Item 8. Financial Statements and Supplementary Data
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors of
Precipio, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Precipio, Inc. (the “Company”) as of December 31, 2018 and 2017, the related consolidated statements of operations, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2018, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
Explanatory Paragraph – Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As more fully described in Note 1, the Company has a significant working capital deficiency, has incurred significant losses and needs to raise additional funds to meet its obligations and sustain its operations. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Marcum LLP
Marcum LLP
We have served as the Company’s auditor since 2016.
Hartford, CT
April 16, 2019
PRECIPIO, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
December 31, 2018 and 2017
(Dollars in thousands, except share data)
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
ASSETS
|
|
|
|
|
|
|
CURRENT ASSETS:
|
|
|
|
|
|
|
Cash
|
|
$
|
381
|
|
$
|
421
|
Accounts receivable, net
|
|
|
690
|
|
|
730
|
Inventories
|
|
|
197
|
|
|
161
|
Other current assets
|
|
|
525
|
|
|
430
|
Total current assets
|
|
|
1,793
|
|
|
1,742
|
|
|
|
|
|
|
|
PROPERTY AND EQUIPMENT, NET
|
|
|
496
|
|
|
353
|
|
|
|
|
|
|
|
OTHER ASSETS:
|
|
|
|
|
|
|
Goodwill
|
|
|
—
|
|
|
4,685
|
Intangibles, net
|
|
|
19,291
|
|
|
20,458
|
Other assets
|
|
|
25
|
|
|
22
|
Total assets
|
|
$
|
21,605
|
|
$
|
27,260
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
Current maturities of long-term debt, less debt issuance costs
|
|
$
|
263
|
|
$
|
587
|
Current maturities of convertible notes, less debt discounts and debt issuance costs
|
|
|
4,377
|
|
|
—
|
Current maturities of capital leases
|
|
|
57
|
|
|
50
|
Accounts payable
|
|
|
5,169
|
|
|
5,103
|
Accrued expenses
|
|
|
1,940
|
|
|
1,248
|
Deferred revenue
|
|
|
49
|
|
|
66
|
Other current liabilities
|
|
|
1,910
|
|
|
2,982
|
Total current liabilities
|
|
|
13,765
|
|
|
10,036
|
LONG TERM LIABILITIES:
|
|
|
|
|
|
|
Long-term debt, less current maturities and debt issuance costs
|
|
|
253
|
|
|
2,829
|
Capital leases, less current maturities
|
|
|
155
|
|
|
113
|
Common stock warrant liabilities
|
|
|
1,132
|
|
|
841
|
Derivative liabilities
|
|
|
62
|
|
|
—
|
Deferred tax liability
|
|
|
70
|
|
|
349
|
Other long-term liabilities
|
|
|
45
|
|
|
67
|
Total liabilities
|
|
|
15,482
|
|
|
14,235
|
STOCKHOLDERS’ EQUITY:
|
|
|
|
|
|
|
Preferred stock - $0.01 par value, 15,000,000 shares authorized at December 31, 2018 and 2017, respectively, 47 and 4,935 shares issued and outstanding at December 31, 2018 and 2017, respectively
|
|
|
—
|
|
|
—
|
Common stock, $0.01 par value, 150,000,000 shares authorized at December 31, 2018 and 2017, respectively, 34,481,083 and 10,196,620 shares issued and outstanding at December 31, 2018 and 2017, respectively
|
|
|
345
|
|
|
102
|
Additional paid-in capital
|
|
|
53,474
|
|
|
44,465
|
Accumulated deficit
|
|
|
(47,696)
|
|
|
(31,542)
|
Total stockholders’ equity
|
|
|
6,123
|
|
|
13,025
|
|
|
$
|
21,605
|
|
$
|
27,260
|
See notes to consolidated financial statements.
PRECIPIO, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended December 31, 2018 and 2017
(Dollars in thousands, except per share data)
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
SALES:
|
|
|
|
|
|
|
Service revenue, net
|
|
$
|
3,335
|
|
$
|
1,702
|
Clinical research grants
|
|
|
100
|
|
|
278
|
Other
|
|
|
13
|
|
|
53
|
Revenue, net of contractual allowances and adjustments
|
|
|
3,448
|
|
|
2,033
|
less allowance for doubtful accounts
|
|
|
(584)
|
|
|
(310)
|
Net sales
|
|
|
2,864
|
|
|
1,723
|
COST OF SALES:
|
|
|
|
|
|
|
Service revenue
|
|
|
2,549
|
|
|
1,317
|
Clinical research grants
|
|
|
90
|
|
|
114
|
Total cost of sales
|
|
|
2,639
|
|
|
1,431
|
Gross profit
|
|
|
225
|
|
|
292
|
OPERATING EXPENSES:
|
|
|
|
|
|
|
Operating expenses
|
|
|
9,452
|
|
|
6,488
|
Impairment of goodwill
|
|
|
4,685
|
|
|
9,315
|
TOTAL OPERATING EXPENSES
|
|
|
14,137
|
|
|
15,803
|
OPERATING LOSS
|
|
|
(13,912)
|
|
|
(15,511)
|
OTHER INCOME (EXPENSE):
|
|
|
|
|
|
|
Interest expense, net
|
|
|
(269)
|
|
|
(2,324)
|
Warrant revaluation and modification
|
|
|
1,918
|
|
|
(226)
|
Derivative revaluation
|
|
|
267
|
|
|
—
|
Gain on settlement of liability, net
|
|
|
263
|
|
|
877
|
Gain (loss) on extinguishment of debt
|
|
|
376
|
|
|
(1,391)
|
Loss on extinguishment of convertible notes
|
|
|
(2,903)
|
|
|
—
|
Gain on troubled debt restructuring
|
|
|
—
|
|
|
1,181
|
Loss on issuance of convertible notes
|
|
|
(1,328)
|
|
|
—
|
Loss on settlement of equity instruments
|
|
|
(385)
|
|
|
(624)
|
|
|
|
(2,061)
|
|
|
(5,183)
|
LOSS BEFORE INCOME TAXES
|
|
|
(15,973)
|
|
|
(20,694)
|
INCOME TAX BENEFIT
|
|
|
279
|
|
|
—
|
NET LOSS
|
|
|
(15,694)
|
|
|
(20,694)
|
|
|
|
|
|
|
|
Deemed dividends related to beneficial conversion feature of preferred stock and fair value of consideration issued to induce conversion of preferred stock
|
|
|
(4,222)
|
|
|
(12,431)
|
Preferred dividends
|
|
|
—
|
|
|
(84)
|
TOTAL DIVIDENDS
|
|
|
(4,222)
|
|
|
(12,515)
|
NET LOSS AVAILABLE TO COMMON STOCKHOLDERS
|
|
$
|
(19,916)
|
|
$
|
(33,209)
|
|
|
|
|
|
|
|
BASIC AND DILUTED LOSS PER COMMON SHARE
|
|
$
|
(0.92)
|
|
$
|
(7.16)
|
BASIC AND DILUTED WEIGHTED-AVERAGE SHARES OF COMMON STOCK OUTSTANDING
|
|
|
21,616,702
|
|
|
4,639,226
|
See notes to consolidated financial statements.
PRECIPIO, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
For the Years Ended December 31, 2018 and 2017
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock
|
|
Common Stock
|
|
Additional
|
|
|
|
|
|
|
|
|
Outstanding
|
|
Par
|
|
Outstanding
|
|
Par
|
|
Paid-in
|
|
Accumulated
|
|
|
|
|
|
Shares
|
|
Value
|
|
Shares
|
|
Value
|
|
Capital
|
|
Deficit
|
|
Total
|
Balance, January 1, 2017
|
|
780,105
|
|
$
|
8
|
|
449,175
|
|
$
|
4
|
|
$
|
4,376
|
|
$
|
(10,848)
|
|
$
|
(6,460)
|
Net loss
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(20,694)
|
|
|
(20,694)
|
Conversion of warrants into preferred stock
|
|
8,542
|
|
|
—
|
|
—
|
|
|
—
|
|
|
25
|
|
|
—
|
|
|
25
|
Conversion of warrants into common stock
|
|
—
|
|
|
—
|
|
1,958,166
|
|
|
20
|
|
|
(20)
|
|
|
—
|
|
|
—
|
Conversion of preferred stock into common stock
|
|
(2,527,879)
|
|
|
(25)
|
|
4,217,408
|
|
|
42
|
|
|
(17)
|
|
|
—
|
|
|
—
|
Conversion of Senior and Junior debt into preferred stock and common stock
|
|
802,920
|
|
|
8
|
|
1,414,700
|
|
|
14
|
|
|
4,749
|
|
|
—
|
|
|
4,771
|
Conversion of bridge notes into common stock
|
|
—
|
|
|
—
|
|
515,638
|
|
|
6
|
|
|
2,732
|
|
|
—
|
|
|
2,738
|
Issuance of common stock for consulting services in connection with the merger
|
|
—
|
|
|
—
|
|
321,821
|
|
|
3
|
|
|
2,186
|
|
|
—
|
|
|
2,189
|
Shares issued in connection with business combination
|
|
802,925
|
|
|
8
|
|
1,255,119
|
|
|
12
|
|
|
20,078
|
|
|
—
|
|
|
20,098
|
Issuance of preferred stock
|
|
138,322
|
|
|
1
|
|
—
|
|
|
—
|
|
|
7,783
|
|
|
—
|
|
|
7,784
|
Issuance of warrants in conjunction with issuance of side agreement
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
487
|
|
|
—
|
|
|
487
|
Issuance of warrants in connection with restructuring of liability
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
159
|
|
|
—
|
|
|
159
|
Issuance of warrants in connection with note default
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
15
|
|
|
—
|
|
|
15
|
Beneficial conversion feature on issuance of bridge notes
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
1,856
|
|
|
—
|
|
|
1,856
|
Non-cash stock-based compensation and vesting of restricted units
|
|
—
|
|
|
—
|
|
64,593
|
|
|
1
|
|
|
56
|
|
|
—
|
|
|
57
|
Balance, December 31, 2017
|
|
4,935
|
|
$
|
—
|
|
10,196,620
|
|
$
|
102
|
|
$
|
44,465
|
|
$
|
(31,542)
|
|
$
|
13,025
|
Net loss
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(15,694)
|
|
|
(15,694)
|
Conversion of preferred stock into common stock
|
|
(4,888)
|
|
|
—
|
|
6,465,334
|
|
|
65
|
|
|
(65)
|
|
|
—
|
|
|
—
|
Conversion of convertible notes into common stock
|
|
—
|
|
|
—
|
|
5,773,439
|
|
|
58
|
|
|
2,298
|
|
|
—
|
|
|
2,356
|
Issuance of common stock in connection with purchase agreements
|
|
—
|
|
|
—
|
|
6,420,723
|
|
|
64
|
|
|
1,944
|
|
|
—
|
|
|
2,008
|
Issuance of common stock in exchange for cancelation of other current liabilities
|
|
—
|
|
|
—
|
|
1,814,754
|
|
|
18
|
|
|
1,879
|
|
|
—
|
|
|
1,897
|
Issuance of common stock upon exercise of warrants
|
|
—
|
|
|
—
|
|
3,787,300
|
|
|
38
|
|
|
1,233
|
|
|
—
|
|
|
1,271
|
Issuance of common stock for consulting services
|
|
—
|
|
|
—
|
|
22,913
|
|
|
—
|
|
|
39
|
|
|
—
|
|
|
39
|
Warrant modification recorded as debt discount in conjunction with convertible note issuance
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
11
|
|
|
—
|
|
|
11
|
Beneficial conversion feature on issuance of convertible notes
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
2,118
|
|
|
—
|
|
|
2,118
|
Write-off beneficial conversion feature in conjunction with convertible note extinguishment
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
(1,029)
|
|
|
—
|
|
|
(1,029)
|
Write-off debt discounts (net of debt premiums) in conjunction with convertible note conversions
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
(210)
|
|
|
—
|
|
|
(210)
|
Write-off debt derivative liability in conjunction with convertible note conversions
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
301
|
|
|
—
|
|
|
301
|
Liability recorded related to equity purchase agreement repricing
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(460)
|
|
|
(460)
|
Non-cash stock-based compensation
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
490
|
|
|
—
|
|
|
490
|
Balance, December 31, 2018
|
|
47
|
|
$
|
—
|
|
34,481,083
|
|
$
|
345
|
|
$
|
53,474
|
|
$
|
(47,696)
|
|
$
|
6,123
|
See notes to consolidated financial statements.
PRECIPIO, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2018 and 2017
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
|
|
|
|
|
|
Net loss
|
|
$
|
(15,694)
|
|
$
|
(20,694)
|
|
|
|
|
|
|
|
Adjustments to reconcile net loss to net cash flows used in operating activities:
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
1,265
|
|
|
743
|
(Accretion) amortization of deferred financing costs, debt discounts and debt premiums
|
|
|
(21)
|
|
|
1,898
|
(Gain) loss on extinguishment of debt
|
|
|
(376)
|
|
|
1,391
|
Gain on settlement of liability, net
|
|
|
(263)
|
|
|
(877)
|
Gain on settlement of troubled debt
|
|
|
—
|
|
|
(1,181)
|
Loss on settlement of equity instrument
|
|
|
385
|
|
|
624
|
Loss on issuance of convertible notes
|
|
|
1,328
|
|
|
—
|
Loss on extinguishment of convertible notes
|
|
|
2,903
|
|
|
—
|
Stock-based compensation
|
|
|
529
|
|
|
49
|
Merger advisory fees
|
|
|
—
|
|
|
2,676
|
Impairment of goodwill
|
|
|
4,685
|
|
|
9,315
|
Provision for losses on doubtful accounts
|
|
|
581
|
|
|
310
|
Warrant revaluation and modification
|
|
|
(1,918)
|
|
|
226
|
Derivative revaluation
|
|
|
(267)
|
|
|
—
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
Accounts receivable, net
|
|
|
(541)
|
|
|
(495)
|
Inventories, net
|
|
|
(36)
|
|
|
(46)
|
Other assets
|
|
|
127
|
|
|
(99)
|
Accounts payable
|
|
|
309
|
|
|
500
|
Accrued expenses and other liabilities
|
|
|
250
|
|
|
(1,030)
|
Net cash used in operating activities
|
|
|
(6,754)
|
|
|
(6,690)
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
|
|
|
|
|
|
Cash acquired in business combination
|
|
|
—
|
|
|
101
|
Purchase of property and equipment
|
|
|
(97)
|
|
|
(143)
|
Net cash used in investing activities
|
|
|
(97)
|
|
|
(42)
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
|
|
|
|
|
|
Principal payments on capital lease obligations
|
|
|
(58)
|
|
|
(46)
|
Issuance of preferred stock
|
|
|
—
|
|
|
7,784
|
Payment of deferred financing costs
|
|
|
(138)
|
|
|
(25)
|
Issuance of common stock, net of issuance costs
|
|
|
2,008
|
|
|
—
|
Proceeds from exercise of warrants
|
|
|
1,271
|
|
|
25
|
Proceeds from long-term debt
|
|
|
300
|
|
|
315
|
Proceeds from convertible notes
|
|
|
3,850
|
|
|
1,365
|
Principal payments on convertible bridge notes
|
|
|
—
|
|
|
(1,500)
|
Principal payments on long-term debt
|
|
|
(422)
|
|
|
(816)
|
Net cash flows provided by financing activities
|
|
|
6,811
|
|
|
7,102
|
NET CHANGE IN CASH
|
|
|
(40)
|
|
|
370
|
CASH AT BEGINNING OF PERIOD
|
|
|
421
|
|
|
51
|
CASH AT END OF PERIOD
|
|
$
|
381
|
|
$
|
421
|
|
|
|
|
|
|
|
SUPPLEMENTAL CASH FLOW INFORMATION
|
|
|
|
|
|
|
Cash paid during the period for interest
|
|
$
|
42
|
|
$
|
107
|
SUPPLEMENTAL DISCLOSURE OF CONSULTING SERVICES OR ANY OTHER NON-CASH COMMON STOCK RELATED ACTIVITY
|
|
|
|
|
|
|
Purchases of equipment financed through accounts payable
|
|
|
38
|
|
|
2
|
Equipment financed through capital leases
|
|
|
106
|
|
|
—
|
Deferred debt issuance cost financed through accounts payable
|
|
|
57
|
|
|
64
|
Discount of 9% on issuance of convertible bridge notes
|
|
|
405
|
|
|
—
|
Other current liabilities canceled in exchange for common shares
|
|
|
1,897
|
|
|
—
|
Conversion of convertible debt plus interest into common stock
|
|
|
2,356
|
|
|
1,787
|
Conversion of senior and junior notes plus interest into preferred stock and common stock
|
|
|
—
|
|
|
4,771
|
Beneficial conversion feature on issuance of convertible notes
|
|
|
2,118
|
|
|
1,856
|
Accrued merger cost
|
|
|
—
|
|
|
10
|
Issuance of warrants in conjunction with issuance of side agreement
|
|
|
—
|
|
|
487
|
Initial valuation of derivative liability recorded in conjunction with issuance of convertible notes
|
|
|
610
|
|
|
—
|
Initial valuation of warrant liability recorded in conjunction with issuance of convertible notes
|
|
|
2,666
|
|
|
—
|
Long-term debt exchanged for convertible notes
|
|
|
3,191
|
|
|
—
|
Prepaid insurance financed with loan
|
|
|
375
|
|
|
183
|
Accounts payable converted to long-term debt
|
|
|
74
|
|
|
—
|
Liability recorded related to equity purchase agreement repricing
|
|
|
460
|
|
|
—
|
Warrant liability canceled due to settlement of equity instruments
|
|
|
456
|
|
|
—
|
Issuance of common stock for consulting services
|
|
|
39
|
|
|
—
|
Modification of warrant in conjunction with convertible note issuance
|
|
|
11
|
|
|
—
|
Proceed from issuance of convertible note recorded through other current assets
|
|
|
250
|
|
|
—
|
Write-off of beneficial conversion feature in conjunction with convertible note extinguishment
|
|
|
1,029
|
|
|
—
|
Write-off of debt discounts (net of debt premiums) in conjunction with convertible note conversions
|
|
|
210
|
|
|
—
|
Write-off of derivative liability in conjunction with convertible note conversions
|
|
|
310
|
|
|
—
|
Issuance of warrants in conjunction with convertible promissory note waiver
|
|
|
—
|
|
|
15
|
Issuance of warrants in conjunction with restructuring of liability
|
|
|
—
|
|
|
159
|
See notes to consolidated financial statements.
PRECIPIO, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Years Ended December 31, 2018 and 2017
1. BUSINESS DESCRIPTION
Business Description.
Precipio, Inc., and its subsidiary, (“we”, “us”, “our”, the “Company” or “Precipio”) is a cancer diagnostics company providing diagnostic products and services to the oncology market. We have built and continue to develop a platform designed to eradicate the problem of misdiagnosis by harnessing the intellect, expertise and technology developed within academic institutions and delivering quality diagnostic information to physicians and their patients worldwide. We operate a cancer diagnostic laboratory located in New Haven, Connecticut and have partnered with the Yale School of Medicine to capture the expertise, experience and technologies developed within academia so that we can provide a better standard of cancer diagnostics and solve the growing problem of cancer misdiagnosis. We also operate a research and development facility in Omaha, Nebraska which will focus on further development of ICE-COLD-PCR (“ICP”), the patented technology which was exclusively licensed by us from Dana-Farber Cancer Institute, Inc. (“Dana-Farber”) at Harvard University (“Harvard”). The research and development center will focus on the development of this technology, which we believe will enable us to commercialize other technologies developed by our current and future academic partners. Our platform connects patients, physicians and diagnostic experts residing within academic institutions. Launched in 2018, the platform facilitates the following relationships:
|
·
|
|
Patients: patients may search for physicians in their area and consult directly with academic experts that are on the platform. Patients may also have access to new academic discoveries as they become commercially available.
|
|
·
|
|
Physicians: physicians can connect with academic experts to seek consultations on behalf of their patients and may also provide consultations for patients in their area seeking medical expertise in that physician’s relevant specialty. Physicians will also have access to new diagnostic solutions to help improve diagnostic accuracy.
|
|
·
|
|
Academic Experts: academic experts on the platform can make themselves available for patients or physicians seeking access to their expertise. Additionally, these experts have a platform available to commercialize their research discoveries.
|
Merger Transaction
On June 29, 2017, the Company (then known as “Transgenomic, Inc.”, or “Transgenomic”), completed a reverse merger (the “Merger”) with Precipio Diagnostics, LLC, a privately held Delaware limited liability company (“Precipio Diagnostics”) in accordance with the terms of the Agreement and Plan of Merger (the “Merger Agreement”), dated October 12, 2016, as amended on February 2, 2017 and June 29, 2017, by and among Transgenomic, Precipio Diagnostics and New Haven Labs Inc., a wholly-owned subsidiary of Transgenomic. Pursuant to the Merger Agreement, New Haven Labs Inc. merged with and into Precipio Diagnostics, with Precipio Diagnostics surviving the Merger as a wholly-owned subsidiary of the combined company (See Note 3 - Reverse Merger). In connection with the Merger, the Company changed its name from Transgenomic, Inc. to Precipio, Inc., relisted its common stock under Precipio, Inc. on the Nasdaq Capital Market (“Nasdaq”), and effected a 1-for-30 reverse stock split of its common stock. Upon the consummation of the Merger, the historical financial statements of Precipio Diagnostics became the Company’s historical financial statements. Pursuant to the Merger Agreement, each outstanding unit of Precipio Diagnostics was exchanged for 10.2502 pre-reverse stock split shares of Company Common Stock (the “Exchange Ratio”). See Note 3 - Reverse Merger for additional discussion of the Merger.
Going Concern.
The consolidated financial statements have been prepared using accounting principles generally accepted in the United States of America (“GAAP”) applicable for a going concern, which assume that the Company will realize its assets and discharge its liabilities in the ordinary course of business. The Company has incurred substantial operating losses and has used cash in its operating activities for the past several years. As of December 31, 2018, the Company had a net loss of $15.7 million, negative working capital of $12.0 million and net cash used in operating activities of $6.8 million. The Company’s ability to continue as a going concern, for the next twelve months from the issuance of these consolidated financial statements in the Annual Report on Form 10-K, is dependent upon a combination of achieving its business plan, including generating additional revenue, and raising additional financing to meet its debt obligations and paying liabilities arising from normal business operations when they come due.
To meet its current and future obligations the Company has
entered into a purchase agreement with Lincoln Park (the “LP Purchase Agreement” or “Equity Line”), pursuant to which Lincoln Park has agreed to purchase from the Company up to an aggregate of $10.0 million of common stock of the Company (subject to certain limitations) from time to time over the term of the LP Purchase Agreement. The extent we rely on Lincoln Park as a source of funding will depend on a number of factors including, the prevailing market price of our common stock and the extent to which we are able to secure working capital from other sources. As of April 14, 2019, we have already received approximately $1.4 million from the sale of 4,928,859 shares of common stock to Lincoln Park
during 2018 and $2.4 million from the sale of 14,971,141 shares of common stock to Lincoln Park during 2019
.
Notwithstanding the aforementioned circumstances, there remains substantial doubt about the Company’s ability to continue as a going concern for the next twelve months from the issuance of these consolidated financial statements in the Annual Report on Form 10-K. There can be no assurance that the Company will be able to successfully achieve its initiatives summarized above in order to continue as a going concern. The accompanying financial statements have been prepared assuming the Company will continue as a going concern and do not include any adjustments that might result should the Company be unable to continue as a going concern as a result of the outcome of this uncertainty.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation.
The consolidated financial statements include the accounts of Precipio, Inc. and our wholly owned subsidiary. All inter-company balances and transactions have been eliminated in consolidation.
Use of Estimates.
The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of net sales and expenses during the reporting period. The most significant estimates and assumptions with regard to these consolidated financial statements relate to the allowance for doubtful accounts, assumptions used within the fair value of debt and equity transactions, contractual allowances and related impairments. These assumptions require considerable judgment by management. Actual results could differ from the estimates and assumptions used in preparing these consolidated financial statements.
Risks and Uncertainties.
Certain risks and uncertainties are inherent in our day-to-day operations and in the process of preparing our financial statements. The more significant of those risks are presented below and throughout the notes to the consolidated financial statements.
The Company operates in the healthcare industry which is subject to numerous laws and regulations of federal, state and local governments. These laws and regulations include, but are not necessarily limited to, matters such as licensure, accreditation, government healthcare program participation requirements, reimbursement for patient services, and Medicare and Medicaid fraud and abuse. Government activity has increased with respect to investigations and allegations concerning possible violations of fraud and abuse statutes and regulations by healthcare providers. Violations of these laws and regulations could result in expulsion from government healthcare programs together with the imposition of significant fines and penalties, as well as significant repayments for patient services previously billed. Management believes that the Company is in compliance with fraud and abuse regulations, as well as other applicable government laws and regulations. While no material regulatory inquiries have been made, compliance with such laws and regulations can be subject to future government review and interpretation as well as regulatory actions unknown or unasserted at this time.
Fair Value.
Unless otherwise specified, book value approximates fair value. The common stock warrant liabilities and derivative liabilities are recorded at fair value. See Note 12 - Fair Value for additional information.
Other Current Assets.
Other current assets of $0.5 million as of December 31, 2018 include prepaid assets of less than $0.1 million, prepaid insurance of $0.2 million and other receivables of $0.3 million.
Other current assets of $0.4 million as of December 31, 2017 include prepaid assets of $0.1 million, prepaid insurance of $0.2 million and other receivables of $0.1 million.
Concentrations of Risk.
From time to time, we may maintain a cash position with financial institutions in amounts that exceed Federal Deposit Insurance Corporation insured limits of up to $250,000 per depositor per financial institution. We have not experienced any losses on such accounts as of December 31, 2018.
Service companies in the health care industry typically grant credit without collateral to patients. The majority of these patients are insured under third-party insurance agreements. The services provided by the Company are routinely billed utilizing the Current Procedural Terminology (CPT) code set designed to communicate uniform information about medical services and procedures among physicians, coders, patients, accreditation organizations, and payers for administrative, financial, and analytical purposes. CPT codes are currently identified by the Centers for Medicare and Medicaid Services and third-party payors. The Company utilizes CPT codes for Pathology and Laboratory Services contained within codes 80000‑89398.
Inventories.
Inventories consist of laboratory supplies and are valued at cost (determined on an average cost basis, which approximates the first-in, first-out method) or net realizable value, whichever is lower. We evaluate inventory for items that are slow moving or obsolete and record an appropriate reserve for obsolescence if needed. We determined that no allowance for slow moving or obsolete inventory was necessary at December 31, 2018 and 2017.
Property and Equipment, net.
Property and equipment are carried at cost, net of accumulated depreciation and amortization. Expenditures for maintenance and repairs are expensed as incurred. Depreciation and amortization are computed by the straight-line method over the estimated useful lives of the related assets as follows:
|
|
|
|
Furniture and fixtures
|
|
5 to 7
|
years
|
Laboratory equipment
|
|
3 to 10
|
years
|
Computer equipment and software
|
|
3 to 7
|
years
|
For assets sold or otherwise disposed of, the cost and related accumulated depreciation and amortization are removed from the accounts, and any related gain or loss is reflected in operations for the period. Expenditures for major betterments that extend the useful lives of property and equipment are capitalized.
Goodwill and Intangible Assets.
As a result of the Merger, the Company recorded goodwill and intangible assets as part of its allocation of the purchase consideration. See Note 3 - Reverse Merger for the amounts recorded.
Goodwill
Goodwill represents the excess of the purchase price over the fair value of identifiable net assets of the business acquired and is tested for impairment annually, as of October 1
st
, or when impairment triggering events may occur during a quarterly reporting period. Throughout the year ended December 31, 2018, at certain quarterly reporting periods, the Company experienced a decline in its share price and a significant reduction in its market capitalization, indicating that it was more likely than not that the fair value of the Company was less than its carry value. Through valuation analysis of the fair value of the Company using the market capitalization, the discounted cash flow model and market analysis, the Company concluded that its carrying value exceeded its fair value and goodwill impairment in the amount of $4.7 million was recorded for the year ended December 31, 2018. During the year ended December 31, 2017, the Company recorded goodwill impairment of $9.3 million.
Intangibles
We review our amortizable long-lived assets for impairment annually or whenever events indicate that the carrying amount of the asset (group) may not be recoverable. An impairment loss may be needed if the sum of the future undiscounted cash flows is less than the carrying amount of the asset (group). The amount of the loss would be determined by comparing the fair value of the asset to the carrying amount of the asset (group). There were no impairment charges during the year ended December 31, 2018 and 2017.
In-process research and development (“IPR&D”) represents the fair value assigned to research and development assets that were not fully developed at the date of the Merger. Until the IPR&D projects are completed, the assets are accounted for as indefinite-lived intangible assets and subject to impairment testing. For the year ended December 31, 2018, there was no impairment of IPR&D.
Debt Issuance Costs, Debt Discounts and Debt Premiums.
Debt issuance costs, debt discounts and debt premiums are being amortized over the lives of the related financings on a basis that approximates the effective interest method. Costs and discounts are presented as a reduction of the related debt and premiums are presented as an increase to the related debt in the accompanying balance sheets. The amortization amount recorded was income, net of expense, of less than $0.1 million in 2018 and expense of $1.9 million in 2017. Debt
discounts and debt premiums are amortized to interest expense and interest income on the consolidated statement of operations, respectively. See Note 6 – Long term Debt and Note 7 – Convertible Notes for further discussion.
Stock-Based Compensation.
All stock-based awards to date have exercise prices equal to the market price of our common stock on the date of grant and have ten-year contractual terms. Stock-based compensation cost is based on the fair value of the portion of stock-based awards that is ultimately expected to vest. The Company utilizes the Black-Scholes option pricing model for determining the estimated fair value for stock-based awards. Unvested awards as of December 31, 2018 had vesting periods of up to four years from the date of grant. None of the awards outstanding at December 31, 2018 are subject to performance or market-based vesting conditions.
Net Sales Recognition.
Revenue recognition occurs when a customer obtains control of the promised goods and service. Revenue assigned to the goods and services reflects the consideration which the Company expects to receive in exchange for those goods and services.
The Company derives its revenues from diagnostic testing - histology, flow cytometry, cytology and molecular testing; clinical research from bio-pharma customers, state and federal grant programs; and from biomarker testing from bio-pharma customers. All sources of revenue are recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns. Due to differences in the substance of these revenue types, the transactions require, and the Company utilizes, different revenue recognition policies for each. See more detailed information on revenue in Note 14 – Sales Service Revenue, Net And Accounts Receivable.
The Company recognizes revenue utilizing the five-step framework of ASC 606. Control of the laboratory testing services is transferred to the customer at a point in time. As such, the Company recognizes revenue for diagnostic testing at a point in time based on the delivery method (web-portal access or fax) for a patient’s laboratory report. Diagnostic testing service revenue is reported at the estimated net realizable amounts from patients, third-party payors and others for services rendered, including retroactive adjustment under reimbursement agreements with third-party payors. Provisions for third-party payor settlements are provided in the period in which the related services are rendered and adjusted in the future periods, as final settlements are determined. For clinical research and biomarker services, the Company utilizes an “effort based” method of assessing performance and measures progress towards satisfaction of the performance obligation based upon the delivery of results per the contract.
When we receive payment in advance, we initially defer the revenue and recognize it when we deliver the service.
Deferred net sales included in the balance sheet as deferred revenue was approximately $0.1 million as of December 31, 2018 and 2017.
Taxes collected from customers and remitted to government agencies for specific net sales producing transactions are recorded net with no effect on the income statement.
Accounts Receivable
Accounts Receivable result from diagnostic services provided to self-pay and insured patients, project based testing services and clinical research. The payment for services provide by the Company are generally due within 30 days from the invoice date. Accounts receivable are reduced by an allowance for doubtful accounts. In evaluating the collectability of accounts receivable, the Company analyzes and identifies trends for each of its sources of revenue to estimate the appropriate allowance for doubtful accounts. For receivables associated with self-pay patients, including patients with insurance and a deductible and copayment, the Company records an allowance for doubtful accounts in the period of services on the basis of past experience of patients unable or unwilling to pay for service fee for which they are
financially responsible. For receivables associated with services provided to patients with third-party coverage, the Company analyzes contractually due amounts and provides an allowance, if necessary. The difference between the standard rates and the amounts actually collected after all reasonable collection efforts have been exhausted is charged against the allowance for doubtful accounts.
Presentation of Insurance Claims and Related Insurance Recoveries.
The Company accounts for its insurance claims and related insurance recoveries at their gross values as standards for health care entities do not allow the Company to net insurance recoveries against the related claim liabilities. There were no insurance claims or insurance recoveries recorded during the years ended December 31, 2018 and 2017.
Advertising Costs.
Advertising costs are expensed as incurred and are included in operating expenses on the consolidated statement of operations. Advertising costs charged to operations totaled approximately $22,000 in 2018 and $8,300 in 2017.
Research and Development Costs.
All costs associated with internal research and development are expensed as incurred. These costs include salaries and employee related expenses, operating supplies and facility-related expenses. Research and development costs charged to operations totaled $1.1 million and $0.5 million for the years ended December 31, 2018 and 2017, respectively.
Income Taxes.
Deferred tax assets and liabilities are determined based on the differences between the financial reporting and tax basis of assets and liabilities at each balance sheet date using tax rates expected to be in effect in the year the differences are expected to reverse. The effect on the deferred tax assets and liabilities of a change in tax rates is recognized in the period when the change in tax rates is enacted.
A valuation allowance is established when it is determined that it is more likely than not that some portion or all of the deferred tax assets will not be realized. A full valuation allowance has been applied against the Company’s net deferred tax assets as of December 31, 2018 and 2017, due to projected losses and because it is not more likely than not that the Company will realize future benefits associated with these deferred tax assets.
Management’s conclusions regarding uncertain tax positions may be subject to review and adjustment at a later date based upon ongoing analysis of, or changes in tax laws, regulations and interpretations thereof as well as other factors. The Company’s policy is to record interest and penalties directly related to income taxes as income tax expense in the accompanying consolidated statements of operations, of which there was none for the years ended December 31, 2018 and 2017.
Common Stock Warrants.
The Company classifies the issuance of common stock warrants as equity any contracts that (i) require physical settlement or net-stock settlement or (ii) gives the Company a choice of net-cash settlement or settlement in its own stocks (physical settlement or net-stock settlement). The Company classifies as assets or liabilities any contracts that (i) require net-cash settlement (including a requirement to net-cash settle the contract if an event occurs and if that event is outside of the Company’s control), or (ii) gives the counterparty a choice of net-cash settlement or settlement in stock (physical settlement or net-stock settlement).
Certain of our issued and outstanding warrants to purchase common stock do not qualify to be treated as equity and accordingly, are recorded as a liability (“Common Stock Warrant Liability”). We are required to present these instruments at fair value at each reporting date and any changes in fair values are recorded as an adjustment to earnings.
Beneficial Conversion Features.
The intrinsic value of a beneficial conversion feature (“BCF”) inherent to a convertible note payable, which is not bifurcated and accounted for separately from the convertible note payable and may not be settled in cash upon conversion, is treated as a discount to the convertible note payable. This discount is amortized over the period from the date of issuance to the first conversion date using the effective interest method. If the note payable is retired prior to the end of its contractual term, the unamortized discount is expensed in the period of retirement to interest expense. In general, the BCF is measured by comparing the effective conversion price, after considering the relative fair value of detachable instruments included in the financing transaction, if any, to the fair value of the common shares at the commitment date to be received upon conversion.
Deemed dividends are also recorded for the intrinsic value of conversion options embedded in preferred shares based upon the differences between the fair value of the underlying common stock at the commitment date of the transaction and the effective conversion price embedded in the preferred shares. When the preferred shares are non-redeemable the BCF is fully amortized into additional paid-in capital and preferred discount. If the preferred shares are redeemable, the discount is amortized from the commitment date to the first conversion date.
Loss Per Share.
Basic loss per share is calculated based on the weighted-average number of common shares outstanding during each period. Diluted loss per share includes shares issuable upon exercise of outstanding stock options, warrants or conversion rights that have exercise or conversion prices below the market value of our common stock. Options, warrants and conversion rights pertaining to 37,765,161 and 9,960,890 shares of our common stock have been excluded from the computation of diluted loss per share at December 31, 2018 and 2017, respectively, because the effect is anti-dilutive due to the net loss.
The following table summarizes the outstanding securities not included in the computation of diluted net loss per share:
|
|
|
|
|
|
|
December 31,
|
|
|
2018
|
|
2017
|
Stock options
|
|
3,373,431
|
|
236,484
|
Warrants
|
|
13,763,608
|
|
6,197,681
|
Preferred stock
|
|
313,333
|
|
3,525,000
|
Convertible notes
|
|
20,314,789
|
|
1,725
|
Total
|
|
37,765,161
|
|
9,960,890
|
Recently Adopted Accounting Pronouncements.
In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09,
Revenue from Contracts with Customers
and has subsequently issued supplemental and/or clarifying ASUs (collectively “ASC 606”). ASC 606 outlines a five-step framework that intends to clarify the principles for recognizing revenue and eliminate industry-specific guidance. In addition, ASC 606 revises current disclosure requirements in an effort to help financial statement users better understand the nature, amount, timing, and uncertainty of revenue that is recognized. ASC 606 may be applied either retrospectively to each prior reporting period presented or use the modified retrospective transition method with the cumulative effect of initial adoption recognized at the date of initial application. We adopted this new standard as of January 1, 2018, by using the modified-retrospective method. An
adjustment was not required and a change to the prior revenue recognition process and policy to adopt the new standard was not necessary. See Note 14 – Sales Service Revenue, Net and Accounts Receivable for further details.
In January 2017, FASB issued ASU No. 2017‑01,
Business Combinations
(Topic 805): Clarifying the Definition of a Business. ASU No. 2017‑01 adds guidance to assist entities with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses. The new guidance is effective for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. The adoption of ASU No. 2017‑01 did not have a material effect on the Company’s financial position and results of operations.
In May 2017, the FASB issued ASU 2017‑09 “
Compensation – Stock Compensation (Topic 718): Scope of Modification Accounting”,
which provides clarity and reduces both diversity in practice and cost and complexity when applying guidance in Topic 718. This amendment provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The amendments are effective for all entities for annual periods, and interim periods within those periods, beginning after December 15, 2017. The adoption of ASU No. 2017‑09 did not have a material effect on the Company’s financial position and results of operations.
In July 2017, FASB issued ASU No. 2017-11,
Earning Per Share
(Topic 260), Distinguishing Liabilities from Equity (Topic 480) and Derivatives and Hedging (Topic 815), which was issued in two parts, Part I, Accounting for Certain Financial Instruments with Down Round Features and Part II, Replacement of the Indefinite Deferral for Mandatorily Redeemable Financial Instruments of Certain Nonpublic Entities and Certain Mandatorily Redeemable Noncontrolling Interests with a Scope Exception. Part I of ASC No. 2017-11 addresses the classification analysis of certain equity-linked financial instruments (or embedded features) with down round features. When determining whether certain financial instruments should be classified as liabilities or equity instruments, a down round feature no longer precludes equity classification when assessing whether the instrument is indexed to an entity’s own stock. The amendments also clarify existing disclosure requirements for equity-classified instruments. As a result, a freestanding equity-linked financial instrument (or embedded conversion option) no longer would be accounted for as a derivative liability at fair value as a result of the existence of a down round feature. For freestanding equity classified financial instruments, the amendments require entities that present earnings per share (EPS) in accordance with Topic 260 to recognize the effect of the down round feature when it is triggered. That effect is treated as a dividend and as a reduction of income available to common shareholders in basic EPS. The amendments in Part II of ASU 2017-11 recharacterize the indefinite deferral of certain provisions of Topic 480 that now are presented as pending content in the codification, to a scope exception. Part II amendments do not have an accounting effect. The ASU 2017-11 is effective for annual and interim periods beginning after December 15, 2018, with early adoption permitted. The Company has early adopted this standard as of January 1, 2017 with the only impact being that the warrants with down round provisions are classified within equity. (See Note 7 - Convertible Notes and Note 11 - Stockholders' Equity).
Recent Accounting Pronouncements Not Yet Adopted.
In February 2016, the FASB issued ASU No. 2016‑02,
Leases-Topic 842
. The new standard amends the recognition of lease assets and lease liabilities by lessees for those leases currently classified as operating leases and amends disclosure requirements associated with leasing arrangements. The new standard is effective for fiscal years and interim periods within those fiscal years beginning after December 15, 2018. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The Company has evaluated the impact of Topic 842 and determined that its operating lease commitments will be subject to the new standard and recognized as operating lease liabilities and right-of-use assets upon its adoption of ASU No. 2016-02.
The Company adopted the standard on January 1, 2019, and will recognize approximately $0.9 million of lease liabilities and corresponding right-of-use assets in its consolidated balance sheet on the date of initial application.
In June 2018, the FASB issued ASU 2018-07 “
Compensation—Stock Compensation (Topic 718)
”, which expands the scope of Topic 718 to include share based payment transactions for acquiring goods and services from non-employees. This ASU is effective for reporting periods beginning after December 15, 2018. We are currently assessing the potential impact that the adoption of this ASU will have on our consolidated financial statements
In August 2018, the FASB issued ASU 2018-13 “
Fair Value Measurement (Topic 820)
”, which modifies certain disclosure requirements in Topic 820, such as the removal of the need to disclose the amount of and reason for transfers between Level 1 and Level 2 of the fair value hierarchy, and several changes related to Level 3 fair value measurements. This ASU is effective for reporting periods beginning after December 15, 2019. We are currently assessing the potential impact that the adoption of this ASU will have on our consolidated financial statements.
3. REVERSE MERGER
On June 29, 2017 (the “Closing Date”), the Company completed the Merger with Precipio Diagnostics, in accordance with the terms of the Merger Agreement. On the closing date of the Merger, the outstanding common and preferred units of Precipio Diagnostics and certain debt of Precipio Diagnostics were converted into (i) 5,352,847 shares of Precipio common stock, together with cash in lieu of fractional units, and (ii) 802,920 shares of Precipio preferred stock with an aggregate face amount equal to $3 million. Upon the consummation of the Merger, the historical financial statements of Precipio Diagnostics became the Company’s historical financial statements.
In connection with the Merger, on the closing date, Precipio also issued promissory notes and shares of Precipio preferred and common stock in a number of transactions, whereby:
|
·
|
|
Holders of certain secured indebtedness of Transgenomic received in exchange for such indebtedness 802,925 shares of Precipio preferred stock in an amount equal to $3.0 million stated value, and 352,630 shares of Precipio common stock;
|
|
·
|
|
Holders of Transgenomic preferred stock converted it into 7,155 shares of Precipio common stock; and
|
|
·
|
|
Precipio issued 107,056 shares of Precipio preferred stock to certain investors in exchange for $400,000 in a private placement. Precipio also completed the sale of an aggregate of $800,000 of promissory notes pursuant to a securities purchase agreement.
|
Purchase Consideration
The estimated purchase consideration based on the value of the equity of Transgenomic, the accounting acquiree, is as follows:
|
|
|
|
(dollars in thousands)
|
|
|
|
Legacy Transgenomic common stock
|
|
$
|
6,088
|
Fair value of preferred stock converted to common stock
|
|
|
49
|
Fair value of debt converted to common stock
|
|
|
2,398
|
Fair value of debt converted to preferred stock
|
|
|
9,796
|
Fair value of existing bridge notes
|
|
|
1,275
|
Fair value of warrants
|
|
|
1,996
|
Purchase consideration
|
|
$
|
21,602
|
In estimating the purchase consideration above, Transgenomic used its closing stock price of $6.80 as of the Closing Date. Transgenomic had 895,334 common shares outstanding prior to the Merger. In connection with the Merger, Transgenomic preferred stock converted into 7,155 shares of Precipio common stock and certain of Transgenomic debt and accrued interest converted into 352,630 shares of Precipio common stock and 802,925 shares of Precipio preferred stock, face value $3.0 million with an 8% annual dividend. At the Closing Date, the preferred stock had a fair value of $12.20 per share.
Allocation of Purchase Consideration
The following table sets forth an allocation of the purchase consideration to the identifiable tangible and intangible assets of Transgenomic, the accounting acquiree, based on fair values as of the Closing Date with the excess recorded as goodwill:
|
|
|
|
(dollars in thousands)
|
|
|
|
Current and other assets
|
|
$
|
419
|
Property and equipment
|
|
|
29
|
Goodwill
|
|
|
14,000
|
Other intangible assets
(1)
|
|
|
21,100
|
Total assets
|
|
|
35,548
|
Current liabilities
|
|
|
13,423
|
Other liabilities
|
|
|
523
|
Total liabilities
|
|
|
13,946
|
Net assets acquired
|
|
$
|
21,602
|
|
(1)
|
|
Other intangible assets consist of:
|
|
|
|
|
(dollars in thousands)
|
|
|
|
Acquired technology
|
|
$
|
18,990
|
Customer relationships
|
|
|
250
|
Non-compete agreements
|
|
|
30
|
Trademark and trade name
|
|
|
40
|
Backlog
|
|
|
200
|
In-process research and development
|
|
|
1,590
|
Total intangibles
|
|
$
|
21,100
|
We determined the estimated fair value of the acquired technology by using the multi-period excess earnings method of the income approach. The estimated fair value of the remaining identifiable intangible assets acquired were determined primarily by using the income approach.
Unaudited pro forma information
The operating results of Transgenomic have been included in the Company’s consolidated financial statements for all periods after June 29, 2017.
The following unaudited pro forma information presents the Company’s financial results as if the acquisition of Transgenomic had occurred on January 1, 2017 and combines Transgenomic’s unaudited consolidated statement of operations for the period from January 1, 2017 through June 29, 2017 with Precipio’s statement of operations for the year ended December 31, 2017:
|
|
|
|
|
|
For the Year Ended December 31,
|
Dollars in thousands, except per share amounts
|
|
2017
|
Net sales
|
|
$
|
2,687
|
Net loss available to common stockholders
|
|
|
(37,389)
|
Loss per common share
|
|
$
|
(4.95)
|
4. PROPERTY AND EQUIPMENT, NET
A summary of property and equipment at December 31, 2018 and 2017 is as follows:
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
Furniture and fixtures
|
|
$
|
12
|
|
$
|
9
|
Laboratory equipment
|
|
|
299
|
|
|
181
|
Computer equipment and software
|
|
|
369
|
|
|
307
|
Equipment under capital leases
|
|
|
402
|
|
|
296
|
Construction in process
|
|
|
67
|
|
|
115
|
|
|
|
1,149
|
|
|
908
|
Less—accumulated depreciation and amortization
|
|
|
(653)
|
|
|
(555)
|
Total
|
|
$
|
496
|
|
$
|
353
|
Depreciation expense was approximately $0.1 million for both the years ended December 31, 2018 and 2017. Depreciation expense during each year includes depreciation related to equipment acquired under capital leases.
5. INTANGIBLES
In conjunction with the Merger, we recorded intangible assets of $21.1 million. Our intangible assets consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
December 31, 2018
|
|
|
|
|
|
Accumulated
|
|
Net Book
|
|
|
Cost
|
|
Amortization
|
|
Value
|
Technology
|
|
$
|
18,990
|
|
$
|
1,424
|
|
$
|
17,566
|
Customer relationships
|
|
|
250
|
|
|
125
|
|
|
125
|
Backlog
|
|
|
200
|
|
|
200
|
|
|
—
|
Covenants not to compete
|
|
|
30
|
|
|
30
|
|
|
—
|
Trademark
|
|
|
40
|
|
|
30
|
|
|
10
|
IPR&D
|
|
|
1,590
|
|
|
—
|
|
|
1,590
|
|
|
$
|
21,100
|
|
$
|
1,809
|
|
$
|
19,291
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
December 31, 2017
|
|
|
|
|
|
Accumulated
|
|
Net Book
|
|
|
Cost
|
|
Amortization
|
|
Value
|
Technology
|
|
$
|
18,990
|
|
$
|
475
|
|
$
|
18,515
|
Customer relationships
|
|
|
250
|
|
|
42
|
|
|
208
|
Backlog
|
|
|
200
|
|
|
100
|
|
|
100
|
Covenants not to compete
|
|
|
30
|
|
|
15
|
|
|
15
|
Trademark
|
|
|
40
|
|
|
10
|
|
|
30
|
IPR&D
|
|
|
1,590
|
|
|
—
|
|
|
1,590
|
|
|
$
|
21,100
|
|
$
|
642
|
|
$
|
20,458
|
|
|
|
|
|
|
Estimated Useful Life
|
|
Technology
|
|
20
|
years
|
Customer relationships
|
|
3
|
years
|
Backlog
|
|
1
|
year
|
Covenants not to compete
|
|
1
|
year
|
Trademark
|
|
2
|
years
|
Until our in-process research and development projects are completed, the assets are accounted for as indefinite-lived intangible assets and subject to impairment testing. For the year ended December 31, 2018, there was no impairment of IPR&D.
Amortization expense for intangible assets was $1.2 million during the year ended December 31, 2018 and $0.6 million during the year ended December 31, 2017. Amortization expense for intangible assets is expected to be $1.0 million, $1.0 million, $0.9 million, $0.9 million and $0.9 million for each of the years ending December 31, 2019, 2020, 2021, 2022 and 2023, respectively.
6. LONG-TERM DEBT
Long-term debt consists of the following:
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
December 31, 2018
|
|
December 31, 2017
|
Department of Economic and Community Development (DECD)
|
|
$
|
274
|
|
$
|
—
|
DECD debt issuance costs
|
|
|
(28)
|
|
|
—
|
Secured debt obligations
|
|
|
—
|
|
|
3,233
|
Financed insurance loan
|
|
|
204
|
|
|
183
|
September 2018 Settlement
|
|
|
66
|
|
|
—
|
Total long-term debt
|
|
|
516
|
|
|
3,416
|
Current portion of long-term debt
|
|
|
(263)
|
|
|
(587)
|
Long-term debt, net of current maturities
|
|
$
|
253
|
|
$
|
2,829
|
Senior and Junior Notes
The Company issued senior and junior notes which accrued interest at a rate of 12% and 15%, respectively, and had maturity dates ranging from March 2021 to September 2021, or earlier based on certain qualifying events as outlined in the note agreements. During the year ended December 31, 2017, prior to the Merger, the Company raised $315,000 from members through the issuance of senior notes at a rate of 12% interest that were payable at the sooner of the closing of a qualified public offering, as outlined in the note agreement, or five years from date of issuance.
On the Closing Date of the Merger, the outstanding balance of $3,584,968 in Senior Notes and $583,821 in Junior Notes, plus accrued interest of $602,373, were converted into 802,920 shares of Precipio preferred stock and 1,414,700 shares of Precipio common stock. There were no Senior or Junior Notes outstanding at December 31, 2018 or 2017.
Connecticut Innovations, Incorporated
The Company had a line of credit with Connecticut Innovations, Incorporated (Connecticut Innovations), an entity affiliated with a director of the Company, for up to $500,000 with interest paid monthly at 8%, due on September 1, 2018. The line was secured by substantially all of the Company’s assets. In connection with the Merger, the Company paid in full its loan obligations with Connecticut Innovations. The outstanding balance was zero as of December 31, 2018 and 2017, respectively.
Department of Economic and Community Development
The Company entered into a 10-year term loan with the Department of Economic and Community Development (“DECD”) for $300,000, with interest paid monthly at 3%, due on April 23, 2023. The loan was secured by substantially all of the Company’s assets but was subordinate to the term loan with Webster Bank and the Connecticut Innovations line of credit. In connection with the Merger, the Company paid in full its loan obligations with DECD totaling $225,714 (including principal and accrued interest). The outstanding balance was zero as of December 31, 2017.
On January 8, 2018, the Company received gross proceeds of $400,000 when it entered into a separate agreement with DECD by which the Company received a grant of $100,000 and a loan of $300,000 secured by substantially all of the Company’s assets (the “DECD 2018 Loan”.) For the year ended December 31, 2018, $100,000 has been recorded as clinical research grant revenue in the consolidated statements of operations.
Debt issuance costs associated with the DECD 2018 Loan were approximately $31,000. Amortization of the debt issuance cost was approximately $3,000 for the year ended December 31, 2018. Net debt issuance costs were $28,000 at December 31, 2018 and are presented as a reduction of the related debt in the accompanying consolidated balance sheet. Amortization for each of the next five years is expected to be approximately $3,000.
Webster Bank.
The Company entered into a term loan with Webster Bank for $500,000, with interest paid monthly at the one month LIBOR rate plus 500 basis points, due on May 31, 2018. The line was secured by substantially all of the Company’s assets and had first priority over all other outstanding debt. In connection with the Merger, the Company paid in full its loan obligations (including principal and interest) with Webster Bank. The outstanding balance was zero as of December 31, 2017.
During the year ended December 31, 2017, the Company incurred a loss on extinguishment of debt in the approximate amount of $53,000, related to the extinguishment of the Connecticut Innovations, DECD and Webster Bank loans.
Secured Debt Obligations
In 2017, the Company entered into Debt Settlement Agreements (the “Settlement Agreements”) with certain of its accounts payable and accrued liability vendors (the “Creditors”) pursuant to which the Creditors, who were owed $6.3 million (the “Debt Obligations”) by the Company, agreed to reduce and exchange the Debt Obligations for a secured obligation in the amount of $3.2 million, $1.9 million in shares of the Company’s common stock and warrants, with a fair value of approximately $0.2 million, to purchase shares of the Company’s common stock. As a result of the Settlement Agreements, for the year ended December 31, 2017, the Company recorded a gain on troubled debt restructuring of $1.2 million and a loss on extinguishment of liability of $0.2 million.
The Debt Obligations were restructured as follows:
|
·
|
|
The Company entered into a scheduled long-term debt repayment agreement of approximately $3.2 million, which includes interest of approximately $0.6 million, to be paid in forty-eight equal monthly installments beginning in July 2018 (the “Secured Debt Obligations”).
|
|
·
|
|
Debt Obligations of $1.9 million were canceled in exchange for 1,814,754 shares of the Company’s common stock with a weighted average price per share of $1.04 (the “Settlement Common Shares”). The stock was issued in February 2018.
|
|
·
|
|
Warrants to purchase 108,112 shares of the Company’s common stock at an exercise price of $7.50 per share (the “Creditor Warrants”) were issued to certain Creditors. The Creditor Warrants were issued in February 2018.
|
During 2018, the Company entered into an Exchange Agreement (the “Exchange Agreements”) with three institutional investors (the “Holders”) pursuant to which the Company issued convertible promissory notes, due January 1, 2021 (the “Exchange Notes”) in exchange (the “Exchange”) for amounts owed to the Holders pursuant to certain debt settlement agreements, dated October 31, 2017. See Exchange Notes discussed below for further details of the notes. For the year ended December 31, 2018, $3.2 million of Secured Debt Obligations were exchanged for $2.8 million of Exchange
Notes and the Company recorded a $0.4 million gain on extinguishment of debt in the consolidated statements of operations.
Accounting for Settlement Agreements – Troubled debt
The Settlement Agreements for certain of the Creditors were accounted for as troubled debt restructurings as the Creditors had granted concessions to the Company. Of the $6.3 million in Debt Obligations, the accounts payable and accrued liability balances related to the troubled debt restructurings totaled $5.2 million at the time of the Settlement Agreements. During 2017, the Company recorded a gain on settlement of troubled debt restructuring of approximately $1.2 million which is included in gain on troubled debt restructuring in the consolidated statements of operations. The $1.2 million gain represents the carrying amount of the liability due to the Creditors in excess of the undiscounted future cash flows. In connection with the accounting for these troubled debt restructurings the Company recorded a liability of $3.2 million which represents the undiscounted future cash flows. As such, the Company will not record interest in the amount of $0.6 million on the Secured Debt Obligations in the future.
The full amount of the undiscounted future cash flow of the Secured Debt Obligations of approximately $3.2 million includes interest of 10% accrued up to the first payment, plus interest over the forty-eight months, resulting in an estimated monthly payment by the Company to the Creditors of approximately $65,000 per month beginning in July 2018. At December 31, 2017, the $3.2 million of Secured Debt Obligations is included in long-term debt in the Company’s consolidated balance sheet.
In connection with the Settlement Agreements, the Company agreed to issue, to certain of the Creditors whose settlements were treated as troubled debt restructurings, Creditor Warrants to purchase 108,112 shares of the Company’s common stock at an exercise price of $7.50 per share. The Creditor Warrants were issued on February 9, 2018 and are exercisable on the date of issuance and will expire five years from the date of issuance. See Note 11 – Stockholders’ Equity. The Company concluded that the Creditor Warrants will be classified as equity. At December 31, 2017, the Company reviewed its obligation to issue Creditor Warrants in the future and concluded that the Creditor Warrants will be treated as issued for accounting purposes on the date of the Settlement Agreements. The fair value of the Creditor Warrants, as determined by a Black-Scholes calculation, was approximately $159,000 on the date of the Settlement Agreements and was recorded as additional paid-in capital. Subsequent changes in the fair value will not be recognized as long as the warrants continue to be equity classified.
On February 12, 2018, the Company issued 1,814,754 Settlement Common Shares with a fair value of approximately $1.9 million. As the Settlement Common Shares were not yet issued as of December 31, 2017, the Company considered the appropriate treatment of its obligation to issue common shares and concluded that the Settlement Common Shares will be measured at fair value on the date of the Settlement Agreements. Accordingly, the Company recorded a liability of $1.9 million as of the date of the Settlement Agreements. The Company has a $1.9 million liability included in other current liabilities in the accompanying consolidated balance sheet as of December 31, 2017.
The transaction for the Secured Debt Obligations exchanged for Settlement Common Shares was treated as an obligation to issue shares and represented a fixed dollar liability, in the amount of $1.9 million, being settled with a variable number of shares that equal the fixed dollar amount. Accordingly, the Company recorded a liability on the Settlement Agreement date equal to the fair value of the shares issued in February 2018. See Note 11 – Stockholders’ Equity. Of the $1.9 million of debt canceled in exchange for common shares, $0.6 million was related to Creditors accounted for as troubled debt restructurings and $1.3 million was related Creditors treated as extinguishments as discussed below.
Accounting for Settlement Agreements – Extinguishment of liability
For Creditors where the settlement was not treated as a troubled debt restructuring, the accounting was treated as an extinguishment. The accounts payable and accrued liability balances related to the extinguishments totaled $1.1 million at the time of the Settlement Agreements. For these settlements, the Company recorded a net loss during 2017 of approximately $0.2 million equal to the difference between the carrying amount of the liability due to the Creditors and the fair value of the consideration transferred to the Creditors. The loss of $0.2 million is included in net gain on settlement of liability in the consolidated statements of operations in 2017.
Convertible Promissory Notes.
The Company, as part of the merger, assumed an Unsecured Convertible Promissory Note (the “Note”) with an accredited investor (the “Investor”) in the aggregate principal amount of $125,000 and interest accrues at a rate of 6% per year. The Note provided that two-thirds of the outstanding principal amount of the Note was due upon the earlier to occur of the close of the Merger or June 17, 2017 (such applicable date, the “Maturity Date”). The remaining one-third of the principal amount outstanding on the Note was to be paid on the six month anniversary of the Maturity Date.
On the Maturity Date, the then outstanding aggregate amount owed on the Note of $143,041
(
$125,000 in principal amount and $18,041 of accrued interest) became due. Pursuant to the terms of the Note, the Company’s failure to pay any principal or interest within 10 days of the date such payment is due will constitute an event of default (the “Prospective Event of Default”). On June 21, 2017, the Investor agreed to waive the Prospective Event of Default and agreed to further extend the Maturity Date of the Note pursuant to a side letter to the Note (the “Side Letter”). The Side Letter provides that two-thirds of the outstanding principal amount of the Note must be paid upon the earlier to occur of (1) the closing of a public offering by the Company of either common stock, convertible preferred stock or convertible preferred notes or (2) August 16, 2017 (such applicable date, the “Deferred Maturity Date”). On August 31, 2017, the Company made payment of $83,333, two-thirds of the then outstanding principal amount, which was more than 10 days after the Deferred Maturity Date and constituted an event of default under the terms of the Note (the “Deferred Maturity Date Event of Default”). The Investor agreed to waive the Deferred Maturity Date Event of Default. In consideration of this waiver, the Company issued the Investor one warrant to purchase 10,000 shares of the Company’s common stock, par value $0.01 per share (the “Convertible Promissory Note Warrants”). See Note 11 – Stockholders’ Equity. The issuance date of the Convertible Promissory Note Warrants was October 3, 2017.
The remaining one-third of the principal amount outstanding on the Note must be paid on the six month anniversary of the Deferred Maturity Date (the “Extended Maturity Date”). All accrued and unpaid interest on the outstanding principal amount of the Note will be due and immediately payable on the Extended Maturity Date, unless the Note is converted in which case such interest will be payable in shares of the Company’s common stock as part of the conversion. As of October 31, 2017, the outstanding principal amount due was $41,666 and accrued interest was approximately $20,000. The Investor entered into a Settlement Agreement, through which the amount due to the Investor would be settled with Settlement Common Share, which shares were issued in February 2018 as described above. As of December 31, 2017, the $41,666 due to the Investor is included in the $1.9 million Settlement Common Shares liability discussed above.
Financed Insurance Loan.
The Company finances certain of its insurance premiums (the “Financed Insurance Loan”). In July 2017, the Company financed $0.4 million with a 4.99% interest rate and fully paid off such loan as of May 2018. In July 2018, the Company financed $0.4 million with a 4.89% interest rate and will make monthly payments through June 2019. As of both December 31, 2018 and 2017, the Financed Insurance Loan outstanding balance of $0.2 million is included in current maturities of long-term debt in the Company’s consolidated balance sheet. A corresponding prepaid asset is included in other current assets.
Settlement Agreement.
On September 21, 2018, the Company entered into a settlement and forbearance agreement with a creditor (the “September 2018 Settlement”) pursuant to which, the Company agreed to make monthly principal and interest payments to the creditor over a two year period, from November 1, 2018 to November 1, 2020, in full and final settlement of $0.1 million of indebtedness that was owed to the creditor on the date of the September 2018 Settlement. The settlement amount will accrue interest at the rate of 10% per annum until paid in full. The September 2018 Settlement outstanding balance of $0.1 million was included in long-term debt and accounts payable in the Company’s consolidated balance sheet as of December 31, 2018 and December 31, 2017, respectively.
The aggregate future maturities required on long-term debt at December 31, 2018 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
2023
|
|
2024 and thereafter
|
|
Total
|
DECD loan
|
|
$
|
24
|
|
$
|
25
|
|
$
|
26
|
|
$
|
26
|
|
$
|
27
|
|
$
|
118
|
|
$
|
246
|
Financed Insurance Loan
|
|
|
204
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
204
|
September 2018 Settlement
|
|
|
35
|
|
|
31
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
66
|
|
|
$
|
263
|
|
$
|
56
|
|
$
|
26
|
|
$
|
26
|
|
$
|
27
|
|
$
|
118
|
|
$
|
516
|
7. CONVERTIBLE NOTES.
Convertible notes consists of the following:
|
|
|
|
|
|
Dollars in Thousands
|
|
|
December 31, 2018
|
Convertible bridge notes
|
|
$
|
4,294
|
Convertible bridge notes discount and debt issuance costs
|
|
|
(1,111)
|
Convertible bridge notes premiums
|
|
|
647
|
Convertible promissory notes
|
|
|
630
|
Convertible promissory notes debt issuance costs
|
|
|
(83)
|
Total convertible notes
|
|
|
4,377
|
Current portion of convertible notes
|
|
|
(4,377)
|
Convertible notes, net of current maturities
|
|
$
|
—
|
Convertible Bridge Notes.
On April 20, 2018, the Company entered into a securities purchase agreement (the “2018 Note Agreement”) with certain investors (the “April 2018 Investors”), pursuant to which the Company would issue up to approximately $3,296,703 in Senior Secured Convertible Promissory Notes along with warrants (the “Transaction”). The number of warrants issued are equal to the number of shares of common stock issuable upon conversion of the notes based on the conversion price at the time of issuance. Half of the warrants will have a one-year term and half will have a five-year term. The 2018 Note Agreement includes customary representations, warranties and covenants by the Company and customary closing conditions.
The Transaction consisted of a series unregistered Senior Secured Convertible Notes (the “Bridge Notes”), bearing interest at a rate of 8% annually and an original issue discount of 9%. The Bridge Notes are convertible at a price of $0.50 per share, provided that if the notes are not repaid within 180 days of the note’s issuance date, the conversion price shall be adjusted to 80% of the lowest volume weighted average price during the prior 10 days, subject to a minimum conversion price of $0.30 per share.
The Transaction consisted of a number of drawdowns. The initial closing on April 20, 2018 provided the Company with proceeds of $1,660,000, net of an original issue discount of 9% and before debt issuance costs, for the issuance of notes with an aggregate principal of $1,824,176 (the “April 2018 Bridge Notes”). The Company completed three additional drawdowns for aggregate proceeds of $1.3 million, net of an original issue discount of 9% and before debt issuance cost, for the issuance on notes with an aggregate principal of $1.5 million, during the third quarter 2018. Drawdowns included the following funding from the April 2018 Investors (i) $348,104 in July 2018 for Bridge Notes with an aggregate principal of $382,526, (ii) $495,955 in August 2018 for Bridge Notes with an aggregate principal of $545,005 and (iii) $495,941 in September 2018 for Bridge Notes with an aggregate principal of $544,990 (collectively, the “Q3 2018 Bridge Notes”).
The Bridge Notes are payable by the Company on the earlier of (i) the one year anniversary after each closing date or (ii) upon the closing of a qualified offering, namely the Company raising gross proceeds of at least $7,000,000 (the “Maturity Date”). At any time, provided that the Company gives 5 business days written notice, the Company has the right to redeem the outstanding principal amount of the Bridge Notes, including accrued but unpaid interest, all liquidated damages and all other amounts due under the Bridge Notes, for cash as follows: (i) an amount which is equal to the sum of 105% if the Company exercises its right to redeem the Bridge Notes within 90 days of the initial closing, (ii) 110% if the Company exercises its right to redeem the Bridge Notes within 180 days of the initial closing, or (iii) 115% if the Company exercises its right to redeem 180 days from the initial closing.
The terms of the 2018 Note Agreement also stipulates that upon written demand by one of the April 2018 Investors after August 22, 2018, the Company shall file a registration statement within thirty (30) days after written demand covering the resale of all or such portion of the conversion shares for an offering to be made on a continuous basis pursuant to Rule 415. The registration statement filed shall be on Form S-3 or Form S-1, at the option of the Company. If the Company does not file a registration statement in accordance with the terms of the 2018 Note Agreement, then on the business day following the applicable filing date and on each monthly anniversary of the business day following the applicable filing date (if no registration statement shall have been filed by the Company in accordance herewith by such date), the Company shall pay to the April 2018 Investors an amount in cash, as partial liquidated damages, equal to 1% per month (pro-rata for partial months) based upon the gross purchase price of the Bridge Notes (calculated on a daily basis) under the 2018 Note Agreement. Conversion shares related to the April 2018 Note Agreement were included in a registration statement on Form S-3 that the Company filed with the SEC on February 6, 2019 and which became effective with the SEC on February 13, 2019.
The obligations under the Bridge Notes are secured, subject to certain exceptions and other permitted payments by a perfected security interest on the assets of the Company.
The 9% discount associated with the April 2018 Bridge Notes was approximately $164,000 and was recorded as a debt discount. The Company also incurred legal and advisory fees associated with the April 2018 Bridge Notes of approximately $164,000 and these were recorded as debt issuance costs. The 9% discount associated with the Q3 2018 Bridge Notes was approximately $133,000 and was recorded as a debt discount.
As part of the initial closing, the April 2018 Investors received 3,648,352 warrants to purchase shares of common stock of the Company (the “April 2018 Warrants”) exercisable at a 150% premium to the April 2018 Bridge Notes conversion price or $0.75. Half of such April 2018 Warrants have a five-year term and half have a one-year term. The Company reviewed the provisions of the April 2018 Warrants to determine the balance sheet classification of the April 2018 Warrants. The Company concluded that there is an obligation to repurchase the April 2018 Warrants by transferring assets and accordingly the warrants were classified as a liability. The April 2018 Warrants were valued using a Black-Scholes option pricing model with an initial value of approximately $1.1 million at the date of issuance and were recorded as a liability with an offset to debt discount. The April 2018 Investors received 2,945,055 warrants to purchase shares of common stock of the Company in connection with the Q3 Bridge Note issuances (the “Q3 2018 Warrants”) with an initial exercise price of $0.75. Half of such Q3 2018 Warrants have a five-year term and half have a one-year term. The terms of the Q3 2018 Warrants are the same as the April 2018 Warrants and, as such, were classified as liabilities. The Q3 2018 Warrants were valued using a Black-Scholes option pricing model with an initial value of approximately $0.7 million at the date of issuance and were recorded as a liability with an offset to debt discount. See Note 12 – Fair Value for further discussion.
On September 20, 2018, immediately after the final drawdown of the Bridge Notes, the Company entered into an agreement with the April 2018 Investors whereby the exercise price of all warrants issued to the April 2018 Investors in connection with both the 2018 Note Agreement and the Q3 Bridge Notes were amended from $0.75 to $0.50. The Company reviewed this repricing to determine the appropriate accounting treatment and concluded that the repricing would be treated as a modification of the warrant agreements. As the warrants related to the Bridge Notes are classified as liabilities, the change in fair value attributable to the repricing would be reflected in the subsequent measurement on the warrants. Management calculated the change in fair value due to repricing to be an expense of approximately $0.1 million which is included in warrant revaluation and modification in the consolidated statements of operations.
Pursuant to a letter agreement, dated as of April 20, 2018 (the “Letter Agreement”), the Company engaged a registered broker dealer as a financial advisor (the “Financial Advisor”). Pursuant to the Letter Agreement, the Company paid the Financial Advisor a fee of $116,000, approximately 7% of the proceeds from the sale of the April 2018 Bridge Notes. This is included in the debt issuance costs discussed above. Per the Letter Agreement, the Company also issued to the Financial Advisor 232,000 warrants to purchase shares of common stock of the Company with an exercise price of $0.75 (the “Advisor Warrants”). The Advisor Warrants are exercisable at any time and from time to time, in whole or in part, during the four-year period commencing six months from the date of the Letter Agreement. Like the April 2018 Warrants and like the Q3 2018 Warrants, the Advisor Warrants met the criteria to be classified as a liability. The Advisor Warrants were valued using a Black-Scholes option pricing model with an initial value of approximately $0.1 million at the date of issuance and were recorded as a liability with an offset to debt discount. See Note 12 – Fair Value for further discussion.
The Company reviewed the conversion option of the April 2018 Bridge Notes and determined that there was a beneficial conversion feature in connection with the issuance of the April 2018 Bridge Notes since the calculated effective conversion price was at a discount to the fair market value of the Company's common stock at issuance date. For purposes of calculating the beneficial conversion feature, the proceeds of $1.7 million from the April 2018 Bridge Notes were allocated to the notes and warrants based on their relative fair values at the date of issuance. The portion allocated to the April 2018 Bridge Notes was $0.6 million with the remaining $1.1 million allocated to the April 2018 Warrants. As a result of the allocation of the proceeds, the Company calculated a beneficial conversion feature of approximately $1.1 million which was recorded as a debt discount with an offset to additional paid in capital. The Q3 2018 Bridge Notes also contained beneficial conversion features. For purposes of calculating the beneficial conversion features, the net proceeds of $1.3 million from the Q3 2018 Bridge Notes were allocated to the notes and warrants based on their relative fair values at the date of issuance. The portion allocated to the Q3 2018 Bridge Notes was $0.6 million with the remaining $0.7 million allocated to the Q3 2018 Warrants. As a result of the allocation of the proceeds, the Company calculated a beneficial conversion feature of approximately $0.5 million which was recorded as a debt discount with an offset to additional paid in capital.
The Company reviewed the redemption features of the Bridge Notes and determined that there is a redemption feature (the “Bridge Notes Redemption Feature”) that qualifies as an embedded derivative instrument which is required to be separated from the debt host contract and accounted for separately as a derivative. For the April 2018 Bridge Notes, the Company determined the initial fair value of the derivative at the time of issuance to be approximately $0.1 million which was recorded as a debt discount with an offset to derivative liability. For the Q3 2018 Bridge Notes, the Company determined the initial fair value of the derivatives at the time of issuance to be approximately $0.1 million which was recorded as a debt discount with an offset to derivative liability. The valuations were performed using the “with and
without” approach, whereby the Bridge Notes were valued both with the embedded derivative and without, and the difference in values was recorded as the derivative liability. See Note 12 – Fair Value for further discussion.
As detailed above, debt discounts and debt issuance costs related to the April 2018 Bridge Notes totaled $2.7 million. Since the costs exceeded the $1.8 million face amount of the debt, the Company recorded $1.8 million of debt discount and debt issuance costs as a reduction of the related debt in the accompanying consolidated balance sheet with the excess $0.9 million expensed as a loss on issuance of convertible notes in the consolidated statements of operations.
The total debt discounts and debt issuance costs related to the Q3 2018 Bridge Notes totaled $1.4 million, of which the Company recorded $1.3 million of debt discount and debt issuance costs as a reduction of the related debt in the accompanying consolidated balance sheet with $0.1 million expensed as a loss on issuance of convertible notes in the consolidated statements of operations. The $0.1 million recorded as a loss on issuance of convertible notes was due to the fact that one of the drawdowns during the third quarter of 2018 had debt discount and debt issuance costs in excess of the face amount of the related debt.
On November 29, 2018, the Company entered into an amendment and restatement agreement (the “Amendment Agreement”) amending and restating the terms of the 2018 Note Agreement. The Amendment Agreement provided for the issuance of up to $1,318,681 of additional Bridge Notes together with applicable warrants, in one or more tranches, with substantially the same terms and conditions as the previously issued Bridge Notes and related warrants. The conversion price of the notes was amended so that it shall be equal to the greater of $0.25 or $0.05 above the closing bid price of our common stock on the date prior to the original issue date. In the event the notes are not paid in full prior to 180 days after the original issue date, the conversion price shall be equal to 80% of the lowest volume weighted average price (“VWAP”) in the 10 trading days prior to the date of the notice of conversion, but in no event below the floor price of $0.15.
In connection with the Amendment Agreement, during the fourth quarter of 2018, the Company completed two additional drawdowns for aggregate proceeds of $1.1 million, net of an original issue discount of 9% and before debt issuance costs, for the issuance of notes with an aggregate principal of $1.2 million (collectively, the “Q4 2018 Bridge Notes”). Approximately $0.3 million of the $1.1 million of proceeds was received after December 31, 2018 and is included in other current assets on our consolidated balance sheet at December 31, 2018. The 9% discount associated with the Q4 2018 Bridge Notes was approximately $108,000 and was recorded as a debt discount. In connection with the Q4 2018 Bridge Note issuances, the Company issued to the investors 4,501,712 warrants to purchase shares of common stock of the Company (the “Q4 2018 Warrants”) with an initial exercise price of $0.36 and a five-year term. The terms of the Q4 2018 Warrants are the same as the April 2018 Warrants and, as such, were classified as liabilities. The Q4 2018 Warrants were valued using a Black-Scholes option pricing model with an initial value of approximately $0.7 million at the date of issuance and were recorded as a liability with an offset to debt discount. See Note 12 – Fair Value for further discussion.
The Company reviewed the conversion option of the Q4 2018 Bridge Notes and determined that there was a beneficial conversion feature in connection with the issuance of the Q4 2018 Bridge Notes, as there was with the previously issued Bridge Notes. For purposes of calculating the beneficial conversion features, the net proceeds of $1.1 million from the Q4 2018 Bridge Notes were allocated to the notes and warrants based on their relative fair values at the date of issuance. The portion allocated to the Q4 2018 Bridge Notes was $0.4 million with the remaining $0.7 million allocated to the Q4 2018 Warrants. As a result of the allocation of the proceeds, the Company calculated a beneficial conversion feature of approximately $0.5 million which was recorded as a debt discount with an offset to additional paid in capital. The Q4 2018 Bridge Notes contain the Bridge Notes Redemption Feature that qualifies as an embedded derivative instrument which is
required to be separated from the debt host contract and accounted for separately as a derivative. For the Q4 2018 Bridge Notes, the Company determined the initial fair value of the derivatives at the time of issuance to be approximately $15,000 which was recorded as a debt discount with an offset to derivative liability. See Note 12 – Fair Value for further discussion.
The total debt discounts and debt issuance costs related to the Q4 2018 Bridge Notes totaled $1.4 million, of which the Company recorded $1.1 million of debt discount and debt issuance costs as a reduction of the related debt in the accompanying consolidated balance sheet with $0.3 million expensed as a loss on issuance of convertible notes in the consolidated statements of operations. The $0.3 million recorded as a loss on issuance of convertible notes was due to the fact that one of the drawdowns during the fourth quarter of 2018 had debt discount and debt issuance costs in excess of the face amount of the related debt.
At the time of the Amendment Agreement, the conversion price related to $3.3 million of previously issued Bridge Notes, the April 2018 Bridge Notes and Q3 2018 Bridge Notes, was amended. The Company reviewed the modification to the conversion price and concluded that the amendment will be treated as an extinguishment of the related Bridge Notes. The difference between the carrying value of the notes just prior to modification (the “Old Debt”) and the fair value of the notes just after modification (the “New Debt”) would be recorded as a gain or loss on extinguishment in the consolidated statements of operations. The Company removed the carrying value of the Old Debt which included $3.1 million of unamortized debt discounts, beneficial conversion features of $1.0 million and less than $0.1 million in derivative liabilities. The Company calculated the fair value of the New Debt to be $4.2 million. The Company reviewed whether or not a beneficial conversion feature existed on the New Debt but the calculation resulted in zero intrinsic value to the conversion options so no new beneficial conversion feature was recorded. Management also reviewed the Bridge Notes Redemption Feature of the New Notes but their fair value was zero so no derivative liability was recorded at the time of modification, however this will be reassessed at the end of each reporting period. As a result, the Company recorded a debt premium on the New Debt of $0.9 million and a loss on extinguishment of debt of $2.9 million in the consolidated statements of operations.
During the year ended December 31, 2018, $0.2 million of Bridge Notes, plus interest, were converted into 1,400,000 shares of common stock of the Company. As a result of the conversions, the Company wrote-off approximately $0.1 million of debt premium with an offset to additional paid in capital.
As of December 31, 2018, $4.3 million of outstanding Bridge Notes, net of $1.1 million of debt discounts partially offset by $0.6 million of debt premiums, was included in convertible notes in the Company’s consolidated balance sheet. The total debt discount and debt issuance costs for all Bridge Notes were $5.6 million during the year ended December 31, 2018. As discussed above, $3.1 million of debt discounts were written-off as a result of the extinguishment of certain Bridge Notes and $1.3 million of debt discounts were expensed as a loss on issuance of convertible notes in the consolidated statements of operations. Total debt premiums, relating to Bridge Notes, recorded during the year ended December 31, 2018 were $0.9 million and $0.1 million of the debt premiums were written-off in conjunction with the conversion of Bridge Notes. Debt discounts and debt premiums will be amortized to interest expense and interest income, respectively, over the life of the Bridge Notes on a basis that approximates the effective interest method. For the year ended December 31, 2018, amortization of debt discounts was approximately $0.1 million and is included in interest expense in the consolidated statements of operations and amortization of debt premiums was approximately $0.2 million and is included in interest income in the consolidated statements of operations. The remaining debt discounts of $1.1 million and debt premiums of $0.6 million, as of December 31, 2018, are expected to be fully amortized during 2019.
During 2017, prior to the Merger, the Company had unsecured convertible bridge notes of $695,000. The notes accrued interest at a rate of 14% and were payable on demand and accrue interest until paid.
In connection with the Merger, on the Closing Date, convertible bridge notes of $695,000, plus $192,000 of accrued interest, were converted into 155,639 shares of Precipio common stock.
2017 New Bridge Notes I.
Prior to the Merger, the Company (then Transgenomic) completed the sale of an aggregate of $1.2 million of non-convertible promissory notes (the “2017 Bridge Notes”) in a bridge financing pursuant to a securities purchase agreement (the “Purchase Agreement”), for which $561,500 was then given to Precipio Diagnostics through the issuance of a promissory note and is eliminated in consolidation. The 2017 Bridge Notes had an annual interest rate of 4% and a 90‑day maturity. The 2017 Bridge Notes could be repaid by the Company at any time in cash upon payment of a 20% premium. In connection with the issuance of the 2017 Bridge Notes, the Company issued warrants (the “2017 Bridge Warrants”) to acquire 40,000 shares of the Company’s common stock at an exercise price of $15.00 per share, subject to anti-dilution protection. Aegis Capital Corp. (“Aegis”) acted as placement agent for the bridge financing and received a placement agent fee of $84,000 and warrants (the “Aegis Warrants”) to acquire 5,600 shares of the Company’s common stock at an exercise price of $15.00 per share. The Aegis Warrants are identical to the 2017 Bridge Warrants except that the Aegis Warrants do not have anti-dilution protection.
At the time of the Merger, the 2017 Bridge Notes were extinguished and replaced with convertible promissory notes (the “2017 New Bridge Notes I”) with an original principal amount of $1.2 million in the aggregate pursuant to an Exchange Agreement (the “Exchange Agreement”) entered into on the Closing Date. The 2017 New Bridge Notes I had an annual interest rate of 8.0% and were due and payable upon the earlier to occur of (i) October 1, 2017 or (ii) the closing of a Qualified Offering (as defined in the 2017 New Bridge Notes I). The 2017 New Bridge Notes I were convertible into shares of our common stock at an initial conversion price of $3.736329 per share, subject to adjustment, and could be convertible into shares of our preferred stock at the holder’s option if the Company did not complete a Qualified Offering (as defined in the 2017 New Bridge Notes I) by October 1, 2017. The Company could redeem the 2017 New Bridge Notes I at any time in cash upon payment of a 20% premium, or $240,000. As the convertible promissory notes were convertible into the Company’s common stock at a conversion rate lower than the fair market value of the common stock at the time of issuance, the Company recorded $989,000 as a beneficial conversion feature, which was recorded as a debt discount in the balance sheet. The discount was amortized using the effective interest method through the first conversion date of the 2017 New Bridge Notes I. On August 28, 2017, these 2017 New Bridge Notes I were partially converted into the Company’s common stock and the remaining were paid off, refer below for further discussion.
Pursuant to the Exchange Agreement, the 2017 Bridge Warrants were canceled and replaced with new warrants to acquire 45,600 shares of our common stock (the “2017 New Bridge Warrants”). The initial exercise price of the 2017 New Bridge Warrants was $7.50 (subject to adjustments). If the Company completed a Qualified Offering (as defined in the 2017 New Bridge warrants), the exercise price of the 2017 New Bridge Warrants would become the lower of (i) $7.50, or (ii) 110% of the per share offering price in the Qualified Offering, but in no event lower than $1.50 per share, which has been considered a down round provision. At issuance, the 2017 New Bridge Warrants had a fair value of $211,000 and were recorded as a debt discount to the related 2017 New Bridge Notes I, with the corresponding entry to additional paid in capital as the warrants were considered classified as equity in accordance with GAAP. As discussed in Note 2 of the accompanying consolidated financial statements, the Company early adopted ASU 2017‑11, which allowed the Company to treat the warrants as equity classified, despite the down round provision.
2017 New Bridge Note II.
In connection with the Merger, on the Closing Date and pursuant to a Securities Purchase Agreement (the “Bridge Purchase Agreement”), the Company completed the sale of an aggregate of $800,000 of a convertible promissory note (the “2017 New Bridge Note II”). The Company received net proceeds of $721,000 from the sale of the 2017 New Bridge Note II. The 2017 New Bridge Note II had an annual interest rate of 8.0% and was due and payable upon the earlier to occur of (i) October 1, 2017 or (ii) the closing of a Qualified Offering (as defined in the 2017 New Bridge Note II). The 2017 New Bridge Note II was convertible into shares of our common stock at an initial conversion price of $3.736329 per share, subject to adjustment, and could be convertible into shares of our preferred stock at the holder’s option if the Company does not complete a Qualified Offering (as defined in the 2017 New Bridge Note II) by October 1, 2017. The Company could redeem the 2017 New Bridge Note II at any time in cash upon payment of a 20% premium, or $160,000.
As the 2017 New Bridge Note II was convertible into the Company’s common stock at a conversion rate lower than the fair market value of the common stock at the time of issuance, the Company recorded $656,000 as a beneficial conversion feature, which was recorded as a debt discount in the accompanying balance sheet. The discount was amortized using the effective interest method through the first conversion date of the 2017 New Bridge Note II. On August 28, 2017, this 2017 New Bridge Note II was partially converted into the Company’s common stock and the remaining was paid off, refer below for further discussion.
In connection with the bridge financing and the assumption of certain obligations by an entity controlled by Mark Rimer (a director of the Company), the Company issued to that entity warrants (the “Side Warrants”) to purchase an aggregate of 00,000 shares of the Company’s common stock. See Note 11 – Stockholders’ Equity for a discussion on terms of the Side Warrants.
In addition, the agreement stipulated that if the Company were to consummate one or more rounds of equity financing following July 1, 2017, with aggregate gross proceeds of at least $7 million, the Company would be required to use a portion of the proceeds from such financing to repay the principal amount of the 2017 New Bridge Notes, together with any premium and interest. See discussion below regarding payment and conversion of the 2017 notes.
Conversion and Payment of the 2017 New Bridge Notes I and New Bridge Note II (collectively, the “2017 New Bridge Notes”).
On August 28, 2017, the Company completed an underwritten public offering (the “August 2017 Offering”) of 6,000 units consisting of one share of the Company’s Series B Preferred Stock and one warrant to purchase up to 400 shares of the Company’s common stock at a combined public offering price of $1,000 per unit for gross proceeds of $6.0 million (see Note 11 - Stockholders’ Equity).
At the time of the closing of the August 2017 Offering, the aggregate amount due to the holders of the New Bridge Notes was $2,436,551 ($2,000,000 in principal, $400,000 for a 20% redemption premium and $36,551 in accrued interest). Upon the closing of the August 2017 Offering, the Company made a cash payment of $1,536,551 to extinguish certain notes and the remaining $900,000 of the Company’s 2017 New Bridge Notes were converted into an aggregate of 359,999 shares of the Company’s common stock (the “Note Conversion Shares”) at a conversion price of $2.50 per share and 359,999 warrants to purchase the Company’s common stock (the “Note Conversion Warrants”). The Company issued the Note Conversion Warrants to the holders of the 2017 New Bridge Notes as consideration for their election to convert their 2017 New Bridge Notes into shares of the Company’s common stock. The Company treated the $900,000 debt conversion as an induced conversion and determined that the fair value of the consideration given in the conversion
exceeded the fair value of the debt pursuant to its original conversion terms by approximately $1.0 million. This amount was recorded as an expense included in loss on extinguishment of debt and induced conversion of convertible bridge notes in our consolidated statements of operations. The Company also recorded a loss on extinguishment of debt of approximately $0.4 million related to the extinguishment of the $1,536,551 portion paid in cash, which was also recorded as an expense within the loss on extinguishment of debt and induced conversion of convertible bridge notes line in our consolidated statements of operations. See Note 11 - Stockholders’ Equity for discussion of the Note Conversion Warrants
.
Upon conversion and payment of the 2017 New Bridge Notes, all remaining debt discounts and debt issuance costs associated with the conversions were fully amortized to interest expense and debt discounts and debt issuance costs associated with the portion paid in cash were amortized to interest expense up through the payment date. During the year ended December 31, 2017, debt discounts and debt issuance costs amortized to interest expense were $1.9 million. As of December 31, 2018 and 2017, there are no amounts outstanding of 2017 New Bridge Notes.
Convertible Promissory Notes – Exchange Notes.
As discussed above, during 2018, the Company entered into Exchange Agreements whereby $3.2 million of Secured Debt Obligations were exchanged for $2.8 million of Exchange Notes. Pursuant to the terms of the Exchange Notes, the Company shall pay to the Holders the aggregate principal amount of the Exchange Notes in eighteen equal installments beginning on August 1, 2019 and ending on January 1, 2021. In accordance with the terms of the Exchange Notes, the Holder shall have the right, to convert at the then applicable conversion price any amount of the Exchange Notes up to $300,000 on any given Trading Day, with a maximum conversion amount up to $500,000 during a period of five Trading Days (the “Conversion Option”). The conversion price shall be the lesser of (i) the average volume weighted average price for the five trading days prior to the date of conversion multiplied by 1.65 and (ii) $1.00 (the “Conversion Price”). At any time at which there is no Equity Conditions Failure, as defined in the terms of the Exchange Note, and only once every ten trading days, the Company shall have the right, but not the obligation, to direct the Holders to convert up to 20% of the then outstanding principal amount of the Exchange Notes under specified conditions (the “Company Put Option”). The Company will be subject to certain restrictive covenants pursuant to the Notes, including limitations on (i) amending its certificate of incorporation and bylaws (ii) indebtedness, (iii) asset sales or leases, (iv) restricted payments and investments, (v) redemptions or repurchases of capital stock and (vi) transactions with affiliates, and the conversion price of the Exchange Notes shall be subject to certain customary adjustments in the event of stock splits, dividends, rights offerings or other pro rata distributions to holders of the Company’s common stock.
The Company considered the appropriate accounting treatment of the Exchange and determined that the Exchange will be treated as a debt extinguishment and the difference between the carrying amount of the Secured Debt Obligations and the face value of the Exchange Notes will be treated as a gain on extinguishment. See Secured Debt Obligations discussed above.
The Company reviewed the Conversion Option and concluded that it meets the criteria for derivative accounting and requires bifurcation and separate accounting as a derivative. The Company determined the initial fair value of the derivative at the time of issuance to be approximately $0.4 million which was recorded as a debt discount with an offset to derivative liability. The valuation was performed using a Monte Carlo Simulation. See Note 12 – Fair Value for further discussion.
The Company reviewed the Company Put Option and concluded that it meets the criteria for derivative accounting and requires bifurcation and separate accounting as a derivative. The Company determined the initial fair value of the derivative at the time of issuance to be immaterial. The valuation was performed using a Monte Carlo Simulation.
The Company also reviewed certain redemption provisions and call options that exist in the terms of the Exchange Notes and determined that neither require bifurcation or separate accounting.
During the year ended December 31, 2018, approximately $2.2 million of Exchange Notes were converted into 4,373,439 shares of common stock of the Company. As a result of the conversions, the Company wrote-off approximately $0.3 million of debt discount with an offset to additional paid in capital and wrote-off $0.3 million of derivative liability with an offset to additional paid in capital.
The total debt discounts of $0.4 million for all Exchange Notes will be amortized to interest expense over the life of the Exchange Notes on a basis that approximates the effective interest method. Amortization for the year ended December 31, 2018 was less than $0.1 million and after the conversions discussed above, there was approximately $0.1 million of Exchange Note debt discounts remaining at December 31, 2018, which are included in convertible notes on our consolidate balance sheet. Amortization will be $0.1 million for the year ended December 31, 2019 and zero for years after that.
As of December 31, 2018, the $0.6 million outstanding balance of the Exchange Notes, net of discounts, was included in convertible notes in the Company’s consolidated balance sheet.
8. ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES.
Accrued expenses at December 31, 2018 and 2017 are as follows:
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
Accrued expenses
|
|
$
|
1,583
|
|
$
|
1,122
|
Accrued compensation
|
|
|
118
|
|
|
126
|
Accrued interest
|
|
|
239
|
|
|
—
|
|
|
$
|
1,940
|
|
$
|
1,248
|
During the years ended December 31, 2018 and 2017, the Company was able to reduce approximately $0.3 million and $1.1 million, respectively, of certain accrued expense and accounts payable amounts through negotiations with certain vendors to settle outstanding liabilities and the Company recorded a gains of $0.3 million in 2018 and $1.1 million in 2017 which are included in gain on settlement of liability, net in the consolidated statements of operations.
Other current liabilities at December 31, 2018 and 2017 are as follows:
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
Obligation to issue common shares
|
|
$
|
—
|
|
$
|
1,897
|
Liability related to equity purchase agreement
|
|
|
460
|
|
|
—
|
Liability for settlement of equity instrument
|
|
|
1,450
|
|
|
1,085
|
|
|
$
|
1,910
|
|
$
|
2,982
|
As of December 31, 2017, the Company has recorded a liability related to its obligation to issue shares of its common stock in the future. On February 12, 2018, the Company issued 1,814,754 Settlement Common Shares with a fair value of approximately $1.9 million. See Note 6 – Long-Term Debt for additional information.
On February 20, 2018, Crede Capital Group LLC (“Crede”) filed a lawsuit against the Company in the Supreme Court of the State of New York for Summary Judgment in Lieu of Complaint requiring the Company to pay cash owed to Crede. Crede claimed that Precipio had breached a Securities Purchase Agreement and Warrant that Crede entered into in connection with an investment in Transgenomic and that pursuant to those agreements, Precipio owed Crede approximately $2.2 million. On March 12, 2018, Precipio entered into a settlement agreement (the “Crede Agreement”) with Crede pursuant to which Precipio agreed to pay Crede a total sum of $1.925 million over a period of 16 months payable in cash, or at the Company’s discretion, in stock, in accordance with terms contained in the Crede Agreement. In accordance with the terms of the agreement and in addition to the agreement to pay, we also executed and delivered to Crede an affidavit of confession of judgment. As of December 31, 2017, the Company has recorded liabilities relating to Crede of $1.1 million included in other current liabilities on the accompanying consolidated balance sheets and $0.6 million included in common stock warrant liability on the accompanying consolidated balance sheets related to warrants classified as liabilities that Crede is the holder of.
As of the date of the Crede Agreement, the fair value of the common stock warrant liability related to Crede was revalued to approximately $0.4 million, resulting in a gain of $0.2 million included in warrant revaluation in the consolidated statement of operations during the year ended December 31, 2018. See Note 12 – Fair Value for further discussion. At the time of the Crede Agreement, the Company recorded $1.5 million in other current liabilities and $0.4 million in other long-term liabilities, thus replacing its $1.1 million liability for settlement of equity instrument and $0.4 million common stock warrant liability. This resulted in the Company recording an additional loss of $0.4 million, which is included in loss on settlement of equity instruments in the consolidated statement of operations. During the year ended December 31, 2018, the Company paid approximately $0.5 million to Crede.
On January 15, 2019, the Company and Crede entered into an amendment and restatement agreement in order to enable the Company to provide Crede with an alternative means of payment of the settlement amount by issuing to Crede a convertible note in the amount of $1.45 million (the “Convertible Note”). The Convertible Note
is payable by the Company on the earlier of (i) January 15, 2021 or (ii) upon the closing of a qualified offering in which the Company receives gross proceeds of at least $4.0 million. See Note 15 – Subsequent Events for further details of the Convertible Note.
As of December 31, 2018, the Company had recorded a liability of approximately $0.5 million related to an equity purchase agreement with an investor, which is included in other current liabilities on our consolidated balance sheet. On January 29, 2019, the Company entered into a settlement agreement (the “Leviston Settlement”) with the investor pursuant to which the Company issued to the investor a convertible note in the amount of $0.7 million (the “Note”) in full satisfaction of the $0.5 million discussed above along with approximately $0.2 million of other obligations owed to Leviston which are included in accrued expenses in our consolidated balance sheet at December 31, 2018. See Note 15 – Subsequent Events for further details of the Note.
9. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
The Company’s commitments consist of obligations under operating leases for its facilities and laboratory equipment. The Company entered into a sixty month operating lease beginning in January 2017 for its facility in New Haven, Connecticut at a monthly rental rate of $13,400 to $14,600 and a sixty-one month operating lease beginning in May 2017, for its facility in Omaha, Nebraska at a monthly rental rate of $2,300 to $2,800.
The future minimum annual lease payments under all operating leases at December 31, 2018 are as follows:
|
|
|
|
Year Ended December 31,
|
|
|
|
2019
|
|
$
|
244,000
|
2020
|
|
|
217,000
|
2021
|
|
|
208,000
|
2022
|
|
|
14,000
|
Total
|
|
$
|
683,000
|
The Company recognizes rent expense on a straight-line basis for all operating leases. Rent expense was $0.3 million and $0.2 million for the years ended December 31, 2018 and 2017, respectively.
CAPITAL LEASES
The Company has entered into various capital lease agreements to obtain lab equipment. The terms of the capital leases range from five to ten years with interest rates of 7.25%.
An analysis of the property acquired under capital leases at December 31, 2018 and 2017 is as follows.
|
|
|
|
|
|
|
Classes of Property:
|
|
2018
|
|
2017
|
Lab equipment
|
|
$
|
402,000
|
|
$
|
296,000
|
Less accumulated amortization
|
|
|
(179,000)
|
|
|
(150,000)
|
|
|
$
|
223,000
|
|
$
|
146,000
|
Included in cost of sales is amortization expense related to equipment acquired under capital leases of approximately $29,000 and $48,000 for the years ended December 31, 2018 and 2017 respectively.
The following is a schedule by years of future minimum lease payments under capital leases together with the present value of the net minimum lease payments.
|
|
|
|
Years Ending December 31,
|
|
|
|
2019
|
|
$
|
70,000
|
2020
|
|
|
46,000
|
2021
|
|
|
38,000
|
2022
|
|
|
32,000
|
2023
|
|
|
27,000
|
Thereafter
|
|
|
41,000
|
Total capital lease obligations
|
|
|
254,000
|
Less: Amount representing interest
|
|
|
(42,000)
|
Present value of net minimum lease obligations
|
|
|
212,000
|
Less, current maturities of capital leases
|
|
|
(57,000)
|
Capital Leases, long term
|
|
$
|
155,000
|
PURCHASE COMMITMENTS
The Company has entered into purchase commitments for reagents from suppliers. These agreements started in 2011 and run through 2022. The Company and the suppliers will true up the amounts on an annual basis. The future minimum purchase commitments under these and other purchase agreements are as follows:
|
|
|
|
Years ending December 31,
|
|
|
|
2019
|
|
$
|
389,000
|
2020
|
|
|
266,000
|
2021
|
|
|
242,000
|
2022
|
|
|
228,000
|
2023
|
|
|
219,000
|
Thereafter
|
|
|
220,000
|
|
|
$
|
1,564,000
|
OTHER CONTRACTUAL COMMITTMENTS
The Company has a $1.925 million contractual commitment with Crede as a result of a settlement agreement the Company reached with Crede on March 12, 2018. See Note 8 – Accrued Expenses And Other Current Liabilities for details on the settlement. The outstanding amount due to Crede as of December 31, 2018 is $1.45 million and is included in other current liabilities on the accompanying consolidated balance sheet. The Company also has a $0.7 million commitment resulting from the Leviston Settlement as discussed in Note 8 – Accrued Expenses And Other Current Liabilities. The following is the future contractual payments under the settlements:
|
|
|
|
Year Ending December 31,
|
|
|
|
2019
|
|
$
|
2,150,000
|
LITIGATIONS
The Company is delinquent on the payment of outstanding accounts payable for certain vendors and suppliers who have taken or have threatened to take legal action to collect such outstanding amounts.
On June 23, 2016, the Icahn School of Medicine at Mount Sinai (“Mount Sinai”) filed a lawsuit against Transgenomic in the Supreme Court of the State of New York, County of New York, alleging, among other things, breach of contract and, alternatively, unjust enrichment and quantum merit, and seeking recovery of $0.7 million owed by us to Mount Sinai for services rendered. We and Mount Sinai entered into a settlement agreement dated October 27, 2016, which included, among other things, a mutual general release of claims, and our agreement to pay approximately $0.7 million to Mount Sinai in installments over a period of time. Effective as of October 31, 2017, we and Mount Sinai agreed to enter into a new settlement agreement to restructure these liabilities into a secured, long-term debt obligation of $0.5 million which includes accrued interest at 10% with monthly principal and interest payments of $9,472 beginning in July 2018 and continuing over 48 months and we issued warrants in the amount of 24,900 shares, that are exercisable for shares of our common stock, on a 1-for-1 basis, with an exercise price of $7.50 per share, exercisable on the date of issuance with a term of 5 years. We do not plan to apply to list the warrants on the NASDAQ Capital Market, any other national securities exchange or any other nationally recognized trading system. During 2018, the Company made one payment of $9,472 to Mount Sinai. On September 17, 2018, the remaining amount due to Mount Sinai was part of the Exchange, as discussed in Note 6 Long-Term Debt, whereby our debt obligation to Mount Sinai was exchanged for a new convertible note with new investors and the new investors assumed and settled the debt with Mount Sinai. The Mt. Sinai lawsuit was settled and discontinued pursuant to a Stipulation of Discontinuance signed by both parties and filed with the court as of October 17, 2018. A zero and $0.5 million liability has been recorded and is reflected in long-term debt within the accompanying consolidated balance sheet at December 31, 2018 and 2017, respectively.
On February 21, 2017, XIFIN, Inc. (“XIFIN”) filed a lawsuit against us in the District Court for the Southern District of California alleging breach of written contract and seeking recovery of approximately $0.27 million owed by us to XIFIN for damages arising from a breach of our obligations pursuant to a Systems Services Agreement between us and
XIFIN, dated as of February 22, 2013, as amended and restated on September 1, 2014. On April 5, 2017, the court clerk entered default against the Company. On May 5, 2017, XIFIN filed an application for entry of default judgment against us. During the year ended December 31, 2018, we made payments totaling $0.1 million. A liability of $0.1 and $0.2 million is reflected in accounts payable within the accompanying consolidated balance sheet at December 31, 2018 and 2017, respectively.
CPA Global provides us with certain patent management services. On February 6, 2017, CPA Global claimed that we owe approximately $0.2 million for certain patent maintenance services rendered. CPA Global has not filed claims against us in connection with this allegation. A liability of less than $0.1 million has been recorded and is reflected in accounts payable within the accompanying consolidated balance sheet at December 31, 2018 and 2017.
On February 17, 2017, Jesse Campbell (“Campbell”) filed a lawsuit individually and on behalf of others similarly situated against us in the District Court for the District of Nebraska alleging we had a materially incomplete and misleading proxy relating to a potential merger and that the merger agreement’s deal protection provisions deter superior offers. As a result, Campbell alleges that we have violated Sections 14(a) and 20(a) of the Exchange Act and Rule 14a‑9 promulgated thereafter. The Company filed a motion to dismiss all claims, which motion was fully briefed on November 27, 2017. The Court granted the Company’s motion in full on May 3, 2018 and dismissed the lawsuit.
The Eighth Circuit reversed the decision of the District Court and remanded the case back to the District Court on March 1, 2019.
On March 21, 2018, Bio-Rad Laboratories filed a lawsuit against us in the Superior Court Judicial Branch of the State of Connecticut for Summary Judgment in Lieu of Complaint requiring us to pay cash owed to Bio-Rad in the amount of $39,000. We are currently in discussions with Bio-Rad to reach payment conditions. A liability of less than $0.1 million has been recorded in accounts payable within the accompanying consolidated balance sheet at December 31, 2018 and 2017. On April 2, 2019, the Superior Court issued a subpoena commanding the Company to appear before the Superior Court on May 13, 2019. The Company paid Bio-Rad approximately $39,000 on April 11, 2019.
LEGAL AND REGULATORY ENVIRONMENT
The healthcare industry is subject to numerous laws and regulations of federal, state and local governments. These laws and regulations include, but are not limited to, matters such as licensure, accreditation, government healthcare program participation requirement, reimbursement for patient services and Medicare and Medicaid fraud and abuse. Government activity has increased with respect to investigations and allegations concerning possible violations of fraud and abuse statutes and regulations by healthcare providers.
Violations of these laws and regulations could result in expulsion from government healthcare programs together with the imposition of significant fines and penalties, as well as significant repayments for patient services previously billed. Management believes that the Company is in compliance with fraud and abuse regulations, as well as other applicable government laws and regulations. While no material regulatory inquiries have been made, compliance with such laws and regulations can be subject to future government review and interpretation, as well as regulatory actions unknown or unasserted at this time.
10. INCOME TAXES
Impact of the Tax Cuts and Jobs Act
In 2016, Precipio Diagnostics was organized as a limited liability company and operated under the default classification as a partnership until July 31, 2016. Effective August 1, 2016, Precipio Diagnostics elected to be treated as a corporation for tax purposes and as such, a net deferred tax asset, prior to a valuation allowance was created. The Company calculated an income tax provision for period from August 1, 2016 through December 31, 2016.
The Tax Cuts and Jobs Act (the "Act") was enacted on December 22, 2017. Among other things, the Act reduces the U.S. federal corporate tax rate from 34 percent to 21 percent, eliminates the alternative minimum tax (“AMT”) for corporations, and creates a one-time deemed repatriation of profits earned outside of the U.S. The tax rate reduction also resulted in a write-down of the net deferred tax asset of approximately $1.0 million. With the exception of the IPR&D
noted below, the write-down of the net deferred tax asset related to the rate reduction resulted in a corresponding write-down of the valuation allowance of approximately $1.3 million.
The Company recorded a deferred tax liability of $0.3 million as of December 31, 2017, related to the acquisition of the IPR&D. This deferred tax liability was recorded to account for the book versus tax basis difference related to the IPR&D intangible asset, which was recorded in connection with the Merger. This deferred tax liability was excluded from sources of future taxable income, as the timing of its reversal cannot be predicted due to the indefinite life of this IPR&D. As such, this deferred tax liability cannot be used to offset the valuation allowance. As of December 31, 2018, the deferred tax liability was less than $0.1 million and during 2018 the Company recorded a tax benefit of approximately $0.3 million.
Deferred income taxes reflect the net effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The Company’s net deferred tax assets relate primarily to its net operating loss carryforwards and stock based compensation, offset by property and equipment and intangible assets. With the exception of the IPR&D, the Company has recorded a full valuation allowance to offset the net deferred tax assets, because it is not more likely than not that the Company will realize future benefits associated with these net deferred tax assets at December 31, 2018 and 2017.
At December 31, 2018 and 2017, the Company had net deferred tax assets of $8.7 million and $1.5 million, respectively, against which a valuation allowance of $8.8 million and $1.8 million, respectively, had been recorded. The valuation allowance excluded the deferred tax liability for IPR&D assigned as an indefinite life intangible asset for book purposes, also known as a “naked credit” in the amount of $0.1 million at December 31, 2018. The change in the valuation allowance for the year ended December 31, 2018 was an increase of $7.0 million. The increase in the valuation allowance for the year ended December 31, 2018 was mainly attributable to the reverse merger with Transgenomic, for which the Company obtained Transgenomic’s net operating losses, which were limited under the Internal Revenue Code Section 382. In addition, the increase was offset due to the recognition of deferred tax liabilities associated with the book versus tax basis difference of intangible assets purchased. There was also an offsetting decrease attributable to a decrease in the corporate tax rate. Significant components of the Company’s deferred tax assets at December 31, 2018 and 2017 are as follows:
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
2018
|
|
2017
|
Deferred tax assets:
|
|
|
|
|
|
|
Net operating loss and credit carryforwards
|
|
$
|
10,202
|
|
$
|
5,907
|
Accrued interest
|
|
|
—
|
|
|
2
|
Stock-based compensation
|
|
|
192
|
|
|
61
|
Other
|
|
|
426
|
|
|
22
|
Gross deferred tax assets
|
|
|
10,820
|
|
|
5,992
|
Deferred tax liabilities:
|
|
|
|
|
|
|
Property and equipment
|
|
|
42
|
|
|
(32)
|
Intangible assets (1)
|
|
|
(2,084)
|
|
|
(1,809)
|
IPR&D intangible assets
|
|
|
(70)
|
|
|
(349)
|
Other
|
|
|
—
|
|
|
—
|
Gross deferred tax liabilities (1)
|
|
|
(2,112)
|
|
|
(2,190)
|
Net deferred tax assets
|
|
|
8,708
|
|
|
3,802
|
Less valuation allowance (1)
|
|
|
(8,778)
|
|
|
(4,151)
|
Net deferred liability
|
|
$
|
(70)
|
|
$
|
(349)
|
|
(1)
|
|
For the year ended December 31, 2017 amounts are presented as revised for an immaterial error correction to the prior period presentation of $2.3 million, for the recognition of a deferred tax asset related to goodwill and intangible assets associated with the Merger, and corresponding valuation allowance. There was no impact to net loss, total assets or total liabilities and stockholders’ equity.
|
The Company’s provision for income taxes for the year ended December 31, 2018 and December 31, 2017 relates to income taxes in states and other jurisdictions and differs from the amounts determined by applying the statutory federal income tax rate to the loss before income taxes for the following reasons:
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
2018
|
|
2017
|
Benefit at federal rate
|
|
$
|
(3,354)
|
|
$
|
(4,426)
|
Increase (decrease) resulting from:
|
|
|
|
|
|
|
State income taxes—net of federal benefit
|
|
|
(633)
|
|
|
(101)
|
Miscellaneous permanent differences
|
|
|
—
|
|
|
4
|
Warrant liability revaluation
|
|
|
(479)
|
|
|
81
|
Capitalized transaction cost
|
|
|
—
|
|
|
958
|
Impairment of goodwill
|
|
|
1,170
|
|
|
363
|
Enactment of Tax Cuts and Jobs Act
|
|
|
—
|
|
|
1,041
|
Other
|
|
|
14
|
|
|
—
|
Change in valuation allowance
|
|
|
3,003
|
|
|
2,429
|
Total income tax (benefit) expense
|
|
$
|
(279)
|
|
$
|
349
|
The income tax expense consists of the following at December 31, 2018 and 2017.
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
2018
|
|
2017
|
Federal:
|
|
|
|
|
|
|
Current
|
|
$
|
—
|
|
$
|
—
|
Deferred
|
|
|
(279)
|
|
|
349
|
Total Federal
|
|
$
|
(279)
|
|
$
|
349
|
State:
|
|
|
|
|
|
|
Current
|
|
$
|
—
|
|
$
|
—
|
Deferred
|
|
|
—
|
|
|
—
|
Total State
|
|
$
|
—
|
|
$
|
—
|
Foreign:
|
|
|
|
|
|
|
Current
|
|
$
|
—
|
|
$
|
—
|
Deferred
|
|
|
—
|
|
|
—
|
Total Foreign
|
|
$
|
—
|
|
$
|
—
|
Total Tax Provision
|
|
$
|
(279)
|
|
$
|
349
|
The Company had approximately $39 million and $28 million of available gross federal and state net operating loss (“NOL”) carryforwards as of December 31, 2018 and 2017, respectively. B
eginning in 2018, under the Act, federal loss carryforwards have an unlimited carryforward period, however such losses can only offset 80% of taxable income in any one year. Included in the total NOLs for 2018 are $10 million of federal losses that fall under these new rules.
Section 382 of the Internal Revenue Code, and similar state regulations, contain provisions that may limit the NOL carryforwards available to be used to offset income in any given year upon the occurrence of certain events, including changes in the ownership interests of significant stockholders. In the event of a cumulative change in ownership in excess of 50% over a three-year period, the amount of the NOL carryforwards that the Company may utilize in any one year may be limited. The Company reduced its tax attributes (NOLs and tax credits) obtained from the Merger with Transgenomic and the limitation placed on the utilization of its tax attributes, as a substantial portion of the NOLs and tax credits generated prior to the Merger will likely expire unused.
At December 31, 2018 and 2017, and as a result of the limitations under Section 382 of the Internal Revenue Code, the Company had a total of unused federal tax net operating loss carryforwards with expiration dates as follows:
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
2018
|
|
2017
|
2036
|
|
$
|
—
|
|
$
|
17,781
|
2037
|
|
|
—
|
|
|
10,284
|
Unlimited life
|
|
|
9,984
|
|
|
—
|
Total Federal
|
|
$
|
9,984
|
|
$
|
28,065
|
The Company has adopted guidance on accounting for uncertainty in income taxes which clarified the accounting for income taxes by prescribing the minimum threshold a tax position is required to meet before being recognized in the financial statements as well as guidance on de-recognition, measurement, classification and disclosure of tax positions. There are no material uncertain tax positions that would require recognition in the financial statements. The Company is obligated to file income tax returns in the U.S. federal jurisdiction and various U.S. states. Since the Company had losses in the past, all prior years that generated NOLs are open and subject to audit examination in relation to the NOL generated from those years. Our evaluation of uncertain tax positions was performed for the tax years ended December 31, 2014 and forward.
11. STOCKHOLDERS’ EQUITY
Common Stock
Pursuant to our Third Amended and Restated Certificate of Incorporation, as amended, we currently have 150,000,000 shares of common stock authorized for issuance. On December 20, 2018, the Company’s shareholders approved the proposal to authorize the Company’s Board of Directors to, in its discretion, to amend the Company’s Third Amended and Restated Certificate of Incorporation to increase the total number of authorized shares of common stock from 150,000,000 shares to 250,000,000 shares.
In connection with the Merger, the Company effected a 1‑for‑30 reverse stock split of its common stock. This reverse stock split became effective on June 13, 2017 and, unless otherwise indicated, all share amounts, per share data, share prices, exercise prices and conversion rates set forth in these notes and the accompanying consolidated financial statements have, where applicable, been adjusted retroactively to reflect this reverse stock split. Additionally, as a result of the Merger, the Company has recapitalized its stock. All historical preferred stock, common stock, restricted units, warrants and additional paid-in capital, including share and per share amounts, have been retroactively adjusted to reflect the equity structure of the combined company, including the effect of the Merger exchange ratio. Pursuant to the Merger Agreement, each outstanding unit of Precipio Diagnostics was exchanged for 10.2502 pre-reverse stock split shares of the Company’s common stock.
Restricted stock of 59,563 shares were granted during the year ended December 31, 2017, none of which vested prior to the merger. Upon closing of the merger, all shares fully vested. During 2017, 64,593 shares were released to common stock. We recorded stock compensation expense of approximately $28,000, within operating expense in the accompanying statements of operations, related to the restricted stock that vested during the year ended December 31, 2017.
On the Closing Date, Precipio Diagnostics received 7,356,170 shares of Precipio common stock from the conversion of preferred stock, senior and junior debt, bridge notes and warrants. Also, certain advisors of Precipio Diagnostics received 321,821 shares of Precipio common stock related to services performed in connection with the
Merger. The fair value of these advisory shares was $2.2 million at the date of the Merger and is included as a merger advisory fee expense in the accompanying consolidated statements of operations.
As part of the Merger, Precipio Diagnostics also received 200,081 shares of Precipio common stock that have not been issued yet. These shares were originally held for future issuance to advisors pending completion of certain performance obligations, however, these obligations were not met. The shares remain with Precipio Diagnostics LLC as part of the unissued pool. For any shares that remain unissued, it is the intent of the Company to allocate these to Precipio Diagnostics shareholders on a pro rata basis.
Upon completion of the Merger, Transgenomic legacy stockholders had 1,255,119 shares of Precipio common stock outstanding.
Upon the closing of the August 2017 Offering, the Company issued 359,999 shares of its common stock upon conversion of $900,000 of its 2017 New Bridge Notes (See Note 7 - Convertible Notes) and 1,735,419 shares of its common stock upon conversion of its Series A Senior stock (see below - Series A Senior Preferred Stock).
Also, during the year ended December 31, 2017, the Company issued 1,550,485 shares of its common stock in connection with conversions of its Series B Preferred Stock (see below - Series B Preferred Stock) and 142,857 shares of its common stock in connection with conversions of its Series C Preferred Stock (see below - Series C Preferred Stock)
On February 12, 2018, the Company issued 1,814,754 shares of its common stock in exchange for approximately $1.9 million of debt obligations. The $1.9 million in obligations was included in other current liabilities in the accompanying consolidated balance sheet as of December 31, 2017. See Note 8 – Accrued Expenses And Other Current Liabilities. The transaction for the Secured Debt Obligations exchanged for Settlement Common Shares was treated as an obligation to issue shares and represented a fixed dollar liability, in the amount of $1.9 million, being settled with a variable number of shares that equal the fixed dollar amount. Accordingly, the Company recorded a liability on the Settlement Agreement date equal to the fair value of the shares issued in February 2018.
During the year ended December 31, 2018, the Company issued 3,120,000 shares of its common stock in connection with conversions of its Series B Preferred Stock and 3,345,334 shares of its common stock in connection with conversions of its Series C Preferred Stock. Aside from 60,000 shares of common stock issued in connection with conversions of its Series C Preferred Stock, all of the shares of common stock issued for the year ended December 31, 2018 in connection with conversions of its Series B Preferred Stock and Series C Preferred Stock (together the “Preferred Stock”) were issued after the Company induced the holders of its Preferred Stock to convert their shares of Preferred Stock to shares of the company’s common stock (see below - Preferred Stock induced conversions).
During the year ended December 31, 2018, the Company issued 3,787,300 shares of its common stock in connection with the exercise of 3,787,300 warrants. The warrant exercises resulted in net cash proceeds to the Company of approximately $1.3 million during the year ended December 31, 2018.
Also during the year ended December 31, 2018, the Company issued 5,773,439 in connection with the conversion of convertible notes. See Note 7 – Convertible Notes.
2018 Purchase Agreement
On February 8, 2018 the Company entered into an equity purchase agreement (the “2018 Purchase Agreement”) with Leviston Resources LLC (“Leviston”) for the purchase of up to $8,000,000 (the “Aggregate Amount”) of shares of the Company’s common stock from time to time, at the Company’s option.
Shares offered and sold prior to February 13, 2018 were issued pursuant to the Company’s shelf registration statement on Form S-3 (and the related prospectus) that the Company filed with the Securities and Exchange Commission (the “SEC”) and which was declared effective by the SEC on February 13, 2015 (the “Shelf Registration Statement”).
Leviston purchased 721,153 shares (the “Investor Shares”) of the Company’s common stock following the close of business on February 9, 2018, subject to customary closing conditions, at a price per share of $1.04 for approximately $750,000. The shares were sold pursuant to the Shelf Registration Statement. The Company incurred approximately $132,000 in costs which have been treated as issuance costs within additional paid-in capital in the accompanying consolidated balance sheet. In consideration of Leviston’s agreement to enter into the 2018 Purchase Agreement, the Company agreed to pay to Leviston a commitment fee in shares of the Company’s common stock equal in value to 5.25% of the total Aggregate Amount (the “Leviston Commitment Shares”), payable in three installments upon achieving certain milestones. The first installment of 1.75% was due on or before February 12, 2018 and this amount, of $140,000, was paid to Leviston through the issuance of 170,711 shares of the Company’s common stock on February 12, 2018.
As required by the terms of the 2018 Purchase Agreement, the Company timely filed an S-1 on April 16, 2018. The S-1 Registration Statement was not declared effective by the SEC and on August 10, 2018 the Company filed a withdrawal request with the SEC. No securities had been issued or sold under this Registration Statement. The Company determined not to proceed with the offering as the Company sought to re-negotiate the terms of the equity purchase agreement in order to comply with the requirements of the SEC pursuant to a letter from the SEC dated August 7, 2018.
In accordance with the terms of the 2018 Purchase Agreement, the Company provided Leviston with a price protection against their initial investment of Investor Shares at the $1.04 price and the commitment fee at a price of $0.82. The provision states that until the effective date of a registration statement, on the occasion the Company sells, or agrees in writing to issue any common stock or common stock equivalents and any of the terms and conditions appurtenant to such issuance or sale are more favorable to the new investors than are the terms and conditions granted to Leviston for less than the purchase price at any time, the Company shall amend the terms of the 2018 Purchase Agreement so as to give Leviston the benefit of such more favorable terms or conditions. Due to the Company entering into the 2018 Note Agreement and accepting the exercise of warrants outstanding at a conversion price of $0.30, the Company was required to reprice the initial investment and the commitment fee at $0.30. As such, at the triggering date of April 20, 2018, the total number of shares that the Company is required to issue to Leviston in relation to the repricing of their initial investment and commitment fee is approximately 3.0 million shares of which 0.9 million were issued at the time of the 2018 Purchase Agreement.
In addition, within the price protection provision, if the Company issues any warrants in connection with issuances, sales or an agreement in writing to issue common stock or common stock equivalents by the Company, Leviston will have the right to receive a proportionate amount of such warrants, cash or shares, at Leviston’s sole election, valued using the Black Scholes formula. As a result of 2018 Note Agreement and the April 2018 Warrants issued, the Company was required to provide Leviston with a proportionate and equivalent coverage in the form of warrants, stock or cash in the amount of approximately $460,000. As Leviston has the ability to elect the form of compensation, the Company has recorded the $460,000 as a liability within the other current liabilities line of the accompanying consolidated balance sheet and has recorded a corresponding dividend.
As of December 31, 2018, the Company had a total of $0.7 million in accruals (see Note 8 – Accrued Expenses and Other Current Liabilities) for potential obligations to Leviston, but had not issued any additional shares or made any payments to Leviston. On January 29, 2019, the Company entered into a settlement agreement (the “Leviston Settlement”) with Leviston pursuant to which the Company issued to Leviston a convertible note in the amount of $0.7 million (the “Note”) in full satisfaction of all obligations owed to Leviston. See Note 15 – Subsequent Events for further details of the Note.
LP Purchase Agreement
On September 7, 2018, the Company entered into a purchase agreement with Lincoln Park (the “LP Purchase Agreement”), pursuant to which Lincoln Park has agreed to purchase from the Company up to an aggregate of $10,000,000 of common stock of the Company (subject to certain limitations) from time to time over the term of the LP Purchase Agreement. Pursuant to the terms of the LP Purchase Agreement, on the agreement date, the Company issued 600,000 shares of its common stock to Lincoln Park as consideration for its commitment to purchase shares of common stock of the Company under the LP Purchase Agreement (the “LP Commitment Shares”). Also on September 7, 2018, the Company entered into a registration rights agreement with Lincoln Park (the “LP Registration Rights Agreement”), pursuant to which on September 14, 2018, the Company filed with the SEC a registration statement on Form S-1 to register for resale under the Securities Act of 1933, as amended, or the Securities Act, 7,000,000 shares of common stock, which includes the LP Commitment Shares, that have been or may be issued to Lincoln Park under the LP Purchase Agreement. The Form S-1 was declared effective by the SEC on September 28, 2018.
Under the LP Purchase Agreement, the Company may, from time to time and at its sole discretion, on any single business day on which the closing price of its common stock is not less than $0.10 per share (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction as provided in the LP Purchase Agreement), direct Lincoln Park to purchase shares of its common stock in amounts up to 450,000 shares, which amounts may be increased to up to 550,000 shares depending on the market price of its common stock at the time of sale and subject to a maximum commitment by Lincoln Park of $1,000,000 per single purchase, which the Company refers to as “regular purchases”, plus other “accelerated amounts” and/or “additional accelerated amounts” under certain circumstances. The Company will control the timing and amount of any sales of its common stock to Lincoln Park. The purchase price of the shares that may be sold to Lincoln Park in regular purchases under the LP Purchase Agreement will be based on the market price of the common stock of the Company preceding the time of sale as computed under the LP Purchase Agreement. The purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction occurring during the business days used to compute such price. The Company may at any time in its sole discretion terminate the LP Purchase Agreement without fee, penalty or cost upon one business day notice. There are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the LP Purchase Agreement or LP Registration Rights Agreement, other than a prohibition on the Company entering into certain types of transactions that are defined in the LP Purchase Agreement as “Variable Rate Transactions”. Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement.
Under applicable rules of The Nasdaq Capital Market, in no event may the Company issue or sell to Lincoln Park under the LP Purchase Agreement more than 19.99% of the shares of its common stock outstanding immediately prior to the execution of the LP Purchase Agreement (which is 4,628,859 shares based on 23,155,872 shares outstanding immediately prior to the execution of the LP Purchase Agreement), which limitation the Company refers to as the Exchange Cap, unless (i) the Company obtains stockholder approval to issue shares of common stock in excess of the
Exchange Cap or (ii) the average price of all applicable sales of the Company’s common stock to Lincoln Park under the LP Purchase Agreement equals or exceeds $0.47 (which represents the closing consolidated bid price of the Company’s common stock on September 7, 2018, plus an incremental amount to account for the issuance of the LP Commitment Shares to Lincoln Park), such that issuances and sales of the Company’s common stock to Lincoln Park under the LP Purchase Agreement would be exempt from the Exchange Cap limitation under applicable Nasdaq rules. In any event, the LP Purchase Agreement specifically provides that the Company may not issue or sell any shares of its common stock under the LP Purchase Agreement if such issuance or sale would breach any applicable Nasdaq rules.
The LP Purchase Agreement also prohibits the Company from directing Lincoln Park to purchase any shares of common stock if those shares, when aggregated with all other shares of the Company’s common stock then beneficially owned by Lincoln Park and its affiliates, would result in Lincoln Park and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of the Company’s common stock, as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and Rule 13d-3 thereunder, which limitation the Company refers to as the Beneficial Ownership Cap as defined in the LP Agreement.
During the year ended December 31, 2018, 4,928,859 shares of the Company’s common stock were sold pursuant to the LP Purchase agreement for total proceeds of approximately $1.4 million.
Preferred Stock
The Company’s Board of Directors is authorized to issue up to 15,000,000 shares of preferred stock in one or more series, from time to time, with such designations, powers, preferences and rights and such qualifications, limitations and restrictions as may be provided in a resolution or resolutions adopted by the Board of Directors. The authority of the Board of Directors includes, but is not limited to, the determination or fixing of the following with respect to shares of such class or any series thereof: (i) the number of shares; (ii) the dividend rate, whether dividends shall be cumulative and, if so, from which date; (iii) whether shares are to be redeemable and, if so, the terms and amount of any sinking fund providing for the purchase or redemption of such shares; (iv) whether shares shall be convertible and, if so, the terms and provisions thereof; (v) what restrictions are to apply, if any, on the issue or reissue of any additional preferred stock; and (vi) whether shares have voting rights. The preferred stock may be issued with a preference over the common stock as to the payment of dividends. We have no current plans to issue any additional preferred stock. Classes of stock such as the preferred stock may be used, in certain circumstances, to create voting impediments on extraordinary corporate transactions or to frustrate persons seeking to effect a merger or otherwise to gain control of the Company. For the foregoing reasons, any additional preferred stock issued by the Company could have an adverse effect on the rights of the holders of the common stock.
Series A Senior Preferred Stock.
In connection with the Merger, the Company filed a Certificate of Designation with the Secretary of State of the State of Delaware on June 29, 2017, designating 4,100,000 shares of the Company’s Preferred Stock, par value $0.01 per share, as Series A Senior Convertible Preferred Stock ("Series A Senior") and establishing the rights, preferences and privileges of the new preferred stock. Generally, the holders of the Series A Senior stock are entitled to vote as a single voting group with the holders of the Company's common stock, and the holders of the Series A Senior stock are generally entitled to that number of votes as is equal to the number of whole shares of the Company's common stock into which the Series A Senior stock may be converted as of the record date of such vote or consent.
So long as the shares of Series A Senior stock are outstanding certain actions will require the separate approval of at least two-thirds of the Series A Senior stock, including: changes to the terms (requires three-fourths approval) of the Series A Senior stock, changes to the number of authorized shares of Series A Senior stock, issuing a series of preferred
stock that is senior to the Series A Senior stock, changing the size of the board of directors, certain changes to the capital stock of the Company, bankruptcy proceedings and granting security interests in the Company’s assets.
The Series A Senior stock will be convertible into the Company's common stock at any time at the then applicable conversion price. The initial conversion price for the Series A Senior stock issued in connection with the Merger and the other transactions described herein is $3.736329, but will be subject to anti-dilution protections including adjustments for stock splits, stock dividends, other distributions, recapitalizations and the like. Additionally, each holder of the Series A Senior stock will have a right to convert such holder's Series A Senior stock into securities issued in any future private offering of the Company's securities at a 15% discount to the proposed price in such private offering.
The Series A Senior stock was entitled to an annual 8% cumulative payment in lieu of interest or dividends, payable in-kind for the first two years and in cash or in-kind thereafter, at the option of the Company. The Series A Senior stock also was entitled to share in any dividends paid on the Company's common stock.
As discussed in Note 3 - Reverse Merger, in connection with the Merger, the Company issued 1) to holders of certain Transgenomic secured indebtedness, 802,925 shares of Series A Senior stock in an amount equal to $3 million, 2) to holders of certain Precipio Diagnostic indebtedness, 802,920 shares of Series A Senior stock in an amount equal to $3 million and 3) to certain investors, 107,056 shares of Series A Senior stock in exchange for $400,000 in a private placement.
We determined that there was a beneficial conversion feature in connection with the issuances of the Series A Senior stock since the conversion price of $3.736329 was at a discount to the fair market value of the Company's common stock at issuance date. The Series A Senior stock is non-redeemable and as a result, the Company recognized the full beneficial conversion feature in the amount of $5.2 million as a deemed dividend (“Deemed Dividend i”) at the time of issuance.
Upon the closing of the August 2017 Offering, all of the Company’s outstanding Series A Senior stock converted into an aggregate of 1,712,901 shares of the Company's common stock, at the existing conversion rate of one share of Common Stock for one share of Series A Senior stock (the “Conversion”). The Company also issued an aggregate of 22,518 shares of Series A Senior stock to these holders, which shares represented the Series A Preferred Payment (as defined in the Company’s Certificate of Designation of Series A Senior Convertible Preferred Stock) accrued through the date of Conversion and immediately converted into an aggregate of 22,518 shares of the Company's common stock in connection with the Conversion. The Company issued warrants (the “Series A Conversion Warrants”) to purchase an aggregate of 856,446 shares of Common Stock to these former holders of Series A Senior stock as consideration for the conversion of their shares of Series A Senior stock into shares of Common Stock. The Company treated this as an induced conversion of the Series A Senior stock.
At the date of the Conversion, the fair value of the Series A Conversion Warrants was approximately $1.4 million. The Company determined that the $1.4 million represented the excess fair value of all consideration transferred to the Series A Senior holders as compared to the fair value of the Series A Senior stock pursuant to its original conversion terms. The $1.4 million was recorded as a deemed dividend (“Deemed Dividend ii”) at the time of the Conversion.
The Series A Preferred Payment of 22,518 shares of Series A Senior stock had a fair value of approximately $84,000 at the time of issuance and was recorded as a deemed dividend on preferred shares (Preferred dividends in our consolidated statement of operations).
At December 31, 2017, the Company had designated, issued and outstanding shares of Series A Senior in the amount of 4,100,000, 1,712,901 and zero, respectively. There are 4,100,000 shares designated and no shares issued and outstanding at December 31, 2018.
Series B Preferred Stock
On August 25, 2017, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (“Series B Preferred Stock”) with the State of Delaware which designates 6,900 shares of our preferred stock as Series B Preferred Stock. The Series B Preferred Stock has a stated value of $1,000 per share and a par value of $0.01 per share. The Series B Preferred Stock includes a beneficial ownership blocker but has no dividend rights (except to the extent dividends are also paid on the common stock).
On August 28, 2017, the Company completed an underwritten public offering (the “August 2017 Offering”) of 6,000 units consisting of one share of the Company’s Series B Preferred Stock, which is convertible into 400 shares of common stock, par value $0.01 per share, at a conversion price of $2.50 per share, and one warrant to purchase up to 400 shares of common stock (the “August 2017 Offering Warrants”) at a combined public offering price of $1,000 per unit. The August 2017 Offering included the sale of 280,000 August 2017 Offering Warrants pursuant to the over-allotment option exercised by Aegis Capital Corp. (“Aegis”) for $0.01 per share or $2,800. The Offering was completed pursuant to the terms of an underwriting agreement dated as of August 22, 2017 (the “Underwriting Agreement”) between the Company and Aegis. The net proceeds received by the Company from the sale of the units was approximately $5.0 million, after deducting underwriting discounts and estimated offering expenses, which have been recorded as stock issuance costs within additional paid in capital.
For purposes of recording this transaction, the gross proceeds of $6.0 million from the August 2017 Offering were allocated to the Series B Preferred Stock and the August 2017 Offering Warrants based on their relative fair values at the date of issuance. The portion allocated to the Series B Preferred stock was $3.1 million with the remaining $2.9 million allocated to the August 2017 Offering Warrants. As a result of the allocation of the proceeds, we determined that there was a beneficial conversion feature in connection with the issuance of the Series B Preferred Stock since the calculated effective conversion price was at a discount to the fair market value of the Company's common stock at issuance date. The Company recognized the full beneficial conversion feature in the amount of $2.3 million as a deemed dividend (“Deemed Dividend iii”) at time of issuance.
The conversion price of the Series B Preferred Stock contains a down round feature. As discussed in Note 2 of the accompanying consolidated financial statements, the Company early adopted ASU 2017‑11, which allowed the Company to treat the preferred stock as equity classified, despite the down round provision. The Company will recognize the effect of the down round feature when it is triggered. At that time, the effect would be treated as a deemed dividend and as a reduction of income available to common shareholders in our basic earnings per share calculation.
In November 2017, the down round feature of the Series B Preferred Stock was triggered at the time of the Company’s issuance of its Series C Preferred Stock and, as a result, the conversion price of the Series B Preferred Stock was reduced from $2.50 per share to $1.40 per share. In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $2.0 million which was recognized as a deemed dividend (Deemed Dividend iv”) at time of the down round adjustment.
The 2018 Purchase Agreement triggered the down round feature of the Series B Preferred Stock and, as a result, the conversion price of the Company’s Series B Convertible Preferred Stock was automatically adjusted from the reduced $1.40 per share price, related to the 2017 Series C issuance, to $1.04 per share. In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $1.4 million which was recognized as a deemed dividend at time of the down round adjustment (“Deemed Dividend A”).
The 2018 Inducement Agreement, discussed below,
triggered the down round feature of the Series B Preferred Stock and
, as a result, the conversion price of the Company’s Series B Convertible Preferred Stock was automatically adjusted from $1.04 per share to $0.75 per share.
In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $40,000 which was recognized as a deemed dividend at time of the down round adjustment (“Deemed Dividend B”).
The 2018 Note Agreement, see Note 7 – Convertible Notes, triggered the down round feature of the Series B Preferred Stock and
, as a result, the conversion price of the Company’s Series B Convertible Preferred Stock was automatically adjusted from $0.75 per share to $0.30 per share.
In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $0.2 million which was recognized as a deemed dividend at time of the down round adjustment (“Deemed Dividend C”).
On November 29, 2018, the Amendment Agreement triggered the down round feature of the Series B Preferred Stock and
, as a result, the conversion price of the Company’s Series B Convertible Preferred Stock was automatically adjusted from $0.30 per share to $0.15 per share.
In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $0.3 million which was recognized as a deemed dividend at time of the down round adjustment (“Deemed Dividend D”).
During the year ended December 31, 2018, 2,340 shares of Series B Preferred Stock that were outstanding at December 31, 2017, were converted into 3,120,000 shares of our common stock.
During the year ended December 31, 2017, 3,613 shares of Series B Preferred Stock were converted into 1,550,485 shares of our common stock.
At December 31, 2018 and 2017, the Company had 6,900 shares of Series B designated and issued and 47 shares and 2,387 shares, respectively of Series B outstanding.
Series C Preferred Stock
On November 6, 2017, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock (“Series C Preferred Stock”) with the State of Delaware which designates 2,748 shares of our preferred stock as Series C Preferred Stock. The Series C Preferred Stock has a stated value of $1,000 per share and a par value of $0.01 per share.
On November 2, 2017, the Company entered into a Placement Agency Agreement (the “Placement Agreement”) with Aegis Capital Corp. for the sale on a reasonable best efforts basis of 2,748 units, each consisting of one share of the Company’s Series C Preferred Stock, convertible into a number of shares of the Company’s common stock equal to $1,000 divided by $1.40 and warrants to purchase up to 1,962,857 shares of common stock with an exercise price of $1.63 per share (the “Series C Warrants”) at a combined offering price of $1,000 per unit, in a registered direct offering (the “Series C Preferred Offering”). The Series C Preferred Stock includes a beneficial ownership blocker but has no dividend rights (except to the extent dividends are also paid on the common stock). The securities comprising the units are immediately separable and were issued separately.
The gross proceeds to the Company from the sale of the Series C Preferred Stock and Series C Warrants, before deducting the placement agent fee and other estimated offering expenses payable by the Company and assuming no exercise of the Series C Warrants, were $2,748,000. The offering closed on November 9, 2017.
For purposes of recording this transaction, the gross proceeds of $2.8 million from the Series C Preferred Offering were allocated to the Series C Preferred Stock and the Series C Warrants based on their relative fair values at the date of issuance. The portion allocated to the Series C Preferred stock was $1.5 million with the remaining $1.3 million allocated to the Series C Warrants. As a result of the allocation of the proceeds, we determined that there was a beneficial conversion feature in connection with the issuance of the Series C Preferred Stock since the calculated effective conversion price was at a discount to the fair market value of the Company's common stock at issuance date. The Company recognized the full beneficial conversion feature in the amount of $1.2 million as a deemed dividend (“Deemed Dividend v”) at time of issuance.
The Series C Preferred Offering required the Company to adjust downward the exercise and conversion prices of various warrants and Series B Preferred Stock that were outstanding at the time of the closing of the Series C Preferred Offering due to the down round provisions contained in certain of the Company's warrants and Series B Preferred Stock.
The conversion price of the Series C Preferred Stock contains a down round feature. The 2018 Purchase Agreement
triggered the down round feature of the Series C Preferred Stock and
, as a result, the conversion price of the Company’s Series C Convertible Preferred Stock was automatically adjusted from $1.40 per share to $1.04 per share.
In connection with the down round adjustment, the Company calculated an incremental beneficial conversion feature of approximately $0.8 million which was recognized as a deemed dividend at time of the down round adjustment (“Deemed Dividend E”). There were no further adjustments to the conversion price of the Series C Preferred stock because all of the Series C Preferred Stock had been converted by March 31, 2018.
During the year ended December 31, 2018, 2,548 shares of Series C Preferred Stock were converted into 3,345,334 shares of our common stock. At December 31, 2018, the Company had 2,748 shares of Series C designated and issued and zero shares of Series C outstanding.
During the year ended December 31, 2017, 200 shares of Series C Preferred Stock were converted into 142,857 shares of our common stock. At December 31, 2017, the Company had designated, issued and outstanding shares of Series C in the amount of 2,748, 2,748 and 2,548, respectively.
Liquidation Preferences
The following is the liquidation preferences for the Company’s preferred stock;
The Series B Preferred Stock and Series C Preferred Stock have identical terms regarding liquidation preferences. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders shall be entitled to receive out of the assets of the Corporation an amount equal to the par value, plus any accrued and unpaid dividends thereon, for each share of Preferred Stock before any distribution or payment shall be made to the holders of the Common Stock, and if the assets of the Corporation shall be insufficient to pay in full such amounts, then the entire assets to be distributed to the holders shall be ratably distributed among the holders in accordance with the respective amounts that would be payable on such shares. If all amounts were paid in full; and thereafter, the holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of Common Stock would receive if the Preferred Stock were fully converted to Common Stock which amount shall be paid pari passu with all holders of Common Stock.
Preferred Stock induced conversions
On March 21, 2018, the Company entered into a letter agreement (the “2018 Inducement Agreement”) with certain holders of shares of the Company’s Series B Preferred Stock and Series C Preferred Stock (together the “Preferred Stock”), and warrants (the “Warrants”) to purchase shares of the Company’s common stock, issued in the Company’s public offering in August 2017 and registered direct offering in November 2017. Pursuant to the 2018 Inducement Agreement, the Company and the Investors agreed that, as a result of the issuance of shares of common stock pursuant to that Purchase Agreement, dated February 8, 2018, by and between the Company and the investor named therein, and effective as of the time of execution of the 2018 Inducement Agreement, the exercise price of the Warrants was reduced to $0.75 per share (the “Exercise Price Reduction”) and the conversion price of the Preferred Stock was reduced to $0.75 (the “Conversion Price Reduction”). As consideration for the Company’s agreement to the Exercise Price Reduction and the Conversion Price Reduction, (i) each Investor agreed to convert the shares of Preferred Stock held by such Investor into shares of Common Stock in increments of up to 4.99% of the shares of Common Stock outstanding as of the date of the 2018 Inducement Agreement and (ii) one Investor agreed to exercise 666,666 Warrants and another Investor agreed to exercise 500,000 Warrants in increments of up to 4.99% of the shares of common stock outstanding as of the date of the 2018 Inducement Agreement, in each case in accordance with the beneficial ownership limitations set forth in the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock and the Warrants. As discussed above, as of December 31, 2018, all shares of Preferred Stock, except 47 shares of Series B Preferred Stock, were converted to shares of our common stock pursuant to the terms of the 2018 Inducement Agreement and 300,000 Warrants were exercised at the $0.75 exercise price.
The 2018 Inducement Agreement represented an inducement by the Company to convert shares of the Preferred Stock. The conversion price of the Preferred Stock was reduced from $1.04 per share to $0.75 per share and the exercise price of the Warrants was reduced from $1.04 per share to $0.75 per share. The Company calculated the fair value of the additional securities and consideration to be approximately $1.2 million (“Deemed Dividend F”). This amount was recorded as a charge to additional paid-in-capital and as a deemed dividend resulting in a reduction of income available to common shareholders in our basic earnings per share calculation. The $1.2 million is comprised of two components: 1) $1.1 million related to the fair value of the additional common shares issued upon conversion of the Preferred Stock due to the reduced conversion price and 2) $0.1 million in incremental fair value of the Warrants resulting from the reduction of the exercise price.
Common Stock Warrants
.
Prior to the Merger, the Company issued warrants to purchase 8,542 Series A Preferred shares of the Company, which were classified as an equity warrant, at an exercise price of $2.93 per unit, subject to adjustments as defined in the warrant agreement. The warrants were valued at $6,000 at the date of the grant utilizing the Black-Sholes model (volatility 40%, expected life 7 years, and risk free rate .36%). The value of the warrants was treated as a debt discount. At the Merger date, the warrants were exercised for $25,000 and then converted into shares of Precipio common stock.
In connection with the Webster Bank agreement (pre-merger), the Company issued 7 years warrants to purchase 20,000 Series B Preferred shares of the Company. At the Merger date, Webster Bank declined to exercise their warrants and, per the terms of the warrant agreement, the warrants were retired.
The following represents a summary of the warrants outstanding as of December 31, 2018:
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|
|
|
|
|
|
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Underlying
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|
Exercise
|
|
|
Issue Year
|
|
Expiration
|
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Shares
|
|
Price
|
Warrants Assumed in Merger
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|
|
|
|
|
|
|
|
|
(1)
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|
2014
|
|
April 2020
|
|
12,487
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|
$
|
120.00
|
(2)
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|
2015
|
|
February 2020
|
|
23,826
|
|
$
|
67.20
|
(3)
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|
2015
|
|
December 2020
|
|
4,081
|
|
$
|
49.80
|
(4)
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|
2016
|
|
January 2021
|
|
8,952
|
|
$
|
36.30
|
|
|
|
|
|
|
|
|
|
|
Warrants
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|
|
|
|
|
|
|
|
|
(5)
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|
2017
|
|
June 2022
|
|
38,100
|
|
$
|
2.75
|
(5)
|
|
2017
|
|
June 2022
|
|
7,500
|
|
$
|
0.50
|
(6)
|
|
2017
|
|
June 2022
|
|
91,429
|
|
$
|
7.00
|
(7)
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|
2017
|
|
August 2022
|
|
480,000
|
|
$
|
0.15
|
(8)
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|
2017
|
|
August 2022
|
|
60,000
|
|
$
|
3.125
|
(9)
|
|
2017
|
|
August 2022
|
|
719,929
|
|
$
|
10.00
|
(9)
|
|
2017
|
|
August 2022
|
|
136,517
|
|
$
|
0.50
|
(10)
|
|
2017
|
|
August 2022
|
|
249,972
|
|
$
|
0.15
|
(10)
|
|
2017
|
|
August 2022
|
|
110,027
|
|
$
|
0.15
|
(11)
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|
2017
|
|
October 2022
|
|
10,000
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|
$
|
0.15
|
(12)
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|
2017
|
|
May 2023
|
|
375,557
|
|
$
|
0.15
|
(13)
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|
2018
|
|
October 2022
|
|
108,112
|
|
$
|
7.50
|
(14)
|
|
2018
|
|
April 2019
|
|
1,824,176
|
|
$
|
0.50
|
(14)
|
|
2018
|
|
April 2023
|
|
1,824,176
|
|
$
|
0.50
|
(15)
|
|
2018
|
|
October 2022
|
|
232,000
|
|
$
|
0.75
|
(16)
|
|
2018
|
|
July 2019
|
|
382,526
|
|
$
|
0.50
|
(16)
|
|
2018
|
|
July 2023
|
|
382,526
|
|
$
|
0.50
|
(16)
|
|
2018
|
|
August 2019
|
|
545,000
|
|
$
|
0.50
|
(16)
|
|
2018
|
|
August 2023
|
|
545,000
|
|
$
|
0.50
|
(16)
|
|
2018
|
|
September 2019
|
|
545,002
|
|
$
|
0.50
|
(16)
|
|
2018
|
|
September 2023
|
|
545,001
|
|
$
|
0.50
|
(17)
|
|
2018
|
|
November 2023
|
|
2,084,126
|
|
$
|
0.36
|
(17)
|
|
2018
|
|
December 2023
|
|
2,417,586
|
|
$
|
0.36
|
|
|
|
|
|
|
13,763,608
|
|
|
|
|
(1)
|
|
These warrants were issued in connection with a private placement which was completed in October 2014.
|
|
(2)
|
|
These warrants were issued in connection with an offering which was completed in February 2015.
|
|
(3)
|
|
These warrants were issued in connection with an offering which was completed in July 2015.
|
|
(4)
|
|
These warrants were issued in connection with an offering which was completed in January 2016. Of the remaining outstanding warrants as of December 31, 2018, 5,368 warrants are recorded as liability, See Note 12 – Fair Value for further discussion, and 3,584 warrants are treated as equity.
|
|
(5)
|
|
These warrants were issued in connection with the Merger and are the 2017 New Bridge Warrants.
|
|
(6)
|
|
These warrants were issued in connection with the Merger and are considered the Side Warrants.
|
|
(7)
|
|
These warrants were issued in connection with the August 2017 Offering and are the August 2017 Offering Warrants discussed below.
|
|
(8)
|
|
These warrants were issued in connection with the August 2017 Offering and are the Representative Warrants discussed below.
|
|
(9)
|
|
These warrants were issued in connection with the conversion of our Series A Senior stock, at the time of the closing of the August 2017 Offering, and are the Series A Conversion Warrants discussed below.
|
|
(10)
|
|
These warrants were issued in connection with the conversion of convertible bridge notes, at the time of the closing of the August 2017 Offering, and are the Note Conversion Warrants discussed below.
|
|
(11)
|
|
These warrants were issued in connection with a waiver of default the Company received in the fourth quarter of 2017 in connection with the Convertible Promissory Notes and are the Convertible Promissory Note Warrants discussed below.
|
|
(12)
|
|
These warrants were issued in connection with the Series C Preferred Offering and are the Series C Warrants discussed below.
|
|
(13)
|
|
These warrants were issued in connection with the Debt Obligation settlement agreements and are the Creditor Warrants discussed below.
|
|
(14)
|
|
These warrants were issued in connection with the 2018 Note Agreement and are the April 2018 Warrants discussed below.
|
|
(15)
|
|
These warrants were issued in connection with the 2018 Note Agreement and are the Advisor Warrants discussed below.
|
|
(16)
|
|
These warrants were issued in connection with the 2018 Note Agreement and are the Q3 2018 Warrants discussed below.
|
|
(17)
|
|
These warrants were issued in connection with the 2018 Note Agreement, and subsequent Amendment Agreement, and are the Q4 2018 Warrants discussed below.
|
Warrants Assumed in Merger
At the time of the Merger, Transgenomic had a number of outstanding warrants related to various financing transactions that occurred between 2013‑2016. Details related to year issued, expiration date, amount of underlying common shares and exercise price are included in the table above.
2017 New Bridge Warrants
During 2017, prior to the Merger, Transgenomic completed the sale of the 2017 Bridge Notes in the amount of $1.2 million and the issuance of the 2017 Bridge Warrants to acquire 40,000 shares of the Company's common stock at an exercise price of $15.00 per share, subject to anti-dilution protection. Aegis acted as placement agent for the bridge financing and received Aegis Warrants to acquire 5,600 shares of Transgenomic common stock at an exercise price of $15.00 per share. The Aegis Warrants are identical to the 2017 Bridge Warrants except that the Aegis Warrants do not have anti-dilution protection.
In connection with the Merger, the holders of the 2017 Bridge Notes, the 2017 Bridge Warrants and the Aegis Warrants agreed to exchange the 2017 Bridge Notes, the 2017 Bridge Warrants and the Aegis Warrants for 2017 New Bridge Notes and the 2017 New Bridge Warrants to acquire 45,600 shares of our common stock.
The initial exercise price of the 2017 New Bridge Warrants was $7.50 (subject to adjustments). These warrants had a one-time down round provision that if the Company completed a Qualified Offering (as defined in the 2017 New Bridge Warrants), the exercise price of the 2017 New Bridge Warrants would become the lower of (i) $7.50 or (ii) 110% of the per share offering price in the Qualified Offering, but in no event lower than $1.50 per share. As a result of the Series B Preferred Stock issued in the August 2017 Offering, the exercise price
of the 2017 New Bridge Warrants was adjusted to $2.75 per share, and the down round provision for these warrants no longer exists after this adjustment.
At issuance, the 2017 New Bridge Warrants had a fair value of $211,000 and were recorded as a debt discount to the related 2017 New Bridge Notes I, with the corresponding entry to additional paid in capital as the warrants were considered classified as equity in accordance with GAAP.
At the time the exercise price was adjusted, due to the down round provision triggered by the August 2017 Offering, the Company calculated the fair value of the down round provision on the warrants to be approximately $12,000 and recorded this as deemed dividend (“Deemed Dividend vi”).
Side Warrants
The Company issued warrants to purchase an aggregate of 91,429 shares of the Company’s common stock at an exercise price of $7.00 per share (subject to adjustment). The warrants (“Side Warrants”) have a term of 5 years and are exercisable as to 22,857 shares of the Company’s common stock upon grant and as to 68,572 shares of the Company’s common stock upon certain performance obligations. All performance obligations have been met and the Company recorded merger advisory expense of $487,000 related to the Side Warrants during 2017.
August 2017 Offering Warrants
In connection with the August 2017 Offering, the Company issued 2,680,000 warrants at an exercise price of $3.00, which contain a down round provision. The August 2017 Offering Warrants were exercisable immediately and expire 5 years from date of issuance. The terms of the August 2017 Offering Warrants prohibit a holder from exercising its August 2017 Offering Warrants if doing so would result in such holder (together with its affiliates) beneficially owning more than 4.99% of the Company’s outstanding shares of common stock after giving effect to such exercise, provided that, at the election of a holder and notice to the Company, such beneficial ownership limitation may be increased to 9.99% of the Company’s outstanding shares of common stock after giving effect to such exercise.
As a result of the Series C Preferred Offering, the exercise price of the August 2017 Offering Warrants was adjusted to $1.40 per share.
At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $
211
,000 and recorded this as a deemed dividend (Deemed Dividend vii”) during 2017.
In February 2018, as a result of 2018 Purchase Agreement, the exercise price of the August 2017 Offering Warrants was adjusted to $1.04. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $62,000 and recorded this as a deemed dividend
(“Deemed Dividend G”) during 2018
. In addition, as a result of the 2018 Inducement Agreement, the exercise price of the August 2017 Offering Warrants was further adjusted to $0.75 as a result of the Exercise Price Reduction discussed above.
In April 2018, as a result of the 2018 Note Agreement, the exercise price
of the August 2017 Offering Warrants was adjusted to $0.30. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $63,000 and recorded this as a deemed dividend
(“Deemed Dividend H”)
.
In November 2018, as a result of the Amendment Agreement, the exercise price
of the August 2017 Offering Warrants was adjusted to $0.15. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $5,000 and recorded this as a deemed dividend
(“Deemed Dividend I”).
There were 2,200,000 August 2017 Offering Warrants exercised during the year ended December 31, 2018 for proceeds to the Company of approximately $795,000. During the year ended December 31, 2018, the intrinsic value of the August 2017 Offering Warrants exercised was approximately $420,000.
Representative Warrants
In accordance with the underwriting agreement for the August 2017 Offering, the underwriter purchased 60,000 warrants, with an exercise price of $3.125, for an aggregate price of $100. These warrants (“Representative Warrants”) are exercisable beginning one year after the date of the prospectus for the August 2017 Offering and expiring on a date which is no more than five years from the date of the prospectus for the August 2017 Offering. The fair value of the warrants at date of issuance of approximately $113,000 was treated as a stock issuance cost and recorded as a reduction to additional paid in capital.
Series A Conversion Warrants
The Company issued Series A Conversion Warrants to purchase an aggregate of 856,446 shares of the Company’s common stock at an exercise price of $10.00 per share, which have a term of 5 years. At the time of issuance, the Series A Conversion Warrants had a fair value of $1.4 million and, as discussed in the Series A Senior Preferred Stock section above, these were issued and recorded as deemed dividends.
Note Conversion Warrants
Upon the closing of the August 2017 Offering, $900,000 of the Company’s 2017 New Bridge Notes were converted into an aggregate of 359,999 shares of the Company's common stock and the Company issued 359,999
warrants to purchase the Company's common stock (the “Note Conversion
Warrants”). The Note Conversion Warrants have an exercise price of $3.00 per share, a five year term and contain a down round provision. The conversion of the Company's 2017 New Bridge Notes was treated as an induced conversion and at the date of the conversion the Company recorded an expense of approximately $1.0 million which is included in loss on extinguishment of debt and induced conversion of convertible bridge notes in our consolidated statements of operations in 2017.
As a result of the Series C Preferred Offering in 2017, the exercise price of the Note Conversion Warrants was adjusted to $1.40 per share.
During 2017, the Company calculated the fair value of the down round provision on the warrants to be approximately $28,000 and recorded this as a deemed dividend (“Deemed Dividend viii”).
In February 2018, as a result of 2018 Purchase Agreement, the exercise price of the Note Conversion Warrants was adjusted to $1.04. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $8,000 and recorded this as a deemed dividend
(“Deemed Dividend J”)
. In addition, as a result of the 2018 Inducement Agreement, the exercise price of the Note Conversion Warrants was further adjusted to $0.75. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $5,000 and recorded this as a deemed dividend
(“Deemed Dividend K”)
.
In April 2018, as a result of the 2018 Note Agreement, the exercise price
of the Note Conversion Warrants was adjusted to $0.30. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $10,000 and recorded this as a deemed dividend
(“Deemed Dividend L”)
.
In November 2018, as a result of the Amendment Agreement, the exercise price
of the Note Conversion Warrants was adjusted to $0.15. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $4,000 and recorded this as a deemed dividend
(“Deemed Dividend M”)
.
Convertible Promissory Note Warrants
The Company issued warrants on October 3, 2017 to purchase 10,000 shares of the Company’s common stock (“Convertible Promissory Note Warrants”). They have an exercise price of $3.00 per share, contain a down round provision, were exercisable immediately and expire 5 years from date of issuance. The fair value of the warrants at date of issuance of approximately $15,000 was recorded as interest expense and included in the consolidated statements of operations during 2017.
As a result of the Series C Preferred Offering, the exercise price of the Convertible Promissory Note Warrants was adjusted to $1.40 per share.
During 2017, the Company calculated the fair value of the down round provision on the warrants to be approximately $1,000 and recorded this as a deemed dividend (“Deemed Dividend ix”).
In February 2018, as a result of 2018 Purchase Agreement, the exercise price of the Convertible Promissory Note Warrants was adjusted to $1.04. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be less than $1,000 and recorded this as a deemed dividend
(“Deemed Dividend N”)
. In addition, as a result of the 2018 Inducement Agreement, the exercise price of the Convertible Promissory Note Warrants was further adjusted to $0.75. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be less than $1,000 and recorded this as a deemed dividend
(“Deemed Dividend O”)
.
In April 2018, as a result of the 2018 Note Agreement, the exercise price
of the Convertible Promissory Note Warrants was adjusted to $0.30. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be less than $1,000 and recorded this as a deemed dividend
(“Deemed Dividend P”)
.
In November 2018, as a result of the Amendment Agreement, the exercise price
of the Convertible Promissory Note Warrants was adjusted to $0.15. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be less than $1,000 and recorded this as a deemed dividend
(“Deemed Dividend Q”)
.
Series C Warrants
In connection with the Series C Preferred Offering, the Company issued 1,962,857 warrants at an exercise price of $1.63, which contain a down round provision. Series C Warrants are exercisable on the six-month anniversary of the date of issuance and expire 5 years from date they are initially exercisable. The terms of the Series C Warrants prohibit a holder from exercising its Series C Warrants if doing so would result in such holder (together with its affiliates) beneficially owning more than 4.99% of the Company’s outstanding shares of common stock after giving effect to such exercise, provided that, at the election of a holder and notice to the Company, such beneficial ownership limitation may be increased to 9.99% of the Company’s outstanding shares of common stock after giving effect to such exercise.
In February 2018, as a result of 2018 Purchase Agreement, the exercise price of the Series C Warrants was adjusted to $1.04. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $58,000 and recorded this as a deemed dividend
(“Deemed Dividend R”)
. In addition, as a result of the 2018 Inducement Agreement, the exercise price of the Series C Warrants was further adjusted to $0.75 as a result of the Exercise Price Reduction discussed above.
In April 2018, as a result of the 2018 Note Agreement, the exercise price
of the Series C Warrants was adjusted to $0.30. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $45,000 and recorded this as a deemed dividend
(“Deemed Dividend S”)
.
In November 2018, as a result of the Amendment Agreement, the exercise price
of the Series C Warrants was adjusted to $0.15. At the time the exercise price was adjusted, the Company calculated the fair value of the down round provision on the warrants to be approximately $4,000 and recorded this as a deemed dividend
(“Deemed Dividend T”)
.
There were 1,587,300 Series C Warrants exercised during the year ended December 31, 2018 for proceeds to the Company of approximately $476,000. During the year ended December 31, 2018, the intrinsic value of the Series C Warrants exercised was approximately $294,000.
Creditor Warrants
In the fourth quarter of 2017, the Company entered into Settlement Agreements with certain of its accounts payable and accrued liability vendors (the “Creditors”) pursuant to which the Company agreed to issue, to certain of its Creditors, warrants to purchase 108,112 shares of the Company’s common stock at an exercise price of $7.50 per share. The warrants were issued in February 2018. See Note 6 – Long-Term Debt.
April 2018 Warrants
In connection with the issuance of the April 2018 Bridge Notes, the Company issued 3,648,352 warrants at an exercise price of $0.75 at time of issuance. In September 2018, the exercise price was amended to $0.50. Half of these April 2018 Warrants have a five-year term and half have a one-year term. At the time of issuance, as discussed in Note 7 - Convertible Notes, the April 2018 Warrants had a fair value of approximately $1.1 million and were recorded as a liability with an offset to debt discount.
Advisor Warrants
At the time of the 2018 Note Agreement, the Company issued 232,000 warrants with an exercise price of $0.75 to a financial advisor. At the time of issuance, as discussed in Note 7 - Convertible Notes, the Advisor Warrants had a fair value of approximately $0.1 million and were recorded as a liability with an offset to debt discount.
Q3 2018 Warrants
In connection with the issuance of the Q3 2018 Bridge Notes, the Company issued 2,945,055 warrants with an exercise price of $0.75 at time of issuance. Half of these Q3 2018 Warrants have a five-year term and half have a one-year term. At the time of issuance, as discussed in Note 7 - Convertible Notes, the Q3 2018 Warrants had a fair value of approximately $0.7 million and were recorded as a liability with an offset to debt discount. In September 2018, the exercise price was modified to $0.50. The Company calculated the change in fair value due to repricing to be an expense of approximately $0.1 million which is included in warrant revaluation and modification in the consolidated statements of operations.
Q4 2018 Warrants
In connection with the issuance of the Q4 2018 Bridge Notes, the Company issued 4,501,712 warrants with an exercise price of $0.36 at time of issuance and a five-year term. At the time of issuance, as discussed in Note 7 - Convertible Notes, the Q4 2018 Warrants had a fair value of approximately $0.7 million and were recorded as a liability with an offset to debt discount.
Deemed Dividends
As discussed above, certain of our preferred stock and warrant issuances contain down round provisions which require us to recognize the effect of the down round feature when it is triggered. That effect is treated as a dividend and as a reduction of income available to common shareholders in basic EPS. See Note 2 – Summary of Significant Accounting Policies and ASU 2017-11 for further discussion.
The following represents a summary of the dividends recorded for the year ended December 31, 2018 and 2017:
|
|
|
|
|
Amount Recorded
|
Deemed Dividends
|
|
(in thousands)
|
|
|
|
Dividends resulting from the 2018 Purchase Agreement
|
|
|
Deemed Dividend A
|
$
|
1,358
|
Deemed Dividend E
|
|
829
|
Deemed Dividend G
|
|
62
|
Deemed Dividend J
|
|
8
|
Deemed Dividend N
|
|
*
|
Deemed Dividend R
|
|
58
|
|
|
|
Dividends resulting from the 2018 Inducement Agreement
|
|
|
Deemed Dividend B
|
|
40
|
Deemed Dividend F
|
|
1,154
|
Deemed Dividend K
|
|
5
|
Deemed Dividend O
|
|
*
|
|
|
|
Dividends resulting from the 2018 Note Agreement
|
|
|
Deemed Dividend C
|
|
216
|
Deemed Dividend H
|
|
63
|
Deemed Dividend L
|
|
10
|
Deemed Dividend P
|
|
*
|
Deemed Dividend S
|
|
45
|
|
|
|
Dividends resulting from the Amendment Agreement
|
|
|
Deemed Dividend D
|
|
361
|
Deemed Dividend I
|
|
5
|
Deemed Dividend M
|
|
4
|
Deemed Dividend Q
|
|
*
|
Deemed Dividend T
|
|
4
|
|
|
|
Total 2018 Deemed Dividends
|
$
|
4,222
|
|
|
|
|
|
|
Dividends resulting from the Series A Senior stock issuance
|
|
|
Deemed Dividend i
|
$
|
5,248
|
|
|
|
Dividends resulting from the August 2017 Offering
|
|
|
Deemed Dividend ii
|
|
1,367
|
Deemed Dividend iii
|
|
2,385
|
Deemed Dividend vi
|
|
12
|
|
|
|
Dividends resulting from the Series C Preferred Offering
|
|
|
Deemed Dividend iv
|
|
1,968
|
Deemed Dividend v
|
|
1,211
|
Deemed Dividend vii
|
|
211
|
Deemed Dividend viii
|
|
28
|
Deemed Dividend ix
|
|
1
|
|
|
|
Total 2017 Deemed Dividends
|
$
|
12,431
|
* Represents less than one thousand dollars
12. FAIR VALUE
FASB guidance on fair value measurements, which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements for our financial assets and liabilities, as well as for other assets and liabilities that are carried at fair value on a recurring basis in our consolidated financial statements.
FASB guidance establishes a three-level fair value hierarchy based upon the assumptions (inputs) used to price assets or liabilities. The three levels of inputs used to measure fair value are as follows:
Level 1—Unadjusted quoted prices in active markets for identical assets or liabilities;
Level 2—Observable inputs other than those included in Level 1, such as quoted prices for similar assets and liabilities in active markets or quoted prices for identical assets or liabilities in inactive markets; and
Level 3—Unobservable inputs reflecting our own assumptions and best estimate of what inputs market participants would use in pricing the asset or liability.
Common Stock Warrant Liabilities.
Certain of our issued and outstanding warrants to purchase shares of common stock do not qualify to be treated as equity and, accordingly, are recorded as a liability. We are required to record these instruments at fair value at each reporting date and changes are recorded as a non-cash adjustment to earnings. The gains or losses included in earnings are reported in other income (expense) in our consolidated statement of operations.
2016 Warrant Liability
The Company assumed the 2016 Warrant Liability in the Merger and it represents the fair value of Transgenomic warrants issued in January 2016, of which, 5,368 warrants remain outstanding as of December 31, 2018.
In March 2018, a portion of the 2016 Warrant Liability was part of a settlement agreement pursuant to a lawsuit that was filed against the Company by one of the warrant holders. As such, approximately $0.4 million of the warrant liability, representing 20,216 warrants, was canceled on the date of the settlement agreement and replaced by amounts now recorded as other current liabilities. For further detail, see discussion of the Crede Agreement in Note 8 – Accrued Expenses and Other Current Liabilities.
The 2016 Warrant Liability is considered a Level 3 financial instrument and was valued using the Monte Carlo methodology. As of December 31, 2018, assumptions and inputs used in the valuation of the common stock warrants include: remaining life to maturity of two years; annual volatility of 176%; and a risk-free interest rate of 2.48%.
2018 Warrant Liabilities
In April 2018, the Company issued 3,648,352 of April 2018 Warrants and 232,000 of Advisor Warrants. In the third quarter of 2018, the Company issued 2,945,055 of Q3 2018 Warrants and in the fourth quarter of 2018, the Company issued 4,501,712 of Q4 2018 Warrants. All of these warrants issuances were classified as warrant liabilities (the “2018 Warrant Liabilities”). See Note 7 - Convertible Notes for further discussion of each warrant.
The 2018 Warrant Liabilities are considered Level 3 financial instruments and were valued using the Black Scholes model. As of December 31, 2018, assumptions used in the valuation of the 2018 Warrant Liabilities include: remaining life to maturity of 0.30 to 5.0 years; annual volatility of 85% to 162%; and risk free rate of 2.45% to 2.63%.
During the year ended December 31, 2018, the change in the fair value of the warrant liabilities measured using significant unobservable inputs (Level 3) were comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
Dollars in Thousands
|
|
|
|
|
|
Year Ended December 31, 2018
|
|
|
|
2016 Warrant
|
|
2018 Warrant
|
|
Total Warrant
|
|
|
|
Liability
|
|
Liabilities
|
|
Liabilities
|
|
Beginning balance at January 1
|
|
$
|
841
|
|
$
|
–
|
|
$
|
841
|
|
Additions:
|
|
|
–
|
|
|
2,665
|
|
|
2,665
|
|
Total (gain) loss:
|
|
|
|
|
|
|
|
|
|
|
Revaluation recognized in earnings
|
|
|
(269)
|
|
|
(1,792)
|
|
|
(2,061)
|
|
Modification recognized in earnings
|
|
|
–
|
|
|
143
|
|
|
143
|
|
Deductions – warrant liability settlement
|
|
|
(456)
|
|
|
–
|
|
|
(456)
|
|
Balance at December 31
|
|
$
|
116
|
|
$
|
1,016
|
|
$
|
1,132
|
|
|
|
|
|
Dollars in Thousands
|
|
|
|
|
|
Year Ended December 31, 2017
|
|
|
2016 Warrant
|
|
|
Liability
|
Beginning balance at January 1
|
|
$
|
–
|
Additions:
|
|
|
615
|
Total (gain) loss:
|
|
|
|
Revaluation recognized in earnings
|
|
|
226
|
Balance at December 31
|
|
$
|
841
|
Derivative Liabilities.
Certain of our issued and outstanding convertible notes contain features that are considered derivative instruments and are required to bifurcated from the debt host and accounted for separately as derivative liabilities. The estimated fair value of the derivatives will be remeasured at each reporting date and any change in estimated fair value of the derivatives will be recorded as non-cash adjustments to earnings. The gains or losses included in earnings are reported in other income (expense) in our consolidated statement of operations.
Bridge Notes Redemption Feature
At the time of the Bridge Note issuances, the Company recorded derivative instruments as liabilities with an initial fair value of approximately $0.3 million. The valuations were performed using the “with and without” approach,
whereby the Bridge Notes were valued both with the embedded derivative and without, and the difference in values was recorded as the derivative liability. In November 2018, the conversion price of the April 2018 Bridge Note and the Q3 2018 Bridge Note was amended. The amendment was treated as an extinguishment which resulted in less than $0.1 million of derivative liabilities being written off in November 2018. See Note 7 - Convertible Notes for further discussion.
Conversion Option
The Company recorded derivative liabilities related to the Conversion Option of the Exchange Notes issued during the year ended December 31, 2018 with an initial fair value of approximately $0.4 million. The valuations were performed using the Monte Carlo methodology. Approximately $0.3 million of Conversion Option derivative liabilities were written off due to Exchange Note conversions. See Note 7 - Convertible Notes for further discussion.
During the year ended December 31, 2018, the change in the fair value of the derivative liabilities were comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2018
|
|
|
Bridge Notes
|
|
|
|
|
|
|
|
|
Redemption
|
|
Conversion
|
|
Total Derivative
|
|
|
Feature
|
|
Option
|
|
Liabilities
|
Beginning balance at January 1
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
Additions:
|
|
|
269
|
|
|
383
|
|
|
652
|
Deductions:
|
|
|
—
|
|
|
(301)
|
|
|
(301)
|
Total (gain) loss:
|
|
|
|
|
|
|
|
|
|
Extinguishment recognized in earnings
|
|
|
(22)
|
|
|
—
|
|
|
(22)
|
Revaluation recognized in earnings
|
|
|
(217)
|
|
|
(50)
|
|
|
(267)
|
Balance at December 31
|
|
$
|
30
|
|
$
|
32
|
|
$
|
62
|
13. EQUITY INCENTIVE PLAN
The Company’s 2006 Equity Incentive Plan (the "2006 Plan") was terminated as to future awards on July 12, 2016. The Company’s 2017 Stock Option and Incentive Plan (the "2017 Plan") was adopted by the Company’s stockholders on June 5, 2017 and there were 666,666 shares of common stock reserved for issuance under the 2017 Plan. The 2017 Plan will expire on June 5, 2027.
The Plan is administered by the Compensation Committee of the Board of Directors (the “Committee”), which has the authority to set the number, exercise price, term and vesting provisions of the awards granted under the Plan, subject to the terms thereof. Either incentive or non-qualified stock options may be granted to employees of the Company, but only non-qualified stock options may be granted to non-employee directors and advisors. However, in either case, the Plan requires that stock options must be granted at exercise prices not less than the fair market value of the common stock on the date of the grant. Options issued under the plan vest over periods as determined by the Committee and expire 10 years after the date the option was granted.
The Company accounts for all stock-based compensation payments to employees and directors, including grants of employee stock options, at fair value and expenses the benefit in operating expense in the consolidated statements of operations over the service period of the awards. The fair value of each stock option granted is estimated on the date of grant using the Black-Scholes option pricing model, which requires various assumptions including estimating stock price volatility, expected life of the stock option, risk free interest rate and estimated forfeiture rate.
Amendment of the 2017 Stock Option and Incentive Plan
On January 31, 2018, at a special meeting of the stockholders of the Company, the stockholders approved an amendment and restatement of the Company’s 2017 Stock Option and Incentive Plan (the “2017 Plan”) to:
|
·
|
|
increase the aggregate number of shares authorized for issuance under the 2017 Plan by 5,389,500 shares to 6,056,166 shares;
|
|
·
|
|
increase the maximum number of shares that may be granted in the form of stock options or stock appreciation rights to any one individual in any one calendar year and the maximum number of shares underlying any award intended to qualify as performance-based compensation to any one individual in any performance cycle, in each case to 1,000,000 shares of common stock; and
|
|
·
|
|
add an “evergreen” provision, pursuant to which the aggregate number of shares authorized for issuance under the 2017 Plan will be automatically increased each year beginning on January 1, 2019 by 5% of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31, or such lesser number of shares determined by the Company’s Board of Directors or Compensation Committee
|
Stock Options.
During the year ended December 31, 2018, The Company granted stock options to employees and directors to purchase up to 3,365,488 shares of common stock at a weighted average exercise price of $0.70. These awards have vesting periods of three to four years and had a weighted average grant date fair value of $0.64. The fair value calculation of options granted during 2018 used the follow assumptions: risk free interest rates of 2.63% to 2.88%, based on the U.S. Treasury yield in effect at the time of grant; expected life of six years; and volatility of 135% based on historical volatility of the Company’s common stock over a time that is consistent with the expected life of the option.
The following table summarizes stock option activity under our plans during the year ended December 31, 2018:
|
|
|
|
|
|
|
|
Number of
|
|
Weighted-Average
|
|
|
Options
|
|
Exercise Price
|
Outstanding at January 1, 2018
|
|
236,484
|
|
$
|
7.12
|
Granted
|
|
3,365,488
|
|
|
0.70
|
Forfeited
|
|
(228,541)
|
|
|
2.00
|
Outstanding at December 31, 2018
|
|
3,373,431
|
|
$
|
1.06
|
Exercisable at December 31, 2018
|
|
356,019
|
|
$
|
3.64
|
As of December 31, 2018, there were 2,618,963 options that were vested or expected to vest with an aggregate intrinsic value of zero and a remaining weighted average contractual life of 9.1 years.
During the year ended December 31, 2017, there were 232,332 options granted with a weighted average exercise price of $1.85 and 20,448 options forfeited with a weighted average exercise price of $69.39.
During the years ended December 31, 2018 and 2017, we recorded compensation expense for all stock awards of $0.5 million and less than $0.1 million, respectively, within operating expense in the accompanying statements of operations. As of December 31, 2018, the unrecognized compensation expense related to unvested stock awards was $1.9 million, which is expected to be recognized over a weighted-average period of 2.8 years.
Stock Appreciation Rights (
“
SARs
”
)
As of December 31, 2017, zero SARs shares were outstanding. During year ended December 31, 2017, the SARs liability decreased approximately $8,000 and at December 31, 2017, no liability was recorded in accrued expenses since there were no shares outstanding.
14. SALES SERVICE REVENUE, NET AND ACCOUNTS RECEIVABLE
Adoption of ASC Topic 606, “Revenue from contracts with customers”
On January 1, 2018, the Company adopted ASC 606 that amends the guidance for the recognition of revenue from contracts with customers to transfer goods and services by using the modified-retrospective method applied to any contracts that were not completed as of January 1, 2018. The Company performed a comprehensive review of its existing revenue arrangements following the five-step model:
Step 1: Identification of the contract with the customer. Sub-steps include determining the customer in a contract; Initial contract identification and determine if multiple contracts should be combined and accounted for as a single transaction.
Step 2: Identify the performance obligation in the contract. Sub-steps include identifying the promised goods and services in the contract and identifying which performance obligations within the contract are distinct.
Step 3: Determine the transaction price. Sub-steps include variable consideration, constraining estimates of variable consideration, the existence of a significant financing component in the contract, noncash consideration and consideration payable to a customer.
Step 4: Allocate transaction price. Sub-steps include assessing the amount of consideration to which the Company expects to be entitled in exchange for transferring the promised goods or services to the customer.
Step 5: Satisfaction of performance obligations. Sub-steps include ascertaining the point in time when an asset is transferred to the customer and the customer obtains control of the asset upon which time the Company recognizes revenue.
Based on the Company's analysis, there were no changes identified that impacted the amount or timing of revenues recognized under the new guidance as compared to the previous guidance (ASC 605). Additionally, the Company's analysis indicated that there were no changes to how costs to obtain and fulfill our customer contracts would be recognized under the new guidance as compared to the previous guidance. Accordingly, the initial application of the new revenue standard did not result in the recognition of a cumulative effect adjustment to the opening balance of accumulated deficit as of January 1, 2018.
Nature of Contracts and Customers
T
he Company’s contracts and related performance obligations are similar for its customers and the sales process for all customers starts upon the receipt of requisition forms from the customers for patient diagnostic testing and the execution of contracts for biomarker testing and clinical research.
Payment terms for the services provided are 30 days, unless separately negotiated.
Diagnostic testing
Control of the laboratory testing services is transferred to the customer at a point in time. As such, the Company recognizes revenue for laboratory testing services at a point in time based on the delivery method (web-portal access or fax) for the patient’s laboratory report, per the contract.
Clinical research grants
Control of the clinical research services are transferred to the customer over time. The Company will recognize revenue utilizing the “effort based” method, measuring its progress toward complete satisfaction of the performance obligation.
Biomarker testing and clinical project services
Control of the biomarker testing and clinical project services are transferred to the customer over time. The Company utilizes an “effort based” method of assessing performance and measures progress towards satisfaction of the performance obligation based upon the delivery of results.
The Company generates revenue from the provision of diagnostic testing provided to patients, biomarker testing provided to bio-pharma customers and clinical research grants funded by both bio-pharma customers and government health programs.
Disaggregation of Revenues by Transaction Type
We operate in one business segment and, therefore, the results of our operations are reported on a consolidated basis for purposes of segment reporting, consistent with internal management reporting. Service revenue, net for the years ended December 31, 2018 and 2017 was as follows (prior-period amounts are not adjusted under the modified-retrospective method of adoption):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31,
|
(dollars in thousands)
|
|
Diagnostic Testing
|
|
Biomarker Testing
|
|
Total
|
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Medicaid
|
|
$
|
50
|
|
$
|
39
|
|
$
|
—
|
|
$
|
—
|
|
$
|
50
|
|
$
|
39
|
Medicare
|
|
|
1,000
|
|
|
569
|
|
|
—
|
|
|
—
|
|
|
1,000
|
|
|
569
|
Self-pay
|
|
|
138
|
|
|
103
|
|
|
—
|
|
|
—
|
|
|
138
|
|
|
103
|
Third party payers
|
|
|
960
|
|
|
500
|
|
|
—
|
|
|
—
|
|
|
960
|
|
|
500
|
Contract diagnostics
|
|
|
—
|
|
|
—
|
|
|
1,187
|
|
|
491
|
|
|
1,187
|
|
|
491
|
Revenues, net of contractual allowances
|
|
$
|
2,148
|
|
$
|
1,211
|
|
$
|
1,187
|
|
$
|
491
|
|
$
|
3,335
|
|
$
|
1,702
|
Revenue from the Medicare and Medicaid programs account for a portion of the Company’s patient diagnostic service revenue. Laws and regulations governing those programs are extremely complex and subject to interpretation. As a result, there is at least a reasonable possibility that recorded estimates will change by a material amount in the near term.
Revenue Recognition
Revenue is recognized when a customer obtains control of promised goods or services, in an amount that reflects the consideration which the entity expects to receive in exchange for those goods or services. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price using the expected value method based on historical experience.
The Company does not typically enter arrangements where multiple contracts can be combined as the terms regarding services are generally found within a single agreement/requisition form.
The Company derives its revenues from three types of transactions: diagnostic testing, clinical research grants from state and federal research programs, and other revenues from the Company’s ICP technology and bio-pharma projects encompassing genetic diagnostics.
Deferred revenue
Deferred revenue, or unearned revenue, refers to advance payments for products or services that are to be delivered in the future. The Company records such prepayment of unearned revenue as a liability, as revenue that has not yet been earned, but represents products or services that are owed to a customer. As the product or service is delivered over time, the Company recognizes the appropriate amount of revenue from deferred revenue. As of December 31, 2018 and 2017, the deferred revenue was $49,000 and $66,000, respectively.
Contractual Allowances and Adjustments
We are reimbursed by payers for services we provide. Payments for services covered by payers average less than billed charges. We monitor revenue and receivables from payers and record an estimated contractual allowance for certain revenue and receivable balances as of the revenue recognition date to properly account for anticipated differences between
amounts estimated in our billing system and amounts ultimately reimbursed by payers. Accordingly, the total revenue and receivables reported in our financial statements are recorded at the amounts expected to be received from these payers. For service revenue, the contractual allowance is estimated based on several criteria, including unbilled claims, historical trends based on actual claims paid, current contract and reimbursement terms and changes in customer base and payer/product mix. The billing functions for the remaining portion of our revenue are contracted and fixed fees for specific services and are recorded without an allowance for contractual discounts. The following table presents our revenues initially recognized for each associated payer class during the year ended December 31, 2018 and 2017.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(dollars in thousands)
|
|
For the Year Ended December 31,
|
|
|
|
|
Contractual Allowances and
|
|
Revenues, net of Contractual
|
|
|
Gross Revenues
|
|
adjustments
|
|
Allowances and adjustments
|
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Medicaid
|
|
$
|
86
|
|
$
|
87
|
|
$
|
(36)
|
|
$
|
(48)
|
|
$
|
50
|
|
$
|
39
|
Medicare
|
|
|
1,019
|
|
|
546
|
|
|
(19)
|
|
|
23
|
|
|
1,000
|
|
|
569
|
Self-pay
|
|
|
138
|
|
|
131
|
|
|
—
|
|
|
(28)
|
|
|
138
|
|
|
103
|
Third party payers
|
|
|
2,358
|
|
|
1,310
|
|
|
(1,398)
|
|
|
(810)
|
|
|
960
|
|
|
500
|
Contract diagnostics
|
|
|
1,187
|
|
|
491
|
|
|
—
|
|
|
—
|
|
|
1,187
|
|
|
491
|
|
|
|
4,788
|
|
|
2,565
|
|
|
(1,453)
|
|
|
(863)
|
|
|
3,335
|
|
|
1,702
|
Clinical research grants and other
|
|
|
113
|
|
|
331
|
|
|
—
|
|
|
—
|
|
|
113
|
|
|
331
|
|
|
$
|
4,901
|
|
$
|
2,896
|
|
$
|
(1,453)
|
|
$
|
(863)
|
|
$
|
3,448
|
|
$
|
2,033
|
Allowance for Doubtful Accounts
The Company provides for a general allowance for collectability of services when recording net sales. The Company has adopted the policy of recognizing net sales to the extent it expects to collect that amount. Reference FASB 954-605-45-5 and ASU 2011-07, Health Care Entities: Presentation and Disclosure of Patient Service Revenue, Provision for Bad Debt, and the Allowance for Doubtful Accounts. The change in the allowance for doubtful accounts is directly related to the increase in patient service revenues. The following table presents our reported revenues net of the collection allowance and adjustments for the year ended December 31, 2018 and 2017.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31,
|
|
|
Revenues, net of
|
|
|
|
|
(dollars in thousands)
|
|
Contractual Allowances
|
|
Allowances for doubtful
|
|
|
|
|
and adjustments
|
|
accounts
|
|
Total
|
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Medicaid
|
|
$
|
50
|
|
$
|
39
|
|
$
|
(50)
|
|
$
|
(17)
|
|
$
|
—
|
|
$
|
22
|
Medicare
|
|
|
1,000
|
|
|
569
|
|
|
(150)
|
|
|
(182)
|
|
|
850
|
|
|
387
|
Self-pay
|
|
|
138
|
|
|
103
|
|
|
—
|
|
|
(31)
|
|
|
138
|
|
|
72
|
Third party payers
|
|
|
960
|
|
|
500
|
|
|
(384)
|
|
|
(85)
|
|
|
576
|
|
|
415
|
Contract diagnostics
|
|
|
1,187
|
|
|
491
|
|
|
—
|
|
|
—
|
|
|
1,187
|
|
|
491
|
|
|
|
3,335
|
|
|
1,702
|
|
|
(584)
|
|
|
(315)
|
|
|
2,751
|
|
|
1,387
|
Clinical research grants and other
|
|
|
113
|
|
|
331
|
|
|
—
|
|
|
5
|
|
|
113
|
|
|
336
|
|
|
$
|
3,448
|
|
$
|
2,033
|
|
$
|
(584)
|
|
$
|
(310)
|
|
$
|
2,864
|
|
$
|
1,723
|
Costs to Obtain or Fulfill a Customer Contract
Sales commissions are expensed when incurred because the amortization period would have been one year or less. These costs are recorded in operating expenses in the consolidated statements of operations.
Shipping and handling costs are comprised of inbound and outbound freight and associated labor. The Company accounts for shipping and handling activities related to contracts with customers as fulfillment costs which are included in cost of sales in the consolidated statements of operations.
Accounts Receivable
The Company has provided an allowance for potential credit losses, which has been determined based on management’s industry experience. The Company grants credit without collateral to its patients, most of who are insured under third party payer agreements.
The following summarizes the mix of receivables for the years ended December 31, 2018 and 2017:
|
|
|
|
|
|
|
|
|
2018
|
|
2017
|
Medicaid
|
|
$
|
82
|
|
$
|
37
|
Medicare
|
|
|
633
|
|
|
256
|
Self-pay
|
|
|
108
|
|
|
53
|
Third party payers
|
|
|
1,382
|
|
|
1,066
|
Contract diagnostic services
|
|
|
193
|
|
|
445
|
Other
|
|
|
—
|
|
|
—
|
|
|
$
|
2,398
|
|
$
|
1,857
|
Less allowance for doubtful accounts
|
|
|
(1,708)
|
|
|
(1,127)
|
Accounts receivable, net
|
|
$
|
690
|
|
$
|
730
|
The following table presents the roll-forward of the allowance for doubtful accounts for the year ended December 31, 2018:
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for
|
|
|
|
|
|
Doubtful
|
(dollars in thousands)
|
|
|
|
|
Accounts
|
Balance, January 1, 2018
|
|
|
|
|
$
|
(1,127)
|
Collection Allowance:
|
|
|
|
|
|
|
Medicaid
|
|
$
|
(50)
|
|
|
|
Medicare
|
|
|
(150)
|
|
|
|
Third party payers
|
|
|
(384)
|
|
|
|
Service revenue, net
|
|
|
(584)
|
|
|
|
Bad debt expense
|
|
$
|
3
|
|
|
|
Total charges
|
|
|
|
|
|
(581)
|
Balance, December 31, 2018
|
|
|
|
|
$
|
(1,708)
|
15. SUBSEQUENT EVENTS
Settlement Agreements
On January 2, 2019, the Company entered into a settlement agreement with a third party service provider pursuant to which we agreed to pay the service provider an aggregate amount of Five Hundred and Fifty Thousand Dollars ($550,000) pursuant to an agreed upon payment schedule in consideration for the cancellation of an outstanding debt owed by the Company to the service provider in the aggregate amount of $1,470,000 (the “Owed Amount”). Upon payment in full of the $550,000, the service provider has agreed to waive the difference between the settlement amount and the Owed Amount and at that time the Company would record a gain on settlement of approximately $0.9 million.
As discussed in Note 8 – Accrued Expenses and Other Current Liabilities, on January 15, 2019, the Company and Crede entered into an amendment and restatement agreement (the “Crede Amendment Agreement”) in order to enable the Company to provide Crede with an alternative means of payment of the settlement amount by issuing to Crede a convertible note in the amount of $1,450,000 (the “Crede Note”). The conversion price of the Crede Note shall equal 90% of the closing bid price of the Company’s common stock on the date prior to each conversion date. The Crede Note is payable by the Company on the earlier of (i) January 15, 2021 or (ii) upon the closing of a qualified offering in which the Company receives gross proceeds of at least $4.0 million. The Crede Note may not be converted if, after giving effect to the conversion, Crede together with its affiliates would beneficially own in excess of 4.99% of the outstanding shares of the Company’s common stock. The Company, at its option, may redeem some or all of the then outstanding principal amount of the Crede Note for cash.
In accordance with the terms of the Crede Amendment Agreement, during the period commencing on the date of issuance of the Crede Note and ending on the date Crede no longer beneficially owns any portion of the Crede Note, Crede shall not sell, on any given trading day, more than the greater of (i) $10,000 of common stock (subject to adjustment for any stock splits or combinations, stock dividends, recapitalizations or similar event after the date hereof) and (ii) 10% of the daily average composite trading volume of the Company’s common stock as reported by Bloomberg, LP (subject to adjustment for any stock splits or combinations, stock dividends, recapitalizations or similar event after the date hereof) for such trading day.
On February 8, 2018, the Company had entered into the 2018 Purchase Agreement with Leviston, see Note 11 – Stockholders equity of the 2018 Purchase Agreement. On January 29, 2019, the Company entered into a settlement agreement (the “Leviston Settlement”) with Leviston pursuant to which the Company issued to Leviston a convertible note in the amount of $0.7 million (the “Leviston Note”) in full satisfaction of the obligations to Leviston. The Leviston Note is payable by the Company (i) in fourteen equal monthly installments commencing on the earlier to occur of (x) the last day of the month upon which a registration statement to be filed by the Company covering the resale of the shares of common stock underlying the Leviston Note is declared effective by the Securities and Exchange Commission and (y) the six month anniversary of the date of issuance, (ii) upon the closing of a qualified offering, namely the Company raising gross proceeds of at least $4.0 million or (iii) such earlier date as the Leviston Note is required or permitted to be repaid pursuant to its terms. The Company, at its option, may redeem some or the entire then outstanding principal amount of the Leviston Note for cash.
The conversion price in effect on any conversion date shall equal the VWAP of the common stock on such Conversion Date. The Leviston Note may not be converted if, after giving effect to the conversion, Leviston together with its affiliates, would beneficially own in excess of 4.99% of the outstanding shares of the Company’s common stock.
In accordance with the terms of the Leviston Settlement, during the period commencing on the issuance date of the Leviston Note and ending on the date Leviston no longer beneficially owns any shares of common stock issuable upon conversion of the Leviston Note, Leviston shall not sell, on any given trading day, more than the greater of (i) $10,000 of common stock (subject to adjustment for any stock splits or combinations, stock dividends, recapitalizations or similar event after the date hereof) and (ii) 10% of the daily average composite trading volume of the Company’s common stock as reported by Bloomberg, LP (subject to adjustment for any stock splits or combinations, stock dividends, recapitalizations or similar event after the date hereof) for such trading day.
In addition to the Leviston Settlement and the Leviston Note, the Company and Leviston have each executed a release pursuant to which each of the Company and Leviston agreed to release the other party from their respective obligations arising from or concerning the Obligations.
Nasdaq Delisting Notice
On March 6, 2018, we were notified by the staff of The Nasdaq Stock Market LLC (“Nasdaq”) that
for the prior 30 consecutive business days, the closing bid price per share of our common stock was below the $1.00 minimum bid price requirement for continued listing, as required by Nasdaq Listing Rule 5550(a)(2) (the “Bid Price Rule”)
. The staff provided us with 180 calendar days, or until September 24, 2018, to regain compliance with the Bid Price Rule. We did not regain compliance with the Bid Price Rule by September 24, 2018 and, on September 25, 2018, the Staff notified us that we were eligible for an extension for compliance through March 25, 2019, by which date our common stock must evidence compliance for at least ten consecutive business days. We did not regain compliance with the Bid Price Rule by March 26, 2019 and on such date we received written notice from Nasdaq indicating that we are not in compliance with the minimum bid price requirement for continued listing on the Nasdaq Capital and are subject to delisting. In accordance with the governing rules of Nasdaq, on March 27, 2019, we requested an appeal before the Nasdaq Hearing Panel.
This request will prevent any delisting action at least until the Panel issues its decision and the expiration of any extension granted by the Panel. The Company continues to work diligently to regain compliance with the Bid Price Requirement. No assurances can be made that such efforts will be successful or that the Company will prevail at the hearing before the Panel to maintain the listing of its securities on Nasdaq.
We have scheduled a compliance review meeting with Nasdaq on May 2, 2019. As reported in the Company’s Form 8-K filed with the Securities and Exchange Commission on December 20, 2018, our shareholders previously approved the proposal to authorize our Board of Directors to, in its discretion, amend our Third Amended and Restated Certificate of Incorporation to effect a reverse stock split at a ratio of between 1-for-2 and 1-for-30, with the exact ratio to be set within that range at the discretion of our Board of Directors at any time prior to December 20, 2019 without further approval or authorization of the stockholders.
Convertible Note Issuance
On April 16, 2019, the Company entered into a second amendment and restatement agreement amending and restating the terms of the 2018 Note Agreement (as first amended pursuant to the Amendment and Restatement dated Nov 29, 2019) (the "Amendment No.2 Agreement"). Amendment No.
2 Agreement
provides for the issuance of up to approximately $989,011 of additional Notes together with applicable Warrants (the “April 2019 Additional Notes and Warrants”) on substantially the same terms and conditions as the notes and warrants as of the notes and warrants that were issued in connection with the Amendment and Restatement. The April 2019 Additional Notes and Warrants shall be purchased no later than May 31, 2019, and were subscribed for by the investors that previously participated in the 2018 Note Agreement. Upon issuance of the April 2019 Additional Notes, the Company will calculate any debt issuance costs, including possible beneficial conversion features, and record them as a reduction of the debt in its consolidated balance sheet, similar to the Bridge Notes that the Company issued during 2018 (see Note 7 – Convertible Notes).
The conversion price of the April 2019 Additional Notes shall be equal to the greater of $0.25 or $0.05 above the closing bid price of our common stock on the date prior to the original issue date. In the event the notes are not paid in full prior to 180 days after the original issue date, the conversion price shall be equal to 80% of the lowest volume weighted average price (“VWAP”) in the 10 trading days prior to the date of the notice of conversion, but in no event below the floor price of $0.15.
On April 16, 2019, the initial closing of April 2019 Additional Notes provides the Company with approximately $800,000 of gross proceeds for the issuance of notes with an aggregate principal of approximately $879,120.
As part of the transaction, the investors also received 1,966,275 warrants to purchase common stock of the Company
exercisable at a price of $0.36.