Notes to Consolidated Financial Statements
Note 1. Organization, Description of Business, Reverse Stock Split, Business Disposals and Offerings
Cancer Genetics, Inc. (the "Company") supports the efforts of the biotechnology and pharmaceutical industries to develop innovative new drug therapies. Until the closing of the Business Disposals (as defined below) in July 2019, the Company was an emerging leader in enabling precision medicine in oncology by providing multi-disciplinary diagnostic and data solutions, facilitating individualized therapies through its diagnostic tests, services and molecular markers. Following the Business Disposals described below, the Company currently has an extensive set of anti-tumor referenced data based on predictive xenograft and syngeneic tumor models from the acquisition of vivoPharm, Pty Ltd. (“vivoPharm”) in 2017, to provide Discovery Services such as contract research services, focused primarily on unique specialized studies to guide drug discovery and development programs in the oncology and immuno-oncology fields.
The Company was incorporated in the State of Delaware on April 8, 1999 and, until the Business Disposals, had offices and state-of-the-art laboratories located in New Jersey and North Carolina and today continues to have laboratories in Pennsylvania and Australia. The Company’s corporate headquarters are in Rutherford, New Jersey. The Company offers preclinical services such as predictive tumor models, human orthotopic xenografts and syngeneic immuno-oncology relevant tumor models in its Hershey PA facility, and is a leader in the field of immuno-oncology preclinical services in the United States. This service is supplemented with GLP toxicology and extended bioanalytical services in its Australian-based facilities in Clayton, VIC. Beginning in February 2020, the Company also has a laboratory in Gilles Plains, SA.
Reverse Stock Split
On October 24, 2019, the Company amended its Certificate of Incorporation and effected a 30-for-1 reverse stock split of its common stock. All shares and per share information referenced throughout the consolidated financial statements and footnotes have been retrospectively adjusted to reflect the reverse stock split.
Business Disposals - Discontinuing Operations
Sale of India Subsidiary
On April 26, 2018, the Company sold its India subsidiary, BioServe Biotechnologies (India) Private Limited (“BioServe”) to Reprocell, Inc., for $1.9 million, including $1.6 million in cash at closing and up to an additional $300 thousand, which was contingent upon the India subsidiary meeting a specified revenue target through August 31, 2018. The contingent consideration was reduced to $213 thousand and received in November 2018.
The BioServe disposal resulted in the following (in thousands):
|
|
|
|
|
Consideration received:
|
|
Cash received at closing
|
$
|
1,600
|
|
Contingent consideration received
|
213
|
|
|
$
|
1,813
|
|
|
|
Net assets sold:
|
|
Accounts receivable, net
|
$
|
365
|
|
Other current assets
|
229
|
|
Fixed assets, net
|
608
|
|
Goodwill
|
735
|
|
Other noncurrent assets
|
98
|
|
Cash transferred at closing
|
49
|
|
Accounts payable, accrued expenses and deferred revenue
|
(180
|
)
|
Deferred rent and other
|
(13
|
)
|
|
$
|
1,891
|
|
|
|
Loss on disposal of BioServe
|
$
|
(78
|
)
|
Interpace Biosciences, Inc.
On July 15, 2019, the Company entered into a secured creditor asset purchase agreement (the “BioPharma Agreement”) by and among the Company, Gentris, LLC, a wholly-owned subsidiary of the Company, Partners for Growth IV, L.P. (“PFG”), Interpace Biosciences, Inc. (“IDXG”) and a newly-formed subsidiary of IDXG, Interpace BioPharma, Inc. (“Buyer”). The BioPharma Agreement provided for a consensual private foreclosure sale by PFG of all assets relating to the Company’s BioPharma Business (as defined in the BioPharma Agreement) to Buyer (the “BioPharma Disposal”).
Pursuant to the BioPharma Agreement, Buyer purchased from PFG certain assets and assumed certain liabilities of the Company relating to the BioPharma Business, providing as gross consideration $23.5 million, less certain closing adjustments totaling $2.0 million, of which $7.7 million was settled in the form of a promissory note issued by Buyer to the Company (the “Excess Consideration Note”) and the remainder was paid to PFG in cash. PFG utilized the cash proceeds to satisfy the outstanding balances of the Silicon Valley Bank (“SVB”) asset-based revolving line of credit (“ABL”) and the $6.0 million term note to PFG (“PFG Term Note”), and to satisfy certain transaction expenses. The balance of $2.3 million was delivered to the Company in addition to the Excess Consideration Note.
The following is a reconciliation of the original gross sales price to the consideration received (in thousands):
|
|
|
|
|
Original sales price:
|
|
Gross sales price
|
$
|
23,500
|
|
Adjustments to sales price:
|
|
Transaction costs
|
(1,525
|
)
|
Working capital adjustments
|
(2,705
|
)
|
Payment of other expenses
|
(171
|
)
|
Total adjustments to sales price
|
(4,401
|
)
|
Consideration received
|
$
|
19,099
|
|
The BioPharma Disposal resulted in the following (in thousands):
|
|
|
|
|
Consideration received:
|
|
Cash received at closing
|
$
|
2,258
|
|
Fair value of Excess Consideration Note
|
6,795
|
|
Repayment of ABL and accrued interest
|
2,906
|
|
Repayment of Term Note and accrued interest
|
6,250
|
|
Repayment of certain accounts payable and accrued expenses
|
890
|
|
Net sales price
|
$
|
19,099
|
|
|
|
Net assets sold:
|
|
Accounts receivable
|
$
|
4,271
|
|
Other current assets
|
1,142
|
|
Fixed assets
|
2,998
|
|
Operating lease right-of-use assets
|
1,969
|
|
Patents and other intangible assets
|
42
|
|
Goodwill
|
10,106
|
|
Accounts payable and accrued expenses
|
(4,970
|
)
|
Obligations under operating leases
|
(2,110
|
)
|
Obligations under finance leases
|
(451
|
)
|
Deferred revenue
|
(1,046
|
)
|
|
$
|
11,951
|
|
|
|
Gain on disposal of BioPharma Business
|
$
|
7,148
|
|
The Excess Consideration Note, which required interest-only quarterly payments at a rate of 6% per year, was settled on October 24, 2019 for $6.0 million, including interest of $24 thousand. The Buyer withheld from the settlement of the Excess Consideration Note $775 thousand for a net worth adjustment (assets less liabilities) of the BioPharma business (“Net Worth”), $153 thousand to secure collection of certain older accounts receivable of the Company purchased by Buyer (“AR Holdback”) and an additional $735 thousand as security for indemnification obligations of the Company for any breaches of certain limited warranties and covenants of the Company and other specified items (“Indemnification Holdback”). The Company received the full amounts of the AR Holdback and the Indemnification Holdback in April and May 2020, respectively. The fair value of the Excess Consideration Note was $888 thousand at December 31, 2019.
The Company and Buyer also entered into a transition services agreement (the “TSA”) pursuant to which the Company and Buyer are providing certain services to each other to accommodate the transition of the BioPharma Business to Buyer. In particular, the Company agreed to provide to Buyer, among other things, certain personnel services, payroll processing, administration services and benefit administration services (collectively, the “Payroll and Benefits Services”), for a reasonable period commencing July 15, 2019, subject to the terms and conditions of the TSA, in exchange for payment or reimbursement, as applicable, by Buyer for the costs related thereto, including salaries and benefits for certain of the Company’s BioPharma employees during the transition period. The Company continues to provide the Payroll and Benefits Services under the TSA with respect to a limited number of employees. Such shared services amounted to $186 thousand for the year ended December 31, 2019. In addition, the Buyer is reimbursing the Company, in part, for the salaries and benefits of John A. Roberts, the Company’s Chief Executive Officer, and Glenn Miles, the Company’s Chief Financial Officer. Such salaries and benefits amounted to $188 thousand for the year ended December 31, 2019. Through the terms and conditions of the TSA described above, the net amount due to the Buyer is $92 thousand at December 31, 2019 for collections on behalf of the Buyer.
In connection with the closing of the BioPharma Disposal, the SVB ABL and the PFG Term Note were terminated, and all related liens were released.
siParadigm, Inc.
On July 5, 2019, the Company entered into an asset purchase agreement (the “Clinical Agreement”) by and among the Company and siParadigm, LLC (“siParadigm”), pursuant to which the Company sold to siParadigm, certain assets associated with the Company’s clinical laboratory business (the “Clinical Business,” and such assets, the “Designated Assets”), and agreed to cease
operating its Clinical Business. The Designated Assets include intellectual property, equipment and customer lists associated with the Clinical Business, and for a period of time the Company was providing certain transitional services to siParadigm pursuant to the Clinical Agreement. The cash consideration paid by siParadigm at closing was $747 thousand, which includes $45 thousand for certain equipment plus a $1.0 million advance payment of the Earn-Out (as defined below), less $177 thousand of supplier invoices paid directly by siParadigm, an adjustment of $11 thousand and transaction costs of $110 thousand. The Clinical Business sale (together with the sale of BioServe and the BioPharma Disposal, the “Business Disposals”) was completed on July 8, 2019.
The Clinical Business disposal resulted in the following (in thousands):
|
|
|
|
|
Consideration received:
|
|
Cash received at closing
|
$
|
747
|
|
Fair value of Earn-Out from siParadigm
|
2,376
|
|
Advance from siParadigm received in cash
|
(1,000
|
)
|
|
$
|
2,123
|
|
|
|
Net assets sold:
|
|
Goodwill
|
$
|
1,188
|
|
Accounts payable and accrued expenses
|
(287
|
)
|
|
$
|
901
|
|
|
|
Gain on disposal of Clinical Business
|
$
|
1,222
|
|
The Earn-Out, to be paid over the 24 months post-closing, is based on fees for all tests performed by siParadigm for the Company’s clinical customers during the 12-month period following the closing (the “Earn-Out”). siParadigm withholds a set percentage from each monthly earn-out payment remitted to the Company as repayment of the Advance from siParadigm. The percentage withheld was 25% for earn-out payments for July through September 2019; siParadigm began withholding 75% from the earn-out payments for October 2019 and will continue withholding 75% each month until the Advance from siParadigm is paid in full. At December 31, 2019, the fair value of the current and long-term portion of the Earn-Out from siParadigm was $747 thousand and $356 thousand, respectively. In addition, the current and long-term portion of the Advance from siParadigm was $566 thousand and $252 thousand, respectively.
Under the Clinical Agreement, the Company agreed to certain non-competition and non-solicitation provisions, including that it will cease performing certain clinical tests and will not solicit or seek business from certain of its customers (other than for the Company’s other lines of business) for a period of three years following the closing date.
The Business Disposals have been classified as discontinuing operations in conformity with accounting principles generally accepted in the United States of America. Accordingly, the operations and balances of BioServe and the Company's BioPharma and Clinical operations have been reported as discontinuing operations and removed from all financial disclosures of continuing operations. As permitted by Accounting Standards Codification (“ASC”) 205-20, the Company elected to allocate $1.5 million and $389 thousand of interest expense from the Convertible Note to Iliad and Advance from NDX to discontinuing operations during the years ended December 31, 2019 and 2018, respectively. The interest was allocated based on the ratio of net assets sold less debt required to be paid as a result of the disposal to the Company's net assets (prior to the disposal) plus the consolidated debt not repaid as a result of the disposal. Unless otherwise indicated, information in these notes to consolidated financial statements relates to continuing operations.
2019 Offerings
On January 9, 2019, the Company entered into an underwriting agreement with H.C. Wainwright & Co., LLC (“H.C. Wainwright”), relating to an underwritten public offering of 445 thousand shares of its common stock for $6.75 per share. The Company received proceeds from the offering of $2.4 million, net of expenses and discounts of $563 thousand. The Company also issued warrants to purchase 31 thousand shares of common stock to H.C. Wainwright in connection with this offering. The warrants are exercisable for five years from the date of issuance at a per share price of $7.43. The warrants had a fair value of $168 thousand on the date of issuance and are classified as equity in the Company's Consolidated Balance Sheet.
On January 26, 2019, the Company issued 507 thousand shares of common stock at a public offering price of $6.90 per share. The Company received proceeds from the offering of $3.0 million, net of expenses and discounts of $525 thousand. The Company also issued warrants to purchase 36 thousand shares of common stock to the underwriter, H.C. Wainwright, in connection with this offering. The warrants are exercisable for five years from the date of issuance at a per share price of $7.59. The warrants had a fair value of $183 thousand on the date of issuance and are classified as equity in the Company's Consolidated Balance Sheet.
The January 9, 2019 and January 26, 2019 offerings will be referred to collectively as the “2019 Offerings.” As disclosed in Note 20, certain of the Company's directors and executive officers purchased shares in the 2019 Offerings at the public offering price.
Note 2. Going Concern
At December 31, 2019, the Company's history of losses required management to assess its ability to continue operating as a going concern, according to ASC 205-40, Going Concern. Even after the disposal of its BioPharma Business and Clinical Business discussed in Note 1, the Company does not project that cash at December 31, 2019 will be sufficient to fund normal operations for the twelve months from the issuance of these financial statements in the Annual Report on Form 10-K. The Company's ability to continue as a going concern is dependent on reduced losses and improved future cash flows. Alternatively, the Company may be required to raise additional equity or debt capital, or consummate other strategic transactions. These factors raise substantial doubt about the Company's ability to continue as a going concern. The Company can provide no assurance that these actions will be successful or that additional sources of financing will be available on favorable terms, if at all.
The consolidated financial statements do not include any adjustments that might be necessary should the Company be unable to continue as a going concern.
On March 11, 2020 the World Health Organization declared the novel strain of coronavirus (“COVID-19”) a global pandemic and recommended containment and mitigation measures worldwide. In addition, as the Company is located in New Jersey, it is currently under a shelter-in-place mandate and many of its customers worldwide are similarly impacted. The global outbreak of the COVID-19 continues to rapidly evolve, and the extent to which the COVID-19 may impact the Company's business will depend on future developments, which are highly uncertain and cannot be predicted with confidence, such as the ultimate geographic spread of the disease, the duration of the outbreak, travel restrictions and social distancing in the United States and other countries, business closures or business disruptions, and the effectiveness of actions taken in the United States and other countries to contain and treat the disease. As a healthcare provider, the Company is still providing Discovery Services and has yet to experience a slowdown in its project work, however, the future of many projects may be delayed. The Company continues to vigilantly monitor the situation with its primary focus on the health and safety of its employees and clients.
Note 3. Significant Accounting Policies
Basis of presentation: The Company prepares its financial statements on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America.
Segment reporting: Operating segments are defined as components of an enterprise about which separate discrete information is used by the chief operating decision maker, or decision-making group, in deciding how to allocate resources and in assessing performance. The Company views its operations and manages its business in one operating segment, which is the business of developing and selling diagnostic tests and services.
Principles of consolidation: The accompanying consolidated financial statements include the accounts of Cancer Genetics, Inc. and its wholly-owned subsidiaries.
All significant intercompany account balances and transactions have been eliminated in consolidation.
Foreign currency: The Company translates the financial statements of its foreign subsidiaries, which have a functional currency in the respective country’s local currency, to U.S. dollars using month-end exchange rates for assets and liabilities and average exchange rates for revenue, costs and expenses. Translation gains and losses are recorded in accumulated other comprehensive income as a component of stockholders’ equity. Gains and losses resulting from foreign currency transactions that are denominated in currencies other than the entity’s functional currency are included within the Consolidated Statements of Operations and Other Comprehensive Loss.
Use of estimates and assumptions: The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America 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 revenues and expenses during the reporting period. Significant estimates made by management include, among others, realization of amounts billed, realization of long-lived assets, realization of intangible assets, accruals for litigation and registration payments, assumptions used to value stock options, warrants and goodwill and the valuation of assets and liabilities associated with the Business Disposals. Actual results could differ from those estimates.
Risks and uncertainties: The Company operates in an industry that is subject to intense competition, government regulation and rapid technological change. the Company's operations are subject to significant risk and uncertainties including financial, operational, technological, regulatory, foreign operations, and other risks, including the potential risk of business failure.
Cash and cash equivalents: Highly liquid investments with original maturities of three months or less when purchased are considered to be cash equivalents. Financial instruments which potentially subject the Company to concentrations of credit risk consist primarily of cash and cash equivalents. The Company maintains cash and cash equivalents with high-credit quality financial institutions. At times, such amounts may exceed insured limits. The Company has not experienced any losses in such accounts and believes it is not exposed to any significant credit risk on its cash and cash equivalents.
Restricted cash: Represents cash held at financial institutions which the Company may not withdraw and which collateralizes certain of the Company's financial commitments. All of the Company's restricted cash is invested in interest bearing certificates of deposit. At December 31, 2019 and 2018, the Company's restricted cash collateralizes a $350 thousand letter of credit in favor of its former landlord, pursuant to the terms of the lease for its former Rutherford facility. The letter of credit was released on May 20, 2020.
Revenue recognition: The Company recognizes revenue in accordance with FASB Accounting Standards Codification (“ASC”) 606. The Company recognized the cumulative effect of initially applying ASC 606 as an adjustment to the balance of accumulated deficit on January 1, 2018. The transition adjustment resulted in a net reduction to the opening balance of accumulated deficit of $2.5 million on January 1, 2018 and increased deferred revenue associated with the former BioPharma Business and Discovery Services by $1.9 million and $600 thousand, respectively, due to a change in the Company's policies for recognized revenue for performance obligations fulfilled over time.
Revenue is recorded at the amount expected to be collected, which includes implicit price concessions. Performance obligations are satisfied over time and as study data is transmitted to the customer. Revenue from the Company's Discovery Services is recognized using the time elapsed method and at a point in time as the Company delivers study results to the customers. As results are delivered, the invoices are generated based on contractual rates. Some contracts have prepayments prior to services being rendered that are recorded as deferred revenue. The Company records deferred revenues (contract liabilities) when cash payments are received or due in advance of its performance, including amounts which are refundable. The Company's customer arrangements do not contain any significant financing component.
Discovery Services frequently take time to complete under their respective contacts. These times vary depending on specific contract arrangements including the length of the study and how samples are delivered to the Company for processing. However, the duration of performance obligations for Discovery Services is less than one year.
The Company excludes from the measurement of the transaction price all taxes that it collects from customers that are assessed by governmental authorities and are both imposed on and concurrent with specific revenue-producing transactions.
Accounts receivable: Accounts receivable are carried at net realizable value, which is the original invoice amount less an estimate for contractual adjustments, discounts and doubtful receivables, the amounts of which are determined by an analysis of individual accounts. The Company's policy for assessing the collectability of receivables is dependent upon the major payor source of the underlying revenue. The Company performs an assessment of credit worthiness prior to initial engagement and reassesses it periodically. Recoveries of accounts receivable previously written off are recorded when received.
Deferred revenue: Payments received in advance of services rendered are recorded as deferred revenue and are subsequently recognized as revenue in the period in which the services are performed.
Fixed assets: Fixed assets consist of diagnostic equipment and furniture and fixtures. Fixed assets are carried at cost and are depreciated using the straight-line method over the estimated useful lives of the assets, which generally range from five to twelve years. Repairs and maintenance are charged to expense as incurred while improvements are capitalized. Upon sale, retirement or disposal of fixed assets, the accounts are relieved of the cost and the related accumulated depreciation with any gain or loss recorded to the Consolidated Statements of Operations and Other Comprehensive Loss.
Fixed assets are reviewed for impairment whenever changes in circumstances indicate that the carrying amount of an asset may not be recoverable. These computations utilize judgments and assumptions inherent in the Company's estimate of future cash flows to determine recoverability of these assets. If the Company's assumptions about these assets were to change as a result of events or circumstances, the Company may be required to record an impairment loss. No impairment loss was recognized for the years ended December 31, 2019 and 2018.
Goodwill: Goodwill resulted from the purchase of vivoPharm in 2017. In accordance with ASC 350, Intangibles - Goodwill and Other, the Company is required to test goodwill for impairment and adjust for impairment losses, if any, at least annually and on an interim basis if an event or circumstance indicates that it is likely impairment has occurred. The Company's annual goodwill impairment testing date is October 1 of each year using a market approach. No such losses were incurred during the year ended December 31, 2018. During the year ended December 31, 2019, the Company recognized impairment of goodwill of $2.9 million.
|
|
|
|
|
|
Goodwill (in thousands)
|
Balance, December 31, 2018 and 2017
|
|
$
|
5,963
|
|
Impairment of goodwill
|
|
(2,873
|
)
|
Balance, December 31, 2019
|
|
$
|
3,090
|
|
Equity investment: The Company has an equity investment that does not have a readily determinable market value, with a cost basis of $200 thousand at December 31, 2019 and 2018. This investment is measured at cost, less impairment, if any, plus or minus changes resulting from observable price changes in ordinary transactions for the identical or similar investment of the same issuer. Changes in the fair value of the investment are recorded as net appreciation in fair value of investment in the Consolidated Statements of Operations and Other Comprehensive Loss. At December 31, 2019 and 2018, the equity investment was $200 thousand and is included in other assets on the Consolidated Balance Sheets. No net appreciation or depreciation in fair value of investment was recorded during the years ended December 31, 2019 and 2018, as there were no observable price changes in the stock.
Financing fees: Financing fees are amortized using the effective interest method over the term of the related debt. Debt is recorded net of unamortized debt issuance costs.
Warrant liability: The Company issued warrants during the 2016 Offerings and the 2017 Offering that contain a contingent net cash settlement feature, which are described herein as derivative warrants. The Company also issued warrants that were subject to a 20% reduction if the Company achieved certain financial milestones as part of its 2017 debt refinancing; these warrants were reclassified as equity during 2018 when the number of shares issuable under the agreement became fixed.
Derivative warrants are recorded as liabilities in the accompanying Consolidated Balance Sheets. These common stock purchase warrants do not trade in an active securities market, and as such, the Company estimated the fair value of these warrants using the binomial lattice, Black-Scholes and Monte Carlo valuation pricing models with the assumptions as follows: The risk-free interest rate for periods within the contractual life of the warrant is based on the U.S. Treasury yield curve. The expected life of the warrants is based upon the contractual life of the warrants. The Company uses the historical volatility of its common stock and the closing price of its shares on the NASDAQ Capital Market.
The Company computes the fair value of the warrant liability at each reporting period and the change in the fair value is recorded as non-cash expense or non-cash income. The key component in the value of the warrant liability is the Company's stock price, which is subject to significant fluctuation and is not under the Company's control. The resulting effect on the Company's net loss is therefore subject to significant fluctuation and will continue to be so until the warrants are exercised, amended or expire. Assuming all other fair value inputs remain constant, the Company will record non-cash expense when the stock price increases and non-cash income when the stock price decreases.
Derivative liabilities: The Company evaluates its debt and equity issuances to determine if those contracts or embedded components of those contracts qualify as derivatives requiring separate recognition in the Company’s financial statements. The result of this accounting treatment is that the fair value of the embedded derivative is marked-to-market each balance sheet date and recorded as a liability and the change in fair value is recorded in other income (expense) in the consolidated results of operations. In circumstances where there are multiple embedded instruments that are required to be bifurcated, the bifurcated derivative instruments are accounted for as a single, compound derivative instrument. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is reassessed at the end of each reporting period. Equity instruments that are initially classified as equity that become subject to reclassification are reclassified to liability at the fair value of the instrument on the reclassification date. Derivative instrument liabilities are classified in the balance sheet as current or non-
current based on whether or not net-cash settlement of the derivative instrument is expected within twelve months of the balance sheet date.
When the Company has determined that the embedded conversion options should not be bifurcated from their host instruments, the Company records, when necessary, discounts to convertible notes for the intrinsic value of conversion options embedded in debt instruments based upon the differences between the fair value of the underlying common stock at the commitment date of the note transaction and the effective conversion price embedded in the note. Debt discounts under these arrangements are amortized over the term of the related debt to their stated date of redemption and are recorded as interest expense in the consolidated results of operations.
Income taxes: Income taxes are provided for the tax effects of transactions reported in the consolidated financial statements and consist of taxes currently due plus deferred income taxes. Deferred income taxes are recognized for temporary differences between the financial statement and tax bases of assets and liabilities that will result in taxable or deductible amounts in the future. Deferred income taxes are also recognized for net operating loss (“NOLs”) carryforwards that are available to offset future taxable income and research and development credits.
Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized. The Company has established a full valuation allowance on its deferred tax assets as of December 31, 2019 and 2018; therefore, the Company has not recognized any deferred tax benefit or expense in the periods presented. However, the sale of state NOLs and research and development credits are included in current income tax benefit during the period of the sale.
ASC 740, Income Taxes, clarifies the accounting for uncertainty in income taxes recognized in the financial statements. ASC 740 provides that a tax benefit from uncertain tax positions may be recognized when it is more-likely-than-not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits of the position. Income tax positions must meet a more-likely-than-not recognition threshold to be recognized. ASC 740 also provides guidance on measurement, de-recognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. At December 31, 2019 and 2018 the Company had no uncertain tax positions, and the Company does not expect any changes with regards to uncertain tax positions during the year ending December 31, 2020.
The Company's policy is to recognize interest and/or penalties related to income tax matters in income tax expense. There is no accrual for interest or penalties on the Company's Consolidated Balance Sheets at December 31, 2019 or 2018, and the Company has not recognized interest and/or penalties in the Consolidated Statements of Operations and Other Comprehensive Loss for the years ended December 31, 2019 or 2018.
The Company's major taxing jurisdictions are the United States, Australia and New Jersey. The Company's tax years for 2015 through 2018 are subject to examination by the tax authorities. Generally, as of December 31, 2019, the Company is no longer subject to federal and state examinations by tax authorities for years before 2015. In Australia, the Company's tax returns are subject to examination for five years from the date of filing. However, to the extent allowed by law, the tax authorities may have the right to examine prior periods where net operating losses or tax credits were generated and carried forward, and make adjustments up to the amount of the net operating loss or credit carryforward.
Patents and other intangible assets: The Company accounts for intangible assets under ASC 350-30. Patents consisting of legal fees incurred are initially recorded at cost. The Company has also acquired patents that are initially recorded at fair value. Patents are amortized over the useful lives of the assets, which range from seven to ten years, using the straight-line method. The Company reviews the carrying value of patents at the end of each reporting period. Based upon the Company's review, there was no patent impairment related to continuing operations in 2019 or 2018.
Other intangible assets consist of vivoPharm’s customer list and trade name, which are all amortized using the straight-line method over the estimated useful lives of the assets of ten years.
Research and development: Research and development costs are associated with the Company's allocation of loss from its joint venture described in Note 19. All research and development costs are expensed as they are incurred.
Stock-based compensation: Stock-based compensation is accounted for in accordance with the provisions of ASC 718, Compensation-Stock Compensation, which requires the measurement and recognition of compensation expense for all stock-based awards made to employees and directors based on estimated fair values on the grant date. The Company estimates the fair value of stock-based awards on the date of grant using the Black-Scholes option pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as expense over the requisite service periods using the straight-line method. See additional information in Note 14.
All issuances of stock options or other issuances of equity instruments to employees as the consideration for services received by the Company are accounted for based on the fair value of the equity instrument issued.
Fair value of financial instruments: The carrying amount of cash and cash equivalents, restricted cash, accounts receivable, accounts payable and accrued expenses, approximate their estimated fair values due to the short-term maturities of those financial instruments. The fair value of warrants recorded as derivative liabilities, the note payable to VenturEast, the Earn-Out from siParadigm, and the Excess Consideration Note are described in Notes 16 and 17.
Joint venture accounted for under the equity method: The Company records its joint venture investment following the equity method of accounting, reflecting its initial investment in the joint venture and its share of the joint venture’s net earnings or losses and distributions. The Company’s share of the joint venture’s net loss was $0 and $154 thousand for the years ended December 31, 2019 and 2018, respectively, and is included in research and development expense on the Consolidated Statements of Operations and Other Comprehensive Loss. The Company has a net receivable due from the joint venture of $10 thousand at both December 31, 2019 and 2018, which is included in other assets in the Consolidated Balance Sheets. See additional information in Note 19.
Subsequent events: The Company has evaluated potential subsequent events through the date the financial statements were issued within our Annual Report on Form 10-K.
Recent Adopted Accounting Standards
In February 2016, the Financial Accounting Standards Board (“FASB”) issued guidance codified in ASC 842, Leases, which supersedes the guidance in former ASC 840, Leases, to increase transparency and comparability among organizations by requiring recognition of right-of-use assets and lease liabilities on the balance sheet and disclosure of key information about leasing arrangements (with the exception of short-term leases). In July 2018, the FASB issued Accounting Standards Update (“ASU”) 2018-11 to the existing transition guidance that allows entities to recognize a cumulative-effect adjustment to the opening balance of accumulated deficit in the period of adoption. Effective January 1, 2019, the Company adopted ASC 842 using this new transition guidance. The comparative information has not been restated and continues to be reported under the accounting standard in effect for those periods.
The Company has elected to use the package of practical expedients, which allows it to not (1) reassess whether any expired or existing contracts are considered or contain leases; (2) reassess the lease classification for any expired or existing leases; and (3) reassess the initial direct costs for any existing leases. The Company did not elect the hindsight practical expedient, which permits entities to use hindsight in determining the lease term and assessing impairment.
The most significant impact of adopting ASC 842 is related to the recognition of right-of-use assets and lease obligations for operating leases. The Company's accounting for finance leases remains substantially unchanged. The adoption of ASC 842 had no impact on the Company's consolidated statements of operations or total cash flows from operations.
The cumulative effect of the changes made to the Company's consolidated January 1, 2019 balance sheet for the adoption of ASC 842 was as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2018
|
|
Adjustment for Adoption of ASC 842
|
|
As of January 1, 2019
|
ASSETS
|
|
|
|
|
|
|
Current assets of discontinuing operations
|
|
$
|
23,250
|
|
|
$
|
2,327
|
|
|
$
|
25,577
|
|
Operating lease right-of-use assets
|
|
—
|
|
|
238
|
|
|
238
|
|
|
|
$
|
23,250
|
|
|
$
|
2,565
|
|
|
$
|
25,815
|
|
LIABILITIES
|
|
|
|
|
|
|
Current liabilities of discontinuing operations
|
|
$
|
19,189
|
|
|
$
|
2,327
|
|
|
$
|
21,516
|
|
Deferred rent payable and other
|
|
154
|
|
|
(154
|
)
|
|
—
|
|
Obligations under operating leases, current portion
|
|
—
|
|
|
204
|
|
|
204
|
|
Obligations under operating leases, less current portion
|
|
—
|
|
|
188
|
|
|
188
|
|
|
|
$
|
19,343
|
|
|
$
|
2,565
|
|
|
$
|
21,908
|
|
In January 2017, the FASB issued ASU 2017-04, Intangibles - Goodwill and Other (Topic 350): “Simplifying the Accounting for Goodwill Impairment,” which removes the requirement to perform a hypothetical purchase price allocation to measure goodwill
impairment. A goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. The Company adopted this standard July 1, 2019. Because the Company adopted ASU 2017-04, the Company did not have to fair value all of its assets and liabilities to determine the amount of goodwill impairment. Instead the Company impaired goodwill for the difference between the fair value of the Company and the book value of the Company’s stockholders’ equity.
Recent Accounting Pronouncements: In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes, which simplifies the accounting for income taxes by removing certain exceptions to the general principles in Topic 740. The amendments also improve consistent application of and simplify GAAP for other areas of Topic 740 by clarifying and amending existing guidance. The standard will become effective for interim and annual periods beginning after December 15, 2020, with early adoption permitted. The Company is currently evaluating whether it will early adopt. The guidance is not expected to have a material impact on the Company's consolidated financial statements.
Earnings (loss) per share: Basic earnings (loss) per share is computed by dividing net income (loss) available to common stockholders by the weighted average number of common shares assumed to be outstanding during the period of computation. Diluted earnings per share is computed similar to basic earnings per share except that the numerator is adjusted for the change in fair value of the warrant liability (only if dilutive) and the denominator is increased to include the number of dilutive potential common shares outstanding during the period using the treasury stock method. For all periods presented, all common stock equivalents outstanding were anti-dilutive.
The following table summarizes potentially dilutive adjustments to the weighted average number of common shares which were excluded from the calculation (in thousands):
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Common stock purchase warrants
|
|
279
|
|
|
336
|
|
Stock options
|
|
64
|
|
|
100
|
|
Restricted shares of common stock
|
|
—
|
|
|
1
|
|
Convertible note
|
|
—
|
|
|
103
|
|
Advance from NovellusDx, Ltd.
|
|
—
|
|
|
85
|
|
|
|
343
|
|
|
625
|
|
Reclassifications: Certain items in the prior year consolidated financial statements have been reclassified to conform to the current presentation.
Note 4. Discontinuing Operations
As described in Note 1, the Company sold its India subsidiary, BioServe, in April 2018 and its BioPharma Business and Clinical Business in July 2019. In conjunction with the BioPharma Disposal, the Company repaid its debt to SVB and PFG. The Company elected to allocate $1.5 million and $389 thousand of interest expense from the Convertible Note to Iliad and Advance from NDX to discontinuing operations during the years ended December 31, 2019 and 2018, respectively.
Summarized results of the Company's consolidated discontinuing operations are as follows for the years ended December 31, 2019 and 2018 (in thousands):
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
2019
|
|
2018
|
Revenue
|
$
|
10,066
|
|
|
$
|
22,538
|
|
Cost of revenues
|
7,554
|
|
|
15,634
|
|
Gross profit
|
2,512
|
|
|
6,904
|
|
Operating expenses:
|
|
|
|
Research and development
|
937
|
|
|
2,334
|
|
General and administrative
|
4,675
|
|
|
12,468
|
|
Sales and marketing
|
1,527
|
|
|
4,071
|
|
Restructuring costs
|
194
|
|
|
2,320
|
|
Transaction costs
|
560
|
|
|
—
|
|
Impairment of patents and other intangible assets
|
601
|
|
|
—
|
|
Total operating expenses
|
8,494
|
|
|
21,193
|
|
Loss from discontinuing operations
|
(5,982
|
)
|
|
(14,289
|
)
|
Other income (expense):
|
|
|
|
Interest expense
|
(2,211
|
)
|
|
(1,801
|
)
|
Gain on disposal of Clinical Business
|
1,222
|
|
|
—
|
|
Gain on disposal of BioPharma Business
|
7,148
|
|
|
—
|
|
Loss on disposal of BioServe
|
—
|
|
|
(78
|
)
|
Total other income (expense)
|
6,159
|
|
|
(1,879
|
)
|
Net income (loss) from discontinuing operations
|
$
|
177
|
|
|
$
|
(16,168
|
)
|
Consolidated carrying amounts of major classes of assets and liabilities from discontinuing operations were as follows as of December 31, 2019 and 2018 (in thousands):
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Current assets of discontinuing operations:
|
|
|
|
Accounts receivable, net of allowance for doubtful accounts of $4,536 in 2019; $3,462 in 2018
|
$
|
71
|
|
|
$
|
6,261
|
|
Other current assets
|
—
|
|
|
1,542
|
|
Fixed assets, net of accumulated depreciation
|
—
|
|
|
3,498
|
|
Patents and other intangible assets, net of accumulated amortization
|
—
|
|
|
655
|
|
Goodwill
|
—
|
|
|
11,294
|
|
Current assets of discontinuing operations
|
$
|
71
|
|
|
$
|
23,250
|
|
|
|
|
|
Current liabilities of discontinuing operations
|
|
|
|
Accounts payable and accrued expenses
|
$
|
1,137
|
|
|
$
|
8,470
|
|
Due to Interpace Biosciences, Inc.
|
92
|
|
|
—
|
|
Obligations under finance leases
|
—
|
|
|
610
|
|
Deferred revenue
|
—
|
|
|
1,337
|
|
Line of credit
|
—
|
|
|
2,621
|
|
Term note
|
—
|
|
|
6,000
|
|
Deferred rent payable and other
|
—
|
|
|
151
|
|
Current liabilities of discontinuing operations
|
$
|
1,229
|
|
|
$
|
19,189
|
|
Cash flows used in discontinuing operations consisted of the following for the years ended December 31, 2019 and 2018 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
2019
|
|
2018
|
Income (loss) from discontinuing operations
|
|
$
|
177
|
|
|
$
|
(16,168
|
)
|
|
|
|
|
|
Adjustments to reconcile income (loss) from discontinuing operations to net cash used in operating activities, discontinuing operations
|
|
|
|
|
Depreciation
|
|
542
|
|
|
1,292
|
|
Amortization
|
|
613
|
|
|
21
|
|
Provision for bad debts
|
|
1,074
|
|
|
2,514
|
|
Stock-based compensation
|
|
107
|
|
|
391
|
|
Amortization of operating lease right-of-use assets
|
|
358
|
|
|
—
|
|
Amortization of discount of debt and debt issuance costs
|
|
601
|
|
|
291
|
|
Interest added to Convertible Note
|
|
343
|
|
|
—
|
|
Loss on disposal of fixed assets and sale of India subsidiary
|
|
—
|
|
|
204
|
|
Loss on extinguishment of debt
|
|
328
|
|
|
—
|
|
Gain on disposal of Clinical business
|
|
(1,222
|
)
|
|
—
|
|
Gain on disposal of BioPharma business
|
|
(7,148
|
)
|
|
—
|
|
Change in working capital components:
|
|
|
|
|
Accounts receivable
|
|
845
|
|
|
745
|
|
Other current assets
|
|
398
|
|
|
417
|
|
Other non-current assets
|
|
2
|
|
|
50
|
|
Accounts payable, accrued expenses and deferred revenue
|
|
(2,163
|
)
|
|
886
|
|
Obligations under operating leases
|
|
(217
|
)
|
|
—
|
|
Deferred rent payable and other
|
|
(151
|
)
|
|
6
|
|
Due to IDXG
|
|
92
|
|
|
—
|
|
Net cash used in operating activities, discontinuing operations
|
|
$
|
(5,421
|
)
|
|
$
|
(9,351
|
)
|
Note 5. Revenue
The Company has remaining performance obligations as of December 31, 2019 and 2018 of $1.2 million and $1.2 million, respectively. Deferred revenue of $40 thousand from December 31, 2018 was recognized as revenue in 2019. Remaining performance obligations as of December 31, 2019 of approximately $800 thousand are expected to be recognized as revenue in 2020.
During the year ended December 31, 2019, three customers accounted for approximately 61% of the Company's consolidated revenue from continuing operations. During the year ended December 31, 2018, three customers accounted for approximately 53% of the Company's consolidated revenue from continuing operations.
During the years ended December 31, 2019 and 2018, approximately 24% and 33%, respectively, of the Company's continuing operations revenue was earned outside the United States and collected in local currency.
Note 6. Other Current Assets
At December 31, 2019 and 2018, other current assets consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Lab supplies
|
|
$
|
77
|
|
|
$
|
—
|
|
Prepaid expenses
|
|
469
|
|
|
267
|
|
|
|
$
|
546
|
|
|
$
|
267
|
|
Note 7. Lease Commitments
Operating Leases
The Company leases its laboratory, research facility and administrative office space under various operating leases. Following the Business Disposals, the Company assigned its office leases in North Carolina and New Jersey to Buyer. At December 31, 2019, the Company has approximately 5,800 square feet in Hershey, Pennsylvania and 1,959 square feet in Bundoora, Australia. The Company has escalating lease agreements for its Pennsylvania and Australia spaces, which expire in November 2020 and June 2021, respectively. These leases require monthly rent with periodic rent increases. The difference between minimum rent and straight-line rent was recorded as deferred rent payable until the adoption of ASC 842 on January 1, 2019, as described in Note 1. The terms of the Company's former New Jersey lease required that a $350 thousand security deposit for the facility be held in a stand by letter of credit in favor of the landlord (see Note 9). In addition, under the assignment of leases related to the Company's New Jersey headquarters, the Buyer became obligated to replace the $350 thousand letter of credit held by the New Jersey landlord and secured by the Company's cash collateral in August 2019; however, the letter of credit was not replaced until April 2020. The cash collateral was released on May 20, 2020.
The Company determines if an arrangement is a lease at inception. Operating leases are included in operating lease right-of-use (“ROU”) assets, obligations under operating leases, current portion, and obligations under operating leases, less current portion on its Consolidated Balance Sheets.
ROU assets represent the Company's right to use an underlying asset for the lease term and lease obligations represent the Company's obligation to make lease payments arising from the lease. Operating lease ROU assets and operating lease obligations are recognized based on the present value of the future minimum lease payments over the lease term at the commencement date. As the Company's leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at the commencement date in determining the present value of lease payments. The Company's incremental borrowing rate was determined by adjusting its secured borrowing interest rate for the longer-term nature of its leases. The Company's variable lease payments primarily consist of maintenance and other operating expenses from its real estate leases. Variable lease payments are excluded from the ROU assets and lease liabilities and are recognized in the period in which the obligation for those payments is incurred. The operating lease ROU asset also includes any lease payments made and excludes lease incentives incurred. The Company's lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option. Lease expense for minimum lease payments is recognized on a straight-line basis over the lease term.
The Company has lease agreements with lease and non-lease components. The Company has elected to account for these lease and non-lease components as a single lease component. The Company is also electing not to apply the recognition requirements to short-term leases of twelve months or less and instead will recognize lease payments as expense on a straight-line basis over the lease term.
The components of operating and finance lease expense were as follows for the year ended December 31, 2019 for continuing operations (in thousands):
|
|
|
|
|
|
Finance lease cost:
|
|
|
Amortization of right-of use assets
|
|
$
|
35
|
|
Interest on lease liabilities
|
|
13
|
|
Operating lease cost
|
|
220
|
|
Short-term lease cost
|
|
109
|
|
Variable lease cost
|
|
55
|
|
|
|
$
|
432
|
|
Supplemental cash flow related to operating leases of the Company's continuing operations was as follows for the year ended December 31, 2019 (in thousands):
|
|
|
|
|
|
Cash paid amounts included in the measurement of lease liabilities:
|
|
|
Operating cash flows used for operating leases
|
|
$
|
220
|
|
The Company did not enter into any significant operating leases during the year ended December 31, 2019.
Finance Leases
The Company also leases scientific equipment under various finance leases, which have been capitalized at the present value of the minimum lease payments. Finance leases are included in fixed assets, net of accumulated depreciation and obligations under finance leases. The equipment under these finance leases had a cost of $302 thousand and accumulated depreciation of $84 thousand, as of December 31, 2019.
Minimum future lease payments under all finance and operating leases as of December 31, 2019 are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Finance
Leases
|
|
Operating
Leases
|
|
Total
|
December 31,
|
|
|
|
|
|
|
2020
|
|
$
|
84
|
|
|
$
|
209
|
|
|
$
|
293
|
|
2021
|
|
44
|
|
|
11
|
|
|
55
|
|
2022
|
|
36
|
|
|
—
|
|
|
36
|
|
2023
|
|
36
|
|
|
—
|
|
|
36
|
|
2024
|
|
9
|
|
|
—
|
|
|
9
|
|
Total minimum lease payments
|
|
209
|
|
|
220
|
|
|
429
|
|
Less amount representing interest
|
|
34
|
|
|
17
|
|
|
51
|
|
Present value of net minimum obligations
|
|
175
|
|
|
203
|
|
|
378
|
|
Less current obligation under finance and operating leases
|
|
68
|
|
|
193
|
|
|
261
|
|
Long-term obligation under finance and operating leases
|
|
$
|
107
|
|
|
$
|
10
|
|
|
$
|
117
|
|
Other supplemental information related to operating and finance leases of the Company's continuing operations was as follows at December 31, 2019:
|
|
|
|
|
Weighted average remaining lease term (in years):
|
|
|
Operating leases
|
|
0.99
|
|
Finance leases
|
|
3.35
|
|
|
|
|
Weighted average discount rate:
|
|
|
Operating leases
|
|
7.98
|
%
|
Finance leases
|
|
8.21
|
%
|
Note 8. Financing
Convertible Note
On July 17, 2018, the Company issued a convertible promissory note to Iliad Research and Trading, L.P. (“Iliad”), with an initial principal amount of $2.6 million (“Convertible Note”). The Company received consideration of $2.5 million, reflecting an original issue discount of $100 thousand and expenses payable by the Company of $25 thousand. The Convertible Note had an 18-month term and carried interest at 10% per annum. The note was convertible into shares of the Company’s common stock at a conversion price of $24.00 per share upon 5 trading days’ notice, subject to certain adjustments (standard dilution) and ownership limitations specified in the Convertible Note and resulted in a beneficial conversion feature discount of $328 thousand at inception.
Iliad could redeem any portion of the Convertible Note, at any time after six months from the issue date upon 5 trading days’ notice, subject to a maximum monthly redemption amount of $650 thousand, with the Company having the option to pay such redemptions in cash, the Company’s common stock at the Conversion Price, or by a combination thereof, subject to certain conditions, including that the stock price is $30.00 per share or higher. At maturity, the Company could pay the outstanding balance in cash, the Company’s common stock at the Conversion Price, or by a combination thereof, subject to certain conditions. The
Convertible Note provided that in the event of default, the lender may, at its option, elect to increase the outstanding balance applying the default effect (defined as outstanding balance at date of default multiplied by 15% plus outstanding amount) by providing written notice to the Company. In addition, the interest rate increases to 22% upon default. The default effect and default interest rate provisions qualified as embedded derivatives with an estimated fair value of $55 thousand at December 31, 2018.
During the first quarter of 2019, the Company entered into a standstill agreement with Iliad, which among other things, provided that Iliad would not seek to redeem any portion of the Convertible Note prior to April 15, 2019 and, as consideration for the standstill, increased the outstanding balance of the note by $202 thousand. In May 2019, Iliad agreed to a second standstill until May 31, 2019. As consideration, the conversion price was reduced to $6.82 for $1.3 million of the balance of the Convertible Note; the remainder was still convertible at $24.00. The reduction in the conversion price increased the fair value of the embedded conversion option by $547 thousand. The future cash flows of the Convertible Note changed by more than 10% as a result of the second standstill, so the Company amortized the remaining debt discount and debt issuance costs of $37 thousand, resulting in a loss on debt extinguishment of $584 thousand during the year ended December 31, 2019, of which $328 thousand was allocated to discontinuing operations. Loss on debt extinguishment allocated to continuing operations was recorded in interest expense.
As of June 20, 2019, the Company was in default on the Convertible Note. The Convertible Note began accruing interest at the default rate and the outstanding balance was increased by the default effect ($409 thousand) upon the notice of default.
In May 2019, Iliad converted $350 thousand of the Convertible Note into an aggregate of 51 thousand shares of the Company's common stock at a conversion price of $6.82 per share. During the year ended December 31, 2019, the Company issued 174 thousand shares of common stock to Iliad in exchange for the return of $612 thousand of principal amounts due under the Convertible Note using the exchange date fair market value of the Company's common stock. In October 2019, the Convertible Note was settled for $2.7 million, in cash, including accrued interest of $439 thousand. Of this settlement, $1.3 million was paid directly by Atlas Sciences, LLC ("Atlas Sciences") through the issuance of a new note payable to Atlas Sciences described below.
The Convertible Note was the general unsecured obligation of the Company. At December 31, 2019, the Convertible Note had a balance of $0. At December 31, 2018, the Convertible Note had a balance of $2.5 million, net of discounts and unamortized debt issuance costs of $136 thousand and $8 thousand, respectively. The effective interest rate during the years ended December 31, 2019 and 2018, was 70% and 40%. During the years ended December 31, 2019 and 2018, the Company incurred $420 thousand and $347 thousand, respectively, of contractual interest and amortization of the beneficial conversion feature. In addition, the Company incurred $40 thousand of amortization of other debt discounts and issuance costs, $202 thousand of standstill fees, $409 thousand of default penalties, and $547 thousand of additional cost related to reducing the conversion price on a portion of the debt during the year ended December 31, 2019. The Company incurred $85 thousand of amortization of other debt discounts and issuance costs during the year ended December 31, 2018.
Advance from NovellusDx, Ltd.
On September 18, 2018, the Company entered into an agreement and plan of merger (“Merger Agreement”) with NovellusDx, Ltd. (“NDX”). In connection with signing the Merger Agreement, NDX loaned the Company $1.5 million. Interest originally accrued on the outstanding balance at 10.75% per annum (“Advance from NDX”), and the advance was to mature upon the earlier of March 31, 2019 or the date on which the Merger Agreement was terminated in accordance with its terms (or ninety days thereafter in the case of certain causes for termination). Upon certain events of default, NDX would be able to convert all, but not less than all, of the outstanding balance into shares of the Company’s common stock at a conversion price of $18.18 per share, which qualified as a contingent beneficial conversion feature that would only be recognized if a default occurred.
On December 15, 2018, the Company terminated the Merger Agreement. As a result, the Advance from NDX, plus interest thereon, became due and payable on March 15, 2019, and the interest rate was increased to 21% due to an event of default. As a result of the default, the Company recognized the beneficial conversion feature discount of $1.2 million. The default interest rate provision qualified as an embedded derivative with an estimated fair value of $31 thousand at December 31, 2018. At December 31, 2018, the principal balance of the Credit Agreement was $1.5 million, which is presented net of the unamortized beneficial conversion feature of $965 thousand in the Consolidated Balance Sheet. Prior to the NDX Settlement Agreement, defined in the next paragraph, the effective interest rate on the Advance from NDX was 81% and 69% during the years ended December 31, 2019 and 2018, respectively. The Company recognized $1.2 million and $261 thousand of interest and amortization of the beneficial conversion feature during the years ended December 31, 2019 and 2018, respectively. Of these amounts, $637 thousand and $147 thousand are included in discontinued operations.
On October 21, 2019, the Company and NDX entered into a settlement agreement (“NDX Settlement Agreement”). The NDX Settlement Agreement required the Company to pay $100 thousand on the date of execution and $1.0 million upon receipt of proceeds from the Excess Consideration Note. The $1.0 million payment was made in October 2019. As a result of such payment,
pursuant to the NDX Settlement Agreement, the balance of the Advance from NDX was reduced from $708 thousand to $450 thousand and each party released the other from all claims under the original credit agreement and the Merger Agreement. The remaining amount due is to be paid in nine monthly payments of $50 thousand commencing in November 2019. If the Company fails to make any of the required monthly payments, NDX may convert all, but not less than all, of the amounts then owing into a number of shares of the Company’s common stock at a conversion price of $4.50 per share. The NDX Settlement Agreement adjusted the interest rate of the obligation to 0%. The Company recognized a gain on troubled debt restructuring relating to the NDX Settlement Agreement of $258 thousand during the year ended December 31, 2019. The gain was the difference between the book value of the debt at settlement and the future payments due.
The Advance from NDX is the general unsecured obligation of the Company. At December 31, 2019, the Advance from NDX had a principal balance of $350 thousand.
Note Payable, Net
On October 21, 2019, the Company issued an unsecured promissory note to Atlas Sciences, an affiliate of Iliad, for $1.3 million (“Note Payable”). The Company received consideration of $1.3 million, reflecting an original issue discount of $88 thousand and expenses payable by the Company of $10 thousand. The Note Payable has a 12-month term and bears interest at 10% per annum. The proceeds from the Note Payable were utilized to partially repay the Convertible Note. Atlas Sciences may redeem any portion of the note, at any time after six months from the issuance date upon three business days' notice, subject to a monthly maximum redemption amount of $300 thousand. The Company may prepay the Note Payable at any time without penalty. Upon the occurrence of an event of default, Atlas Sciences can elect to adjust the interest rate to 22% per annum and/or apply the default effect, which increases the outstanding balance of the Note Payable by 15% on the date of default. At December 31, 2019, the Note Payable had a principal balance of $1.3 million, which is presented net of discounts and unamortized debt issuance costs of $64 thousand and $7 thousand, respectively.
All of the Company's debt matures in 2020.
Note 9. Letter of Credit
The Company maintains a $350 thousand letter of credit in favor of its former landlord pursuant to the terms of the lease for its Rutherford facility. At December 31, 2019 and 2018, the letter of credit was fully secured by the restricted cash disclosed on the Company's Consolidated Balance Sheets. In addition, under the assignment of leases related to the Company's New Jersey headquarters, the Buyer became obligated to replace a $350 thousand letter of credit held by the New Jersey landlord and secured by the Company's cash collateral in August 2019; however, the letter of credit was not replaced until April 2020. The cash collateral was released on May 20, 2020.
Note 10. Fixed Assets
Fixed assets are summarized by major classifications as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Equipment
|
|
$
|
1,000
|
|
|
$
|
842
|
|
Furniture and fixtures
|
|
53
|
|
|
52
|
|
|
|
1,053
|
|
|
894
|
|
Less accumulated depreciation
|
|
(495
|
)
|
|
(336
|
)
|
Net fixed assets
|
|
$
|
558
|
|
|
$
|
558
|
|
Depreciation expense recognized during the years ended December 31, 2019 and 2018 was $159 thousand and $310 thousand, respectively.
The fixed assets in the table above include foreign currency translation adjustments that were de minimus during the years ended December 31, 2019 and 2018.
Note 11. Patents and Other Intangible Assets
Patents and other intangible assets consist of the following at December 31, 2019 and 2018:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
Remaining
|
|
|
(in thousands)
|
|
(in thousands)
|
|
Amortization
|
|
|
2019
|
|
2018
|
|
Period
|
Patents
|
|
$
|
981
|
|
|
$
|
981
|
|
|
3 years
|
Customer list
|
|
2,738
|
|
|
2,738
|
|
|
8 years
|
Trade name
|
|
477
|
|
|
477
|
|
|
8 years
|
|
|
4,196
|
|
|
4,196
|
|
|
|
Less accumulated amortization
|
|
(1,301
|
)
|
|
(847
|
)
|
|
|
Net patent and other intangible assets
|
|
$
|
2,895
|
|
|
$
|
3,349
|
|
|
|
The customer list and trade name in the table above include foreign currency translation adjustments that were de minimus during the years ended December 31, 2019 and 2018.
Amortization expense recognized during the years ended December 31, 2019 and 2018 was $454 thousand and $491 thousand, respectively. Future amortization expense for patents and other intangible assets, is estimated as follows (in thousands):
|
|
|
|
|
2020
|
$
|
465
|
|
2021
|
465
|
|
2022
|
424
|
|
2023
|
344
|
|
2024
|
337
|
|
Thereafter
|
860
|
|
Total
|
$
|
2,895
|
|
Note 12. Income Taxes
Loss from continuing and discontinuing operations before income tax provision (benefit) consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31
|
|
|
2019
|
|
2018
|
United States
|
|
$
|
(5,619
|
)
|
|
$
|
(19,793
|
)
|
Foreign
|
|
(1,601
|
)
|
|
(580
|
)
|
Total
|
|
$
|
(7,220
|
)
|
|
$
|
(20,373
|
)
|
The provision (benefit) for income taxes from continuing and discontinuing operations consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31
|
|
|
2019
|
|
2018
|
Current:
|
|
|
|
|
State
|
|
$
|
(512
|
)
|
|
$
|
—
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
Federal
|
|
$
|
687
|
|
|
$
|
(4,112
|
)
|
State
|
|
766
|
|
|
12
|
|
Foreign
|
|
(167
|
)
|
|
52
|
|
|
|
1,286
|
|
|
(4,048
|
)
|
Change in valuation allowance
|
|
(1,286
|
)
|
|
4,048
|
|
Total deferred
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
Total
|
|
$
|
(512
|
)
|
|
$
|
—
|
|
The provision (benefit) for income taxes from continuing and discontinuing operations for the years ended December 31, 2019 and 2018 differs from the approximate amount of income tax benefit determined by applying the U.S. federal income tax rate to pre-tax loss, due to the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2019
|
|
Year Ended December 31, 2018
|
|
|
Amount
(in thousands)
|
|
% of
Pretax
Loss
|
|
Amount
(in thousands)
|
|
% of
Pretax
Loss
|
Income tax benefit at federal statutory rate
|
|
$
|
(1,516
|
)
|
|
21.0
|
%
|
|
$
|
(4,278
|
)
|
|
21.0
|
%
|
State tax provision, net of federal tax benefit
|
|
223
|
|
|
(3.1
|
)%
|
|
226
|
|
|
(1.1
|
)%
|
Tax credits
|
|
136
|
|
|
(1.9
|
)%
|
|
(60
|
)
|
|
0.3
|
%
|
Stock based compensation
|
|
997
|
|
|
(13.8
|
)%
|
|
211
|
|
|
(1.0
|
)%
|
Derivative warrants
|
|
(30
|
)
|
|
0.4
|
%
|
|
(766
|
)
|
|
3.7
|
%
|
Change in valuation allowance
|
|
(1,286
|
)
|
|
17.8
|
%
|
|
4,048
|
|
|
(19.9
|
)%
|
Goodwill impairment
|
|
604
|
|
|
(8.4
|
)%
|
|
—
|
|
|
—
|
%
|
Foreign operations
|
|
109
|
|
|
(1.5
|
)%
|
|
508
|
|
|
(2.5
|
)%
|
Gain on sale of businesses
|
|
246
|
|
|
(3.4
|
)%
|
|
—
|
|
|
—
|
%
|
Other
|
|
5
|
|
|
—
|
%
|
|
111
|
|
|
(0.5
|
)%
|
Income tax (benefit) provision
|
|
$
|
(512
|
)
|
|
7.1
|
%
|
|
$
|
—
|
|
|
—
|
%
|
On April 4, 2019, the Company sold $11.6 million of gross State of New Jersey NOL’s relating to the 2017 tax year as well as $72 thousand of state research and development tax credits, resulting in the receipt of $512 thousand, net of expenses.
Approximate deferred taxes consist of the following components as of December 31, 2019 and 2018 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Deferred tax assets:
|
|
|
|
|
Net operating loss carryforwards
|
|
$
|
26,317
|
|
|
$
|
25,999
|
|
Accruals and reserves
|
|
3,014
|
|
|
4,328
|
|
Stock based compensation
|
|
75
|
|
|
1,020
|
|
Research and development tax credits
|
|
1,800
|
|
|
1,936
|
|
Derivative warrant liability
|
|
17
|
|
|
17
|
|
Investment in joint venture
|
|
161
|
|
|
162
|
|
Other
|
|
6
|
|
|
6
|
|
Total deferred tax assets
|
|
31,390
|
|
|
33,468
|
|
Less valuation allowance
|
|
(30,497
|
)
|
|
(31,783
|
)
|
Net deferred tax assets
|
|
893
|
|
|
1,685
|
|
Deferred tax liabilities
|
|
|
|
|
Fixed assets
|
|
(132
|
)
|
|
(352
|
)
|
Goodwill and intangible assets
|
|
(761
|
)
|
|
(1,333
|
)
|
Net deferred taxes
|
|
$
|
—
|
|
|
$
|
—
|
|
Due to a history of losses the Company has generated since inception, the Company believes it is more-likely-than-not that all of the deferred tax assets will not be realized as of December 31, 2019 and 2018. Therefore, the Company has recorded a full valuation allowance on its deferred tax assets. As a result of the Tax Cuts and Jobs Act, the federal net operating losses incurred after 2017 will have an indefinite carryforward. At December 31, 2019, the Company has net operating loss carryforwards for federal income tax purposes of $117.5 million, of which $98.9 million could expire over time, beginning in 2027, if not used. At December 31, 2019, the Company has $2.7 million of Australian net operating loss carryforwards and $18.2 million of New Jersey net operating loss carryforwards. At December 31, 2019, the Company also had $1.8 million of federal research and development tax credits, which expire in varying amounts between the years 2020 and 2038. Utilization of these carryforwards is subject to limitation due to ownership changes that may delay the utilization of a portion of the carryforwards.
Note 13. Capital Stock
2019 Offerings
On January 9, 2019, the Company entered into an underwriting agreement with H.C. Wainwright, relating to an underwritten public offering of 445 thousand shares of the Company's common stock for $6.75 per share. The Company received proceeds from the offering of $2.4 million, net of expenses and discounts of $563 thousand.
On January 26, 2019, the Company issued 507 thousand shares of common stock at a public offering price of $6.90 per share. The Company received proceeds from the offering of $3.0 million, net of expenses and discounts of $525 thousand.
Conversions and Exchanges of Debt into Common Stock
In May 2019, Iliad converted $350 thousand of the Convertible Note into an aggregate of 51 thousand shares of the Company's common stock at a conversion price of $6.82 per share.
During the year ended December 31, 2019, the Company issued 174 thousand shares of common stock to Iliad in exchange for the return of $612 thousand of principal amounts due under the Convertible Note using the exchange date fair market value of the Company's common stock.
Stock Issued to Vendor
On December 4, 2019, the Company issued 5 thousand shares of common stock to a vendor at a value of $7.86 per common share, using the exchange date fair market value of the Company's common stock.
Preferred Stock
The Company is currently authorized to issue up to 9.8 million shares of preferred stock. As of December 31, 2019 and 2018, no shares of preferred stock were outstanding.
Note 14. Stock-Based Compensation
The Company has two equity incentive plans: the 2008 Stock Option Plan (the “2008 Plan”) and the 2011 Equity Incentive Plan (the “2011 Plan”, and together with the 2008 Plan, the “Stock Option Plans”). The Stock Option Plans are meant to provide additional incentive to officers, employees and consultants to remain in the Company's employment. Options granted are generally exercisable for up to 10 years.
The 2011 Plan reserved 105 thousand shares of common stock for issuance, under several types of equity awards including stock options, stock appreciation rights, restricted stock awards and other awards defined in the 2011 Plan. At December 31, 2019, 33 thousand shares remain available for future awards under the 2011 Plan.
The 2008 Plan reserved 18 thousand shares of common stock for issuance. Effective April 9, 2018, the Company is no longer able to issue options from the 2008 Plan. Prior to April 9, 2018, the Company was authorized to issue incentive stock options or non-statutory stock options to eligible participants, as defined in the 2008 Plan.
At December 31, 2019, the Company has 1 thousand options outstanding that were issued outside of the Stock Option Plans. As of December 31, 2019, no stock appreciation rights and 12 thousand shares of restricted stock had been awarded under the Stock Option Plans.
On July 23, 2019, the Company issued 3 thousand stock options to each of its five non-employee directors. The options will vest in equal monthly installments over twelve months and have an exercise price of $4.50 per share. On January 2, 2020, the Company issued an aggregate of 20 thousand stock options to two executives, as discussed in Note 20. The options will vest in equal monthly installments over twelve months and have an exercise price of $5.53 per share and a grant date fair value of $4.45 per share.
A summary of employee and non-employee stock option activity for the years ended December 31, 2019 and 2018 for both continuing and discontinuing employees is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding
|
|
Weighted-
Average
Remaining
Contractual
Term (in years)
|
|
Aggregate
Intrinsic
Value
|
|
|
Number of
Shares
(in thousands)
|
|
Weighted-
Average
Exercise
Price
|
|
Outstanding January 1, 2018
|
|
95
|
|
|
$
|
210.00
|
|
|
6.96
|
|
$
|
4
|
|
Granted
|
|
29
|
|
|
25.20
|
|
|
|
|
|
Cancelled or expired
|
|
(24
|
)
|
|
142.20
|
|
|
|
|
|
Outstanding December 31, 2018
|
|
100
|
|
|
173.10
|
|
|
5.70
|
|
$
|
—
|
|
Granted
|
|
20
|
|
|
5.89
|
|
|
|
|
|
Cancelled or expired
|
|
(56
|
)
|
|
182.37
|
|
|
|
|
|
Outstanding December 31, 2019
|
|
64
|
|
|
$
|
113.63
|
|
|
7.48
|
|
$
|
24
|
|
Exercisable, December 31, 2019
|
|
40
|
|
|
$
|
170.52
|
|
|
6.63
|
|
$
|
10
|
|
Aggregate intrinsic value represents the difference between the fair value of the Company's common stock and the exercise price of outstanding, in-the-money options. During the years ended December 31, 2019 and 2018, no options were exercised.
As of December 31, 2019, total unrecognized compensation cost related to non-vested stock options granted to employees was $177 thousand for continuing operations, which the Company expects to recognize over the next 2.18 years.
The fair value of options granted to employees is estimated on the grant date using the Black-Scholes option valuation model. This valuation model requires the Company to make assumptions and judgments about the variables used in the calculation, including the expected term (the period of time that the options granted are expected to be outstanding), the volatility of the Company's common stock, a risk-free interest rate, and expected dividends. The Company records forfeitures of unvested stock options when they occur. No compensation cost is recorded for options that do not vest. Due to significant changes in the Company's business, the Company used the simplified calculation of expected life described in the SEC’s Staff Accounting Bulletin No. 107, Share-Based Payment, and volatility is based on the historical volatility of the Company's common stock. The risk-free rate is based on the U.S. Treasury yield curve in effect at the time of grant for periods corresponding with the expected life of the option. The Company uses an expected dividend yield of zero, as it does not anticipate paying any dividends in the foreseeable future.
The following table presents the weighted-average assumptions used to estimate the fair value of options granted to continuing and discontinuing employees during the periods presented:
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
2019
|
|
2018
|
Volatility
|
|
93.86
|
%
|
|
77.79
|
%
|
Risk free interest rate
|
|
1.95
|
%
|
|
2.88
|
%
|
Dividend yield
|
|
—
|
|
|
—
|
|
Term (years)
|
|
5.44
|
|
|
6.45
|
|
Weighted-average fair value of options granted during the period
|
|
$
|
4.32
|
|
|
$
|
17.70
|
|
Restricted stock awards have been granted to employees, directors and consultants as compensation for services. At December 31, 2019, there was no unrecognized compensation cost related to non-vested restricted stock.
The following table summarizes the activities for the Company's non-vested restricted stock awards for the years ended December 31, 2019 and 2018 for both continuing and discontinuing employees:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-vested Restricted Stock Awards
|
|
|
|
|
Number of Shares (in thousands)
|
|
Weighted-Average Grant Date Fair Value
|
Non-vested at January 1, 2018
|
|
|
|
3
|
|
|
$
|
126.30
|
|
Vested
|
|
|
|
(1
|
)
|
|
100.80
|
|
Forfeited/cancelled
|
|
|
|
(1
|
)
|
|
203.10
|
|
Non-vested at December 31, 2018
|
|
|
|
1
|
|
|
102.82
|
|
Vested
|
|
|
|
(1
|
)
|
|
102.82
|
|
Non-vested at December 31, 2019
|
|
|
|
—
|
|
|
$
|
—
|
|
The TSA with Buyer described in Note 1 included the continued employment of individuals who will transfer to Buyer no later than six months from the closing of the transaction. Stock-based compensation related to these employees is included in discontinuing operations. The following table presents the effects of stock-based compensation related to stock option and restricted stock awards to employees and non-employees on the Company's continuing operations included in its Consolidated Statements of Operations and Other Comprehensive Loss during the periods presented (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
2019
|
|
2018
|
Cost of revenues
|
|
$
|
16
|
|
|
$
|
16
|
|
General and administrative
|
|
247
|
|
|
514
|
|
Total stock-based compensation related to continuing operations
|
|
$
|
263
|
|
|
$
|
530
|
|
During the years ended December 31, 2019 and 2018, the Company recognized $107 thousand and $391 thousand, respectively, of stock-based compensation related to discontinuing operations.
Note 15. Warrants
During 2016 and 2017, the Company issued warrants containing a contingent net cash settlement feature (identified as 2016 Offerings and 2017 Offering, respectively, under the heading “derivative” in the table below). These warrants are recorded as a warrant liability, and all subsequent changes in their fair value are recognized in earnings until they are exercised, amended or expired. During 2017, the Company also issued warrants that were subject to a 20% reduction if the Company achieved certain financial milestones as part of its debt refinancing in March 2017 (identified as 2017 Debt in the table below). These warrants were recorded as a warrant liability, and all subsequent changes in their fair value were recognized in earnings until April 2, 2018, when the number of shares of common stock issuable upon exercise of the warrants became fixed. On June 30, 2018, the 2017 Debt warrants were modified to adjust the exercise price from $84.60 per share to $27.60 per share.
On June 8, 2019, warrants to purchase 123 thousand shares of the Company's common stock, referred to below as the 2017 Offering, expired.
In January 2019, the Company issued warrants to purchase 31 thousand and 36 thousand shares of its common stock at $7.43 and $7.59 per share, respectively, in conjunction with its 2019 Offerings described in Note 1.
The following table summarizes the warrant activity for the years ending December 31, 2019 and 2018 (in thousands except exercise price):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issued With / For
|
|
Exercise
Price
|
|
|
Warrants
Outstanding
January 1,
2018
|
|
Transfer Between Derivative Warrants and Non-Derivative Warrants
|
|
Warrants
Outstanding
December 31,
2018
|
|
2019
Warrants
Issued
|
|
2019
Warrants
Expired
|
|
Warrants
Outstanding
December 31,
2019
|
Non-Derivative Warrants:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financing
|
|
$
|
300.00
|
|
|
|
8
|
|
|
—
|
|
|
8
|
|
|
—
|
|
|
—
|
|
|
8
|
|
Financing
|
|
450.00
|
|
|
|
9
|
|
|
—
|
|
|
9
|
|
|
—
|
|
|
—
|
|
|
9
|
|
2015 Offering
|
|
150.00
|
|
|
|
115
|
|
|
—
|
|
|
115
|
|
|
—
|
|
|
—
|
|
|
115
|
|
2017 Debt
|
|
27.60
|
|
A
|
|
—
|
|
|
15
|
|
|
15
|
|
|
—
|
|
|
—
|
|
|
15
|
|
2019 Offering
|
|
7.43
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
31
|
|
|
—
|
|
|
31
|
|
2019 Offering
|
|
7.59
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
35
|
|
|
—
|
|
|
35
|
|
|
|
115.54
|
|
C
|
|
132
|
|
|
15
|
|
|
147
|
|
|
66
|
|
|
—
|
|
|
213
|
|
Derivative Warrants:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2016 Offerings
|
|
67.50
|
|
B
|
|
66
|
|
|
—
|
|
|
66
|
|
|
—
|
|
|
|
|
|
66
|
|
2017 Debt
|
|
27.60
|
|
A
|
|
15
|
|
|
(15
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
2017 Offering
|
|
70.50
|
|
B
|
|
117
|
|
|
—
|
|
|
117
|
|
|
—
|
|
|
(117
|
)
|
|
—
|
|
2017 Offering
|
|
75.00
|
|
B
|
|
6
|
|
|
—
|
|
|
6
|
|
|
—
|
|
|
(6
|
)
|
|
—
|
|
|
|
67.50
|
|
C
|
|
204
|
|
|
(15
|
)
|
|
189
|
|
|
—
|
|
|
(123
|
)
|
|
66
|
|
|
|
$
|
104.18
|
|
C
|
|
336
|
|
|
—
|
|
|
336
|
|
|
66
|
|
|
(123
|
)
|
|
279
|
|
________________________
|
|
A
|
These warrants were subject to fair value accounting until the number of shares issuable upon the exercise of the warrants became fixed on April 2, 2018. Effective June 30, 2018, the exercise price was reduced from $84.60 per share to $27.60 per share. See Note 16.
|
|
|
B
|
These warrants are subject to fair value accounting and contain a contingent net cash settlement feature. See Note 16.
|
|
|
C
|
Weighted average exercise prices are as of December 31, 2019.
|
Note 16. Fair Value of Warrants
The derivative warrants issued as part of the 2016 Offerings are valued using a probability-weighted Binomial model, while the derivative warrants issued as part of the 2017 Debt refinancing were valued using a Monte Carlo model. The derivative warrants issued in conjunction with the 2017 Offering were valued using a Black-Scholes model. The following tables summarize the assumptions used in computing the fair value of derivative warrants subject to fair value accounting at December 31, 2019 and 2018, and the fair value of derivative warrants reclassified to equity during the years then ended.
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2019
|
|
As of December 31, 2018
|
2016 Offerings
|
|
|
Exercise price
|
|
$
|
67.50
|
|
|
$
|
67.50
|
|
Expected life (years)
|
|
2.08
|
|
|
3.08
|
|
Expected volatility
|
|
150.69
|
%
|
|
100.51
|
%
|
Risk-free interest rate
|
|
1.58
|
%
|
|
2.46
|
%
|
Expected dividend yield
|
|
0.00
|
%
|
|
0.00
|
%
|
|
|
|
|
|
|
|
|
Reclassified to Equity During the Year Ended December 31, 2018
|
2017 Debt
|
|
Exercise price
|
|
$
|
84.60
|
|
Expected life (years)
|
|
5.97
|
|
Expected volatility
|
|
73.40
|
%
|
Risk-free interest rate
|
|
2.55
|
%
|
Expected dividend yield
|
|
0.00
|
%
|
|
|
|
|
|
|
|
|
As of December 31, 2018
|
2017 Offering
|
|
Exercise price
|
|
$
|
70.80
|
|
Expected life (years)
|
|
0.44
|
|
Expected volatility
|
|
172.5
|
%
|
Risk-free interest rate
|
|
2.56
|
%
|
Expected dividend yield
|
|
0.00
|
%
|
The Company stock price used in computing the fair value for warrants reclassified to equity during 2018 was $49.50. In determining the fair value of warrants outstanding at each reporting date, the Company stock price was $5.96 and $7.20 (the closing price on the NASDAQ Capital Market) at December 31, 2019 and 2018, respectively.
The following table summarizes the derivative warrant activity subject to fair value accounting for the years ended December 31, 2019 and 2018 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issued with 2016 Offerings
|
|
Issued with 2017 Debt
|
|
Issued with 2017 Offering
|
|
Total
|
Fair value of warrants outstanding as of January 1, 2018
|
|
$
|
1,929
|
|
|
$
|
501
|
|
|
$
|
1,973
|
|
|
$
|
4,403
|
|
Fair value of warrants reclassified to equity
|
|
—
|
|
|
(423
|
)
|
|
—
|
|
|
(423
|
)
|
Change in fair value of warrants
|
|
(1,704
|
)
|
|
(78
|
)
|
|
(1,950
|
)
|
|
(3,732
|
)
|
Fair value of warrants outstanding as of December 31, 2018
|
|
225
|
|
|
—
|
|
|
23
|
|
|
248
|
|
Change in fair value of warrants
|
|
(47
|
)
|
|
—
|
|
|
(23
|
)
|
|
(70
|
)
|
Fair value of warrants outstanding as of December 31, 2019
|
|
$
|
178
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
178
|
|
Note 17. Fair Value Measurements
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The Fair Value Measurements and Disclosures Topic of the FASB Accounting Standards Codification requires the use of valuation techniques that are consistent with the market approach, the income approach and/or the cost approach. Inputs to valuation techniques refer to the assumptions that market participants would use in pricing the asset or liability. Inputs may be observable, meaning those that reflect the assumptions market participants would use in pricing the asset or liability developed based on market data obtained from independent sources, or unobservable, meaning those that reflect the Company's own assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances. In that regard, the Topic establishes a fair value hierarchy for valuation inputs that give the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs.
The fair value hierarchy is as follows:
Level 1: Quoted prices (unadjusted) for identical assets or liabilities in active markets that the Company has the ability to access as of the measurement date.
Level 2: Significant other observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be corroborated by observable market data.
Level 3: Significant unobservable inputs that reflect the Company's own assumptions about the assumptions that market participants would use in pricing an asset or liability.
The following table summarizes the financial assets and liabilities measured at fair value on a recurring basis segregated by the level of valuation inputs within the fair value hierarchy utilized to measure fair value (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
|
Total
|
|
Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
|
|
Significant Other
Observable
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Assets:
|
|
|
|
|
|
|
|
|
Earn-Out from siParadigm
|
|
$
|
1,103
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,103
|
|
|
|
$
|
1,103
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,103
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
Warrant liability
|
|
$
|
178
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
178
|
|
Notes payable
|
|
16
|
|
|
—
|
|
|
—
|
|
|
16
|
|
|
|
$
|
194
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
194
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2018
|
|
|
Total
|
|
Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
|
|
Significant Other
Observable
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Liabilities:
|
|
|
|
|
|
|
|
|
Warrant liability
|
|
$
|
248
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
248
|
|
Notes payable
|
|
20
|
|
|
—
|
|
|
—
|
|
|
20
|
|
Other derivatives
|
|
86
|
|
|
—
|
|
|
—
|
|
|
86
|
|
|
|
$
|
354
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
354
|
|
At December 31, 2019 and 2018, the warrant liability consists of stock warrants issued as part of the 2016 Offerings that contain contingent redemption features. At December 31, 2018, the warrant liability also included warrants issued as part of the 2017 Offering that contained contingent redemption features until they expired in June 2019. In accordance with derivative accounting for warrants, the Company calculated the fair value of warrants and the assumptions used are described in Note 16, “Fair Value of Warrants.” Realized and unrealized gains and losses related to the change in fair value of the warrant liability are included in other income (expense) on the Consolidated Statements of Operations and Other Comprehensive Loss.
At December 31, 2019 and 2018, the Company had a note payable to VenturEast from a prior acquisition. The ultimate repayment of the note will be the value of 3 thousand shares of common stock at the time of payment. The value of the note payable to VenturEast was determined using the fair value of the Company's common stock at the reporting date. During the years ended December 31, 2019 and 2018, the Company recognized gains of $4 thousand and $136 thousand, respectively, due to the changes in value of the note. Realized and unrealized gains and losses related to the VenturEast note are included in other income (expense) on the Consolidated Statements of Operations and Other Comprehensive Loss. In January 2020, the Company entered into a settlement agreement with VenturEast, which is described in Note 21.
At December 31, 2019, the Company had an earn-out receivable from siParadigm that is based on tests performed by siParadigm for the Company's former Clinical Business customers between July 5, 2019 and July 4, 2020, as discussed in Note 1. The value of the earn-out is based on actual tests performed through December 31, 2019 and the Company's estimate of tests to be performed through the remainder of the earn-out period.
The following table summarizes the activity of the notes payable to VenturEast, the Earn-Out from siParadigm, and derivative warrants, which were measured at fair value using Level 3 inputs (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
Liabilities
|
|
|
Earn-Out
|
|
|
|
|
|
|
|
|
from
|
|
Note Payable
|
|
Warrant
|
|
Other
|
|
|
siParadigm
|
|
to VenturEast
|
|
Liability
|
|
Derivatives
|
Fair value at January 1, 2018
|
|
$
|
—
|
|
|
$
|
156
|
|
|
$
|
4,403
|
|
|
$
|
—
|
|
Change in fair value
|
|
—
|
|
|
(136
|
)
|
|
(3,732
|
)
|
|
—
|
|
Fair value of warrants reclassified to equity
|
|
—
|
|
|
—
|
|
|
(423
|
)
|
|
—
|
|
Fair value of certain default provisions
|
|
—
|
|
|
—
|
|
|
—
|
|
|
86
|
|
Fair value at December 31, 2018
|
|
—
|
|
|
20
|
|
|
248
|
|
|
86
|
|
Fair value at issuance
|
|
2,376
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Receipts received during the period
|
|
(338
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
Fair value of certain default provisions
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Change in fair value
|
|
(935
|
)
|
|
(4
|
)
|
|
(70
|
)
|
|
(86
|
)
|
Fair value at December 31, 2019
|
|
$
|
1,103
|
|
|
$
|
16
|
|
|
$
|
178
|
|
|
$
|
—
|
|
Note 18. Contingencies
On April 5, 2018 and April 12, 2018, purported stockholders of the Company filed nearly identical putative class action lawsuits in the U.S. District Court for the District of New Jersey, against the Company, Panna L. Sharma, John A. Roberts, and Igor Gitelman,
captioned Ben Phetteplace v. Cancer Genetics, Inc. et al., No. 2:18-cv-05612 and Ruo Fen Zhang v. Cancer Genetics, Inc. et al., No. 2:18-06353, respectively. The complaints alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegedly false and misleading statements and omissions regarding the Company's business, operational, and financial results. The lawsuits sought, among other things, unspecified compensatory damages in connection with purchases of the Company's stock between March 23, 2017 and April 2, 2018, as well as interest, attorneys’ fees, and costs. On August 28, 2018, the Court consolidated the two actions in one action captioned In re Cancer Genetics, Inc. Securities Litigation (the “Securities Litigation”) and appointed shareholder Randy Clark as the lead plaintiff. On October 30, 2018, the lead plaintiff filed an amended complaint, adding Edward Sitar as a defendant and seeking, among other things, compensatory damages in connection with purchases of CGI stock between March 10, 2016 and April 2, 2018. On December 31, 2018, Defendants filed a motion to dismiss the amended complaint for failure to state a claim. The Court granted the defendants’ motion to dismiss during the oral argument and on February 25, 2020, the Court issued a written order dismissing the case with prejudice. The Lead Plaintiff has not appealed the dismissal.
In addition, on June 1, 2018, September 20, 2018, and September 25, 2018, purported stockholders of the Company filed nearly identical derivative lawsuits on behalf of the Company in the U.S. District Court for the District of New Jersey against the Company (as a nominal defendant) and current and former members of the Company’s Board of Directors and current and former officers of the Company. The three cases are captioned: Bell v. Sharma et al., No. 2:18-cv-10009-CCC-MF, McNeece v. Pappajohn et al., No. 2:18-cv-14093, and Workman v. Pappajohn, et al., No. 2:18-cv-14259 (the “Derivative Litigation”). The complaints allege claims for breach of fiduciary duty, violations of Section 14(a) of the Securities Exchange Act of 1934 (premised upon alleged omissions in the Company’s 2017 proxy statement), and unjust enrichment, and allege that the individual defendants failed to implement and maintain adequate controls, which resulted in ineffective disclosure controls and procedures, and conspired to conceal this alleged failure. The lawsuits seek, among other things, damages and/or restitution to the Company, appropriate equitable relief to remedy the alleged breaches of fiduciary duty, and attorneys’ fees and costs. On November 9, 2018, the Court in the Bell v. Sharma action entered a stipulation filed by the parties staying the Bell action until the Securities Litigation is dismissed, with prejudice, and all appeals have been exhausted; or the defendants’ motion to dismiss in the Securities Litigation is denied in whole or in part; or either of the parties in the Bell action gives 30 days’ notice that they no longer consent to the stay. On December 10, 2018, the parties in the McNeece action filed a stipulation that is substantially identical to the Bell stipulation. On February 1, 2019, the Court in the Workman action granted a stipulation that is substantially identical to the Bell stipulation. On May 15, 2020, the plaintiff’s in the Workman action filed a notice of voluntary dismissal to the original action. The plaintiff’s in the McNeece action sent an identical notice that they intend to file a similar notice of voluntary dismissal to their original action. Based upon the above dismissal of the securities class action litigation, the Company anticipates the plaintiffs in the remaining derivative lawsuit may voluntarily dismiss their action as well. The Company is unable to predict the ultimate outcome of the Derivative Litigation and therefore cannot estimate possible losses or ranges of losses, if any. The Company is expensing legal costs associated with the loss contingency as incurred.
Note 19. Joint Venture Agreement
In November 2011, the Company entered into an affiliation agreement with the Mayo Foundation for Medical Education and Research (“Mayo”), subsequently amended. Under the agreement, the Company formed a joint venture with Mayo in May 2013 to focus on developing oncology diagnostic services and tests utilizing next generation sequencing. The joint venture is a limited liability company, with each party initially holding fifty percent of the issued and outstanding membership interests of the new entity (the “JV”). In exchange for its membership interest in the JV, the Company made an initial capital contribution of $1.0 million in October 2013. In addition, the Company issued 10 thousand shares of its common stock to Mayo pursuant to the affiliation agreement and recorded an expense of $175 thousand. The Company also recorded additional expense of $231 thousand during the fourth quarter of 2013 related to shares issued to Mayo in November of 2011 as the JV achieved certain performance milestones. In the third quarter of 2014 the Company made an additional $1.0 million capital contribution.
The agreement also requires aggregate total capital contributions by the Company of up to an additional $4.0 million. The timing of the remaining installments was subject to the JV's achievement of certain operational milestones agreed upon by the board of governors of the JV. In exchange for its membership interest, Mayo’s capital contribution will take the form of cash, staff, services, hardware and software resources, laboratory space and instrumentation, the fair market value of which will be equal to $6.0 million. Mayo’s continued contribution will also be conditioned upon the JV’s achievement of certain milestones. During 2018, the Company received a cash distribution from the JV of $150 thousand. The JV was dissolved effective February 14, 2020, and the dissolution terms include an estimated final cash distribution from the JV to the Company of $89 thousand, to be paid as soon as practicable. The Company received the first payment of $36 thousand in April 2020, which is consistent with the dissolution terms.
The joint venture is considered a variable interest entity under ASC 810-10, but the Company is not the primary beneficiary as it does not have the power to direct the activities of the joint venture that most significantly impact its performance. The Company's
evaluation of ability to impact performance is based on its equal board membership and voting rights and day to day management functions which are performed by the Mayo personnel.
Note 20. Related Party Transactions
The Company had a consulting agreement with Equity Dynamics, Inc. (“EDI”), an entity controlled by John Pappajohn, the former Chairman of the Board of Directors, effective April 1, 2014 through August 31, 2018, pursuant to which EDI received a monthly fee of $10 thousand. The Company expensed $80 thousand for the year ended December 31, 2018 related to this agreement. At December 31, 2019 and 2018, the Company had accrued liabilities of $0 and $70 thousand, respectively, for unpaid fees to EDI.
At December 31, 2019 and 2018, John Pappajohn had 18 thousand warrants outstanding to purchase shares of the Company's common stock at a weighted-average exercise price of $280.14 per share.
Various executives, directors and former directors purchased shares as part of the 2019 Offerings at the public offering price. On January 14, 2019, John Pappajohn, John Roberts, the Company's President and Chief Executive Officer, and Geoffrey Harris, a Director, purchased 33 thousand shares, 3 thousand shares and 3 thousand shares, respectively, at the public offering price of $6.75 per share. On January 31, 2019, John Pappajohn, John Roberts, Edmund Cannon, a Director, and M. Glenn Miles, the Company's Chief Financial Officer, purchased 33 thousand shares, 6 thousand shares, 1 thousand shares and 5 thousand shares, respectively, at the public offering price of $6.90 per share.
On July 23, 2019, the Company issued 3 thousand stock options to each of its five non-employee directors. The options will vest in equal monthly installments over the next twelve months and have an exercise price of $4.50 per share. The directors have waived their rights to any claim for past due director compensation of $263 thousand as a condition of these option grants.
On January 2, 2020, the Company issued 10 thousand stock options each to M. Glenn Miles and Ralf Brandt, the Company's President of Discovery & Early Development Services. The options will vest in equal monthly installments over twelve months and have an exercise price of $5.53 per share.
Note 21. Subsequent Events
Settlement Agreement with VenturEast
In January 2020, the Company entered into a Settlement Agreement with VenturEast, discussed in Note 17, to satisfy the Company’s outstanding liability, which resulted in the Company issuing 3 thousand restricted shares of common stock, and making two lump sum payments of $50 thousand each for a total cash settlement of $100 thousand.
Dissolution of Joint Venture
The Company dissolved its joint venture with Mayo in February 2020, as discussed in Note 19, and the dissolution terms include an estimated final cash distribution from the JV to the Company of $89 thousand to be paid as soon as practicable. The Company received the first payment of $36 thousand in April 2020, which is consistent with dissolution terms.
Stock Option Grants
On January 2, 2020, the Company issued an aggregate of 20 thousand stock options to two executives, as discussed in Note 20. The options will vest in equal monthly installments over twelve months and have an exercise price of $5.53 per share and a grant date fair value of $4.45 per share.
Coronavirus (COVID-19) Pandemic
On March 11, 2020 the World Health Organization declared the novel strain of coronavirus (“COVID-19”) a global pandemic and recommended containment and mitigation measures worldwide. In addition, as the Company is located in New Jersey, it is currently under a shelter-in-place mandate and many of its customers worldwide are similarly impacted. The global outbreak of the COVID-19 continues to rapidly evolve, and the extent to which the COVID-19 may impact the Company's business will depend on future developments, which are highly uncertain and cannot be predicted with confidence, such as the ultimate geographic spread of the disease, the duration of the outbreak, travel restrictions and social distancing in the United States and other countries, business closures or business disruptions, and the effectiveness of actions taken in the United States and other countries to contain and treat the disease. As a healthcare provider, the Company is still providing Discovery Services and has yet to experience a
slowdown in its project work, however, the future of many projects may be delayed. The Company continues to vigilantly monitor the situation with its primary focus on the health and safety of its employees and clients.