Preferred Stock, Common Stock and Stockholders' Equity | 6. Preferred Stock, Common Stock and Stockholders’ Equity Preferred Stock Under the Company’s amended and restated certificate of incorporation, the Company is authorized to issue 5,000,000 shares of preferred stock with a $0.0001 par value. No shares of preferred stock were outstanding as of December 31, 2015 or 2014. Common Stock As of December 31, 2015, there were 7,201,774 shares of common stock outstanding. Each share of common stock is entitled to one vote. The holders of the common stock are also entitled to receive dividends whenever funds are legally available and when declared by the board of directors of the Company. To date, no dividends have been declared. On November 13, 2014, the Company entered into an At Market Sales Agreement (“Sales Agreement”) with MLV & Co. LLC (“MLV”), pursuant to which the Company may sell from time to time, at its option, up to an aggregate of $6.6 million worth of shares of common stock through MLV as sales agent. During September 2015, FBR & Co. (“FBR”), acquired MLV and assumed its rights and obligations under the Sales Agreement. The sales of shares of the Company’s common stock made through this equity program are made in “at-the-market” offerings as defined in Rule 415 of the Securities Act of 1933, as amended. During the year ended December 31, 2015, the Company sold 1,048,507 shares of common stock at a weighted average price per share of $4.78 pursuant to the Sales Agreement and received proceeds of approximately $4.9 million, net of commissions and fees. The Company incurred approximately $138,000 of legal, accounting and filing fees related to its Registration Statement on Form S-3 filed in November 2014. Such costs were capitalized and included in other current assets at December 31, 2014, and were reclassified to additional paid-in capital during the first quarter of 2015 as a further offset to the net proceeds. The Company intends to use the net proceeds to continue to fund its ongoing Phase 3 clinical trial and for general corporate purposes. Future sales will depend on a variety of factors including, but not limited to, market conditions, the trading price of the Company’s common stock and the Company’s capital needs. Although sales of the Company’s common stock have taken place pursuant to the Sales Agreement, there can be no assurance that FBR will be successful in consummating future sales based on prevailing market conditions or in the quantities or at the prices that the Company deems appropriate. Under current SEC regulations, at any time during which the aggregate market value of the Company’s common stock held by non-affiliates, or public float, is less than $75 million, the amount the Company can raise through primary public offerings of securities in any twelve-month period using shelf registration statements, including sales under the Sales Agreement, is limited to an aggregate of one-third of the Company’s public float. As of February 29, 2016, the Company’s public float was 4.1 million shares, the value of which was $14.6 million based upon the closing price of the Company’s common stock of $3.57 on February 22, 2016. The value of one-third of the Company’s public float calculated on the same basis was $4.8 million. As of February 29, 2016, the Company was unable to sell any further shares of common stock pursuant to the Sales Agreement due to current capacity restrictions. In addition, the Company will not be able to make future sales of common stock pursuant to the Sales Agreement unless certain conditions are met, which include the accuracy of representations and warranties made to FBR under the Sales Agreement. Furthermore, FBR is permitted to terminate the Sales Agreement in its sole discretion upon ten days’ notice, or at any time in certain circumstances, including the occurrence of an event that would be reasonably likely to have a material adverse effect on the Company’s assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations. The Company has no obligation to sell the remaining shares available for sale pursuant to the Sales Agreement. As a result of payroll withholdings from the Company’s employees of approximately $170,000, the Company also sold 41,176 shares of common stock through its Employee Stock Purchase Plan (“ESPP”) during the year ended December 31, 2015. Warrants The Company has issued warrants to purchase common stock to banks that have loaned funds to the Company, as well as to representatives of the underwriters of the Company’s initial public offering and certain of its affiliates. A summary of the Company’s warrant activity is as follows: Weighted Weighted Average Average Remaining Exercise Contractual Shares Price Term (Years) Outstanding at December 31, 2014 118,881 $ 16.73 5.35 Issued — — — Exercised — — — Expired/Forfeited — — — Outstanding at December 31, 2015 118,881 $ 16.73 4.35 Stock Options The Company adopted the 2007 Equity Incentive Plan (the “2007 Plan”) in May 2007 under which 450,000 shares of common stock were reserved for issuance to employees, nonemployee directors and consultants of the Company. As of December 31, 2015, no options were available for future grant under this plan. In August 2013, the Company adopted the 2013 Equity Incentive Award Plan (the “2013 Plan”) as a successor to the 2007 Plan. Under the 2013 Plan, the Company may grant stock options, stock appreciation rights, restricted stock, restricted stock units and other awards to individuals who are then employees, officers, non-employee directors or consultants of the Company. A total of 510,000 shares of common stock were initially reserved for issuance under the 2013 Plan. In addition, the number of shares of common stock available for issuance under the 2013 Plan will be annually increased on the first day of each fiscal year during the term of the 2013 Plan, beginning with the 2014 fiscal year, by an amount equal to the least of: (i) 300,000 shares; (ii) four percent of the outstanding shares of common stock as of the last day of the immediately preceding fiscal year; or (iii) such other amount as the Company’s board of directors may determine. As a result of such calculation, since the 2013 Plan originated, the Company has increased the number shares reserved for issuance under the 2013 Plan by 488,354 shares. As of December 31, 2015, 78,854 options remain available for future grant under the 2013 Plan. On January 1, 2016, the Company further increased the number of shares reserved for issuance under the 2013 Plan by 288,071 shares, making 366,925 options available for future grant under the 2013 Plan. Options granted under the 2007 Plan and 2013 Plan have ten year terms from the date of grant and generally vest over a one to four year period. The Company granted options to purchase 354,000 and 64,000 shares of common stock in 2015 and 2014, respectively. The exercise price of all options granted during the years ended December 31, 2015 and 2014 was equal to the market value per share of the Company’s common stock on the date of grant. A summary of the Company’s stock option activity under the 2007 Plan and 2013 Plan is as follows: Weighted Weighted Average Average Remaining Exercise Contractual Aggregate Shares Price Term (Years) Intrinsic Outstanding at December 31, 2014 683,500 $ 7.67 8.45 $ 649,000 Granted 354,000 $ 6.25 9.20 — Exercised — — — — Expired/Forfeited — — — — Outstanding at December 31, 2015 1,037,500 $ 7.19 8.04 $ 342,200 Vested and expected to vest at December 31, 2015 1,037,500 $ 7.19 8.04 $ 342,200 Exercisable at December 31, 2015 530,079 $ 6.80 7.50 $ 342,200 The intrinsic values above represent the aggregate value of the total pre-tax intrinsic value based upon a common stock price of $3.30 and $5.90 at December 31, 2015 and 2014, respectively, and the contractual exercise price. The 2007 Plan permits the early exercise of options, but the Company has the option to repurchase any unvested shares at the original purchase price (the exercise price paid by the purchaser) upon any voluntary or involuntary termination. The shares of common stock issued from the exercise of stock options are restricted and vest over time or on the achievement of certain milestones. Any unvested shares immediately vest in the event of termination for reasons other than cause, and vesting accelerates in the event of a merger, sale, or other change in control of the Company. Of the total 332,000 stock options exercised, 287,000 were vested as of December 31, 2015 and 2014. The remaining 45,000 exercised stock options vest upon the submission of the NDA for EVK-001. The total intrinsic value of the stock option exercised based upon a common stock of $6.73 on the date of exercise was $33,810 for the year ended December 31, 2014. There were no options exercised in 2015. The Company had the following nonvested options under the 2007 Plan and 2013 Plan: Shares Weighted Average Grant Date Fair Value Per Share Nonvested at December 31, 2014 424,419 $ 9.02 Granted 354,000 $ 4.03 Vested (270,998 ) $ 8.07 Expired/Forfeited — — Nonvested at December 31, 2015 507,421 $ 7.60 Stock-Based Compensation Stock-based compensation expense includes charges related to stock option grants and employee stock purchases under the Company’s ESPP. The Company measures stock-based compensation expense based on the grant-date fair value of any awards granted to its employees. Such expense is recognized over the period of time that employees provide service and earn rights to the awards. The estimated fair value of each option award granted was determined on the date of grant using the Black-Scholes option-pricing valuation model with the following weighted-average assumptions for options grants during the two years ended December 31, 2015: Year Ended December 31, 2015 2014 Risk free interest rate 1.50% - 1.87% 1.66% - 1.77% Expected option term 5.5 - 6.0 years 5.5 - 6.0 years Expected volatility of common stock 71.99% - 76.74% 71.06% - 73.21% Expected dividend yield 0.0% 0.0% The weighted average grant date fair value per share of employee stock options granted during the years ended December 31, 2015 and 2014, was $4.03 and $4.76, respectively. In February 2016, the Company effected a one-time option exchange, wherein employees were offered the opportunity to exchange certain outstanding stock options for the grant of a lesser number of replacement stock options. The participants received three new stock options for every four stock options tendered for exchange. As a result, 703,500 stock options were exchanged for 527,624 replacement stock options. The 175,876 stock options that were not reissued may be granted in the future. The replacement stock options have a three-year vesting schedule and an exercise price of $3.04 per share, which was the closing price of the Company’s common stock on the date of the option exchange. All other terms of the replacement stock options remain the same as the original stock options that were exchanged. As a result of this transaction, the Company will recognize an incremental stock-based compensation expense of approximately $4,700 at the time of the transaction and an additional approximately $141,000 of stock-based compensation expense over the three-year vesting term of the exchanged options. Employee Stock Purchase Plan On June 13, 2013, the Company’s board of directors adopted the ESPP, and the Company’s stockholders approved the ESPP on August 29, 2013. The ESPP became effective on the day prior to the effectiveness of the IPO. The ESPP permits participants to purchase the Company’s common stock at 85% of the fair market value through payroll deductions of up to 20% of their eligible compensation. A total of 30,000 shares of common stock were initially reserved for issuance under the ESPP. In addition, the number of shares of common stock available for issuance under the ESPP is annually increased on the first day of each fiscal year during the term of the ESPP by an amount equal to the lesser of: (i) 30,000 shares; (ii) one percent of the outstanding shares of common stock as of the last day of the immediately preceding fiscal year; or (iii) such other amount as the Company’s board of directors may determine. As a result, the Company increased the number shares reserved for issuance under the ESPP by 30,000 shares on each of January 1, 2015 and 2014. During 2015 and 2014, 41,176 and 7,294 shares of common stock, respectively, were issued under the ESPP. As of December 31, 2015, 41,530 shares remain available for future issuance under the ESPP. On January 1, 2016, the Company further increased the number of shares reserved for future issuance under the ESPP by 30,000 shares, making 71,530 shares available for future issuance under the ESPP after that increase. The estimated fair value of the shares to be acquired under the ESPP was determined on the initiation date of each six month purchase period using the Black-Scholes option-pricing valuation model with the following weighted-average assumptions for ESPP shares to be purchased during the year ended December 31, 2015 and 2014: Year Ended December 31, 2015 2014 Risk free interest rate 0.08% - 0.26% 0.05% - 0.08% Expected term 6 months 6 months Expected volatility of common stock 62.91% - 69.64% 69.32% - 73.21% Expected dividend yield 0.0% 0.0% The Company recognized non-cash stock-based compensation expense to employees and directors in its research and development and its general and administrative functions as follows: Year Ended December 31, 2015 2014 Research and development $ 579,078 $ 410,150 General and administrative 925,278 691,937 Total stock-based compensation expense $ 1,504,356 $ 1,102,087 As of December 31, 2015, there was approximately $2.3 million of unrecognized compensation costs related to outstanding employee and board of director options, which is expected to be recognized over a weighted average period of 1.13 years. Common Stock Reserved for Future Issuance Common stock reserved for future issuance consists of the following at December 31, 2015 and 2014: December 31, 2015 2014 Stock options issued and outstanding 1,037,500 683,500 Authorized for future option grants 78,854 188,370 Warrants to purchase common stock 118,881 118,881 Authorized for employee stock purchase plan 41,530 52,706 Total common stock reserved for future issuance 1,276,765 1,043,457 |