SECURED CONVERTIBLE NOTES, WARRANTS AND FINANCING AGREEMENTS | NOTE 7 — SECURED CONVERTIBLE NOTES, WARRANTS AND FINANCING AGREEMENTS 2013 AAOF, Knox and XGS II Financings On March 18, 2013 we entered into a series of agreements with our former Chief Executive Officer, Michael R. Knox and two private funds: Aspen Advance Opportunity Fund, LP (“AAOF”) and XGS II, LLC (“XGS II”). These agreements were amended and restated on July 12, 2013 to provide for expanded financing commitments from AAOF and XGS II. Under these agreements, they agreed to provide financing to the Company in the form of Secured Convertible Notes and a provision that a portion of the AAOF funding could be funded under lease financing arrangements. AAOF had a financing commitment of a minimum of $6 million and, at the option of AAOF, a maximum of $10 million, of which a maximum of $3 million could be provided in the form of lease financing. XGS II agreed to provide a minimum of $250,000 and, at the option of XGS II, a maximum of $750,000. The agreements provided for Mr. Knox to lend the Company $700,000, to be funded by converting advances he had made under a revolving line of credit. All of the funding with the exception of the Knox financing, was scheduled according to minimum financing commitments on calendar dates ranging from the time the agreements were executed to a period of eighteen months into the future. With the exception of any lease financing, the financings provided by Knox, AAOF, and XGS II takes the form of Secured Convertible Notes with identical terms and provisions. On January 15, 2014, we consolidated the Secured Convertible Notes issued in 2013 to AAOF and XGS II, together with accrued interest, into a single note for each lender with terms and conditions similar to the original notes. We also increased the XGS II optional funding level to $1 million and extending the optional financing periods for both AAOF and XGS II through the end of 2014. The previously issued Certificate of Designation of Series A Convertible Preferred Stock was also amended to clarify the conditions related to Mandatory Conversion into Common Stock upon listing of the Company’s stock on a Qualified National Exchange and to add a provision that would exempt holders of Series A from future mandatory financing participation. The Secured Convertible Notes issued under these agreements bear interest at 12% per annum and have a due date of March 18, 2018. We had the option to accrue the interest payments through December 31, 2014 and add it to the principal of the notes. After December 31, 2014, the note holder had the option of receiving ongoing interest payments: 1) in cash; 2) in the form of Series A Preferred Stock at a price per share equal to the then-effective Series A Original Issue Price ($12 per share); 3) in the form of any other series of Preferred Stock outstanding at the time interest is due; or 4) they could elect to accrue the interest and add it to the balance of the Note. Beginning January 1, 2015, Mr. Knox chose to receive ongoing interest payments in cash, while all other note holders continue to have interest accrued and added to the balance of their Notes. These Notes are secured by all of the assets, both tangible and intangible, of the Company. Further, they are convertible into Series A Preferred Stock, at the option of the holder at a conversion price of $12 per share. The embedded conversion feature in the Secured Convertible Notes was analyzed under ASC 815 to determine if it achieved equity classification or required bifurcation as a derivative instrument. The Company’s common stock is not publicly traded so there is no mechanism outside the notes that would permit the holder to achieve net settlement and the underlying shares are not readily convertible to cash. Accordingly, the embedded conversion feature does not meet the definition of a derivative, and therefore, does not require bifurcation from the host instrument. Certain default put provisions were not considered to be clearly and closely related to the host instrument but we concluded that the value of these default put provisions was de minimus In conjunction with the sale of the Secured Convertible Notes to AAOF and XGS II, Stock Warrants to purchase an aggregate of 447,916 shares of Series A Preferred Stock were issued that vest as the financing occurs at a rate of one Stock Warrant for every $24.00 funded. On January 15, 2014, we exchanged the existing warrants for new warrants to purchase 916,666 shares of Series A Preferred Stock. In accordance with the terms of the amendment, the previously-issued Stock Warrants associated with these financings vest as the financings occur at a rate of one Stock Warrant for every $12.00 funded. The Stock Warrants have an exercise price of $12.00 per share and are indexed to Series A Preferred Stock which contains a feature that requires adjustment of the exercise price of the Preferred Stock if the Company issues any Common Stock or common stock equivalents for a price less than the exercise price in effect immediately before the issuance. The Stock Warrants expire on the earlier of i) March 18, 2023 or ii) the acquisition of the Company by another entity. The Stock Warrants required derivative liability accounting because the conversion price reset protection terms in the underlying Series A Preferred Stock was not consistent with the definition for financial instruments indexed only to a company’s own stock. As such, they are required to be marked to fair value each reporting period. After recording the Stock Warrants at fair value, a determination was made as to whether, in accordance with ASC 470, there was a BCF associated with the Secured Convertible Notes. A BCF is a non-detachable conversion feature that is in-the-money at the commitment date. An option is in-the-money if its effective conversion price is less than the current fair value of the share. For purposes of measuring a BCF, the effective conversion price is based on the proceeds allocated to the convertible debt instrument after considering allocations to detachable warrants. The cash proceeds from the AAOF and XGS II financings were allocated first to the derivative liabilities resulting from the Stock Warrants, at their fair values, then to the beneficial conversion feature, with the residual allocated to the host debt contracts. The amount allocated to the derivative liabilities and the BCF was recorded as a discount on the Secured Convertible Notes and was being amortized to interest expense over the remaining term of the notes using the effective interest method. As of December 31, 2015, AAOF and XGS II had purchased $10,000,000 of secured convertible notes and also provided $1,026,091 in equipment lease financing. Because the lease commitments exceed the $1,000,000 initial commitment by $26,091, AAOF increased the maximum potential funding from $11,000,000 to $11,026,091. All 833,332 Stock Warrants issued in conjunction with the Secured Convertible Notes and all 83,334 Stock Warrants issued in conjunction with the lease commitments, were vested as of December 31, 2015. No payments were made on the secured convertible notes and as mentioned in further detail below, on December 31, 2015, the AAOF and XGS II Notes were converted into Series A Preferred Stock. 2014 Samsung Financing and Warrants On January 15, 2014, we sold $3,000,000 of Secured Convertible Notes to SVIC No. 15 New Technology Business Investment L.L.P, a subsidiary of the Samsung Group (“Samsung”). These notes had terms and conditions that were substantially similar to those previously issued to Knox, AAOF, and XGS II. In connection with the sale of the notes, the Company issued to Samsung a total of 100,000 Stock Warrants with a term of 4 years that are exercisable into shares of Series A Preferred Stock at a price of $12.00. These Stock Warrants vest in four installments on the first, second, third and fourth anniversary of the issuance of the Stock Warrants according to the following formula: On each anniversary, the warrant vests according to the ratio of total Samsung payments to us during the previous twelve-month period divided by 250. Thus, the warrants will vest proportionately in relation to the first $25 million, or fraction thereof, that Samsung pays, in cash, to us over the four years beginning January 15, 2014. Samsung payments are defined as future total cash payments, including licensing, royalties and product purchases but not joint development or purchase of Secured Convertible Notes. As of December 31, 2016, no payments had been made by Samsung and none of the Stock Warrants associated with the Samsung note had vested. If and when Samsung provides funding to the Company in the future, the Stock Warrants will be measured at fair value and expensed at that time. Conversion of Secured Convertible Notes In conjunction with the Series B Private Placement, the holders of the Secured Convertible Notes agreed to convert their notes into Series A Preferred Stock upon the earlier of i) the Company raising at least $12 million through the sale of securities or ii) December 31, 2015, contingent on the Company raising at least $2 million through the sale of securities by that date. All the Secured Convertible Note agreements converted into shares of Series A Preferred Stock on December 31, 2015 in accordance with the terms of the agreements. The following table reflects the outstanding balances of the Notes on the date of conversion: AAOF XGS II KNOX SAMSUNG Total Face value of notes at issuance $ 9,000,000 $ 1,000,000 $ 700,000 $ 3,000,000 $ 13,700,000 Accrued interest on face value 2,520,232 310,068 166,721 776,519 3,773,540 Amount due – December 31, 2015 $ 11,520,232 $ 1,310,068 $ 866,721 $ 3,776,519 $ 17,473,540 Shares of Series A Convertible Preferred Stock Issued 960,019 109,172 72,226 314,709 1,456,126 On conversion, the fair value of the notes and accrued interest was credited to the capital accounts. The remaining unamortized discount of approximately $5.1 million was recorded as interest expense. Total interest expense of $ $7,154,905 was recognized for the year ended December 31, 2015. Bridge Financings From December 31, 2015 through April 7, 2016, we entered into private placement bridge financings, executed using15 separate short-term promissory notes totaling $1,124,750 (the “Bridge Financings”). Seven of these notes were executed by three board members. The Bridge Financings had maturity dates ranging from June 30, 2016 through December 31, 2016 and the interest rate was 8% The investors in the Bridge Financings received common stock warrant coverage of 30% for investments made prior to December 31, 2015 with an exercise price of $8.00 per share, and 20% coverage thereafter with an exercise price of $10.00 per share. The Company issued warrants indexed to 32,120 shares of common stock with a five year term and an exercise price of $8.00 per share. During the period from closing of the offering and ending on the earlier of i) December 31, 2017 and ii) the date the Company consummates the sale of new securities resulting in gross proceeds of at least $18 million, the warrant holders have the right to exchange their Warrants on a price per share basis into the new security on the relative price per share terms as the new securities are sold to the third party. Due to the Exchange Rights, the Warrants did not meet the conditions for equity classification and require classification as liabilities at fair value. The proceeds of the financing were allocated first to the derivative liabilities resulting from the Stock Warrants, at their fair value, with the residual allocated to the debt instrument as follows: 2015 2016 Total Derivative liabilities- warrants $ 52,676 $ 550,691 $ 603,367 Bridge Financing Notes 497,324 24,059 521,383 Total allocated proceeds $ 550,000 $ 574,750 $ 1,124,750 During June 2016, we repaid i) outstanding principal of $750,000 plus accrued interest of $27,032 to the Bridge Financing investors. These investors, who are also members of the board of directors of the Company, used the proceeds from repayment of their notes, plus additional funds, to purchase 199,879 additional shares of the Company’s common stock for approximately $1.6 million . During December 2016, we repaid the remaining $374,750 of outstanding principal plus accrued interest of $21,253. Members of the board of directors and their affiliates provided $800,000 of the principal for such Bridge Financings, and upon repayment they re-invested all of the principal plus an additional $1,013,032 to purchase 226,629 shares of the Company’s common stock. Dow Loan In December 2016, we entered into a draw loan note and agreement (the “Dow Loan”) with The Dow Chemical Company (“Dow”) to provide up to $10 million of secured debt financing to the Company at an interest rate of 5% per year, drawable at our request under certain conditions. We received $2 million at closing, with $3 million in additional funding available on or before December 1, 2017. After December 1, 2017, an additional $5 million becomes available if we have raised $10 million of equity capital after October 31, 2016. The Dow Loan is senior to most of our other debt, and is secured by the Company’s assets (Dow is subordinate only to the capital leases with AAOF, see note 13). The loan does not mature until December 1, 2021, (subject to certain mandatory prepayments based on our equity financing activities). Interest is payable beginning January 1, 2017 although we may elect to capitalize interest through January 1, 2019. Dow will receive warrant coverage of one share of common stock for each $40 received by the Company, equating to 20% warrant coverage, with an exercise price of $8.00 per share for the warrants issued at closing with the exercise price of future warrants subject to adjustment if the Company sells shares of common stock at a lower price. As of December 31, 2016, we issued 50,000 warrants to Dow which are exercisable on or before the expiration date of December 1, 2023. The warrants meet the criteria for classification within stockholders’ equity. The fair value of the warrants was determined using a lattice model with the following inputs: Stock price $7.63, strike price $8.00, equivalent volatility 38.38%, equivalent risk free rate 1.53%. The relative fair value of the warrants totaled approximately $143,146 which was recorded as a debt discount and is being amortized to interest expense over the life of the loan. During the fiscal year ended December 31, 2016, amortization expense of $5,266 was recognized resulting in a carrying value of $1,862,120 for the Dow Loan as of December 31, 2016. The Loan entitles Dow to appoint an observer to the Company’s board of directors. They will maintain their observation right until the later of December 1, 2019 or when the amount of principal and interest outstanding under the Loan is less than $5 million. |