Stock Benefit Plans and Equity Transactions | 10. Stock Benefit Plans and Equity Transactions Stock Benefit Plans On October 4, 2016, the Company’s Board of Directors adopted the 2016 Employment Inducement Award Plan (the “Inducement Plan”). The Inducement Plan allows for the grant of options, restricted stock, restricted stock unit awards and performance unit awards to new employees of the Company by granting an award to such new employee as an inducement for such new employee to begin employment with the Company. The Inducement Plan currently has 3,150,000 shares of common stock reserved for issuance. Equity awards under the Inducement Plan may only be granted to an employee who has not previously been an employee or member of the board of directors of the Company. The terms of the Inducement Plan are substantially similar to the terms of the Company’s 2016 Equity Incentive Plan with two principal exceptions: (i) incentive stock options may not be granted under the Inducement Plan; and (ii) the annual compensation paid by the Company to specified executives will be deductible only to the extent that it does not exceed $1.0 million. Total stock-based compensation for the three months ended March 31, 2018 and 2017 is as follows (in thousands): Three Months Ended March 31, 2018 2017 Cost of revenues $ 22 $ 3 Research and development (116 ) 311 Sales and marketing 111 73 General and administrative 602 421 Total $ 619 $ 808 The negative stock-based compensation expense recorded within the Company’s research and development expense is a result of the revaluation of the Company’s Elite Medical Holdings and Pac 3 Surgical Collaboration liability of a decrease of $0.2 million. The agreement and subsequent termination are described further in Note 11. Shares Reserved For Future Issuance As of March 31, 2018, the Company had reserved shares of its common stock for future issuance as follows (in thousands): March 31, 2018 Stock options outstanding 3,180 Unvested restricted stock award 2,034 Employee stock purchase plan 411 Series A convertible preferred stock 2,022 Series B convertible preferred stock 14,349 Convertible Notes 988 Warrants outstanding 23,182 Merger shares issuable 290 Merger contingently issuable 1,330 Authorized for future grant under the Plans 439 48,225 Series A Convertible Preferred Stock On March 22, 2017, the Company entered into the Securities Purchase Agreement with certain institutional and accredited investors, including certain directors, executive officers and employees of the Company (collectively, the “Purchasers”), providing for the sale by the Company of 1,809,628 shares of the Company’s common stock at a purchase price of $2.00 per share (the “Common Shares”), 15,245 shares of newly designated Series A Convertible Preferred Stock at a purchase price of $1,000 per share (which shares are convertible into approximately 7,622,372 shares of common stock, and were initially subject to limitations on conversion prior to the approval by the Company’s stockholders (“2017 Stockholder Approval”) as required in accordance with the NASDAQ listing rules), and warrants to purchase up to 9,432,000 shares of the Company’s common stock at an exercise price of $2.00 per share (the “2017 Common Stock Warrants”), in a private placement (the “2017 Private Placement”). The 2017 Common Stock Warrants became exercisable following 2017 Stockholder Approval, are subject to certain ownership limitations, and expire five years after June 15, 2017, the date 2017 Stockholder Approval was received. The Series A Convertible Preferred Stock are entitled to dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of common stock or other securities. Except as otherwise required by law, the holders of Series A Convertible Preferred Stock have no right to vote on matters submitted to a vote of the Company’s stockholders. Without the prior written consent of 75% of the outstanding shares of Series A Convertible Preferred Stock, the Company may not: (a) alter or change adversely the powers, preferences or rights given to the Series A Convertible Preferred Stock or alter or amend the Certificate of Designation, (b) amend the Company’s certificate of incorporation or other charter documents in any manner that adversely affects any rights of the holders of Series A Convertible Preferred Stock, (c) increase the number of authorized shares of Series A Convertible Preferred Stock, or (d) enter into any agreement with respect to any of the foregoing. In the event of the dissolution and winding up of the Company, the proceeds available for distribution to the Company’s stockholders shall be distributed pari passu among the holders of the shares of common stock and Series A Convertible Preferred Stock, pro rata based upon the number of shares held by each such holder, as if the outstanding shares of Series A Convertible Preferred Stock were convertible, and were converted, into shares of common stock. During the three months ended March 31, 2018, 1,274 shares of Series A Preferred Stock were converted into 636,997 shares of common stock. As of March 31, 2018, there were 4,043 shares of Series A Convertible Preferred Stock outstanding, which are convertible into 2,021,673 shares of Common Stock. In conjunction with the 2017 Private Placement, the Company also issued warrants to purchase common stock to the exclusive placement agents for the issuance (“the 2017 Banker Warrants”). The warrants were for the purchase of up to an aggregate of 471,600 shares of the Company’s common stock with substantially the same terms as the 2017 Common Stock Warrants, except that they have an exercise price equal $2.50 per share. During the three months ended March 31, 2018, 304,182 of the 2017 Banker Warrants were exercised for total cash proceeds upon exercise of $0.8 million during the quarter. A total of 167,418 of the 2017 Banker Warrants remained outstanding as of March 31, 2018. The 2017 Private Placement, including the issuance of the 2017 Banker Warrants, closed on March 29, 2017, with aggregate gross proceeds to the Company of approximately $18.9 million. 2017 Common Stock Warrants The 2017 Common Stock Warrants, are exercisable for cash. The exercise price of the 2017 Common Stock Warrants is subject to adjustment in the case of stock dividends or other distributions on shares of common stock or any other equity or equity equivalent securities payable in shares of common stock, stock splits, stock combinations, reclassifications or similar events affecting the Company’s common stock, and also, subject to limitations, upon any distribution of assets, including cash, stock or other property to the Company’s stockholders. Prior to exercise, holders of the 2017 Common Stock Warrants do not have any of the rights of holders of the common stock purchasable upon exercise, including voting rights; however, the holders of the 2017 Common Stock Warrants have certain rights to participate in distributions or dividends paid on the Company’s common stock to the extent set forth in the 2017 Common Stock Warrants. The 2017 Common Stock Warrants may not be exercised by the holder to the extent that the holder, together with its affiliates, would beneficially own, after such exercise more than 4.99% of the shares of the Company’s common stock then outstanding (subject to the right of the holder to increase or decrease such beneficial ownership limitation upon notice to us, provided that such limitation cannot exceed 9.99%) and provided that any increase in the beneficial ownership limitation shall not be effective until 61 days after such notice is delivered. If the Company effects a fundamental transaction, then upon any subsequent exercise of any 2017 Common Stock Warrants, the holder thereof shall have the right to receive, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of the successor’s or acquiring corporation’s common stock or of the Company’s common stock, if the Company is the surviving corporation, and any additional consideration receivable as a result of such fundamental transaction by a holder of the number of shares of common stock into which the 2017 Common Stock Warrants were exercisable immediately prior to such fundamental transaction. In addition, in the event of a fundamental transaction (other than a fundamental transaction not approved by the Company’s Board of Directors), the Company or any successor entity shall, at the holder’s option, purchase the holder’s 2017 Common Stock Warrants for an amount of cash equal to the value of the 2017 Common Stock Warrants as determined in accordance with the Black Scholes option pricing model. A fundamental transaction as described in the 2017 Common Stock Warrants generally includes any merger with or into another entity, sale of all or substantially all of the Company’s assets, tender offer or exchange offer, reclassification of the Company’s common stock or the consummation of a transaction whereby another entity acquires more than 50% of the Company’s outstanding voting stock. Based on the terms of the 2017 Common Stock Warrants, the Company may be required to settle such warrants with cash upon a fundamental transaction, as defined. Through October 19, 2017, the holders of 2017 Common Stock Warrants did not control the Company’s Board of Directors, and therefore, since potential future cash settlement was deemed to be within the Company’s control, the 2017 Common Stock Warrants were classified in stockholders’ equity in accordance with the authoritative accounting guidance. Effective with the appointment of Ward W. Woods (a holder of 2017 Common Stock Warrants) to the Company’s board of directors on October 17, 2017, the holders of 2017 Common Stock Warrants now represent a majority of the Board of Directors. As a result of this change, the Company was required to re-classify the warrants as a liability in accordance with the authoritative accounting guidance. On December 29, 2017, two board members who are holders of 2017 Common Stock Warrants entered into recusal agreements, pursuant to which they agreed to abstain from voting on any fundamental transaction so long as their 2017 Common Stock Warrants are outstanding. Consequently, the 2017 Common Stock Warrants were re-classified into the equity section of the consolidated balance sheet as of December 29, 2017 and remain in equity as of March 31, 2018. In conjunction with the 2018 Private Placement described further below, a holder of 2.4 million 2017 Common Stock Warrant Holder exercised 1.7 million 2017 During the three months ended March 31, 2018, excluding the $3.4 million described above, the Company received proceeds of approximately in connection with the exercise of approximately of 2017 Common Stock Warrants. As of March 31, 2018, there were 6,007,090 2017 Common Stock Warrants outstanding. 2018 Private Placement and Series B Convertible Preferred Stock On March 8, 2018, the Company completed the 2018 Private Placement to certain institutional and accredited investors, including certain directors and executive officers of the Company, at a purchase price of $1,000 per share, 45,200 of newly designated Series B Convertible Preferred Stock, which shares of preferred stock will be converted into 12,617,857 shares (subject to adjustment as described below and in the Certificate of Designations) of the Company’s common stock upon approval by the Company’s stockholders (“2018 Stockholder Approval”), and warrants to purchase up to 12,196,851 shares of common stock at an exercise price of $3.50 per share (the “2018 Common Stock Warrants”). The 2018 Common Stock Warrants will become exercisable following 2018 Stockholder Approval, are subject to certain ownership limitations in certain cases, and expire five years after the date of such 2018 Stockholder Approval. The gross proceeds from the 2018 Private Placement were approximately $45.2 million. A total of 45,200 shares of Series B Convertible Preferred Stock are authorized for issuance under a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock of the Company (the “Certificate of Designation”) filed with the Secretary of State of the State of Delaware on March 8, 2018 in connection with the closing of the 2018 Private Placement. Each share of Series B Convertible Preferred Stock has a stated value of $1,000 and is convertible into approximately 317 shares of common stock. Until the date that 2018 2018 The Series B Convertible Preferred Stock will be entitled to dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of common stock or other securities. The initial conversion price of $3.15 is subject to appropriate adjustment in the event of a stock split, stock dividend, combination, reclassification or other recapitalization affecting the common stock. In addition, until the date that is one year from the effective date of the resale registration statement filed in connection with the 2018 Private Placement, the conversion price is also subject to full ratchet anti-dilution protection in the event the Company issues securities at an effective price less than the initial conversion price, subject to certain exceptions. If the Company’s stockholders do not approve the conversion of the Series B Convertible Preferred Stock, the shares of Series B Convertible Preferred Stock will not become convertible, and will remain outstanding in accordance with the terms of the Certificate of Designation. Except as otherwise required by law, the holders of Series B Convertible Preferred Stock will have no right to vote on matters submitted to a vote of the Company’s stockholders. Without the prior written consent of 75% of the outstanding shares of Series B Convertible Preferred Stock, however, the Company may not: (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend the Certificate of Designation, (b) amend the Company’s certificate of incorporation or other charter documents in any manner that adversely affects any rights of the holders of Series B Convertible Preferred Stock, (c) increase the number of authorized shares of Series B Convertible Preferred Stock, or (d) enter into any agreement with respect to any of the foregoing. In the event of the dissolution and winding up of the Company, the proceeds available for distribution to the Company’s stockholders shall be distributed pari passu 2018 Common Stock Warrants The 2018 Common Stock Warrants, are exercisable for cash or by cashless exercise. The exercise price of the 2018 Common Stock Warrants is subject to adjustment in the case of stock dividends or other distributions on shares of common stock or any other equity or equity equivalent securities payable in shares of common stock, stock splits, stock combinations, reclassifications or similar events affecting the Company’s common stock, and also, subject to limitations, upon any distribution of assets, including cash, stock or other property to the Company’s stockholders. Prior to the exercise, holders of the 2018 Common Stock Warrants do not have any of the rights of holders of the common stock purchasable upon exercise, including voting rights; however, the holders of the 2018 Common Stock Warrants have certain rights to participate in distributions or dividends paid on the Company’s common stock to the extent set forth in the 2018 Common Stock Warrants. Some of the 2018 Common Stock Warrants may not be exercised by the holder to the extent that the holder, together with its affiliates, would beneficially own, after such exercise more than 4.99% of the shares of the Company’s common stock then outstanding (subject to the right of the holder to increase or decrease such beneficial ownership limitation upon notice to us, provided that such limitation cannot exceed 9.99%) and provided that any increase in the beneficial ownership limitation shall not be effective until 61 days after such notice is delivered. If the Company effects a fundamental transaction, then upon any subsequent exercise of any 2018 Common Stock Warrants, the holder thereof shall have the right to receive, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of the successor’s or acquiring corporation’s common stock or of the Company’s common stock, if the Company is the surviving corporation, and any additional consideration receivable as a result of such fundamental transaction by a holder of the number of shares of common stock into which the 2018 Common Stock Warrants were exercisable immediately prior to such fundamental transaction. A fundamental transaction as described in the 2018 Common Stock Warrants generally includes any merger with or into another entity, sale of all or substantially all of the Company’s assets, tender offer or exchange offer, reclassification of the Company’s common stock or the consummation of a transaction whereby another entity acquires more than 50% of the Company’s outstanding voting stock. In addition to the 12,196,851 warrants issued in the 2018 Private Placement, the Company issued 1,275,000 warrants to an existing holder with identical terms to the 2018 Common Stock Warrants, including the exercise price of $3.50. All the 2018 Common Stock Warrants were deemed to qualify for equity classification under authoritative accounting guidance. A summary of all outstanding warrants is as follows: Number of Warrants Strike Price 2017 Common Stock Warrants 6,007,090 $ 2.00 2017 Banker Warrants 167,418 $ 2.50 2018 Common Stock Warrants 13,471,851 $ 3.50 Merger Warrants 2,200,000 $ 3.50 Executive 1,327,434 $ 5.00 Other 7,812 $ 19.20 Total 23,181,605 2017 Distributor Inducement Plan In December 2017, the Company adopted the 2017 Distributor Inducement Plan which authorizes the Company’s Chief Executive Officer to issue to distributors common stock of the Company and/or warrants to purchase the Company’s common stock. The warrants are issued with exercise price equal to the fair market value of the common stock on the date of issuance. Each warrant and common stock issuance is subject to a time-based or net sales-based vesting provision. As of March 31, 2018, 0.2 million warrants and 17,000 shares of common stock were issued under the 2017 Distributor Inducement Plan. Total expense for the plan was immaterial for the three months ended March 31, 2018. In December 2017, the Board of Directors also authorized grant of warrants to purchase 50,000 of the Company’s common stock, and 75,000 restricted stock units to a distributor. These warrants and restricted stock units are subject to time based and net sales based vesting conditions. |