These unaudited consolidated financial statements are presented in U.S. Dollars.
Interim results are not necessarily indicative of results for an entire year.
Use of Estimates
The preparation of unaudited condensed consolidated financial statements, in accordance with GAAP, requires management to make certain estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent liabilities at the date of the condensed consolidated financial statements, and the amounts of expenses during the reported periods. Certain estimates in these condensed consolidated financial statements have been made in connection with the calculation of research and development expenses, equity-based compensation expense and the provision for or benefit from income taxes. The Company bases its estimates on historical experience and various other assumptions, including in certain circumstances future projections, which management believes to be reasonable under the circumstances. Actual results could differ from those estimates. Changes in estimates are reflected in reported results in the period in which they become known.
Cash Equivalents and Marketable Securities
The Company considers all highly liquid investments with an original maturity of 90 days or less on the date of purchase to be cash equivalents. The carrying value of cash and cash equivalents approximates fair value due to the short-term nature of these items.
The Company’s investments in marketable debt securities have been classified and accounted for as available-for-sale. The Company classifies its marketable debt securities as short-term due to its availability for use in its current operations.
The Company considers all available evidence to evaluate if a credit loss exists, and if so, recognizes an allowance for credit loss. The Company did not recognize an allowance for credit losses related to our marketable debt securities during the six months ended June 30, 2023 or 2022.
Concentrations of Credit Risk
Cash and equivalents are the primary financial instruments held by the Company that are potentially subject to concentrations of credit risk. The Company’s cash and equivalents are deposited in accounts at large financial institutions, and such amounts may exceed federally insured limits.
9
Accrued Expenses
Accrued expenses as presented in the Condensed Consolidated Balance Sheets as of June 30, 2023 and December 31, 2022 consisted of the following (in thousands):
|
June 30, 2023 |
|
|
December 31, 2022 |
|
||
Compensation |
$ |
|
|
$ |
|
||
Clinical study related costs |
|
|
|
|
|
||
Facility expansion costs |
|
|
|
|
|
||
Accrued legal costs |
|
|
|
|
|
||
Investment purchases payable |
|
|
|
|
|
||
Manufacturing improvement costs |
|
|
|
|
|
||
Accrued consulting and professional fees |
|
|
|
|
|
||
Other accrued expenses |
|
|
|
|
|
||
Total accrued expenses and other |
$ |
|
|
$ |
|
||
Research and Development Costs
Research and development costs are expensed as incurred. Research and development expenses are comprised of costs incurred in performing research and development activities, including salaries, benefits, third party license fees, and external costs of outside vendors engaged to conduct manufacturing and preclinical development activities and clinical trials.
The Company records accruals based on estimates of services received, efforts expended, and amounts owed pursuant to contracts with numerous contract research organizations. In the normal course of business, the Company contracts with third parties to perform various clinical study activities in the ongoing development of potential products. The financial terms of these agreements are subject to negotiation and variation from contract to contract and may result in uneven payment flows. Payments under the contracts depend on factors such as the achievement of certain events and the completion of portions of the clinical study or similar conditions. The objective of the Company’s accrual policy is to match the recording of expenses in its financial statements to the actual services received and efforts expended. As such, expense accruals related to clinical studies are recognized based on the company’s estimate of the degree of completion of the event or events specified in the specific clinical study.
The Company records nonrefundable advance payments it makes for future research and development activities as prepaid expenses. Prepaid expenses are recognized as expense in the Condensed Consolidated Statement of Operations and Comprehensive Loss as the Company receives the related goods or services
Costs incurred in obtaining technology licenses are charged to research and development expense as purchased in-process research and development if the technology licensed has not reached technological feasibility and has no alternative future use.
Fixed Assets
Fixed assets are stated at cost, less accumulated depreciation. Generally, expenditures for maintenance and repairs are charged to expense and major improvements or replacements are capitalized. The Company computes depreciation and amortization using the straight-line method over the estimated useful life of the asset. Leasehold improvements are amortized over the lesser of, the life of the lease or the estimated useful life of the leasehold improvement.
Computer equipment and software |
|
Furniture and equipment |
|
Leasehold improvements |
Fixed assets consisted of the following (in thousands):
|
June 30, 2023 |
|
|
December 31, 2022 |
|
||
Furniture and equipment |
$ |
|
|
$ |
|
||
Computer equipment and software |
|
|
|
|
|
||
Leasehold improvements |
|
|
|
|
|
||
Construction in progress |
|
|
|
|
|
||
Less: accumulated depreciation |
|
( |
) |
|
|
( |
) |
Total fixed assets, net |
$ |
|
|
$ |
|
||
10
Depreciation expense for the three and six months ended June 30, 2023 was $
Intangible Assets
Intangible assets are comprised of acquired assembled workforce, which are accounted for in accordance with ASC 350 - Intangibles - Goodwill and Other. The acquired assembled workforce is amortized on a straight-line basis over the useful life of five years.
|
|
June 30, 2023 |
|
|
December 31, 2022 |
|
||
Gross carrying amount |
|
$ |
|
|
$ |
|
||
Accumulated amortization |
|
|
|
|
|
|
||
Net carrying amount |
|
$ |
|
|
$ |
|
||
Estimated amortization expense as of June 30, 2023 for the remaining six months of 2023 was $
Impairment of Long-Lived Assets
Long-lived assets such as fixed assets and intangible assets subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized for the amount by which the carrying amount of the asset exceeds the fair value of the asset. No impairment charges have been recorded for the three and six months ended June 30, 2023 and 2022.
Income Taxes
The Company uses the liability method in accounting for income taxes as required by ASC Topic 740 — Income Taxes, under which deferred tax assets and liabilities are recorded for the future tax consequences attributable to the differences between the financial statements carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the results of operations in the period that includes the enactment date. A valuation allowance is recorded to reduce the carrying amounts of deferred tax assets unless it is more likely than not that such assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, available taxes in the carryback periods, projected future taxable income and tax planning strategies in making this assessment. Accordingly, the Company has provided a full valuation allowance to offset the net deferred tax assets at June 30, 2023 and December 31, 2022.
Interest and penalties related to income taxes are included in the benefit (expense) for income taxes in the Company’s Condensed Consolidated Statements of Operations and Comprehensive Loss. The Company has not incurred any significant interest or penalties related to income taxes in any of the periods presented.
Fair Value Measurements
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. A three‑level fair value hierarchy that prioritizes the inputs used to measure fair value is described below. This hierarchy requires entities to maximize the use of observable inputs and minimize the use of unobservable inputs. The three levels of inputs used to measure fair value are as follows:
11
The carrying values of cash equivalents, accounts payable, and accrued liabilities approximate fair value due to the short‑term nature of these instruments.
Leases
The Company determines if an arrangement is a lease at inception. Balances recognized related to the Company’s operating and finance leases are included in right-of-use assets, net and lease liabilities in the Condensed Consolidated Balance Sheets. Right of use assets and lease liabilities are recognized based on the present value of the future minimum lease payments over the lease term at commencement date. Lease terms may include options to extend or terminate the lease if it is reasonably certain that the Company will exercise the option. As most of the Company’s leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at the commencement date in determining the present value of future payments. The right of use asset also includes any lease payments made and excludes lease incentives and initial direct costs incurred. The Company has elected a practical expedient to not separate its lease and non-lease components and instead account for them as a single lease component. Leases with a term of 12 months or less are not recorded on the balance sheet.
Lease expense for minimum lease payments is recognized on a straight-line basis over the lease term. Lease payments for short-term leases are recorded to operating expense on a straight-line basis and variable lease payments are recorded in the period in which the obligation for those payments is incurred.
Contingent Liabilities
The Company records reserves for contingent liabilities when it is probable that an asset has been impaired or a liability has been incurred at the date of the financial statements, and the amount of the loss can be reasonably estimated.
Equity-Based Compensation
Compensation expense for share-based compensation awards issued is based on the fair value of the award at the date of grant, and compensation expense is recognized for those awards earned over the service period on a straight-line basis. The Company records forfeitures of share-based compensation awards as they occur.
The Company operates in only
Note 3: Investments
Cash equivalents and marketable securities are measured at fair value and within Level 2 in the fair value hierarchy, because we use quoted market prices to the extent available or alternative pricing sources and models utilizing market observable inputs to determine fair value.
The following tables summarize our cash equivalents and marketable securities measured at fair value on a recurring basis as of June 30, 2023 (in thousands):
|
Fair Value Hierarchy |
|
Amortized Cost |
|
|
Gross Unrealized Gains |
|
|
Gross Unrealized Losses |
|
|
Fair Value |
|
|
Cash Equivalents |
|
|
Marketable Securities |
|
||||||
Money market funds |
Level 2 |
|
$ |
|
|
$ |
|
|
$ |
|
|
$ |
|
|
$ |
|
|
$ |
|
||||||
Time deposits |
Level 2 |
|
|
|
|
|
|
|
|
( |
) |
|
|
|
|
|
|
|
|
|
|||||
Commercial paper |
Level 2 |
|
|
|
|
|
|
|
|
( |
) |
|
|
|
|
|
|
|
|
|
|||||
Government bonds |
Level 2 |
|
|
|
|
|
|
|
|
( |
) |
|
|
|
|
|
|
|
|
|
|||||
Corporate debt securities |
Level 2 |
|
|
|
|
|
|
|
|
( |
) |
|
|
|
|
|
|
|
|
|
|||||
Total |
|
|
$ |
|
|
$ |
|
|
$ |
( |
) |
|
$ |
|
|
$ |
|
|
$ |
|
|||||
12
The following table shows the fair value of the Company’s cash equivalents and marketable securities, by contractual maturity, as of June 30, 2023 (in thousands):
|
June 30, 2023 |
|
|
Due in 1 year or less |
$ |
|
|
Due in 1 year through 5 years |
|
|
|
Total |
$ |
|
|
ProKidney is considered to be an exempted Cayman Islands company and is presently not subject to income taxes or income tax filing requirements in the Cayman Islands or the United States.
The Company’s subsidiary, PKLP, is organized as a limited partnership and is classified as a partnership for U.S. income tax purposes, and as such, only records a provision for federal and state income taxes on its subsidiaries organized as C corporations or which have elected to be treated as corporations for U.S. federal income tax purposes.
The Company’s subsidiary, ProKidney-US, is treated as a C corporation, and therefore a provision for federal and state taxes has been recorded. The difference between the Company’s effective tax rates and the U.S. statutory rate of
The Company’s subsidiary, ProKidney-KY, has been granted, by the Government in Council of the Cayman Islands, tax concessions under an undertaking certificate exempting it from any tax levied on profits, income, gains or appreciations in relation to its operations or in the nature of estate duty or inheritance tax for a period of twenty years from January 20, 2016. ProKidney-KY elected to be treated as an entity disregarded from its owner for U.S. tax purposes, and as a result, it has not recorded an income tax provision.
As discussed in Note 6, the Company is party to a tax receivable agreement with a related party which provides for the payment by the Company to holders of PKLP prior to the Closing (“Closing ProKidney Unitholders”) of
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion of the deferred tax assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, available taxes in the carryback periods, projected future taxable income and tax planning strategies in making this assessment.
There were
There were
Note 5: Leases
The Company has operating leases for real estate (primarily its operating facilities) and certain equipment with various expiration dates. The Company also has one finance lease for certain equipment. Rent expense was $
13
The following table summarizes the classification of operating and finance lease assets and obligations in the Company's Condensed Consolidated Balance Sheets as of June 30, 2023 and December 31, 2022 (in thousands):
|
|
June 30, 2023 |
|
|
December 31, 2022 |
|
||
Operating leases: |
|
|
|
|
|
|
||
Right of use assets |
|
$ |
|
|
$ |
|
||
|
|
|
|
|
|
|
||
Operating lease liabilities, current |
|
$ |
|
|
$ |
|
||
Operating lease liabilities, noncurrent |
|
|
|
|
|
|
||
Total operating lease liabilities |
|
$ |
|
|
$ |
|
||
|
|
|
|
|
|
|
||
Finance leases: |
|
|
|
|
|
|
||
Right of use assets |
|
$ |
|
|
$ |
|
||
|
|
|
|
|
|
|
||
Finance lease liabilities, current |
|
$ |
|
|
$ |
|
||
Finance lease liabilities, noncurrent |
|
|
|
|
|
|
||
Total finance lease liabilities |
|
$ |
|
|
$ |
|
||
Maturities of lease liabilities for the Company’s operating and finance leases are as follows as of June 30, 2023 (in thousands):
|
|
Operating Leases |
|
|
Finance Leases |
|
|
Total |
|
|||
2023 |
|
$ |
|
|
$ |
|
|
$ |
|
|||
2024 |
|
|
|
|
|
|
|
|
|
|||
2025 |
|
|
|
|
|
|
|
|
|
|||
2026 |
|
|
|
|
|
|
|
|
|
|||
2027 |
|
|
|
|
|
|
|
|
|
|||
Thereafter |
|
|
|
|
|
|
|
|
|
|||
Total lease payments |
|
|
|
|
|
|
|
|
|
|||
Less: imputed interest |
|
|
( |
) |
|
|
( |
) |
|
|
( |
) |
Present value of lease liabilities |
|
$ |
|
|
$ |
|
|
$ |
|
|||
The weighted average remaining lease term for operating leases is
Note 6: Related Party Transactions
Exchange Agreement
On the Closing Date, the Company entered into an exchange agreement with PKLP and certain Closing ProKidney Unitholders (the “Exchange Agreement”) pursuant to which, subject to the procedures and restrictions therein, from and after the waiver or expiration of any contractual lock-up period (including pursuant to the Lock-Up Agreement (as defined below)) the holders of Post-Combination ProKidney Common Units as defined in the Exchange Agreement (or certain permitted transferees thereof) will have the right from time to time at and after 180 days following the Closing to exchange their Post-Combination ProKidney Common Units and an equal number of Class B ordinary shares of the Company on a one-for-one basis for Class A ordinary shares of the Company (the “Exchange”); provided, that, subject to certain exceptions, the Company, at its sole election, subject to certain restrictions, may, other than in the case of certain secondary offerings, instead settle all or a portion of the Exchange in cash based on a volume weighted average price (“VWAP”) of a Class A ordinary share. The Exchange Agreement provides that, as a general matter, a holder of Post-Combination ProKidney Common Units will not have the right to exchange Post-Combination ProKidney Common Units if the Company determines that such exchange would be prohibited by law or regulation or would violate other agreements with the Company and its subsidiaries to which the holder of Post-Combination ProKidney Common Units may be subject, including the Second Amended and Restated ProKidney Limited Partnership Agreement and the Exchange Agreement.
Lock-Up Agreement
On the Closing Date, the Company, SCS Sponsor III LLC and certain Closing ProKidney Unitholders entered into a lock-up agreement (the “Lock-Up Agreement”). The Lock-Up Agreement contains certain restrictions on transfer with respect to the SCS Sponsor III LLC and the Closing ProKidney Unitholders party thereto. Such restrictions begin at the Closing and end on the earlier of
14
(i) the date that is 180 days after the Closing and (ii)(a) for 33% of the Lock-Up Shares (other than the Earnout Shares and the PIPE Shares), the date on which the last reported sale price of a Class
During January 2023, the lock-up period for
Tax Receivable Agreement
On the Closing Date, the Company entered into a tax receivable agreement (the “Tax Receivable Agreement”) with the Closing ProKidney Unitholders. Pursuant to the Tax Receivable Agreement, among other things, the Company will be required to pay the Closing ProKidney Unitholders party thereto
Earnout Rights
At the Closing, certain shareholders were issued an aggregate of
Related Party Debt
On January 18, 2022, in connection with the execution of the Business Combination Agreement, the Company entered into the Promissory Notes. Through the Promissory Notes, the holders could fund up to $
During the three and six months ended June 30, 2022, the Company borrowed $
Consulting Services Agreement between ProKidney-KY and Nefro Health
On January 1, 2020, ProKidney-KY (formerly known as inRegen) entered into a consulting services agreement with Nefro Health (“Nefro”), an Irish partnership controlled and majority-owned by Mr. Pablo Legorreta, a director of the Company, ProKidney GP Limited, a private limited company incorporated under the laws of Ireland (“Legacy GP”) and a holder of over 5% of Class A Units in PKLP, pursuant to which Nefro provides consulting services for the research and development of the Company’s product candidates, including the conduct of clinical trials in North America and the European Union, the design and manufacturing of ProKidney’s product candidates as well as pre-commercialization activities, which are primarily performed by Mr. Legorreta. Under the agreement, Nefro receives $
15
party in the performance of its obligations under the agreement or in respect of any provision, representation, warranty or covenant if such breach has not been cured within thirty (30) days after receiving written notice from the non-breaching party. Additionally, either of the parties may terminate the consulting services agreement for any reason upon giving thirty (30) days’ advance notice of such termination to the other party. In the event of such termination, ProKidney-KY will be obligated to pay Nefro any earned but unpaid consulting fee as of the termination date.
Consulting Services Agreement between ProKidney-US and Nefro Health
On January 1, 2020, ProKidney-US (formerly known as Twin City Bio, LLC) entered into a consulting services agreement with Nefro, pursuant to which Nefro provides consulting services for the research and development of the Company’s product candidates, including the conduct of clinical trials in North America and the European Union, the design and manufacturing of the Company’s product candidates as well as pre-commercialization activities, which are primarily performed by Mr. Legorreta. Under the agreement, Nefro receives $
Note 7: Redeemable Noncontrolling Interest
The Company is subject to the Exchange Agreement with respect to the Post-Combination ProKidney Common Units representing the outstanding
The redeemable noncontrolling interest is recognized at the higher of (1) its initial fair value plus accumulated earnings/losses associated with the noncontrolling interest or (2) the redemption value as of the balance sheet date. At June 30, 2023, the redeemable noncontrolling interest was recorded based on the redemption value as of the balance sheet date which was higher than its initial fair value plus accumulated losses associated with the noncontrolling interest.
Changes in the Company’s ownership interest in PKLP while the Company retains its controlling interest in PKLP are accounted for as equity transactions, and the Company is required to adjust noncontrolling interest and equity for such changes.
|
For the Three Months Ended June 30, 2023 |
|
|
For the Six Months |
|
||
Net loss available to Class A ordinary shareholders |
$ |
( |
) |
|
$ |
( |
) |
(Increase)/Decrease in ProKidney Corp. accumulated deficit for impact of |
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|
|
|
|
||
(Increase)/Decrease in ProKidney Corp. additional paid-in capital for vesting of |
|
( |
) |
|
|
( |
) |
Change from net loss available to Class A ordinary shareholders and change |
$ |
( |
) |
|
$ |
( |
) |
Note 8: Net Loss per Share
16
Basic net loss per share is calculated by dividing net loss attributable to Class A ordinary shareholders by the weighted-average shares of Class A ordinary shares outstanding without the consideration for potential dilutive securities. Diluted net loss per share represents basic net loss per share adjusted to include the effects of all potentially dilutive shares. Diluted net loss per share is the same as basic loss per share for all periods as the inclusion of potentially issuable shares would be antidilutive.
The Company analyzed the calculation of net loss per share for periods prior to the Business Combination on July 11, 2022 and determined that it resulted in values that would not be meaningful to the users of the consolidated financial statements, as the capital structure completely changed as a result of the Business Combination. Therefore, net loss per share information has not been presented for periods prior to the Business Combination. The basic and diluted net loss per share attributable to Class A ordinary shareholders for the three and six months ended June 30, 2022, has not been presented as it represents a period prior to the Closing of the Business Combination.
The following table sets forth the computation of basic and diluted net loss per share for the three and six months ended June 30, 2023 (in thousands, except share and per share amounts):
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Three Months Ended June 30, |
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Six Months Ended June 30, |
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||
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2023 |
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2023 |
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Numerator |
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Net loss |
$ |
( |
) |
|
$ |
( |
) |
Less: Net loss attributable to noncontrolling interests |
|
( |
) |
|
|
( |
) |
Net loss available to Class A ordinary shareholders of ProKidney Corp., |
$ |
( |
) |
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$ |
( |
) |
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Denominator |
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Weighted average Class A ordinary shares or ProKidney Corp. outstanding, |
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Net loss per Class A Unit |
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Net loss per Class A ordinary share of ProKidney Corp., basic and diluted |
$ |
( |
) |
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$ |
( |
) |
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Antidilutive securities |
|
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ProKidney Corp. Class B ordinary shares |
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Unvested Restricted Stock Rights |
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Earnout Rights |
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Stock options granted under the 2022 Equity Incentive Plan |
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Note 9: Equity Based Compensation
2022 Incentive Equity Plan
On July 11, 2022, the shareholders of the Company approved the ProKidney Corp. 2022 Incentive Equity Plan (the “2022 Plan”) which provides for the issuance of equity based awards to the Company’s employees, non-employee directors, individual consultants, advisors and other service providers. As of June 30, 2023, there were
The Company has issued incentive and non-qualified stock option awards under the 2022 Plan to certain employees and non-employee directors of the Company. Given that the Company has established a full valuation allowance against its deferred tax assets, the Company has recognized no tax benefit related to these awards.
Time-Vested Awards
The Company uses the Black-Scholes option pricing model to calculate the fair value of time-vested stock options granted. These awards generally vest ratably over a three or four-year period and the option awards expire after a term of ten years from the
17
date of grant.
|
|
For the Six Months Ended June 30, 2023 |
Expected volatility |
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Expected life of options, in years |
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Risk-free interest rate |
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Expected dividend yield |
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The following table summarizes the activity related to the Company’s time-vested stock option awards granted under the 2022 Plan for the six months ended June 30, 2023:
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Number of Shares |
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Weighted Average Exercise Price |
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Time-vested options outstanding at January 1, 2023 |
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$ |
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Granted |
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Forfeited |
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( |
) |
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Time-vested options outstanding at June 30, 2023 |
|
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$ |
|
||
Time-vested options exercisable at June 30, 2023 |
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$ |
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Weighted average remaining contractual life |
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Time-vested options vested and expected to vest at June 30, 2023 |
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$ |
|
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Weighted average remaining contractual life |
|
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|
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For the three and six months ended June 30, 2023, the Company recognized $
The aggregate intrinsic value of the in-the-money time-vested awards outstanding as well as those exercisable as of June 30, 2023, was $
Market-Vested Awards
The Company also has outstanding
For the three and six months ended June 30, 2023, the Company recognized $
The aggregate intrinsic value of the in-the-money market based awards outstanding as of June 30, 2023 was $
Legacy Profits Interests
The Deed for the Establishment of a Limited Partnership of PKLP, dated as of August 5, 2021 (the “Limited Partnership Agreement”) which replaced the Amended and Restated Limited Liability Company Agreement of ProKidney LLC as the governing document of the parent entity in the Company, allowed for the issuance of Profits Interests (as defined in the Limited Partnership Agreement) to employees, directors, other service providers of the Company and others denominated in the form of one or more Class B Units of PKLP (as defined in the Limited Partnership Agreement).
18
Under the Limited Partnership Agreement, Legacy GP determined the terms and conditions of the Profits Interests issued. The threshold value assigned to each grant was not to be less than the fair market value of PKLP on the date of grant.
On January 17, 2022, PKLP amended and restated its Limited Partnership Agreement (the “Amended and Restated Limited Partnership Agreement”) which provided that certain qualified distribution events would result in holders of Profits Interests receiving disproportionate distributions from PKLP until each such holder’s valuation threshold had been reduced to zero in order to “catch up” such holder’s distributions to its pro rata share of aggregate cumulative distributions, and once sufficient distributions to a holder of Profits Interests had been made in accordance with the foregoing, the associated Class B Units of PKLP would automatically be converted into Class A Units of PKLP (as defined in the Limited Partnership Agreement).
Upon consummation of the Business Combination discussed in Note 1, PKLP’s existing Class B and B-1 Units were “caught up” and were converted into Class A Units of PKLP. The resulting vested and unvested Class A Units of PKLP were then recapitalized into Post-Combination ProKidney Common Units or Restricted Common Units of the Company, respectively. This recapitalization resulted in a decrease in the number of awards held by each participant. As such, the number of Profits Interests and related per unit values within these financial statements have been adjusted to reflect this recapitalization. Upon recapitalization, the Restricted Common Units maintained the vesting schedules associated with the original Profits Interest awards.
The following table summarizes the activity related to the Profits Interest awards for the
|
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Number of Shares |
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Weighted Average Grant Date Fair Value |
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Unvested awards outstanding at January 1, 2023 |
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$ |
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Vested |
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( |
) |
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Forfeited |
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( |
) |
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Awards outstanding at June 30, 2023 |
|
|
|
|
$ |
|
||
As of June 30, 2023, the unrecognized compensation expense related to these awards was $
Modification to Equity Based Compensation Awards
On January 17, 2022, the Limited Partnership Agreement was amended and restated to provide that certain qualified distribution events would result in the holders of Profits Interests receiving disproportionate distributions from PKLP until each such holder’s threshold value was reduced to zero in order to “catch up” such holder’s distributions to its pro rata share of aggregate cumulative distributions, and once sufficient distributions to a holder of Profits Interests had been made in accordance with the foregoing, the associated Class B Units would automatically be converted into Class A Units.
This amendment constituted a modification to the Class B-1 Units in PKLP outstanding as of the date of the modification under the provisions of ASC Topic 718. In connection with the modification of its outstanding share-based compensation awards, the Company will recognize total additional compensation expense of $
During the six months ended June 30, 2023, the Company also modified the vesting terms of outstanding time-based stock options issued to certain personnel upon their separation. This amendment constituted a modification of the awards under the provisions of ASC Topic 718 and resulted in the recognition of an additional $
Issuance of Profits Interests to Service Provider
During the six months ended June 30, 2022, the Company issued
19
recognized expense of $
Purchase of Class B-1 Units in PKLP
Certain of the Company’s employees, board members and service providers purchased
Fair Value Estimate for Profits Interest
Prior to the Business Combination, PKLP was privately held with no active public market for its equity instruments. Therefore, for financial reporting purposes, management determined the estimated per share fair value of PKLP’s equity shares (including Profits Interests) using contemporaneous valuations. These contemporaneous valuations were done using methodologies consistent with the American Institute of Certified Public Accountants Practice Aid, Valuation of Privately-Held Company Equity Securities Issued as Compensation, also known as the Practice Aid.
For the Profits Interest Awards awarded during the six months ended June 30, 2022, the valuation approach utilized a hybrid method which consists of a combination of an Option Pricing Method (“OPM”) and a Probability Weighted Expected Return Method (”PWERM”) approach. Weighting allocations were assigned to the OPM and PWERM methods based upon the expected likelihood of possible future liquidity events, including the Business Combination.
Under the OPM approach, the fair value of the total equity of PKLP within each scenario was first estimated using a back-solve method wherein the equity value is derived from a recent transaction in PKLP’s own securities, and then the total equity value is allocated to the various components of the capital structure, including the Profits Interests, using an OPM or a waterfall approach based on the specific rights of each of the equity classes. The OPM used the fair value of the total equity of PKLP within a scenario as a starting point and incorporates assumptions made regarding the expected returns and volatilities that are consistent with the expectations of market participants, and distribution of equity values is produced which cover the range of events that an informed market participant might expect. This process creates a range of equity values both between and within scenarios. The fair value measurement is sensitive to changes in the unobservable inputs. Changes in those inputs might result in a higher or lower fair value measurement.
The PWERM approach is a scenario-based analysis that estimates the value per share of ordinary shares based on the probability-weighted present value of expected future equity values for the ordinary shares, under various possible future liquidity event scenarios, including the proposed Business Combination, in light of the rights and preferences of each class and series of stock, including the Profits Interests, discounted for a lack of marketability.
In performing these valuations, management considered all objective and subjective factors that they believed to be relevant, including management’s best estimate of PKLP’s business condition, prospects, and operating performance at each valuation date. Within the valuations performed, a range of factors, assumptions, and methodologies were used. The significant factors included trends within the industry, the prices at which PKLP sold its Class A Units, the rights and preferences of the Class A Units relative to the Class B Units at the time of each measurement date, the results of operations, financial position, status of research and development efforts, stage of development and business strategy, the lack of an active public market for the units, and the likelihood of achieving an exit event in light of prevailing market conditions.
The following reflects the key assumptions used in each of the valuation scenarios for the awards granted during the six months ended June 30, 2022:
|
|
OPM |
|
|
PWERM |
|
||
Total equity value (in thousands) |
|
$ |
|
|
$ |
|
||
Expected volatility of total equity |
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% |
|
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|||
Discount for lack of market |
|
|
% |
|
|
|||
Expected time to exit event |
|
|
|
|
||||
20
Compensation Expense
Compensation expense related to share-based awards is included in research and development and general and administrative expense as follows (in thousands):
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
||||||||||
|
2023 |
|
|
2022 |
|
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2023 |
|
|
2022 |
|
||||
Research and development |
$ |
|
|
$ |
|
|
$ |
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|
$ |
|
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General and administrative |
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||||
Total equity-based compensation expense |
$ |
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|
$ |
|
|
$ |
|
|
$ |
|
||||
Note 10: Subsequent Events
On July 17, 2023, the Company, through its wholly owned subsidiary, ProKidney Acquisition Company, LLC, completed the closing of the purchase of a
21
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
As used in this Quarterly Report on Form 10-Q, the “Company”, the “Registrant”, “we” or “us” refer to ProKidney Corp. The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our financial statements and related notes that appear elsewhere in this report. In addition to historical financial information, the following discussion contains forward-looking statements that reflect our plans, estimates, assumptions and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements. Factors that could cause or contribute to these differences include those discussed in the Risk Factors section of the Annual Report on Form 10-K filed with the Securities and Exchange Commission, and elsewhere in this report under “Part II, Other Information—Item 1A, Risk Factors.” Forward-looking statements include information concerning our possible or assumed future results of operations, business strategies and operations, financing plans, potential growth opportunities, potential market opportunities, potential results of our drug development efforts or trials, and the effects of competition. Forward-looking statements include all statements that are not historical facts and can be identified by terms such as “anticipates,” “believes,” “could,” “seeks,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” or similar expressions and the negatives of those terms. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Also, forward-looking statements represent our management’s plans, estimates, assumptions and beliefs only as of the date of this report. Except as required by law, we assume no obligation to update these forward-looking statements publicly or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
Overview
We are a clinical-stage biotechnology business with a transformative proprietary cell therapy platform capable of treating multiple chronic kidney diseases using a patient’s own cells isolated from the patient intended for treatment. Our approach seeks to redefine the treatment of chronic kidney disease (“CKD”), shifting the emphasis away from management of kidney failure to the restoration, preservation or improvement of kidney function to stop or delay progression of CKD. Our lead product candidate, which we refer to as REACT, is designed to preserve kidney function in a CKD patient’s diseased kidneys. REACT is a product that includes selected renal cells (“SRC”) prepared from a patient’s own, autologous, renal cells. SRC are formulated into a product for reinjection into the patient’s kidneys using a minimally invasive outpatient procedure that can be repeated if necessary. Because REACT is a personalized treatment composed of cells prepared from a patient’s own kidney, there is no need for treatment with immunosuppressive therapies, which are required during a patient’s lifetime when a patient receives a kidney transplant from another, allogeneic donor.
We are currently conducting a Phase 3 development program and multiple Phase 2 clinical trials for REACT in subjects with moderate to severe diabetic kidney disease. We also recently completed a Phase 1 clinical trial for REACT in subjects with congenital anomalies of the kidney and urinary tract (“CAKUT”). REACT has been generally well tolerated by subjects with moderate to severe diabetic kidney disease in Phase 1 and 2 clinical testing to date. It has also been shown to preserve kidney function and limit kidney injury in subjects based on measurements of iohexol renal clearance and urinary albumin-to-creatinine ratio (“UACR”). REACT has received regenerative medicine advanced therapy (“RMAT”) designation from the United States Food and Drug Administration (the “FDA”).
Since our inception, we have devoted substantially all of our resources to raising capital, organizing and staffing our Company, business and scientific planning, conducting discovery and research activities, acquiring or discovering product candidates, establishing and protecting our intellectual property portfolio, developing and progressing REACT and preparing for clinical trials, establishing arrangements with third parties for the manufacture of component materials, and providing general and administrative support for these operations. We do not have any product candidates approved for sale and have not generated any revenue from product sales.
Recent Developments
RMCL-002
RMCL-002 is an ongoing Phase 2, prospective, randomized, double-arm, deferred treatment, open-label, repeat dose, safety and efficacy study of REACT in subjects with type 2 diabetes and CKD.
The first subject was enrolled in this study in February 2017, and subjects are now undergoing follow-up. The primary objective of this study is to assess the safety and efficacy of up to two REACT injections given six months apart (up to four weeks after target date) in Type 2 diabetic disease patients with eGFRs between 20 and 50 ml/min/1.73m2, with both doses delivered into the biopsied kidney using an outpatient, minimally invasive, percutaneous approach under conscious sedation in less than 90 minutes. Patients were eligible to receive up to two doses of REACT of 3x106 cells/g-KWest.
Patients were randomized (1:1) to the active treatment group and the deferred treatment group (i.e., the control group) following kidney biopsy. Subjects in the active treatment group received their first REACT injection as soon as the REACT product was
22
manufactured and shipped to the clinical site. After six months (up to four weeks after target date), a second injection was given, as appropriate. In contrast, subjects in the deferred treatment group underwent a 12-month period of observation after kidney biopsy. The deferred treatment group allowed assessment of the rate of change in kidney function and co-morbidities in a nonexposed group compared to the active treated arm. During this time, they received contemporaneous, standard-of-care therapy for CKD while undergoing follow-up evaluations every three months, similar to subjects in the active treatment group. After 12 months, subjects from the deferred treatment group received a series of up to two REACT injections given six months (up to four weeks after the target date) apart, as appropriate. Consequently, the study design included a randomized control group receiving standard-of-care treatment for the first 12 months and a randomized, active treatment group which received up to two REACT injections and follow-up evaluations during the same period of time. In addition, each subject’s baseline rate of kidney decline, based on adequate historical and clinical data obtained 18 months prior to REACT injection, will serve as a comparator for monitoring the rate of progression of kidney insufficiency over time.
The aggregate number of subjects enrolled for the Phase 2 clinical trial was 83. Upon withdrawal and/or replacement of 2 subjects, 81 subjects were enrolled as of December 2020, of which 41 subjects were enrolled into the active treatment group and 42 subjects were enrolled into the deferred treatment group.
We dosed all deferred subjects in 2022 and are on track to obtain additional interim data and complete all follow-up visits for all active subjects in the fourth quarter of 2023. We plan to release interim data from RMCL-002 in the second half of 2023. We also plan to complete all follow-up visits for deferred subjects by early 2024 and deliver the clinical study report in 2024. Results from interim data may not be indicative of results from future data.
REGEN-007
REGEN-007 is an ongoing Phase 2, prospective, randomized, open-label, repeat dose, double-arm, controlled safety and efficacy study of REACT in subjects with type 1 or 2 diabetes and CKD.
The primary objective of this study is to assess the safety and efficacy of up to two REACT injections given three months apart (up to 60 days after target date) in Type 1 and 2 diabetic kidney disease with eGFRs between 20 and 50 ml/min/1.73m2) and delivered into biopsied and non-biopsied contralateral kidneys using a minimally invasive percutaneous approach. This is compared to a single REACT injection followed by monitoring and a potential second injection delivered into the non-biopsied contralateral kidney using a minimally invasive percutaneous approach triggered by a 20% decrease in eGFR and/or a 30% increase in urinary UACR delivered within 60 days of trigger being met. In previous Phase 2 studies, we injected REACT into the same kidney twice. Based on a generally favorable safety profile observed in previous studies, we are now proceeding with the injection of REACT into both kidneys in REGEN-007. We expect the data generated by REGEN-007 will enable us to better understand the impact of REACT on kidney health from injections in both kidneys.
We have completed enrollment in REGEN-007 with a total of 53 subjects. We anticipate reporting interim data from this study around the end of 2023.
REGEN-006/proact 1 trial
REGEN-006 (proact 1) is a Phase 3, randomized, single-blinded, bi-lateral kidney dose, sham control arm, controlled efficacy study of REACT in subjects with type 2 diabetes and CKD Stages 3a-4 (specifically, eGFR between 20 ml and 50 ml min/1.73m2 with moderate to severe albuminuria (UACR between 300 and 5000 mg/g)). Albuminuria refers to the presence of an excess of the protein albumin in urine, which is a sign of kidney disease.
The primary objective of this study is to assess the efficacy of up to two REACT injections given three months apart and delivered into biopsied and non-biopsied contralateral kidneys using a minimally invasive percutaneous approach. The total planned enrollment is 600 subjects.
The primary composite endpoint is the time from first injection to the earliest of:
Subjects will be randomized (1:1) to the treatment group and the “masked” sham control group prior to kidney biopsy.
This study will be conducted in clinical centers in the United States, Canada, Australia, Mexico, Taiwan and the United Kingdom. While we continue to target a pre-specified interim data analysis in the proact 1 trial at the end of 2024 based on the occurrence of events, we have encountered several factors that put achievement of this timeline at risk. These factors include a shortage of clinical staff at trial sites, competition between clinical trial sponsors for patients and sites, changes in the standard of care
23
for those living with CKD and evolving regulatory guidelines for cellular therapeutic tissue handling throughout the world. We are actively monitoring these challenges and implementing several mitigation measures that we believe will enable us to achieve our clinical objectives within established target timelines.
REGEN-016/proact 2 trial
REGEN-016 (proact 2) is a planned Phase 3, randomized, single-blinded, sham control arm, bi-lateral kidney dose, controlled efficacy study of REACT in subjects with type 2 diabetes and CKD Stages 3b-4 (specifically eGFR between 20 ml and 50 ml min/1.73m2 with moderate to severe albuminuria (UACR between 300 and 5000 mg/g)). This study will be implemented in clinical centers in Europe, Latin America, Asia-Pacific and some United States centers.
The primary objective of this study is to assess the efficacy of up to two REACT injections given three months apart and delivered into biopsied and non-biopsied contralateral kidneys using a minimally invasive percutaneous approach. The total planned enrollment is 600 subjects.
The primary composite endpoint is the time from first injection to the earliest of:
Enrollment in this study is expected to begin in the second half of 2023. We plan to evaluate interim data for REGEN-016 in late-2025, with the potential for conditional FDA approval anticipated in late 2026.
Commercial Manufacturing Strategy
In preparation for our commercial manufacturing needs in the event that REACT receives regulatory approval, through our wholly-owned subsidiary, ProKidney Acquisition Company, LLC, we completed the closing of the purchase of a 210,000 square foot facility and approximately 22 acres of land in Greensboro, North Carolina, in July 2023. Under the terms of the purchase agreement, we paid approximately $25.5 million in cash for the facility and property. In connection with the purchase, the city of Greensboro, North Carolina, Guilford County, North Carolina and the North Carolina State Economic Investment Committee have approved incentive packages under which ProKidney is eligible to receive, in aggregate, up to approximately $33.7 million in tax credits, as well as up to $1.9 million in energy credits from Duke Energy. Receipt of these incentives is based upon the achievement of certain milestones, including the creation of at least 330 new jobs on or before December 31, 2028, and project investment of approximately $458 million made, or caused to be made, by the Company in real and personal property by December 31, 2027.
Other Global Developments
In 2022, various central banks around the world (including the Federal Reserve in the United States) raised interest rates. While these rate increases have not had a significant adverse impact on the Company to date, the impact of such rate increases on the overall financial markets and the economy may adversely impact the Company in the future, including by making capital more difficult and costly to obtain on reasonable terms and when needed. In addition, the global economy has experienced and is continuing to experience high levels of inflation and global supply chain disruptions. We continue to monitor these supply chain, inflation and interest rate factors, as well as the uncertainty resulting from the overall economic environment.
In addition, although we have no operations in or direct exposure to Russia, Belarus and Ukraine, we have experienced limited constraints in availability and increasing costs required to obtain some materials and supplies due, in part, to the negative impact of the Russia-Ukraine military conflict on the global economy, which contributed to global supply chain disruptions. To date, our business has not been materially impacted by the conflict; however, as the conflict continues or worsens, it may adversely impact our business, financial condition or results of operations.
Financial Operations Overview
Revenue
We have not generated any revenue since our inception and do not expect to generate any revenue from the sale of products in the near future, if at all. If our development efforts for REACT or any other product candidates are successful and result in marketing approval, or if we enter into collaboration or license agreements with third parties, we may generate revenue in the future from a combination of product sales or payments from such agreements.
24
Expenses
Research and Development Expenses
Research and development expenses consist primarily of costs incurred in connection with our research and development activities, including the development of REACT.
Research and development costs include:
We expense research and development costs as incurred. We recognize external development costs based on an evaluation of the progress to completion of specific tasks using information provided to us by our vendors. Payments for these activities are based on the terms of the individual agreements, which may differ from the pattern of costs incurred, and are reflected in our consolidated balance sheets as prepaid clinical or as a component of total accrued expenses and other. Nonrefundable advance payments for goods or services to be received in the future for use in research and development activities are deferred and capitalized, even when there is no alternative future use for the research and development. The capitalized amounts are recorded as prepaid clinical and are expensed as the related goods are delivered or the services are performed.
Research and development activities are central to our business model. We expect that our research and development expenses will increase significantly for the foreseeable future as REACT moves into later stages of clinical development.
The successful development of REACT and any product candidates we may develop in the future is highly uncertain. Therefore, we cannot reasonably estimate or know the nature, timing and estimated costs of the efforts that will be necessary to complete the development and commercialization of any of our product candidates. We are also unable to predict when, if ever, material net cash inflows will commence from the sale of REACT or potential future product candidates, if approved. This is due to the numerous risks and uncertainties associated with developing product candidates, many of which are outside of our control, including the uncertainty of:
25
Any changes in the outcome of any of these variables could mean a significant change in the costs and timing associated with the development of our product candidates. For example, if the FDA or another regulatory authority were to require us to conduct clinical trials beyond those that we anticipate will be required for the completion of clinical development of a product candidate, or if we experience significant delays in our clinical trials due to patient enrollment or other reasons, we would be required to expend significant additional financial resources and time on the completion of clinical development. We may never obtain regulatory approval for any of our product candidates.
General and Administrative Expenses
General and administrative expenses consist primarily of personnel-related costs, including salaries, bonuses, benefits and equity-based compensation expenses for individuals involved in our executive, finance, corporate and administrative functions, as well as expenses for outside professional services, including legal, audit, accounting and tax-related services and other consulting fees, facility-related expenses, which include depreciation costs and other allocated expenses for rent and maintenance of facilities, insurance costs, recruiting costs, travel expenses and other general administrative expenses.
We expect that our general and administrative expenses will increase significantly for the foreseeable future as our business expands and we hire additional personnel to support our operations. We also anticipate increased expenses associated with being a public company, including costs for legal, audit, accounting, investor and public relations, tax-related services, director and officer insurance, and regulatory costs related to compliance with the rules and regulations of the United States Securities and Exchange Commission (the “SEC”) as well as listing standards applicable to companies listed on a national securities exchange.
Other Income (Expense)
Other income consists primarily of interest income earned on cash, cash equivalents and marketable securities.
Income Tax Expense
Income tax expense reflects federal and state taxes on income earned by our subsidiary that is organized as a C corporation for U.S. income tax purposes.
26
Results of Operations
Comparison of Three Months Ended June 30, 2023 and 2022
The following table summarizes our results of operations for the three months ended June 30, 2023 and 2022 (in thousands):
|
|
Three Months Ended June 30, |
|
|||||||||
|
|
2023 |
|
|
2022 |
|
|
Change |
|
|||
Operating expenses: |
|
|
|
|
|
|
|
|
|
|||
Research and development |
|
$ |
26,364 |
|
|
$ |
11,558 |
|
|
$ |
14,806 |
|
General and administrative |
|
|
13,455 |
|
|
|
9,180 |
|
|
|
4,275 |
|
Total operating expense |
|
|
39,819 |
|
|
|
20,738 |
|
|
|
19,081 |
|
Loss from operations |
|
|
(39,819 |
) |
|
|
(20,738 |
) |
|
|
(19,081 |
) |
Interest income |
|
|
5,965 |
|
|
|
– |
|
|
|
5,965 |
|
Interest expense |
|
|
(4 |
) |
|
|
(170 |
) |
|
|
166 |
|
Net loss before taxes |
|
|
(33,858 |
) |
|
|
(20,908 |
) |
|
|
(12,950 |
) |
Income tax expense |
|
|
965 |
|
|
|
1,223 |
|
|
|
(258 |
) |
Net and comprehensive loss before noncontrolling |
|
|
(34,823 |
) |
|
|
(22,131 |
) |
|
|
(12,692 |
) |
Net loss and comprehensive loss attributable to |
|
|
(25,705 |
) |
|
|
– |
|
|
|
(25,705 |
) |
Net loss and comprehensive loss available to Class A |
|
$ |
(9,118 |
) |
|
$ |
(22,131 |
) |
|
$ |
13,013 |
|
Research and development expenses
The increase in research and development expenses of approximately $14.8 million was primarily driven by the following:
General and administrative expenses
The increase in general and administrative expenses of approximately $4.3 million was primarily driven by the following:
Income tax expense
Income tax expense for the three months ended June 30, 2023 was relatively consistent with the income tax expense recognized for the three months ended June 30, 2022.
27
Comparison of Six Months Ended June 30, 2023 and 2022
The following table summarizes our results of operations for the six months ended June 30, 2023 and 2022 (in thousands):
|
|
Six Months Ended June 30, |
|
|||||||||
|
|
2023 |
|
|
2022 |
|
|
Change |
|
|||
Operating expenses: |
|
|
|
|
|
|
|
|
|
|||
Research and development |
|
$ |
51,981 |
|
|
$ |
40,048 |
|
|
$ |
11,933 |
|
General and administrative |
|
|
28,714 |
|
|
|
47,152 |
|
|
|
(18,438 |
) |
Total operating expense |
|
|
80,695 |
|
|
|
87,200 |
|
|
|
(6,505 |
) |
Loss from operations |
|
|
(80,695 |
) |
|
|
(87,200 |
) |
|
|
6,505 |
|
Interest income |
|
|
11,262 |
|
|
|
– |
|
|
|
11,262 |
|
Interest expense |
|
|
(7 |
) |
|
|
(184 |
) |
|
|
177 |
|
Net loss before taxes |
|
|
(69,440 |
) |
|
|
(87,384 |
) |
|
|
17,944 |
|
Income tax expense |
|
|
2,292 |
|
|
|
2,233 |
|
|
|
59 |
|
Net and comprehensive loss before noncontrolling |
|
|
(71,732 |
) |
|
|
(89,617 |
) |
|
|
17,885 |
|
Net loss and comprehensive loss attributable to |
|
|
(52,949 |
) |
|
|
– |
|
|
|
(52,949 |
) |
Net loss and comprehensive loss available to Class A |
|
$ |
(18,783 |
) |
|
$ |
(89,617 |
) |
|
$ |
70,834 |
|
Research and development expenses
The increase in research and development expenses of approximately $11.9 million was primarily driven by the following:
General and administrative expenses
The decrease in general and administrative expenses of approximately $18.4 million was primarily driven by the following:
Income tax expense
Income tax expense for the six months ended June 30, 2023 was relatively consistent with the income tax expense recognized for the six months ended June 30, 2022.
28
Liquidity and Capital Resources
Sources of liquidity
Since our inception, we have not recognized any revenue and have incurred operating losses and negative cash flows from our operations. We have not yet commercialized any product and we do not expect to generate revenue from sales of any products for several years, if at all. From our inception through June 30, 2023, we funded our operations primarily through capital contributions from the holders of PKLP and the proceeds obtained through the business combination between Social Capital Suvretta Holdings Corp. III and PKLP (the “Business Combination”) and related PIPE financing.
We expect that our existing cash, cash equivalents and marketable securities held at June 30, 2023, will enable us to fund our operating expenses and capital expenditure requirements through 2024. We have based this estimate on assumptions that may prove to be wrong and we could exhaust our capital resources sooner than we expect.
We expect our expenses to increase substantially if, and as, we:
In addition, since the closing of the Business Combination (the “Closing”) we have begun incurring additional costs associated with operating as a public company, including significant legal, audit, accounting, investor and public relations, regulatory, tax-related, director and officer insurance premiums and other expenses. Developing pharmaceutical products, including conducting clinical trials, is a time-consuming, expensive and uncertain process that takes years to complete, and we may never generate the necessary data or results required to obtain marketing approval for any product candidates or generate revenue from the sale of any product candidate for which we may obtain marketing approval. In addition, our product candidates, if approved, may not achieve commercial success. Our commercial revenues, if any, will be derived from sales of product that we do not expect to be commercially available for at least several years, if ever.
As a result, we will need substantial additional funding to support our continuing operations and pursue our growth strategy. Until such time as we can generate significant revenue from product sales, if ever, we expect to finance our operations through the public or private sale of equity, government or private party grants, debt financings or other capital sources, including potential collaborations with other companies or other strategic transactions. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership interest of our shareholders will be or could be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect the rights of our shareholders. Debt financing and equity financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends. If we are unable to obtain additional funding, we could be forced to delay, reduce or eliminate some or all of our research and development programs, product portfolio expansion or any commercialization efforts, which could adversely affect our business prospects, or we may be unable to continue operations. If we raise funds through strategic collaborations or other similar arrangements with third parties, we may have to relinquish valuable rights to our technology, future- revenue streams, research programs or product candidates or may have to grant licenses on terms that may not be favorable to us and/or may reduce the value of our shares. Our ability to raise additional funds may be adversely impacted by potential worsening global economic conditions and disruptions to and volatility in the credit and financial markets in the United States and worldwide. Because of the numerous risks and uncertainties associated with product development, we cannot predict the timing or amount of increased expenses, and there is no assurance that we will ever be profitable or generate positive cash flow from operating activities.
Cash Flows
Cash Flows for the Six Months Ended June 30, 2023 and 2022
The following table provides information regarding our cash flows for the six months ended June 30, 2023 and 2022 (in thousands):
29
|
|
Six Months Ended June 30, |
|
|||||
|
|
2023 |
|
|
2022 |
|
||
Net cash flows used in operating activities |
|
$ |
(40,908 |
) |
|
$ |
(38,485 |
) |
Net cash flows used in investing activities |
|
|
(205,765 |
) |
|
|
(1,225 |
) |
Net cash flows (used in) provided by financing activities |
|
|
(26 |
) |
|
|
41,034 |
|
Net change in cash and cash equivalents |
|
$ |
(246,699 |
) |
|
$ |
1,324 |
|
Operating Activities
Net cash used in operating activities was approximately $40.9 million for the six months ended June 30, 2023, reflecting a net loss of approximately $71.7 million and uses driven by changes in working capital of approximately $6.9 million. Such uses were partially offset by non-cash charges of $25.9 million. The non-cash charges primarily consisted of equity-based compensation expense of $24.2 million and depreciation and amortization expense of $1.7 million. The changes in working capital primarily relate to the timing of payments made to our vendors for services performed and the recognition of receivable amounts related to interest on our marketable security investments.
Net cash used in operating activities was approximately $38.5 million for the six months ended June 30, 2022, reflecting a net loss of $89.6 million and uses driven by changes in working capital of approximately $11.0 million, partially offset by non-cash charges of $62.1 million. The non-cash charges primarily consisted of equity-based compensation expense of $60.7 million and depreciation and amortization expense of $1.5 million.
The approximately $2.5 million increase in cash used in operating activities for the six months ended June 30, 2023 compared to the six months ended June 30, 2022 was primarily driven by an increase in net loss after adjusting for the non-cash charges and gains on investments of approximately $20.3 million offset by a decrease in the use of cash related to the timing of payments to our vendors and receipt of interest amounts due.
Investing Activities
Net cash used in investing activities was approximately $205.8 million and $1.2 million for the six months ended June 30, 2023 and 2022, respectively. The cash used in investing activities during the six months ended June 30, 2023 was primarily related to the investment of a portion of the proceeds raised through the Closing in marketable securities.
Financing Activities
Net cash used in financing activities for the six months ended June 30, 2023 was an insignificant amount. Net cash provided by financing activities was $41.0 million for the six months ended June 30, 2022 and relates to the sale of Class A and B-1 Units of PKLP during that period.
Critical Accounting Policies and Significant Judgments and Estimates
Our management’s discussion and analysis of financial condition and results of operations is based on our consolidated financial statements. Our consolidated financial statements are prepared in accordance with GAAP. The preparation of our consolidated financial statements and related disclosures requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, costs and expenses, and the disclosure of contingent assets and liabilities in our consolidated financial statements. We base our estimates on historical experience, known trends and events and various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. We evaluate our estimates and assumptions on an ongoing basis. Our actual results may differ from these estimates under different assumptions or conditions.
Our significant accounting policies are described in Note 2 to our unaudited consolidated financial statements included elsewhere in this Quarterly Report on Form 10-Q.
Recent Accounting Pronouncements
A description of recently issued accounting pronouncements that may potentially impact our financial position and results of operations is disclosed in Note 2 to our unaudited condensed consolidated financial statements included elsewhere in this Quarterly Report on Form 10-Q.
Off-Balance Sheet Arrangements
We did not have during the periods presented, and we do not currently have, any off-balance sheet arrangements, as defined in the rules and regulations of the SEC.
30
JOBS Act Accounting Election
We are an emerging growth company, as defined in the Jumpstart Our Business Startups Act of 2012, as amended (the “JOBS Act”). The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards applicable to public companies, allowing them to delay the adoption of those standards until those standards would otherwise apply to private companies. We have elected to use this extended transition period under the JOBS Act. As a result, our consolidated financial statements may not be comparable to the financial statements of companies that are required to comply with the effective dates for new or revised accounting standards that are applicable to public companies, which may make our ordinary shares less attractive to investors.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Interest Rate Risk
The Company’s exposure to changes in interest rates relates primarily to the Company’s investment portfolio. The goals of our investment strategy are preservation of capital, fulfillment of liquidity needs and fiduciary control of cash and investments. We also seek to maximize income from our investments without assuming significant risk. To achieve our goals, we maintain a portfolio of cash equivalents and investments in a variety of securities that management believes to be of high credit quality. All securities in our investment portfolio are not leveraged and are, due to their short-term nature, subject to minimal interest rate risk. Because of the short-term maturities of our investments, we do not believe that an increase in market rates would have a material negative impact on the value of our investment portfolio.
Foreign Currency Risk
We do not have any material foreign currency exposure.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, management has evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) of the Securities Exchange Act of 1934, as amended) as of June 30, 2023. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of June 30, 2023, our disclosure controls and procedures were effective in causing material information relating to us (including our consolidated subsidiaries) to be recorded, processed, summarized and reported by management on a timely basis and to ensure the quality and timeliness of our public disclosures pursuant to SEC disclosure obligations.
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, with the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error and mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people or by management override of controls.
The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, a control may become inadequate because of changes in conditions or because the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and may not be detected.
Changes to Internal Control over Financial Reporting
We previously reported a material weakness in our internal control over financial reporting related to the Company’s accounting for complex financial instruments, which condition existed prior to the Closing of the Business Combination. That material weakness has been remediated. There have been no other changes in our internal control over financial reporting during our most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
31
Website Availability of Reports and other Corporate Governance Information
The Company maintains a comprehensive corporate governance program, including Corporate Governance Guidelines for its Board of Directors, Board Guidelines for Assessing Director Independence and charters for its Audit Committee, Nominating and Corporate Governance Committee and Compensation Committee. The Company maintains a corporate investor relations website, https://investors.prokidney.com/, where stockholders and other interested persons may review, without charge, among other things, corporate governance materials and certain SEC filings, which are generally available on the same business day as the filing date with the SEC on the SEC’s website http://www.sec.gov. The contents of our website are not made a part of this Quarterly Report on Form 10-Q.
PART II—OTHER INFORMATION
Item 1. Legal Proceedings.
We are not currently a party to any material legal proceedings.
Item 1A. Risk Factors.
Summary of Risk Factors
Our business is subject to a number of risks, including risks that may prevent us from achieving our business objectives or may adversely affect our business, financial condition, results of operations, cash flows, and prospects. These risks are discussed more fully in the section entitled “Risk Factors” in our Registration Statement on Form 10-K filed with the SEC on March 28, 2023, as amended on April 27, 2023.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
There were no sales of unregistered equity securities during the three months ended June 30, 2023.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
None.
Item 5. Other Information.
None.
Item 6. Exhibits.
Exhibit Number |
|
Description |
|
|
|
|
|
|
10.1* |
|
Purchase Agreement, as amended, dated March 29, 2023, by and among ProKidney Corp. and 73 BCI 2 LLC. |
|
|
|
10.2* |
|
|
|
|
|
31.1* |
|
|
|
|
|
31.2* |
|
|
|
|
|
32.1* |
|
|
|
|
|
32
32.2* |
|
|
|
|
|
101* |
|
The following materials from the Company’s Quarterly report on Form 10-Q for the quarter ended June 30, 2023, formatted in iXBRL (Inline Extensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets (unaudited), (ii) Condensed Consolidated Statements of Operations (unaudited), (iii) Condensed Consolidated Statements of Changes in Redeemable Noncontrolling Interest and Stockholders’ Deficit (unaudited), (iv) Consolidated Statements of Cash Flows (unaudited) and (v) Notes to Condensed Consolidated Financial Statements (unaudited), tagged as blocks of text and including detailed tags. |
|
|
|
104* |
|
The cover page from this Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, formatted in Inline XBRL. |
|
|
|
* Filed herewith.
33
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
|
|
Company Name |
|
|
|
|
|
Date: August 10, 2023 |
|
By: |
/s/ Timothy A. Bertram |
|
|
|
Name: Timothy A. Bertram |
|
|
|
Title: Chief Executive Officer |
|
|
|
(Principal Executive Officer) |
|
|
|
|
Date: August 10, 2023 |
|
By: |
/s/ James Coulston |
|
|
|
Name: James Coulston |
|
|
|
Title: Chief Financial Officer |
|
|
|
(Principal Financial and Accounting Officer) |
34
Exhibit 10.1
EXECUTION
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the “Agreement”) is made and entered into by and between ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”).
($25,750,000.00), payable at Closing (as hereinafter defined) in certified funds or by wire transfer.
2
(5) business days after the Effective Date, Purchaser will deposit with Old Republic National Title Insurance Company (the “Title Company”) an earnest money deposit in the amount TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00) (“Initial Deposit”). Within three (3) business days following the expiration of the Incentives Period, Purchaser will deposit with the Title Company an additional earnest money deposit in the amount of ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($100,000.00) (“Additional Deposit;” the Initial Deposit and the Additional Deposit are collectively referred to herein as the “Deposit”). The Deposit shall be placed in an interest bearing account of the Title Company and shall be released pursuant to the provisions of this Agreement. Interest earned on the Deposit shall accrue and shall be deemed a portion of the Deposit.
3
4
then Purchaser’s objections to such items shall be deemed waived by the Purchaser upon the expiration of the Inspection Period. If this Agreement is terminated upon or prior to the expiration of the Inspection Period, the Deposit shall be returned to Purchaser and neither party shall have any further rights or obligations hereunder. If Seller agrees to make such corrections prior to Closing but is unable to do so, Purchaser shall have the following options: (i) to accept conveyance of the Property subject to the Permitted Exceptions, specifically including any matter (other than a Voluntary Lien) objected to by Purchaser which Seller is unwilling or unable to cure (and such matter(s) shall thereafter be deemed to be a Permitted Exception), without reduction of the Purchase Price, or (ii) to terminate this Agreement. If Purchaser chooses to terminate this Agreement pursuant to this section, the Deposit shall be returned to Purchaser and neither party shall have any further rights or obligations hereunder except where this Agreement specifically provides that a right, obligation, or liability shall survive the expiration or termination of this Agreement. As used herein, “Permitted Exceptions” shall mean the lien for ad valorem real estate taxes on the Property for the year in which the Closing occurs and subsequent years, any other matters that are shown on the Title Commitment or Survey and not objected to by Purchaser in the Title Objection Notice, or otherwise waived by Purchaser pursuant to this Section 3.1. Notwithstanding anything herein to the contrary, Seller, prior to or at Closing shall remove any and all mortgages, deeds of trust, UCC Financing Statements and other monetary liens and encumbrances placed of record by Seller or as a result of Seller’s action or inaction and relating to the Property (“Voluntary Liens”), and Purchaser shall have no obligation to give Seller any notice of objection with respect to any Voluntary Liens.
5
and,
6
In addition, during the term of this Agreement, Seller shall promptly provide Purchaser with such additional information concerning the Property as Purchaser may reasonably request, to the extent the same is in Seller’s possession or control.
Seller makes no representations or warranties to the accuracy or completeness of the Due Diligence Documents. It is the parties’ express understanding and agreement that such materials are provided only for Purchaser’s convenience in making its own examination and determination as to whether it wishes to purchase the Property, and, in doing so, Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of the Property and not on any materials supplied by Seller. Purchaser expressly disclaims any intent to rely on any such materials provided to it by Seller in connection with its inspection and agrees that it shall rely on its own independently developed or verified information.
Purchaser shall have the period ending at 6:00 p.m. (local time at the Property) on the date that is forty-five
(45) days following the Effective Date (the “Inspection Period”), to physically inspect the Property, review economic data and market conditions, conduct appraisals, make inquiry of governmental officials, perform examinations of the physical condition of the Improvements, examine the Real Property for the presence of Hazardous Materials, and to otherwise conduct such due diligence and underwriting as Purchaser, in its sole and absolute discretion, deems appropriate, subject to the terms hereof. This Agreement shall terminate unless, before 6:00 p.m. on the last day of the Inspection Period (the “Inspection Period Notice Deadline”), Purchaser gives Seller written notice (the “Inspection Period Notice”) that Purchaser, in its absolute and unreviewable discretion, elects to proceed with the purchase of the Property subject to the provisions hereof relating to the Incentives Period Notice and otherwise subject to and in accordance with the terms of this Agreement. In addition, at any time before the Inspection Period Notice Deadline, Purchaser may, in its absolute and unreviewable discretion, terminate this Agreement by giving written notice thereof to Seller (the “Termination Notice”). In the event that either: (a) Purchaser gives a Termination Notice before the Inspection Period Notice Deadline, or (b) Purchaser does not give a Termination Notice but fails to give the Inspection Period Notice before the Inspection Period Notice Deadline, this Agreement shall automatically terminate, the Deposit promptly shall be returned to Purchaser, and Seller and Purchaser shall have no further obligations or liabilities to each other hereunder except where this Agreement specifically provides that a right, obligation, or liability shall survive the expiration or termination of this Agreement.
7
8
the entry onto the Property and the inspection, examination, testing and investigation of the Property by the Purchaser and the Purchaser's employees, agents and contractors and other undertakings of the Purchaser and the Purchaser's employees, agents and contractors under this Agreement, except to the extent caused by Seller’s gross negligence or willful misconduct, and (ii) restore the Property to the condition in which it existed immediately prior to the Purchaser's entry thereon, reasonable wear and tear excepted. This section shall survive the delivery of the Deed and/or any termination of this Agreement. The indemnities contained in this Section 3.4 shall survive the Closing or the earlier termination of this Agreement. The right of access to the Property granted hereby shall in no way be construed as giving the Purchaser possession of or any legal or equitable title to the Property prior to the Closing.
Before any entry upon the Property, the Purchaser shall, at the Purchaser's expense, provide and maintain, or cause the Purchaser's contractors to provide and maintain, workers' compensation insurance, to the extent required under the workers' compensation law of the jurisdiction in which the Property is located, and commercial general liability insurance, all in form and with coverage limits reasonably satisfactory to the Seller and with insurance companies authorized to do business in the jurisdiction in which the Property is located. The Purchaser's commercial general liability insurance shall specifically extend to and include the indemnity agreement set forth herein. Prior to the commencement of entry by the Purchaser, the Purchaser shall furnish sufficient certificates of such insurance to the Seller, which certificates shall provide that such insurance shall not be canceled or changed until at least thirty (30) calendar days' prior written notice is given to the Seller and shall name the Seller as an additional insured thereunder.
9
10
Service Contracts are in full force and effect and neither Seller nor any other party is in default in any material respect under any Service Contract;
Warranties have been delivered to Purchaser. To Seller’s knowledge, the Warranties are in full force and effect and, if requested by Purchaser, Seller shall, at Closing, execute and deliver any reasonable documentation required to transfer the benefit of the Warranties to Purchaser, provided (i) the acknowledgment of such transfer by the issuer shall not be a condition of Closing, and (ii) Purchaser shall pay any fee or other cost required to cause such transfer;
As used in this Article 4, the terms “Knowledge”, “Seller’s Knowledge” or similar reference (regardless of capitalization) shall mean those matters which are actually, consciously known by Arthur L.
11
12
Samet and John Collett, who are the Managers of Seller and who have been involved in the acquisition and development of the Property since Seller acquired the Property without independent investigation or inquiry. There shall be no personal liability on the part of any individual(s) named above arising out of any representations or warranties made herein or otherwise. Seller shall indemnify Purchaser, its successors and assigns, against, and shall hold Purchaser, its successors and assigns, harmless from, any costs, expenses, or actual damages, including reasonable attorneys’ fees, which Purchaser may incur because of any breach of the representations and warranties herein contained, subject to the terms of this Section. The representations and warranties set forth in Article 4 shall survive Closing for a period of six (6) months only. In the event Purchaser has not given notice to Seller of a claim based on breach of a representation or warranty or covenant set forth in this Agreement within six (6) months after the Closing Date, Purchaser agrees that Seller shall be fully released and discharged from any liability whatsoever arising out of the representations, warranties and covenants set forth in this Agreement. In the event that Purchaser determines prior to the consummation of the sale of the Property that any representation or warranty of Seller is untrue or incorrect, Purchaser shall have the right, as its sole and exclusive remedy, to either terminate this Agreement and obtain a refund of the Deposit, or, alternatively, to close and take title to the Property subject to the truth of applicable matter, in which case Purchaser shall be deemed to have waived any claim against Seller based on the representation or warranty being untrue; provided, in the event Seller knew the underlying facts set forth in the any of the above representations and warranties to be untrue when given, then Purchaser shall have the remedies set forth herein for default by Seller. Purchaser shall not have the right to bring a cause of action for a breach of a representation, warranty or covenant unless the damage to such party on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $25,000.00 (the “Basket”), in which event the full amount of such claim may be made. Notwithstanding any other provision of this Agreement or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser will be limited to $350,000.00 (the “Cap”).
13
concerning or with respect to (a) the value, nature, quality or condition of the Property, including, without limitation, the water, soil and geology thereof, (b) the income to be derived from the Property, (c) the suitability of the Property for any and all operations, activities and uses which the Purchaser or anyone else may now or hereafter conduct thereon, (d) the compliance of or by the Property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body, including, without limitation, environmental protection, pollution, zoning or land use, (e) the presence or existence in, on or under the Property of any hazardous substances, hazardous wastes, asbestos containing materials or any other substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, rules, ordinances or regulations of any applicable governmental authority or body or common law, (f) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property, (g) the manner or quality of the construction or materials, if any incorporated into the Property, (h) the manner, quality, state of repair or lack of repair of the Property, or (i) any other matter with respect to the Property.
14
(ii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property that was not disclosed in writing to Purchaser before the date that is 10 days prior to the end of the Inspection Period; (iii) the Property shall be free and clear of: (y) any management or leasing agreements and any other Contracts other than any Continuing Contracts; and (z) any collective bargaining or employment agreements; and
the Building.
15
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for the prudent repair and maintenance of the Property, (ii) change or attempt to change (or consent to any change in) the zoning or other Legal Requirements applicable to the Property, or (iii) cancel, amend or modify in any material respect any Permit.
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by the Purchaser in connection with the transaction which is the subject matter of this Agreement. Seller agrees to indemnify, hold harmless and defend Purchaser from and against all claims, loss, liability, cost and expense (including reasonable attorneys’ fees at or before the trial level and any appellate proceedings) arising out of any claim made by Seller Broker or any realtor, broker, finder, or any other intermediary who claims to have been engaged, contracted or utilized by Seller in connection with the transaction which is the subject matter of this Agreement. This indemnification shall survive Closing or any termination of this Agreement and shall not expire as set forth in Article 9 hereof.
21
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connection with this Agreement and the transaction contemplated hereby, up to but in no event more than One Hundred Thousand Dollars ($100,000.00).
(i) to terminate this Agreement by giving written notice to Seller on or before the date that is fifteen (15) days after the date upon which Purchaser receives written notice or (ii) proceed to Closing. If Purchaser elects to terminate this Agreement, the Deposit shall be returned to Purchaser and the parties hereto shall have no further obligations or liabilities under this Agreement except where this Agreement specifically provides that a right, obligation, or liability shall survive the expiration or termination of this Agreement. If Purchaser elects to proceed to Closing, then the Purchase Price shall be reduced by the total of any insurance proceeds received by Seller prior to Closing and any deductible payable under such policy and at Closing, Seller shall assign to Purchaser all rights of Seller in and to any insurance proceeds not yet received by Seller and payable thereafter by reason on the casualty to the extent same are not prorated pursuant to the express terms of this Agreement (e.g. proceeds awards for lost rent). Notwithstanding anything herein to the contrary, in the event the cost of repair for the damage or destruction is less than fifteen percent (15%) of the Purchase Price, the Purchaser is obligated to close and shall receive an assignment of Seller’s insurance proceeds for said cost of repair. If any insurance proceeds paid or payable on account of a fire or other casualty are to be assigned to Purchaser in accordance with the provisions of this Agreement, Seller shall cooperate as reasonably requested by Purchaser to effectuate such assignment (including, if necessary, prosecuting claims in Purchaser’s name or for Purchaser’s benefit at the cost of Purchaser), and Seller’s obligation to so cooperate shall survive the Closing.
23
Other than the rights and obligations expressly assumed by Purchaser pursuant to the terms of this Agreement, Purchaser is not and is not to be deemed to be, a successor of any Seller, it being understood that Purchaser is acquiring only the Property; and it is expressly understood and agreed that, except as may otherwise be expressly agreed to by Purchaser elsewhere in this Agreement and in the documents delivered at Closing and except with respect to the Property, Purchaser has not and does not hereby assume or agree to assume any liability whatsoever of Seller, including but not limited to any obligations to (or regarding the employment of) any individuals previously or currently employed by Seller in the management, ownership or operation of the Property.
If to Purchaser:
ProKidney
3929 Westpoint Blvd, Suite G Winston Salem, NC 27103 Attn: Timothy Lutz 336.748.6240
Email: tim.lutz@prokidney.com
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 555 12th Street NW
Washington, DC 20004
Attn: Matthew T. Simpson, Esq. 202.434.7436
Email: mtsimpson@mintz.com
If to Seller: c/o Samet Corporation
309 Gallimore Dairy Road, Suite 102
Greensboro, NC 27409
Attention: Josh Drye, Development Manager Email: jdrye@sametcorp.com
c/o Collett
1111 Metropolitan Avenue #700 Charlotte, North Carolina 28204 Attention: Michael E. Robbe Email: mrobbe@colletre.com
With copy to: Brian T. Pearce
24
25
Nexsen Pruet, LLC
800 Green Valley Road, Suite 500 Greensboro, North Carolina 27408 Email: BPearce@nexsenpruet.com
This Agreement and the exhibits attached hereto contain the entire agreement between the parties. No modification or amendment of this Agreement shall be of any force or effect unless made in writing and executed by Purchaser and Seller. IN THE EVENT THAT LITIGATION ARISES HEREUNDER IT IS SPECIFICALLY STIPULATED THAT THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NORTH CAROLINA. Further, the
prevailing party in litigation between the parties shall be entitled to recover, as a part of its judgment, reasonable attorneys’ fees, costs and expenses.
26
(10) business days of receiving the Third Party Offer, then Purchaser shall be deemed to have waived its
27
right to purchase the 7902 Property at the price set forth in the First Offer, and any Seller Party may sell the 7902 Property to such third party. The provisions of this Section shall survive the Closing.
Exhibit A—Property Description Exhibit B—Service Contracts Exhibit C—Form of Deed
Exhibit D—Description of 7902 Property Exhibit E—Intentionally Omitted
Exhibit F—Form of Bill of Sale, Blanket Conveyance and Assignment Exhibit G—Intentionally Omitted
Exhibit H—Form of Updated Representation Certificate Exhibit I—Intentionally Omitted
Exhibit J—List of Personal Property Exhibit K—List of Warranties
28
EXECUTED by Purchaser on 3/29/2023 | 5:3. 5:23 AM PDT
PURCHASER:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: COO
EXECUTED by Seller on _3/27/2023 | 11:32:.01 AM PDT
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: /s/ Arthur Samet
Name: Arthur Samet
Title: Manager
29
Limited Joinder by Seller’s Broker
Seller’s Broker is executing this Agreement below solely to confirm its agreement to comply with the terms of Section 18.10 above.
SAMET PROPERTIES, LLC:
By: /s/ Josh Drye
Name: Josh Drye
Title: Broker and development manager
30
The undersigned hereby accepts this Purchase and Sale Agreement and agrees to perform the functions of Title Company hereunder.
TITLE COMPANY:
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
By: /s/ Jay Hedgpeth
Name: Jay Hedgpeth
Title: Vice President
Title Company contact information:
Old Republic National Title Insurance Company 102 West Third Street, Suite 500
Winston-Salem, NC 27101 Attention: Jay Hedgpeth
Email: JHedgpeth@OldRepublicTitle.com Phone: (336) 631-8004
31
EXHIBIT A PROPERTY DESCRIPTION
BEING ALL OF LOT 2B as shown on that certain plat entitled “FINAL PLAT of LOTS 2A & 2B FOR GREENLEA 68 SITE” recorded in Plat Book 208, Page 70 of the Guilford County Registry.
A-1
EXHIBIT B SERVICE CONTRACTS
NONE
B-1
EXHIBIT C
SPECIAL WARRANTY DEED
Excise Tax $
Tax Lot No.: |
Parcel Identifier No. |
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by |
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Mail after recording to: |
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This instrument was prepared by: |
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Brief Description for the index |
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THIS DEED made as of |
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GRANTOR |
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GRANTEE |
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Enter in appropriate block for each party: name, address, and, if appropriate, character of entity, e.g., corporation or partnership. |
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The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.
WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee simple, all that certain lot or parcel of land situated in Township, City of
, County, North Carolina and more particularly described as follows:
That certain parcel of real property more particularly described on Exhibit A attached hereto and incorporated herein by reference (the “Property”).
The Property hereinabove described was acquired by Grantor by instrument recorded in Book at Page , County Registry.
All or a portion of the Property herein conveyed does not include the primary residence of Grantor.
TO HAVE AND TO HOLD the Property and all privileges and appurtenances thereto belonging to the Grantee in fee simple.
C-1
And the Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor received, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by, under or through Grantor, except for the matters set forth on Exhibit B.
C-2
IN WITNESS WHEREOF, the Grantor has caused this instrument to be signed by its authorized signatory on the day indicated in the notary block below, to be effective as of the date first above written.
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, a
By: Name: Title: |
SEAL-STAMP |
State of North Carolina
County of
I certify that the following person personally appeared before me this day, acknowledging to me that s/he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: . (Print Name and Title)
Date: , 20
Print/Typed Name: Notary Public My commission expires: [Notarial Seal] |
C-3
Exhibit A to Special Warranty Deed
BEING ALL OF LOT 2B as shown on that certain plat entitled “FINAL PLAT of LOTS 2A & 2B FOR GREENLEA 68 SITE” recorded in Plat Book 208, Page 70 of the Guilford County Registry.
C-4
Exhibit B to Special Warranty Deed
[Permitted Exceptions to be included]
C-5
DocuSign Envelope ID: 4FC20E32-5E21-4449-B3DB-249D79A51AFA
EXHIBIT D DESCRIPTION OF 7902 PROPERTY
BEING ALL OF LOT 2A as shown on that certain plat entitled “FINAL PLAT of LOTS 2A & 2B FOR GREENLEA 68 SITE” recorded in Plat Book 208, Page 70 of the Guilford County Registry.
D-1
EXHIBIT E
FORM OF NOTICE OF RIGHT OF FIRST OFFER
Prepared by and return to:
STATE OF NORTH CAROLINA )
)
COUNTY OF GUILFORD )
ABOVE SPACE FOR RECORDER’S USE
NOTICE OF RIGHT OF FIRST OFFER
THIS NOTICE OF RIGHT OF FIRST OFFER is made as of this day of , 2023 (this “Notice”) by and between ProKidney Corp., a Cayman Islands exempted company authorized to do business in North Carolina (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”).
RECITALS
NOTICE AND AGREEMENT
E-1
above.
E-1
IN WITNESS HEREOF, Seller and Purchaser have executed this Notice as of the date set forth [SIGNATURE PAGES FOLLOW]
E-1
SIGNATURE PAGE TO NOTICE OF RIGHT OF FIRST OFFER
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: Name: Title:
STATE OF
COUNTY OF
I, , a Notary Public of the County and State aforesaid, certify that
, whose identity has been proven by satisfactory evidence, said evidence being:
I have personal knowledge of the identity of the principal(s)
I have seen satisfactory evidence of the principal’s identity, by a current state or federal identification with the principal’s photograph in the form of a
A credible witness has sworn to the identity of the principal(s).
who is the of 73 BCI 2 LLC, personally appeared before me this day and acknowledged that (s)he is of 73 BCI 2 LLC and that as being duly authorized to do so, voluntarily executed the foregoing instrument on behalf of said company for the purposes stated therein.
WITNESS my hand and notarial seal this the day of , 2023.
E-2
[Affix Seal]
E-3
Notary Public
My Commission Expires:
E-4
SIGNATURE PAGE TO NOTICE OF RIGHT OF FIRST OFFER
Purchaser:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: Name: Title:
STATE OF
COUNTY OF
I, , a Notary Public of the County and State aforesaid, certify that , whose identity has been proven by satisfactory evidence, said evidence being:
I have personal knowledge of the identity of the principal(s)
I have seen satisfactory evidence of the principal’s identity, by a current state or federal identification with the principal’s photograph in the form of a
A credible witness has sworn to the identity of the principal(s).
who is the of PROKIDNEY CORP., personally appeared before me this day and acknowledged that (s)he is of PROKIDNEY CORP. and that as being duly authorized to do so, voluntarily executed the foregoing instrument on behalf of said company for the purposes stated therein.
WITNESS my hand and notarial seal this the day of , 2023.
E-5
[Affix Seal]
E-6
Notary Public
My Commission Expires:
E-7
Exhibit A to Notice of Right of First Offer
BEING ALL OF LOT 2A as shown on that certain plat entitled “FINAL PLAT of LOTS 2A & 2B FOR GREENLEA 68 SITE” recorded in Plat Book 208, Page 70 of the Guilford County Registry.
E-8
EXHIBIT F
BILL OF SALE, BLANKET CONVEYANCE AND ASSIGNMENT
This Bill of Sale, Blanket Conveyance and Assignment (this “Assignment”) is executed by
, a (“Assignor”) to and for the benefit of
, a (“Assignee”).
RECITALS
WHEREAS, concurrently herewith Assignor is conveying to Assignee by Special Warranty Deed of even date herewith that certain real property (the “Property”) more particularly described on Exhibit A attached hereto and incorporated herein for all purposes; and
WHEREAS, in connection with the conveyance of the Property, Assignor intends to sell, assign and convey unto Assignee the Assigned Properties (defined below).
NOW, THEREFORE, in consideration of the foregoing and Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged and confessed by Assignor, Assignor and Assignee hereby act and agree as follows:
F-1
F-2
The foregoing assignment is made on an “as is, where is, with all faults” basis, and without representation or warranty of any kind by Seller, express or implied. Assignor shall not be deemed in any event to be a warrantor, guarantor, or surety for the obligations of any maker of any warranties or guarantees assigned hereunder.
[The balance of this page is intentionally left blank]
F-3
IN WITNESS WHEREOF, this Assignment is executed as of this day of
, 2023.
ASSIGNOR:
By: Name: Title: Date:
ASSIGNEE:
By: Name: Title: Date:
F-4
EXHIBIT A
(to Bill of Sale) Property Description
F-5
EXHIBIT H
UPDATED REPRESENTATION CERTIFICATE
The undersigned, as Seller under a Real Estate Purchase and Sale Agreement (“Purchase Agreement”) dated as of , 2023 between (“Seller”) and
(“Purchaser”), does hereby certify to Purchaser that the representations and warranties set forth in Section 4.1 of the Purchase Agreement are hereby reaffirmed as of the date hereof [except as provided on Schedule A attached hereto].
Seller’s liability hereunder shall be subject to the limitations set forth in the Purchase Agreement. Dated as of this day of , 2023.
SELLER
[ ]
By: Name:
Title:
H-1
EXHIBIT J
LIST OF PERSONAL PROPERTY
NONE.
J-1
EXHIBIT K
LIST OF WARRANTIES
K-1
AMENDMENT TO PURCHASE AND SALE AGREEMENT
This AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made effective as of May 26, 2023 (the “Amendment Effective Date”), by and between between ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”). (Seller and Purchaser are hereinafter jointly referred to as the “Parties.”)
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement effective as of March 29, 2023 (the “Original Agreement”) for the purchase and sale of certain real property located at and commonly known 7901 Indlea Point in the City of Greensboro, Guilford County, North Carolina, and also being identified as Guilford County Parcel ID Number 168016, as more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to amend the Agreement as more particularly set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
K-1
means, and such DocuSign, email “pdf”, or other electronic signatures shall be deemed to constitute fully effective signatures.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
2
[SIGNATURE PAGE TO AMENDMENT TO PURCHASE AND SALE AGREEMENT] PURCHASER:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: COO
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: /s/ Arthur Samet
Name: Arthur Samet
Title: Manager
3
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
This SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is
made effective as of June 9, 2023 (the “Second Amendment Effective Date”), by and between between ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”). (Seller and Purchaser are hereinafter jointly referred to as the “Parties.”)
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement effective as of March 29, 2023 (the “March 29 Agreement”), as amended by that certain Amendment to Purchase and Sale Agreement dated May 26, 2023 (together, the “Original Agreement”) for the purchase and sale of certain real property located at and commonly known 7901 Indlea Point in the City of Greensboro, Guilford County, North Carolina, and also being identified as Guilford County Parcel ID Number 168016, as more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to amend the Agreement as more particularly set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
DOLLARS ($25,750,000.00)” and inserting in its place the text “TWENTY-FIVE MILLION, FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($25,500,000.00)”.
1
means, and such DocuSign, email “pdf”, or other electronic signatures shall be deemed to constitute fully effective signatures.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
2
3
[SIGNATURE PAGE TO SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT] PURCHASER:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: COO
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: /s/ Arthur Samet
Name: Arthur Samet
Title: Manager
4
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
This THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”)
is made effective as of June 15, 2023 (the “Third Amendment Effective Date”), by and between between ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”). (Seller and Purchaser are hereinafter jointly referred to as the “Parties.”)
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement effective as of March 29, 2023 (the “March 29 Agreement”), as amended by that certain Amendment to Purchase and Sale Agreement dated May 26, 2023 and that certain Second Amendment to Purchase and Sale Agreement dated June 9, 2023 (together, the “Original Agreement”) for the purchase and sale of certain real property located at and commonly known 7901 Indlea Point in the City of Greensboro, Guilford County, North Carolina, and also being identified as Guilford County Parcel ID Number 168016, as more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to amend the Agreement as more particularly set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
“(ix) (a) An NCLTA Form 5 Owner Affidavit and Indemnity Agreement, and
(b) an NCLTA Form 6 Waiver and Release of Liens from Samet Corporation with respect to each Notice to Lien Agent filed by Samet Corporation.”
(xvii) which reads:
“(xvii) an executed Warranty in the form attached to the Third Amendment to Purchase and Sale Agreement as Exhibit L.”
(xviii) which reads:
“(xviii) If, as of the Closing Date, the City of Greensboro has not confirmed that the initial development requirements of the Operation and Maintenance Agreement dated February 17, 2021 have been satisfied and that no further
earthmoving or landscaping is required as a condition to issuance of a permanent certificate of occupancy for the Property, an executed Holdback Escrow Agreement in the form attached to the Third Amendment to Purchase and Sale Agreement as Exhibit M, subject to any modifications required by the Escrow Agent and mutually acceptable to the Parties in the exercise of their reasonable discretion.”
[SIGNATURES APPEAR ON FOLLOWING PAGE]
[SIGNATURE PAGE TO THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT]
PURCHASER:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: COO
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: /s/ Arthur Samet
Name: Arthur Samet
Title: Manager
EXHIBIT F
BILL OF SALE, BLANKET CONVEYANCE AND ASSIGNMENT
This Bill of Sale, Blanket Conveyance and Assignment (this “Assignment”) is executed by 73 BCI 2 LLC, a North Carolina limited liability company (“Assignor”) to and for the benefit of PROKIDNEY CORP., a Cayman Islands exempted corporation (“Assignee”).
RECITALS
WHEREAS, concurrently herewith Assignor is conveying to Assignee by Special Warranty Deed of even date herewith that certain real property (the “Property”) more particularly described on Exhibit A attached hereto and incorporated herein for all purposes; and
WHEREAS, in connection with the conveyance of the Property, Assignor intends to sell, assign and convey unto Assignee the Assigned Properties (defined below).
NOW, THEREFORE, in consideration of the foregoing and Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged and confessed by Assignor, Assignor and Assignee hereby act and agree as follows:
tenant credit reports and maintenance and operating records, keys and telephone exchange numbers, if any and to the extent they are assignable.
The foregoing assignment is made on an “as is, where is, with all faults” basis, and without representation or warranty of any kind by Seller, express or implied. Assignor shall not be deemed in any event to be a warrantor, guarantor, or surety for the obligations of any maker of any warranties or guarantees assigned hereunder.
[The balance of this page is intentionally left blank]
IN WITNESS WHEREOF, this Assignment is executed as of this day of
, 2023.
ASSIGNOR:
73 BCI 2 LLC,
a North Carolina limited liability company
By: Name: John Collett, Jr.
Title: Manager
Date:
By: Name: Arthur L. Samet
Title: Manager
Date:
ASSIGNEE:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: Name: Title: Date:
6
EXHIBIT A
(to Bill of Sale, Blanket Conveyance and Assignment) Property Description
BEING ALL OF LOT 2A as shown on that certain plat entitled “FINAL PLAT of LOTS 2A & 2B FOR GREENLEA 68 SITE” recorded in Plat Book 208, Page 70 of the Guilford County Registry.
EXHIBIT B
(to Bill of Sale, Blanket Conveyance and Assignment) List of Warranties
Product Warranty |
Provider/Vendor |
Metal Coil Product |
CMP |
Red Shield TPO |
Allied Roofing |
Membrane Only TPO |
Allied Roofing |
Overhead doors |
Haas Door |
Dock Seals |
4 Front |
Levelers |
5 Front |
Awnings |
Charlotte Tent and Awning |
Insulating Glass |
Trulite |
Storefront framing |
YKK |
Fire Pump |
Patterson Pump |
see warranty |
Zurn |
see warranty |
Sigma |
see warranty |
American Flow Control |
Workmanship |
Allied Roofing |
Landscaping |
Staniel Key Inc |
Caulking |
Ace Avant |
Final Cleaning |
ABS |
Electrical Work |
Bryant Durham |
Door Installations |
Central Access |
7
8
OH Doors/Dock Eq Installations |
Door Systems ASSA ABLOY |
Structural Misc Steel |
Davidson Steel |
HM Doors frames hardware |
Division Eight |
Masonry Units workmanship |
Gilgeours Construction |
Painting |
North Star Painting |
Storefront framing/glass work |
Pfaffs |
Concrete work |
Procon |
Metal framing and drywall |
Quality Drywall |
Stabilization |
Ruston Paving |
Design Builder/Contractor |
Samet |
Sprinkler system |
Sentry Fire Protection |
Grading and Utilities |
Smith and Jennings |
Domestic Plumbing |
Steve Tate and Son Plumbing |
HVAC |
Systems Contractors |
9
EXHIBIT L
FORM OF WARRANTY
Exclusive One-year Warranty and Remedy
IT IS THE MUTUAL INTENT OF PROKIDNEY AND SAMET THAT THE EXCLUSIVE WARRANTY AND EXCLUSIVE REMEDY SET FORTH ABOVE ARE GIVEN BY SAMET IN LIEU OF: (1) ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND REMEDIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WORKMANLIKE CONSTRUCTION, WHICH ARE HEREBY DISCLAIMED; AND (2) ALL OTHER CONTRACTUAL, EQUITABLE, OR TORT-BASED CAUSES OF ACTION OR REMEDIES WHATSOEVER RELATING TO THE WORK, IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THE OWNER'S SOLE REMEDY WITH RESPECT TO THE WORK IS THIS EXCLUSIVE WARRANTY AND EXCLUSIVE REMEDY.
This the day of June, 2023.
10
SAMET CORPORATION,
a North Carolina corporation
By: Name: Title:
Exhibit A to Exclusive One-Year Warranty and Remedy
[To be inserted: files (or reference to files) provided by Brian T. Pearce to Adrianne Zahner via Box on June 6, 2023]
11
EXHIBIT M
FORM OF HOLDBACK ESCROW AGREEMENT
HOLDBACK ESCROW AGREEMENT
This HOLDBACK ESCROW AGREEMENT (this “Agreement”) is made as of , 2023 (the “Effective Date”), by and ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”); and Old Republic National Title Insurance Company (“Escrow Agent”).
RECITALS:
NOW, THEREFORE, in consideration of the premises, and the mutual covenants and agreements of the parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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Escrow Agent upon demand all such costs, fees, and expenses so incurred. By its execution and delivery of this Agreement to Seller and Purchaser, Escrow Agent hereby acknowledges that it has received from Seller cash in the amount of the Escrow Funds. Escrow Agent agrees to and shall hold and disburse the funds in the Holdback Escrow, in escrow, in strict accordance with the terms and conditions set forth in this Agreement.
Purchaser agrees to and shall complete the Work, at its sole cost and expense, and deliver the Completion Notice (defined below) no later than October 31, 2023 (the “Work Completion Date”), subject to extension for delays to the extent caused by events of Force Majeure (as hereinafter defined). Seller shall provide written notice to Purchaser that an event of Force Majeure has occurred promptly following the commencement of such event, whereupon Seller shall, as soon as reasonably determinable, and to the extent that the end date of any event of Force Majeure is undetermined at the time written notice thereof is provided to Purchaser, provide an additional written notice to Purchaser of the date that the Force Majeure has ended or is anticipated to end. The term “Force Majeure” shall mean extreme weather events, inability to procure materials or equipment or reasonable substitutes therefor, fire or other casualty, enemy or hostile government actions, riots, insurrection or other civil commotions, or war or other reason of a like nature not at the fault of the party delayed in performing any act as required under the terms of this Agreement. For the avoidance of doubt, a financial inability to perform is not Force Majeure. As used herein “Completion Notice” shall mean written notice from Seller to Purchaser that the Work is complete, accompanied by written confirmation from the City of Greensboro that the initial development requirements of the Operation and Maintenance Agreement dated February 17, 2021 and that no further earthmoving or landscaping is required as a condition to issuance of a permanent certificate of occupancy for the Property and copies of all final invoices and paid receipts therefor. The parties agree that (i) the Escrow Funds represent the maximum amount of money to which Seller will be entitled following completion of the Work, and (ii) that the actual costs for Seller to complete the Work may exceed the Escrow Funds. Seller shall be solely liable and responsible for any and all costs and expenses to complete the Work that are in excess of the Escrow Funds. In no event shall Purchaser be liable to Seller on account of, and Seller shall not be entitled to seek reimbursement from Purchaser for, any costs or expenses to complete the Work. Notwithstanding the foregoing, in the event that Purchaser requests and receives the Escrow Funds, Seller shall be released from the obligation to complete the Work set forth herein.
If, following delivery of a purported Completion Notice from Seller, Purchaser does not agree that the Work has been completed as required hereunder, Purchaser shall provide written notice to Seller (with a copy to Escrow Agent) with respect thereto on or before such date that is five (5) Business Days after receipt of the Completion Notice, whereupon Purchaser and Seller shall engage in good faith efforts to resolve such dispute.
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Any claim by Purchaser or Seller for disbursement of the Escrow Funds pursuant to Sections 3(a) or 3(b) hereof shall be simultaneously transmitted to the Escrow Agent and the other party in accordance with the provisions of Section 6 hereof.
If to Purchaser:
ProKidney
3929 Westpoint Blvd, Suite G Winston Salem, NC 27103 Attn: Timothy Lutz 336.748.6240
Email: tim.lutz@prokidney.com
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 555 12th Street NW
Washington, DC 20004
Attn: Matthew T. Simpson, Esq. 202.434.7436
Email: mtsimpson@mintz.com
With a copy to:
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center
Boston, MA 02111
Attn: Adrianne K. Zahner, Esq. 617.348.4707
Email: azahner@mintz.com
If to Seller: c/o Samet Corporation
309 Gallimore Dairy Road, Suite 102
Greensboro, NC 27409
Attention: Josh Drye, Development Manager Email: jdrye@sametcorp.com
c/o Collett
1111 Metropolitan Avenue #700 Charlotte, North Carolina 28204 Attention: Michael E. Robbe Email: mrobbe@colletre.com
With copy to: Brian T. Pearce Maynard Nexsen PC
800 Green Valley Road, Suite 500 Greensboro, North Carolina 27408 Email: BPearce@maynardnexsen.com
To Escrow Agent: Old Republic National Title Insurance Company
360 Memorial Drive, Suite 100 Chrystal Lake, IL 60014
Attn: Karen Shanahan
Email: KShananhan@OldrepublicTitle.com
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competent jurisdiction or any successor to the jurisdiction thereof and pay the Escrow Funds and deliver any such transactional documents to such court.
[Remainder of Page Left Intentionally Blank; Signatures Follow on Next Page]
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IN WITNESS WHEREOF, with intent to be legally bound hereby, the parties hereto have executed this Escrow Agreement as of the dates below written.
Seller:
73 BCI 2 LLC
a North Carolina limited liability company
By: Name: Title:
Buyer:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: Name: Title:
Escrow Agent:
Old Republic National Title Insurance Company
By: Name:
Title:
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FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
This FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
“Amendment”) is made effective as of June 30, 2023 (the “Fourth Amendment Effective Date”), by and between between ProKidney Corp., a Cayman Islands exempted company (“Purchaser”) and 73 BCI 2 LLC, a North Carolina limited liability company (“Seller”). (Seller and Purchaser are hereinafter jointly referred to as the “Parties.”)
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement effective as of March 29, 2023 (the “March 29 Agreement”), as amended by that certain Amendment to Purchase and Sale Agreement dated May 26, 2023, that certain Second Amendment to Purchase and Sale Agreement dated June 9, 2023, and that certain Third Amendment to Purchase and Sale Agreement dated as of June 15, 2023 (together, the “Original Agreement”) for the purchase and sale of certain real property located at and commonly known 7901 Indlea Point in the City of Greensboro, Guilford County, North Carolina, and also being identified as Guilford County Parcel ID Number 168016, as more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to amend the Agreement as more particularly set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
Amendment Deposit”). The Fourth Amendment Deposit shall, together with the Additional Deposit and the Initial Deposit, constitute the “Deposit” as that term is used in the Agreement.
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contemporaneous discussions, representations, promises, inducements and understandings with respect to the subject matter hereof.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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[SIGNATURE PAGE TO FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT]
PURCHASER:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: COO
SELLER:
73 BCI 2 LLC
a North Carolina limited liability company
By: /s/ Arthur Samet
Name: Arthur Samet
Title: Manager
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Exhibit 10.2
ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Assignment") is made and entered into as of the 17th day of July, 2023 and between PROKIDNEY CORP., a Cayman Islands exempted company ("Assignor"), and PROKIDNEY ACQUISITION COMPANY, LLC, a Delaware limited liability company ("Assignee").
RECITALS:
WHEREAS, 73 BCI 2 LLC, a North Carolina limited liability company and Assignor, as "Purchaser", entered into that certain Purchase and Sale Agreement effective as of March 29, 2023 as amended by that certain Amendment to Purchase and Sale Agreement dated May 26, 2023; that certain Second Amendment to Purchase and Sale Agreement dated June 9, 2023; that certain Third Amendment to Purchase and Sale Agreement dated as of June 15, 2023; and that certain Fourth Amendment to Purchase and Sale Agreement dated June 30, 2023 (collectively, the "Purchase Agreement") with respect to certain real prope1ty commonly known as 7901 Indlea Point in the City of Greensboro, Guilford County, North Carolina, and also being identified as Guilford County Parcel ID Number 168016, as more particularly described in the Agreement.
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to assume from Assignor, all of Assignor's rights, title and interest in the Purchase Agreement.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, Assignor and Assignee do hereby agree as follows:
(ii) all duties and obligations of Assignor arising out of or pe1taining to the Purchase Agreement.
507203744v.1
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507203744v. l
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the day and year first above written.
ASSIGNOR:
PROKIDNEY CORP.,
a Cayman Islands exempted corporation
By: /s/ Deepak Jain
Name: Deepak Jain
Title: Chief Operating Officer
ASSIGNEE:
PROKIDNEY ACQUISITION COMPANY,
a Delaware limited liability company
By: /s/ Deepak Jain
Name: Deepak Jain
Title: Chief Operating Officer
[Signature Page -Assignment and Assumption of Purchase and Sale Agreement]
507203744v. l
Exhibit 31.1
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Timothy A. Bertram, certify that:
Date: August 10, 2023 |
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By: |
/s/ Timothy A. Bertram |
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Timothy A. Bertram |
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Chief Executive Officer |
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(Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, James Coulston, certify that:
Date: August 10, 2023 |
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By: |
/s/ James Coulston |
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James Coulston |
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Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of ProKidney Corp. (the “Company”) on Form 10-Q for the period ending June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
Date: August 10, 2023 |
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By: |
/s/ Timothy A. Bertram |
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Timothy A. Bertram |
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Chief Executive Officer |
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(Principal Executive Officer) |
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of ProKidney Corp. (the “Company”) on Form 10-Q for the period ending June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
Date: August 10, 2023 |
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By: |
/s/ James Coulston |
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James Coulston |
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Chief Financial Officer |
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(Principal Financial and Accounting Officer) |