5. DEBT | 12 Months Ended |
Dec. 31, 2014 |
Debt Disclosure [Abstract] | |
5. DEBT | The table below summarizes the Company’s debt at December 31, 2014 and December 31, 2013: |
|
|
Debt Description | | December 31, | | | December 31, | | | | | |
| | 2014 | | | 2013 | | Maturity | | Rate | |
| | | | | | | | | | |
Bank Loan | | $ | 5,000,000 | | | $ | 5,000,000 | | 16-Jun | | | 3.85 | % |
Capital lease obligations - Noteholder lease | | | 113,093 | | | | 132,321 | | 19-Aug | | | 8 | % |
Capital lease obligations - Office furniture | | | 29,922 | | | | 36,778 | | 18-Sep | | | 9.75 | % |
Convertible notes - related parties, net of discount of $4,338,901 and $1,921,394, respectively | | | 25,985,330 | | | | 23,512,836 | | 16-Nov | | | 8 | % |
Convertible notes, net of discount of $50,129 and zero, respectively | | | 680,640 | | | | 730,770 | | 16-Nov | | | 8 | % |
Total debt | | | 31,808,985 | | | | 29,412,705 | | | | | | |
| | | | | | | | | | | | | |
Less: current portion of long term debt | | | | | | | | | | | | | |
Capital lease obligations | | | 28,378 | | | | 26,113 | | | | | | |
Bank Loan | | | - | | | | 5,000,000 | | | | | | |
Total current portion of long term debt | | | 28,378 | | | | 5,026,113 | | | | | | |
| | | | | | | | | | | | | |
Debt - long term | | $ | 31,780,607 | | | $ | 24,386,592 | | | | | | |
| | | | | | | | | | | | | |
|
Convertible Notes Overview |
|
Since November 14, 2007 and through December 10, 2014, the Company financed its working capital deficiency primarily through the issuance of its notes (the “2007 NPA Notes”) under the Convertible Secured Subordinated Note Purchase Agreement, dated November 14, 2007, as amended (as so amended, the “2007 NPA”). On December 11, 2014 the Company entered into an unsecured Convertible Subordinated Note Purchase Agreement (the “2014 NPA”) with Union Bancaire Privée, UBP SA ("UBP"). |
|
During 2014, the Company raised gross proceeds of $4,390,000 from the private placement to UBP of 2007 NPA Notes under its existing 2007 NPA program and $500,000 from the private placement to UBP under 2014 NPA (the “2014 NPA Note”). |
|
The table below summarizes convertible notes issued as of December 31, 2014 by type: |
|
Convertible Notes Type: | | Balance | | | | | | | | | | |
| | | | | | | | | | | | |
2007 NPA notes, net of discount | | $ | 26,165,970 | | | | | | | | | | |
2014 NPA notes | | | 500,000 | | | | | | | | | | |
Total convertible notes | | $ | 26,665,970 | | | | | | | | | | |
| | | | | | | | | | | | | |
|
Convertible notes issued under 2014 NPA |
|
The aggregate principal amount of convertible unsecured subordinated promissory notes (the “2014 NPA Notes”) that may be issued under the 2014 NPA is $40.0 million. The 2014 NPA Notes are convertible into shares of the Company’s common stock, par value $0.001 per share, and are subordinated to the $5.0 million outstanding under the Company’s Loan and Security Agreement (the “LSA”) with Comerica Bank and to any convertible secured subordinated promissory notes outstanding under the Company’s existing 2007 NPA program. |
|
The 2014 NPA Notes have the following terms: |
|
● | a maturity date of the earlier of (i) November 14, 2016, (ii) a Change of Control (as defined in the 2014 NPA), or (iii) when, upon or after the occurrence of an Event of Default (as defined in the 2014 NPA), other than for a bankruptcy related, such amounts are declared due and payable by at least two-thirds of the aggregate outstanding principal amount of the 2014 NPA Notes; | | | | | | | | | | | | |
| | | | | | | | | | | | | |
● | an interest rate of 8% per year, with accrued interest payable in cash in quarterly installments commencing on the third month anniversary of the date of issuance of the 2014 NPA Note with the final installment payable on the maturity date of the note; | | | | | | | | | | | | |
| | | | | | | | | | | | | |
● | a conversion price per share that is fixed at $1.43; | | | | | | | | | | | | |
| | | | | | | | | | | | | |
● | optional conversion upon noteholder request; provided that, if at the time of any such request, the Company does not have a sufficient number of shares of common stock authorized to allow for such conversion, the noteholder may only convert that portion of their Notes outstanding for which the Company has a sufficient number of authorized shares of common stock. To the extent multiple noteholders under the 2014 NPA, the 2007 NPA, or both, request conversion of its notes on the same date, any limitations on conversion shall be applied on a pro rata basis. In such case, the noteholder may request that the Company call a special meeting of its stockholders specifically for the purpose of increasing the number of shares of common stock authorized to cover conversions of the remaining portion of the notes outstanding as well as the maximum issuances contemplated pursuant to the Company’s 2004 Equity Compensation Plan, within 90 calendar days after the Company’s receipt of such request; and | | | | | | | | | | | | |
| | | | | | | | | | | | | |
● | may not be prepaid without the consent of holders of at least two-thirds of the aggregate outstanding principal amount of 2014 NPA Notes. | | | | | | | | | | | | |
|
Convertible notes issued under 2007 NPA |
|
During 2014 and 2013, several modifications were made to the 2007 NPA. Two modifications had material impact on the Company’s financial statements: |
|
2013 modification of 2007 NPA |
|
On June 26, 2013, the Company entered into the Sixth Amendment and Agreement to Join as a Party to the 2007 NPA, Fourth Amendment to 2007 NPA Notes and Fifth Amendment and Agreement to Join as a Party to the Registration Rights Agreement (the “Sixth Amendment to 2007 NPA”), with the holders of a majority of the aggregate outstanding principal amount of the 2007 NPA Notes , and an additional purchaser of the 2007 NPA Notes, Grasford Investments Ltd. (“Grasford”) (collectively, the “2007 NPA Noteholders”). The Sixth Amendment to 2007 NPA applied to $23,075,000 of 2007 NPA Notes outstanding as of the date of the modification and to all future 2007 NPA Notes. As amended by the Sixth Amendment to 2007 NPA, the convertible instrument had the following terms: |
|
● | a maturity date of November 14, 2016; | | | | | | | | | | | | |
|
● | an interest rate of 8% per year payable in quarterly installments; | | | | | | | | | | | | |
|
● | optional conversion upon the noteholder request; | | | | | | | | | | | | |
|
● | the borrowing facility commitment was increased by $10 million to $33.3 million; | | | | | | | | | | | | |
|
● | a conversion price that is the greater of (i) 80% of the lowest closing price of the Company’s shares of common stock in the 12-month period immediately preceding the date of conversion or (ii) $0.50; and | | | | | | | | | | | | |
|
● | if at the time of any requested conversion the Company does not have a sufficient number of shares of its common stock authorized to allow for such conversion, the 2007 NPA noteholders may request that the Company call a special meeting of the stockholders specifically for the purpose of increasing the number of shares of common stock authorized to cover the remaining portion of the 2007 NPA Notes outstanding; and | | | | | | | | | | | | |
|
● | the Company is not permitted to prepay the 2007 NPA Notes without approval of the holders of at least a majority of the principal amount of the 2007 NPA Notes then outstanding. | | | | | | | | | | | | |
| | | | | | | | | | | |
|
The Sixth Amendment to 2007 NPA was accounted for as debt extinguishment. The total value of the convertible instrument immediately after the modification was determined to be $44,868,055, of which $21,793,055 was allocated to the intrinsic value of the embedded conversion feature of the instrument immediately after the modification (beneficial conversion feature) in accordance with ASC 470 “Debt” and recorded as part of additional paid-in capital. |
|
The difference between the fair value of the new convertible instrument and the carrying value of the previously outstanding 2007 NPA Notes, in the amount of $21,793,055, was recognized as loss on extinguishment of debt in the Statements of Operations. |
|
2014 modification of 2007 NPA |
|
On May 12, 2014, the Company entered into the Seventh Amendment to 2007 NPA and the Fifth Amendment to 2007 NPA Notes (the “Seventh Amendment to 2007 NPA”), with the holders of a majority of the aggregate outstanding principal amount of the 2007 NPA. The Seventh Amendment to 2007 NPA applied to all of the 2007 NPA Notes outstanding as of May 12, 2014, or $28,205,000, and will apply to any future 2007 NPA Notes issued by the Company. As amended, the 2007 NPA Notes have the following terms: |
|
● | a maturity date of the earlier of (i) November 14, 2016, (ii) a Change of Control (as defined in the amended 2007 NPA), or (iii) when, upon or after the occurrence of an Event of Default (as defined in the amended 2007 NPA) such amounts are declared due and payable by a 2007 NPA Noteholder or made automatically due and payable in accordance with the terms of the 2007 NPA; | | | | | | | | | | | | |
● | an interest rate of 8% per year; | | | | | | | | | | | | |
● | a total borrowing commitment of $33.3 million; | | | | | | | | | | | | |
● | a conversion price that is fixed at $1.43; and | | | | | | | | | | | | |
● | optional conversion upon 2007 NPA Noteholder request, provided that, if at the time of any such request, the Company does not have a sufficient number of shares of common stock authorized to allow for such conversion, as well as the issuance of the maximum amount of common stock permitted under the Company’s 2004 Equity Compensation Plan, the 2007 NPA Noteholder may request that the Company call a special meeting of its stockholders specifically for the purpose of increasing the number of shares of common stock authorized to cover the remaining portion of the Notes outstanding as well as the maximum issuances permitted under the 2004 Equity Compensation Plan. | | | | | | | | | | | | |
|
The 2014 modification of the aggregate principal balance of 2007 NPA Notes issued prior to the 2013 modification dated June 28, 2013, or $23,075,000, was accounted for as debt extinguishment in accordance with provisions of ASC 470 “Debt”. The fair value of the new debt was determined to be $21,404,018. The difference between the carrying value of the debt balance prior to the 2014 modification and the fair value of the new debt was recorded as debt discount in the amount of $1,670,982 and will be charged to interest expense over the remaining life of the debt. $22,344,231 of the modified $23,075,000 balance was related party debt and $730,769 was non-related party debt. For the related party portion of the debt, the Company recorded a capital contribution in the amount of $1,620,852 with a charge to Additional Paid-in Capital; the non-related party debt modification resulted in a $50,129 gain on extinguishment of debt. |
|
The 2014 modification of the aggregate principal balance of 2007 NPA Notes issued after 2013 modification, but prior to the 2014 modification, or $5,130,000, with a net carrying amount of $922,202 immediately prior to the 2014 modification, resulted in a troubled debt restructuring treatment where no gain or loss was recognized due to the fact that the carrying amount of the debt balance was less than total future cash payments specified by the terms of the debt remaining unsettled after the modification. |
|
Fair Value of Convertible Notes under 2013 modification |
|
The modified note facility was recorded at fair value of $44,868,055. The Company used a binomial model to determine the fair value of the instrument. The binomial model method uses significant unobservable inputs and falls within the Level III measurement method under Fair Value Hierarchy under ASC 820 “Fair Value Measurements.” |
|
The significant unobservable inputs and information used to develop those inputs include the following: |
|
● | the volatility of stock price was determined to be 47% and was based on the Company’s historical volatility; | | | | | | | | | | | | |
|
● | the risk free rate of 1.41%; | | | | | | | | | | | | |
|
● | the credit spread over the risk free rate was determined to be approximately 20%, which was derived from a combination of the credit spread of CCC rated bonds with added premium for lack of marketability of the convertible instrument; | | | | | | | | | | | | |
|
● | the nodes of the binomial model were extended for 3 years, which approximates the time period until maturity of the convertible instrument; and | | | | | | | | | | | | |
|
● | the conversion ratio varied from approximately 1.39 to .56 shares per dollar, depending on the node of the conversion tree. The conversion ratio varied due to projected change in value of the stock driven by historical volatility of 47%. | | | | | | | | | | | | |
|
Fair Value of Convertible Notes under 2014 modification |
|
The modified convertible debt instrument with a face value of $23,075,000, accounted for as debt extinguishment, was recorded with a fair value of $21,404,018. The Company used a binomial model to determine the fair value of the instrument. The binomial model method uses significant unobservable inputs and falls within the Level III measurement method in accordance with the Fair Value Hierarchy under ASC 820 “Fair Value Measurements.” |
|
The significant unobservable inputs and information used to develop those inputs include the following: |
|
● | volatility of stock price was determined to be 47% and was based on the Company’s historical volatility; | | | | | | | | | | | | |
|
● | risk free rate of 1.41%; | | | | | | | | | | | | |
|
● | credit spread over the risk free rate was determined to be approximately 20%, which was derived from a combination of the credit spread of CCC rated bonds with added premium for lack of marketability of the convertible instrument; | | | | | | | | | | | | |
|
● | nodes of the binomial model were extended for 2.5 years, which approximates the time period until maturity of the convertible instrument; | | | | | | | | | | | | |
|
● | conversion price was fixed at $1.43 per share. | | | | | | | | | | | | |
|
Related Party Convertible Notes under 2007 and 2014 NPAs |
|
Grasford, the Company’s largest stockholder, owns $13,826,282 in face value amount of 2007 NPA Notes as of December 31, 2014. Grasford is controlled by Avy Lugassy, one of the Company’s principal shareholder . |
|
UBP owns $15,767,180 in combined face value amount of 2007 and 2014 NPA Notes as of December 31, 2014 and is considered a significant beneficial owner. |
|
Crystal Management owns $730,769 in face value amount of 2007 NPA Notes as of December 31, 2014. Crystal Management is controlled by Doron Roethler, the second largest shareholder of the Company. |
|
Interest expense for 2014 for convertible notes was $4,196,918, including amortization of discount of $1,899,060. |
Interest expense for 2013 for convertible notes was $2,084,303, including amortization of discount of $208,680. |
|
IDB Credit Facility and Comerica LSA |
|
The Company had an outstanding promissory note with Israel Discount Bank (“IDB”) dated December 6, 2010 that had a maturity date of May 31, 2014 (the “IDB Credit Facility”). Borrowings under the IDB Credit Facility were guaranteed by Atlas Capital SA (“Atlas”) and subsequent to the merger between Atlas and Mirelis InvesTrust SA (“Mirelis”), by Mirelis. The IDB Credit Facility was further secured by an extended irrevocable standby letter of credit (“SBLC”) issued by UBS Private Bank with an expiration date of November 30, 2015. The Company received confirmation that it will not be required to re-pay any fees associated with previous or future guarantees of the Company's bank loan through issuance of the SBLC by UBS. As such, the Company reversed previously accrued fees associated with the issuance of the SBLC in the IDB transaction and recorded a $169,861 gain on reversal of previously recorded liabilities. |
|
On June 9, 2014, the Company refinanced the IDB Credit Facility with a new financial institution by entering into the LSA with Comerica. The Company borrowed the entire amount available under the LSA ($5,000,000) and used those proceeds to repay the IDB Credit Facility in full. |
|
The LSA with Comerica has the following terms: |
|
| ● | | a maturity date of June 9, 2016; | | | | | | | | | | |
| ● | | a variable interest rate at prime plus 0.6% (3.85% on the date of execution) payable quarterly; | | | | | | | | | | |
| ● | | secured by substantially all of the assets of the Company, including the Company’s intellectual property; | | | | | | | | | | |
| ● | | secured by an extended irrevocable SBLC issued by UBS AG (Geneva, Switzerland) (“UBS AG”) with an initial term expiring on May 31, 2015, which term is automatically renewable for one year periods, unless notice of non-renewal is given by UBS AG at least 45 days prior to the then current expiration date; and | | | | | | | | | | |
| ● | | acceleration of payment of all amounts due thereunder upon the occurrence and continuation of certain events of default, including but not limited to, failure by the Company to perform its obligations, observe the covenants made by it under the LSA, failure to renew the UBS AG SBLC, and insolvency of the Company. | | | | | | | | | | |
|
This transaction was accounted for under the guidance of ASC 470 “Debt” as debt extinguishment. The $12,500 in bank fees that the Company paid to Comerica in connection with entering into the LSA was recorded as loss on extinguishment in the current period. The approximately $30,000 in legal fees were deferred as deferred financing costs and are charged to interest expense over the life of the LSA. |
|
Capital Leases |
|
On September 4, 2009, the Company entered into a sale transaction whereby it sold its computer equipment, furniture, fixtures and certain personal property located at its former principal executive offices in Durham, North Carolina (collectively, the “Equipment”) on an “as-is, where-is” basis to the holders of the Company’s Notes, on a ratable basis in proportion to their respective holdings of Notes, for $200,000 (“Purchase Price”). The Purchase Price was paid through a $200,000 reduction, on a ratable basis, in the outstanding aggregate principal amount of the Notes. The Purchase Price represented the fair market value of the Equipment based on an independent appraisal. |
|
The payments on the lease are made monthly. The balance of the lease as of December 31, 2014 was $113,087. |
|
In September 2013 the Company purchased furniture for its new office by execution of a five year non-cancellable lease, which is accounted for as a capital lease. The unpaid balance on the lease as of December 31, 2014 is $30,228. |
|
The table below details future payments under capital leases: |
|
Year: | | | | | | | | | | | | |
2015 | | $ | 39,259 | | | | | | | | | | |
2016 | | | 39,259 | | | | | | | | | | |
2017 | | | 39,259 | | | | | | | | | | |
2018 | | | 34,189 | | | | | | | | | | |
2019 | | | 19,412 | | | | | | | | | | |
| | | 171,378 | | | | | | | | | | |
Less amount representing interest | | | (28,363 | ) | | | | | | | | | |
Capital lease obligations | | $ | 143,015 | | | | | | | | | | |
| | | | | | | | | | | | | |
|