STOCKHOLDERS' DEFICIT | NOTE 6—STOCKHOLDERS' DEFICIT Private Placement The warrants issued in the Private Placement and the Broker Warrants entitle the holders thereof to purchase, at any time on or prior to September 11, 2018, shares of common stock of the Company at an exercise price of $3.50 per share. The warrants contain non-standard anti-dilution protection and, consequently, are being accounted for as liabilities, were originally recorded at fair value, and are adjusted to fair market value each reporting period. Because the shares of common stock underlying the Private Placement warrants and Broker Warrants were not effectively registered for resale by September 11, 2014, the warrant holders have an option to exercise the warrants using a cashless exercise feature. The shares have not been registered for resale as of December 31, 2016. The availability to warrant holders of the cashless exercise feature as of September 11, 2014 caused the then-outstanding 2,225,036 Private Placement warrants and Broker Warrants with fair value of $7,068,000 to be reclassified from liability classified warrants to warrant derivative liabilities and to continue to be remeasured at fair value each reporting period. On June 10, 2014, certain warrant holders exercised 1,095,465 warrants issued in the Private Placement for the exercise price of $3.50 per share, resulting in the Company receiving aggregate exercise proceeds of $3.8 million and issuing 1,095,465 shares of common stock. Prior to exercise, these Private Placement warrants were accounted for at fair value as liability classified warrants. As of June 10, 2014, immediately prior to exercise, the carrying value of these Private Placement warrants was reduced to their fair value immediately prior to exercise of $1.8 million, representing their intrinsic value, with this adjusted carrying value of $1.8 million being transferred to additional paid-in capital. Also on June 10, 2014, based on an offer made to holders of Private Placement warrants in connection with such exercises, the Company issued an aggregate of 1,095,465 replacement warrants to holders exercising Private Placement warrants, which replacement warrants have terms that are generally the same as the exercised warrants, including an expiration date of September 11, 2018 and an exercise price of $3.50 per share. The replacement warrants are treated for accounting purposes as liability classified warrants, and their issuance gave rise to a $3.5 million warrant exercise inducement expense based on their fair value as of issuance as determined using a Binomial Monte-Carlo Cliquet (aka Ratchet) Option Pricing Model. Because the shares of common stock underlying the replacement warrants were not effectively registered for resale by June 10, 2015, the warrant holders have an option to exercise the warrants using a cashless exercise feature. The shares have not been registered for resale as of December 31, 2016. The availability to warrant holders of the cashless exercise feature as of June 10, 2015 caused the then-outstanding 1,095,465 replacement warrants with fair value of $2,545,000 to be reclassified from liability classified warrants to warrant derivative liabilities and to continue to be remeasured at fair value each reporting period. As of December 31, 2016 and 2015, the aggregate fair value of the Private Placement warrants, replacement warrants, and the Broker Warrants were $10,600,000 and $7,863,000, respectively (see Note 2). For further details regarding registration rights associated with the Private Placement warrants, replacement warrants, and Broker Warrants, see the Registration Rights section below in this footnote. A summary of outstanding warrants as of December 31, 2016 and 2015 is presented below. Year ended December 31, 2016 Year ended December 31, 2015 Warrants outstanding, beginning of period 3,530,918 5,101,450 Granted 1,493,750 110,417 Exercised — (148,256 ) Cancelled, forfeited and expired — (1,532,693 ) Warrants outstanding, end of period 5,024,668 3,530,918 ​ ​ ​ ​ ​ ​ ​ ​ A summary of outstanding warrants by year issued and exercise price as of December 31, 2016 is presented below. Outstanding Weighted Average Remaining Contractual Life (Years) Exercisable Exercise Price Number of Warrants Issued Weighted Average Exercise Price Total Weighted Average Exercise Price At December 31, 2013 $3.30 50,000 1.33 $ 3.30 50,000 $ 3.30 $3.50 2,225,036 1.70 $ 3.50 2,225,036 $ 3.50 2013 total 2,275,036 2,275,036 At December 31, 2014 $3.50 1,145,465 1.72 $ 3.50 1,145,465 $ 3.50 2014 total 1,145,465 1,145,465 At December 31, 2015 $4.90 110,417 3.18 $ 4.90 110,417 $ 4.90 2015 total 110,417 110,417 During 2016 $4.50 118,750 4.50 $ 4.50 118,750 $ 4.50 $4.70 75,000 4.33 $ 4.70 75,000 $ 4.70 $5.00 1,300,000 4.36 $ 5.00 1,300,000 $ 5.00 Total 5,024,668 5,024,668 Stock options Management has valued stock options at their date of grant utilizing the Black-Scholes-Merton Option pricing model. The fair value of the underlying shares was determined by the market value of stock of similar companies and recent arm's length transactions involving the sale of the Company's common stock. The expected volatility was calculated using the historical volatility of a similar public entity in the industry through August 2013 and a group of similar public entities thereafter. The following table presents the assumptions used on recent dates on which options were granted by the Board of Directors. May 10, 2016 January 14, 2016 Stock price $ 5.00 $ 4.70 Exercise price $ 5.00 $ 4.70 Term 10 years 10 years Risk-Free Interest Rate 1.36 % 1.70 % Dividend Yield 0.00 % 0.00 % Volatility 65.55 % 64.14 % In making the determination of fair value and finding similar companies, the Company considered the industry, stage of life cycle, size and financial leverage of such other entities. While the Company was initially able to identify only one similar public company using these criteria, based on the more advanced stage of development of the Company additional similar companies with enough historical data that met the industry criterion have now been identified. Accordingly, the Company has based its expected volatility on the historical stock prices of a group peer of companies since September 2013. The risk-free interest rate is based on the implied yield available on U.S. Treasury issues with an equivalent term approximating the expected life of the options depending on the date of the grant and expected life of the options. During the year ended December 31, 2016, the Company's Board of Directors granted 2,596,200 options to its officers, directors and employees. Of these options, 300,000 granted to its directors will vest in equal one-third installments on each of the first three anniversaries of the grant date, have an exercise price of $4.70 per share and are exercisable through 2026. The remaining 2,296,200 options will vest as follows: one-third (1/3) will vest on the first anniversary of the grant date, and the remaining two-thirds (2/3) will vest in twenty-four approximately equal monthly installments over a period of two years thereafter, except for 300,000 options granted to its directors which will vest in equal one-third installments over three years starting May 10, 2017. These options have an exercise price of $5.00 per share and are exercisable through 2026. During the year ended December 31, 2015, no options were granted by the Company's Board of Directors. As of December 31, 2016, there were 6,955,200 options outstanding under the 2011 Stock Incentive Plan. A summary of the Company's stock option activity for the years ended December 31, 2016 and 2015 is presented below. December 31, 2016 December 31, 2015 Number of Options Weighted- Average Exercise Price Number of Options Weighted- Average Exercise Price Options outstanding, beginning of period 4,753,335 $ 3.60 5,669,000 $ 3.68 Granted or deemed issued 2,596,200 $ 4.97 — — Exercised (15,866 ) $ 3.60 (2,000 ) $ 3.60 Cancelled, forfeited and expired (378,469 ) $ 3.91 (913,665 ) $ 4.05 Options outstanding, end of period 6,955,200 $ 4.10 4,753,335 $ 3.60 Options exercisable at end of year 4,372,667 $ 3.59 4,379,335 $ 3.60 Options available for future grant 2,044,800 4,246,665 During the years ended December 31, 2016 and 2015, the Company recognized $3.3 million and $3.7 million, respectively, of share-based compensation cost arising from stock option grants. As of December 31, 2016, there was $8.0 million of total unrecognized compensation cost related to unvested share-based compensation arrangements granted under the 2011 Stock Incentive Plan. That cost is expected to be recognized over the weighted average remaining period of 2.1 years. Registration rights If the shares of common stock underlying these warrants to purchase 3,320,501 shares are not registered for resale at the time of exercise, and the registration rights described above then apply with respect to the holder of such warrants, such holder may exercise such warrants on a cashless basis. In such a cashless exercise of all the shares covered by the warrant, the warrant holder would receive a number of shares equal to the quotient of (i) the difference between the fair market value of the common stock, as defined, and the $3.50 exercise price, as adjusted, multiplied by the number of shares exercisable under the warrant, divided by (ii) the fair market value of the common stock, as defined. As of December 31, 2016, based on a fair market value of a share of Company common stock of $6.00 and 3,320,501 warrants issued and outstanding and eligible for cashless exercise, the maximum number of shares the Company would be required to issue, if the warrant holders elected to exercise the cashless exercise feature with respect to all then eligible warrants, is 1,383,542 shares. If the fair market value of a share of Company common stock were to increase by $1.00 from $6.00 to $7.00, the maximum number of shares the Company would be required to issue, if the warrant holders elected to exercise the cashless exercise feature with respect to all then eligible warrants, would increase to 1,660,251 shares as of December 31, 2016. The Company has not yet filed a registration statement with respect to the resale of the Registrable Securities The Company believes that it has used commercially reasonable efforts to file a registration statement with respect to the resale of Registrable Securities. Korean Private Placement On September 29, 2016, KPM and Hanil purchased and acquired from the Company 3,777,778 shares and 666,667 shares, respectively, of common stock at a price of $4.50 a share for $17 million and $3 million, respectively, for a gross total of $20 million. The Company recognized $720,000 as a reduction to its additional paid-in-capital for fees and commissions payable by the Company in connection with the transaction. Pursuant to the terms of the Letter of Agreement dated September 12, 2016, the Company invested $13 million and $1 million in capital increases by KPM and Hanil, respectively, at $15.32 and $3.68, respectively, per capita share. Pursuant to the terms of a subscription agreement dated as of September 11, 2013 among the Company and certain purchasers of shares of our common stock and warrants to purchase shares of our common stock, the purchasers are entitled to participation rights with respect to the sale of shares pursuant to the Letter of Agreement. To the extent the purchasers exercise their participation rights, we may be obliged to sell to them a specified number of shares of our common stock at the price per share and other terms set forth in the Letter of Agreement. There can be no assurance that any purchaser will exercise its participation rights or that any shares of our common stock will be issued to any purchaser. On August 26, 2016, the Company offered all note holders an opportunity to convert all or a portion of the principal amount of and accrued interest on their notes into shares of Company common stock at a price of $3.50 per share. Pursuant to the offer, 19 note holders elected to convert a total of $4,007,598 of principal and $260,124 of accrued interest on their notes. The conversion price of $3.50 per share was less than the stated conversion price of the convertible notes that were converted, which conversion prices ranged from $4.50 to $7.00 per share. Accordingly, the conversion resulted in the Company recognizing an inducement expense of $1,444,863, which represents the fair value of the incremental increase in the number of shares of Company common stock received by the convertible note holders. The note holders of a total of $622,384 of principal and accrued interest on non-convertible notes participated in the offer. Under the guidance of ASC 405-20, the Company de-recognized the principal and accrued interest on these non-convertible notes in consideration for issuing Company common stock. As a result of delivering its common stock to the holders of these non-convertible notes holders, the Company concluded that it has satisfied and is released from its legal obligation for the notes. The fair value of the common stock provided as consideration was $889,120 whereas the face value of the principal and accrued interest was $622,384, resulting in a loss on the debt settlement of $266,736 charged in full against the earning during the year ended December 31, 2016. |