STOCKHOLDERS' EQUITY AND STOCK-BASED COMPENSATION | NOTE 9—STOCKHOLDERS’ EQUITY AND STOCK-BASED COMPENSATION Public Offering On June 10, 2016, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with selling stockholders and Cowen and , LLC, Raymond James & Associates, Inc. and Needham & Company, LLC relating to (i) a public primary offering of an aggregate of 11,319,643 shares of the Company’s common stock, par value $0.001 per share, at a public offering price of $2.00 per share; (ii) a public secondary offering by certain of its officers and its directors of an aggregate of 684,600 shares of common stock at $2.00 per share; and (iii) a public secondary offering by certain of its stockholders who were former stockholders of Magnum of an aggregate of 495,757 shares of common stock at $2.00 per share. The shares were accompanied by the associated rights to purchase shares of Series A Junior Preferred Stock, par value $0.001 per share, which the Company created by the Rights Agreement, dated December 16, 2011, between the Company and the American Stock Transfer & Trust Company, LLC, as Rights Agent, as amended by the Amended and Restated Rights Agreement, dated December 16, 2014. Under the terms of the Underwriting Agreement, the Company granted the underwriters a 30 day option to purchase up to an additional 1,875,000 shares of common stock to cover overallotments, which the underwriters subsequently exercised on June 15, 2016. On June 15, 2016, the Company completed its public offering of the 13,194,643 newly issued shares of common stock. The net proceeds to the Company from the offering was approximately $24.3 million which consisted of proceeds of $24.7 million after underwriting discounts, commissions and expenses, less an additional $0.4 million for legal, accounting, registration and other transaction costs related to the public offering. Private Equity Placement On March 21, 2016, the Company entered into a Securities Purchase Agreement (the “PDSTI Agreement”) with Pudong Science and Technology Investment (Cayman) Co., Ltd., an affiliate of Shanghai Pudong Science and Technology Investment Co., Ltd. (collectively, “PDSTI”), pursuant to which PDSTI will purchase approximately $5.0 million of the Company’s common stock. Under the PDSTI Agreement, on March 24, 2016, the Company issued 1,754,385 shares of its common stock to PDSTI in a private placement at a purchase price of $2.85 per share. Pursuant to the PDSTI Agreement, the Company agreed to file a registration statement on Form S-3 to provide registration rights to PDSTI in respect of the shares. The SEC declared the registration statement effective on June 3, 2016. The PDSTI Agreement provided that if the registration statement was not declared effective by July 7, 2016, the Company would pay to PDSTI, as liquidated damages, 0.4% of the aggregate purchase price on a monthly, prorated basis, until the registration statement was declared effective, with interest on these liquidated damages to accrue at the rate of 1.0% per month until paid in full. With the declaration of effectiveness, the Company has deemed this loss contingency to be remote and as such has not recorded a liability as of June 26, 2016. In the event that any U.S. governmental body or agency takes any action or issues any order within six months that would prevent PDSTI from holding the shares or invalidates the Company’s issuance of the shares to PDSTI, the Company has agreed to return PDSTI’s full purchase price, plus 0.4% interest on the purchase price (accruing monthly until paid in full), and to reimburse PDSTI’s expenses in connection with negotiating the private placement, up to $15,000. As a result of this contingent redemption clause, the net proceeds of $4.6 million are classified outside permanent equity until the contingency is resolved. Common and Preferred Stock In December 2008, the Company’s stockholders approved an amendment to the Certificate of Incorporation to authorize 50,000,000 shares of common stock of par value $0.001. In November 2014, the Company’s stockholders approved an amendment to the Amended and Restated Certificate of Incorporation to increase the number of authorized shares of common stock from 50,000,000 shares to 100,000,000 shares of par value $0.001. In addition, the Company is authorized to issue 1,000,000 shares of preferred stock of $0.001 par value of which 750,000 shares have been designated Series A Junior Preferred Stock with powers, preferences and rights as set forth in the amended and restated certificate of designation dated December 15, 2014; the remainder of the shares of preferred stock are undesignated, for which the Board of Directors is authorized to fix the designation, powers, preferences and rights. As of June 26, 2016 and December 31, 2015, there were no shares of preferred stock issued or outstanding. On December 16, 2014, the Company entered into an Amended and Restated Rights Agreement to extend the expiration date of its stockholder rights plan that may have the effect of deterring, delaying, or preventing a change in control. The Amended and Restated Rights Agreement amends the Rights Agreement previously adopted by (i) extending the expiration date by three years to December 16, 2017, (ii) decreasing the exercise price per right issued to stockholders pursuant to the stockholder rights plan from $8.50 to $5.25, and (iii) making certain other technical and conforming changes. The Amended and Restated Rights Agreement was not adopted in response to any acquisition proposal. Under the rights plan, the Company issued a dividend of one preferred share purchase right for each share of common stock held by stockholders of record as of January 6, 2012, and the Company will issue one preferred stock purchase right to each share of common stock issued between January 6, 2012 and the earlier of either the rights’ exercisability or the expiration of the Rights Agreement. Each right entitles stockholders to purchase one one-thousandth of the Company’s Series A Junior Preferred Stock. In general, the exercisability of the rights to purchase preferred stock will be triggered if any person or group, including persons knowingly acting in concert to affect the control of the Company, is or becomes a beneficial owner of 10% or more of the outstanding shares of the Company’s common stock after the Adoption Date. Stockholders or beneficial ownership groups who owned 10% or more of the outstanding shares of common stock of the Company on or before the Adoption Date will not trigger the preferred share purchase rights unless they acquire an additional 1% or more of the outstanding shares of the Company’s common stock. Each right entitles a holder with the right upon exercise to purchase one one-thousandth of a share of preferred stock at an exercise price that is currently set at $5.25 per right, subject to purchase price adjustments as set forth in the rights agreement. Each share of preferred stock has voting rights equal to one thousand shares of common stock. In the event that exercisability of the rights is triggered, each right held by an acquiring person or group would become void. As a result, upon triggering of exercisability of the rights, there would be significant dilution in the ownership interest of the acquiring person or group, making it difficult or unattractive for the acquiring person or group to pursue an acquisition of the Company. These rights expire in December of 2017, unless earlier redeemed or exchanged by the Company. 2008 Equity Incentive Plan In December 2008, the Company adopted the 2008 Equity Incentive Plan (the “2008 Plan”) for directors, employees, consultants and advisors to the Company or its affiliates. Under the 2008 Plan, 2,500,000 shares of common stock were reserved for issuance upon the completion of a merger with Lumera Corporation (“Lumera”) on December 9, 2008. On January 1 of each year, starting in 2009, the aggregate number of shares reserved for issuance under the 2008 Plan increase automatically by the lesser of (i) 5% of the number of shares of common stock outstanding as of the Company’s immediately preceding fiscal year, or (ii) a number of shares determined by the Board of Directors. The maximum number of shares of common stock to be granted as incentive stock options (“ISOs”) and non-qualified stock options (“NSOs”) is up to 21,000,000 shares. Forfeited options or awards generally become available for future awards. As of December 31, 2015, the stockholders had approved 18,280,238 shares for future issuance. As of June 26, 2016, 12,230,527 options to purchase common stock and restricted stock units (“RSUs”) were outstanding and 2,026,448 shares are authorized for future issuance under the 2008 equity incentive plan. Under the 2008 Plan, the exercise price of a stock option is at least 100% of the stock’s fair market value on the date of grant, and if an ISO is granted to a 10% stockholder at least 110% of the stock’s fair market value on the date of grant. Vesting periods for awards are recommended by the Chief Executive Officer, and approved by the Board of Directors or its Compensation Committee and generally provide for stock options to vest over a four-year period, with a one year vesting cliff of 25%, and have a maximum life of ten years from the date of grant. The Company has also been issuing RSUs which generally vest over a period range from nine months to four years. 2007 Equity Incentive Plan In August 2007, the Company adopted the 2007 Equity Incentive Plan (the “2007 Plan”). The 2007 Plan provided for grants of options to purchase membership units, membership awards and restricted membership units to employees, officers and non-employee directors, and upon the completion of the merger with Lumera were converted into grants of up to 632,500 shares of common stock. Vesting periods are determined by the Board of Directors and generally provide for stock options to vest over a four-year period and expire ten years from date of grant. Vesting for certain shares of restricted stock is contingent upon both service and performance criteria. The 2007 Plan was terminated upon the completion of merger with Lumera on December 9, 2008 and the remaining 864 shares of stock options not granted under the 2007 Plan were cancelled. No shares of the Company’s common stock remain available for issuance of new grants under the 2007 Plan other than for satisfying exercises of stock options granted under this plan prior to its termination. As of June 26, 2016, options to purchase a total of 333,825 shares of common stock and 4,125 warrants to purchase common stock were outstanding. Lumera 2000 and 2004 Stock Option Plan In December 2008, in connection with the merger with Lumera, the Company assumed the existing Lumera 2000 Equity Incentive Plan and the Lumera 2004 Stock Option Plan (the “Lumera Plan”). All unvested options granted under the Lumera Plan were assumed by the Company as part of the merger. All contractual terms of the assumed options remain the same, except for the converted number of shares and exercise price based on merger conversion ratio of 0.125. As of June 26, 2016, no additional options can be granted under the Lumera Plan, and options to purchase a total of 40,436 shares of common stock were outstanding. Warrants As of June 26, 2016, the Company had a total of 161,554 warrants to purchase common stock outstanding under all warrant arrangements. During the six months ended June 26, 2016, no warrants were exercised or expired. Some of the warrants have anti-dilution provisions which adjust the number of warrants available to the holder such as, but not limited to, stock dividends, stock splits and certain reclassifications, exchanges, combinations or substitutions. These provisions are specific to each warrant agreement. Stock-based Compensation Expense The following table summarizes the Company’s stock-based compensation expense for the three and six months ended June 26, 2016 and June 28, 2015 (in thousands): Three Months Ended Six Months Ended June 26, 2016 June 28, 2015 June 26, 2016 June 28, 2015 Cost of revenue $ 72 $ 139 $ 158 $ 221 Research and development expense 279 362 602 609 Selling, general and administrative expense 722 799 1,598 1,359 $ 1,073 $ 1,300 $ 2,358 $ 2,189 The Company did not grant any options during the three or six months ended June 26, 2016 and June 28, 2015. Stock Options The following table summarizes option activities under the Company’s equity incentive plans for the six months ended June 26, 2016: Options Weighted- Average Exercise Price Weighted-Average Remaining Contractual Term Aggregate Intrinsic Value (in years) (in thousands) Outstanding—December 31, 2015 7,918,584 $ 2.32 4.82 $ 7,422 Granted — — Exercised (383,856 ) 1.67 $ 457 Forfeited/Expired (36,594 ) 14.87 Outstanding—June 26, 2016 7,498,134 $ 2.29 4.30 $ 1,755 Vested and exercisable and expected to vest, June 26, 2016 7,492,492 $ 2.29 4.30 $ 1,749 Vested and exercisable, June 26, 2016 7,414,507 $ 2.31 4.27 $ 1,672 The aggregate intrinsic value reflects the difference between the exercise price of stock options and the fair value of the underlying common stock as determined by the Company’s closing stock price. As of June 26, 2016, the unrecognized stock-based compensation cost related to stock options, net of estimated forfeitures, was $45,000, which is expected to be recognized over a weighted-average period of 0.8 years. RSUs The following table summarizes RSU activities under the Company’s equity incentive plans for the six months ended June 26, 2016: Number of Shares Weighted- Average Grant Date Fair Value Weighted- Average Remaining Vesting Term, Years Aggregate (In thousands) Unvested balance—December 31, 2015 4,361,833 $ 1.64 2.86 $ 13,260 Granted 2,089,623 2.94 Released (1,001,985 ) 2.64 Forfeited/expired (342,817 ) 1.88 Unvested balance—June 26, 2016 5,106,654 $ 2.13 9.04 $ 9,484 As of June 26, 2016, the unrecognized stock-based compensation cost related to RSUs, net of estimated forfeitures, was $9.5 million, which is expected to be recognized over a weighted-average period of 2.9 years. The majority of the RSUs that vested in the six months ended June 26, 2016 were net-share settled such that the Company withheld shares with value equivalent to the employees’ minimum statutory obligation for the applicable income and other employment taxes, and remitted the cash to the appropriate taxing authorities. The total shares withheld were based on the value of the RSUs on their vesting date as determined by the Company’s closing stock price. These net-share settlements had the effect of share repurchases by the Company as they reduced and retired the number of shares that would have otherwise been issued as a result of the vesting and did not represent an expense to the Company. For the six months ended June 26, 2016, 1,001,985 shares of RSUs vested and the Company withheld 395,000 shares to satisfy approximately $1,049,000 of employees’ minimum tax obligation on the vested RSUs. |