Stockholders' Equity | Note 8. Stockholders’ Equity Preferred Stock The Restated Certificate of Incorporation, as amended, of the Company permits its board of directors to issue up to 5,000,000 shares of preferred stock, par value $0.01 per share, in one or more series, to designate the number of shares constituting such series, and fix by resolution, the powers, privileges, preferences and relative, optional or special rights thereof, including liquidation preferences and dividends, and conversion and redemption rights of each such series. As of December 31, 2020, the Company has designated the following class of preferred stock: ● Series A: 1,500,000 authorized shares of Series A Convertible Preferred Stock ● Series B1: 277,921 authorized shares of Series B1 Redeemable Convertible Preferred Stock ● Series B2: 98,685 authorized shares of Series B2 Redeemable Convertible Preferred Stock ● Series B3: 82,814 authorized shares of Series B3 Redeemable Convertible Preferred Stock ● Series B4: 82,814 authorized shares of Series B4 Redeemable Convertible Preferred Stock Series A Convertible Preferred Stock . The dividends on the Series A convertible preferred stock (“Series A Preferred Stock”) are payable semi-annually in arrears at the rate of 1% per annum, at the election of the Company, either in cash or additional duly designated, fully paid and nonassessable shares of Series A Preferred Stock. In the event of liquidation, dissolution or winding up of the Company, after payment of debts and other liabilities of the Company, the holders of the Series A Preferred Stock then outstanding will be entitled to a distribution of $1 per share out of any assets available to shareholders. The Series A Preferred Stock is non-voting. All remaining shares of Series A Preferred Stock rank, as to payment upon the occurrence of any liquidation event, senior to the Company’s common stock. Shares of Series A Preferred Stock are convertible, in whole or in part, at the option of the holder into fully paid and nonassessable shares of common stock at $272.00 per share, subject to adjustment. As of December 31, 2020 and 2019, there were 655 shares of Series A Preferred Stock outstanding. Series B1, B2, B3 and B4 Convertible Preferred Stock . Holders of Series B1 Preferred Stock, Series B2 Preferred Stock, Series B3 Preferred Stock and Series B4 Preferred Stock (collectively, the “B1/B2/B3/B4 Preferred Stock”) are entitled to the amount of dividends, if and when declared, as would be payable to holders of common stock on an “as converted” basis (e.g. participating dividends). Until the applicable Transition Date (defined below), in the event of a liquidation event or deemed liquidation event, after payment of debts and other liabilities of the Company, the holders of the Series B1/B2/B3/B4 Preferred Stock then outstanding will be entitled to a distribution equal to the then applicable stated value per share of the Series B1/B2/B3/B4 Preferred Stock. Additionally, until the applicable Transition Date (defined below), at any time on or after the date that is the fifth (5th) anniversary of the initial issue date of the applicable series of preferred stock, all or any portion of the preferred stock is redeemable at the option of the holder at a redemption price of $152.00 per share (for Series B1 and Series B2 Preferred Stock) and $182.00 per share (for Series B3 and Series B4 Preferred Stock). The “Transition Date” means: a) With respect to the Series B1 Preferred Stock, the first date following December 23, 2021, on which each of the Conditions (as defined below) is met (the “Series B1 Transition Date”); and b) With respect to the Series B2 Preferred Stock, Series B3 Preferred Stock and Series B4 Preferred Stock, the first date following the two-year anniversary of the applicable series of preferred stock’s initial issue date, on which each of the Conditions (as defined below) is met (the “Series B2 Transition Date”). Note 8. Stockholders’ Equity (Continued) The “Conditions” shall mean: (a) the closing price of the Company’s common stock has been equal to or exceeded the price that is equal to three times (3x) the applicable series of preferred stock’s conversion price ( $1.52 for Series B1 Preferred Stock and B2 Preferred Stock; $1.82 for Series B3 Preferred Stock and Series B4 Preferred Stock) for 180 calendar days; (b) the 50 -day average trading volume of the Company’s common stock is greater than 500,000 shares (subject to adjustment for any stock dividend, stock split, stock combination or other similar transaction); and (c) the presentation by the Company at an appropriate medical conference of the “Overall Survival” data as defined in its ILLUMINATE-301 study protocol. The Series B1/B2/B3/B4 Preferred Stock is non-voting and rank, as to payment upon the occurrence of any liquidation event, senior to the Company’s common stock. Shares of Series B1 Preferred Stock and Series B2 Preferred Stock are convertible, in whole or in part, at the option of the holder into fully paid and nonassessable shares of common stock at $1.52 per share, subject to adjustment. Shares of Series B3 Preferred Stock and Series B4 Preferred Stock are convertible, in whole or in part, at the option of the holder into fully paid and nonassessable shares of common stock at $1.82 per share, subject to adjustment. As more fully described in Note 7, the Company’s outstanding Series B1 Preferred Stock is classified in temporary equity, outside of stockholders’ equity as of December 31, 2020 and 2019. No shares of Series B2 Preferred Stock, Series B3 Preferred Stock or Series B4 Preferred Stock were outstanding as of December 31, 2020 and 2019. Common Stock Common Stock Authorized On May 12, 2020, the Company’s stockholders approved the Charter Amendment. Also, on May 12, 2020, following stockholder approval, the Company filed the Charter Amendment with the Secretary of State of the State of Delaware As of December 31, 2020, the Company had 140,000,000 shares of common stock authorized of which 35,750,149 shares of common stock were reserved for the issuance upon the exercise of outstanding warrants and options to purchase common stock, outstanding restricted stock units, the conversion of Series A and Series B1 convertible preferred stock, shares required to be reserved under the LPC Purchase Agreement (defined below), and shares available for grant under the Company’s 2013 Stock Incentive Plan and shares available for purchase under the Company’s 2017 Employee Stock Purchase Plan. Put Shares Pursuant to the terms of a unit purchase agreement dated as of May 5, 1998, the Company issued and sold a total of 149,960 shares of common stock (the “Put Shares”) at a price of $128.00 per share. Under the terms of the unit purchase agreement, the initial purchasers (the “Put Holders”) of the Put Shares have the right (the “Put Right”) to require the Company to repurchase the Put Shares. The Put Right may not be exercised by any Put Holder unless: (1) the Company liquidates, dissolves or winds up its affairs pursuant to applicable bankruptcy law, whether voluntarily or involuntarily; (2) all of the Company’s indebtedness and obligations, including without limitation the indebtedness under the Company’s then outstanding notes, has been paid in full; and (3) all rights of the holders of any series or class of capital stock ranking prior and senior to the common stock with respect to liquidation, including without limitation the Series A convertible preferred stock, have been satisfied in full. The Company may terminate the Put Right upon written notice to the Put Holders if the closing sales price of its common stock exceeds $256.00 per share for the twenty consecutive trading days prior to the date of notice of termination. Because the Put Right is not transferable, in the event that a Put Holder has transferred Put Shares since May 5, 1998, the Put Right with respect to those shares has terminated. As a consequence of the Put Right, in the event the Company is liquidated, holders of shares of common stock that do not have Put Rights with respect to such shares may receive smaller distributions per share upon the liquidation than if there were no Put Rights outstanding. As of December 31, 2020, the Company has repurchased or received documentation of the transfer of 49,993 Put Shares and 4,472 of the Put Shares continued to be held in the name of Put Holders. The Company cannot determine at this time what portion of the Put Rights of the remaining 95,494 Put Shares have terminated. Note 8. Stockholders’ Equity (Continued) Equity Financings April 2020 Private Placement On April 7, 2020, the Company entered into a Securities Purchase Agreement (as amended to date, the “April 2020 Securities Purchase Agreement”) with Pillar Partners Foundation, L.P. (“Pillar Partners”), a related party as more fully described in Note 16, providing for the sale of securities in two closings exempt from the registration requirements of the Securities Act. Concurrent with the consummation of the April 2020 Securities Purchase Agreement, the Company issued and sold to Pillar Partners, for $5.0 million of aggregate consideration (the “April 2020 Private Placement First Closing”), (i) 3,039,514 shares of common stock and (ii) warrants to purchase 3,039,514 shares of the Company’s common stock with an exercise price of $2.28 per share. Each share and the accompanying common warrant sold in the April 2020 Private Placement First Closing had a combined purchase price of $1.645 , which included $0.125 for each share of common stock underlying each warrant. On December 11, 2020, the Company entered into an amendment to the April 2020 Securities Purchase Agreement with Pillar Partners and Pillar Pharmaceuticals 6, L.P., a related party (“Pillar 6” and, collectively with Pillar Partners, the “April 2020 Purchasers”), principally to enable Pillar 6 to participate in the Second Closing (as defined below) pursuant to the April 2020 Purchase Agreement. Also on December 11, 2020, the Company issued and sold to the April 2020 Purchasers, for $5.0 million of aggregate consideration (the “April 2020 Private Placement Second Closing”), (i) 69,941 shares of the Company’s common stock, (ii) pre-funded warrants to purchase up to 2,677,311 shares of the Company’s common stock, at an exercise price of $0.01 per share, and (iii) warrants to purchase up to 1,373,626 shares of the Company’s common stock with an exercise price of $2.71 per share. Each share and the accompanying 0.5 common warrant sold in the April 2020 Private Placement Second Closing had a combined purchase price of $1.82 and each pre-funded warrant and the accompanying 0.5 common warrant had a combined purchase price of $1.81 . Through December 31, 2020, net proceeds received pursuant to the April 2020 Securities Purchase Agreement, after deduction of offering expenses, was $9.8 million. All proceeds have been recorded within the Company’s statements of stockholders’ equity (deficit) as all securities issued pursuant to the April 2020 Securities Purchase Agreement were determined to be freestanding equity-classified instruments. July 2020 Private Placement On July 13, 2020, the Company entered into a Securities Purchase Agreement (the “July 2020 Securities Purchase Agreement”) with Pillar Partners, Pillar 6, and Pillar Pharmaceuticals 7 L.P. (“Pillar 7”) (collectively, the “July 2020 Purchasers”), each a related party as more fully described in Note 16, under which the Company issued and sold to the July 2020 Purchasers in a private placement transaction exempt from the registration requirements of the Securities Act, for $5.1 million of aggregate consideration (the “July 2020 Private Placement First Closing”), (i) 749,993 shares of common stock, (ii) pre-funded warrants to purchase up to 2,014,234 shares of common stock, at an exercise price of $0.01 per share, and (iii) warrants to purchase 2,764,227 shares of the Company’s common stock with an exercise price of $2.58 per share. Each share (or pre-funded warrant) and the accompanying common warrant sold in the July 2020 Private Placement First Closing had a combined purchase price of $1.845 , which included $0.125 for each share of common stock underlying each accompanying warrant. In addition, the Company has agreed to sell to the July 2020 Purchasers, at their option, pre-funded warrants to purchase up to 784,615 shares of the Company’s common stock, at an exercise price of $0.01 per share, and warrants to purchase up to 274,615 shares of the Company’s common stock, at an exercise price of $9.75 , for aggregate gross proceeds of $5.1 million (the “July 2020 Private Placement Second Closing”). Each pre-funded warrant and the 0.35 associated common warrant will have a combined purchase price of $6.50 ( $6.45625 per pre-funded warrant plus $0.04375 per 0.35 associated common warrant). The July 2020 Private Placement Second Closing can occur (at the option of the July 2020 Purchasers) on or before the tenth Business Day following the ORR Data Announcement (as defined in the July 2020 Securities Purchase Agreement) and will be held on or before the fifth day following delivery of written notice by the July 2020 Purchasers to the Company. Note 8. Stockholders’ Equity (Continued) Through December 31, 2020, net proceeds received pursuant to the July 2020 Securities Purchase Agreement, after deduction of offering expenses, was $5.0 million. All proceeds have been recorded within the Company’s statements of stockholders’ equity (deficit) as the securities issued pursuant to the July 2020 Securities Purchase Agreement, including the July 2020 Private Placement Second Closing option, were determined to be freestanding equity-classified instruments. Common Stock Purchase Agreement On March 4, 2019, the Company entered into a Purchase Agreement with Lincoln Park Capital Fund, LLC (“Lincoln Park”), which was amended on September 2, 2020 (as amended to date, the “LPC Purchase Agreement”), pursuant to which, upon the terms and subject to the conditions and limitations set forth therein, Lincoln Park has committed to purchase an aggregate of $35.0 million of shares of Company common stock from time to time at the Company’s sole discretion over a 36-month period. As consideration for entering into the LPC Purchase Agreement, the Company issued 269,749 shares of Company common stock to Lincoln Park as a commitment fee (the “Commitment Shares”). The closing price of the Company’s common stock on March 4, 2019 was $2.84 and the Company did not receive any cash proceeds from the issuance of the Commitment Shares. During the years ended December 31, 2020 and 2019, the Company sold 750,000 and 1,535,848 shares, respectively, pursuant to the LPC Purchase Agreement, resulting in net proceeds of $1.7 million and $3.7 million, respectively. As of December 31, 2020, the Company may sell up to an additional $29.5 million of shares under the LPC Purchase Agreement, subject to certain limitations. "At-The-Market" Equity Program In November 2018, the Company entered into a Equity Distribution Agreement (the “ATM Agreement”) with JMP Securities LLC (“JMP”) pursuant to which the Company may issue and sell shares of its common stock having an aggregate offering price of up to $50.0 million (the “Shares”) through JMP as its agent. Subject to the terms and conditions of the ATM Agreement, JMP will use its commercially reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions, by methods deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or if specified by the Company, by any other method permitted by law, including but not limited to in negotiated transactions. The Company has no obligation to sell any of the Shares, and the Company or JMP may at any time suspend sales under the ATM Agreement or terminate the ATM Agreement. JMP is entitled to a fixed commission of 3.0% of the gross proceeds from Shares sold. During the years ended December 31, 2020 and 2019, the Company sold 3,608,713 and 532,700 Shares, respectively, pursuant to the ATM Agreement resulting in net proceeds, after deduction of commissions and other offering expenses, of $12.3 million and $1.6 million, respectively. No Shares were sold pursuant to the ATM Agreement during 2018. As of December 31, 2020, the Company may sell up to an additional $35.4 million of shares under the ATM Agreement. Note 8. Stockholders’ Equity (Continued) Common Stock Warrants In connection with various financing transactions, the Company has issued warrants to purchase shares of the Company’s common stock and preferred stock. The Company accounts for common stock and preferred stock warrants as equity instruments or liabilities, depending on the specific terms of the warrant agreement. See Note 2 for further details on accounting policies related to the Company’s warrants. The following table summarizes outstanding warrants to purchase shares of the Company’s common stock and/or preferred stock as of December 31, 2020 and 2019: Number of Shares December 31, December 31, Weighted-Average Description 2020 2019 Exercise Price Expiration Date Liability-classified Warrants December 2019 Series B1 warrants (1) 2,368,400 2,368,400 $ 1.52 Dec 2026 2,368,400 2,368,400 Equity-classified Warrants May 2013 warrants 1,949,754 1,949,754 $ 0.08 None September 2013 warrants 514,756 514,756 $ 0.08 None February 2014 warrants 266,006 266,006 $ 0.08 None April 2020 Private Placement first closing warrants 3,039,514 — $ 2.28 Apr 2023 April 2020 Private Placement second closing warrants 1,373,626 — $ 2.71 Dec 2023 April 2020 Private Placement second closing warrants 2,677,311 — $ 0.01 None July 2020 Private Placement first closing warrants 2,014,234 — $ 0.01 None July 2020 Private Placement first closing warrants 2,764,227 — $ 2.58 Jul 2023 14,599,428 2,730,516 Total outstanding 16,967,828 5,098,916 (1) The Series B1 warrants are exercisable for either common stock (exercise price of $1.52 ) or Series B1 Convertible Preferred Stock (exercise price of $152 ) at the discretion of the warrant holder. The table below is a summary of the Company's warrant activity for the year ended December 31, 2020. Number of Weighted-Average Warrants Exercise Price Outstanding at December 31, 2019 5,098,916 $ 0.75 Issued (1) 11,868,912 1.50 Exercised — — Expired — — Outstanding at December 31, 2020 16,967,828 $ 1.28 (1) During th e year ended December 31, 2020, certain related parties were issued warrants as more fully described in Note 16. |