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TheStreet Open House

Vanda, FDA and $500K Bonus Paid to a Mystery Regulatory Consultant

Stocks in this article: VNDA

WASHINGTON, D.C. ( TheStreet) -- Vanda Pharmaceuticals (VNDA - Get Report) has awarded a $500,000 bonus to a mysterious "regulatory consultant" following the U.S. Food and Drug Administration acceptance of the approval submission for tasimelteon, the company's sleep disorder drug candidate.

The "regulatory consultant" -- who Vanda does not identify -- will also pick up a $2 million bonus from the company if FDA approves tasimelteon. Low probability of that happening, but still, Vanda's hired gun has two million reasons to give tasimelteon's approval his best shot.

It's not unusual for small companies to seek outside help to better deal with FDA on drug approval issues. What is weird is paying the outside help a $500,000 bonus just because FDA accepted your drug filing -- a routine and expected occurrence.

Here's how Vanda describes its engagement with the consultant in its first-quarter SEC filing:

The Company has engaged a regulatory consultant to assist the Company's efforts to prepare, file and obtain FDA approval of an NDA for tasimelteon. As part of the engagement and subject to certain conditions, the Company would be obligated to make milestone payments upon the achievement of certain milestones, including $0.5 million in the event that the tasimelteon NDA is accepted for filing by the FDA and $2.0 million in the event that the tasimelteon NDA is approved by the FDA. In addition to consulting fees and milestone payments, the Company is obligated to reimburse the consultant for ordinary and necessary business expenses incurred in connection with the engagement. The Company may terminate the engagement at any time upon prior notice; however, subject to certain conditions, the Company will remain obligated to make some or all of the milestone payments if the milestones are achieved following such termination.

And here's Vanda confirming payment of the $500,000 bonus in its second-quarter SEC filing posted Wednesday:

As a result of achieving this regulatory milestone FDA acceptance of the tasimelton NDA , we will incur certain costs in the third quarter of 2013 including a $3.0 million cash milestone obligation under our license agreement with BMS, a $0.5 million cash milestone obligation under a regulatory consulting agreement and additional non-cash stock-based compensation expense of $0.3 million for performance-based stock options and $0.2 million for performance-based RSUs awards. Emphasis mine.

Vanda's payment of the bonus is a material event for the company!

Vanda did not respond to questions, including why the company chooses to spend all this money on a regulatory consultant when a full-time regulatory person -- or even a regulatory team -- could be hired at a much lower cost.

The strategy has worked for Vanda in the past. After FDA rejected the schizophrenia drug Fanapt, Vanda "engaged" a regulatory consultant -- also never identified -- to assist the company in convincing the agency to change its mind. The FDA ultimately approved Fanapt and for his efforts, the regulatory consultant was paid a "success fee" totaling $6 million, according to Vanda's SEC filings.

Same consultant? Vanda isn't saying.

Whoever he (or she) is, convincing FDA to approve tasimelteon will be a difficult task considering the many problems with the drug's clinical development. 1) The design of Vanda's primary phase III study changed numerous times, including a complete replacement of the primary endpoint just one month before study results were announced. 2) The replacement primary endpoint installed to assess tasimelteon's benefit was created by Vanda and has never been used before in sleep-drug clinical trials, nor was it endorsed by the FDA. 3) Vanda was forced to cut in half the patient enrollment into the tasimelteon clinical trials because totally blind patients with non-24 could not be identified. Even then, Vanda was only able to enroll patients by stretching the clinical definition of non-24. 4) Tasimelteon was only able to demonstrate a benefit for non-24 patients by combining data from two phase III studies. Despite Vanda's claims to the contrary, the phase III studies may have actually failed on their own.

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