NOTE 7 - COMMITMENTS AND CONTINGENCIES | 9 Months Ended |
Sep. 30, 2013 |
Notes to Financial Statements | ' |
NOTE 7 - COMMITMENTS AND CONTINGENCIES | ' |
Executive Employment Agreements |
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On May 16, 2012, the Company entered into a three year executive employee agreement with its former president and a current board member retroactive to January 1, 2012. The agreement provides for an annual salary of $200,000 in 2012, $225,000 in 2013 and $250,000 in 2014, payable in a combination of cash and shares of common stock. An option to purchase 5,500,000 shares of common stock, at an exercise price of $.20 per share, was granted and will vest one third each year on the first, second and third anniversary of the date of grant and will have a term of ten years. In addition, stock options to purchase 3,000,000 shares of common stock previously awarded were accelerated to vest and become exercisable on the date of execution of the employment agreement. On November 27, 2012, the executive resigned from his position as president, but remained a member of the board. On June 28, 2013, the Company entered into a separation and general release agreement with this executive, pursuant to which the employment agreement was terminated effective as of December 31, 2012; non-competition and non-solicitation obligations under the employment agreement remain. All unvested options were immediately vested in full and were expensed during the period. The Company also entered into a consulting agreement on June 28, 2013, retroactively effective to January 1, 2013, this former executive will provide consulting services in exchange for (i) a one-time grant of 8,144,719 shares of common stock, and (ii) monthly payments of $2,500 from June 2013 through June 2014. The value of the shares issued were $570,130 and are included in stock-based compensation (refer to Note 9). |
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On May 31, 2012, the Company entered into a three year executive employee agreement with its former executive chairman and a current board member retroactive to January 1, 2012. The agreement provides for an annual salary of $200,000 in 2012, $225,000 in 2013 and $250,000 in 2014, payable in a combination of cash and shares of common stock. An option to purchase 5,500,000 shares of common stock, at an exercise price of $.20 per share, was granted and will vest one third each year on the first, second and third anniversary of the date of grant and will have a term of ten years. In addition, stock options to purchase 3,000,000 shares of common stock previously awarded were accelerated to vest and become exercisable on the date of execution of the employment agreement. On November 27, 2012, the executive resigned from his position as executive chairman, but remained a member of the board. On November 11, 2013, the Company entered into a separation and general release agreement with this executive, pursuant to which the employment agreement was terminated effective as of December 31, 2012; non-competition and non-solicitation obligations under the employment agreement remain. All unvested options were immediately vested in full and will be expensed during the fourth quarter of 2013. The Company also entered into a consulting agreement on November 11, 2013, retroactively effective to January 1, 2013, this former executive will provide consulting services in exchange for (i) a one-time grant of 8,144,719 shares of common stock, and (ii) monthly payments of $2,500 from January 2013 through March 2014. |
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On February 5, 2013, the Company entered into an employment agreement with its chief executive officer. The employment agreement has an initial term of three years and will be automatically renewed for an additional one-year term unless terminated by either party upon written notice provided not less than four months before the end of the initial term. Under the employment agreement, the executive is entitled to an annual salary of $350,000, which may be increased, but not decreased, at the board’s discretion. He is also eligible to receive an annual bonus of up to 100% of base salary, provided that he is employed with the Company on December 31 of the year to which the bonus relates. The amount of the annual bonus, if any, will be determined based upon the achievement of certain performance criteria. In addition, the Company issued to the executive 12,216,195 nonqualified stock options to purchase the equivalent of three percent of the Company’s total outstanding common stock: (determined on a fully-diluted basis as of February 4, 2013), with the following terms (A) an exercise price equal the fair market value of a share of common stock on the date of grant; (B) immediate vesting; and (C) a term of 10 years. |
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On September 3, 2013, the Company entered into an employment agreement with its chief financial officer. Under the employment agreement, the executive is entitled to an annual salary of $240,000. He is also eligible to receive an annual bonus of up to 60% of base salary based on the achievement of mutually agreed upon objectives. Additionally the agreement provides for medical, dental, 401(k), group life and long-term disability benefits. and a monthly stipend of $700 to cover auto expenses.The Company also granted the executive nonqualified stock options to purchase 8,100,000 shares of common stock as follows: 2,700,000 options at an exercise price of $0.10 vested immediately, 2,700,000 options at an exercise price of $0.15 will vest upon the one year anniversary of employment and 2,700,000 options at an exercise price of $0.20 will vest upon the two year anniversary of employment. The options have a term of ten years. |
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Concurrently with the appointment of the new chief financial officer, the former chief financial officer, who also served as secretary and treasurer of the Company, resigned. He will remain with the Company through the end of 2013 as vice president of operations to assist with the transition, in accordance with a Transition Agreement and Release dated September 3, 2013. The Company granted an award of nonqualified stock options to purchase 5,000,000 shares of common stock at an exercise price of $0.10, which vested immediately upon the execution of a release on such date. The options have a term of three years. In addition, options held under the following grants shall remain outstanding and exercisable: (i) incentive stock option granted December 9, 2010 with respect to 1,000,000 shares of the Company’s common stock granted pursuant to the HepaLife Technologies, Inc. 2001 Incentive Stock Option Plan; (ii) nonqualified stock option agreement dated May 12, 2012 with respect to 1,000,000 shares of the Company’s common stock granted pursuant to the Alliqua, Inc. 2011 Long-Term Incentive Plan (the “2011 Plan”); and (iii) nonqualified stock option granted November 27, 2012 with respect to 500,000 shares of the Company’s common stock granted pursuant to the 2011 Plan. The Company has also agreed to pay him a monthly stipend of $600 per month during 2014. |
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As of September 30, 2013, $110,000 of accrued compensation was included in accrued expense. Of this amount, $100,000 is attributable to the above referenced executive employment agreements with the Company’s former chief executive officer and former president and $10,000 is attributable to salaries of employees. |
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Consulting Agreements |
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The Company currently has various consulting agreements for management consulting, marketing, public relations, investor relations and research and development. Some agreements are based on fixed fee arrangements and others on specified hourly rates. |
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The total fees included in operating expenses were $354,936 and $1,712,929 for the three and nine months ended September 30, 2013, respectively, as compared to $75,865 and $196,455 for the same periods in 2012, respectively. |
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Cooperative and License Agreements |
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USDA, ARS CRADA. In November 2002, the Company entered into a Cooperative Research and Development Agreement (“CRADA”) with the U.S. Department of Agriculture (“USDA”), Agricultural Research Service (“ARS”) pertaining to the continued development and use of patented liver cell lines in artificial liver devices and in-vitro toxicological testing platforms. This agreement was amended several times, with a final agreement termination date of November 2008. |
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USDA, ARS License. On November 20, 2007, the Company exercised its license right under the CRADA by entering into an exclusive license agreement with the USDA, ARS for existing and future patents related to the PICM-19 hepatocyte cell lines. Under this license agreement, the Company is responsible for annual license maintenance fees commencing in 2010 for the term of the license, which is until the expiration of the last to expire licensed patents unless terminated earlier. The license agreement also requires certain milestone payments, if and when milestones are reached, as well as royalties on net sales of resulting licensed products, if any. For the three and nine months ended September 30, 2013, the Company incurred $178 and $3,385, respectively, in license maintenance fees which were charged to general and administrative expenses as compared to $0 and $10,000 for the same periods in 2012, respectively. |
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On July 15, 2011, the Company, through its Alliqua Biomedical subsidiary, entered into a license agreement with Noble Fiber Technologies, LLC, whereby Alliqua Biomedical has the exclusive right and license to manufacture and distribute “Silverseal Hydrogel Wound Dressings” and “Silverseal Hydrocolloid Wound Dressings”. The license is granted for ten years with an option to be extended for consecutive renewal periods of two years. An upfront license fee of $100,000 was expensed in 2011 as a general and administrative expense. Royalties are to be paid equal to 9.75% of net sales of licensed products. The agreement calls for minimum royalties to be paid each calendar year as follows: 2013 - $200,000, 2014 - $400,000; 2015 - $500,000; and 2016 - $600,000. Total royalties charged to general and administrative expenses for the three and nine months ended September 30, 2013 were $50,000 and $150,000, respectively, as compared to $12,500 and $37,500 for the same periods in 2012. The $150,000 royalty due for the nine months ended September 30, 2013, is included in accrued expenses. |
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Sorbion distributor agreement |
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On September 23, 2013, Alliqua Biomedical, Inc., entered into a distributor agreement (the “Sorbion Agreement”) with Sorbion GmbH & Co KG pursuant to which the Company became the exclusive distributor of sorbion sachet S, sorbionsana and new products with hydrokinetic fibers as primary dressings in the United States of America, Canada and Latin America, subject to certain exceptions. |
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The initial term of the agreement ends on December 31, 2018 and will be extended for additional year terms until December 31, 2023, so long as the Company and Sorbion agree in September as to the minimum annual purchase amount for the calendar year that ends four years from the calendar year of such September. |
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In order to maintain its exclusivity, the Company must purchase the following minimum amounts, in Euros, of the Products for the indicated calendar year: |
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Calendar Year | | Minimum Annual Purchase Amount |
2014 | | 500,000 Euros |
2015 | | 1,000,000 Euros |
2016 | | 2,500,000 Euros |
2017 | | 4,000,000 Euros |
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Since the Company must purchase the minimum amounts in Euros, the equivalent U.S. dollar expenditure could be subject to significant fluctuations in foreign currency exchange rates. |
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If the Company fails to purchase products in amounts that meet or exceed the minimum annual purchase amount for a calendar year, it may cure such minimum purchase failure by paying Sorbion in cash an amount equal to the minimum annual purchase amount for such calendar year less the amount the Company paid to Sorbion for the products purchased for such calendar year. If the Company does not cure a minimum purchase failure with a makeup payment for a calendar year, Sorbion may terminate the Company’s exclusivity with respect to the products and grant the Company non-exclusive rights with respect to the products. If the Company does not cure a minimum purchase failure for two subsequent calendar years, Sorbion may terminate the agreement. The Company will not be required to meet the minimal annual purchase amount if Sorbion fails to supply the Company with the products inaccordance with the agreement. Sorbion may also terminate the Company’s exclusivity with respect to the products if the Company does not cure a material breach of the agreement within 30 days. |
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The Company has the right to use the trademarks related to the products. The Company will sell the products under their respective trademarked names and at prices determined by the Company. Sorbion may determine in its sole discretion the prices of the products sold to the Company, which are subject to change beginning January 1, 2015. The Company will be eligible for certain discounts with respect to the purchase and shipping of the products if its orders of the products are above certain amounts. |
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Carolon distribution rights agreement |
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In September 2013, the Company entered into an agreement with Carolon Company ("Carolon"), pursuant to which, among other things the Company purchased from Carolon distribution rights for Sorbion Sachet products and access to customer information, sales and training materials as well as other information pertaining to the existing independent sales and marketing channels for the products. In consideration, the Company agreed to pay Carolon a minimum of $450,000 (i) $50,000 paid in September 2013 (ii) 12 equal payments beginning November 2013 totaling $400,000 and (iii) if the Company sells a minimum of $600,000 of Sorbion Sachet products in the calendar year 2014, the Company is obligated to pay an additional $50,000 due January 2015. |
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This transaction was recorded as the purchase of distribution rights and was recorded as an intangible asset subject to amortization over the remaining useful life of sixty-three months. The Company has recorded a liability of $400,000 on its balance sheet as of September 30, 2013 in connection with the Carolon Agreement. |
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Lease of Facility |
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On July 24, 2013 the Company extended its lease for it operating facilities in Langhorne, PA for an additional period of 10 years commencing on February 1, 2016 and continuing through and including January 31, 2016. Under this extension, the annual base rent is $207,405, compared to the present annual base rent of $204,930. Under the extended lease, the landlord agreed to make certain improvements to the facility.Such improvements are expected to be performed starting in the fourth quarter of 2013. |
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Litigation, Claims and Assessments |
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From time to time, in the normal course of business, the Company may be involved in litigation. The Company is not aware of any litigation as of September 30, 2013. |