STOCKHOLDERS' EQUITY | (8) STOCKHOLDERS’ EQUITY (a) CAPITAL STOCK On December 1, 2016, the Company effected a 1 for 10 reverse stock split of the Company’s outstanding stock. All share and per share amounts herein have been retroactively restated to reflect the split. On January 23, 2014, we filed a $75.0 million shelf registration statement on Form S-3 (the “2014 shelf registration statement”), with the Securities and Exchange Commission which was declared effective February 11, 2014 and allowed us to obtain financing through the issuance of any combination of common stock, preferred stock or warrants. On February 11, 2014, we entered into an Equity Distribution Agreement (the “EDA”) with Roth Capital Partners, LLC (“Roth Capital Partners”), pursuant to which we may sell from time to time up to $10.0 million of shares of our common stock, par value $0.001 per share, through Roth Capital Partners. Sales of shares pursuant to the EDA, if any, may be made by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act of 1933, as amended, including without limitation directly on the NASDAQ Capital Market, or any other existing trading market for the shares or through a market maker, or, if agreed by us and Roth Capital Partners, by any other method permitted by law, including but not limited to in negotiated transactions. Sales under the EDA were made pursuant to the 2014 shelf registration statement. As of March 31, 2014, we had sold 72,168 shares pursuant to the EDA for gross proceeds of approximately $2.6 million. We have not sold any shares under the EDA since that date. On March 18, 2014, we sold 287,000 shares of our common stock, par value $0.001, in a registered direct offering pursuant to the 2014 shelf registration statement (the “2014 RDO”), at a price of $31.50 per share, resulting in gross proceeds of approximately $9.0 million. On May 10, 2016, in a registered offering pursuant to the 2014 shelf registration statement, we sold 547,195 shares of our common stock (the “Shares”), at a purchase price of $9.1375 per share (together with the 2014 RDO, the “Registered Direct Offerings”). In a private placement concurrent with the sale of the Shares, we sold to the investors who purchased the Shares warrants to purchase 410,396.8 shares of our common stock (the “Warrants”). The Shares and Warrants were sold pursuant to a securities purchase agreement for aggregate gross proceeds of $5.0 million. Subject to certain ownership limitations, the Warrants became exercisable on November 10, 2016 at an exercise price equal to $8.30 per share of common stock, subject to adjustments as provided under the terms of the Warrants. The Warrants are exercisable until November 10, 2022. In connection with the offering of the Shares and Warrants, we issued to the placement agent and its designees unregistered warrants to purchase an aggregate of 38,303.7 shares of our common (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as the Warrants, except that the Placement Agent Warrants will expire on May 4, 2021 and have an exercise price equal to $11.422 per share of common stock. The net proceeds from the sale of the Shares and the Warrants are $4.5 million after deducting certain fees due to the placement agent and our estimated transaction expenses. As of December 31, 2016, pursuant to the EDA and the Registered Direct Offerings, we have sold 906,363 shares of our common stock since the 2014 shelf registration statement became effective on February 11, 2014, for gross proceeds of $16.6 million. These sales resulted in proceeds, net of issuance costs of approximately $15.1 million. The shelf registration statement expired on February 11, 2017. On February 24, 2016, we received notification from NASDAQ that the minimum bid price of our common stock had remained below $1.00 per share for 30 consecutive business days, and we therefore are not in compliance with the minimum bid price requirement for continued listing set forth in Marketplace Rule 5550(a)(2). The notification letter stated that we would be afforded 180 calendar days, or until August 22, 2016, to regain compliance with the minimum bid price requirement. On August 23, 2016, we received notification from NASDAQ that we had been afforded a second 180 calendar day grace period, or until February 21, 2017, to regain compliance. To regain compliance, the closing bid price of our common stock must meet or exceed $1.00 per share for at least ten consecutive business days. NASDAQ may, in its discretion, require our common stock to maintain a bid price of at least $1.00 per share for a period in excess of ten consecutive business days, but generally no more than 20 consecutive business days, before determining we have demonstrated an ability to maintain long-term compliance. If we did not regain compliance by February 21, 2017, the Listing Qualifications Department of NASDAQ indicated it would provide written notification to us that our common stock would be delisted. At that time, we could appeal the delisting determination to a NASDAQ Hearings Panel (the “Panel”). Our common stock would remain listed pending the Panel’s decision. On December 15, 2016, we received a notice from NASDAQ stating that the Company has regained compliance with the $1.00 minimum bid price requirement for continued listing set forth in Marketplace Rule 5450(a)(1) because the closing bid price of the Company’s common stock met or exceeded $1.00 per share for at least 10 consecutive business days. The notice further stated that the NASDAQ matter relating to the Company’s non-compliance with the minimum bid price requirement, which the Company initially disclosed under Item 3.01 of its Current Report on Form 8-K filed with the Securities and Exchange Commission on February 26, 2016, is now closed. Effective September 7, 2011, we entered into a Stockholder Rights Agreement between the Company and American Stock Transfer & Trust Company, LLC, as rights agent. The Stockholder Rights Agreement was not adopted in response to any specific effort to acquire control of the Company. In connection with the adoption of the Stockholder Rights Agreement, the Company’s Board of Directors declared a dividend of one preferred stock purchase right, or Right, for each outstanding share of common stock to stockholders of record as of the close of business on September 7, 2011. Initially, the Rights will be represented by the Company’s common stock certificates or book entry notations, will not be traded separately from the common stock, and will not be exercisable. In the event that any person acquires beneficial ownership of 20% or more of the outstanding shares of the Company’s common stock, or upon the occurrence of certain other events, each holder of a Right, other than the acquirer, would be entitled to receive, upon payment of the purchase price, which is initially set at $32 per Right, a number of shares of GenVec common stock having a value equal to two times such purchase price. The Company’s Board of Directors is entitled to redeem the Rights at $0.001 per right at any time before a person or group has acquired 20% or more of the Company’s common stock. The Rights will expire on September 7, 2021, subject to the Company’s right to extend such date, unless earlier redeemed or exchanged by the Company or terminated. The Rights will at no time have any voting rights. The Company has authorized 30,000 shares of Series B Junior Participating Preferred Stock in connection with the adoption of the Stockholder Rights Agreement. There was no Series B Junior Participating Preferred Stock issued or outstanding as of December 31, 2016. In connection with the execution of our merger agreement with Intrexon Corporation (“Intrexon”), we amended the rights plan to provide that none of Intrexon, its merger subsidiary or any of their respective associates or affiliates shall become an Acquiring Person under the rights plan and to otherwise exempt the merger from triggering provisions or rights under the rights plan. In addition to the common stock reflected on our balance sheets, the following items are reflected in the capital accounts as of December 31, 2016 and 2015: • 5,000,000 shares of $0.001 par value preferred stock have been authorized; none are issued or outstanding. (b) STOCK-BASED COMPENSATION Stock Incentive Plans Our stockholders approved the 2015 Omnibus Incentive Plan (the “2015 Plan”) in November 2015. The 2015 Plan increased the number of shares of common stock that are available to be issued through grants or awards made thereunder or through the exercise of options granted by 150,000 shares. At December 31, 2016, there were 99,379 shares available for future issuance and 289,193 outstanding options under the 2015 Plan, the 2011 Omnibus Incentive Plan (the “2011 Plan”), the CEO Incentive Plan, and the 2002 Stock Incentive Plan (the “2002 Plan”). Stock options granted under the 2015 Plan generally have a contractual term of 10 years and vest ratably over a four-year service period, when the option is fully exercisable. The Compensation Committee administers the 2015 Plan, approves the individuals to whom options, restricted stock, or other awards will be granted, and determines the terms of the awards, including the number of shares granted and exercise price of each option. The 2015 Plan amends and restates the 2011 Plan, which was approved in June 2011 as the replacement to the 2002 Plan, which was approved in June 2002. There were 80,500 outstanding options and no outstanding restricted stock awards under the 2015 Plan at December 31, 2016. There were 171,033 outstanding options and no outstanding restricted stock awards under the 2011 Plan at December 31, 2016. There were 29,327 outstanding options and no outstanding restricted stock awards under the 2002 Plan at December 31, 2016. Options outstanding under the 2015 Plan at December 31, 2016 expire through 2026. Options outstanding under the 2011 Plan at December 31, 2016 expire through 2025. Options outstanding under the 2002 Plan at December 31, 2016 expire through 2021. As of December 31, 2016 there are no unvested restricted stock awards under the 2015 Plan, the 2011 Plan or the 2002 Plan. In May 2012, the Company granted an Inducement Award to purchase shares of common stock to our then President and Chief Executive Officer pursuant to a CEO inducement award agreement. The Inducement Award allowed for the purchase of up to 25,000 shares of common stock at an exercise price per share equal to $25.40. The option has a ten-year term and vested ratably over a four-year service period, when the option was to be fully exercisable. When the former CEO departed the Company, she forfeited her unvested shares as of September 3, 2013. There are 8,333 outstanding options awards under the CEO inducement plan at December 31, 2016. Stock-Based Compensation Expense The following table summarizes stock-based compensation expense related to employee stock options for the years ended December 31, 2016 and 2015, which was allocated as follows: Years ended December 31, 2016 2015 (in thousands) General and administrative $ 520 $ 554 Research and development 261 369 $ 781 $ 923 We use the Black-Scholes option pricing model to value stock options. The estimated fair value of employee stock options granted during the 12 months ended December 31, 2016 and 2015 was calculated using the Black-Scholes model with the following weighted-average assumptions: 2016 2015 Range of risk-free interest rate 1.41% – 1.51% 1.42% – 1.87% Expected dividend yield 0.00% 0.00% Range of expected volatility 101.66% – 114.88% 103.44%-103.64 Expected life (years) 6.48 6.30 The risk-free interest rate assumptions are based upon various U.S. Treasury rates as of the date of the grants. The dividend yield is based on the assumption that we do not expect to declare a dividend over the life of the options. The volatility assumptions for 2016 and 2015 are based on the volatility for the most recent one-year period as well as an estimate of the volatility over the expected life of 6.48 years and 6.30 years, respectively. The expected life of employee stock options represents the weighted average combining the actual life of options that have already been exercised or cancelled with the expected life of all outstanding options. The expected life of outstanding options is calculated assuming the options will be exercised at the midpoint between the applicable vesting date and the full contractual term. The Company estimates forfeiture rates at the time of grant and revises these estimates, if necessary, in subsequent periods if actual forfeitures differ from the estimates. Forfeitures are estimated based on the demographics of current option holders and standard probabilities of employee turnover. The Company used 14.9% and 18.3% forfeiture rates for the options granted in 2016 and 2015, respectively. The weighted-average fair value of the options granted for the years ended December 31, 2016 and 2015 are $4.32 and $22.75, respectively. We do not record tax-related effects on stock-based compensation given our historical and anticipated operating experience and offsetting changes in our valuation allowance which fully reserves against potential deferred tax assets. Stock Options The activity of the plans from January 1, 2015 to December 31, 2016 is as follows: Number Weighted Weighted Aggregate (in thousands, except per share data) Outstanding at January 1, 2015 167 47.43 Granted 57 27.92 Cancelled (1 ) 182.75 Outstanding at December 31, 2015 223 41.49 Granted 71 5.28 Cancelled (5 ) 136.34 Stock options outstanding at December 31, 2016 289 $ 30.95 6.9 $ — Vested or expected to vest at December 31, 2016 274 $ 31.95 6.8 $ — Exercisable at December 31, 2016 184 $ 40.98 5.8 $ — Unrecognized stock-based compensation expense related to stock options was approximately $0.1 million as of December 31, 2016. This amount is expected to be expensed over a weighted average period of 2.1 years. There were no stock options exercised during the years ended December 31, 2016 or 2015. The following table summarizes information about our stock options outstanding at December 31, 2016: Outstanding Exercisable Range of exercise prices Number Weighted Weighted Number Weighted (number of shares in thousands) $0.00 – $100.00 274 7.2 $ 21.65 169 $ 26.72 $100.01 – $200.00 5 1.3 171.39 5 171.39 $200.01 – $300.00 8 2.0 235.74 8 235.74 $300.01 – $410.00 2 0.3 410.00 2 410.00 289 6.9 years $ 30.95 184 $ 40.98 As of December 31, 2016 options covering 183,647 shares were exercisable at $3.80 to $410.00 per share (average $40.98 per share) and there were 99,379 shares available for future issuance under the 2015 Plan. (c) WARRANTS On May 10, 2016, in a registered offering pursuant to the 2014 shelf registration statement (as defined in Note 6 below), we sold 547,195 shares of our common stock (the “Shares”), at a purchase price of $9.1375 per share. In a private placement concurrent with the sale of the Shares, we sold to the investors who purchased the Shares warrants to purchase 410,396.8 shares of common stock (the “Warrants”). The Shares and the Warrants were sold pursuant to a securities purchase agreement for aggregate gross proceeds of $5.0 million. Subject to certain ownership limitations, the Warrants became exercisable on November 10, 2016 at an exercise price equal to $8.30 per share of common stock, subject to adjustments as provided under the terms of the Warrants. The Warrants are exercisable until November 10, 2022. In connection with the offering of the Shares and Warrants, we issued to the placement agent and its designees unregistered warrants to purchase an aggregate of 38,303.7 shares of our common stock (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as the Warrants, except that the Placement Agent Warrants will expire on May 4, 2021 and have an exercise price equal to $11.422 per share of common stock. A summary of the allocation of the proceeds of the offering is shown below: (in thousands) Allocated to warrant liabilities $ 2,511 Allocated to common stock and additional paid-in capital 2,489 Total allocated gross proceeds $ 5,000 The closing costs of $699,861 included the 38,303.7 Placement Agent Warrants valued at $202,862, and $496,999 for placement agent and other fees. Based upon the estimated fair value of the Shares and Warrants in units, the Company allocated $250,279 to financing expense and $449,582 as stock issuance costs. The table below sets forth the Warrants and Placement Agent Warrants as of December 31, 2016: Offering Date Outstanding Warrants Exercise Price Expiration Date Status May 2016 410,396.8 $ 8.30 11/10/2022 Exercisable May 2016 38,303.7 $ 11.4220 5/4/2021 Exercisable 448,700.5 The Warrants contain a provision for liquidated damages in the event that there is a failure to deliver shares of common stock within three days of receiving a notice to exercise. As a result of this liquidated damages provision, the Warrants require liability classification in accordance with ASC 480 and are recorded at fair value. The fair value of the Warrants has been determined under a Black-Scholes pricing model; assuming a weighted average 5.73 year remaining life for the warrants, 2.00% risk-free interest rate, a 113.14% expected volatility and no dividend yield, the weighted average fair value of warrant liability as of December 31, 2016 is $6.56. Changes in fair value are recorded against operations in the reporting period in which they occur; increases or decreases in fair value are recorded to other income/(expense) as a change in fair value of warrant liabilities. On February 1, 2015, 42,000 warrants with an exercise price of $275.00 issued in February 2009 expired. There were no warrants exercised during the years ended December 31, 2016 or 2015, respectively. |