STOCKHOLDERS' EQUITY | 3. STOCKHOLDERS' EQUITY Preferred Stock In December 2014, the Company amended and restated its certificate of incorporation to reduce the total number of authorized shares of preferred stock. The amended and restated certificate of incorporation authorizes the issuance of up to 5,000,000 shares of “blank check” preferred stock, par value $0.001 per share, with such designation rights and preferences as may be determined from time to time by the Board of Directors. Common Stock Shelf Registration On July 29, 2015, the Company’s registration statement on Form S-3, as filed with the SEC on July 23, 2015 (the “2015 Shelf”), was declared effective using a “shelf” registration process. On July 26, 2018, in anticipation of the expiration of the 2015 Shelf, the Company filed a new registration statement on Form S-3 with the SEC (as amended, the “2018 Shelf”). The 2018 Shelf, which was declared effective on August 7, 2018, enables the Company to offer and sell, in one or more offerings, any combination of common stock, preferred stock, senior or subordinated debt securities, warrants and units, up to a total dollar amount of $150 million. April 5, 2017 Equity Offering On April 5, 2017, the Company closed on the sale of an aggregate of 2,222,222 shares of common stock pursuant to the Company's 2015 Shelf. The Company received gross proceeds of approximately $10,000,000, from the sale of such shares based on a public offering price of $4.50 per share. On April 11, 2017, the Company closed the sale of an additional 333,333 shares of the Company’s common stock, pursuant to the underwriters’ full exercise of an over-allotment option. The Company received gross proceeds of approximately $1,500,000 from the exercise of the option. As a result, the Company received total gross proceeds of $11,500,000 from the offering, and, after deducting the underwriting discounts and commissions and related expenses, the Company received total net proceeds of approximately $10,300,000. As a result of this offering, the exercise price of the warrants issued in connection with the Company’s March 11, 2014 public offering was reduced to $4.50 in accordance with the pricing provisions of those warrants. There was no change in the number of warrants which were repriced. As a result of the repricing of the warrants which occurred in connection with the April 2017 equity offering, the Company recorded a dividend of $335,731 during the year ended December 31, 2017. November 4, 2015 Controlled Equity Offering On November 4, 2015, the Company entered into a Controlled Equity Offering SM On July 26, 2018, the Company entered into that certain Amendment No. 1 to the Sales Agreement (the “Sales Agreement Amendment”) to extend the term of the Sales Agreement until the expiration of the 2018 Shelf. The other provisions of the Sales Agreement remain unchanged. References herein to “Sales Agreement” shall refer to the Sales Agreement, as amended by the Sales Agreement Amendment. Under the Sales Agreement, Cantor may sell Shares by any method permitted by law and deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act, including sales made directly on Nasdaq, on any existing trading market for the common stock or to or through a market maker. In addition, under the Sales Agreement, Cantor may sell the Shares by any other method permitted by law, including in privately negotiated transactions. The Company may instruct Cantor not to sell Shares if the sales cannot be effected at or above the price designated by the Company from time to time. The Company is not obligated to make any sales of Shares under the Sales Agreement, and if it elects to make any sales, the Company can set a minimum sales price for the Shares. The offering of Shares pursuant to the Sales Agreement will terminate upon the earlier of (a) the expiration of the 2018 Shelf (b) the termination of the Sales Agreement by Cantor or the Company, as permitted therein. From November 4, 2015 through December 31, 2015, the Company sold 28,880 shares, generating net proceeds of approximately $225,000 under the Sales Agreement. There were no sales during the year ended December 31, 2016. During the year ended December 31, 2017, the Company sold 550,000 shares at an average price of $6.31 per share, generating net proceeds of approximately $3,367,000. During the nine months ended September 30, 2018, the Company sold 1,498,320 shares at an average cost of $9.58 per share, generating net proceeds of approximately $13,917,000. From October 1, 2018 through October 31, 2018, the Company sold 17,030 shares at an average cost of $12.69 per share, generating net proceeds of approximately $209,000. In the aggregate, the Company has sold 2,094,230 shares at an average selling price of $8.72 per share, generating net proceeds of approximately $17,718,000 under the terms of the Sales Agreement. The Company pays a commission rate of 3.0% of the aggregate gross proceeds from each sale of Shares and has agreed to provide Cantor with customary indemnification and contribution rights. In 2015, the Company reimbursed Cantor $50,000 for certain specified expenses in connection with the execution of the Sales Agreement. The Company intends to use the net proceeds raised through “at the market” sales to fund clinical studies in the United States and abroad, expand production capacity, support its sales and marketing efforts, further develop its products, and for general working capital purposes. Stock-Based Compensation Total share-based employee, director, and consultant compensation for the three and nine months ended September 30, 2018 and 2017 amounted to approximately $274,000 and $960,000, and $2,864,000 and $1,851,000, respectively. These amounts are included in selling, general and administrative expenses on the consolidated statement of operations. The summary of the stock option activity for the nine months ended September 30, 2018 is as follows: Weighted Weighted Average Average Remaining Exercise Price Contractual Shares per Share Life (Years) Outstanding, December 31, 2017 3,578,538 $ 4.64 6.3 Granted 1,428,175 $ 7.98 9.5 Forfeited (55,324 ) $ 5.57 — Expired (800 ) $ 2.88 — Exercised (719,610 ) $ 3.78 — Outstanding, September 30, 2018 4,230,979 $ 5.90 7.3 The fair value of each stock option was estimated using the Black Scholes pricing model which takes into account as of the grant date the exercise price (ranging from $6.85 to $14.80 per share) and expected life of the stock option (10 years), the current price of the underlying stock and its expected volatility (61.6 to 66.4 percent), expected dividends (-0- percent) on the stock and the risk free interest rate (ranging from 2.09 to 3.00 percent) for the term of the stock option. The intrinsic value is calculated at the difference between the market value as of September 30, 2018 of $12.90 and the exercise price of the shares. Options Outstanding Number Weighted Weighted Range of Outstanding at Average Average Aggregate Exercise September 30, Exercise Remaining Intrinsic Price 2018 Price Life (Years) Value $2.00 - $14.80 4,230,979 $ 5.90 7.3 $ 29,640,061 Options Exercisable Number Weighted Exercisable at Average Aggregate September 30, Exercise Intrinsic 2018 Price Value 2,501,456 $ 4.82 $ 20,253,186 The summary of the status of the Company’s non-vested options for the nine months ended September 30, 2018 is as follows: Weighted Average Grant Date Shares Fair Value Non-vested, December 31, 2017 1,070,959 $ 0.70 Granted 1,428,175 $ 4.83 Forfeited (35,326 ) $ 2.43 Vested (734,285 ) $ 3.41 Non-vested, September 30, 2018 1,729,523 $ 4.52 As of September 30, 2018, the Company had approximately $926,000 of total unrecognized compensation cost related to stock options which will be amortized over twenty-one months. Awards of Stock Options: On March 15, 2018, the Board of Directors granted options to purchase 531,900 shares of common stock to the Company’s management. On April 23, 2018, the Board of Directors granted options to purchase 668,550 shares of common stock to the Company’s employees. These grants, which total 1,200,450 shares of common stock, will vest upon the achievement of certain specific, predetermined milestones related to the Company’s 2018 operations. The grant date fair value of these unvested options amounted to approximately $5,635,634. Based upon an assessment by management, which was reviewed by the Board of Directors, as of September 30, 2018, the Company has met 37.5% of these milestones, and accordingly we have recorded approximately $-0- and $2,113,000 of stock option expense related to these options in the three and nine months ended September 30, 2018, respectively. The Company will continue to assess the likelihood of meeting these milestones throughout 2018 and will record additional stock option expense as appropriate. Change in Control-Based Awards of Restricted Stock Units: The Board of Directors has granted restricted stock units to members of the Board of Directors, to the Company’s executive officers, and to employees of the Company. These restricted stock units will only vest upon a Change in Control of the Company, as defined in the Company’s 2014 Long-Term Incentive Plan. The following table is a summary of these restricted stock units: Restricted Stock Units Board of Executive Other Directors Management Employees Total Intrinsic Value December 31, 2017 264,000 675,300 729,200 1,668,500 $ 10,845,250 Granted 13,200 49,200 329,350 391,750 Forfeited — — (42,750 ) (42,750 ) September 30, 2018 277,200 724,500 1,015,800 2,017,500 $ 26,025,750 Due to the uncertainty over whether these restricted stock units will vest, which only happens upon a Change in Control, no charge for these restricted stock units has been recorded in the consolidated statement of operations for the three and nine months ended September 30, 2018. Performance-Based Awards of Restricted Stock Units: Pursuant to a review of the compensation of the senior management of the Company, on June 7, 2016, the Board of Directors granted 80,000 restricted stock units to certain senior managers of the Company. These awards were valued at $375,200 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the date of the grant, and one third on the second anniversary of the date of the grant. These awards are charged to expense over the period which they vest. No charge was required to be charged for the three months ended September 30, 2018, as these restricted stock units became fully vested during the quarter ended June 30, 2018. The Company recorded a charge of approximately $14,000 during the three months ending September 30, 2017 on these restricted stock units. During the nine months ended September 30, 2018 and 2017, respectively, the Company recorded a charge of $240,000 and $77,000, respectively, related to these restricted stock unit awards. Pursuant to a review of the compensation of the senior management of the Company and managements’ performance in 2016, on February 24, 2017, the Board of Directors granted 125,000 restricted stock units to certain senior managers of the Company in order to settle bonuses accrued as of December 31, 2016. These awards were valued at approximately $700,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the grant, and one third on the second anniversary of the date of the grant. For the three and nine months ended September 30, 2018 and 2017, the Company recorded a charge of approximately $58,000 for each period. For the nine months ended September 30, 2018 and 2017, the Company recorded a charge of approximately $271,000 and $175,000, respectively, related to these restricted stock unit awards. Pursuant to a review of the compensation of the senior management of the Company and managements’ performance in 2017, on February 28, 2018, the Board of Directors granted 146,200 restricted stock units to certain senior managers of the Company in order to settle bonuses accrued as of December 31, 2017. These awards were valued at approximately $1,148,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vest one third on the date of the grant one third on the first anniversary of the grant, and one third on the second anniversary of the date of the grant. For the three and nine months ended September 30, 2018, the Company recorded a charge of approximately $96,000 and $223,000 related to these restricted stock unit awards. The following table outlines the restricted stock unit activity for the nine months ended September 30, 2018: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2018 110,003 $ 5.38 Granted 146,200 $ 7.85 Vested (117,065 ) $ 6.33 Non-vested, September 30, 2018 139,138 $ 7.18 Warrants: As of September 30, 2018, the Company has the following warrants to purchase common stock outstanding: Number of Shares Warrant Exercise Warrant To be Purchased Price per Share Expiration Date 48,960 $ 7.500 March 11, 2019 351,398 $ 4.500 March 11, 2019 30,000 $ 9.900 January 14, 2020 430,358 |