Equity | Our certificate of incorporation, as amended and restated on December 20, 2019 (the “ Charter On December 19, 2019, the Company held its Annual Meeting of Stockholders (the “ 2019 Annual Meeting Reverse Split Common Stock The Company had 28,502,850 and 26,800,519 shares of its Common Stock issued and outstanding at June 30, 2020 and December 31, 2019, respectively. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on all matters submitted to a vote of the stockholders. Our Charter and Amended and Restated Bylaws (the “ Bylaws In addition, the holders of our Common Stock will be entitled to receive ratably such dividends, if any, as may be declared by the Board out of legally available funds; however, the current policy of our Board is to retain earnings, if any, for operations and growth. Upon liquidation, dissolution or winding-up, the holders of our Common Stock will be entitled to share ratably in all assets that are legally available for distribution. Holders of our Common Stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the Common Stock. The rights, preferences and privileges of the holders of Common Stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future. Preferred Stock We have 10,000,000 shares of preferred stock, par value $0.0001 per share, authorized and available for issuance in one or more series. The Board is authorized to divide the preferred stock into any number of series, fix the designation and number of each such series, and determine or change the designation, relative rights, preferences, and limitations of any series of preferred stock. The Board of may increase or decrease the number of shares initially fixed for any series, but no decrease may reduce the number below the shares then outstanding and duly reserved for issuance. As of June 30, 2020, no series of preferred stock were issued and outstanding. On July 16, 2020, we authorized 5,194.805195 shares as Series B Preferred Stock and issued 2,912.583005 shares of Series B Preferred Stock (See Note 1), with 2,282.222190 shares of Series B Preferred Stock remaining authorized but unissued. Following such transactions, we currently have 2,912.583005 shares of preferred stock issued and outstanding with 9,997,087.416995 shares of preferred stock remaining authorized but unissued. 2014 Equity Incentive Plan The Company’s Board and stockholders adopted and approved the Amended and Restated 2014 Omnibus Equity Incentive Plan (the “ 2014 Plan As Converted Shares The Company issued an aggregate of 795,006 and 0 stock options, during the six months ended June 30, 2020 and 2019, respectively, under the 2014 Plan (see Note 13). As of June 30, 2020, there were an aggregate of 4,367,806 total shares available under the 2014 Plan, of which 2,272,506 are issued and outstanding, 387,000 shares are reserved subject to issuance of restricted stock and RSUs and 1,708,300 shares are available for potential issuances. The Company may issue securities outside of the 2014 Plan. Equity Line with Lincoln Park On November 13, 2019, the Company entered into a purchase agreement (the “ Equity Line Agreement Lincoln Park Registration Rights Agreement Equity Line Commitment Shares Under the Equity Line Agreement, on any business day over the term of the Equity Line Agreement, the Company has the right, in its sole discretion, to present Lincoln Park with a purchase notice (each, a “ Purchase Notice Regular Purchase Purchase Price ● the lowest sale price of Common Stock on the purchase date; and; ● the average of the three lowest closing sale prices for the Common Stock during the ten consecutive business days ending on the business day immediately preceding the purchase date of such shares; In addition, on any date on which the Company submits a Purchase Notice to Lincoln Park, the Company also has the right, in its sole discretion, to present Lincoln Park with an accelerated purchase notice (each, an “ Accelerated Purchase Notice Accelerated Purchase Accelerated Purchase Measurement Period ● 97% of the volume weighted average price of the Company’s common stock during the applicable Accelerated Purchase Measurement Period on the applicable Accelerated Purchase date; and ● the closing sale price of Common Stock on the applicable Accelerated Purchase Date. The Company may also direct Lincoln Park on any business day on which an Accelerated Purchase has been completed and all of the shares to be purchased thereunder have been properly delivered to Lincoln Park in accordance with the Equity Line Agreement, to purchase an amount of stock (the “ Additional Accelerated Purchase Additional Accelerated Purchase Measurement Period ● 97% of the volume weighted average price of the Company’s common stock during the applicable Additional Accelerated Purchase Measurement Period on the applicable Additional Accelerated Purchase date; and ● the closing sale price of Common Stock on the applicable Additional Accelerated Purchase. During the six months ended June 30, 2020, the Company issued an aggregate of 1,495,199 shares of Common Stock in connection with the Equity Line Agreement, resulting in net proceeds to the Company of approximately $988,348. Pursuant to the terms of the Equity Line Agreement, without first obtaining stockholder approval, the aggregate number of shares that the Company is permitted to sell to Lincoln Park thereunder, when aggregated with certain other private offerings of Common Stock, as applicable, may not exceed 19.99% of the Common Stock outstanding immediately prior to the execution of the Equity Line Agreement on November 13, 2019, unless the average price of all applicable sales thereunder exceeds $0.70 per share calculated by reference to the “Minimum Price” under Nasdaq Listing Rule 5635(d). As part of its discussions with the Staff of Nasdaq relating to certain remediation actions described in Note 1, the Company has clarified that, as of July 23, 2020, 2,118,389 additional shares of Common Stock remained available to be sold below such thresholds. Common Stock Issuances During the three months ended June 30, 2020, the Company did not issue any shares of its Common Stock to consultants or outside Board members. During the six months ended June 30, 2020, the Company issued an aggregate of 101,195 shares of its Common Stock to consultants with a total grant date fair value of approximately $87,105 for services provided, that was recorded was recorded as stock-based compensation, included as part of general and administrative expense. During the six months ended June 30, 2020, the Company issued an aggregate of 105,937 shares of its Common Stock to outside Board members as payment of Board fees with an aggregate grant date fair value of approximately $131,137 that was recorded as stock-based compensation, included as part of general and administrative expense. The aggregate effective settlement price was $1.24 per share, and each individual stock issuance was based on the closing stock price of the Common Stock on the initial date the payable was accrued. During the three and six months ended June 30, 2019, the Company issued 13,379 and 40,481 shares of Common Stock, respectively, to an investor relations consultant as payment of $30,000 and $90,000, respectively, of accounts payable. During the three and six months ended June 30, 2019, the Company issued an aggregate of 30,000 and 60,000 shares of its Common Stock, respectively, to outside Board members as payment of Board fees with an aggregate grant date fair value of approximately $51,000 and $123,000, respectively that was recorded as stock-based compensation, included as part of general and administrative expense. During the period from April 6, 2020 through May 22, 2020, the Company sold an aggregate of 1,345,199 shares of Common Stock pursuant to the Equity Line, from which the Company derived approximately $869,000 in net proceeds. The sales of these shares were exempt from registration under the Securities Act of 1933, as amended, in reliance upon Section 4(a)(2) (or Regulation D promulgated thereunder). Restricted Stock and Restricted Stock Units Restricted stock refers to shares of Common Stock subject to vesting based on certain service, performance, and market conditions. Restricted stock unit awards (“ RSUs During the three months ended June 30, 2020, an aggregate of 2,917 unvested restricted shares of Common Stock, subject to service conditions, vested with a total grant date fair value of approximately $10,500 and was recorded as stock-based compensation, included as part of general and administrative expense. During the six months ended June 30, 2020, an aggregate of 8,334 unvested restricted shares of Common Stock, subject to service conditions, vested with a total grant date fair value of approximately $30,008 and was recorded as stock-based compensation, included as part of general and administrative expense. During the three and six months ended June 30, 2020, an aggregate of 4,000 unvested restricted shares of Common Stock were forfeited. During the three months ended June 30, 2019, an aggregate of 47,084 unvested restricted shares of Common Stock vested with a total grant date fair value of approximately $146,169. 33,334 of these restricted shares with a total grant date fair value of approximately $101,335 vested during the three months ended June 30, 2019 due to the Company achieving certain clinical milestones. 13,750 of these restricted shares with a total grant date fair value of approximately $44,834 vested during the three months ended June 30, 2019 due to the satisfacation of service conditions. During the six months ended June 30, 2019, an aggregate of 119,667 unvested restricted shares of Common Stock vested with a total grant date fair value of approximately $369,854. 92,167 of these restricted shares with a total grant date fair value of approximately $280,188 vested during the six months ended June 30, 2019 due to the Company achieving certain clinical milestones. 27,500 of these restricted shares with a total grant date fair value of approximately $89,666 vested during the six months ended June 30, 2019 due to the satisfaction of service conditions. As of June 30, 2020, the Company had unrecognized restricted common stock expense of approximately $399,531. Approximately $6,281 of this unrecognized expense will be recognized over the average remaining vesting term of 0.15 years. Approximately $196,625 of this unrecognized expense vests upon the first commercial sale in the United States of MS1819 and approximately $196,625 of this unrecognized expense vests upon the total market capitalization of the Company exceeding $1.0 billion for 20 consecutive trading days. These milestones were not considered probable at June 30, 2020. As of June 30, 2019, the Company had unrecognized restricted common stock expense of approximately $292,359 that will be recognized over the average remaining vesting term of 1.80 years. 80 years. |