NOTES
TO CONDENSED FINANCIAL STATEMENTS
For
the Six-Months Period Ended June 30, 2022 and 2021
(Unaudited)
1. Basis
of Presentation and Significant Accounting Policies
Basis
of Presentation and Principles of Consolidation
The
accompanying condensed consolidated financial statements at June 30, 2022 and for the three-month and six-month periods ended June 30,
2022 and 2021, respectively, are unaudited, but include all adjustments, consisting of normal recurring entries, that management believes
to be necessary for a fair presentation of the periods presented. Interim results are not necessarily indicative of results for a full
year. Balance sheet amounts as of December 31, 2021 have been derived from our audited financial statements as of that date.
The
consolidated financial statements included herein have been prepared by us pursuant to the rules and regulations of the Securities and
Exchange Commission (“SEC”). Certain information and footnote disclosures normally included in financial statements prepared
in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to
such rules and regulations. The consolidated financial statements should be read in conjunction with our audited financial statements
contained in its Annual Report on Form 10-K for the year ended December 31, 2021 (the “2021 Annual Report”).
Going
Concern
The
Company’s condensed consolidated financial statements have been presented on the basis that it will continue as a going concern,
which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. During the six months
ended June 30, 2022, the Company incurred a net loss of $2,089,687, utilized cash in operations of $2,248,425, and had an accumulated
deficit of $486,573,965 as of June 30, 2022. In addition, the Company has no recurring revenue. As a result, management has concluded
that there is substantial doubt about the Company’s ability to continue as a going concern. The Company’s consolidated financial
statements do not include any adjustments that might result from the outcome of this uncertainty. The
Company’s independent registered public accounting firm, in its report on the Company’s consolidated financial statements
for the year ended December 31, 2021, has also expressed substantial doubt about the Company’s ability to continue as a going concern.
At
June 30, 2022, we had cash and cash equivalents and short-term investments of approximately $4.1 million. We believe we have sufficient
cash to fund operations through March 2023. The continuation of the Company as a going concern is dependent upon its ability to obtain
necessary debt or equity financing to continue operations until it begins generating positive cash flow. No assurance can be given that
any future financing will be available or, if available, that it will be on terms that are satisfactory to the Company. Even if the Company
is able to obtain additional financing, it may contain undue restrictions on our operations, in the case of debt financing or cause substantial
dilution for our stockholders, in case or equity financing.
Use
of Estimates
Preparation
of the Company’s consolidated financial statements in conformance with U.S. GAAP requires the Company’s management to make
estimates and assumptions that impact the reported amounts of assets, liabilities, revenues and expenses, and the disclosure of contingent
assets and liabilities in the Company’s consolidated financial statements and accompanying notes. The significant estimates in
the Company’s consolidated financial statements relate to the valuation of equity awards, recoverability of deferred tax assets,
and estimated useful lives of fixed assets, The Company bases estimates and assumptions on historical experience, when available, and
on various factors that it believes to be reasonable under the circumstances. The Company evaluates its estimates and assumptions on
an ongoing basis, and its actual results may differ from estimates made under different assumptions or conditions.
Stock
Compensation
The
Company accounts for share-based awards to employees and nonemployees directors and consultants in accordance with the provisions of
ASC 718, Compensation—Stock Compensation., and under the recently issued guidance following FASB’s pronouncement,
ASU 2018-07, Compensation—Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting. Under
ASC 718, and applicable updates adopted, share-based awards are valued at fair value on the date of grant and that fair value is recognized
over the requisite service, or vesting, period. The Company values its equity awards using the Black-Scholes option pricing model, and
accounts for forfeitures when they occur.
Foreign
Currency Remeasurement
The
U.S. dollar has been determined to be the functional currency for the net assets of our German operations. The transactions are recorded
in the local currencies and are remeasured at each reporting date using the historical rates for nonmonetary assets and liabilities and
current exchange rates for monetary assets and liabilities at the balance sheet date. Exchange gains and losses from the remeasurement
of monetary assets and liabilities are recognized in other income (loss). The Company recognized a loss of approximately $(10,900) and
$(16,200), respectively, for the three-month and six-month periods ended June 30, 2022 and a gain (loss) of approximately $3,500 and
$(9,500), respectively, for the three and six-month periods ended June 30, 2021, respectively.
Basic
and Diluted Net Loss Per Common Share
Basic
and diluted net loss per common share is computed based on the weighted-average number of common shares outstanding for the period.
Diluted net income (loss) per share is computed by dividing the net income (loss) applicable to common stockholders by the weighted average
number of common shares outstanding plus the number of additional common shares that would have been outstanding if all dilutive potential
common shares had been issued using the treasury stock method. Potential common shares are excluded from the computation when their effect
is antidilutive. Common share equivalents that could potentially dilute net loss per share in the future, and which were excluded from
the computation of diluted loss per share, were as follows:
Schedule of Shares Excluded from Computation of Diluted Loss Per Share
| | |
2022 | | |
2021 | |
| | |
As
of June 30, | |
| | |
2022 | | |
2021 | |
| | |
| |
| Options to acquire common stock | |
| 1,847,611 | | |
| 2,862,700 | |
| Warrants to acquire common stock | |
| 4,167 | | |
| 4,167 | |
| Series C Convertible preferred stock | |
| 3,127,688 | | |
| — | |
| Investment option | |
| 11,363,637 | | |
| — | |
| Shares excluded from
computation of diluted loss per shares | |
| 16,343,103 | | |
| 2,866,867 | |
Fair
Value Measurements
Assets
and liabilities recorded at fair value on the balance sheets are categorized based upon the level of judgment associated with the inputs
used to measure the fair value. Level inputs are as follows:
Level
1 – quoted prices in active markets for identical assets or liabilities.
Level
2 – other significant observable inputs for the assets or liabilities through corroboration with market data at the measurement
date.
Level
3 – significant unobservable inputs that reflect management’s best estimate of what market participants would use to price
the assets or liabilities at the measurement date.
We
consider carrying amounts of accounts receivable, accounts payable and accrued expenses to approximate fair value due to the short-term
nature of these financial instruments. Our non-financial assets are measured at fair value when there is an indicator of impairment and
recorded at fair value only when an impairment charge is recognized.
Recently
Issued Accounting Pronouncements
In
June 2016, the FASB issued ASU No. 2016-13, Credit Losses - Measurement of Credit Losses on Financial Instruments (“ASC 326”).
The standard significantly changes how entities will measure credit losses for most financial assets, including accounts and notes receivables.
The standard will replace today’s “incurred loss” approach with an “expected loss” model, under which companies
will recognize allowances based on expected rather than incurred losses. Entities will apply the standard’s provisions as a cumulative-effect
adjustment to retained earnings as of the beginning of the first reporting period in which the guidance is effective. The standard is
effective for interim and annual reporting periods beginning after December 15, 2022. The adoption of ASU 2016-13 is not expected to
have a material impact on the Company’s financial position, results of operations, and cash flows.
In
May 2021, the FASB issued ASU 2021-04, Earnings Per Share (Topic 260), Debt — Modifications and Extinguishments (Subtopic 470-50),
Compensation — Stock Compensation (Topic 718), and Derivatives and Hedging — Contracts in Entity’s Own Equity (Subtopic
815-40): Issuer’s Accounting for Certain Modifications or Exchanges of Freestanding Equity-Classified Written Call Options (“ASU
2021-04”). ASU 2021-04 provides guidance as to how an issuer should account for a modification of the terms or conditions or an
exchange of a freestanding equity-classified written call option (i.e., a warrant) that remains classified after modification or exchange
as an exchange of the original instrument for a new instrument. An issuer should measure the effect of a modification or exchange as
the difference between the fair value of the modified or exchanged warrant and the fair value of that warrant immediately before modification
or exchange and then apply a recognition model that comprises four categories of transactions and the corresponding accounting treatment
for each category (equity issuance, debt origination, debt modification, and modifications unrelated to equity issuance and debt origination
or modification). ASU 2021-04 is effective for fiscal years beginning after December 15, 2021, including interim periods within those
fiscal years. An entity should apply the guidance provided in ASU 2021-04 prospectively to modifications or exchanges occurring on or
after the effective date. Early adoption is permitted, including adoption in an interim period. If an entity elects to early adopt ASU
2021-04 in an interim period, the guidance should be applied as of the beginning of the fiscal year that includes that interim period.
The adoption of ASU 2021-04 did not have any impact on the Company’s consolidated financial statement presentation or disclosures.
Other
recent authoritative guidance issued by the FASB (including technical corrections to the ASC), the American Institute of Certified Public
Accountants, and the Securities and Exchange Commission (“SEC”) did not, or are not expected to, have a material impact on
the Company’s consolidated financial statements and related disclosures.
2. Financing
Under Security Purchase Agreement
On
July 13, 2021, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with a single institutional
investor (the “Investor”) for aggregate gross proceeds of $10 million and net proceeds of approximately $9.2 million. The
transaction closed on July 16, 2021. Under the Purchase Agreement, the Company sold and issued (i) 2 million shares of its common stock
at a purchase price of $0.88 per share for total gross proceeds of approximately $1.76 million in a registered direct offering (the “Registered
Direct Offering”) and (ii) 8,240 shares of Series C 10.00% Convertible Preferred Stock (the “Preferred Stock”) at a
purchase price of $1,000 per share, for aggregate gross proceeds of approximately $8.24 million, in a concurrent private placement (the
“Private Placement” and, together with the Registered Direct Offering, the “July 2021 Offerings”). The shares
of the Preferred Stock are convertible, upon shareholder approval as described below, into an aggregate of up to 9,363,637 shares of
common stock at a conversion price of $0.88 per share. Holders of the Preferred Stock shall be entitled to receive, and the Company shall
pay, cumulative dividends at the rate per share (as a percentage of the stated value per share) of 10.00% per annum, payable quarterly
on January 1, April 1, July 1 and October 1, beginning on the first such date after the date of issuance. The terms of the Preferred
Stock include beneficial ownership limitations that preclude conversion that would result in the Investor owning in excess of 9.99% of
the Company’s outstanding shares of common stock. CytRx also issued to the Investor an unregistered preferred investment option
(the “Preferred Investment Option”) that allows for the purchase of up to 11,363,637 shares of common stock for additional
gross proceeds of approximately $10 million if the Preferred Investment Option is exercised in full. The exercise price for the Preferred
Investment Option is $0.88 per share. The Preferred Investment Option has a term equal to five and one-half years commencing upon the
Company increasing its authorized common stock following shareholder approval.
The
Company accounted for these transactions as a single transaction for accounting purposes and allocated total proceeds to the respective
instruments based upon the relative fair value of each instrument. The Company determined that the relative fair value of (i) the 2,000,000
shares of the common stock issued was $859,218, (ii) the relative fair value of the 8,240 shares of Preferred Stock was $4,022,700, and
(iii) the relative fair value of the Preferred Investment Option was $4,293,872 based upon a Black Scholes valuation model. As such,
the Company recorded as Additional Paid in Capital the fair value of the common stock and Preferred Investment Option of $5,153,090,
and the fair value of the Series C Preferred Stock was $4,022,700 which was reflected as mezzanine equity due to certain clauses of the
Securities Purchase Agreement.
On
October 1, 2021, the Company paid a quarterly 10% dividend to the Investor in the amount of $171,668; on January 1, 2022, the Company
paid a quarterly dividend of $206,000 and on April 1, 2022, the Company paid a quarterly dividend of $202,567.
On
March 15, 2022, at a special meeting of its stockholders which was originally opened and subsequently adjourned on September 23, 2021,
the Company’s stockholders, by an affirmative vote of the majority of the Company’s outstanding shares of capital stock,
approved the amendment to the Company’s Restated Certificate of Incorporation to effect an increase in the number of shares of
authorized common stock, par value $0.001 per share, from 41,666,666 shares to 62,393,940 shares, and to make a corresponding change
to the number of authorized shares of capital stock in order to comply with the Company’s contractual obligations under the Purchase
Agreement.
On
March 28, 2022, the Investor converted 4,120 shares of the Series C Preferred Stock in accordance with the initial terms of the agreement
and received 4,681,819 common shares. On May 15, 2022, the Investor converted a further 1,368 shares of the Series C Preferred Stock
and received 1,554,130 common shares.
Terms
of Series C Preferred Stock
Under
the Certificate of the Designations, Powers, Preferences and Rights of Series C 10.00% Convertible Preferred Stock (the “Certificate
of Designations”), each share of Series C Preferred Stock will be convertible, subject to the Beneficial Ownership Limitation (as
defined below), at either the holder’s option or at the Company’s option (a “Company Initiated Conversion”) at
any time following stockholder approval having been obtained to amend our restated certificate of incorporation to increase the number
of authorized shares of common stock above 41,666,666 (the “Stockholder Approval”), into common stock at a conversion rate
equal to the quotient of (i) the Series C Stated Value of $1,000 (the “Series C Stated Value”) plus, in the case of a Company
Initiated Conversion, all accrued and accumulated and unpaid dividends on such share of Series C Preferred Stock, divided by (ii) the
initial conversion price of $0.88, subject to specified adjustments for stock splits, stock dividends, reclassifications or other similar
events as set forth in the Certificate of Designations.
The
Certificate of Designations contains limitations that prevent the holder thereof from acquiring shares of common stock upon conversion
that would result in the number of shares of common stock beneficially owned by such holder and its affiliates exceeding 9.99% of the
total number of shares of common stock outstanding immediately after giving effect to the conversion (the “Beneficial Ownership
Limitation”), except that upon notice from the holder to the Company, the holder may increase or decrease the amount of ownership
of outstanding shares of common stock after converting the holder’s shares of Series C Preferred Stock, provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of outstanding shares of the common stock outstanding immediately after
giving effect to the issuance of shares of common stock upon conversion of the shares of Series C Preferred Stock held by the holder
and provided that any increase in the Beneficial Ownership Limitation shall not be effective until 61 days following notice to the Company.
Each
holder of shares of Preferred Stock is entitled to receive dividends, commencing from the date of issuance of the Preferred Stock. Such
dividends may be paid only when, as and if declared by the Board of Directors of the Company (the “Board”), out of assets
legally available therefore, quarterly in arrears on the first day of January, April, July and October in each year, commencing on the
date of issuance, at the dividend rate of 10.00% per year. Such dividends are cumulative and continue to accrue on a daily basis whether
or not declared and whether or not we have assets legally available therefore.
Under
the Certificate of Designations, each share of Series C Preferred Stock carries a liquidation preference equal to the Series C Stated
Value plus accrued and unpaid and accumulated dividends thereon. Such liquidation preference is payable upon certain change in control
transactions and accordingly, this instrument is classified as mezzanine (temporary equity).
The
holders of the Series C Preferred Stock may vote their shares of Preferred Stock on an as-converted basis, subject to the Beneficial
Ownership Limitation (which Beneficial Ownership Limitation shall be calculated on a basis which includes the number of shares of common
stock which are issuable upon conversion of the unconverted Series C Stated Value beneficially owned by a holder or any of its affiliates
or attribution parties on all matters submitted to the holders of common stock for approval). The Company may not take the following
actions without the prior consent of the holders of at least a majority of the Preferred Stock then outstanding: (a) alter or change
adversely the powers, preferences or rights given to the Preferred Stock or alter or amend the Certificate of Designations, (b) authorize
or create any class of stock ranking as to dividends, redemption or distribution of assets upon a Liquidation (as defined in the Certificate
of Designations) senior to, or otherwise pari passu with, the Preferred Stock, (c) amend its Certificate of Incorporation or other
charter documents in any manner that adversely affects any rights of the holders of the Preferred Stock, (d) increase the number of authorized
shares of Preferred Stock, or (e) enter into any agreement with respect to any of the foregoing.
Terms
of Preferred Investment Option
The
Preferred Investment Option to purchase up to 11,363,637 shares of common stock is exercisable at a price of $0.88 per share. The Preferred
Investment Option has a term of five and one-half years from the Authorized Share Increase Date. The holders of the Preferred Investment
Option may exercise the Preferred Investment Option on a cashless basis, solely to the extent there is no effective registration statement
registering, or the prospectus in such registration statement is not available for the resale of the shares of common stock issuable
at the time of exercise. The Company is prohibited from effecting an exercise of any Preferred Investment Option to the extent that such
exercise would result in the number of shares of common stock beneficially owned by such holder and its affiliates exceeding 9.99% of
the total number of shares of common stock outstanding immediately after giving effect to the exercise of the Preferred Investment Options
by the holder (the “PIO Beneficial Ownership Limitation”), except that upon notice from the holder to the Company, the holder
may increase or decrease the amount of ownership of outstanding shares of Common Stock after exercising the holder’s Preferred
Investment Option, provided that the PIO Beneficial Ownership Limitation in no event exceeds 9.99% of the number of outstanding shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of common stock upon exercise of the Preferred
Investment Option held by the holder and provided that any increase in the PIO Beneficial Ownership Limitation shall not be effective
until 61 days following notice to the Company. The Preferred Investment Option provides for a Black-Scholes payout upon certain fundamental
change transactions relating to the Company, as specified therein. If the fundamental change transaction is within the control of the
Company, the payout will be in cash. Otherwise, the payout will be in the same form of consideration received by the common stockholders
as a result of this transaction.
Registration
Rights Agreement
In
connection with the July 2021 Offerings, the Company entered into a registration rights agreement, dated as of July 13, 2021 (the “Registration
Rights Agreement”), with the investor named therein, pursuant to which the Company will undertake to file, within five calendar
days of the date of the filing of the proxy statement seeking the Stockholder Approval, a resale registration statement to register the
shares of common stock issuable upon: (i) the conversion of the Preferred Stock sold in the Private Placement and (ii) the exercise of
the Preferred Investment Option (the “Registrable Securities”); and to cause such registration statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 75 days following the pricing
date of this offering, or no later than 105 days following such date in the event of a “full review” by the SEC, and shall
use its reasonable best efforts to keep such registration statement continuously effective under the Securities Act until the date that
all Registrable Securities covered by such registration statement have been sold or are otherwise able to be sold pursuant to Rule 144.
The Registration Rights Agreement provides for liquidated damages to the extent that the Company does not file or maintain a registration
statement in accordance with the terms thereof. The registration rights agreement entered into between us and the Investor on July 13,
2021, contains a triggering event which would require us to pay to any holder of the Preferred Stock an amount in cash, as partial liquidated
damages and not as a penalty, on a monthly basis equal to the product of 2.0% multiplied by the aggregate subscription amount paid by
such holder for shares of Preferred Stock pursuant to the Purchase Agreement; provided, however, that such partial liquidated damages
shall not exceed 24% of the aggregate subscription amounts paid by such holders pursuant to the Purchase Agreement, or $1,977,600. If
we fail to pay any partial liquidated damages within seven days after the date payable, we will be required to pay interest on any such
amounts at a rate equal to the lesser of 18% per annum or the maximum rate permitted by applicable law.
During
the year ended December 31, 2021, the Company did not have enough shares of authorized common stock to issue the shares of common stock
issuable upon the exercise or conversion of the Registrable Securities, as applicable. For the year ended December 31, 2021, the Company
attempted, but was unsuccessful, to obtain its stockholders’ approval for the increase in its shares of authorized common stock
at a special meeting that was originally opened and subsequently adjourned on September 23, 2021, and accordingly, the Company was unable
to meet its registration rights obligation as of December 31, 2021. As such, the Company recognized an aggregate of approximately $1.1
million in liquidated damages during the year ended December 31, 2021, of which includes a provision of $615,123 as an accrual for estimated
damages until stockholders’ approval is achieved and the registration statement registering the shares of common stock issuable
upon the exercise or conversion, as applicable, of the Registrable Securities is filed. On March 15, 2022, the Company received its stockholders’
approval to increase its authorized shares and filed a certificate of amendment to its Certificate of Incorporation to increase the number
of authorized shares from 41,666,666 shares to 63,227,273 shares on the same date. The Company filed its registration statement registering
the shares underlying the Registrable Securities on March 23, 2022 and has provided for liquidated damages through that date. The registration
statement was declared effective on March 28, 2022.
3. Series
D Preferred Stock
On
May 19, 2022, the Board declared a dividend of one one-thousandth of a share of Series D Preferred Stock, par value $0.01 per share (“Series
D Preferred Stock”), for each outstanding share of Company’s Common Stock to stockholders of record at 5:00 p.m. Eastern
Time on May 20, 2022. The Certificate of Designation of Series D Preferred Stock (the “Series D Certificate of Designation”)
provides that all shares of Series D Preferred Stock that are not present in person or by proxy at any meeting of stockholders held to
vote on the Reverse Stock Split (as defined in the Series D Certificate of Designation) and the Adjournment Proposal (as defined in the
Series D Certificate of Designation) as of immediately prior to the opening of the polls at such meeting (the “Initial Redemption
Time”) will automatically be redeemed in whole, but not in part, by the Company at the Initial Redemption Time without further
action on the part of the Company or the holder of shares of Series D Preferred Stock (the “Initial Redemption”). Any outstanding
shares of Series D Preferred Stock that have not been redeemed pursuant to an Initial Redemption will be redeemed in whole, but not in
part, (i) if such redemption is ordered by the Board in its sole discretion, automatically and effective on such time and date specified
by the Board in its sole discretion or (ii) automatically upon the approval by the Company’s stockholders of the Reverse Stock
Split at any meeting of the stockholders held for the purpose of voting on such proposal (the “Subsequent Redemption”).
On
July 27, 2022, at the Company’s 2022 Annual Meeting of Stockholders, the Company’s stockholders approved a proposal to
authorize the Board, in its discretion but prior to July 26, 2023, to amend the Company’s Restated Certificate of Incorporation
to effect a reverse stock split of all of the outstanding shares of the Company’s Common Stock, at a ratio in the range of
1-for-2 to 1-for-100, with such ratio to be determined by the Board, and all outstanding shares of Series D Preferred Stock were automatically redeemed. As a result, no
shares of Series D Preferred Stock remain outstanding.
4. Leases
We
lease office space and office copiers related primarily to the administrative activities. The Company accounts for leases under ASC 842,
Leases, which requires an entity to recognize a right-of-use asset and a lease liability for virtually all leases.
In
January 2020, the Company signed a new four-year lease which covers approximately 2,771 square feet of office and storage space. This
lease is effective March 1, 2020 and extends through February 29, 2024, with a right to extend the term for an additional five-year period,
subject to the terms and conditions set forth in the lease agreement. The monthly rent is $13,855, subject to annual increases of 3.5
percent. In February 2020, the Company renewed its additional storage space lease, which requires us to make monthly payments of $1,370,
subject to a 2.5 percent annual increase. The Company recorded a right of use asset and lease liability obligation of $715,310 upon inception
of these leases. The Company also reclassified a previously existing right-of-use asset of $66,271 from other assets to right-of-use
asset.
As
of June 30, 2022, the balance of right-of-use assets was approximately $307,000, and the balance of total lease liabilities was approximately
$322,000.
Future
minimum lease payments under non-cancelable operating leases under ASC 842 as of June 30, 2022 are as follows:
Schedule of Future Minimum Lease Payments
| | |
Operating
Lease Payments | |
| July 2022 – June 2023 | |
$ | 197,600 | |
| July 2023 – June 2024 | |
| 134,690 | |
| Total future minimum lease payments | |
| 332,290 | |
| | |
| | |
| Less: present value
adjustment | |
| 9,960 | |
| Operating lease liabilities at June 30, 2022 | |
| 322,330 | |
| Less: current portion
of operating lease liabilities | |
| 132,940 | |
| Operating lease liabilities,
net of current portion | |
$ | 189,390 | |
| | |
| | |
The
components of rent expense and supplemental cash flow information related to leases for the period are as follows:
Schedule of Rent Expense and Supplemental Cash Flow Information Related to Leases
| | |
Period
Ended
June 30, 2022 | |
| Lease
Cost | |
| | |
| | |
| | |
| Operating lease cost (included
in General and administrative expenses in the Company’s condensed Consolidated Statements of Operations) | |
$ | 99,462 | |
| | |
| | |
| Other
information | |
| | |
| | |
| | |
| Cash paid for amounts included in the measurement
of lease liabilities for the period ended June 30, 2022 | |
$ | 91,894 | |
| | |
| | |
| Weighted average remaining lease term –
operating leases (in years) | |
| 1.7 | |
| | |
| | |
| Average discount rate | |
| 3.6 | % |
5. Stock
Based Compensation
The
Company has a 2008 Stock Incentive Plan (“2008 Plan”) under which 5 million shares of common stock are reserved for issuance.
As of June 30, 2022, there were approximately 1.8 million shares subject to outstanding stock options and approximately 0.8 million shares
outstanding related to restricted stock grants issued from the 2008 Plan. This plan expired on November 20, 2018 and thus no further
shares are available for future grant under this plan.
In
November 2019, the Company adopted a 2019 Stock Incentive Plan (“2019 Plan”) under which 5.4 million shares of common stock
are reserved for issuance. As of June 30, 2022, there were 0.5 million shares subject to outstanding stock options. This plan expires
on November 14, 2029.
There
were no options granted in either of the periods ended June 30, 2022 and June 30, 2021.
During
the six months ended June 30, 2022, 50,000 options were exercised on a cashless basis in exchange for 21,404
shares of common stock.
Presented
below is our stock option activity:
Schedule of Stock Options Activity
| | |
Six
Months Ended June 30, 2022 | |
| | |
Number
of Options (Employees) | | |
Number
of Options (Non-Employees) | | |
Total
Number of Options | | |
Weighted-Average
Exercise Price | |
| Outstanding at January 1, 2022 | |
| 2,462,830 | | |
| 365,000 | | |
| 2,827,830 | | |
$ | 8.09 | |
| Exercised | |
| (50,000 | ) | |
| — | | |
| (50,000 | ) | |
$ | 0.26 | |
| Forfeited
or expired | |
| (930,219 | ) | |
| — | | |
| (930,219 | ) | |
$ | 10.65 | |
| Outstanding at June 30, 2022 | |
| 1,482,611 | | |
| 365,000 | | |
| 1,847,611 | | |
$ | 7.02 | |
| Exercisable at June 30, 2022 | |
| 1,482,611 | | |
| 365,000 | | |
| 1,847,611 | | |
$ | 7.02 | |
The
following table summarizes significant ranges of outstanding stock options under our plans at June 30, 2022:
Schedule of Ranges of Stock Options
Range
of
Exercise
Prices | |
Number
of
Options | | |
Weighted-Average
Remaining Contractual Life
(years) | | |
Weighted-Average
Exercise Price | | |
Number
of Options
Exercisable | | |
Weighted-Average
Remaining Contractual
Life (years) | | |
Weighted-Average
Exercise Price | |
| $0.26 - $1.00 | |
| 500,000 | | |
| 7.46 | | |
$ | 0.26 | | |
| 500,000 | | |
| 7.46 | | |
$ | 0.26 | |
| $1.01 – $3.00 | |
| 634,006 | | |
| 5.21 | | |
$ | 1.96 | | |
| 634,006 | | |
| 5.21 | | |
$ | 1.96 | |
| $3.01 – $15.00 | |
| 454,166 | | |
| 2.77 | | |
$ | 11.92 | | |
| 454,166 | | |
| 2.77 | | |
$ | 11.92 | |
| $15.01 –$42.42 | |
| 259,439 | | |
| 1.75 | | |
$ | 23.82 | | |
| 254,439 | | |
| 1.75 | | |
$ | 23.82 | |
| | |
| 1,847,611 | | |
| 5.28 | | |
$ | 3.32 | | |
| 1,847,611 | | |
| 5.28 | | |
$ | 3.32 | |
The
Company recorded no stock compensation costs in either periods ended June 30, 2022 or June 30, 2021 as all options had previously vested.
At June 30, 2022, there was no unrecognized compensation expense related to unvested stock options.
The
aggregate intrinsic value of the outstanding options and options vested as of June 30, 2022 was $0.
At
June 30, 2022 and June 30, 2021, the Company had 4,167 warrants outstanding at a weighted average exercise price of $10.44. At June 30,
2022, the 4,167 warrants outstanding had no intrinsic value.
Restricted
Stock
On
December 15, 2021, the Company granted to Jennifer Simpson, who serves on our Board of Directors, 25,000 shares of restricted common
stock, pursuant to the 2019 Plan. This restricted stock vests on the first anniversary of the date of the grant. The fair value of the
restricted stock is based on the market price of the Company’s shares on the grant date. The fair value of the restricted stock
on the grant date was $11,200 and recognized stock compensation expense was $6,104 during the six months ended June 30, 2022.. As of
June 30, 2022, there is approximately $5,148 of unamortized stock compensation that will be amortized through December 2022.
6. Stockholder
Protection Rights Plan
On
December 13, 2019, the Board of Directors of the Company, authorized and declared a dividend of one right (a “Right”) for
each of the Company’s issued and outstanding shares of common stock, par value $0.001 per share . The dividend was paid to the
stockholders of record at the close of business on December 23, 2019. Each Right entitled the registered holder, subject to the terms
of the Original Rights Agreement (as defined below), to purchase from the Company one one-thousandth of a share of the Company’s
Series B Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”), at a price of $5.00 (the
“Purchase Price”), subject to certain adjustments. The description and terms of the Rights were set forth in the Rights Agreement,
dated as of December 13, 2019 (the “Original Rights Agreement”), by and between the Company and American Stock Transfer &
Trust Company, LLC, as Rights Agent (the “Rights Agent”).
On
November 12, 2020, the Board approved an amendment and restatement of the Original Rights Agreement (as amended and restated, the “Amended
and Restated Rights Agreement”) to effect certain changes to the Original Rights Agreement, including (i) reducing the duration
to a term of three years, subject to certain earlier expiration as described in more detail below, and (ii) lowering the beneficial ownership
threshold at which a person or group of persons becomes an Acquiring Person (as defined below) to 4.95% or more of the Company’s
outstanding shares of Common Stock, subject to certain exceptions. The Amended and Restated Rights Agreement is designed to discourage
(i) any person or group of persons from acquiring beneficial ownership of more than 4.95% of the Company’s shares of Common Stock
and (ii) any existing stockholder currently beneficially holding 4.95% or more of the Company’s shares of Common Stock from acquiring
additional shares of the Company’s Common Stock.
The
purpose of the Amended and Restated Rights Agreement is to protect value by preserving the Company’s ability to utilize its net
operating losses and certain other tax attributes (collectively, the “Tax Benefits”) to offset potential future income tax
obligations. The Company’s ability to use its Tax Benefits would be substantially limited if it experiences an “ownership
change,” as such term is defined in Section 382 of the Internal Revenue Code of 1986, as amended (the “Tax Code”).
A corporation generally will experience an ownership change if the percentage of the corporation’s stock owned by its “5-percent
shareholders,” as defined in Section 382 of the Tax Code, increases by more than 50 percentage points over their lowest ownership
percentage within a rolling three-year period. The Amended and Restated Rights Agreement is intended to reduce the likelihood the Company
would experience an ownership change under Section 382 of the Tax Code.
The
Rights will not be exercisable until the earlier to occur of (i) the close of business on the tenth business day after a public announcement
or filing that a person or group of affiliated or associated persons has become an “Acquiring Person,” which is defined as
a person or group of affiliated or associated persons that, at any time after the date of the Amended and Restated Rights Agreement,
has acquired, or obtained the right to acquire, beneficial ownership of 4.95% or more of the Company’s outstanding shares of Common
Stock, subject to certain exceptions or (ii) the close of business on the tenth business day after the commencement of, or announcement
of an intention to commence, a tender offer or exchange offer the consummation of which would result in any person becoming an Acquiring
Person (the earlier of such dates being called the “Distribution Date”) (provided, however, that if such tender
or exchange offer is terminated prior to the occurrence of the Distribution Date, then no Distribution Date shall occur as a result of
such tender or exchange offer).
The
Rights, which are not exercisable until the Distribution Date, will expire at or prior to the earliest of (i) the close of business on
November 16, 2023; (ii) the time at which the Rights are redeemed pursuant to the Amended and Restated Rights Agreement; (iii) the time
at which the Rights are exchanged pursuant to the Amended and Restated Rights Agreement; (iv) the time at which the Rights are terminated
upon the occurrence of certain mergers or other transactions approved in advance by the Board; and (v) the close of business on the date
set by the Board following a determination by the Board that (x) the Amended and Restated Rights Agreement is no longer necessary or
desirable for the preservation of the Tax Benefits or (y) no Tax Benefits are available to be carried forward or are otherwise available
(the earliest of (i), (ii), (iii), (iv) and (v) is referred to as the “Expiration Date”).
Each
share of Preferred Stock will be entitled, when, as and if declared, to a preferential per share quarterly dividend payment equal to
the greater of (i) $1.00 per share or (ii) an amount equal to 1,000 times the dividend declared per share of Common Stock. Each share
of Preferred Stock will entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Company.
In the event of any merger, consolidation or other transaction in which shares of Common Stock are converted or exchanged, each share
of Preferred Stock will be entitled to receive 1,000 times the amount received per one share of Common Stock.
The
Purchase Price payable, and the number of shares of Preferred Stock or other securities or property issuable, upon exercise of the Rights
are each subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of the Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights or warrants to subscribe
for or purchase Preferred Stock or convertible securities at less than the then-current market price of the Preferred Stock or (iii)
upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends
or dividends payable in Preferred Stock) or of subscription rights or warrants (other than those referred to above). The number of outstanding
Rights and the number of one one-thousandths of a share of Preferred Stock issuable upon exercise of each Right are also subject to adjustment
in the event of a stock split, reverse stock split, stock dividends and other similar transactions involving the Common Stock.
In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other than
the Rights beneficially owned by the Acquiring Person, affiliates and associates of the Acquiring Person and certain transferees thereof
(which will thereupon become null and void), will thereafter have the right to receive upon exercise of a Right that number of shares
of Common Stock having a market value of two times the Purchase Price.
In
the event that, after a person or a group of affiliated or associated persons has become an Acquiring Person, the Company is acquired
in a merger or other business combination transaction, or 50% or more of the Company’s assets or earning power are sold, proper
provision will be made so that each holder of a Right will thereafter have the right to receive, upon the exercise thereof at the then-current
purchase price of the Right, that number of shares of common stock of the acquiring company having a market value at the time of that
transaction equal to two times the Purchase Price.
With
certain exceptions, no adjustment in the Purchase Price will be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the Purchase Price. No fractional shares of Preferred Stock will be issued (other than fractions which
are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by
depositary receipts) and, in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred Stock on the
trading day immediately prior to the date of exercise.
At
any time after any person or group of affiliated or associated persons becomes an Acquiring Person and prior to the acquisition of beneficial
ownership by such Acquiring Person of 50% or more of the outstanding shares of Common Stock, the Board, at its option, may exchange each
Right (other than Rights owned by such person or group of affiliated or associated persons which will have become void), in whole or
in part, at an exchange ratio of one share of Common Stock per outstanding Right (subject to adjustment).
In
connection with any exercise or exchange of the Rights, no holder of a Right will be entitled to receive shares of Common Stock if receipt
of such shares would result in such holder, together with such holder’s affiliates and associates, beneficially owning more than
4.95% of the then-outstanding Common Stock (such shares, the “Excess Shares”) and the Board determines that such holder’s
receipt of Excess Shares would jeopardize or endanger the value or availability of the Tax Benefits or the Board otherwise determines
that such holder’s receipt of Excess Shares is not in the best interests of the Company. In lieu of such Excess Shares, such holder
will only be entitled to receive cash or a note or other evidence of indebtedness with a principal amount equal to the then-current market
price of the Common Stock multiplied by the number of Excess Shares that would otherwise have been issuable.
At
any time before the Distribution Date, the Board may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (subject
to certain adjustments) (the “Redemption Price”). The redemption of the Rights may be made effective at such time, on such
basis and with such conditions as the Board in its sole discretion may establish.
Immediately
upon the action of the Board electing to redeem or exchange the Rights, the Company shall make a public announcement thereof, and upon
such election, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption
Price.
Until
a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
The
Board may amend or supplement the Amended and Restated Rights Agreement without the approval of any holders of Rights, including, without
limitation, in order to (a) cure any ambiguity, (b) correct inconsistent provisions, (c) alter time period provisions, including the
Expiration Date, or (d) make additional changes to the Amended and Restated Rights Agreement that the Board deems necessary or desirable.
However, from and after the date any person or group of affiliated or associated persons becomes an Acquiring Person, the Amended and
Restated Rights Agreement may not be supplemented or amended in any manner that would adversely affect the interests of the holders of
Rights.
7. Commitments
and Contingencies
Commitments
Aldoxorubicin
We
have an agreement with Vergell Medical (formerly with KTB Tumorforschungs GmbH) (“Vergell”) for the exclusive license of
patent rights held by Vergell for the worldwide development and commercialization of aldoxorubicin. Under the agreement, we must make
payments to Vergell in the aggregate of $7.5 million upon meeting clinical and regulatory milestones up to and including the product’s
second final marketing approval. We also have agreed to pay:
| |
● |
commercially
reasonable royalties based on a percentage of net sales (as defined in the agreement); |
| |
● |
a
percentage of non-royalty sub-licensing income (as defined in the agreement); and |
| |
● |
milestones
of $1 million for each additional final marketing approval that we obtain. |
In
the event that we must pay a third party in order to exercise our rights to the intellectual property under the agreement, we are entitled
to deduct a percentage of those payments from the royalties due Vergell, up to an agreed upon cap.
Arimoclomol
The
agreement relating to our worldwide rights to arimoclomol provides for our payment of up to an aggregate of $3.65 million upon receipt
of milestone payments from Orphayzme A/S. On May 31, 2022, Orphazyme announced that it had completed the sale of substantially all of
its assets and business activities for cash consideration of $12.8 million and assumption of liabilities estimated to equal approximately
$5.2 million to KemPharm (the “KemPharm Transaction”). KemPharm is a specialty biopharmaceutical company focused on the discovery
and development of novel treatments for rare central nervous system (“CNS”) diseases. As part of the KemPharm Transaction,
all of Orphazyme’s obligations to CytRx under the 2011 Arimoclomol Agreement, including with regard to milestone payments and royalties
on sales, were assumed by KemPharm.
Innovive
Under
the merger agreement by which we acquired Innovive, we agreed to pay the former Innovive stockholders a total of up to approximately
$18.3 million of future earnout merger consideration, subject to our achievement of specified net sales under the Innovive license agreements.
The earnout merger consideration, if any, will be payable in shares of our common stock, subject to specified conditions, or, at our
election, in cash or by a combination of shares of our common stock and cash. Our common stock will be valued for purposes of any future
earnout merger consideration based upon the trading price of our common stock at the time the earnout merger consideration is paid.
As
of June 30, 2022 and December 31, 2021, no amounts were due under the above agreements.
Contingencies
We
apply the disclosure provisions of ASC 460, Guarantees (“ASC 460”) to its agreements that contain guarantees or indemnities
by the Company. We provide (i) indemnifications of varying scope and size to certain investors and other parties for certain losses suffered
or incurred by the indemnified party in connection with various types of third-party claims; and (ii) indemnifications of varying scope
and size to officers and directors against third party claims arising from the services they provide to the Company.
The
Company evaluates developments in legal proceedings and other matters on a quarterly basis. The Company records accruals for loss contingencies
to the extent that the Company concludes that it is probable that a liability has been incurred and the amount of the related loss can
be reasonably estimated.
In
December 2019, a novel strain of coronavirus, COVID-19, was first identified in China and has surfaced in several regions across the
world. In March 2020, the disease was declared a pandemic by the World Health Organization. As the situation with Covid-19 continues
to evolve, the companies which are working to further develop and commercialize our products, ImmunityBio and Orphazyme, could be materially
and adversely affected by the risks, or the public perception of the risks, related to this pandemic. Among other things, the active
and planned clinical trials by ImmunityBio and Orphazyme and their regulatory approvals, if any, may be delayed or interrupted, which
could delay or adversely affect the Company’s potential receipt of milestone and royalty payments within the disclosed time periods
and increase expected costs. As of the date of this filing, senior management and administrative staff are working primarily remotely
and will return to their offices at a yet to be determined date.
8. Subsequent
Events
As
discussed on Note 3, on July 27, 2022, both the Initial Redemption and the Subsequent Redemption occurred. As a result, no shares of Series
D Preferred Stock remain outstanding.