NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2018
Note A.
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OVERVIEW OF BUSINESS
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D
escription of the Business
Capstone Therapeutics Corp. (the “Company”, “we”,
“our” or “us”) is a biotechnology company committed to developing a pipeline of novel peptides and other
molecules aimed at helping patients with under-served medical conditions. Previously, we were focused on the development and commercialization
of two product platforms: AZX100 and Chrysalin (TP508). In 2012, we terminated the license for Chrysalin (targeting orthopedic
indications). In 2014, we terminated the license for AZX100 (targeting dermal scar reduction). Capstone no longer has any rights
to or interest in Chrysalin or AZX100.
On August 3, 2012, we entered into a joint venture, LipimetiX Development,
LLC, (now LipimetiX Development, Inc.), (the “JV”), to develop Apo E mimetic peptide molecule AEM-28 and its analogs.
The JV has a development plan to pursue regulatory approval of AEM-28, or an analog, as treatment for Homozygous Familial Hypercholesterolemia,
other hyperlipidemic indications, and acute coronary syndrome/atherosclerosis regression. The initial AEM-28 development plan extended
through Phase 1a and 1b/2a clinical trials and was completed in the fourth quarter of 2014. The clinical trials had a safety primary
endpoint and an efficacy endpoint targeting reduction of cholesterol and triglycerides.
In early 2014, the JV received allowance from regulatory authorities
in Australia permitting the JV to proceed with the planned clinical trials. The Phase 1a clinical trial commenced in Australia
in April 2014 and the Phase 1b/2a clinical trial commenced in Australia in June 2014. The clinical trials for AEM-28 were randomized,
double-blinded, placebo-controlled studies to evaluate the safety, tolerability, pharmacokinetics and pharmacodynamics of six escalating
single doses (Phase 1a in healthy patients with elevated cholesterol) and multiple ascending doses of the three highest doses from
Phase 1a (Phase 1b/2a in patients with hypercholesterolemia and healthy volunteers with elevated cholesterol and high Body Mass
Index). The Phase 1a clinical trial consisted of 36 patients and the Phase 1b/2a consisted of 15 patients. Both clinical trials
were completed in 2014 and the Medical Safety Committee, reviewing all safety-related aspects of the clinical trials, observed
a generally acceptable safety profile. As first-in-man studies, the primary endpoint was safety; yet efficacy measurements analyzing
pharmacodynamics yielded statistical significance in the pooled dataset favoring AEM-28 versus placebo in multiple lipid biomarker
endpoints.
Concurrent with the clinical development activities of AEM-28, the
JV has performed pre-clinical studies that have identified analogs of AEM-28, and new formulations, that have the potential of
increased efficacy, higher human dose toleration and an extended composition of matter patent life (application filed with the
U.S. Patent and Trademark Office in 2014).
The JV and the Company are exploring fundraising, partnering or licensing,
to obtain additional funding to continue development activities and operations.
The JV and the Company do not have sufficient funding at this time
to continue additional material development activities. The JV may conduct future clinical trials in Australia, the USA, and other
regulatory jurisdictions if regulatory approvals, additional funding, and other conditions permit.
The Company, funding permitting, intends to continue limiting its
internal operations to a virtual operating model while monitoring and participating in the management of JV’s development
activities.
Description of Current Peptide Drug Candidates.
Apo E Mimetic Peptide Molecule – AEM-28 and its analogs
Apolipoprotein E is a 299 amino acid protein that plays an important
role in lipoprotein metabolism. Apolipoprotein E (Apo E) is in a class of protein that occurs throughout the body. Apo E is essential
for the normal metabolism of cholesterol and triglycerides. After a meal, the postprandial (or post-meal) lipid load is packaged
in lipoproteins and secreted into the blood stream. Apo E targets cholesterol and triglyceride rich lipoproteins to specific receptors
in the liver, decreasing the levels in the blood. Elevated plasma cholesterol and triglycerides are independent risk factors for
atherosclerosis, the buildup of cholesterol rich lesions and plaques in the arteries. AEM-28 is a 28 amino acid mimetic of Apo
E and AEM-28 analogs are also 28 amino acid mimetics of Apo E (with an aminohexanoic acid group and a phospholipid). Both contain
a domain that anchors into a lipoprotein surface while also providing the Apo E receptor binding domain, which allows clearance
through the heparan sulfate proteoglycan (HSPG) receptors (Syndecan-1) in the liver. AEM-28 and its analogs, as Apo E mimetics,
have the potential to restore the ability of these atherogenic lipoproteins to be cleared from the plasma, completing the reverse
cholesterol transport pathway, and thereby reducing cardiovascular risk. This is an important mechanism of action for AEM-28 and
its analogs. Atherosclerosis is the major cause of cardiovascular disease, peripheral artery disease and cerebral artery disease,
and can cause heart attack, loss of limbs and stroke. Defective lipid metabolism also plays an important role in the development
of adult onset diabetes mellitus (Type 2 diabetes), and diabetics are particularly vulnerable to atherosclerosis, heart and peripheral
artery diseases. Our joint venture has an Exclusive License Agreement with the University of Alabama at Birmingham Research Foundation
for a broad domain of Apo E mimetic peptides, including AEM-28 and its analogs.
Company History
Prior to November 2003, we developed, manufactured and marketed proprietary,
technologically advanced orthopedic products designed to promote the healing of musculoskeletal bone and tissue, with particular
emphasis on fracture healing and spine repair. Our product lines, which included bone growth stimulation and fracture fixation
devices, are referred to as our “Bone Device Business.” In November 2003, we sold our Bone Device Business.
In August 2004, we purchased substantially all of the assets and
intellectual property of Chrysalis Biotechnology, Inc., including its exclusive worldwide license for Chrysalin, a peptide, for
all medical indications. Subsequently, our efforts were focused on research and development of Chrysalin with the goal of commercializing
our products in fresh fracture healing. (In March 2012, we returned all rights to the Chrysalin intellectual property and no longer
have any interest in, or rights to, Chrysalin.)
In February 2006, we purchased certain assets and assumed certain
liabilities of AzERx, Inc. Under the terms of the transaction, we acquired an exclusive license for the core intellectual property
relating to AZX100, an anti-fibrotic peptide. In 2014, we terminated the License Agreement with AzTE (Licensor) for the core intellectual
property relating to AZX100 and returned all interest in and rights to the AZX100 intellectual property to the Licensor.
On August 3, 2012, we entered into a joint venture (As described
in Note B below) to develop Apo E mimetic peptide molecule AEM-28 and its analogs.
Our development activities represent a single operating segment as
they shared the same product development path and utilized the same Company resources. As a result, we determined that it is appropriate
to reflect our operations as one reportable segment.
OrthoLogic Corp. commenced doing business under the trade name of
Capstone Therapeutics on October 1, 2008, and we formally changed our name from OrthoLogic Corp. to Capstone Therapeutics Corp.
on May 21, 2010.
In these notes, references to “we”, “our”,
“us”, the “Company”, “Capstone Therapeutics”, “Capstone”, and “OrthoLogic”
refer to Capstone Therapeutics Corp. References to our joint venture or “JV”, refer to LipimetiX Development, Inc.
(formerly LipimetiX Development, LLC).
Basis of presentation, Going Concern, and Management’s Plans.
The accompanying financials statements have been prepared assuming the Company will continue as a going concern, which contemplates
the realization of assets and satisfaction of liabilities in the normal course of business.
Management has determined that the Company will require additional
capital above its current cash and working capital balances to further develop AEM-28 and its analogs or to continue operations.
Accordingly, the Company has significantly reduced its development activities. The Company’s corporate strategy is to raise
funds by possibly engaging in a strategic/merger transaction or conducting a private or public offering of debt or equity securities
for capital. In August 2016, the Company’s joint venture raised net funds of $946,000 in a Series B-1 Preferred Stock and
Warrant offering. As described in Note E below, the Company, on July 14, 2017, raised $3,440,000, with net proceeds of approximately
$2,074,000, after paying off the Convertible Promissory Notes described in Note D below, and transaction costs of $287,000. As
discussed in Note B below, in August 2017, the Company used $1,000,000 of the net proceeds to purchase 93,458 shares of LipimetiX
Development, Inc.’s Series B-2 Preferred Stock. The additional funds has alleviated the substantial doubt about the entity’s
ability to continue as a going concern; however, additional funds will be required for the joint venture to reach its development
goals and for the Company to continue its planned operations.
In the opinion of management, the unaudited condensed interim financial
statements include all adjustments necessary for the fair presentation of our financial position, results of operations, and cash
flows, and all adjustments were of a normal recurring nature. The results of operations for the interim periods are not necessarily
indicative of the results to be expected for the complete fiscal year. The financial statements include the consolidated results
of Capstone Therapeutics Corp. and our approximately 60% owned subsidiary, LipimetiX Development, Inc. Intercompany transactions
have been eliminated.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant
to Securities and Exchange Commission rules and regulations, although we believe that the disclosures herein are adequate to make
the information presented not misleading. These unaudited condensed financial statements should be read in conjunction with the
financial statements and the notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2017. Information
presented as of December 31, 2017 is derived from audited financial statements.
Use of estimates.
The preparation of financial statements
in accordance with accounting principles generally accepted in the United States of America requires that management make a number
of assumptions and estimates that affect the reported amounts of assets, liabilities, and expenses in our financial statements
and accompanying notes. Management bases its estimates on historical experience and various other assumptions believed to be reasonable.
Although these estimates are based on management’s assumptions regarding current events and actions that may impact the Company
in the future, actual results may differ from these estimates and assumptions.
Our significant estimates include income taxes, contingencies, accounting
for stock-based compensation, and accounting for the Australian refundable research and development tax credit.
Legal and Other Contingencies
The Company is subject to legal proceedings and claims, as well as
potential inquires and action by the Securities and Exchange Commission, that arise in the course of business. The Company records
a liability when it is probable that a loss has been incurred and the amount is reasonably estimable. There is significant judgment
required in both the probability determination and as to whether an exposure can be reasonably estimated. In the opinion of management,
there was not at least a reasonable possibility the Company may have incurred a material loss with respect to loss contingencies.
However, the outcome of legal proceedings and claims brought against the Company are subject to significant uncertainty.
Legal costs related to contingencies are expensed as incurred and
were not material in either 2018 or 2017.
Joint Venture Accounting.
The Company entered into a joint
venture in which it has contributed $6,000,000, and the noncontrolling interests have contributed certain patent license rights.
As discussed in Note B below, in August 2017, the Company purchased 93,458 shares of LipimetiX Development, Inc.’s Series
B-2 Preferred Stock for $1,000,000. Neither the Company nor the noncontrolling interests have an obligation to contribute additional
funds to the joint venture or to assume any joint venture liabilities or to provide a guarantee of either joint venture performance
or any joint venture liability. The financial position and results of operations of the joint venture are presented on a consolidated
basis with the financial position and results of operations of the Company. Intercompany transactions have been eliminated. Joint
venture losses were recorded on the basis of common ownership equity interests until common ownership equity was reduced to $0.
Subsequent joint venture losses were allocated to the Series A preferred ownership. Subsequent to March 31, 2013, all joint venture
losses had been allocated to the Company. On August 25, 2016, the JV raised $1,012,000 ($946,000 net of issuance costs) in a Series
B-1 Preferred Stock and Warrant offering and in 2016, $946,000 in losses were allocated to the Series B-1 Preferred Stock ownership
interests. As of March 31, 2018, losses incurred by the JV exceeded the capital accounts of the JV. The Company has a revolving
loan agreement with the joint venture and advanced the joint venture funds for operations in an amount of $1,600,000, with the
net amount due December 31, 2016. As described in Note B below, the due date of the revolving loan has been extended to July 15,
2020, with early payment required upon certain additional funding of the joint venture by non-affiliated parties. Losses incurred
by the joint venture in excess of the capital accounts of the joint venture will be allocated to the Company to the extent of net
outstanding advances.
Cash and cash equivalents.
Cash and cash equivalents consist of highly liquid investments with
an original maturity of three months or less.
Revenue Recognition
In May 2014, the Financial Accounting Standards Board (“FASB”)
issued Accounting Standards Update (“ASU 606”) No. 2014-09 “Revenue from Contracts from Customers”. Pursuant
to ASC 606, revenue is recognized by the Company when a customer obtains control of promised goods or services. The amount of revenue
that is recorded reflects the consideration that the Company expects to receive in exchange for those goods or services. The Company
applies the following five-step model in order to determine this amount: (i) identification of the promised goods or services
in the contract; (ii) determination of whether the promised goods or services are performance obligations, including whether they
are distinct in the context of the contract; (iii) measurement of the transaction price, including the constraint on variable consideration;
(iv) allocation of the transaction price to the performance obligations; and (v) recognition of revenue when (or as) the Company
satisfies each performance obligation.
Upfront License Fees
: If a license to the Company’s intellectual property
is determined to be distinct from the other performance obligations identified in the arrangement, the Company recognizes revenues
from nonrefundable, upfront license fees based on the relative value prescribed to the license compared to the total value of the
arrangement. The revenue is recognized when the license is transferred to the collaborator and the collaborator is able to use
and benefit from the license. For licenses that are not distinct from other obligations identified in the arrangement,
the Company utilizes judgment to assess the nature of the combined performance obligation to determine whether the combined performance
obligation is satisfied over time or at a point in time. If the combined performance obligation is satisfied over time, the Company
applies an appropriate method of measuring progress for purposes of recognizing revenue from nonrefundable, upfront license fees. The
Company evaluates the measure of progress each reporting period and, if necessary, adjusts the measure of performance and related
revenue recognition.
Note B.
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JOINT
VENTURE FOR DEVELOPMENT OF APO E MIMETIC PEPTIDE MOLECULE AEM-28 AND ANALOGS
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On August 3, 2012, we entered into a Contribution Agreement with
LipimetiX, LLC to form a joint venture, LipimetiX Development, LLC (“JV”), to develop Apo E mimetic molecules, including
AEM-28 and its analogs. In June 2015, the JV converted from a limited liability company to a corporation, LipimetiX Development,
Inc. The Company contributed $6 million, which included $1 million for 600,000 voting common ownership units (now common stock),
representing 60% ownership in the JV, and $5 million for 5,000,000 non-voting preferred ownership units (now Series A Preferred
Stock), which have preferential distribution rights. On March 31, 2016, the Company converted 1,500,000 shares of its preferred
stock into 120,000 shares of common stock, increasing its common stock ownership from 60% to 64%. On August 11, 2017, the remaining
$3,500,000 (3,500,000 shares) of Series A preferred stock became convertible, at the Company’s option, into common stock,
at the lower of the Series B Preferred Stock Conversion Price, as may be adjusted for certain events, or the price of the next
LipimetiX Development, Inc. financing, exceeding $1,000,000 on independently set valuation and terms. On August 11, 2017, the Company
purchased 93,458 shares of LipimetiX Development, Inc.’s Series B-2 Preferred Stock for $1,000,000 (LipimetiX Development,
Inc. incurred $15,000 in transaction costs as part of the Series B-2 Preferred Stock issuance, which was been shown in our Annual
Report on Form 10-K for the year ended December 31, 2017 filed with the Securities and Exchange Commission on February 28, 2018,
as a reduction of Additional Paid in Capital on the Consolidated Statements of Changes in Equity and a cash flow provided by financing
activities in the Consolidated Statements of Cash Flows at December 31, 2017). As discussed below, the JV Series B-1 and B-2 Preferred
Stock issuances, because of the participating and conversion features of the preferred stock, effectively changes the Company’s
ownership in the JV to 62.2%. With the Series B-1 and B-2 Preferred Stock on an as-converted basis, and the Company converting
its Series A Preferred Stock to common stock, the Company’s ownership would change to 69.75%. The JV 2016 Equity Incentive
Plan has 83,480 shares of the JV’s common stock available to grant, of which, at March 31, 2018, options to purchase JV common
stock shares totaling 81,479 have been granted. All options were granted with an exercise price of $1.07, vest 50% on the date
of grant and monthly thereafter in equal amounts over a twenty-four-month period and are exercisable for ten years from the date
of grant. If all stock available to grant in the JV 2016 Equity Incentive Plan were granted and exercised, and the Series B-1 Preferred
Stock Warrants were exercised, the Company’s fully diluted ownership (on an as-converted basis) would be approximately 65.11%.
On October 27, 2017 the Board granted Mr. Holliman an option to purchase14,126 shares of the LipimetiX Development, Inc. Series
B-2 Preferred Stock it currently owns, at an exercise price of $10.70 per share, subject to adjustment and other terms consistent
with the Series B-2 Preferred Stock. The option is exercisable for a five-year period from the date of grant. If exercised, this
option would reduce the Company’s fully diluted ownership (on an as-converted basis including assumed exercise of other options
and warrants) to approximately 64.31%.
LipimetiX, LLC was formed by the principals of Benu BioPharma, Inc.
(“Benu”) and UABRF to commercialize UABRF’s intellectual property related to Apo E mimetic molecules, including
AEM-28 and analogs. Benu is currently composed of Dennis I. Goldberg, Ph.D. and Eric M. Morrel, Ph.D. LipimetiX, LLC contributed
all intellectual property rights for Apo E mimetic molecules it owned and assigned its Exclusive License Agreement between The
University of Alabama at Birmingham Research Foundation (“UABRF”) and LipimetiX, LLC, for the UABRF intellectual property
related to Apo E mimetic molecules AEM-28 and its analogs to the JV, in return for 400,000 voting common ownership units (now common
stock), representing a 40% ownership interest in the JV at formation, and $378,000 in cash (for certain initial patent-related
costs and legal expenses).
On August 25, 2016, LipimetiX Development, Inc. closed a Series B-1
Preferred Stock offering, raising funds of $1,012,000 ($946,000 net of issuance costs of approximately $66,000). Individual accredited
investors and management participated in the financing. This initial closing of the Series B-1 Preferred Stock offering resulted
in the issuance of 94,537 shares of preferred stock, convertible to an equal number of the JV’s common stock at the election
of the holders and warrants to purchase an additional 33,088 shares of JV preferred stock, at an exercise price of $10.70, with
a ten-year term.
As disclosed above, on August 11, 2017, the Company purchased 93,458
shares of LipimetiX Development, Inc.’s Series B-2 Preferred Stock for $1,000,000.
Series B (B-1 and B-2) Preferred Stock is a participating preferred
stock. As a participating preferred, the preferred stock will earn a 5% dividend, payable only upon the election by the JV or in
liquidation. Prior to the JV common stock holders receiving distributions, the participating preferred stockholders will receive
their earned dividends and payback of their original investment. Subsequently, the participating preferred will participate in
future distributions on an equal “as-converted” share basis with common stock holders. The Series B Preferred Stock
has “as-converted” voting rights and other terms standard to a security of this nature.
The Exclusive License Agreement assigned by LipimetiX, LLC to the
JV on formation of the JV, as amended, calls for payment of patent filing, maintenance and other related patent fees, as well as
a royalty of 3% on Net Sales of Licensed Products during the Term of the Agreement. The Agreement terminates upon the expiration
of all Valid Patent Claims within the Licensed Patents, which are currently estimated to expire between 2019 and 2035. The Agreement,
as amended, also calls for annual maintenance payments of $25,000, various milestone payments of $50,000 to $500,000 and minimum
royalty payments of $500,000 to $1,000,000 per year commencing on January 1 of the first calendar year following the year in which
the First Commercial Sale occurs. UABRF will also be paid 5% of Non-Royalty Income received.
Concurrent with entering into the Contribution Agreement and the
First Amendment and Consent to Assignment of Exclusive License Agreement between LipimetiX, LLC, UABRF and the Company, the Company
and LipimetiX, LLC entered into a Limited Liability Company Agreement for JV which established a Joint Development Committee (“JDC”)
to manage JV development activities. Upon conversion by the JV from a limited liability company to a corporation, the parties entered
into a Stockholders Agreement for the JV, and the JDC was replaced by a Board of Directors (JV Board). The JV Board is composed
of three members appointed by the non-Company common stock ownership group, three members appointed by the Company and one member
appointed by the Series B-1 Preferred Stockholders. Non-development JV decisions, including the issuance of new equity, incurrence
of debt, entry into strategic transactions, licenses or development agreements, sales of assets and liquidation, and approval of
annual budgets, will be decided by a majority vote of the common and Series B Preferred Stock (voting on an “as -converted”
basis) stockholders.
The JV, on August 3, 2012, entered into a Management Agreement with
Benu to manage JV development activities for a monthly fee of approximately $63,000 during the twenty-seven-month development period,
and an Accounting Services Agreement with the Company to manage JV accounting and administrative functions. The services related
to these agreements have been completed. New Management and Accounting Services Agreements were entered into effective June 1,
2016. The new monthly management fee is $80,000 and the new monthly accounting services fee was $10,000. However, no Management
or Accounting Services fees are due or payable except to the extent funding is available, as unanimously approved by members of
the JV Board of Directors and as reflected in the approved operating budget in effect at that time. In connection with the Series
B-1 Preferred Stock issuance, Management Fees totaling $300,000, of which $250,000 was charged to expense in 2016 and $50,000 was
charged to expense in the first quarter of 2017, and Accounting Fees totaling $60,000, charged to expense in 2016, were paid in
2016. In August 2017 the Accounting Services Agreement monthly fee was increased to $20,000 and will thereafter be accrued but
not payable, until certain levels of joint venture funding are obtained from non-affiliated parties. At March 31, 2018, accounting
fees of $160,000 were earned but unpaid. In August 2017, a Management Fee of $300,000 was approved by the joint venture’s
Board of Directors with $150,000 paid and charged to expense in the third quarter of 2017 and $150,000 paid and expensed in the
first quarter of 2018.
The joint venture formation was as follows ($000’s):
Patent license rights
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$
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1,045
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Noncontrolling interests
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(667
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)
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Cash paid at formation
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$
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378
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Patent license rights were recorded at their estimated fair value
and are being amortized on a straight-line basis over the key patent life of eighty months.
The financial position and results of operations of the joint venture
are presented on a consolidated basis with the financial position and results of operations of the Company. Intercompany transactions
have been eliminated. In the Company’s consolidated financial statements, joint venture losses were recorded on the basis
of common ownership equity interests until common ownership equity was reduced to $0. Subsequent joint venture losses were being
allocated to the Series A preferred ownership equity (100% Company). Subsequent to March 31, 2013, all joint venture losses had
been allocated to the Company. On August 25, 2016 the JV raised $1,012,000, ($946,000 net of issuance costs) in a Series B-1 Preferred
Stock and Warrant offering and in 2016, $946,000 of losses were allocated to the Series B-1 Preferred Stock ownership interests.
As of March 31, 2018, losses incurred by the JV exceeded the capital accounts of the JV. The Company has a revolving loan agreement
with the joint venture, with the loan due December 31, 2016. In August 2017, the due date of the revolving loan was extended to
July 15, 2020, with early payment required upon certain additional funding of the joint venture by non-affiliated parties. Subsequent
to June 30, 2017, interest due on the revolving loan will be accrued and payable only upon certain additional funding of the joint
venture by non-affiliated parties. Until repayment, the outstanding revolving loan and interest balance is convertible, at the
Company’s option, into Series B Preferred Stock at the Series B-1 conversion price. Losses incurred by the joint venture
in excess of the capital accounts of the joint venture will be allocated to the Company to the extent of the unpaid loan and accrued
interest balance. At March 31, 2018, the revolving loan agreement balance, including accrued interest subsequent to June 30, 2017
of $60,000, was $1,660,000.
The joint venture incurred net operating expenses, prior to the elimination
of intercompany transactions, of $427,000 in 2018 and $10,078,000 for the period from August 3, 2012 (inception) to March 31, 2018,
of which $427,000, and $8,466,000, respectively, have been recorded by the Company. The joint venture operating expenses are included
in research and development expenses in the condensed consolidated statements of operations.
Neither the Company nor the noncontrolling interests have an obligation
to contribute additional funds to the joint venture or to assume any joint venture liabilities or to provide a guarantee of either
joint venture performance or any joint venture liability. Losses allocated to the common stock noncontrolling interests represent
an additional potential loss for the Company as the common stock noncontrolling interests are not obligated to contribute assets
to the joint venture and, depending on the ultimate outcome of the joint venture, the Company could potentially absorb all losses
associated with the joint venture. From formation of the joint venture, August 3, 2012, through March 31, 2018, losses totaling
$667,000 have been allocated to the common stock noncontrolling interests. If the joint venture or Company is unable to obtain
additional funding, the ability of the joint venture to continue development of AEM-28 and its analogs would be impaired as would
the joint venture’s ability to continue operations. If the joint venture does not continue as a going concern, at March 31,
2018 the Company would incur an additional loss of $667,000 for the joint venture losses allocated to the common stock noncontrolling
interests.
Note C.
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Australian Refundable Research & Development
Credit
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In March 2014, LipimetiX Development LLC, (Now LipimetiX Development,
Inc. - see Note B above) formed a wholly-owned Australian subsidiary, Lipimetix Australia Pty Ltd, to conduct Phase 1a and Phase1b/2a
clinical trials in Australia. Currently Australian tax regulations provide for a refundable research and development tax credit
equal to either 43.5% or 45% (depending on the tax period) of qualified expenditures. Subsequent to the end of its Australian tax
years, Lipimetix Australia Pty Ltd submits claims for a refundable research and development tax credit. At March 31, 2018 and December
31, 2017, expected refundable research and development tax credits of AUD$46,000 and AUD$42,000, respectively, are included in
Other current assets in the Condensed Consolidated Balance Sheets. The expected refundable research and development tax credits
for the three-month periods ended March 31, 2018 and 2017 were AUD$4,000 and AUD$11,000, respectively.
Note D.
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CONVERTIBLE PROMISSORY NOTES
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On December 11, 2015, we entered into a Securities Purchase Agreement
with Biotechnology Value Fund affiliated entities Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., Biotechnology
Value Trading Fund OS, L.P., Investment 10, LLC, and MSI BVF SPV,), which provided $1,000,000 in funding for our operations in
the form of Convertible Promissory Notes (“Notes”). The Notes bear interest at 5% and were due April 30, 2017, with
the due date subsequently extended to July 14, 2017. The Notes were secured by all intangible and tangible assets of the Company
and convertible, either at the election of the Lenders or mandatory on certain future funding events, into either the Company’s
Common or Preferred Stock. A portion of the funds were advanced to JV to initiate preclinical development activities. As described
in Note E below, the Convertible Promissory Notes and accrued interest thereon of $79,000 were paid off on July 14, 2017. Prior
to the July 14, 2017 transaction, the Biotechnology Value Fund affiliated entities owned approximately 19% of our outstanding common
stock.
Note E.
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SALE OF COMMON STOCK AND ISSUANCE OFSECURED
debT
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As described in our Current Report on Form 8-K filed with the Securities
and Exchange Commission on July 17, 2017, on July 14, 2017, the Company entered into a Securities Purchase, Loan and Security Agreement
(the “Agreement”) with BP Peptides, LLC (“Brookstone"). The net proceeds will be used to fund our operations,
infuse new capital into our joint venture, LipimetiX Development, Inc. ("JV") (As described in Note B above, in August
2017, the Company used $1,000,000 of the net proceeds to purchase 93,458 shares of LipimetiX Development, Inc.’s Series B-2
Preferred Stock.), to continue its development activities, and pay off the Convertible Promissory Notes (as described in Note D
above) totaling $1,000,000, plus $79,000 in accrued interest.
Pursuant to the Agreement, Brookstone funded an aggregate of $3,440,000,
with net proceeds of approximately $2,074,000, after paying off the Convertible Promissory Notes and transaction costs, of which
$1,012,500 was for the purchase of 13,500,000 newly issued shares of our Common Stock, and $2,427,500 was in the form of a secured
loan, due October 15, 2020. On July 14, 2017 Brookstone also purchased 5,041,197 shares of the Company’s Common Stock directly
from Biotechnology Value Fund affiliated entities, resulting in ownership of 18,541,197 shares of the Company’s Common Stock,
representing approximately 34.1% of outstanding shares of the Company’s Common Stock at March 31, 2018. Transaction costs
of $287,000 have been deferred and will be written off over the life of the secured loan, thirty-nine months from July 14, 2017
to October 20, 2020, on the straight-line basis. As described in Note F below, additional transaction costs of $12,000 were incurred
with the Amendment and will be written off over the period of the date of the Amendment, January 30, 2018, to October 15, 2020.
At March 31, 2018 transaction costs of $64,000 ($23,000 in 2018 and $41,000 in the second half of 2017), have been amortized and
included in the Condensed Consolidated Statements of Operations in Interest and Other Expenses. At March 31, 2018 and December
31, 2017, unamortized transaction costs of $235,000 and $246,000, respectively, have been netted against the outstanding Secured
Debt balance on the Condensed Consolidated Balance Sheets. As discussed in Note F below, interest payable on the Secured Debt is
now due at loan maturity, October 15, 2020, and, at March 31, 2018 and December 31, 2017, accrued interest of $104,000 and $68,000,
respectively, has been included in the Secured Debt balance on the Condensed Consolidated Balance Sheets. The interest on the secured
debt ($36,000 in 2018 and $68,000 in the second half of 2017) has been included in the Condensed Consolidated Statements of Operations
in Interest and Other Expenses.
A summary of the Secured Debt activity is as follows (000’s):
|
|
March 31, 2018
|
|
December 31, 2017
|
|
|
|
|
|
Secured Debt
|
|
$
|
2,427
|
|
|
$
|
2,427
|
|
Transaction costs
|
|
|
(299
|
)
|
|
|
(287
|
)
|
|
|
$
|
2,128
|
|
|
$
|
2,140
|
|
Amortization
|
|
|
64
|
|
|
|
41
|
|
|
|
$
|
2,192
|
|
|
$
|
2,181
|
|
Accrued interest
|
|
|
104
|
|
|
|
68
|
|
|
|
$
|
2,296
|
|
|
$
|
2,249
|
|
The secured loan bears interest at 6% per annum, with interest payable
quarterly (now due at loan maturity see Note F below) and is secured by a security interest in all of our assets. As part of the
Agreement, the Company and Brookstone entered into a Registration Rights Agreement granting Brookstone certain demand and piggyback
registration rights.
A provision in the Agreement entered into with Brookstone also requires
the Company to nominate two candidates for a director position that have been recommended by Brookstone as long as Brookstone beneficially
owns over 20% of the Company’s outstanding common stock and to nominate one candidate for a director position that has been
recommended by Brookstone as long as Brookstone beneficially owns over 5% but less than 20% of the Company’s outstanding
common stock.
On April 18, 2017, the Company and Computershare
Trust Company, N.A., as Rights Agent (the “Rights Agent”) entered into Tax Benefit Preservation Plan Agreement (the
“Plan”), dated as of April 18, 2017, between the Company and the Rights Agent, as described in the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on April 19, 2017. The Plan is intended to act
as a deterrent to any person (together with all affiliates and associates of such person) acquiring “beneficial ownership”
(as defined in the Plan) of 4.99% or more of the outstanding shares of Common Stock without the approval of the Board (an “Acquiring
Person”), in an effort to protect against a possible limitation on the Company’s ability to use its net operating loss
carryforwards. The Board, in accordance with the Plan, granted an Exemption to Brookstone with respect to the share acquisition
described above, and Brookstone’s acquisition of 5,041,197 shares of the Company’s Common Stock from Biotechnology
Value Fund affiliated entities, making Brookstone an Exempt Person in respect of such transactions.
Note F.
|
|
RELATED PARTY TRANSACTION - DEFERRAL OF SECURED DEBT INTEREST PAYMENTS AND ISSUANCE
OF WARRANTS TO PURCHASE SHARES OF THE ANY’S COMMON STOCK
|
As described in our Current Report on Form
8-K filed with the Securities and Exchange Commission on February 1, 2018, on January 30, 2018, the Company entered into the First
Amendment to Securities Purchase, Loan and Security Agreement (the “Amendment”) with BP Peptides, LLC (“Brookstone").
Brookstone currently owns approximately 34.1% of our outstanding common stock. Under the original Agreement (see Note E above),
interest on the Secured Debt was payable quarterly. The Amendment defers the payment of interest until the Secured Debt’s
maturity, October 15, 2020. In consideration for the deferral, the Company issued a Warrant to Brookstone to purchase up to 6,321,930
shares of the Company’s Common Stock with an exercise price of $.075 per share. The warrant expires October 15, 2025 and
provides for quarterly vesting of shares in amounts approximately equal to the amount of quarterly interest payable that would
have been payable under the Agreement, converted into shares at $0.75. At March 31, 2018, 984,301 shares are fully vested and exercisable.
The fair value of the Warrants was determined
to be $43,000. The fair value of the Warrants will be amortized over the deferral period, January 30, 2018 to October 15, 2020,
on the straight-line basis, as additional interest expense. Amortization expenses totaled $2,000 at March 31, 2018 and is included
in Interest and other expenses, net, in the Condensed Consolidated Statement of Operations.
Note G.
|
|
SUBSEQUENT EVENT - LIPIMETIX DEVELOPMENT, INC. LICENSE AGREEMENT
|
As described in our Current Report on Form 8-K filed with the Securities
and Exchange Commission on May 7, 2018, on May 2, 2018, our JV, LipimetiX Development, Inc., entered into a License Agreement (the
“Sub-License”) with Anji Pharmaceuticals Inc. (“ANJI") to sublicense, under its Exclusive License Agreement
with the UAB Research Foundation, the use of the JV’s AEM-28 and analogs intellectual property in the Territory of the People’s
Republic of China, Taiwan and Hong Kong (the “Territory”). The Sub-License calls for an initial payment of $2,000,000,
payment of a royalty on future Net Sales in the Territory and cash milestone payments based on future clinical/regulatory events.
ANJI will perform all development activities allowed under the Sub-License in the Territory at its sole cost and expense. As described
in Note B above, at March 31, 2018, JV net losses exceeded the JV capital accounts and all losses were being allocated to the Company.
Revenue from the initial license payment, when recorded, is expected to reduce the amount of JV net losses previously allocated
to the Company.
A copy of the UAB Research Foundation Exclusive License Agreement
was attached as Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q for the period ending June 30, 2012 filed with
Securities and Exchange Commission (‘SEC”) on August 10, 2012. A copy of the First Amendment and Consent to Assignment
of the Exclusive License Agreement was attached as Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the period
ending June 30, 2012 filed with the SEC on August 10, 2012. The Second Amendment to the Exclusive License Agreement was attached
as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on January 30, 2015.