Stockholders' Equity | 12. Stockholders’ equity: Common Stock In November 2013, the Company filed a shelf registration statement which registered up to $75 million of the Company’s securities for potential future issuance, and such registration statement was declared effective on December 18, 2013. Concurrent with the filing of the registration statement, the Company established an “at-the-market” On February 7, 2014, the Company entered into a definitive Securities Purchase Agreement with certain institutional investors relating to a registered direct offering by the Company of 7,500,000 shares of the Company’s Common Stock, par value $.001 per share. The shares were sold at a price of $8.00 per share, yielding net offering proceeds of $58.2 million. The offering price per share was determined based on an approximately 3.1% discount to the closing price of the Common Stock on February 7, 2014. On July 2, 2015, the Company filed a shelf registration statement which registered up to $150 million of the Company’s securities for potential future issuance, and such registration statement was declared effective on July 13, 2015. Concurrent with the filing of the registration statement, the Company established an “at-the-market” On December 16, 2015, the Company and Dr. Andrew Finn entered into a retirement agreement (the “Retirement Agreement”) setting forth their mutual understandings regarding Dr. Finn’s retirement from the Company. Pursuant to the Retirement Agreement, all unvested RSUs previously issued under the Company’s equity incentive plans and held by Dr. Finn as of the retirement date were cancelled and, in lieu thereof, Dr. Finn was awarded a one-time Following its review of the Company’s corporate performance for 2015, the Compensation Committee of the Board of Directors approved in early 2016, equity awards for 2015 in the form of RSUs to its named executive officers (including Dr. Finn) and other senior executives in amounts at or below the 25th% percentile of the Company’s peer group. Dr. Finn, who retired on December 31, 2015, received an immediate award of 150,000 shares of Common Stock in fulfillment of the Company’s contractual obligation to him under the Retirement Agreement. Such shares were issued in March 2016. During the years ended December 31, 2016, 2015 and 2014, Company employees, directors and affiliates exercised approximately 0.1 million, 0.2 million and 1.3 million stock options, respectively, with net proceeds to the Company of approximately $0.3 million, 0.8 million and $4.6 million, respectively. Preferred Stock The Company had authorized five million “blank check” shares of $.001 par value convertible preferred stock. On December 3, 2012, the Company closed a registered direct offering, issuance and sale of Series A Preferred. The final amount of Series Preferred issued in the offering was an aggregate of 2,709,300 shares of Series A Preferred. In the event of the Company’s liquidation, dissolution or winding up, holders of the Series A Preferred will receive a payment equal to $.001 per share of Series A Preferred before any proceeds are distributed to the holders of common stock. After the payment of this preferential amount, and subject to the rights of holders of any class or series of capital stock hereafter created specifically ranking by its terms senior to the Series A Preferred, the holders of Series A Preferred will participate ratably in the distribution of any remaining assets with the common stock and any other class or series of our capital stock hereafter created that participates with the common stock in such distributions. At December 31, 2016, 2,093,155 shares of Series A Preferred were outstanding and 2,290,700 shares of “blank check” preferred stock remain authorized but undesignated. During the year ended December 31, 2015, 45,845 shares of Series A Preferred were converted to equal shares of the Company’s common stock. During the year ended December 31, 2014, 570,300 shares of Series A Preferred were converted to equal shares of the Company’s common stock. There were no conversions of Series A Preferred during the year ended December 31, 2016. Restricted Stock Units During the year ended December 31, 2016, 1,703,616 RSUs, were granted to members of the Company’s executive officers, board of directors and employees, with a fair market value of approximately $5.7 million. The fair value of restricted units is determined using quoted market prices of the Common Stock and the number of shares expected to vest. These RSUs were issued under the Company’s 2011 Equity Incentive Plan, as amended, and vest in equal installments over three years for executive officers and employees, and vest one-half one-half Restricted stock activity during the year ended December 31, 2016 was as follows: Number of Restricted Shares Weighted Average Fair Market Value Per RSU Outstanding at January 1, 2016 4,298,154 $ 10.23 Granted: Executive officers 805,616 3.80 Directors 185,000 2.43 Employees 713,000 3.64 Vested (592,066 ) 2.68 Forfeitures (92,000 ) 4.14 Conversions (733,407 ) 10.44 Outstanding at December 31, 2016 4,584,797 $ 7.29 Performance Long Term Incentive Plan In December 2012, the Company’s Board of Directors (the “Board”) approved the BDSI Performance Long Term Incentive Plan (“LTIP”). The LTIP is designed as an incentive for the Company’s senior management to generate revenue for the Company. The LTIP consists of RSUs (which are referred to in this context as Performance RSUs) which are rights to acquire shares of Common Stock. All Performance RSUs granted under the LTIP will be granted under the Company’s 2011 Equity Incentive Plan (as the same may be amended, supplemented or superseded from time to time) as “Performance Compensation Awards” under such plan. The participants in the LTIP are either named executive officers or senior officers of the Company. The term of the LTIP began with the Company’s fiscal year ended December 31, 2012 and lasts through the fiscal year ended December 31, 2019. The total number of Performance RSUs covered by the LTIP is 1,078,000, of which 978,000 were awarded in 2012 (with 100,000 Performance RSUs being reserved for future hires and of that reserve, 35,000 Performance RSUs were awarded in 2015). No additional Performance RSUs were awarded in 2016. The Performance RSUs under the LTIP did not vest upon granting, but instead are subject to potential vesting each year over the 8 year term of the LTIP depending on the achievement of pre-defined 10-K. Stock options The Company has a 2011 Equity Incentive Plan. During the 2015 Annual Meeting of Stockholders (the “Annual Meeting”), stockholders approved an amendment to the Company’s 2011 Equity Incentive Plan to increase the number of shares of common stock authorized for issuance under the plan by 2,250,000 shares from 8,800,000 to 11,050,000. An additional 1,826,442 shares of Common Stock underlying options previously granted under the Company’s Amended and Restated 2001 Incentive Plan remain outstanding and exercisable as of December 31, 2016. The Company’s Amended and Restated 2001 Incentive Plan expired in July 2011 and no new securities may be issued thereunder. Options may be awarded during the ten-year Stock option activity for the years ended December 31, 2016, 2015 and 2014 is as follows: Number of Shares Weighted Average Exercise Price Per Share Aggregate Intrinsic Value Outstanding at January 1, 2014 4,192,927 $ 3.82 $ 9,146 Granted in 2014: Others 420,480 13.86 Exercised (1,332,563 ) 3.48 Forfeitures (84,744 ) 5.26 Outstanding at December 31, 2014 3,196,100 $ 4.32 $ 22,881 Granted in 2015: Others 684,629 8.14 Exercised (235,480 ) 3.52 Forfeitures (247,720 ) 12.65 Outstanding at December 31, 2015 3,397,529 $ 5.42 $ 3,124 Granted in 2016: Officers and Directors 95,000 $ 2.34 Others 558,373 3.12 Exercised (147,425 ) 2.01 Forfeitures (434,486 ) 13.17 Outstanding at December 31, 2016 3,468,991 $ 4.14 $ 0 Options outstanding at December 31, 2016 are as follows: Range of Exercise Prices Number Outstanding Weighted Average Remaining Contractual Life (Years) Weighted Average Exercise Price Aggregate Intrinsic Value $1.00 – 5.00 2,126,448 4.84 $ 2.98 $5.01 – 10.00 1,202,258 3.53 $ 6.52 $10.01 – 15.00 67,250 8.11 $ 13.19 $15.01 – 20.00 73,035 7.76 $ 16.30 3,468,991 $ 0 Options exercisable at December 31, 2016 are as follows: Range of Exercise Prices Number Outstanding Weighted Average Remaining Contractual Life (Years) Weighted Average Exercise Price Aggregate Intrinsic Value $1.00 – 5.00 1,605,457 3.30 $ 3.05 $5.01 – 10.00 960,297 2.26 $ 6.45 $10.01 - 15.00 25,117 8.08 $ 13.27 $15.01 - 48,689 7.76 $ 16.30 2,639,560 $ 0 The weighted average grant date fair value of options granted during the years ended December 31, 2016, 2015 and 2014 was $1.75, $4.99 and $7.18, respectively. There were no options granted during the years ended December 31, 2016, 2015 or 2014 whose exercise price was lower than the estimated market price of the stock at the grant date. Nonvested stock options as of December 31, 2016, and changes during the year then ended, are as follows: Nonvested Shares Shares Weighted Average Grant Date Fair Value Intrinsic Value Nonvested at January 1, 2016 894,345 Granted 653,373 Vested (283,801 ) Forfeited (434,486 ) Nonvested at December 31, 2016 829,431 $ 4.88 $ 0 As of December 31, 2016, there was approximately $13.9 million of unrecognized compensation cost related to unvested share-based compensation awards granted. These costs will be expensed over the next four years. Stock-based compensation During the year ended December 31, 2016, a total of 653,373 options to purchase Common Stock, with an aggregate fair market value of approximately $1.1 million, were granted to Company employees, directors and contractors. The options granted have a term of 10 years from the grant date and vest ratably between a one and three year period. The fair value of each option is amortized as compensation expense evenly through the vesting period. The Company’s stock-based compensation expense is allocated between research and development and selling, general and administrative as follows as of December 31: Stock-based compensation expense 2016 2015 2014 Research and Development $ 2.5 $ 4.2 $ — Selling, General and Administrative $ 12.4 $ 12.8 $ 6.7 Warrants: The Company has granted warrants to purchase shares of Common Stock. Warrants may be granted to affiliates in connection with certain agreements. The Company issued warrants to purchase 357,356 shares of Common Stock at a price of $4.20 in connection with a loan financing in July 2013 (see note 9). The warrants had a fair value of approximately $1 million at the date of the grant. These warrants were exercised during 2014 and are no longer outstanding. During the year ended December 31, 2016, the Company granted warrants to purchase 84,986 shares of Common Stock at an exercise price of $3.53 per share to Midcap and its affiliates in connection with the Company’s extension agreement with MidCap. The warrants were valued using the Black-Scholes Model, which fair value is approximately $0.05 million. As of December 31, 2016, 84,986 warrants remain outstanding. Reclassification of warrants to equity During the year ended December 31, 2014, warrants by various investors were exercised to purchase 2,217,520 shares of Common Stock at prices ranging from $3.12 to $5.00 per share. Until the time of exercise, 1,999,153 of the aforementioned warrants were treated as a derivative liability. Upon exercise of the warrants, these amounts were reclassified to equity based on the fair value on the date of exercise. Earnings Per Share During the year ended December 31, 2016, 2015 and 2014, outstanding stock options, RSUs, warrants and convertible preferred stock of 10,228,929, 9,788,838 and 8,184,460, respectively, were not included in the computation of diluted earnings per share, because to do so would have had an antidilutive effect. Recovery of Stockholder Short Swing Profit During the years ended December 31, 2015 and 2014, an executive officer of the Company paid a total of approximately $0.006 million to the Company and three executive officers of the Company paid a total of approximately $0.08 million to the Company, respectively, representing the disgorgement of short swing profits under Section 16(b) under the Exchange Act. The amount was recorded as additional paid-in |