SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Policies) | 9 Months Ended |
Sep. 30, 2013 |
Summary Of Significant Accounting Policies Policies | ' |
Basis of presentation | ' |
NOTE 2 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
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Basis of presentation — The accompanying condensed consolidated financial statements are unaudited and have been prepared by the Company in accordance with accounting principles generally accepted in the United States (‘‘GAAP’’) as found in the Accounting Standards Codification (‘‘ASC’’) and Accounting Standards Update (‘‘ASU’’) of the Financial Accounting Standards Board (‘‘FASB’’). Certain information and footnote disclosures normally included in the Company’s annual financial statements have been condensed or omitted. These condensed consolidated financial statements, in the opinion of management, reflect all normal recurring adjustments necessary for a fair presentation of the Company’s financial position and results of operations for the interim periods ended September 30, 2013 and 2012 and the period since inception. |
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The results of operations for the interim periods are not necessarily indicative of the results of operations to be expected for the full year. These condensed consolidated financial statements should be read in conjunction with the audited financial statements as of and for the year ended December 31, 2012, and the notes thereto, which are included in the Company’s filings with the Securities and Exchange Commission. |
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Restatement and Immaterial Corrections of Prior Period Amounts | ' |
Restatement of Prior Period Amounts — In connection with the preparation of our December 31, 2013 consolidated financial statements, we identified the following material errors in our condensed consolidated financial statements as of and for the three and nine months ended September 30, 2013. |
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On September 11, 2013, the Company issued an aggregate of 3,020,501 units at a price of $2.50 per unit. Each unit consisted of one share of common stock and one common stock purchase warrant. The aggregate gross purchase price for the units was $6,435,055 after transaction costs. The Company incorrectly allocated the value of the transaction between the shares of common stock and the warrants based on their relative value, instead of allocating value first to the warrants to the extent of their fair value, as is required by generally accepted accounting principles, and allocating the residual to the common shares. In addition, the costs of the transaction were incorrectly allocated entirely to the common shares instead of between the common shares and liability-classified warrants. As a result, we are amending our previously filed Quarterly Report on Form 10-Q for the third quarter ended September 30, 2013 to correctly account for the above matters, which resulted in Derivative Liabilities increasing by $4.1 million and Additional Paid-in Capital decreasing by $3.3 million as of September 30, 2013, and Transaction Costs increasing by $1.0 million and other income related to the Change in fair value of Derivative Liabilities increasing by $0.2 million for the three and nine months ended September 30, 2013. These errors did not affect periods prior to the quarter ended September 30, 2013. |
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The following tables present the impact of these restatements on the Company’s condensed consolidated financial statements as of September 30, 2013, for the three and nine months ended September 30, 2013 and for the period from inception to September 30, 2013, as well as the impact of certain other immaterial corrections to these periods as described below. |
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| | Nine months ended September 30, 2013 | | | | | | | | | | | | | | |
| | As | | Restatement | | Immaterial | | As Restated | | | | | | | | | | | | | | |
Previously | Adjustment | Error | | | | | | | | | | | | | |
Reported | | Correction | | | | | | | | | | | | | |
Condensed Consolidated Balance Sheet | | | | | | | | | | | | | | | | | | | | | | |
Derivative liabilities | | 2,441,382 | | 4,127,618 | | — | | 6,569,000 | | | | | | | | | | | | | | |
Total long-term liabilities | | 5,787,942 | | 4,127,618 | | — | | 9,915,560 | | | | | | | | | | | | | | |
Total liabilities | | 16,304,874 | | 4,127,618 | | 394,446 | | 20,826,938 | | | | | | | | | | | | | | |
Additional paid-in capital | | 38,415,254 | | (3,357,020 | ) | (819,641 | ) | 34,238,593 | | | | | | | | | | | | | | |
Deficit accumulated during the development stage | | (46,838,971 | ) | (770,597 | ) | 875,621 | | (46,733,947 | ) | | | | | | | | | | | | | |
Total stockholders’ deficit | | (7,271,018 | ) | (4,127,618 | ) | (394,446 | ) | (11,793,082 | ) | | | | | | | | | | | | | |
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Condensed Consolidated Statements of Comprehensive Loss | | | | | | | | | | | | | | | | | | | | | | |
Transaction costs | | — | | 1,014,019 | | — | | 1,014,019 | | | | | | | | | | | | | | |
Total operating expenses | | 9,799,170 | | 1,014,019 | | (282,225 | ) | 10,530,964 | | | | | | | | | | | | | | |
Loss from operations | | (9,699,691 | ) | (1,014,019 | ) | 282,225 | | (10,431,485 | ) | | | | | | | | | | | | | |
Change in fair value of derivative liabilities | | 47,578 | | 243,422 | | — | | 291,000 | | | | | | | | | | | | | | |
Total other income (expense) | | (1,119,166 | ) | 243,422 | | (144,585 | ) | (1,020,329 | ) | | | | | | | | | | | | | |
Loss before income taxes | | (10,818,857 | ) | (770,597 | ) | 137,639 | | (11,451,815 | ) | | | | | | | | | | | | | |
Net loss | | (10,821,407 | ) | (770,597 | ) | 590,571 | | (11,001,433 | ) | | | | | | | | | | | | | |
Comprehensive loss | | (9,683,000 | ) | (770,597 | ) | 137,639 | | (10,315,957 | ) | | | | | | | | | | | | | |
Loss per share (1) | | (0.44 | ) | | | | | (0.43 | ) | | | | | | | | | | | | | |
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Condensed Consolidated Statement of Changes in Stockholders’ Equity (Deficit) | | | | | | | | | | | | | | | | | | | | | | |
2013 Equity component of stock and warrant units issued for cash | | 3,946,095 | | (3,357,021 | ) | — | | 589,074 | | | | | | | | | | | | | | |
2013 Net loss | | (10,821,407 | ) | (770,597 | ) | 590,571 | | (11,001,433 | ) | | | | | | | | | | | | | |
Total stockholders’ deficit | | (7,271,018 | ) | (4,127,618 | ) | (394,446 | ) | (11,793,082 | ) | | | | | | | | | | | | | |
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Condensed Consolidated Statements of Cash Flows (2) | | | | | | | | | | | | | | | | | | | | | | |
Change in fair value of derivative liabilities | | (47,578 | ) | (243,422 | ) | — | | (291,000 | ) | | | | | | | | | | | | | |
Transaction costs | | — | | 1,014,019 | | — | | 1,014,019 | | | | | | | | | | | | | | |
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(1) includes impact of including shares canceled in June 2013 until all contingencies have been resolved |
(2) no changes to net cash flows from (used in) operating activities, investing activities or financing activities |
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| | Three months ended September 30, 2013 | | | | | | | | | | | | | | |
| | As | | Restatement | | Immaterial | | As Restated | | | | | | | | | | | | | | |
Previously | Adjustment | Error | | | | | | | | | | | | | |
Reported | | Correction | | | | | | | | | | | | | |
Condensed Consolidated Statements of Comprehensive Loss | | | | | | | | | | | | | | | | | | | | | | |
Transaction costs | | — | | 1,014,019 | | — | | 1,014,019 | | | | | | | | | | | | | | |
Total operating expenses | | 3,210,828 | | 1,014,019 | | (93,235 | ) | 4,131,612 | | | | | | | | | | | | | | |
Loss from operations | | (3,193,144 | ) | (1,014,019 | ) | 93,235 | | (4,113,928 | ) | | | | | | | | | | | | | |
Change in fair value of derivative liabilities | | 47,578 | | 243,422 | | — | | 291,000 | | | | | | | | | | | | | | |
Total other income (expense) | | (514,824 | ) | 243,422 | | — | | (271,402 | ) | | | | | | | | | | | | | |
Loss before income taxes | | (3,707,968 | ) | (770,597 | ) | 93,235 | | (4,385,330 | ) | | | | | | | | | | | | | |
Net loss | | (3,707,968 | ) | (770,597 | ) | 144,364 | | (4,334,201 | ) | | | | | | | | | | | | | |
Comprehensive loss | | (3,583,527 | ) | (770,597 | ) | 93,235 | | (4,260,889 | ) | | | | | | | | | | | | | |
Loss per share (1) | | (0.15 | ) | | | | | (0.16 | ) | | | | | | | | | | | | | |
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(1) includes impact of including shares canceled in June 2013 until all contingencies have been resolved |
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| | For the period from December 20, 2000 (inception) | | | | | | | | | | | | | | |
to September 30, 2013 | | | | | | | | | | | | | |
| | As | | Restatement | | Immaterial | | As Restated | | | | | | | | | | | | | | |
Previously | Adjustment | Error | | | | | | | | | | | | | |
Reported | | Correction | | | | | | | | | | | | | |
Condensed Consolidated Statement of Changes in Stockholders’ Equity (Deficit) | | | | | | | | | | | | | | | | | | | | | | |
2013 Equity component of stock and warrant units issued for cash | | 3,946,095 | | (3,357,021 | ) | — | | 589,074 | | | | | | | | | | | | | | |
2013 Net loss | | (10,821,407 | ) | (770,597 | ) | 590,571 | | (11,001,433 | ) | | | | | | | | | | | | | |
Total stockholders’ deficit | | (7,271,018 | ) | (4,127,618 | ) | (394,446 | ) | (11,793,082 | ) | | | | | | | | | | | | | |
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Condensed Consolidated Statements of Comprehensive Loss | | | | | | | | | | | | | | | | | | | | | | |
Transaction costs | | 788,893 | | 1,014,019 | | — | | 1,802,912 | | | | | | | | | | | | | | |
Total operating expenses | | 41,876,072 | | 1,014,019 | | (567,275 | ) | 42,322,816 | | | | | | | | | | | | | | |
Loss from operations | | (41,329,767 | ) | (1,014,019 | ) | 567,275 | | (41,776,511 | ) | | | | | | | | | | | | | |
Change in fair value of derivative liabilities | | 47,578 | | 243,422 | | — | | 291,000 | | | | | | | | | | | | | | |
Total other income (expense) | | (5,481,351 | ) | 243,422 | | (144,585 | ) | (5,382,514 | ) | | | | | | | | | | | | | |
Loss before income taxes | | (46,811,118 | ) | (770,597 | ) | 422,690 | | (47,159,025 | ) | | | | | | | | | | | | | |
Net loss | | (46,838,971 | ) | (770,597 | ) | 875,621 | | (46,733,947 | ) | | | | | | | | | | | | | |
Comprehensive loss | | (45,712,995 | ) | (770,597 | ) | 422,690 | | (46,060,902 | ) | | | | | | | | | | | | | |
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Condensed Consolidated Statements of Cash Flows (2) | | | | | | | | | | | | | | | | | | | | | | |
Change in fair value of derivative liabilities | | (47,578 | ) | (243,422 | ) | — | | (291,000 | ) | | | | | | | | | | | | | |
Transaction costs from private placement | | — | | 1,014,019 | | — | | 1,014,019 | | | | | | | | | | | | | | |
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(2) no changes to net cash flows from (used in) operating activities, investing activities or financing activities |
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Immaterial Corrections of Prior Year Amounts — During the preparation of its December 31, 2013 consolidated financial statements, the Company identified the following immaterial errors in its December 31, 2012 annual and quarterly condensed consolidated financial statements which have been corrected in the accompanying condensed consolidated financial statements: |
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a) The Company incorrectly recognized share-based compensation expense prior to the grant date for stock options awarded to certain employees and consultants. The impact of this correction resulted in a reduction of share-based compensation expense of $0.1 million for each of the second, third and fourth quarters of 2012, $0.3 million for the year ended December 31, 2012, and $0.1 million for each of the first, second and third quarters of 2013. |
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b) In June 2012, the Company incorrectly recorded the gain relating to the settlement of a loan as a gain on marketable securities. This has been corrected to show a gain on debt extinguishment of $300,312 and a realized loss on securities available-for-sale of $24,490, with no change in total net loss for the quarter ended June 30, 2012. |
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We have also identified the following immaterial errors in our 2013 quarterly financial statements, the effects of which have been addressed in the accompanying condensed consolidated financial statements: |
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a) In the quarter ended June 30, 2013, the Company incorrectly accounted for the May 2013 issuance of shares of common stock to the Company’s CEO in exchange for the termination of a promissory note held by our CEO and accrued interest thereon. The remaining unamortized loan discount of $249,861 was originally recorded as interest expense. This has been corrected to report the remaining unamortized loan discount of $249,861 as a debt extinguishment loss between related entities which is recorded as a capital transaction in the accompanying condensed consolidated financial statements. |
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b) In the quarter ended June 30, 2013, the Company incorrectly recorded the cancelation of shares of the Company’s common stock held by AFH Advisory, Griffin and the Foundation, and the cancelation of a payment obligation to AFH Advisory in the amount of $394,446. The cancelations had been ordered by the court in connection with a partial summary judgment in the Company’s favor in the ongoing litigation against AFH Advisoy, as further described in Note 9 — Related Party Transactions. While the partial summary judgment in favor of the Company led to the cancelation of 2,504,249 shares of the Company’s common stock by the Company’s transfer agent on June 28, 2013, the cancelation of such shares and payment obligation is subject to appeal until 30 days after the completion of final court proceedings. The Company has made an adjustment to the accompanying condensed consolidated financial statements to present these shares as outstanding, and has restored $394,446 to the balance sheet as an amount due to related parties until the right of appeal has lapsed and all contingencies have been resolved. |
Going concern | ' |
Going concern — The accompanying condensed consolidated financial statements have been prepared on the basis that the Company will continue as a going concern. The Company has losses for the nine months ended September 30, 2013 totaling $11,001,433 as well as an accumulated deficit since inception amounting to $46,733,947. In addition, the Company has a significant amount of notes payable and other obligations due within the next year and is projecting that its operating losses and expected capital needs will exceed its existing cash balances and cash expected to be generated from operations for the foreseeable future, including the expected costs relating to the commercialization of the Company’s L-glutamine treatment for SCD. In order to meet the Company’s expected obligations, management intends to raise additional funds through equity and debt offerings and partnership agreements. However, there can be no assurance that the Company will be able to obtain any additional equity and debt financings or enter into partnership agreements. Therefore, due to the uncertainty of the Company’s ability to meet its current operating and capital expenses, there is substantial doubt about the Company’s ability to continue as a going concern, as the continuation and expansion of its business is dependent upon obtaining further financing, successful and sufficient market acceptance of its products, and finally, achieving a profitable level of operations. The condensed consolidated financial statements do not include any adjustments that might result from the outcome of these uncertainties. |
Recapitalization and change in legal status of entity | ' |
Recapitalization and change in legal status of entity |
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2003 Recapitalization — In October 2003, Emmaus Medical acquired substantially all of the assets of Emmaus Medical, LLC. The stockholders of Emmaus Medical were substantially the same as the members of Emmaus Medical, LLC. As such, the transaction was accounted for as a transfer of assets between entities under common control pursuant to accounting standards codification 805, Business Combinations. |
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The effect of the recapitalization was to retroactively present the stockholders’ equity (deficit) of Emmaus Medical, Inc. (the surviving entity) to the earliest period presented in the financial statements. This recapitalization had no effect on results of operations for any period presented. Also, concurrent with the recapitalization, Emmaus Medical changed its legal status from a Limited Liability Company to a “C” Corporation. In connection with this change, deficits accumulated in the Limited Liability Company were transferred to additional paid in capital. |
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2011 Merger — Pursuant to the Merger Agreement, Emmaus Medical merged with and into AFH Merger Sub with Emmaus Medical continuing as the surviving entity (the “Merger”). |
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Upon consummation of the Merger, (i) each outstanding share of Emmaus Medical common stock was exchanged for 29.48548924976 shares of Company common stock, (ii) each outstanding Emmaus Medical option and warrant, which was exercisable for one share of Emmaus Medical common stock, was exchanged for an option or warrant, as applicable, exercisable for 29.48548924976 shares of Company common stock; and (iii) each outstanding convertible note of Emmaus Medical, which was converted for one share of Emmaus Medical common stock, was exchanged for a convertible note exercisable for 29.48548924976 shares of Company common stock. |
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As a result of the Merger, security holders of Emmaus Medical received 20,628,305 shares of Company common stock, options and warrants to purchase an aggregate of 326,507 shares of Company common stock, and convertible notes to purchase an aggregate of 271,305 shares of Company common stock. |
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Four stockholders exercised their dissenters’ rights in connection with the Merger and returned an aggregate of 47,178 shares for an aggregate of $200,000. The shares were cancelled as of May 3, 2011, the closing date of the Merger and recorded as a current liability as of that date. |
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For accounting purposes, the Merger transaction was accounted for as a reverse merger. The transaction has been treated as a recapitalization of Emmaus Medical and its subsidiaries. This resulted in Emmaus Life Sciences, Inc. (the legal acquirer of Emmaus Medical and its subsidiaries) being considered the accounting acquiree, and Emmaus Medical whose management took control of Emmaus Life Sciences, Inc. (the legal acquiree of Emmaus Medical) being considered the accounting acquirer. |
Principles of consolidation | ' |
Principles of consolidation — The condensed consolidated financial statements include the accounts of the Company (and its wholly-owned subsidiary, Emmaus Medical, Inc., and Emmaus Medical’s wholly-owned subsidiaries, Newfield Nutrition Corporation, EM Japan and EM Europe). All significant intercompany transactions have been eliminated. |
Development stage company | ' |
Development stage company — The Company is a development stage company as defined in accounting principles generally accepted in the United States of America. The Company is considered a development stage company because it devotes substantially all of its time to research and development for potential pharmaceutical products and to establish its business and operations. The minimal sales for the period from December 20, 2000 (date of inception) to September 30, 2013 are from NutreStore and the products of Newfield Nutrition Corporation which are not considered part of the Company’s principal operations. |
Estimates | ' |
Estimates — Financial statements prepared in accordance with accounting principles generally accepted in the United States require management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Among other things, management has estimated the useful lives of equipment and other assets, along with the variables used to calculate the valuation of stock options and warrants using the Black-Scholes-Merton option valuation model. Actual results could differ from those estimates. |
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In addition, the initial value of the derivative liability as of September 11, 2013 and the change in fair value of the derivative liability as of September 30, 2013 were determined using a Binomial Monte-Carlo Cliquet (aka Ratchet) Option Pricing Model. The model is similar to traditional Black-Scholes-type option pricing models except that the exercise price resets at certain dates in the future. |
Cash and cash equivalents | ' |
Cash and cash equivalents — Cash and cash equivalents include short-term securities with original maturities of less than ninety days. The Company maintains its cash and cash equivalents at insured financial institutions, the balances of which may, at times, exceed federally insured limits. Management believes that the risk of loss due to the concentrations is minimal. |
Inventories | ' |
Inventories — Inventories as of September 30, 2013 are valued based on first-in, first-out and at the lesser of cost or market value. Work-in-process inventories consist of raw material L-glutamine for the Company’s AminoPure and NutreStore products that has not yet been packaged and labeled for sale. |
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All of the inventory purchases during the nine months ended September 30, 2013 were from two vendors and during 2012 were from one vendor. |
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Inventory by category | | September 30, 2013 | | December 31, 2012 | | | | | | | | | | | | | | | | |
Work-in-process | | 59,944 | | — | | | | | | | | | | | | | | | | |
Finished goods | | 107,820 | | 203,389 | | | | | | | | | | | | | | | | |
| | $ | 167,764 | | $ | 203,389 | | | | | | | | | | | | | | | | |
Deposits | ' |
Deposits — Carrying value of amounts transferred to third parties for security purposes that are expected to be returned or applied towards payment after one year or beyond the operating cycle, if longer, are recorded as deposits. Deposit amounts consist of retainer payments for professional services, amounts paid to the Company’s contract research organization for FDA Phase 3 clinical trial activities and security deposits for our offices. |
Revenue recognition | ' |
Revenue recognition — Revenue is recognized when there is persuasive evidence that an arrangement exists, delivery has occurred, the price is fixed and determinable and collection is reasonably assured. |
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With prior written approval of the Company, in certain situations, product is returnable only by our direct customers for a returned goods credit for product that is expired, damaged in transit, or which is discontinued, withdrawn or recalled. |
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The Company estimates its sales returns based upon its prior sales and return history and accrues a Sales Return Allowance at the time of sale. Historically, sales returns have been immaterial. |
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The Company pays royalties on an annual basis based on existing license arrangements. These royalties are recognized as cost of goods sold upon sale of the products. |
Allowance for doubtful accounts | ' |
Allowance for doubtful accounts — The Company provides an allowance for uncollectible accounts based upon prior experience and management’s assessment of the collectability of existing specific accounts. |
Advertising cost | ' |
Advertising cost — Advertising costs are expensed as incurred. Advertising costs for the nine months ended September 30, 2013 and 2012 were $161,301 and $134,221, respectively. Advertising costs from December 20, 2000 (date of inception) to September 30, 2013 were approximately $577,829. |
Property and equipment | ' |
Property and equipment — Leaseholds, furniture, and fixtures are recorded at historical cost and depreciated on a straight-line basis over their estimated useful lives of 5 to 7 years. Maintenance and repairs are expensed as incurred, while major additions and improvements are capitalized. Gains and losses on disposition are included in current operations. |
Intangibles | ' |
Intangibles — The Company’s intangible assets include license issue fees and patent costs relating to a license agreement (Note 4). These intangible assets are amortized over a period of 3 to 7 years, the estimated legal life of the patents and economic life of the license agreements. The intangible assets are assessed by management, for potential impairment on an annual basis. No impairment existed as of September 30, 2013 and December 31, 2012. |
Impairment of long-lived assets | ' |
Impairment of long-lived assets — The Company evaluates the carrying value of its long-lived assets for impairment whenever events or changes in circumstances indicate that such carrying values may not be recoverable. The Company uses its best judgment based on the current facts and circumstances relating to its business when determining whether any significant impairment factors exist. If the Company determines that the carrying values of long-lived assets may not be recoverable based upon the existence of one or more indicators of impairment, the Company performs an undiscounted cash flow analysis to determine if impairment exists. If impairment exists, the Company measures the impairment based on the difference between the asset’s carrying amount and its fair value, and the impairment is charged to consolidated statement of comprehensive loss in the period in which the long-lived asset impairment is determined to have occurred. |
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The Company has determined that no impairment of the carrying value of its long-lived assets existed at September 30, 2013 and December 31, 2012. |
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There can be no assurance, however, that market conditions will not change or demand for the Company’s products will continue or allow the Company to realize the value of its long-lived assets and prevent future impairment. |
Research and development | ' |
Research and development — Research and development consist of expenditures for the research and development of new products and technologies, which primarily involve contract research, payroll-related expenses, and other related supplies. Research and development costs are expensed as incurred. Intangible assets acquired for research and development purposes are capitalized if they have alternative future use. |
Share-based compensation | ' |
Share-based compensation — The Company recognizes compensation cost for share-based compensation awards over the service term of the recipients of the share-based awards. The fair value of share-based compensation is calculated using the Black-Scholes-Merton pricing model. The Black-Scholes-Merton model requires subjective assumptions regarding future stock price volatility and expected time to exercise, which greatly affect the calculated values. The expected term of awards granted is derived from historical data on awards exercised and post-vesting employment termination behavior. The risk-free rate selected to value any particular grant is based on the U.S. Treasury rate on the grant date that corresponds to the expected term of the award. The expected volatility is based on the historical volatility of the common stock of comparable publicly traded companies. These factors could change, affecting the determination of share-based compensation expense in future periods. |
Income taxes | ' |
Income taxes — The Company accounts for income taxes under the asset and liability method, wherein deferred tax assets and liabilities are recognized for the future tax consequences attributable to the differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period the enactment occurs. A valuation allowance is provided for certain deferred tax assets if it is more likely than not that the Company will not realize tax assets through the generation of future taxable income for the related jurisdictions. |
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For balance sheet presentation, current deferred tax assets and liabilities within each tax jurisdiction have been offset and presented as a single amount and non-current deferred tax assets and liabilities within each tax jurisdiction have been offset and presented as a single amount. |
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When tax returns are filed, it is highly probable that some positions taken would be sustained upon examination by the taxing authorities, while others are subject to uncertainty about the merits of the position taken or the amount of the position that would be ultimately sustained. The benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, management believes it is more likely than not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits along with any associated interest and penalties that would be payable to the taxing authorities upon examination. As of September 30, 2013, the Company had no unrecognized tax benefits, and the Company had no positions which, in the opinion of management, would be reversed if challenged by a taxing authority. In the event the Company is assessed interest and/or penalties such amounts will be classified as income tax expense in the financial statements. |
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As of September 30, 2013, all federal tax returns since 2010 and state tax returns since 2009 are still subject to adjustment upon audit. No tax returns are currently being examined by the taxing authorities. |
Comprehensive income (loss) | ' |
Comprehensive income (loss) — Comprehensive income (loss) includes net loss and other comprehensive income (loss). The items of other comprehensive income (loss) for the Company are unrealized gains and losses on marketable securities classified as available-for-sale and foreign translation adjustments relating to its subsidiaries. When the Company realizes a gain or loss on securities available-for-sale for which an unrealized gain or loss was previously recognized, a corresponding reclassification adjustment is made to remove the unrealized gain or loss from accumulated other comprehensive income (loss) and reflect the realized gain or loss in current operations. |
Marketable securities | ' |
Marketable securities — Investment securities as of September 30, 2013 and December 31, 2012 are classified as available-for-sale. Securities available-for-sale are recorded at cost and any increases or decreases in fair market value are recorded as unrealized gain or loss in accumulated other comprehensive income (loss). The Company monitors these investments for impairment and makes appropriate reductions in carrying values when necessary. CellSeed, Inc. securities are the only marketable security the Company currently carries on its books. The Company’s marketable securities consist of 73,550 shares of CellSeed stock which are part of 147,100 shares acquired in January 2009 for 100,028,000 Japanese Yen (equivalent to $1,109,819), at 680 Yen per share. CellSeed’s IPO (Tokyo Stock Exchange symbol 7776) was completed on March 16, 2010. As of September 30, 2013 and December 31, 2012, the closing price per share was 2,318 Yen and 661 Yen, respectively. |
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In July 2013, based on an increase in market value of CellSeed shares, Mitsubishi UFJ Capital III Limited Partnership (Mitsubishi) released to the Company 34,300 shares of CellSeed stock. This was part of the 73,550 shares of CellSeed stock held by Mitsubishi as collateral on a $500,000 convertible note issued to Mitsubishi. The note is now secured by the remaining 39,250 shares of CellSeed stock held by Mitsubishi as collateral. |
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As of September 30, 2013, 34,300 shares of CellSeed stock are classified as a current asset and 39,250 shares of CellSeed stock that are pledged against the note, which is due in 2016, are classified as marketable securities, pledged to creditor. Subsequent to September 30, 2013 but prior to the date of this report, the Company sold 25,000 of the shares classified as a current asset in open market transactions. As of December 31, 2012, 100% of the investment in CellSeed was classified as a long-term asset in the accompanying consolidated balance sheet as the entire investment was assigned as collateral to secure the $500,000 convertible note issued to Mitsubishi. |
Gain on derecognition of accounts payable | ' |
Gain on derecognition of accounts payable — The Company derecognizes accounts payable and records gain when the related contractual obligation is discharged, cancelled or expired. During the nine months ended September 30, 2013, the Company recorded a total of $341,361 as a gain on derecognition of accounts payable due to reaching a settlement with a creditor in regards to the amounts owed relating to services provided to the Company. |
Foreign Currency Translation | ' |
Foreign Currency Translation - The Company’s reporting currency is the U.S. dollar. The yen and the euro are the functional currencies of our subsidiaries, EM Japan and EM Europe, respectively, as they are the primary currencies within the economic environments in which EM Japan and EM Europe operate. Assets and liabilities of their operations are translated into U.S. dollars at period-end exchange rates, and revenues and expenses are translated into U.S. dollars at average exchange rates in effect during each reporting period. Adjustments resulting from the translation are reported in other comprehensive income or loss. |
Financial Instruments | ' |
Financial Instruments - Financial instruments included in our financial statements are comprised of cash and cash equivalents, short-term and long-term available-for-sale investments, accounts receivable, derivative financial instruments, accounts payable, certain accrued liabilities, convertible notes, promissory notes, due to related party, dissenting stockholders payable, contingent consideration and other contingent liabilities. The carrying amounts of cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities, due to related party, and dissenting stockholders payable approximate their fair values due to the short-term nature of those instruments. |
Fair value measurements | ' |
Fair value measurements — The Company defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The Company measures fair value under a framework that provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are described as follows: |
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Level 1: Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets that the Company has the ability to access. |
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Level 2: Inputs to the valuation methodology include: |
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· Quoted prices for similar assets or liabilities in active markets; |
· Quoted prices for identical or similar assets or liabilities in inactive markets; |
· Inputs other than quoted prices that are observable for the asset or liability; |
· Inputs that are derived principally from or corroborated by observable market data by correlation or other means. |
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If the asset or liability has a specified (contractual) term, the Level 2 inputs must be observable for substantially the full term of the asset or liability. |
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Level 3: Inputs to the valuation methodology are unobservable and significant to the fair value measurement. |
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The asset’s or liability’s fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs. The fair value assigned to marketable securities is determined by obtaining quoted prices on nationally recognized securities exchanges, and are classified as Level 1 investments at September 30, 2013. The fair value of the Company’s debt instruments is not materially different from their carrying values as presented. The fair value of the Company’s convertible debt instruments was determined based on Level 2 inputs. The carrying value of the debt was discounted based on allocating proceeds to other financial instruments within the arrangement as discussed in Note 6. |
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Type of Loan | | Term of Loan | | Annual | | Original | | Conv. | | Beneficial | | Warrants | | Strike | | Warrant | | Effective | |
Interest | Loan | Rate | Conversion | Price | FMV | Interest |
Rate | Principal | | Discount | | Discount | Rate |
| Amount | | Amount | | Amount | Including |
| | | | | | Discounts |
2012 Convertible notes payable | | Due on demand up to 1 year | | 8% to 10% | | $ | 2,794,187 | | $3.30 to $3.60 | | $ | 256,761 | | 86,573 | | $1.00 to 75% of FMV | | $ | 175,961 | | 15.4% to 101.0% | |
2013 Convertible notes payable | | 1 to 2 years | | 10% | | 3,079,666 | | $3.30 | | 396,801 | | 50,000 | | $3.30 | | 116,831 | | 19.1% to 61.6% | |
2012 Notes payable | | Due on demand up to 2 years | | 1% to 11% | | 2,641,768 | | NA | | — | | 1,381,020 | | $1.00 to $2.50 | | 1,485,835 | | 54.6% to 67.8% | |
Total | | | | | | $ | 8,515,621 | | | | $ | 653,562 | | 1,517,593 | | | | $ | 1,778,627 | | | |
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The Company issued stock purchase warrants in conjunction with its September 2013 private placement (see Note 7) that are accounted for as derivative instruments whose fair market value is determined using Level 3 inputs. These inputs include expected term and expected volatility. The Company did not have any Level 3 financial assets or liabilities measured at fair value at December 31, 2012. |
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The following table presents the activity for those items measured at fair value on a recurring basis using Level 3 inputs for the nine months ended September 30, 2013: |
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| | Derivative Instruments — | | | | | | | | | | | | | | | | | | | |
Stock Purchase Warrants | | | | | | | | | | | | | | | | | | |
Balance at December 31, 2012 | | $ | — | | | | | | | | | | | | | | | | | | | |
Fair value at issuance date | | 6,860,000 | | | | | | | | | | | | | | | | | | | |
Change in fair value included in the statement of comprehensive loss | | (291,000 | ) | | | | | | | | | | | | | | | | | | |
Balance at September 30, 2013 | | $ | 6,569,000 | | | | | | | | | | | | | | | | | | | |
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The initial value of the derivative liability as of September 11, 2013 and the change in fair value of the derivative liability as of September 30, 2013 were determined using a Binomial Monte-Carlo Cliquet (aka Ratchet) Option Pricing Model. The model is similar to traditional Black-Scholes-type option pricing models except that the exercise price resets at certain dates in the future. The values as of September 11, 2013 and September 30, 2013 were calculated based on the following assumptions: |
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| | September 30, 2013 | | Initial Value | | | | | | | | | | | | | | | | |
Risk-free interest rate | | 1.39 | % | 1.72 | % | | | | | | | | | | | | | | | |
Expected volatility (peer group) | | 69.7 | % | 72.4 | % | | | | | | | | | | | | | | | |
Expected life (in years) | | 4.95 | | 5 | | | | | | | | | | | | | | | | |
Expected dividend yield | | — | | — | | | | | | | | | | | | | | | | |
Number outstanding | | 3,020,501 | | 3,020,501 | | | | | | | | | | | | | | | | |
Fair value at issue date | | $ | 6,860,000 | | $ | 6,860,000 | | | | | | | | | | | | | | | | |
Net loss per share | ' |
Net loss per share — In accordance with FASB ASC Topic 260, Earnings per Share, the basic loss per common share is computed by dividing net loss available to common stockholders by the weighted average number of common shares outstanding. Dilutive loss per share is computed similar to the basic loss per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potential common shares had been issued and if the additional common shares were dilutive. As of September 30, 2013 and 2012, there were 13,811,989 and 6,331,996 shares of potentially dilutive securities outstanding, respectively. As the Company reported a net loss, none of the potentially dilutive securities were included in the calculation of diluted loss per share since their effect would be anti-dilutive for all periods presented. |
Recent accounting pronouncements | ' |
Recent accounting pronouncements — In February 2013, the FASB issued amendments to the accounting guidance for presentation of comprehensive income to improve the reporting of reclassifications out of accumulated other comprehensive income. The amendments do not change the current requirements for reporting net income or other comprehensive income, but do require an entity to provide information about the amounts reclassified out of accumulated other comprehensive income by component. In addition, an entity is required to present, either on the face of the statement where the net income is presented or in the notes, significant amounts reclassified out of accumulated other comprehensive income by the respective line items of net income but only if the amount reclassified is required under GAAP to be reclassified to net income in its entirety in the same reporting period. For other amounts that are not required under GAAP to be reclassified in their entirety to net income, an entity is required to cross-reference to other disclosures required under GAAP that provide additional detail about these amounts. For public companies, these amendments are effective for reporting periods beginning after December 15, 2012. Other than a change in presentation, the adoption of these amendments to the accounting guidance did not have a material impact on the Company’s consolidated financial position or results of operations. |