As
filed with the Securities and Exchange Commission on April 14, 2017
Registration
No. 333-206344
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D. C. 20549
POST-EFFECTIVE
AMENDMENT NO. 2
TO
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEPHROS,
INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
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3841
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13-3971809
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(State
or Other Jurisdiction of
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(Primary
Standard Industrial
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(I.R.S.
Employer
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Incorporation
or Organization)
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Classification
Code Number)
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Identification
No.)
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41
Grand Avenue
River
Edge, New Jersey 07661
(201)
343-5202
(Address,
Including Zip Code, and Telephone Number,
Including
Area Code, of Registrant’s Principal Executive Offices)
Daron
Evans
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Copies
to:
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President
and Chief Executive Officer
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Christopher
J. Melsha, Esq.
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Nephros,
Inc.
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Fredrikson
& Byron P.A.
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41
Grand Avenue
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200
South Sixth Street
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River
Edge, New Jersey 07661
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Suite
4000
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(201)
343-5202
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Minneapolis,
Minnesota 55402
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(Name,
Address, Including Zip Code, and Telephone
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Telephone:
(612) 492-7369
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Number,
including Area Code, of Agent for Service)
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Facsimile:
(612) 492-7077
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Approximate
date of commencement of proposed sale to the public
: From time to time after the effective date of this registration statement.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act, check the following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the
same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ] (Do not check if smaller reporting company)
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Smaller
reporting company [X]
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THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(A), MAY DETERMINE.
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 2 to Form S-1 (this “Post-Effective Amendment”) is being filed pursuant to Section 10(a)(3)
of the Securities Act of 1933, as amended, to update the Registration Statement on Form S-1 (Registration No. 333-206344), which
was previously declared effective by the Securities and Exchange Commission (“SEC”) on September 4, 2015.
All
applicable registration fees were paid at the time of the original filing of such Registration Statement on August 13, 2015.
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The
information in this prospectus is not complete and may be changed. We may not sell these securities until the Registration
Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities
or the solicitation of an offer to buy these securities in any state in which such offer, solicitation or sale is not permitted.
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PRELIMINARY
PROSPECTUS
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SUBJECT
TO COMPLETION, DATED APRIL 14, 2017
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NEPHROS,
INC.
5,150,000
Shares of Common Stock
This
prospectus relates to the offer and sale of up to 5,150,000 shares of common stock, par value $0.001, of Nephros, Inc., a Delaware
corporation, by Lincoln Park Capital Fund, LLC, or Lincoln Park or the selling stockholder.
The
shares of common stock being offered by the selling stockholder have been or may be issued pursuant to a purchase agreement that
we entered into with Lincoln Park on July 24, 2015. See “The Lincoln Park Transaction” for a description of that agreement
and “Selling Stockholder” for additional information regarding Lincoln Park. The prices at which Lincoln Park may
sell the shares offered by this prospectus will be determined by the prevailing market price for the shares or in negotiated transactions.
We
are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of shares by the selling
stockholder.
The
selling stockholder may sell the shares of common stock described in this prospectus in a number of different ways and at varying
prices. See “Plan of Distribution” for more information about how the selling stockholder may sell the shares of common
stock being registered pursuant to this prospectus. The selling stockholder is an “underwriter” within the meaning
of Section 2(a)(11) of the Securities Act of 1933, as amended.
We
will pay the expenses incurred in registering the shares, including legal and accounting fees. See “Plan of Distribution”.
Shares
of our common stock are quoted on the OTCQB operated by the OTC Markets Group, Inc. under the symbol “NEPH.” On , 2017, the last reported sale price of our common stock on the OTCQB was $ per share.
Investing
in our common stock involves substantial risks. See “
Risk Factors
” beginning on page 9 of this prospectus to
read about important factors you should consider before purchasing our common stock.
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the
entire prospectus and any amendments or supplements carefully before you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is
, 2017.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
We
refer to Nephros, Inc. and its consolidated subsidiary as “Nephros”, the “Company”, “we”,
“our”, and “us”. This prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission, which we refer to as the SEC or the Commission, utilizing a registration process.
It is important for you to read and consider all of the information contained in this prospectus and any applicable prospectus
before making a decision whether to invest in the common stock. You should also read and consider the information contained
in the exhibits filed with our registration statement, of which this prospectus is a part, as described in “Where
You Can Find More Information” in this prospectus.
You
should rely only on the information contained in this prospectus and any applicable prospectus supplement, including the
information incorporated by reference. We have not authorized anyone to provide you with different information. We are
not offering to sell or soliciting offers to buy, and will not sell, any securities in any jurisdiction where it is unlawful.
You should assume that the information contained in this prospectus or any prospectus supplement, as well as information
contained in a document that we have previously filed or in the future will file with the SEC is accurate only as of the
date of this prospectus, the applicable prospectus supplement or the document containing that information, as the case
may be.
PROSPECTUS
SUMMARY
This
summary highlights information contained in other parts of this prospectus. Because it is a summary, it does not contain
all of the information that is important to you. For a more complete understanding of our business, you should read this
summary together with the more detailed information and financial statements for the years ended December 31, 2016 and
2015, and related notes appearing elsewhere in this prospectus. You should read this entire prospectus carefully, including
the “Risk Factors” section beginning on page 9 and the “Special Note Regarding Forward-Looking
Statements” section beginning on page 22. This prospectus contains important information that you should
consider when making your investment decision.
About
the Company
Nephros
is a commercial stage medical device and commercial products company that develops and sells high performance liquid purification
filters and hemodiafiltration (“HDF”) systems. Our filters, which are generally classified as ultrafilters,
are primarily used in dialysis centers for the removal of biological contaminants from water and bicarbonate concentrate,
and are used in hospitals for the prevention of infection from water-borne pathogens, such as legionella and pseudomonas.
Because our ultrafilters capture contaminants as small as 0.005 microns in size, they minimize exposure to a wide variety
of bacteria, viruses, fungi, parasites and endotoxins.
Our
OLpūr H2H Hemodiafiltration System, used in conjunction with a standard hemodialysis machine, is the only FDA 510(k)
cleared medical device that enables nephrologists to provide hemodiafiltration treatment to patients with end stage renal
disease (“ESRD”). Additionally, we sell hemodiafilters, which serve the same purpose as dialyzers in an HD
treatment, and other disposables used in the hemodiafiltration treatment process.
We
were founded in 1997 by healthcare professionals affiliated with Columbia University Medical Center/New York-Presbyterian
Hospital to develop and commercialize an alternative method to hemodialysis (“HD”). We have extended our filtration
technologies to meet the demand for liquid purification in other areas, in particular water purification.
Our
Products
Presently,
we have two core product lines: HDF Systems and Ultrafiltration Products.
HDF
Systems
The
current standard of care in the United States for patients with chronic renal failure is HD, a process in which toxins are cleared
via diffusion. Patients typically receive HD treatment at least 3 times weekly for 3-4 hours per treatment. HD is most effective
in removing smaller, easily diffusible toxins. For patients with acute renal failure, the current standard of care in the United
States is hemofiltration (“HF”), a process where toxins are cleared via convection. HF offers a much better removal
of larger sized toxins when compared to HD. However, HF treatment is performed on a daily basis, and typically takes 12-24 hours.
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Hemodiafiltration
(“HDF”) is an alternative dialysis modality that combines the benefits of HD and HF into a single therapy
by clearing toxins using both diffusion and convection. Though not widely used in the United States, HDF is much more
prevalent in Europe and is performed in a growing number of patients. Clinical experience and literature show the following
clinical and patient benefits of HDF:
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Enhanced
clearance of middle and large molecular weight toxins.
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Improved
survival - up to a 35% reduction in mortality risk
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Reduction
in the occurrence of dialysis-related amyloidosis
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Reduction
in inflammation
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Reduction
in medication such as EPO and phosphate binders
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Improved
patient quality of life
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Reduction
in number of hospitalizations and overall length of stay
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However,
like HF, HDF can be resource intensive and can require a significant amount of time to
deliver one course of treatment.
We
have developed a modified approach to HDF that we believe is more patient-friendly, is less resource-intensive, and can
be used in conjunction with current HD machines. We refer to our approach as an online mid-dilution hemodiafiltration
(“mid-dilution HDF”) system and it consists of our OLpūr H2H Hemodiafiltration Module (“H2H Module”),
our OLpūr MD 220 Hemodiafilter (“HDF Filter”) and our H2H Substitution Filter (“Dialysate Filter”).
The
H2H Module utilizes a standard HD machine to perform on-line hemodiafiltration therapy. The HD machine controls and monitors
the basic treatment functions, as it would normally when providing HD therapy. The H2H Module is a free-standing, movable
device that is placed next to either side of an HD machine. The H2H Module is connected to the clinic’s water supply,
drain, and electricity.
The
H2H Module utilizes the HDF Filter and is very similar to a typical hollow fiber dialyzer assembled with a single hollow
fiber bundle made with a high-flux (or high-permeability) membrane. The fiber bundle is separated into two discrete, but
serially connected blood paths. Dialysate flows in one direction that is counter-current to blood flow in Stage 1 and
co-current to blood flow in Stage 2.
In
addition to the HDF Filter, the H2H Module also utilizes a Dialysate Filter during patient treatment. The Dialysate Filter
is a hollow fiber, ultrafilter device that consists of two sequential (redundant) ultrafiltration stages in a single housing.
During on-line HDF with the H2H Module, fresh dialysate is redirected by the H2H Module’s hydraulic (substitution)
pump and passed through this dual-stage ultrafilter before being infused as substitution fluid into the extracorporeal
circuit. Providing ultrapure dialysate is crucial for the success of on-line HDF treatment.
Our
HDF System is cleared by the FDA to market for use with an ultrafiltration controlled hemodialysis machine that provides
ultrapure dialysate in accordance with current ANSI/AAMI/ISO standards, for the treatment of patients with chronic renal
failure in the United States. Our on-line mid-dilution HDF system is the only on-line mid-dilution HDF system of its kind
to be cleared by the FDA to date.
Vanderbilt
University began treating patients with our HDF Systems early in 2017. Our goal over the next 12-18 months is to develop
a better understanding of how our system best fits into the current clinical and economic ESRD treatment paradigm with
the ultimate goals of (a) improving the quality of life for the patient, (b) reducing overall expenditure compared to
other dialysis modalities, (c) minimizing the impact on nurse work flow at the clinic, and (d) demonstrating the pharmacoeconomic
benefit of the HDF technology to the U.S. healthcare system, as has been done in Europe with other HDF systems. In addition,
we are in the process of developing version 2.0 of our HDF System, which will enable us to manufacture at scale, as well
as potentially reduce the per treatment cost of performing HDF.
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Ultrafiltration
Products
Our
ultrafiltration products target a number of markets:
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Hospitals
and Other Healthcare Facilities: Filtration of water to be used for patient washing and drinking as an aid in infection control.
The filters also produce water that is suitable for wound cleansing, cleaning of equipment used in medical procedures and
washing of surgeons’ hands.
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Dialysis
Centers - Water/Bicarbonate: Filtration of water or bicarbonate concentrate used in hemodialysis devices.
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Military
and Outdoor Recreation: Individual water purification devices used by soldiers and backpackers to produce drinking water in
the field, as well as filters customized to remote water processing systems.
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Commercial
Facilities: Filtration of water for washing and drinking including use in ice machines and soda fountains.
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Our
Target Markets
Hospitals
and Other Healthcare Facilities.
According to the American Hospital Association approximately 5,700 hospitals, with
approximately 915,000 beds, treated over 35 million patients in the United States in 2013. The U.S. Centers for Disease
Control and Prevention estimates that healthcare associated infections (“HAI”) occurred in approximately 1
out of every 25 hospital patients. HAIs affect patients in a hospital or other healthcare facility, and are not present
or incubating at the time of admission. They also include infections acquired by patients in the hospital or facility
but appearing after discharge, and occupational infections among staff. Many HAIs are waterborne bacteria and viruses
that can thrive in aging or complex plumbing systems often found in healthcare facilities. The Affordable Care Act, which
was passed in March 2010, puts in place comprehensive health insurance reforms that aim to lower costs and enhance quality
of care. With its implementation, healthcare providers have substantial incentives to deliver better care or be forced
to absorb the expenses associated with repeat medical procedures or complications like HAIs. As a consequence, hospitals
and other healthcare facilities are proactively implementing strategies to reduce the potential for HAIs. Our ultrafilters
are designed to aid in infection control in the hospital and healthcare setting by treating facility water at the point
of delivery, for example, from sinks and showers.
On
October 28, 2014, we announced that we received 510(k) clearance from the FDA to market our DSU-H and SSU-H Ultrafilters
as medical devices for use in the hospital setting. The DSU-H and SSU-H Ultrafilters are intended to be used to filter
EPA quality drinking water. The filters retain bacteria, viruses and endotoxin. By providing ultrapure water for patient
washing and drinking, the filters aid in infection control. The filters also produce water that is suitable for wound
cleansing, cleaning of equipment used in medical procedures and washing of a surgeon’s hands. The filters are not
intended to provide water that can be used as a substitute for United States Pharmacopeia (“USP”) sterile
water.
In
May 2015, we received a warning letter from the FDA resulting from an October 2014 inspection. In the letter, the FDA
alleged deficiencies relating to our compliance with the quality system regulation and the medical device reporting regulation.
The warning letter did not restrict our ability to manufacture, produce or ship any of our products, nor did it require
the withdrawal of any product from the marketplace. In August 2015, we received a subsequent letter from the FDA noting
that it had received our response correspondence detailing our completed corrective actions. The corrective actions included
revisions to our standard operating procedures relating to purchasing and supplier controls, adverse event reporting,
and complaint handling and monitoring. In February 2016, the FDA performed another on-site inspection. There were no observations,
or 483’s, cited at the conclusion of the inspection. In April 2016, we received a third letter from the FDA noting
that the FDA had completed its evaluation of our corrective actions and that, based on its evaluation, it appeared that
we had addressed the deficiencies specified in the May 2015 warning letter.
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In
June 2015, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (“ASHRAE”)
approved Standard 188-2015, “Legionellosis: Risk Management for Building Water Systems”. We believe the approval
of ASHRAE 188-2015 (“S188”) as a national standard will have a positive impact on point of delivery filtration
market. The S188 applies to any human occupied building that is not a single family residence; requires the building to
have a plan to control for waterborne infection; requires heat, chemical or both cleaning in the event of a suspected
or confirmed presence of legionella; and recommends point-of-use filters in areas of high risk. We are enhancing our efforts
to support our distributors by developing and delivering focused sales training to their sales forces on the use of our
filters to support an overall program of infection risk prevention; and by, whenever possible, doing joint sales calls
with our distributors on potential hospital customers to both serve as a product expert and to field train their sales
representatives.
In
April 2016, we announced that we received 510(k) clearance from the FDA to market our S100 Point of Use filter. We began
shipping our S100 Point of Use in the third quarter of 2016, and ramped up to full production by the end of 2016.
In
December 2016, we announced that we received 510(k) clearance from the FDA to market our HydraGuard™ 10” Ultrafilter.
We expect to begin shipping HydraGuard™ 10” Ultrafilter in the second quarter of 2017, ramping to full production
in the third quarter of 2017.
In
the third quarter of 2017, we expect to launch a flushable version of the HydraGuard™ 10” Ultrafilter.
The
complete hospital infection control product line, including in-line, point of use and cartridge filters, can be viewed
on our website at http://www.nephros.com/infection-control/. We are not including the information on our website as a
part of, or incorporating it by reference into, this report.
Dialysis
Centers - Water/Bicarbonate
. To perform hemodialysis, all dialysis clinics have dedicated water purification systems
to produce water and bicarbonate concentrate. Water and bicarbonate concentrate are essential ingredients for making dialysate,
the liquid that removes waste material from the blood. According to the American Journal of Kidney Diseases, there are
approximately 6,300 dialysis clinics in the United States servicing approximately 430,000 patients annually. We estimate
that there are over 100,000 hemodialysis machines in operation in the United States.
Medicare
is the main payer for dialysis treatment in the U.S. To be eligible for Medicare reimbursement, dialysis centers must
meet the minimum standards for water and bicarbonate concentrate quality set by the Association for the Advancement of
Medical Instrumentation (“AAMI”), the American National Standards Institute (“ANSI”) and the International
Standards Organization (“ISO”). We anticipate that the stricter standards approved by these organizations
in 2009 will be adopted by Medicare in the near future.
Published
studies have shown that the use of ultrapure dialysate can reduce the overall need for erythropoietin stimulating agents
(“ESA”), expensive drugs used in conjunction with HD. By reducing the level of dialysate contaminants, specifically
cytokine-inducing substances that can pass into a patient’s blood stream, the stimulation of inflammation-inducing
cytokines is reduced, thus reducing systemic inflammation. When inflammation is low, inflammatory morbidities are reduced
and a patient’s responsiveness to erythropoietin (“EPO”) is enhanced, consequently the overall need
for ESAs is reduced.
We
believe that our DSU-D and SSU-D ultrafilters are attractive to dialysis centers because they exceed currently approved
and newly proposed standards for water and bicarbonate concentrate purity, assist in achieving those standards and may
help dialysis centers reduce costs associated with the amount of ESA required to treat a patient. These in-line filters
are easily installed into the fluid circuits supplying water and bicarbonate concentrate just prior to entering each dialysis
machine, or are installed as polishing filters for portable reverse osmosis (“RO”) water systems.
In
March 2016, we launched the SSUmini product, developed to provide a lower cost ultrafiltration solution for water and
bicarbonate flowrates of 0.5 gallons per minutes (“GPM”) or less. The SSUmini can be used as a polish filter
for small, portable RO water systems or on bicarbonate concentrate lines in dialysis clinics with centralized bicarbonate
concentrate systems.
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In
March 2017, we announced that we received 510(k) clearance from the FDA to market our EndoPur™ 10” Endotoxin
filter, which is designed to fit in the existing cartridge hosing of a dialysis clinic’s large RO water system.
We expect to begin shipping the EndoPur™ 10” Endotoxin filter in the second quarter of 2017, and the 20”
and 30” versions of the filter by the third quarter of 2017.
Military
and Outdoor Recreation
. Water is a key requirement for the soldier to be fully mission-capable. The availability of
water supplies and immediate on-site water purification is critical to enhance the ability to operate in any environment.
Currently, the military is heavily reliant on the use of bottled water to support its soldiers in the field. Bottled water
is not always available, is very costly to move, is resource intensive, and is prone to constant supply disruptions. Soldiers
conducting operations in isolated and rugged terrain must be able to use available local water sources when unable to
resupply from bulk drinking water sources or bottled water. Therefore, the soldier needs the capability to purify water
from indigenous water sources in the absence of available potable water. Soldiers must have the ability to remove microbiological
contaminants in the water to Environmental Protection Agency (“EPA”) specified levels.
We
developed our individual water treatment device (“IWTD”) in both in-line and point-of-use configurations.
Our IWTD allows a soldier in the field to derive drinking water from any fresh water source. This enables the soldier
to remain hydrated, which will maintain mission effectiveness and unit readiness, and extend mission reach. Our IWTD is
one of the few portable filters that has been validated by the military to meet the NSF Protocol P248 standard. It has
also been approved by U.S. Army Public Health Command and U.S. Army Test and Evaluation Command for deployment.
On
May 6, 2015, we entered into a Sublicense Agreement with CamelBak Products, LLC (“CamelBak”). Under this Sublicense
Agreement, we granted CamelBak an exclusive, non-transferable, worldwide (with the exception of Italy) sublicense and
license, in each case solely to market, sell, distribute, import and export the IWTD. In exchange for the rights granted
to CamelBak, CamelBak agreed, through December 31, 2022, to pay us a percentage of the gross profit on any sales made
to a branch of the U.S. military, subject to certain exceptions, and to pay us a fixed per-unit fee for any other sales
made. CamelBak is also required to meet or exceed certain minimum annual fees payable to us, and if such fees are not
met or exceeded, we may convert the exclusive sublicense to a non-exclusive sublicense with respect to non-U.S. military
sales. During the fiscal year ended December 31, 2016, we recognized royalty revenue of $10,000 related to the Sublicense
Agreement with CamelBak.
In
2015, we began working with multiple companies developing portable water purification systems designed to provide potable
water in remote locations. Specifically, we have provided flushable filter prototypes to these companies for validation
as one potential component in systems that employ multiple technologies to purify water from streams, lakes and rivers.
Commercial
and Industrial Facilitie
s. In 2014, we launched NanoGuard-D and NanoGuard-S in-line ultrafilters for the filtration
of water to be used for non-medical drinking and washing in non-transient non-community water systems, or commercial facilities.
The NanoGuard-D and NanoGuard-S trap particulates greater than 0.005 microns in size and can be used as a component of
a facility water treatment system, or to filter water used in ice machines and soda fountains.
In
November 2015, we announced a strategic partnership with Biocon 1, LLC. Biocon 1’s AETHER® Water Systems technology,
which includes patented water filtration media and water filtration products, provides solutions for customers to address
all contaminate issues and to provide clean-tasting, sediment-free, scale-free, and bacteria-free water for the food service
industry. AETHER® Water Systems are used with ice machines, coffee stations, and soda fountains in hotels, casual
dining restaurants, fast food restaurants and convenience stores. As part of the collaboration, we have access to Biocon
1’s anti-scale and related water filtration technology to develop filter products for the medical industry. In March
2016, we shipped the first lot of filter cartridges to Biocon 1 for inclusion with its AETHER® line of filtration
products.
While
our EndoPur
TM
ultrafilter cartridge platform was designed initially for use in the dialysis setting, we are
working with our distributors to identify other opportunities for our ultrafilters to provide value to customers in multiple
commercial and industrial settings. The NanoGuard-C, a cartridge ultrafilter that inserts into standard 10”, 20”,
30” and 40” housings, is now available; and we expect that the NanoGuard-F, a flushable cartridge ultrafilter
available in 10” and 20” sizes, will be available for broad distribution in the second quarter of 2017.
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Many
potential customers in the commercial and industrial space currently utilize an Everpure® manifold system. The NanoGuard-E,
a version of our ultrafilter that plugs into an Everpure® housing system, is now available.
Over
the last few years, we have been developing a high-throughput, auto-flushing filter system capable of handling 25 GPM,
or greater, through our proprietary 0.005 micron fiber membrane. The flushable filter system is designed to remove submicron
particulates in closed loop water systems, including cooling systems for data centers and hot water return loops in commercial
buildings. Initial data suggests the ability to remove both organic and inorganic particulates. We have released a limited
number of systems to specific customers for additional testing and validation.
Small,
flushable 2.5 and 5 GPM filter systems have potential utility as a point-of-entry water purification system in restaurants,
convenience stores and households. We offered flushable systems to a limited set of customers in 2016, and expect to offer
these system to a broad set of commercial and industrial customers starting in the second quarter of 2017.
In
the third quarter of 2017, we expect to launch a lead filtration system that will address both soluble and particulate
lead in potable water, with the ability to treat up to 10,000 gallons of water between filter change-outs.
Going
forward, as we grow our water filtration business, we will be exploring opportunities for new applications for our filter
products and will be open to evaluating new potential partnerships to expand our water filtration foot print. Our strategic
distribution partners who place our filters in hospitals and medical facilities, also support a wide range of commercial
and industrial customers. We believe that our existing distributor relationships will facilitate growth in filter sales
outside of the medical industry.
Corporate
Information
We
were incorporated under the laws of the State of Delaware in April 1997. Our principal executive offices are located at
41 Grand Avenue, River Edge, New Jersey, 07661, and our telephone number is (201) 343-5202. We also have an office in
Dublin, Ireland. For more information about Nephros, please visit our website at www.nephros.com.
Going
Concern
The
accompanying consolidated financial statements have been prepared assuming that we will continue as a going concern. Our
recurring losses and difficulty in generating sufficient cash flow to meet our obligations and sustain our operations
raise substantial doubt about our ability to continue as a going concern. Our consolidated financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
We
have incurred significant losses in operations in each quarter since inception. In addition, we did not generate positive
cash flow from operations for the years ended December 31, 2016 and 2015. To become profitable, we must increase revenue
substantially and achieve and maintain positive gross and operating margins. If we are not able to increase revenue and
gross and operating margins sufficiently to achieve profitability, our results of operations and financial condition will
be materially and adversely affected.
There
can be no assurance that our future cash flow will be sufficient to meet our obligations and commitments. If we are unable
to generate sufficient cash flow from operations in the future to service our commitments, we will be required to adopt
alternatives, such as seeking to raise debt or equity capital, curtailing our planned activities or ceasing our operations.
There can be no assurance that any such actions could be effected on a timely basis or on satisfactory terms or at all,
or that these actions would enable us to continue to satisfy our capital requirements.
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Recent
Developments
On
March 17, 2017, we entered into a securities purchase agreement with various accredited investors pursuant to which we
agreed to sell in a private placement, referred to as the 2017 Private Placement, a total of 4,059,994 units of our securities,
each unit consisting of one share of our common stock and a five-year warrant to purchase one share of our common stock,
referred to as the 2017 Warrants. The closing of the 2017 Private Placement occurred on March 22, 2017. The purchase price
for each unit was $0.30. The 2017 Warrants are exercisable at a price of $0.30 per warrant share and will be exercisable
for a five-year term. The sale of the shares and 2017 Warrants resulted in aggregate gross proceeds of approximately $1.218
million, before deducting expenses. Additionally, we entered into a registration rights agreement with such purchasers,
pursuant to which we agreed to file a registration statement with the SEC covering the resale of the shares of common
stock and shares issuable upon the exercise of the 2017 Warrants within thirty days of the closing date. Maxim Group LLC
acted as the sole placement agent for the offering, and we paid Maxim a cash fee equal to 7.5% of the aggregate gross
proceeds of the offering, to reimburse Maxim for certain expenses, and granted Maxim a warrant to purchase 81,199 shares
of common stock, upon substantially the same terms as the 2017 Warrants, except that the warrant issued to Maxim has an
exercise price of $0.33 per share.
Where
You Can Find More Information
We
make available free of charge on our website (http://www.nephros.com) our Annual Report on Form 10-K, quarterly reports
on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, as soon as reasonably practicable after
such material is electronically filed with or furnished to the SEC. We provide electronic or paper copies of filings free
of charge upon request. The public may read and copy any materials filed with the SEC at the SEC’s Public Reference
Room at 100 F Street N.E. Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference
Room by calling the SEC at 1800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy and information
statements and other information regarding issuers that file with the SEC at http://www.sec.gov.
The
Offering
On
July 24, 2015, we entered into a purchase agreement with Lincoln Park, which we refer to in this prospectus as the Purchase
Agreement, pursuant to which Lincoln Park has agreed to purchase from us up to $10,000,000 of our common stock (subject
to certain limitations) from time to time over a 36-month period commencing September 4, 2015. Also on July 24, 2015,
we entered into a registration rights agreement, or the Registration Rights Agreement, with Lincoln Park, pursuant to
which we have filed with the SEC the registration statement that includes this prospectus to register for resale under
the Securities Act of 1933, as amended, or the Securities Act, the shares that have been or may be issued to Lincoln Park
under the Purchase Agreement.
We
may, from time to time and at our sole discretion, direct Lincoln Park to purchase shares of our common stock in amounts
up to 100,000 shares on any single business day so long as at least one business day has passed since the most recent
purchase. We can also accelerate the amount of our common stock to be purchased under certain circumstances to up 200,000
shares or $500,000 per purchase plus an additional “accelerated amount” under certain circumstances. Except
as described in this prospectus, there are no trading volume requirements or restrictions under the Purchase Agreement,
and we will control the timing and amount of any sales of our common stock to Lincoln Park. The purchase price of the
shares that may be sold to Lincoln Park under the Purchase Agreement will be based on the market price of our common stock
immediately preceding the time of sale as computed under the Purchase Agreement without any fixed discount; provided that
in no event will such shares be sold to Lincoln Park when our closing sale price is less than $0.35 per share, subject
to adjustment as provided in the Purchase Agreement. The purchase price per share will be equitably adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, or other similar transaction occurring during the business days used
to compute such price. We may at any time in our sole discretion terminate the Purchase Agreement without fee, penalty
or cost upon one business day notice. Lincoln Park may not assign or transfer its rights and obligations under the Purchase
Agreement.
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As
of March 31, 2017, there were 54,160,548 shares of our common stock outstanding, of which 22,927,189 shares were
held by non-affiliates, including the 850,000 shares that we have already issued to Lincoln Park under the Purchase Agreement.
The Purchase Agreement provides that we may sell up to $10,000,000 of our common stock to Lincoln Park, and 5,150,000
shares of our common stock are being offered under this prospectus, which represents (i) 250,000 shares that we issued
to Lincoln Park as a commitment fee, (ii) 600,000 shares issued and sold to Lincoln Park during the year ended December
31, 2015 and during January 2017 under the Purchase Agreement, and (iii) an additional 4,300,000 shares which may be issued
to Lincoln Park in the future under the Purchase Agreement. If all of the 5,150,000 shares offered by Lincoln Park under
this prospectus were issued and outstanding as of the date hereof, such shares would represent 8.8% of the total number
of shares of our common stock outstanding and 18.9% of the total number of outstanding shares held by non-affiliates,
in each case as of the date hereof. However, per the Purchase Agreement, we cannot issue or sell, and Lincoln Park cannot
purchase or acquire, any shares of common stock pursuant to the Purchase Agreement which would result in Lincoln Park
beneficially owning more than 9.99% of our outstanding common stock. If we elect to issue and sell more than the 5,150,000
shares offered under this prospectus to Lincoln Park, which we have the right, but not the obligation, to do, we must
first register for resale under the Securities Act any such additional shares, which could cause additional substantial
dilution to our stockholders. The number of shares ultimately offered for resale by Lincoln Park is dependent upon the
number of shares we sell to Lincoln Park under the Purchase Agreement.
Issuances
of our common stock in this offering will not affect the rights or privileges of our existing stockholders, except that
the economic and voting interests of each of our existing stockholders will be diluted as a result of any such issuance.
Although the number of shares of common stock that our existing stockholders own will not decrease, the shares owned by
our existing stockholders will represent a smaller percentage of our total outstanding shares after any such issuance
to Lincoln Park.
Securities
Offered
The
following summary describes the principal terms of the offering, but is not intended to be complete.
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Common
stock to be offered by the selling stockholder
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5,150,000
shares of common stock, consisting of
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250,000
commitment shares issued to Lincoln Park;
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600,000
shares issued and sold to Lincoln Park under the Purchase Agreement ; and
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4,300,000
shares we may sell to Lincoln Park under the Purchase Agreement
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Common
stock outstanding prior to this offering
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54,160,548
shares of common stock, as of March 31, 2017
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Common
stock to be outstanding after giving effect
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58,460,548
shares of common stock
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to
the issuance of the additional 4,300,000 shares
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as
offered under this prospectus
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Use
of Proceeds
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We
will receive none of the proceeds from the sale of the shares by Lincoln Park in this offering. However, we may receive up
to $10,000,000 under the Purchase Agreement with Lincoln Park. Any proceeds that we receive from sales to Lincoln Park under
the Purchase Agreement will be used for general corporate purposes. See “Use of Proceeds.”
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Risk
Factors
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The
acquisition of our common stock involves substantial risks. See “Risk Factors” beginning on page 9
of this prospectus.
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OTCQB
Symbol
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NEPH
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RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should consider carefully the following information about these
risks, together with the other information contained in this prospectus, before you decide whether to buy our securities. The
occurrence of any of the following risks could have a material adverse effect on our business, financial condition and results
of operations.
Risks
Related to the Purchase Agreement with Lincoln Park
The
sale or issuance of our common stock to Lincoln Park may cause dilution and the sale of the shares of common stock acquired by
Lincoln Park, or the perception that such sales may occur, could cause the price of our common stock to fall.
On
July 24, 2015, we entered into the Purchase Agreement with Lincoln Park, pursuant to which Lincoln Park has committed to purchase
up to $10,000,000 of our common stock. Concurrently with the execution of the Purchase Agreement on July 24, 2015, we issued 250,000
shares of our common stock to Lincoln Park as a fee for its commitment to purchase shares of our common stock under the Purchase
Agreement. The purchased shares that may be sold pursuant to the Purchase Agreement may be sold by us to Lincoln Park at our discretion
from time to time over a 36-month period commencing on September 4, 2015. The purchase price for the shares that we may sell to
Lincoln Park under the Purchase Agreement will fluctuate based on the price of our common stock. Depending on market liquidity
at the time, sales of such shares may cause the trading price of our common stock to fall. During the year ended December 31,
2015, we issued and sold an additional 300,000 shares of common stock to Lincoln Park pursuant to the Purchase Agreement. During
January 2017, we issued and sold an additional 300,000 shares of our common stock to Lincoln Park pursuant to the Purchase Agreement.
We
generally have the right to control the timing and amount of any sales of our shares to Lincoln Park, except that, pursuant to
the terms of our agreements with Lincoln Park, we would be unable to sell shares to Lincoln Park if and when the closing sale
price of our common stock is below $0.35 per share, subject to adjustment as set forth in the Purchase Agreement. Additional sales
of our common stock, if any, to Lincoln Park will depend upon market conditions and other factors to be determined by us. As such,
Lincoln Park may ultimately purchase all, some or none of the shares of our common stock that may be sold pursuant to the Purchase
Agreement and, after it has acquired shares, Lincoln Park may sell all, some or none of those shares. Therefore, sales to Lincoln
Park by us could result in substantial dilution to the interests of other holders of our common stock.
Pursuant
to the terms of the Purchase Agreement, we have the right, but not the obligation, to direct Lincoln Park to purchase up to $10,000,000
of our common stock, exclusive of the 250,000 commitment shares issued to Lincoln Park as a commitment fee (which have already
been issued to Lincoln Park and are part of this offering). Depending on the price per share at which we sell our common stock
to Lincoln Park, we may be authorized to issue and sell to Lincoln Park under the Purchase Agreement more shares of our common
stock than are offered under this prospectus. If we choose to do so, we must first register for resale under the Securities Act
any such additional shares, which could cause additional substantial dilution to our stockholders. The number of shares ultimately
offered for resale by Lincoln Park under this prospectus is dependent upon the number of shares we direct Lincoln Park to purchase
under the Purchase Agreement.
Additionally,
the sale of a substantial number of shares of our common stock to Lincoln Park, or the anticipation of such sales, could make
it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise
wish to effect sales. Moreover, we may sell our common stock to Lincoln Park at prices that are less than the last reported sale
price of our common stock on the day that we sell the shares to Lincoln Park. The purchase price at which we have the right to
sell our shares to Lincoln Park is based on the lower of the average three lowest closing sale prices of our shares for the prior
twelve days or the lowest sale price on the day we elect to sell shares. Accordingly, this price may be less than the last reported
sale price of our common stock as reported on the OTCQB, and such sales to Lincoln Park may thereby have a dilutive effect on
our stockholders depending on the tangible book value of our shares at the time of the sale.
Under
the terms of the Purchase Agreement the price of our shares cannot trade below a minimum low price of $0.35 per share on a day
on which we choose to sell shares to Lincoln Park. However, if the minimum $0.35 price is met on a sale date, sales to Lincoln
Park may be made based on an average trailing average price formula. This formula specifies that the average of the three (3)
lowest closing sale prices during the preceding consecutive twelve (12) trading day period immediately preceding the sale date
would be used as the sale price on the sale date. The effect of this is that even if our shares have traded at a substantial discount
to the $0.35 minimum low price during the preceding twelve day period, we still have the right to sell shares to Lincoln Park,
but the per share price for such sales would be based on the trailing average price formula.
If
you invest in our common stock in this offering, your ownership will be diluted to the extent of the difference between the offering
price per share and the pro forma net tangible book value per share as adjusted to give effect to this offering. Dilution results
from the fact that the per share offering price the common stock in this offering is substantially in excess of the book value
per share attributable to the shares of common stock held by existing shareholders.
We
may not be able to access sufficient funds under the Purchase Agreement with Lincoln Park when needed.
Our
ability to sell shares to Lincoln Park and obtain funds under the Purchase Agreement is limited by the terms and conditions in
the Purchase Agreement, including restrictions on when we may sell shares to Lincoln Park, restrictions on the amounts we may
sell to Lincoln Park at any one time, and a limitation on our ability to sell shares to Lincoln Park to the extent that it would
cause Lincoln Park to beneficially own more than 9.99% of our outstanding common stock. In addition, any amounts we sell under
the Purchase Agreement may not satisfy all of our funding needs, even if we are able and choose to sell all $10,000,000 under
the Purchase Agreement. Assuming all 4,300,000 additional shares of our common stock being offered under this prospectus that
may be purchased by Lincoln Park are sold at $0.35 per share (the floor price mentioned above), we would receive $1,505,000. If
we elect to issue and sell more than the 4,300,000 additional shares offered under this prospectus to Lincoln Park, which we have
the right, but not the obligation, to do, we must first register for resale under the Securities Act of 1933 any such additional
shares.
We
elected to enter into the Purchase Agreement with Lincoln Park as we expect that additional capital over the next 12 months will
be required for us to fully implement our business, operating and development plans. The extent we rely on Lincoln Park as a source
of funding will depend on a number of factors including, the prevailing market price of our common stock and the extent to which
we are able to secure working capital from other sources. If obtaining sufficient funding from Lincoln Park were to prove unavailable
or prohibitively dilutive, we will need to secure another source of funding in order to satisfy our working capital needs. Even
if we sell all $10,000,000 under the Purchase Agreement to Lincoln Park, we may still need additional capital to fully implement
our business, operating and development plans. Should the financing we require to sustain our working capital needs be unavailable
or prohibitively expensive when we require it, the consequences could be a material adverse effect on our business, operating
results, financial condition and prospects.
Risks
Related to Our Company
Our recurring losses and difficulty
in generating sufficient cash flow to meet our obligations and sustain our operations raise substantial doubt about our ability
to continue as a going concern.
The
accompanying consolidated financial statements have been prepared assuming that we will continue as a going concern. However,
there can be no assurance that we will be able to do so. Our recurring losses and difficulty in generating sufficient cash flow
to meet our obligations and sustain our operations raise substantial doubt about our ability to continue as a going concern, and
our consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty. Based
on our current cash flow projections and the approximately $1.2 million raised in a private placement offering in March 2017 and
projected increase in product sales from the launch of new products we may be able to fund our operations at least into 2018,
if not longer, depending on the timing and market acceptance of our new products. If we are unable to generate cash flow from
our operating activities by such time, we will need to raise additional funds through either the licensing or sale of our
technologies or the additional public or private offerings of our securities. However, there is no guarantee that we will be able
to obtain further financing, or do so on reasonable terms. If we are unable to raise additional funds on a timely basis, or at
all, we may be required to cease operations.
We
have a history of operating losses and a significant accumulated deficit, and we may not achieve or maintain profitability in
the future.
As
of December 31, 2016, we had an accumulated deficit of approximately $120,285,000, as a result of historical operating losses.
While we believe that the revenues following the launch of our new products will help us achieve profitability, there can be no
guarantee, We may continue to incur additional losses in the future depending on the timing and marketplace acceptance of our
new products and as a result of operating expenses being higher than our gross margin from product sales. We began sales of our
first product in March 2004, and we may never realize sufficient revenues from the sale of our products or be profitable. Each
of the following factors, among others, may influence the timing and extent of our profitability, if any:
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the
market acceptance of our technologies and products in each of our target markets;
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our
ability to effectively and efficiently manufacture, market and distribute our products;
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our
ability to sell our products at competitive prices which exceed our per unit costs; and
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our
ability to continue to develop products and maintain a competitive advantage in our industry.
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If
we violate any provisions of the FDCA or any other statutes or regulations, then we could be subject to enforcement actions by
the FDA or other governmental agencies.
We
face a significant compliance burden under the U.S. Food, Drug and Cosmetic Act, or the FDCA, and other applicable statutes and
regulations which govern the testing, labeling, storage, record keeping, distribution, sale, marketing, advertising and promotion
of our medically approved products.
On
May 28, 2015, we received a warning letter from the FDA resulting from an October 2014 inspection. In the letter, the FDA alleged
deficiencies relating to our compliance with the quality system regulation and the medical device reporting regulation. The warning
letter did not restrict our ability to manufacture, produce or ship any of our products, nor did it require the withdrawal of
any product from the marketplace. On August 12, 2015, we received a subsequent letter from the FDA noting that it had received
our response correspondence detailing our completed corrective actions. The corrective actions included revisions to our standard
operating procedures relating to purchasing and supplier controls, adverse event reporting, and complaint handling and monitoring.
In February 2016, the FDA performed another on-site inspection. There were no observations, or 483’s, cited at the conclusion
of the inspection. In April 2016, we received a third letter from the FDA noting that the FDA had completed its evaluation of
our corrective actions and that, based on its evaluation, it appeared that we had addressed the deficiencies specified in the
May 2015 warning letter.
If
we violate the FDCA or other regulatory requirements (either with respect to our POU or DSU ultrafilters or otherwise) at any
time during or after the product development and/or approval process, we could be subject to enforcement actions by the FDA or
other agencies, including:
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fines;
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injunctions;
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civil
penalties;
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recalls
or seizures of products;
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total
or partial suspension of the production of our products;
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withdrawal
of any existing approvals or pre-market clearances of our products;
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refusal
to approve or clear new applications or notices relating to our products;
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recommendations
that we not be allowed to enter into government contracts; and
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criminal
prosecution.
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Any
of the above could have a material adverse effect on our business, financial condition and results of operations.
We
cannot assure you that our products will be safe or that there will not be product-related deaths, serious injuries or product
malfunctions. Further, we are required under applicable law to report any circumstances relating to our medically approved products
that could result in deaths or serious injuries. These circumstances could trigger recalls, class action lawsuits and other events
that could cause us to incur expenses and may also limit our ability to generate revenues from such products.
We
cannot assure you that our products will prove to be safe or that there will not be product-related deaths or serious injuries
or product malfunctions, which could trigger recalls, class action lawsuits and other events that could cause us to incur significant
expenses, limit our ability to market our products and generate revenues from such products or cause us reputational harm.
Under
the FDCA, we are required to submit medical device reports (“MDRs”) to the FDA to report device-related deaths, serious
injuries and malfunctions of medically approved products that could result in death or serious injury if they were to recur. Depending
on their significance, MDRs could trigger events that could cause us to incur expenses and may also limit our ability to generate
revenues from such products, such as the following:
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information
contained in the MDRs could trigger FDA regulatory actions such as inspections, recalls and patient/physician notifications;
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because
the reports are publicly available, MDRs could become the basis for private lawsuits, including class actions; and
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if
we fail to submit a required MDR to the FDA, the FDA could take enforcement action against us.
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If
any of these events occur, then we could incur significant expenses and it could become more difficult for us to market and sell
our products and to generate revenues from sales. Other countries may impose analogous reporting requirements that could cause
us to incur expenses and may also limit our ability to generate revenues from sales of our products.
Product
liability associated with the production, marketing and sale of our products, and/or the expense of defending against claims of
product liability, could materially deplete our assets and generate negative publicity which could impair our reputation.
The
production, marketing and sale of kidney dialysis and water-filtration products have inherent risks of liability in the event
of product failure or claim of harm caused by product operation. Voluntary recalls could subject us to claims or proceedings by
consumers, the FDA or other regulatory authorities which may adversely impact our sales and revenues. Furthermore, even meritless
claims of product liability may be costly to defend against. Although we have acquired product liability insurance for our products,
we may not be able to maintain or obtain this insurance on acceptable terms or at all. Because we may not be able to obtain insurance
that provides us with adequate protection against all potential product liability claims, a successful claim in excess of our
insurance coverage could materially deplete our assets. Moreover, even if we are able to obtain adequate insurance, any claim
against us could generate negative publicity, which could impair our reputation and adversely affect the demand for our products,
our ability to generate sales and our profitability.
Some
of the agreements that we may enter into with manufacturers of our products and components of our products may require us:
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to
obtain product liability insurance; or
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to
indemnify manufacturers against liabilities resulting from the sale of our products.
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For
example, the agreement with our contract manufacturer (“CM”) requires that we obtain and maintain certain minimum
product liability insurance coverage and that we indemnify our CM against certain liabilities arising out of our products that
they manufacture, provided they do not arise out of our CM’s breach of the agreement, negligence or willful misconduct.
If we are not able to obtain and maintain adequate product liability insurance, then we could be in breach of these agreements,
which could materially adversely affect our ability to produce our products and generate revenues. Even if we are able to obtain
and maintain product liability insurance, if a successful claim in excess of our insurance coverage is made, then we may have
to indemnify some or all of our manufacturers for their losses, which could materially deplete our assets.
We
face significant challenges in obtaining market acceptance of our products, which could adversely affect our potential sales and
revenues.
We
do not yet have an established market or customer base for our products. Acceptance of our products in the marketplace by both
potential users, including chronic renal failure patients, and potential purchasers, including nephrologists, dialysis clinics
and other health care providers, is uncertain, and our failure to achieve sufficient market acceptance will significantly limit
our ability to generate revenue and be profitable. Market acceptance will require substantial marketing efforts and the expenditure
of significant funds by us to inform dialysis patients and nephrologists, dialysis clinics and other health care providers of
the benefits of using our products. We may encounter significant clinical and market resistance to our products and our products
may never achieve market acceptance. We may not be able to build key relationships with physicians, clinical groups and government
agencies, pursue or increase sales opportunities in Europe or elsewhere, or be the first to introduce hemodiafiltration therapy
in the United States. Product orders may be cancelled, patients or customers currently using our products may cease to do so and
patients or customers expected to begin using our products may not. Factors that may affect our ability to achieve acceptance
of our chronic renal failure therapy products in the marketplace include whether:
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such
products will be safe for use;
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such
products will be effective;
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such
products will be cost-effective;
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we
will be able to demonstrate product safety, efficacy and cost-effectiveness;
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there
are unexpected side effects, complications or other safety issues associated with such products; and
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government
or third party reimbursement for the cost of such products is available at reasonable rates, if at all.
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Acceptance
of our water filtration products in the marketplace is also uncertain, and our failure to achieve sufficient market acceptance
and sell such products at competitive prices will limit our ability to generate revenue and be profitable. Our water filtration
products and technologies may not achieve expected reliability, performance and endurance standards. Our water filtration products
and technology may not achieve market acceptance, including among hospitals, or may not be deemed suitable for other commercial,
military, industrial or retail applications.
Many
of the same factors that may affect our ability to achieve acceptance of our chronic renal failure therapy products in the marketplace
will also apply to our water filtration products, except for those related to side effects, clinical trials and third party reimbursement.
If
we are not able to successfully scale-up production of our products, then our sales and revenues will suffer.
In
order to commercialize our products, we need to be able to produce them in a cost-effective way on a large scale to meet commercial
demand, while maintaining extremely high standards for quality and reliability. The extent to which we fail to successfully commercialize
our products will limit our ability to be profitable.
We
expect to rely on a limited number of independent manufacturers to produce our products. Our manufacturers’ systems and
procedures may not be adequate to support our operations and may not be able to achieve the rapid execution necessary to exploit
the market for our products. Our manufacturers could experience manufacturing and control problems as they begin to scale-up our
future manufacturing operations, if any, and we may not be able to scale-up manufacturing in a timely manner or at a commercially
reasonable cost to enable production in sufficient quantities. If we experience any of these problems with respect to our manufacturers’
initial or future scale-ups of manufacturing operations, then we may not be able to have our products manufactured and delivered
in a timely manner. Our products are new and evolving, and our manufacturers may encounter unforeseen difficulties in manufacturing
them in commercial quantities or at all.
If
we cannot develop adequate distribution, customer service and technical support networks, then we may not be able to market and
distribute our products effectively and/or customers may decide not to order our products. In either case, our sales and revenues
will suffer.
Our
strategy requires us to distribute our products and provide a significant amount of customer service and maintenance and other
technical service. To provide these services, we have begun, and will need to continue, to develop a network of distribution and
a staff of employees and independent contractors in each of the areas in which we intend to operate. We cannot assure that we
will be able to organize and manage this network on a cost-effective basis. If we cannot effectively organize and manage this
network, then it may be difficult for us to distribute our products and to provide competitive service and support to our customers,
in which case customers may be unable, or decide not, to order our products and our sales and revenues will suffer.
We
have limited experience selling our products to healthcare facilities, and we might be unsuccessful in increasing our sales.
Our
business strategy depends in part on our ability to sell our products to hospitals and other healthcare facilities that include
dialysis clinics. We have limited experience with respect to sales and marketing. If we are unsuccessful at manufacturing, marketing
and selling our products, our operations and potential revenues will be materially adversely affected.
We
cannot sell our products, including certain modifications thereto, until we obtain the requisite regulatory approvals and clearances
in the countries in which we intend to sell our products. If we fail to receive, or experience a significant delay in receiving,
such approvals and clearances, then we may not be able to get our products to market and enhance our revenues.
Our
business strategy depends in part on our ability to get our products into the market as quickly as possible. We have obtained
a Conformité Européene (“CE”) mark, which demonstrates compliance with the relevant European Union requirements
and is a regulatory prerequisite for selling our products in the European Union and certain other countries that recognize CE
marking (collectively, “European Community”), for our OLpūr mid dilution hemodiafilter series product and our
Dual Stage Ultrafilter (“DSU”). We have not yet obtained the CE mark for any of our other products. On April 30, 2012,
we announced that we received clearance from the FDA to market our OLpūr MD220 Hemodiafilter and OLpūr H2H Module for
use with a hemodialysis machine that provides ultrapure dialysate in accordance with current ANSI/AAMI/ISO standards, for the
treatment of chronic renal failure patients. We have not begun to broadly market these products and are actively seeking a commercialization
partner in the United States.
There
is no assurance that any existing products that have not yet been approved, or any new products developed by us in the future,
will be approved for marketing. The clearance and/or approval processes can be lengthy and uncertain and each requires substantial
commitments of our financial resources and our management’s time and effort. We may not be able to obtain further CE marking
or regulatory approval for any of our existing or new products in a timely manner or at all. Even if we do obtain regulatory approval,
approval may be only for limited uses with specific classes of patients, processes or other devices. Our failure to obtain, or
delays in obtaining, the necessary regulatory clearance and/or approvals would prevent us from selling our affected products in
the applicable regions. If we cannot sell some of our products in such regions, or if we are delayed in selling while waiting
for the necessary clearance and/or approvals, our ability to generate revenues from these products will be limited.
We
intend to market our products globally. Requirements pertaining to the sale of our products vary widely from country to country.
It may be very expensive and difficult for us to meet the requirements for the sale of our products in many countries. As a result,
we may not be able to obtain the required approvals in a timely manner, if at all. If we cannot sell our products in a particular
region, then the size of our potential market could be reduced, which would limit our potential sales and revenues.
Clinical
studies that may be required for our products are costly and time-consuming, and their outcome is uncertain.
Before
obtaining regulatory approvals for the commercial sale of any of our products, other than those for which we have already received
marketing approval in the United States and elsewhere, we must demonstrate through clinical studies that our products are safe
and effective.
For
products other than those for which we have already received marketing approval, if we do not prove in clinical trials that our
products are safe and effective, we will not obtain marketing approvals from the applicable regulatory authorities. In particular,
one or more of our products may not exhibit the expected medical benefits, may cause harmful side effects, may not be effective
in treating dialysis patients or may have other unexpected characteristics that preclude regulatory approval for any or all indications
of use or limit commercial use if approved. The length of time necessary to complete clinical trials varies significantly and
is difficult to predict. Factors that can cause delay or termination of our clinical trials include:
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slower
than expected patient enrollment due to the nature of the protocol, the proximity of subjects to clinical sites, the eligibility
criteria for the study, competition with clinical trials for similar devices or other factors;
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lower
than expected retention rates of subjects in a clinical trial;
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inadequately
trained or insufficient personnel at the study site to assist in overseeing and monitoring clinical trials;
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delays
in approvals from a study site’s review board, or other required approvals;
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longer
treatment time required to demonstrate effectiveness;
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lack
of sufficient supplies of the product;
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adverse
medical events or side effects in treated subjects; and
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lack
of effectiveness of the product being tested.
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Even
if we obtain positive results from clinical studies for our products, we may not achieve the same success in future studies of
such products. Data obtained from clinical studies are susceptible to varying interpretations that could delay, limit or prevent
regulatory approval. In addition, we may encounter delays or rejections based upon changes in regulatory policy for device approval
during the period of product development and regulatory review of each submitted new device application. Moreover, regulatory
approval may entail limitations on the indicated uses of the device. Failure to obtain requisite governmental approvals or failure
to obtain approvals of the scope requested will delay or preclude our licensees or marketing partners from marketing our products
or limit the commercial use of such products and will have a material adverse effect on our business, financial condition and
results of operations.
In
addition, some or all of the clinical trials we undertake may not demonstrate sufficient safety and efficacy to obtain the requisite
regulatory approvals, which could prevent or delay the creation of marketable products. Our product development costs will increase
if we have delays in testing or approvals, if we need to perform more, larger or different clinical trials than planned or if
our trials are not successful. Delays in our clinical trials may harm our financial results and the commercial prospects for our
products. Additionally, we may be unable to complete our clinical trials if we are unable to obtain additional capital.
We
may be required to design and conduct additional clinical trials.
We
may be required to design and conduct additional clinical trials to further demonstrate the safety and efficacy of our products,
which may result in significant expense and delay. Regulatory agencies may require new or additional clinical trials because of
inconclusive results from current or earlier clinical trials, a possible failure to conduct clinical trials in complete adherence
to certain regulatory standards, the identification of new clinical trial endpoints, or the need for additional data regarding
the safety or efficacy of our products. It is possible that regulatory authorities may not ultimately approve our products for
commercial sale in any jurisdiction, even if we believe future clinical results are positive.
Significant
additional governmental regulation could subject us to unanticipated delays which would adversely affect our sales and revenues.
Our
business strategy depends in part on our ability to get our products into the market as quickly as possible. Additional laws and
regulations, or changes to existing laws and regulations that are applicable to our business may be enacted or promulgated, and
the interpretation, application or enforcement of the existing laws and regulations may change. We cannot predict the nature of
any future laws, regulations, interpretations, applications or enforcements or the specific effects any of these might have on
our business. Any future laws, regulations, interpretations, applications or enforcements could delay or prevent regulatory approval
or clearance of our products and our ability to market our products. Moreover, changes that result in our failure to comply with
the requirements of applicable laws and regulations could result in the types of enforcement actions by the FDA and/or other agencies
as described above, all of which could impair our ability to have manufactured and to sell the affected products.
Protecting
our intellectual property in our technology through patents may be costly and ineffective. If we are not able to adequately secure
or enforce protection of our intellectual property, then we may not be able to compete effectively and we may not be profitable.
Our
future success depends in part on our ability to protect the intellectual property for our technology through patents. We will
only be able to protect our products and methods from unauthorized use by third parties to the extent that our products and methods
are covered by valid and enforceable patents or are effectively maintained as trade secrets. Our 18 granted U.S. patents will
expire at various times from 2018 to 2027, assuming they are properly maintained.
The
protection provided by our patents, and patent applications if issued, may not be broad enough to prevent competitors from introducing
similar products into the market. Our patents, if challenged or if we attempt to enforce them, may not necessarily be upheld by
the courts of any jurisdiction. Numerous publications may have been disclosed by, and numerous patents may have been issued to,
our competitors and others relating to methods and devices for dialysis of which we are not aware and additional patents relating
to methods and devices for dialysis may be issued to our competitors and others in the future. If any of those publications or
patents conflict with our patent rights, or cover our products, then any or all of our patent applications could be rejected and
any or all of our granted patents could be invalidated, either of which could materially adversely affect our competitive position.
Litigation
and other proceedings relating to patent matters, whether initiated by us or a third party, can be expensive and time-consuming,
regardless of whether the outcome is favorable to us, and may require the diversion of substantial financial, managerial and other
resources. An adverse outcome could subject us to significant liabilities to third parties or require us to cease any related
development, product sales or commercialization activities. In addition, if patents that contain dominating or conflicting claims
have been or are subsequently issued to others and the claims of these patents are ultimately determined to be valid, then we
may be required to obtain licenses under patents of others in order to develop, manufacture, use, import and/or sell our products.
We may not be able to obtain licenses under any of these patents on terms acceptable to us, if at all. If we do not obtain these
licenses, we could encounter delays in, or be prevented entirely from using, importing, developing, manufacturing, offering or
selling any products or practicing any methods, or delivering any services requiring such licenses.
If
we file patent applications or obtain patents in foreign countries, we will be subject to laws and procedures that differ from
those in the United States. Such differences could create additional uncertainty about the level and extent of our patent protection.
Moreover, patent protection in foreign countries may be different from patent protection under U.S. laws and may not be as favorable
to us. Many non-U.S. jurisdictions, for example, prohibit patent claims covering methods of medical treatment of humans, although
this prohibition may not include devices used for such treatment.
If
we are not able to secure and enforce protection of our trade secrets through enforcement
of our confidentiality and non-competition agreements, then our competitors may gain
access to our trade secrets, we may not be able to compete effectively and we may not
be profitable. Such protection may be costly and ineffective.
We
attempt to protect our trade secrets, including the processes, concepts, ideas and documentation associated with our technologies,
through the use of confidentiality agreements and non-competition agreements with our current employees and with other parties
to whom we have divulged such trade secrets. If these employees or other parties breach our confidentiality agreements and non-competition
agreements, or if these agreements are not sufficient to protect our technology or are found to be unenforceable, then our competitors
could acquire and use information that we consider to be our trade secrets and we may not be able to compete effectively. Policing
unauthorized use of our trade secrets is difficult and expensive, particularly because of the global nature of our operations.
The laws of other countries may not adequately protect our trade secrets.
If
we are not able to maintain sufficient quality controls, then the approval or clearance of our products by the European Union,
the FDA or other relevant authorities could be withdrawn, delayed or denied and our sales and revenues will suffer.
Approval
or clearance of our products could be withdrawn, delayed or denied by the European Union, the FDA and the relevant authorities
of other countries if our manufacturing facilities do not comply with their respective manufacturing requirements. The European
Union imposes requirements on quality control systems of manufacturers, which are inspected and certified on a periodic basis
and may be subject to additional unannounced inspections. Failure by our manufacturers to comply with these requirements could
prevent us from marketing our products in the European Community. The FDA also imposes requirements through quality system requirements
regulations, which include requirements for good manufacturing practices. Failure by our manufacturers to comply with these requirements
could prevent us from obtaining FDA approval of our products and from marketing such products in the United States. Although the
manufacturing facilities and processes that we use to manufacture our OLpur MD HDF filter series have been inspected and certified
by a worldwide testing and certification agency (also referred to as a notified body) that performs conformity assessments to
European Union requirements for medical devices, they have not been inspected by the FDA. A “notified body” is a group
accredited and monitored by governmental agencies that inspects manufacturing facilities and quality control systems at regular
intervals and is authorized to carry out unannounced inspections. We cannot be sure that any of the facilities or processes we
use will comply or continue to comply with their respective requirements on a timely basis or at all, which could delay or prevent
our obtaining the approvals we need to market our products in the European Community and the United States.
To
market our products in the European Community, the United States and other countries, where approved, manufacturers of such products
must continue to comply or ensure compliance with the relevant manufacturing requirements. Although we cannot control the manufacturers
of our products, we may need to expend time, resources and effort in product manufacturing and quality control to assist with
their continued compliance with these requirements. If violations of applicable requirements are noted during periodic inspections
of the manufacturing facilities of our manufacturers, then we may not be able to continue to market the products manufactured
in such facilities and our revenues may be materially adversely affected.
We
may face significant risks associated with international operations, which could have a material adverse effect on our business,
financial condition and results of operations.
We
expect to manufacture and to market our products globally. Our international operations are subject to a number of risks, including
the following:
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fluctuations
in exchange rates of the United States dollar could adversely affect our results of operations;
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we
may face difficulties in enforcing and collecting accounts receivable under some countries’ legal systems;
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local
regulations may restrict our ability to sell our products, have our products manufactured or conduct other operations;
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political
instability could disrupt our operations;
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some
governments and customers may have longer payment cycles, with resulting adverse effects on our cash flow; and
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some
countries could impose additional taxes or restrict the import of our products.
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Any
one or more of these factors could increase our costs, reduce our revenues, or disrupt our operations, which could have a material
adverse effect on our business, financial condition and results of operations.
If
we are unable to maintain effective internal control over financial reporting, our ability to produce accurate financial statements
on a timely basis could be impaired and the market price of our securities may be negatively affected.
Section
404 of the Sarbanes-Oxley Act of 2002 requires us to maintain internal control over financial reporting and to report any material
weaknesses in such internal control. A material weakness is a deficiency, or combination of deficiencies, in internal control
over financial reporting, such that there is a reasonable possibility that a material misstatement of annual or interim financial
statements will not be prevented or detected and corrected on a timely basis. We also are required to furnish a report by management
on the effectiveness of our internal control over financial reporting. We perform system and process evaluation and testing of
our internal controls over financial reporting to allow management to prepare and furnish such a report.
In
connection with the preparation of our consolidated financial statements for the year ended December 31, 2014, we discovered that
we had improperly accounted for our warrants as components of equity instead of as derivative liabilities, and our management
and auditors determined that this resulted from a material weakness in internal control over financial reporting. This material
weakness led to the need for the restatement of (i) our audited consolidated financial statements as of and for the years ended
December 31, 2013, 2012, 2011, 2010 and 2009, including the cumulative effect as of January 1, 2009, and (ii) our unaudited condensed
consolidated interim financial statements as of, and for each of the quarterly periods ended, March 31, June 30, and September
30, in the years 2014 and 2013.
While
the above material weakness has been remediated, if we are unable to maintain proper and effective internal control over financial
reporting in the future, we may not be able to produce timely and accurate financial statements. If that were to happen, investors
may lose confidence in the accuracy and completeness of our financial reports, the market price of our securities could decline
and we could be subject to sanctions or investigations by the SEC or other regulatory authorities.
Risks
Related to Our Common Stock
There
currently is a limited trading market for our Common Stock and stockholders may have difficulty in selling our Common Stock.
We
do not currently meet all of the requirements for initial listing of our Common Stock on a registered stock exchange. Our Common
Stock is quoted on the OTCQB. Trading in our Common Stock on the OTCQB has been very limited. As a result, an investor may find
it difficult to dispose of or to obtain accurate quotations as to the market value of our Common Stock, and our Common Stock may
be less attractive for margin loans, for investment by financial institutions, as consideration in future capital raising transactions
or other purposes. There is no guarantee that we will ever become listed on the Nasdaq Capital Market, or any other exchange,
or that a liquid trading market for our Common Stock will develop. If an active public market for our common stock does not develop,
stockholders may not be able to re-sell the common stock that they own and affect the value of their common stock.
Our
Common Stock could be further diluted as a result of the issuance of additional shares of Common Stock, warrants or options.
In
the past we have issued Common Stock and warrants in order to raise money. As discussed elsewhere in this prospectus, we may issue
up to $10,000,000 of our Common Stock to Lincoln Park pursuant to the Purchase Agreement. We have also issued stock options and
restricted stock as compensation for services and incentive compensation for our employees, directors and consultants. We have
shares of Common Stock reserved for issuance upon the exercise of certain of these securities and may increase the shares reserved
for these purposes in the future. Our issuance of additional Common Stock, convertible securities, options and warrants could
affect the rights of our stockholders, could reduce the market price of our Common Stock or could result in adjustments to exercise
prices of outstanding warrants (resulting in these securities becoming exercisable for, as the case may be, a greater number of
shares of our Common Stock), or could obligate us to issue additional shares of Common Stock.
Market
sales of large amounts of our Common Stock, or the potential for those sales even if they do not actually occur, may have the
effect of depressing the market price of our Common Stock, the supply of Common Stock available for resale could be increased
which could stimulate trading activity and cause the market price of our Common Stock to drop, even if our business is doing well.
Furthermore, the issuance of any additional shares of our Common Stock or securities convertible into our Common Stock could be
substantially dilutive to holders of our Common Stock if they do not invest in future offerings.
The
prices at which shares of the Common Stock trade have been and will likely continue to be volatile.
During
the two years ended December 31, 2016, our Common Stock has traded at prices ranging from a high of $0.96 to a low of $0.20 per
share. Due to the lack of an active trading market for our Common Stock, you should expect the prices at which our Common Stock
might trade to continue to be highly volatile. The expected volatile price of our stock will make it difficult to predict the
value of your investment, to sell your shares at a profit at any given time, or to plan purchases and sales in advance. A variety
of other factors might also affect the market price of our Common Stock. These include, but are not limited to:
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achievement
or rejection of regulatory approvals by our competitors or us;
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publicity
regarding actual or potential clinical or regulatory results relating to products under development by our competitors or
us;
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delays
or failures in initiating, completing or analyzing clinical trials or the unsatisfactory design or results of these trials;
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announcements
of technological innovations or new commercial products by our competitors or us;
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developments
concerning proprietary rights, including patents;
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regulatory
developments in the United States and foreign countries;
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economic
or other crises and other external factors;
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period-to-period
fluctuations in our results of operations;
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threatened
or actual litigation;
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changes
in financial estimates by securities analysts; and
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sales
of our Common Stock.
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We
are not able to control many of these factors, and we believe that period-to-period comparisons of our financial results will
not necessarily be indicative of our future performance.
In
addition, the stock market in general, and the market for medical technology companies in particular, has experienced extreme
price and volume fluctuations in recent years that might have been unrelated or disproportionate to the operating performance
of individual companies. These broad market and industry factors might seriously harm the market price of our Common Stock, regardless
of our operating performance. Securities class action litigation has often been instituted against companies following periods
of volatility in the overall market and in the market price of a company’s securities. This litigation, if instituted against
us, could result in very substantial costs, divert our management’s attention and resources and harm our business, operating
results and financial condition.
We
have never paid dividends and do not intend to pay cash dividends.
We
have never paid dividends on our Common Stock and currently do not anticipate paying cash dividends on our Common Stock for the
foreseeable future. Consequently, any returns on an investment in our Common Stock in the foreseeable future will have to come
from an increase in the value of the stock itself. As noted above, the lack of an active trading market for our Common Stock will
make it difficult to value and sell our Common Stock. While our dividend policy will be based on the operating results and capital
needs of our business, it is anticipated that all earnings, if any, will be retained to finance our future operations.
Because
we are subject to the “penny stock” rules, you may have difficulty in selling our Common Stock.
Our
Common Stock is subject to regulations of the SEC relating to the market for penny stocks. Penny stock, as defined by the Penny
Stock Reform Act, is any equity security not traded on a national securities exchange that has a market price of less than $5.00
per share. The penny stock regulations generally require that a disclosure schedule explaining the penny stock market and the
risks associated therewith be delivered to purchasers of penny stocks and impose various sales practice requirements on broker-dealers
who sell penny stocks to persons other than established customers and accredited investors. The broker-dealer must make a suitability
determination for each purchaser and receive the purchaser’s written agreement prior to the sale. In addition, the broker-dealer
must make certain mandated disclosures, including the actual sale or purchase price and actual bid offer quotations, as well as
the compensation to be received by the broker-dealer and certain associated persons. The regulations applicable to penny stocks
may severely affect the market liquidity for your Common Stock and could limit your ability to sell your securities in the secondary
market.
Several
provisions of the Delaware General Corporation Law, our fourth amended and restated certificate of incorporation, as amended,
and our second amended and restated bylaws could discourage, delay or prevent a merger or acquisition, which could adversely affect
the market price of our Common Stock.
Several
provisions of the Delaware General Corporation Law, our fourth amended and restated certificate of incorporation, as amended,
and our second amended and restated bylaws could discourage, delay or prevent a merger or acquisition that stockholders may consider
favorable, and the market price of our Common Stock could be reduced as a result. These provisions include:
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authorizing
our board of directors to issue “blank check” preferred stock without stockholder approval;
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providing
for a classified board of directors with staggered, three-year terms;
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prohibiting
us from engaging in a “business combination” with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became an interested stockholder unless certain provisions are
met;
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prohibiting
cumulative voting in the election of directors;
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limiting
the persons who may call special meetings of stockholders; and
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establishing
advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted
on by stockholders at stockholder meetings.
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As
a smaller reporting company with little or no name recognition and with several risks and uncertainties that could impair our
business operations, we are not likely to generate widespread interest in our Common Stock. Without widespread interest in our
Common Stock, our Common Stock price may be highly volatile and an investment in our Common Stock could decline in value.
Unlike
many companies with publicly traded securities, we have little or no name recognition in the investment community. We are a relatively
new company and very few investors are familiar with either our company or our products. We do not have an active trading market
in our Common Stock, and one might never develop, or if it does develop, might not continue.
Additionally,
the market price of our Common Stock may fluctuate significantly in response to many factors, many of which are beyond our control.
Risks and uncertainties, including those described elsewhere in this “Risk Factors” section could impair our business
operations or otherwise cause our operating results or prospects to be below expectations of investors and market analysts, which
could adversely affect the market price of our Common Stock. As a result, investors in our Common Stock may not be able to resell
their shares at or above their purchase price and could lose all of their investment.
Securities
class action litigation is often brought against public companies following periods of volatility in the market price of such
company’s securities. We may become subject to this type of litigation in the future. Litigation of this type could be extremely
expensive and divert management’s attention and resources from running our company.
Our
directors, executive officers and Lambda Investors LLC) control a significant portion
of our stock and, if they choose to vote together, could have sufficient voting power
to control the vote on substantially all corporate matters.
As
of March 31, 2017, Lambda Investors LLC, our largest stockholder, beneficially owned approximately 56% of our outstanding Common
Stock. As a result of this ownership, Lambda has the ability to exert significant influence over our policies and affairs, including
the election of directors. Lambda, whether acting alone or acting with other stockholders, could have the power to elect all of
our directors and to control the vote on substantially all other corporate matters without the approval of other stockholders.
Furthermore, such concentration of voting power could enable Lambda, whether acting alone or acting with other stockholders, to
delay or prevent another party from taking control of our company even where such change of control transaction might be desirable
to other stockholders. The interests of Lambda in any matter put before the stockholders may differ from those of any other stockholder.
Future
sales of our Common Stock could cause the market price of our Common Stock to decline.
The
market price of our Common Stock could decline due to sales of a large number of shares in the market, including sales of shares
by Lincoln Park, Lambda or any other large stockholder, or the perception that such sales could occur. These sales could also
make it more difficult or impossible for us to sell equity securities in the future at a time and price that we deem appropriate
to raise funds through future offerings of Common Stock. Future sales of our Common Stock by stockholders could depress the market
price of our Common Stock.
Shares
eligible for future sale may adversely affect the market.
From
time to time, certain of our stockholders may be eligible to sell all or some of their shares of Common Stock by means of ordinary
brokerage transactions in the open market pursuant to Rule 144 promulgated under the Securities Act, subject to certain limitations.
In general, pursuant to Rule 144, non-affiliate stockholders may sell freely after holding their shares for six months and affiliates
may sell freely after holding their shares for one year, in each case, subject to current public information, notice and other
requirements. Any substantial sales of our Common Stock pursuant to Rule 144 may have a material adverse effect on the market
price of our Common Stock.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements in this prospectus constitute “forward-looking statements”. Such statements include statements regarding
our intentions with regard to the sale of share to Lincoln Park and the anticipated use of proceeds from such sales, the efficacy
and intended use of our technologies under development, the timelines and strategy for bringing such products to market, the availability
of funding sources for continued development of such products, and our ability to continue as a going concern and other statements
that are not historical facts, including statements which may be preceded by the words “intends,” “may,”
“will,” “plans,” “expects,” “anticipates,” “projects,” “predicts,”
“estimates,” “aims,” “believes,” “hopes,” “potential” or similar words.
Forward-looking statements are not guarantees of future performance, are based on certain assumptions and are subject to various
known and unknown risks and uncertainties, many of which are beyond our control. Actual results may differ materially from the
expectations contained in the forward-looking statements. Factors that may cause such differences include, but are not limited
to, the risks that:
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we
may not be able to continue as a going concern;
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we
face significant challenges in obtaining market acceptance of our products, which could adversely affect our potential sales
and revenues;
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product-related
deaths or serious injuries or product malfunctions could trigger recalls, class action lawsuits and other events that could
cause us to incur expenses and may also limit our ability to generate revenues from such products;
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we
face potential liability associated with the production, marketing and sale of our products and the expense of defending against
claims of product liability could materially deplete our assets and generate negative publicity which could impair our reputation;
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to
the extent our products or marketing materials are found to violate any provisions of the FDCA or any other statutes or regulations
then we could be subject to enforcement actions by the FDA or other governmental agencies;
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we
may not be able to obtain funding if and when needed or on terms favorable to us in order to continue operations;
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we
may not have sufficient capital to successfully implement our business plan;
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we
may not be able to effectively market our products;
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we
may not be able to sell our water filtration products or chronic renal failure therapy products at competitive prices or profitably;
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we
may encounter problems with our suppliers, manufacturers and distributors;
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we
may encounter unanticipated internal control deficiencies or weaknesses or ineffective disclosure controls and procedures;
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we
may not obtain appropriate or necessary regulatory approvals to achieve our business plan;
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products
that appeared promising to us in research or clinical trials may not demonstrate anticipated efficacy, safety or cost savings
in subsequent pre-clinical or clinical trials;
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we
may not be able to secure or enforce adequate legal protection, including patent protection, for our products; and
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we
may not be able to achieve sales growth in key geographic markets.
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More
detailed information about the Company and the risk factors that may affect the realization of forward-looking statements, including
the forward-looking statements in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2016,
is set forth in our filings with the SEC, including our other periodic reports filed with the SEC. We urge investors and security
holders to read those documents free of charge at the SEC’s web site at www.sec.gov. We do not undertake to publicly update
or revise our forward-looking statements as a result of new information, future events or otherwise, except as required by law.
THE
LINCOLN PARK TRANSACTION
The
following description is qualified in its entirety by the terms and conditions of the Purchase Agreement and the Registration
Rights Agreement, which are incorporated by reference into the registration statement of which this prospectus forms a part. The
following description may not contain all the information with respect to the Purchase Agreement and the Registration Rights Agreement
that is important to you. We encourage you to read each of the Purchase Agreement and the Registration Rights Agreement in its
entirety.
On
July 24, 2015, we entered into the Purchase Agreement and the Registration Rights Agreement with Lincoln Park. Pursuant to the
terms of the Purchase Agreement, Lincoln Park has agreed to purchase from us up to $10,000,000 of our common stock (subject to
certain limitations) from time to time over a 36-month period beginning on September 4, 2015. Pursuant to the terms of the Registration
Rights Agreement, we have filed with the SEC the registration statement that includes this prospectus to register for resale under
the Securities Act the shares that have been or may be issued to Lincoln Park under the Purchase Agreement.
Concurrently
with the execution of the Purchase Agreement on July 24, 2015, we issued to Lincoln Park 250,000 shares of our common stock as
a fee for its commitment to purchase shares of our common stock under the Purchase Agreement. During the year ended December 31,
2015, we issued and sold 300,000 shares of common stock to Lincoln Park pursuant to the Purchase Agreement. During January 2017,
we issued and sold an additional 300,000 shares of common stock to Lincoln Park pursuant to the Purchase Agreement.
We
may, from time to time and at our sole discretion, direct Lincoln Park to purchase shares of our common stock in amounts up to
100,000 shares on any single business day so long as at least one business day has passed since the most recent purchase. We can
also accelerate the amount of our common stock to be purchased under certain circumstances to up to 200,000 shares or $500,000
per purchase plus an additional “accelerated amount” under certain circumstances. The purchase price per share is
based on the market price of our common stock immediately preceding the time of sale as computed under the Purchase Agreement
without any fixed discount. Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement.
Purchase
of Shares Under the Purchase Agreement
Under
the Purchase Agreement, on any business day selected by us, we may direct Lincoln Park to purchase up to 100,000 shares of our
common stock on any such business day so long as one business day has passed since the last purchase. On any day that the closing
sale price of our common stock is not below $0.75 the purchase amount may be increased, at our sole discretion, to up to 150,000
shares of our common stock per purchase and on any day that the closing sale price of our common stock is not below $1.00 the
purchase amount may be increased, at our sole discretion, to up to 200,000 shares of our common stock per purchase. Such purchases
are hereinafter referred to as “Regular Purchases”. The purchase price per share for each such Regular Purchase will
be equal to the lower of:
|
●
|
the
lowest sale price for our common stock on the purchase date of such shares; or
|
|
|
|
|
●
|
the
arithmetic average of the three lowest closing sale prices for our common stock during the 12 consecutive business days ending
on the business day immediately preceding the purchase date of such shares.
|
In
addition to Regular Purchases described above, we may also direct Lincoln Park, on any business day on which we have properly
submitted a Regular Purchase notice, and provided that the closing price of our stock is not below $0.75, to purchase an additional
amount of our common stock, which we refer to as an Accelerated Purchase, not to exceed the lesser of:
|
●
|
30%
of the aggregate shares of our common stock traded during normal trading hours on the purchase date; and
|
|
|
|
|
●
|
two
times the number of shares purchased pursuant to the corresponding Regular Purchase.
|
|
|
|
|
|
The
purchase price per share for each such Accelerated Purchase will be equal to the lower of:
|
|
●
|
93% of the volume weighted average price during (i) the entire trading day on the purchase date, if the volume of shares of our common stock traded on the purchase date has not exceeded a volume maximum calculated in accordance with the Purchase Agreement, or (ii) the portion of the trading day of the purchase date (calculated starting at the beginning of normal trading hours) until such time at which the volume of shares of our common stock traded has exceeded such volume maximum; or
|
|
|
|
|
●
|
the closing sale price of our common stock on the purchase date.
|
In
the case of both Regular Purchases and Accelerated Purchases, the purchase price per share will be equitably adjusted for any
reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring during
the business days used to compute the purchase price.
Other
than as set forth above, there are no trading volume requirements or restrictions under the Purchase Agreement, and we will control
the timing and amount of any sales of our common stock to Lincoln Park. However, per the Purchase Agreement, we cannot issue or
sell, and Lincoln Park cannot purchase or acquire, any shares of common stock pursuant to the Purchase Agreement which would result
in Lincoln Park beneficially owning more than 9.99% of our outstanding common stock.
Minimum
Purchase Price
Under
the Purchase Agreement, we have set a floor price of $0.35 per share. Lincoln Park shall not purchase any shares of our common
stock on any day that the closing sale price of our common stock is below the floor price. The floor price will be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction and, effective
upon the consummation of any such event, the floor price will be the lower of (i) the adjusted price and (ii) $1.00.
Events
of Default
Events
of default under the Purchase Agreement include the following:
|
●
|
the
effectiveness of the registration statement of which this prospectus forms a part lapses for any reason (including, without
limitation, the issuance of a stop order), or any required prospectus supplement and accompanying prospectus are unavailable
for the resale by Lincoln Park of our common stock offered hereby, and such lapse or unavailability continues for a period
of 10 consecutive business days or for more than an aggregate of 30 business days in any 365-day period;
|
|
|
|
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●
|
suspension
by our principal market of our common stock from trading for a period of three consecutive business days;
|
|
|
|
|
●
|
the
de-listing of our common stock from our principal market, provided our common stock is not immediately thereafter trading
on the New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Global Select Market, the NASDAQ Capital Market, the
NYSE MKT, the NYSE Arca, the OTC Bulletin Board or the OTCQX operating by the OTC Markets Group, Inc. (or nationally recognized
successor thereto);
|
|
|
|
|
●
|
the
transfer agent’s failure for three business days to issue to Lincoln Park shares of our common stock which Lincoln Park
is entitled to receive under the Purchase Agreement;
|
|
|
|
|
●
|
any
breach of the representations or warranties or covenants contained in the Purchase Agreement or any related agreement which
has or which could have a material adverse effect on us subject to a cure period of five business days;
|
|
|
|
|
●
|
any
voluntary or involuntary participation or threatened participation in insolvency or bankruptcy proceedings by or against us;
or
|
|
|
|
|
●
|
if
at any time we are not eligible to transfer our common stock electronically or a material adverse change in our business,
financial condition, operations or prospects has occurred.
|
Lincoln
Park does not have the right to terminate the Purchase Agreement upon any of the events of default set forth above. During an
event of default, all of which are outside of Lincoln Park’s control, we cannot submit any Regular Purchase notice or Accelerated
Purchase notice to Lincoln Park under the Purchase Agreement.
Our
Termination Rights
We
have the unconditional right, at any time, for any reason and without any payment or liability to us, to give notice to Lincoln
Park to terminate the Purchase Agreement. In the event of bankruptcy proceedings by or against us, the Purchase Agreement will
automatically terminate without action of any party.
No
Short-Selling or Hedging by Lincoln Park
Lincoln
Park has agreed that neither it nor any of its affiliates shall engage in any direct or indirect short-selling or hedging of our
common stock during any time prior to the termination of the Purchase Agreement.
Effect
of Performance of the Purchase Agreement on Our Stockholders
All
5,150,000 shares registered in this offering which have been or may be sold by us to Lincoln Park under the Purchase Agreement
are expected to be freely tradable. It is anticipated that shares registered in this offering will be sold over a period of up
to 36 months commencing on September 4, 2015. The sale by Lincoln Park of a significant amount of shares registered in this offering
at any given time could cause the market price of our common stock to decline and to be highly volatile. Except with respect to
the 850,000 shares of common stock already issued to Lincoln Park pursuant to the Purchase Agreement, Lincoln Park may ultimately
purchase all, some or none of the 5,150,000 shares of common stock registered in this offering. If we sell these shares to Lincoln
Park, Lincoln Park may sell all, some or none of such shares. Therefore, sales to Lincoln Park by us under the Purchase Agreement
may result in substantial dilution to the interests of other holders of our common stock. In addition, if we sell a substantial
number of shares to Lincoln Park under the Purchase Agreement, or if investors expect that we will do so, the actual sales of
shares or the mere existence of our arrangement with Lincoln Park may make it more difficult for us to sell equity or equity-related
securities in the future at a time and at a price that we might otherwise wish to effect such sales.
However,
we have the right to control the timing and amount of any sales of our shares to Lincoln Park and the Purchase Agreement may be
terminated by us at any time at our discretion without any cost to us.
Pursuant
to the terms of the Purchase Agreement, we have the right, but not the obligation, to direct Lincoln Park to purchase up to $10,000,000
of our common stock, exclusive of the 250,000 shares issued to Lincoln Park as a commitment fee (which 250,000 shares are part
of this offering). During the year ended December 31, 2015, we issued and sold 300,000 shares to Lincoln Park pursuant to the
Purchase Agreement, and during January 2017, we issued and sold an additional 300,000 shares to Lincoln Park pursuant to the Purchase
Agreement. The number of shares ultimately offered for resale by Lincoln Park under this prospectus is dependent upon the number
of shares we direct Lincoln Park to purchase under the Purchase Agreement.
The
following table sets forth the amount of additional gross proceeds we would receive from Lincoln Park from our sale of shares
to Lincoln Park under the Purchase Agreement at varying purchase prices:
Assumed
Average
Purchase
Price Per Share
|
|
|
Number
of Additional
Registered Shares to be
Issued if Full Purchase (1)(2)
|
|
|
Percentage
of Outstanding
Shares After Giving Effect
to the Issuance to Lincoln
Park (3)
|
|
|
Proceeds
from the Sale of
Shares to Lincoln Park
Under the $10M Purchase
Agreement
|
|
$
|
0.35
|
(4)
|
|
|
4,300,000
|
|
|
|
8.4
|
%
|
|
$
|
1,505,000
|
|
$
|
0.50
|
|
|
|
4,300,000
|
|
|
|
8.4
|
%
|
|
$
|
2,150,000
|
|
$
|
0.75
|
|
|
|
4,300,000
|
|
|
|
8.4
|
%
|
|
$
|
3,225,000
|
|
$
|
1.00
|
|
|
|
4,300,000
|
|
|
|
8.4
|
%
|
|
$
|
4,300,000
|
|
$
|
1.50
|
|
|
|
4,300,000
|
|
|
|
8.4
|
%
|
|
$
|
6,450,000
|
|
(1)
|
Although
the Purchase Agreement provides that we may sell up to $10,000,000 of our common stock to Lincoln Park, we are only registering
5,150,000 shares under this prospectus, which may or may not cover all the shares we ultimately sell to Lincoln Park under
the Purchase Agreement, depending on the purchase price per share. As a result, we have included in this column only those
shares that we are registering in this offering.
|
|
|
(2)
|
The
number of registered shares to be issued excludes the 250,000 commitment shares because no proceeds will be attributable to
such commitment shares. Also excludes the 300,000 shares of common stock issued and sold to Lincoln Park during the year ended
December 31, 2015 pursuant to the Purchase Agreement and the 300,000 shares of common stock issued and sold to Lincoln Park
during January 2017 pursuant to the Purchase Agreement.
|
|
|
(3)
|
The
denominator is based on 54,160,548 shares outstanding as of March 31, 2017, adjusted to include the number of shares set forth
in the adjacent column which we would have sold to Lincoln Park at the applicable assumed average purchase price per share.
The numerator does not include the 250,000 shares issued to Lincoln Park as commitment shares in connection with this offering,
but does include the aggregate 600,000 shares of common stock issued and sold to Lincoln Park during the year ended December
31, 2015 and during January 2017 pursuant to the Purchase Agreement, and is based on the number of shares registered in this
offering to be issued under the Purchase Agreement at the applicable assumed purchase price per share set forth in the adjacent
column. Per the Purchase Agreement, we cannot issue or sell, and Lincoln Park cannot purchase or acquire, any shares of common
stock pursuant to the Purchase Agreement which would result in Lincoln Park beneficially owning more than 9.99% of our outstanding
common stock.
|
|
|
(4)
|
Under
the Purchase Agreement, we may not sell and Lincoln Park may not purchase any shares on a day in which the closing sale price
of our common stock is below $0.35, as may be adjusted in accordance with the Purchase Agreement.
|
USE
OF PROCEEDS
This
prospectus relates to shares of our common stock that may be offered and sold from time to time by Lincoln Park. We will receive
no proceeds from the sale of shares of common stock by Lincoln Park in this offering. However, we may receive gross proceeds of
up to $10,000,000 under the Purchase Agreement. As of March 31, 2017, we have received gross proceeds of $248,610 under the Purchase
Agreement. We estimate that the total net proceeds to us from the sale of our common stock to Lincoln Park pursuant to the Purchase
Agreement will be up to $9,940,000 over an approximately 36-month period, assuming that we sell the full amount of our common
stock that we have the right, but not the obligation, to sell to Lincoln Park under the Purchase Agreement and taking into account
other estimated fees and expenses. If we elect to issue and sell more than the 5,150,000 shares offered under this prospectus
to Lincoln Park, which we have the right, but not the obligation, to do, we must first register for resale under the Securities
Act any such additional shares, which could cause additional substantial dilution to our stockholders and may involve additional
fees and expenses not currently estimable. See “Plan of Distribution” elsewhere in this prospectus for more information.
We
have used, and expect to use, any proceeds that we receive under the Purchase Agreement to fund sales and marketing activities,
and for general corporate purposes. The amounts and timing of our actual expenditures will depend on numerous factors, including
our revenue from filter sales, and the amount of proceeds actually raised from sales under the Purchase Agreement. Accordingly,
our management will have significant flexibility in applying any net proceeds that we receive pursuant to the Purchase Agreement.
SELLING
STOCKHOLDER
This
prospectus relates to the possible resale by the selling stockholder, Lincoln Park, of shares of common stock that have been or
may be issued to Lincoln Park pursuant to the Purchase Agreement, as described in greater detail below. We are filing the registration
statement of which this prospectus forms a part pursuant to the provisions of the Registration Rights Agreement, which we entered
into with Lincoln Park on July 24, 2015 concurrently with our execution of the Purchase Agreement, in which we agreed to provide
certain registration rights with respect to sales by Lincoln Park of the shares of our common stock that have been or may be issued
to Lincoln Park under the Purchase Agreement.
Lincoln
Park, as the selling stockholder, may, from time to time, offer and sell pursuant to this prospectus any or all of the shares
that we have sold or may sell to Lincoln Park under the Purchase Agreement. The selling stockholder may sell some, all or none
of its shares. We do not know how long the selling stockholder will hold the shares before selling them, and we currently have
no agreements, arrangements or understandings with the selling stockholder regarding the sale of any of the shares.
The
following table presents information regarding the selling stockholder and the shares that it may offer and sell from time to
time under this prospectus. The table is prepared based on information supplied to us by the selling stockholder, and reflects
its holdings as of March 31, 2017. Neither Lincoln Park nor any of its affiliates has held a position or office, or had any other
material relationship, with us or any of our predecessors or affiliates. Beneficial ownership is determined in accordance with
Rule 13d-3(d) promulgated by the SEC under the Exchange Act. The percentage of shares beneficially owned prior to the offering
is based on 54,160,548 shares of our common stock actually outstanding as of March 31, 2017.
Selling
Stockholder
|
|
Shares
Beneficially
Owned Before this
Offering
|
|
|
Percentage
of
Outstanding
Shares
Beneficially
Owned Before this
Offering
|
|
|
Shares
to be Sold
in this Offering
Assuming The
Company issues
the Maximum
Number of Shares
Under the
Purchase
Agreement
|
|
|
Percentage
of
Outstanding
Shares
Beneficially
Owned After this
Offering
|
|
Lincoln Park Capital Fund,
LLC (1)
|
|
|
1,805,454
|
(2)
|
|
|
3.3
|
%
(3)
|
|
|
5,150,000
|
(4)
|
|
|
*
|
|
*
denotes less than 1%
(1)
|
Josh
Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC, are deemed to be beneficial owners of all
of the shares of common stock owned by Lincoln Park Capital Fund, LLC. Messrs. Cope and Scheinfeld have shared voting and
investment power over the shares being offered under the prospectus filed with the SEC in connection with the transactions
contemplated under the Purchase Agreement. Lincoln Park Capital, LLC is not a licensed broker dealer or an affiliate of a
licensed broker dealer.
|
|
|
(2)
|
Represents
(i) 930,454 shares of our common stock held by Lincoln Park, and (ii) warrants to purchase 875,000 shares of our common stock
held by Lincoln Park. The registration statement that includes this prospectus does not cover 150,000 shares of common stock
held by Lincoln Park prior to July 24, 2015, 800,000 shares of common stock purchased by Lincoln Park in March 2017, or the
875,000 shares of common stock that may be issued upon exercise of the warrants. See the description under the heading “The
Lincoln Park Transaction” for more information about the Purchase Agreement.
|
|
|
(3)
|
Based
on 54,160,548 outstanding shares of our common stock as of March 31, 2017. Although we may at our discretion elect to issue
to Lincoln Park up to an aggregate amount of $10,000,000 of our common stock under the Purchase Agreement, other than the
aggregate 600,000 shares issued and sold to Lincoln Park pursuant to the Purchase Agreement during the year ended December
31, 2015 and during January 2017, such shares are not included in determining the percentage of shares beneficially owned
before this offering.
|
|
|
(4)
|
Represents
(i) 250,000 shares of our common stock issued to Lincoln Park on July 24, 2015 as a fee for its commitment to purchase shares
of our common stock under the Purchase Agreement, (ii) an aggregate 600,000 shares issued and sold to Lincoln Park pursuant
to the Purchase Agreement during the year ended December 31, 2015 and during January 2017, and (iii) 4,300,000 additional
shares that we may sell to Lincoln Park pursuant to the Purchase Agreement. If we elect to issue and sell more than the 5,150,000
shares offered under this prospectus to Lincoln Park, which we have the right, but not the obligation, to do, we must first
register for resale under the Securities Act any such additional shares, which could cause additional substantial dilution
to our stockholders.
|
PLAN
OF DISTRIBUTION
The
common stock offered by this prospectus is being offered by the selling stockholder, Lincoln Park. The common stock may be sold
or distributed from time to time by the selling stockholder directly to one or more purchasers or through brokers, dealers, or
underwriters who may act solely as agents at market prices prevailing at the time of sale, at prices related to the prevailing
market prices, at negotiated prices, or at fixed prices, which may be changed. The sale of the common stock offered by this prospectus
could be effected in one or more of the following methods:
|
●
|
ordinary
brokers’ transactions;
|
|
|
|
|
●
|
transactions
involving cross or block trades;
|
|
|
|
|
●
|
through
brokers, dealers, or underwriters who may act solely as agents;
|
|
|
|
|
●
|
“at
the market” into an existing market for the common stock;
|
|
|
|
|
●
|
in
other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected
through agents;
|
|
|
|
|
●
|
in
privately negotiated transactions; or
|
|
|
|
|
●
|
any
combination of the foregoing.
|
In
order to comply with the securities laws of certain states, if applicable, the shares may be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the shares may not be sold unless they have been registered or qualified for
sale in the state or an exemption from the state’s registration or qualification requirement is available and complied with.
Lincoln
Park is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act.
Lincoln
Park has informed us that it intends to use an unaffiliated broker-dealer to effectuate all sales, if any, of the common stock
that it may purchase from us pursuant to the Purchase Agreement. Such sales will be made at prices and at terms then prevailing
or at prices related to the then current market price. Each such unaffiliated broker-dealer will be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has informed us that each such broker-dealer will receive commissions
from Lincoln Park that will not exceed customary brokerage commissions. In compliance with the guidelines of the Financial Industry
Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus.
Brokers,
dealers, underwriters or agents participating in the distribution of the shares as agents may receive compensation in the form
of commissions, discounts, or concessions from the selling stockholder and/or purchasers of the common stock for whom the broker-dealers
may act as agent. The compensation paid to a particular broker-dealer may be less than or in excess of customary commissions.
Neither we nor Lincoln Park can presently estimate the amount of compensation that any agent will receive.
We
know of no existing arrangements between Lincoln Park or any other stockholder, broker, dealer, underwriter or agent relating
to the sale or distribution of the shares offered by this prospectus. At the time a particular offer of shares is made, a prospectus
supplement, if required, will be distributed that will set forth the names of any agents, underwriters or dealers and any compensation
from the selling stockholder, and any other required information.
We
will pay the expenses incident to the registration, offering, and sale of the shares to Lincoln Park. We have agreed to indemnify
Lincoln Park and certain other persons against certain liabilities in connection with the offering of shares of common stock offered
hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts required
to be paid in respect of such liabilities. Lincoln Park has agreed to indemnify us against liabilities under the Securities Act
that may arise from certain written information furnished to us by Lincoln Park specifically for use in this prospectus or, if
such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
Lincoln
Park has represented to us that at no time prior to the Purchase Agreement has Lincoln Park or its agents, representatives or
affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any short sale (as such term is defined in
Rule 200 of Regulation SHO of the Exchange Act) of our common stock or any hedging transaction, which establishes a net short
position with respect to our common stock. Lincoln Park agreed that during the term of the Purchase Agreement, it, its agents,
representatives or affiliates will not enter into or effect, directly or indirectly, any of the foregoing transactions.
We
have advised Lincoln Park that it is required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions,
Regulation M precludes the selling stockholder, any affiliated purchasers, and any broker-dealer or other person who participates
in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which
is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases
made in order to stabilize the price of a security in connection with the distribution of that security. All of the foregoing
may affect the marketability of the securities offered by this prospectus.
This
offering will terminate on the date that all shares offered by this prospectus have been sold by Lincoln Park.
Our
common stock is quoted on the OTCQB under the symbol “NEPH”.
DIVIDEND
POLICY
We
have neither paid nor declared dividends on our common stock since our inception. We do not anticipate paying any dividends on
our common stock in the foreseeable future. We expect to retain future earnings, if any, for use in our development activities
and the operation of our business. The payment of any future dividends will be subject to the discretion of our board of directors
and will depend, among other things, upon our results of operations, financial condition, cash requirements, prospects and other
factors that our board of directors may deem relevant. Additionally, our ability to pay future dividends may be restricted by
the terms of any debt financing, tax considerations and applicable law.
MARKET
FOR OUR COMMON STOCK
Our
common stock is quoted on the OTCQB Marketplace operated by the OTC Markets Group, Inc., or OTCQB, under the symbol “NEPH.”
The following table sets forth the high and low bid and ask prices for our common stock as reported on the OTCQB for each quarter
listed. Such over the counter market quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and
may not necessarily represent actual transactions.
Quarter
Ended
|
|
High
|
|
|
Low
|
|
March 31, 2015
|
|
$
|
0.96
|
|
|
$
|
0.50
|
|
June 30, 2015
|
|
$
|
0.80
|
|
|
$
|
0.49
|
|
September 30, 2015
|
|
$
|
0.77
|
|
|
$
|
0.37
|
|
December 31, 2015
|
|
$
|
0.43
|
|
|
$
|
0.20
|
|
March 31, 2016
|
|
$
|
0.40
|
|
|
$
|
0.22
|
|
June 30, 2016
|
|
$
|
0.57
|
|
|
$
|
0.24
|
|
September 30, 2016
|
|
$
|
0.60
|
|
|
$
|
0.25
|
|
December 31, 2016
|
|
$
|
0.45
|
|
|
$
|
0.26
|
|
March 31, 2017
|
|
$
|
0.60
|
|
|
$
|
0.31
|
|
As
of March 17, 2017, there were approximately 64 holders of record and approximately 2,650 beneficial holders of our common stock.
On
April 13, 2017, the last reported sale price of our common stock on the OTCQB was $.38 per share.
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The
following discussion includes forward-looking statements about our business, financial condition, and results of operations, including
discussions about management’s expectations for our business. These statements represent projections, beliefs and expectations
based on current circumstances and conditions and in light of recent events and trends, and you should not construe these statements
either as assurances of performances or as promises of a given course of action. Instead, various known and unknown factors are
likely to cause our actual performance and management’s actions to vary, and the results of these variances may be both
material and adverse. A list of the known material factors that may cause our results to vary, or may cause management to deviate
from its current plans and expectations, is included herein under “Risk Factors” and Item 1A “Risk Factors”
of our Annual Report on Form 10-K for the year ended December 31, 2016. The following discussion should also be read in conjunction
with the consolidated financial statements and notes included herein.
Business
Overview
Nephros
is a commercial stage medical device and commercial products company that develops and sells high performance liquid purification
filters and hemodiafiltration (“HDF”) systems. Our filters, which are generally classified as ultrafilters, are primarily
used in dialysis centers for the removal of biological contaminants from water and bicarbonate concentrate, and used in hospitals
for the prevention of infection from water borne pathogens, such as legionella and pseudomonas. Because our ultrafilters capture
contaminants as small as 0.005 microns in size, they minimize exposure to a wide variety of bacteria, viruses, fungi, parasites
and endotoxins.
Our
ultrafilters OLpūr H2H Hemodiafiltration System, used in conjunction with a standard hemodialysis machine, is the only FDA
510(k) cleared medical device that enables nephrologists to provide hemodiafiltration treatment to patient with end stage renal
disease (“ESRD”). Additionally, we sell hemodiafilters, which serve the same purpose as dialyzers in an HD treatment,
and other disposables used in the hemodiafiltration treatment process.
We
were founded in 1997 by healthcare professionals affiliated with Columbia University Medical Center/New York-Presbyterian Hospital
to develop and commercialize an alternative method to hemodialysis (“HD”). We have extended our filtration technologies
to meet the demand for liquid purification in other areas, in particular water purification.
The
following trends, events and uncertainties may have a material impact on our potential sales, revenue and income from operations:
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the
market acceptance of our products in the United States and of our technologies and products in each of our target markets;
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our
ability to effectively and efficiently manufacture, market and distribute our products;
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our
ability to sell our products at competitive prices which exceed our per unit costs;
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the
consolidation of dialysis clinics into larger clinical groups; and
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the
current U.S. healthcare plan is to bundle reimbursement for dialysis treatment which may force dialysis clinics to change
therapies due to financial reasons.
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To
the extent we are unable to succeed in accomplishing the foregoing, our sales could be lower than expected and dramatically impair
our ability to generate income from operations.
Recent
Accounting Pronouncements
In
May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”)
2014-09, “Revenue from Contracts with Customers,” related to revenue recognition. The underlying principle of the
new standard is that a business or other organization will recognize revenue to depict the transfer of promised goods or services
to customers in an amount that reflects what it expects to be entitled to in exchange for the goods or services. The standard
also requires more detailed disclosures and provides additional guidance for transactions that were not addressed completely in
prior accounting guidance. ASU 2014-09 provides alternative methods of initial adoption, and was effective for fiscal years beginning
after December 15, 2016, and interim periods within those annual periods. Early adoption was not permitted. In August, 2015, the
FASB issued ASU No. 2015-14, “Revenue from Contracts with Customers: Deferral of the Effective Date”. The amendment
in this ASU defers the effective date of ASU No. 2014-09 for all entities for one year. Public business entities, certain not-for-profit
entities, and certain employee benefit plans should apply the guidance in ASU 2014-09 to fiscal years beginning after December
15, 2017, including interim reporting periods within that fiscal year. Earlier application is permitted only as of fiscal years
beginning after December 31, 2016, including interim reporting periods with that fiscal year. We are currently reviewing the revised
guidance and assessing the potential impact on our consolidated financial statements.
In
July 2015, the FASB issued ASU No. 2015-11, “Simplifying the Measurement of Inventory,” that requires inventory be
measured at the lower of cost and net realizable value and options that currently exist for market value be eliminated. The standard
defines net realizable value as estimated selling prices in the ordinary course of business, less reasonably predictable costs
of completion, disposal, and transportation and is effective for fiscal years beginning after December 15, 2016 and interim periods
within those fiscal years with early adoption permitted. The guidance should be applied prospectively. We do not believe that
the adoption of ASU 2015-11 will have a significant impact on our consolidated financial statements.
In
November 2015, the FASB issued ASU No. 2015-17, “Balance Sheet Classification of Deferred Taxes,” that requires that
deferred tax liabilities and assets be classified as noncurrent in a classified statement of financial position. The current requirement
that deferred tax liabilities and assets of a tax-paying component of an entity be offset and presented as a single amount is
not affected by this amendment. The new guidance is effective for fiscal years, and interim periods within those years, beginning
after December 15, 2016. Early adoption is permitted and the standard may be applied either retrospectively or on a prospective
basis to all deferred tax assets and liabilities. We do not believe that the adoption of ASU 2015-17 will have a significant impact
on our consolidated financial statements.
In
January 2016, the FASB issued ASU No. 2016-01, “Recognition and Measurement of Financial Assets and Financial Liabilities,”
that modifies certain aspects of the recognition, measurement, presentation, and disclosure of financial instruments. The accounting
standard update is effective for fiscal years, and interim periods within those years, beginning after December 15, 2017, and
early adoption is permitted. We are currently assessing the impact that adopting this new accounting guidance will have on our
consolidated financial statements.
In
February 2016, the FASB issued ASU No. 2016-02, “Leases”, that discusses how an entity should account for lease assets
and lease liabilities. The guidance specifies that an entity who is a lessee under lease agreements should recognize lease assets
and lease liabilities for those leases classified as operating leases under previous FASB guidance. Accounting for leases by lessors
is largely unchanged under the new guidance. The guidance is effective for us beginning in the first quarter of 2019. Early adoption
is permitted. In transition, lessees and lessors are required to recognize and measure leases at the beginning of the earliest
period presented using a modified retrospective approach. We are evaluating the impact of adopting this guidance on our consolidated
financial statements.
In
March 2016, the FASB issued ASU 2016-08, “Principal versus Agent Considerations (Reporting Revenue Gross versus Net),”
which clarifies the implementation guidance on principal versus agent considerations. The amendments in this update do not change
the core principle of ASU 2014-09. The effective date and transition requirements for the amendments in this update are the same
as the effective date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14 defers the effective date of
ASU 2014-09 by one year. We are currently assessing the impact that adopting this new accounting guidance will have on our consolidated
financial statements.
In
March 2016, the FASB issued ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting,” which simplifies
several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification
of awards as either equity or liabilities, and classification on the statement of cash flows. The guidance is effective for us
beginning in the first quarter of fiscal year 2017. Early adoption is permitted. We are evaluating the impact of adopting this
guidance on our consolidated financial statements.
In
April 2016, the FASB issued ASU 2016-10, “Identifying Performance Obligations and Licensing,” which clarifies the
implementation guidance for performance obligations and licensing. The amendments in this update do not change the core principle
of ASU 2014-09. The effective date and transition requirements for the amendments in this update are the same as the effective
date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14 defers the effective date of ASU 2014-09 by one
year. We are currently assessing the impact that adopting this new accounting guidance will have on our consolidated financial
statements.
In
May 2016, the FASB issued ASU 2016-12, “Narrow Scope Improvements and Practical Expedients,” which clarifies the accounting
for certain aspects of guidance issued in ASU 2014-09, including assessing collectability and noncash consideration. The clarifications
in this update do not change the core principle of ASU 2014-09. The effective date and transition requirements for the amendments
in this update are the same as the effective date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14
defers the effective date of ASU 2014-09 by one year. We are currently assessing the impact that adopting this new accounting
guidance will have on our consolidated financial statements.
In
June 2016, the FASB issued ASU 2016-13, “Measurement of Credit Losses on Financial Instruments,” which replaces the
incurred loss impairment methodology in current GAAP with a methodology that reflects expected credit losses and requires consideration
of a broader range of reasonable and supportable information to inform credit loss estimates. The guidance is effective for us
beginning in the first quarter of fiscal year 2020. Early adoption is permitted beginning in the first quarter of fiscal year
2019. We are evaluating the impact of adopting this guidance on our consolidated financial statements.
In
August 2016, the FASB issued ASU 2016-15, “Classification of Certain Cash Receipts and Cash Payments,” which clarifies
how certain cash receipts and cash payments are presented and classified in the statement of cash flows in order to reduce diversity
in practice. The guidance is effective for us beginning in the first quarter of fiscal year 2018. Early adoption is permitted.
We are evaluating the impact of adopting this guidance on our consolidated financial statements.
In
November 2016, the FASB issued ASU 2016-17, “Restricted Cash,” which clarifies how restricted cash is presented and
classified in the statement of cash flows. The guidance is effective for us beginning in the first quarter of fiscal year 2018.
Early adoption is permitted. We are evaluating the impact of adopting this guidance on our consolidated financial statements.
In
January 2017, the FASB issued ASU 2017-01, “Clarifying the Definition of a Business,” which clarifies the definition
of a business in a business combination. The guidance is effective for us beginning in the first quarter of fiscal year 2018.
Early adoption is permitted. We are evaluating the impact of adopting this guidance on our consolidated financial statements.
In
January 2017, the FASB issued ASU 2017-04, “Simplifying the Test for Goodwill Impairment,” which simplifies the test
for goodwill impairment. The guidance is effective for us beginning in the first quarter of fiscal year 2020. Early adoption is
permitted for interim or annual goodwill impairments tests after January 1, 2017. We are evaluating the impact of adopting this
guidance on our consolidated financial statements.
Going
Concern
Our
independent registered public accounting firm has included an explanatory paragraph in their report on our consolidated financial
statements included in this prospectus which expressed doubt as to our ability to continue as a going concern. The accompanying
consolidated financial statements have been prepared assuming that we will continue as a going concern. However, there can be
no assurance that we will be able to do so. Our recurring operating losses and difficulty in generating sufficient cash flow to
meet our obligations and sustain our operations raise substantial doubt about our ability to continue as a going concern, and
our consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Critical
Accounting Policies and Estimates
Our
discussion and analysis of our financial condition and results of operations are based on our consolidated financial statements,
which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of
financial statements in accordance with generally accepted accounting principles in the United States requires application of
management’s subjective judgments, often requiring the need to make estimates about the effect of matters that are inherently
uncertain and may change in subsequent periods. Our actual results may differ substantially from these estimates under different
assumptions or conditions. While our significant accounting policies are described in more detail in the notes to consolidated
financial statements included in this prospectus, we believe that the following accounting policies require the application of
significant judgments and estimates.
Revenue
Recognition
Revenue
is recognized in accordance with Accounting Standards Codification (“ASC”) Topic 605. Four basic criteria must be
met before revenue can be recognized: (i) persuasive evidence that an arrangement exists; (ii) delivery has occurred or services
have been rendered; (iii) the fee is fixed or determinable; and (iv) collectability is reasonably assured.
We
recognize revenue related to product sales when delivery is confirmed by our external logistics provider and the other criteria
of ASC Topic 605 are met. Product revenue is recorded net of returns and allowances. All costs and duties relating to delivery
are absorbed by us. Shipments for all products are currently received directly by our customers.
We
are recognizing the remaining deferred revenue under the Bellco license agreement on a straight line basis over the remaining
eighty-four month expected obligation period which ends on December 31, 2021. Any difference between payments received and recognized
revenue is reported as deferred revenue.
Deferred
revenue on the accompanying December 31, 2016 consolidated balance sheet is approximately $348,000 and is related to the Bellco
license agreement. We have recognized approximately $2,728,000 of revenue related to this license agreement to date and approximately
$69,000 for the year ended December 31, 2016, resulting in $348,000 being deferred over the remainder of the expected obligation
period. We amortize the deferred revenue monthly over the expected obligation period which ends on December 31, 2021. As a result,
expected revenue to be recognized will be approximately $70,000 in each of the next five years.
Stock-Based
Compensation
The
fair value of stock options is recognized as stock-based compensation expense in net income. We calculate employee stock-based
compensation expense in accordance with ASC 718. We account for stock option grants to consultants under the provisions of ASC
505-50, and as such, these stock options are revalued at each reporting period through the vesting period. The fair value of our
stock option awards are estimated using a Black-Scholes option valuation model. This model requires the input of highly subjective
assumptions including expected stock price volatility and the estimated life of each award. In addition, the calculation of compensation
costs requires that we estimate the number of awards that will be forfeited during the vesting period. The fair value of stock-based
awards is amortized over the vesting period of the award. For stock awards that vest based on performance conditions (e.g. achievement
of certain milestones), expense is recognized when it is probable that the condition will be met.
Warrants
We
account for stock warrants as either equity instruments or derivative liabilities depending on the specific terms of the warrant
agreement. Stock warrants that allow for cash settlement or provide for modification of the warrant exercise price under certain
conditions are accounted for as derivative liabilities. We classify derivative warrant liabilities on the balance sheet as a liability,
which is revalued using a binomial options pricing model at each balance sheet date subsequent to the initial issuance. A binomial
options pricing model requires the input of highly subjective assumptions including expected stock price volatility and the estimated
life of each award. The changes in fair value of the derivative warrant liabilities resulting from their remeasurement at each
balance sheet date are recorded in current period earnings.
Accounts
Receivable
We
provide credit terms to our customers in connection with purchases of our products. We periodically review customer account activity
in order to assess the adequacy of the allowances provided for potential collection issues and returns. Factors considered include
economic conditions, each customer’s payment and return history and credit worthiness. Adjustments, if any, are made to
reserve balances following the completion of these reviews to reflect our best estimate of potential losses.
Inventory
Reserves
Our
inventory reserve requirements are based on factors including the products’ expiration date and estimates for the future
sales of the product. If estimated sales levels do not materialize, we will make adjustments to our assumptions for inventory
reserve requirements.
Accrued
Expenses
We
are required to estimate accrued expenses as part of our process of preparing financial statements. This process involves identifying
services which have been performed on our behalf, and the level of service performed and the associated cost incurred for such
service as of each balance sheet date in our consolidated financial statements. Examples of areas in which subjective judgments
may be required include costs associated with services provided by contract organizations for the preclinical development of our
products, the manufacturing of clinical materials, and clinical trials, as well as legal and accounting services provided by professional
organizations. In connection with such service fees, our estimates are most affected by our understanding of the status and timing
of services provided relative to the actual levels of services incurred by such service providers. The majority of our service
providers invoice us monthly in arrears for services performed. In the event that we do not identify certain costs, which have
begun to be incurred, or we under- or over-estimate the level of services performed or the costs of such services, our reported
expenses for such period would be too low or too high. The date on which certain services commence, the level of services performed
on or before a given date and the cost of such services are often determined based on subjective judgments. We make these judgments
based upon the facts and circumstances known to us in accordance with generally accepted accounting principles.
Results
of Operations
Fluctuations
in Operating Results
Our
results of operations have fluctuated significantly from period to period in the past and are likely to continue to do so in the
future. We anticipate that our annual results of operations will be impacted for the foreseeable future by several factors including
the progress and timing of expenditures related to our research and development efforts, marketing expenses related to product
launches, timing of regulatory approval of our various products and market acceptance of our products. Due to these fluctuations,
we believe that the period to period comparisons of our operating results are not a good indication of our future performance.
The
Fiscal Year Ended December 31, 2016 Compared to the Fiscal Year Ended December 31, 2015
Revenues
Total
revenues for the year ended December 31, 2016 were approximately $2,320,000 compared to approximately $1,944,000 for the year
ended December 31, 2015. The increase of approximately $376,000, or 19%, was primarily driven by an increase in the number of
filters sold in 2016 versus in 2015.
Cost
of Goods Sold
Cost
of goods sold was approximately $1,026,000 for the year ended December 31, 2016 compared to approximately $884,000 for the year
ended December 31, 2015. The increase of approximately $142,000, or 16%, in cost of goods sold was primarily related to an increase
in the number of filters sold.
Research
and Development
Research
and development expenses were approximately $1,079,000 and $826,000 for the years ended December 31, 2016 and December 31, 2015,
respectively. This increase of approximately $253,000, or 31%, is primarily due to an increase in full-time research and development
employees.
Depreciation
and Amortization Expense
Depreciation
and amortization expense was approximately $230,000 for the year ended December 31, 2016 compared to approximately $212,000 for
the year ended December 31, 2015, representing an increase of approximately 8% related to equipment expenditures for the year
ended December 31, 2016.
Selling,
General and Administrative Expenses
Selling,
general and administrative expenses were approximately $2,854,000 for the year ended December 31, 2016 compared to approximately
$3,443,000 for the year ended December 31, 2015, representing a decrease of $589,000, or 17%. The decrease was primarily due to
a decrease in legal and auditor expenses of approximately $280,000, a decrease in regulatory expenses of approximately $220,000,
which were incurred in 2015 related to standard operating procedure updates, a decrease in severance expense of approximately
$175,000 incurred in 2015 and a decrease of approximately $120,000 in direct compensation and investor relations expenses. These
decreases were partially offset by an increase in selling, general and administrative personnel of approximately $280,000.
Interest
Expense
The
table below summarizes interest expense for the years ended December 31, 2016 and 2015:
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2016
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2014
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Interest related to unsecured
long-term note payable
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$
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77,000
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$
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-
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Amortization of debt discount –
unsecured long-term note payable
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53,000
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-
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Interest – outstanding payables
due to a vendor
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42,000
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|
|
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41,000
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Other
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-
|
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1,000
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Total interest
expense
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|
$
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172,000
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|
|
$
|
42,000
|
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Interest
Income
Interest
income of approximately $5,000 for the year ended December 31, 2016 is as result of interest income recognized on a lease receivable.
Change
in Fair Value of Warrant Liability
We
classified certain warrants as liabilities at their fair value and adjusted the warrant liability to fair value at each reporting
period. This liability was subject to re-measurement at each balance sheet date until exercised, and any change in fair value
is recognized in our consolidated statement of operations and comprehensive income (loss). The fair value of such warrants issued
was estimated using a binomial options pricing model. The change in fair value of the warrant liability resulted in income of
approximately $2,099,000 for the year ended December 31, 2015. These liability classified warrants were exercised in full on September
29, 2015.
Warrant
Modification Expense
During
the year ended December 31, 2015, the modification of the exercise price of the liability-classified warrants resulted in an increase
in the warrant liability, immediately before exercise, of approximately $1,761,000.
Other
Income/Expense
Other
expense for the year ended December 31, 2016 of approximately $4,000 is related to foreign currency gains of approximately $2,000
and miscellaneous other income of approximately $2,000. Other income of approximately $37,000 for the year ended December 31,
2015 is due to foreign currency gains.
Off-Balance
Sheet Arrangements
We
did not have any off-balance sheet arrangements as of December 31, 2016 or 2015.
Liquidity
and Capital Resources
The
following table summarizes our liquidity and capital resources as of December 31, 2016 and 2015 and is intended to supplement
the more detailed discussion that follows. The amounts stated are expressed in thousands.
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December
31,
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Liquidity
and capital resources
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2016
|
|
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2015
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Cash
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$
|
275
|
|
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$
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1,248
|
|
Other current assets
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|
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989
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|
|
|
1,216
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Working capital
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|
|
369
|
|
|
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1,505
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Stockholders’ equity
|
|
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667
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|
|
|
2,664
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|
Our
future liquidity sources and requirements will depend on many factors, including:
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the
availability of additional financing, through the sale of equity securities or otherwise, on commercially reasonable terms
or at all;
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the
market acceptance of our products, and our ability to effectively and efficiently produce and market our products;
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●
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the
continued progress in, and the costs of, clinical studies and other research and development programs;
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●
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the
costs involved in filing and enforcing patent claims and the status of competitive products; and
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●
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the
cost of litigation, including potential patent litigation and any other actual or threatened litigation.
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We
expect to put our current capital resources to the following uses:
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●
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for
the marketing and sales of our water-filtration products;
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●
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to
pursue business development opportunities with respect to our chronic renal treatment system; and
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●
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for
working capital purposes.
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We
operate under an Investment, Risk Management and Accounting Policy adopted by our board of directors. Such policy limits the types
of instruments or securities in which we may invest our excess funds: U.S. Treasury Securities; Certificates of Deposit issued
by money center banks; Money Funds by money center banks; Repurchase Agreements; and Eurodollar Certificates of Deposit issued
by money center banks. This policy provides that our primary objectives for investments shall be the preservation of principal
and achieving sufficient liquidity to meet our forecasted cash requirements. In addition, provided that such primary objectives
are met, we may seek to achieve the maximum yield available under such constraints.
At
December 31, 2016, we had an accumulated deficit of approximately $120,285,000, and we expect to incur additional operating losses
from operations in the foreseeable future at least until such time, if ever, that we are able to increase product sales or licensing
revenue.
On
June 7, 2016, we received gross proceeds of approximately $1,187,000 in connection with the issuance of unsecured promissory notes
and warrants.
On
December 23, 2015, we received proceeds of approximately $688,000 in connection with our offer to holders of certain warrants
of the opportunity to exercise their warrants at a temporarily reduced cash exercise price. Warrant holders elected to exercise
warrants to purchase an aggregate of 3,442,521 shares of our common stock at the reduced cash exercise price of $0.20 per share,
providing a total of $688,000 in gross proceeds to us. Of the 3,442,521 shares issued, 2,782,577 are held by Lambda. The warrants
that were not exercised pursuant to the offer to exercise remained in effect through the original expiration date, with an exercise
price of $0.40 per share of common stock.
On
September 29, 2015, we entered into a Warrant Amendment and Exercise Agreement (the “Amendment”) with Lambda. Pursuant
to the Amendment, we agreed to reduce the current exercise price of the Class D Warrant issued to Lambda on November 14, 2007
(together with all amendments thereto entered into prior to the Amendment, the “Warrant”) representing the right to
purchase 11,742,100 shares of our common stock by 50%, to $0.15 per share, in exchange for Lambda’s agreement to exercise
such Warrant in its entirety. Upon exercise of the Warrant, we issued 11,742,100 shares of common stock to Lambda and received
approximately $1.76 million in cash proceeds from Lambda. Following such exercise, no Class D Warrants remain outstanding.
On
July 24, 2015, we entered into a purchase agreement, together with a registration rights agreement, with Lincoln Park Capital
Fund, LLC (“Lincoln Park”), an Illinois limited liability company. Under the terms and subject to the conditions of
the purchase agreement, we have the right to sell to and Lincoln Park is obligated to purchase up to $10.0 million in shares of
our common stock, subject to certain limitations, from time to time, over the 36-month period commencing on September 4, 2015.
We may direct Lincoln Park, at our sole discretion and subject to certain conditions, to purchase up to 100,000 shares of common
stock on any business day, provided that at least one business day has passed since the most recent purchase, increasing to up
to 200,000 shares depending upon the closing sale price of the common stock. However, in no event shall these purchases be more
than $500,000. The purchase price of shares of common stock related to the future funding will be based on the prevailing market
prices of such shares at the time of sales, but in no event will shares be sold to Lincoln Park on a day the common stock closing
price is less than the floor price as set forth in the purchase agreement. In addition, we may direct Lincoln Park to purchase
additional amounts as accelerated purchases if on the date of a purchase the closing sale price of the common stock is not below
the threshold price as set forth in the purchase agreement. Our sales of shares of common stock to Lincoln Park under the purchase
agreement are limited to no more than the number of shares that would result in the beneficial ownership by Lincoln Park and its
affiliates, at any single point in time, of more than 9.99% of the then-outstanding shares of the common stock. In connection
with the Purchase Agreement, we issued to Lincoln Park 250,000 shares of common stock for no proceeds. The fair value of the 250,000
shares of common stock issued was approximately $163,000 and was recorded as a commitment fee. Pursuant to the Purchase Agreement,
in year ended December 31, 2015, we issued and sold an additional 300,000 shares of common stock to Lincoln Park at a per share
price of $0.45, resulting in gross proceeds of $135,000.
On
May 18, 2015, we raised gross proceeds of $1.23 million through the private placement of 1,834,299 units of our securities. Each
unit consisted of one share of our common stock and a five-year warrant to purchase one-half of one share of our common stock.
The purchase price for each unit was $0.67. The 917,149 warrants issued are exercisable at a price of $0.85 per share.
On
February 19, 2014, we entered into the First Amendment to License Agreement (the “First Amendment”) with Bellco, which
amends the License Agreement, entered into as of July 1, 2011. Pursuant to the First Amendment, both parties agreed to extend
the term of the License Agreement through December 31, 2021. The First Amendment also expands the Territory covered by the License
Agreement to include Sweden, Denmark, Norway, Finland, Korea, Mexico, Brazil, China and the Netherlands. The First Amendment further
provides new minimum sales targets which, if not satisfied, will, at our discretion, result in conversion of the license to non-exclusive
status. We have agreed to reduce the fixed royalty payment payable to us for the period beginning on January 1, 2015 through and
including December 31, 2021. Beginning on January 1, 2015 through and including December 31, 2021, Bellco will pay us a royalty
based on the number of units of Products sold per year in the Territory as follows: for the first 125,000 units sold in total,
€1.75 (approximately $1.91) per unit; thereafter, €1.25 (approximately $1.36) per unit. In addition, we received a total
of €450,000 (approximately $612,000) in upfront fees in connection with the First Amendment, half of which was received on
February 19, 2014 and the remaining half was received on April 4, 2014. In addition, the First Amendment provides that, in the
event that we pursue a transaction to sell, assign or transfer all right, title and interest to the licensed patents to a third
party, we will provide Bellco with written notice thereof and a right of first offer with respect to the contemplated transaction
for a period of thirty (30) days.
On
April 23, 2012, we entered into a License and Supply Agreement (the “License and Supply Agreement”) with Medica, an
Italy-based medical product manufacturing company, for the marketing and sale of certain filtration products based upon Medica’s
proprietary Medisulfone ultrafiltration technology in conjunction with our filtration products (collectively, the “Filtration
Products”), and to engage in an exclusive supply arrangement for the Filtration Products. Under the License and Supply Agreement,
Medica granted to us an exclusive license, with right of sublicense, to market, promote, distribute, offer for sale and sell the
Filtration Products worldwide, excluding Italy for the first three years, during the term of the License and Supply Agreement.
In addition, we granted to Medica an exclusive license under our intellectual property to make the Filtration Products during
the term of the License and Supply Agreement. In exchange for the rights granted, we agreed to make minimum annual aggregate purchases
from Medica of €300,000 (approximately $400,000), €500,000 (approximately $700,000) and €750,000 (approximately
$1,000,000) for the years 2012, 2013 and 2014, respectively. Our aggregate purchase commitments totaled approximately €1,200,000
(approximately $1,300,000) and €999,000 (approximately $1,119,000) for the years ended December 31, 2016 and 2015, respectively.
For calendar years 2017 through 2022, annual minimum amounts will be mutually agreed upon between Medica and us. We have not yet
formalized an agreed upon minimum purchase level for 2017 with Medica. In exchange for the license, we paid Medica a total of
€1,500,000 (approximately $2,000,000) in three installments: €500,000 (approximately $700,000) on April 23, 2012, €600,000
(approximately $800,000) on February 4, 2013, and €400,000 (approximately $500,000) on May 23, 2013. As part of the agreement,
we have granted to Medica 300,000 options to purchase our common stock which will vest over the first three years of the agreement.
As of September 2013, we have an understanding with Medica whereby we have agreed to pay interest to Medica at a 12% annual rate
calculated on the principal amount of any outstanding invoices that are not paid pursuant to the original payment terms.
As
of the date of this prospectus, we expect that our existing cash balances and projected increase in product sales from the launch
of new products, as well as the approximately $1.2 million raised in a PIPE offering in March 2017, will allow us to fund our
operations at least into 2018, if not longer, depending on the timing and market acceptance of our new products. This assumption
excludes the impact of future cash receipts from recurring operations. Our cash flow currently is not, and historically has not
been, sufficient to meet our obligations and commitments. We must seek and obtain additional financing to fund our operations.
If we cannot raise sufficient capital, in connection with offerings of our common stock or through other means, we will be forced
to curtail our planned activities and operations or cease operations entirely and you will lose all of your investment in us.
There can be no assurance that we could raise sufficient capital on a timely basis or on satisfactory terms or at all.
Net
cash used in operating activities was approximately $2,112,000 for the year ended December 31, 2016 compared to approximately
$3,815,000 for the year ended December 31, 2015. Our net loss was approximately $3,027,000 for the year ended December 31, 2016
compared to a net loss of approximately $3,426,000, excluding the noncash impacts of the change in fair value of the warrant liability
and the warrant modification, for the year ended December 31, 2015, a decrease of approximately $399,000.
The
most significant items contributing to the net decrease of approximately $1,703,000 in cash used in operating activities during
the year ended December 31, 2016 compared to the year ended December 31, 2015 are highlighted below:
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our
inventory decreased by approximately $103,000 during the 2016 period compared to an increase of approximately $405,000 during
the 2015 period as a result of managing inventory levels;
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our
accounts receivable increased by approximately $17,000 during the 2016 period compared to an increase of approximately $302,000
during the 2015 period as a result of timing of receipts;
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our
prepaid expenses and other current assets increased by approximately $10,000 during the 2016 period compared to an increase
of approximately $144,000 during the 2015 period as a result of decreased deposits;
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our
accounts payable decreased approximately $76,000 during the 2016 period compared to a decrease of approximately $176,000 during
the 2015 period as a result of the timing of payments; and
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our
accrued expenses increased approximately $51,000 during the 2016 period compared to an decrease of approximately $69,000 during
the 2015 period as a result of the timing of payments.
|
Net
cash used in investing activities was approximately $45,000 and $13,000 for the years ended December 31, 2016 and 2015, respectively,
as a result of the purchase of property and equipment.
Net
cash provided by financing activities for the year ended December 31, 2016 resulted from net proceeds of approximately $1,187,000
from the issuance of unsecured notes payable and approximately $1,000 of proceeds resulting from the exercise of warrants.
Net
cash provided by financing activities for the year ended December 31, 2015 of approximately $3,791,000 resulted from net proceeds
of approximately $1,340,000 resulting from the issuance of common stock and approximately $2,451,000 of proceeds resulting from
the exercise of warrants.
Contractual
Obligations and Commercial Commitments
The
following table summarizes our approximate minimum contractual obligations and commercial commitments as of December 31, 2016:
|
|
Payments
Due in Period
|
|
|
|
Total
|
|
|
Within
1 Year
|
|
|
Years
2 - 3
|
|
|
Years
4 - 5
|
|
|
More
than
5 Years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases
1
|
|
$
|
240,000
|
|
|
$
|
116,000
|
|
|
$
|
118,000
|
|
|
$
|
6,000
|
|
|
$
|
-
|
|
Employment Contracts
2
|
|
|
550,000
|
|
|
|
240,000
|
|
|
|
310,000
|
|
|
|
-
|
|
|
|
-
|
|
Total
|
|
$
|
790,000
|
|
|
$
|
356,000
|
|
|
$
|
428,000
|
|
|
$
|
6,000
|
|
|
$
|
-
|
|
1
In
addition to lease obligations for office space, obligations include a lease for various office equipment which expires in 2020.
2
Relates
to employment agreement with Daron Evans, the Company’s President and Chief Executive Officer, entered into on April 15,
2015 for a term of four years.
BUSINESS
Nephros
is a commercial stage medical device and commercial products company that develops and sells high performance liquid purification
filters and hemodiafiltration (“HDF”) systems. Our filters, which are generally classified as ultrafilters, are primarily
used in dialysis centers for the removal of biological contaminants from water and bicarbonate concentrate, and are used in hospitals
for the prevention of infection from water-borne pathogens, such as legionella and pseudomonas. Because our ultrafilters capture
contaminants as small as 0.005 microns in size, they minimize exposure to a wide variety of bacteria, viruses, fungi, parasites
and endotoxins.
Our
OLpūr H2H Hemodiafiltration System, used in conjunction with a standard hemodialysis machine, is the only FDA 510(k) cleared
medical device that enables nephrologists to provide hemodiafiltration treatment to patients with end stage renal disease (“ESRD”).
Additionally, we sell hemodiafilters, which serve the same purpose as dialyzers in an HD treatment, and other disposables used
in the hemodiafiltration treatment process.
We
were founded in 1997 by healthcare professionals affiliated with Columbia University Medical Center/New York-Presbyterian Hospital
to develop and commercialize an alternative method to hemodialysis (“HD”). We have extended our filtration technologies
to meet the demand for liquid purification in other areas, in particular water purification.
Our
Products
Presently,
we have two core product lines: HDF Systems and Ultrafiltration Products
HDF
Systems
The
current standard of care in the United States for patients with chronic renal failure is HD, a process in which toxins are cleared
via diffusion. Patients typically receive HD treatment at least 3 times weekly for 3-4 hours per treatment. HD is most effective
in removing smaller, easily diffusible toxins. For patients with acute renal failure, the current standard of care in the United
States is hemofiltration (“HF”), a process where toxins are cleared via convection. HF offers a much better removal
of larger sized toxins when compared to HD. However, HF treatment is performed on a daily basis, and typically takes 12-24 hours.
Hemodiafiltration
(“HDF”) is an alternative dialysis modality that combines the benefits of HD and HF into a single therapy by clearing
toxins using both diffusion and convection. Though not widely used in the United States, HDF is much more prevalent in Europe
and is performed in a growing number of patients. Clinical experience and literature show the following clinical and patient benefits
of HDF:
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Enhanced
clearance of middle and large molecular weight toxins
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Improved
survival - up to a 35% reduction in mortality risk
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Reduction
in the occurrence of dialysis-related amyloidosis
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Reduction
in inflammation
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Reduction
in medication such as EPO and phosphate binders
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Improved
patient quality of life
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Reduction
in number of hospitalizations and overall length of stay
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However,
like HF, HDF can be resource intensive and can require a significant amount of time to deliver one course of treatment.
We
have developed a modified approach to HDF that we believe is more patient-friendly, is less resource-intensive, and can be used
in conjunction with current HD machines. We refer to our approach as an online mid-dilution hemodiafiltration (“mid-dilution
HDF”) system and it consists of our OLpūr H2H Hemodiafiltration Module (“H2H Module”), our OLpūr MD
220 Hemodiafilter (“HDF Filter”) and our H2H Substitution Filter (“Dialysate Filter”).
The
H2H Module utilizes a standard HD machine to perform on-line hemodiafiltration therapy. The HD machine controls and monitors the
basic treatment functions, as it would normally when providing HD therapy. The H2H Module is a free-standing, movable device that
is placed next to either side of an HD machine. The H2H Module is connected to the clinic’s water supply, drain, and electricity.
The
H2H Module utilizes the HDF Filter and is very similar to a typical hollow fiber dialyzer assembled with a single hollow fiber
bundle made with a high-flux (or high-permeability) membrane. The fiber bundle is separated into two discrete, but serially connected
blood paths. Dialysate flows in one direction that is counter-current to blood flow in Stage 1 and co-current to blood flow in
Stage 2.
In
addition to the HDF Filter, the H2H Module also utilizes a Dialysate Filter during patient treatment. The Dialysate Filter is
a hollow fiber, ultrafilter device that consists of two sequential (redundant) ultrafiltration stages in a single housing. During
on-line HDF with the H2H Module, fresh dialysate is redirected by the H2H Module’s hydraulic (substitution) pump and passed
through this dual-stage ultrafilter before being infused as substitution fluid into the extracorporeal circuit. Providing ultrapure
dialysate is crucial for the success of on-line HDF treatment.
Our
HDF System is cleared by the FDA to market for use with an ultrafiltration controlled hemodialysis machine that provides ultrapure
dialysate in accordance with current ANSI/AAMI/ISO standards, for the treatment of patients with chronic renal failure in the
United States. Our on-line mid-dilution HDF system is the only on-line mid-dilution HDF system of its kind to be cleared by the
FDA to date.
In
May 2014, DaVita Healthcare Partners initiated an evaluation of our HDF System to treat patients at DaVita’s North Colorado
Springs Clinic. In February 2015, we announced that, in the course of the evaluation, DaVita informed Nephros that they would
require additional validation of the system. Nephros and DaVita agreed upon a protocol for the additional validation work which
was completed in March 2015. We do not believe that DaVita will restart the evaluation in the near term.
In
March 2015, we announced that the Renal Research Institute (“RRI”), a research division of Fresenius Medical Care,
was conducting an ongoing evaluation of our hemodiafiltration system in its clinic. As of June 2016, our HDF Systems had performed
over 1,200 patient treatments. Over the last 18 months of commercial use, we have gathered direct feedback from users of our HDF
System to help improve our system and our training methodology. In January 2016, we updated our training procedures and rolled
out a software update, which was focused on improving the system’s alignment with nurse work flow. In June 2016, after approximately
5 months of successfully completed patient treatments with the updated software, we concluded the evaluation project with RRI.
Vanderbilt
University began treating patients with our HDF Systems early in 2017. Our goal over the next 12-18 months is to develop a better
understanding of how our system best fits into the current clinical and economic ESRD treatment paradigm with the ultimate goals
of (a) improving the quality of life for the patient, (b) reducing overall expenditure compared to other dialysis modalities,
(c) minimizing the impact on nurse work flow at the clinic, and (d) demonstrating the pharmacoeconomic benefit of the HDF technology
to the U.S. healthcare system, as has been done in Europe with other HDF systems. In addition, we are in the process of developing
version 2.0 of our HDF System, which will enable us to manufacture at scale, as well as potentially reduce the per treatment cost
of performing HDF.
Ultrafiltration
Products
Our
ultrafiltration products target a number of markets.
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Hospitals
and Other Healthcare Facilities
: Filtration of water to be used for patient washing and drinking as an aid in infection
control. The filters also produce water that is suitable for wound cleansing, cleaning of equipment used in medical procedures
and washing of surgeons’ hands.
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Dialysis
Centers - Water/Bicarbonate
: Filtration of water or bicarbonate concentrate used in hemodialysis devices.
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Military
and Outdoor Recreation
: Individual water purification devices used by soldiers and backpackers to produce drinking water
in the field, as well as filters customized to remote water processing systems.
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Commercial
Facilities
: Filtration of water for washing and drinking including use in ice machines and soda fountains.
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Our
Target Markets
Hospitals
and Other Healthcare Facilities.
According to the American Hospital Association approximately 5,700 hospitals, with approximately
915,000 beds, treated over 35 million patients in the United States in 2013. The U.S. Centers for Disease Control and Prevention
estimates that healthcare associated infections (“HAI”) occurred in approximately 1 out of every 25 hospital patients.
HAIs affect patients in a hospital or other healthcare facility, and are not present or incubating at the time of admission. They
also include infections acquired by patients in the hospital or facility but appearing after discharge, and occupational infections
among staff. Many HAIs are waterborne bacteria and viruses that can thrive in aging or complex plumbing systems often found in
healthcare facilities. The Affordable Care Act, which was passed in March 2010, puts in place comprehensive health insurance reforms
that aim to lower costs and enhance quality of care. With its implementation, healthcare providers have substantial incentives
to deliver better care or be forced to absorb the expenses associated with repeat medical procedures or complications like HAIs.
As a consequence, hospitals and other healthcare facilities are proactively implementing strategies to reduce the potential for
HAIs. Our ultrafilters are designed to aid in infection control in the hospital and healthcare setting by treating facility water
at the point of delivery, for example, from sinks and showers.
On
October 28, 2014, we announced that we received 510(k) clearance from the FDA to market our DSU-H and SSU-H Ultrafilters as medical
devices for use in the hospital setting. The DSU-H and SSU-H Ultrafilters are intended to be used to filter EPA quality drinking
water. The filters retain bacteria, viruses and endotoxin. By providing ultrapure water for patient washing and drinking, the
filters aid in infection control. The filters also produce water that is suitable for wound cleansing, cleaning of equipment used
in medical procedures and washing of a surgeon’s hands. The filters are not intended to provide water that can be used as
a substitute for United States Pharmacopeia (“USP”) sterile water.
In
May 2015, we received a warning letter from the FDA resulting from an October 2014 inspection. In the letter, the FDA alleged
deficiencies relating to our compliance with the quality system regulation and the medical device reporting regulation. The warning
letter did not restrict our ability to manufacture, produce or ship any of our products, nor did it require the withdrawal of
any product from the marketplace. In August 2015, we received a subsequent letter from the FDA noting that it had received our
response correspondence detailing our completed corrective actions. The corrective actions included revisions to our standard
operating procedures relating to purchasing and supplier controls, adverse event reporting, and complaint handling and monitoring.
In February 2016, the FDA performed another on-site inspection. There were no observations, or 483’s, cited at the conclusion
of the inspection. In April 2016, we received a third letter from the FDA noting that the FDA had completed its evaluation of
our corrective actions and that, based on its evaluation, it appeared that we had addressed the deficiencies specified in the
May 2015 warning letter.
In
June 2015, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (“ASHRAE”) approved
Standard 188-2015, “Legionellosis: Risk Management for Building Water Systems”. We believe the approval of ASHRAE
188-2015 (“S188”) as a national standard will have a positive impact on point of delivery filtration market. The S188
applies to any human occupied building that is not a single family residence; requires the building to have a plan to control
for waterborne infection; requires heat, chemical or both cleaning in the event of a suspected or confirmed presence of legionella;
and recommends point-of-use filters in areas of high risk. We are enhancing our efforts to support our distributors by developing
and delivering focused sales training to their sales forces on the use of our filters to support an overall program of infection
risk prevention; and by, whenever possible, doing joint sales calls with our distributors on potential hospital customers to both
serve as a product expert and to field train their sales representatives.
In
April 2016, we announced that we received 510(k) clearance from the FDA to market our S100 Point of Use filter. We began shipping
our S100 Point of Use in the third quarter of 2016, and ramped up to full production by the end of 2016.
In
December 2016, we announced that we received 510(k) clearance from the FDA to market our HydraGuard™ 10” Ultrafilter.
We expect to begin shipping HydraGuard™ 10” Ultrafilter in the second quarter of 2017, ramping to full production
in the third quarter of 2017.
In
the third quarter of 2017, we expect to launch a flushable version of the HydraGuard™ 10” Ultrafilter.
The
complete hospital infection control product line, including in-line, point of use and cartridge filters, can be viewed on our
website at
http://www.nephros.com/infection-control/
. We are not including the information on our website as a part of,
or incorporating it by reference into, this report.
Dialysis
Centers - Water/Bicarbonate
. To perform hemodialysis, all dialysis clinics have dedicated water purification systems to produce
water and bicarbonate concentrate. Water and bicarbonate concentrate are essential ingredients for making dialysate, the liquid
that removes waste material from the blood. According to the American Journal of Kidney Diseases, there are approximately 6,300
dialysis clinics in the United States servicing approximately 430,000 patients annually. We estimate that there are over 100,000
hemodialysis machines in operation in the United States.
Medicare
is the main payer for dialysis treatment in the U.S. To be eligible for Medicare reimbursement, dialysis centers must meet the
minimum standards for water and bicarbonate concentrate quality set by the Association for the Advancement of Medical Instrumentation
(“AAMI”), the American National Standards Institute (“ANSI”) and the International Standards Organization
(“ISO”). We anticipate that the stricter standards approved by these organizations in 2009 will be adopted by Medicare
in the near future.
Published
studies have shown that the use of ultrapure dialysate can reduce the overall need for erythropoietin stimulating agents (“ESA”),
expensive drugs used in conjunction with HD. By reducing the level of dialysate contaminants, specifically cytokine-inducing substances
that can pass into a patient’s blood stream, the stimulation of inflammation-inducing cytokines is reduced, thus reducing
systemic inflammation. When inflammation is low, inflammatory morbidities are reduced and a patient’s responsiveness to
erythropoietin (“EPO”) is enhanced, consequently the overall need for ESAs is reduced.
We
believe that our DSU-D and SSU-D ultrafilters are attractive to dialysis centers because they exceed currently approved and newly
proposed standards for water and bicarbonate concentrate purity, assist in achieving those standards and may help dialysis centers
reduce costs associated with the amount of ESA required to treat a patient. These in-line filters are easily installed into the
fluid circuits supplying water and bicarbonate concentrate just prior to entering each dialysis machine, or are installed as polishing
filters for portable reverse osmosis (“RO”) water systems.
In
March 2016, we launched the SSUmini product, developed to provide a lower cost ultrafiltration solution for water and bicarbonate
flowrates of 0.5 gallons per minutes (“GPM”) or less. The SSUmini can be used as a polish filter for small, portable
RO water systems or on bicarbonate concentrate lines in dialysis clinics with centralized bicarbonate concentrate systems.
In
March 2017, we announced that we received 510(k) clearance from the FDA to market our EndoPur™ 10” Endotoxin filter,
which is designed to fit in the existing cartridge hosing of a dialysis clinic’s large RO water system. We expect to begin
shipping the EndoPur™ 10” Endotoxin filter in the second quarter of 2017, and the 20” and 30” versions
of the filter by the third quarter of 2017.
Military
and Outdoor Recreation
. Water is a key requirement for the soldier to be fully mission-capable. The availability of water
supplies and immediate on-site water purification is critical to enhance the ability to operate in any environment. Currently,
the military is heavily reliant on the use of bottled water to support its soldiers in the field. Bottled water is not always
available, is very costly to move, is resource intensive, and is prone to constant supply disruptions. Soldiers conducting operations
in isolated and rugged terrain must be able to use available local water sources when unable to resupply from bulk drinking water
sources or bottled water. Therefore, the soldier needs the capability to purify water from indigenous water sources in the absence
of available potable water. Soldiers must have the ability to remove microbiological contaminants in the water to Environmental
Protection Agency (“EPA”) specified levels.
We
developed our individual water treatment device (“IWTD”) in both in-line and point-of-use configurations. Our IWTD
allows a soldier in the field to derive drinking water from any fresh water source. This enables the soldier to remain hydrated,
which will maintain mission effectiveness and unit readiness, and extend mission reach. Our IWTD is one of the few portable filters
that has been validated by the military to meet the NSF Protocol P248 standard. It has also been approved by U.S. Army Public
Health Command and U.S. Army Test and Evaluation Command for deployment.
On
May 6, 2015, we entered into a Sublicense Agreement with CamelBak Products, LLC (“CamelBak”). Under this Sublicense
Agreement, we granted CamelBak an exclusive, non-transferable, worldwide (with the exception of Italy) sublicense and license,
in each case solely to market, sell, distribute, import and export the IWTD. In exchange for the rights granted to CamelBak, CamelBak
agreed, through December 31, 2022, to pay us a percentage of the gross profit on any sales made to a branch of the U.S. military,
subject to certain exceptions, and to pay us a fixed per-unit fee for any other sales made. CamelBak is also required to meet
or exceed certain minimum annual fees payable to us, and if such fees are not met or exceeded, we may convert the exclusive sublicense
to a non-exclusive sublicense with respect to non-U.S. military sales. During the fiscal year ended December 31, 2016, we recognized
royalty revenue of $10,000 related to the Sublicense Agreement with CamelBak.
In
2015, we began working with multiple companies developing portable water purification systems designed to provide potable water
in remote locations. Specifically, we have provided flushable filter prototypes to these companies for validation as one potential
component in systems that employ multiple technologies to purify water from streams, lakes and rivers.
Commercial
and Industrial Facilitie
s. In 2014, we launched NanoGuard-D and NanoGuard-S in-line ultrafilters for the filtration of water
to be used for non-medical drinking and washing in non-transient non-community water systems, or commercial facilities. The NanoGuard-D
and NanoGuard-S trap particulates greater than 0.005 microns in size and can be used as a component of a facility water treatment
system, or to filter water used in ice machines and soda fountains.
In
November 2015, we announced a strategic partnership with Biocon 1, LLC (“Biocon 1”). Biocon 1’s AETHER®
Water Systems technology, which includes patented water filtration media and water filtration products, provides solutions for
customers to address all contaminate issues and to provide clean-tasting, sediment-free, scale-free, and bacteria-free water for
the food service industry. AETHER® Water Systems are used with ice machines, coffee stations, and soda fountains in hotels,
casual dining restaurants, fast food restaurants and convenience stores. As part of the collaboration, we have access to Biocon
1’s anti-scale and related water filtration technology to develop filter products for the medical industry. In March 2016,
we shipped the first lot of filter cartridges to Biocon 1 for inclusion with its AETHER® line of filtration products.
While
our EndoPur
TM
ultrafilter cartridge platform was designed initially for use in the dialysis setting, we are working
with our distributors to identify other opportunities for our ultrafilters to provide value to customers in multiple commercial
and industrial settings. The NanoGuard-C, a cartridge ultrafilter that inserts into standard 10”, 20”, 30” and
40” housings, is now available; and we expect that the NanoGuard-F, a flushable cartridge ultrafilter available in 10”
and 20” sizes, will be available for broad distribution in the second quarter of 2017.
Many
potential customers in the commercial and industrial space currently utilize an Everpure® manifold system. The NanoGuard-E,
a version of our ultrafilter that plugs into an Everpure® housing system, is now available.
Over
the last few years, we have been developing a high-throughput, auto-flushing filter system capable of handling 25 GPM, or greater,
through our proprietary 0.005 micron fiber membrane. The flushable filter system is designed to remove submicron particulates
in closed loop water systems, including cooling systems for data centers and hot water return loops in commercial buildings. Initial
data suggests the ability to remove both organic and inorganic particulates. We have released a limited number of systems to specific
customers for additional testing and validation.
Small,
flushable 2.5 and 5 GPM filter systems have potential utility as a point-of-entry water purification system in restaurants, convenience
stores and households. We offered flushable systems to a limited set of customers in 2016, and expect to offer these system to
a broad set of commercial and industrial customers starting in the second quarter of 2017.
In
the third quarter of 2017, we expect to launch a lead filtration system that will address both soluble and particulate lead in
potable water, with the ability to treat up to 10,000 gallons of water between filter change-outs.
Going
forward, as we grow our water filtration business, we will be exploring opportunities for new applications for our filter products
and will be open to evaluating new potential partnerships to expand our water filtration foot print. Our strategic distribution
partners who place our filters in hospitals and medical facilities, also support a wide range of commercial and industrial customers.
We believe that our existing distributor relationships will facilitate growth in filter sales outside of the medical industry.
Corporate
Information
We
were incorporated under the laws of the State of Delaware in April 1997. Our principal executive offices are located at 41 Grand
Avenue, River Edge, New Jersey, 07661, and our telephone number is (201) 343-5202. We also have an office in Dublin, Ireland.
For more information about Nephros, please visit our website at
www.nephros.com
.
Going
Concern
The
accompanying consolidated financial statements have been prepared assuming that we will continue as a going concern. Our recurring
losses and difficulty in generating sufficient cash flow to meet our obligations and sustain our operations raise substantial
doubt about our ability to continue as a going concern. Our consolidated financial statements do not include any adjustments that
might result from the outcome of this uncertainty.
We
have incurred significant losses in operations in each quarter since inception. In addition, we did not generate positive cash
flow from operations for the years ended December 31, 2016 and 2015. To become profitable, we must increase revenue substantially
and achieve and maintain positive gross and operating margins. If we are not able to increase revenue and gross and operating
margins sufficiently to achieve profitability, our results of operations and financial condition will be materially and adversely
affected.
There
can be no assurance that our future cash flow will be sufficient to meet our obligations and commitments. If we are unable to
generate sufficient cash flow from operations in the future to service our commitments, we will be required to adopt alternatives,
such as seeking to raise debt or equity capital, curtailing our planned activities or ceasing our operations. There can be no
assurance that any such actions could be effected on a timely basis or on satisfactory terms or at all, or that these actions
would enable us to continue to satisfy our capital requirements.
Manufacturing
and Suppliers
We
do not, and do not intend to in the near future, manufacture any of our products and components. With regard to the OLpūr
MD190 and MD220, on June 27, 2011, we entered into a license agreement, effective July 1, 2011, as amended by the first amendment
dated February 19, 2014, with Bellco S.r.l. (“Bellco”), an Italy-based supplier of hemodialysis and intensive care
products, for the manufacturing, marketing and sale of our patented mid-dilution dialysis filters (MD190, MD220). Pursuant to
the First Amendment, we and Bellco agreed to extend the term of the License Agreement from December 31, 2016 to December 31, 2021.
In addition, under the agreement, as amended by the first amendment, we granted Bellco a license to manufacture, market and sell
these products under its own name, label and CE mark in Italy, France, Belgium, Spain, Canada, Denmark, Finland, Norway and Sweden
on an exclusive basis, and to do the same on a non-exclusive basis in the United Kingdom, Greece, Brazil, China, Korea, Mexico
and the Netherlands and, upon our written approval, other European countries where we do not sell these products as well as non-European
countries.
In
April 2012, we entered into a license and supply agreement with Medica S.p.A., an Italy-based medical product manufacturing company,
for the marketing and sale of certain filtration products based upon Medica’s proprietary Medisulfone ultrafiltration technology
in conjunction with our filtration products, and to engage in an exclusive supply arrangement for the filtration products. Under
the license and supply Agreement, Medica granted to us an exclusive license, with right of sublicense, to market, promote, distribute,
offer for sale and sell the filtration products worldwide, excluding Italy, during the term of the agreement.
Sales
and Marketing
Under
the Bellco license agreement, as discussed above, we granted Bellco a license to manufacture, market and sell the covered products
under its own name, label and CE mark in the territory, as defined in the license agreement. In addition, if requested by us,
Bellco will be required to sell the covered products to our distributors in the stated territory.
Our
New Jersey office oversees global sales and marketing activity of our ultrafilter products. We work with multiple distributors
for our ultrafilter products in the dialysis water market and the hospital water market. In the food service market, Biocon 1
has the exclusive right to distribute our custom filter cartridge developed for the AETHER
®
Water System. For
each prospective market for our ultrafilter products, we are pursuing alliance opportunities for joint product development and/or
distribution. Our ultrafilter manufacturer in Europe shares certain intellectual property rights with us for one of our Dual Stage
Ultrafilter (“DSU”) designs.
Research
and Development
Our
research and development efforts continue on several fronts directly related to our current product lines. On the water filter
business, we are continually working with existing and potential distributors of ultrafilter products to develop solutions to
meet customer needs. On the HDF System business, we are working with our current customers to develop version 2.0 of the HDF System.
For the years ended December 31, 2016 and 2015, we spent approximately $1,079,000 and $826,000, respectively, on research and
development activities.
Major
Customers
For
the years ended December 31, 2016 and 2015, four customers accounted for 55% and 67%, respectively, of our revenues.
As
of December 31, 2016 and 2015, four customers accounted for 59% and 73%, respectively, of our accounts receivable.
Competition
With
respect to the water filtration market, we expect to compete with companies that are well entrenched in the water filtration domain.
These companies include Pall Corporation (now wholly owned by Danaher Corporation), which manufactures end-point water filtration
systems, as well as 3M, Siemens and Everpure®. Our methods of competition in the water filtration domain include:
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developing
and marketing products that are designed to meet critical and specific customer needs more effectively than competitive devices;
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offering
unique attributes that illustrate our product reliability, “user-friendliness,” and performance capabilities;
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selling
products to specific customer groups where our unique product attributes are mission-critical; and
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pursuing
alliance opportunities for joint product development and distribution.
|
The
dialyzer and renal replacement therapy market is subject to intense competition. Accordingly, our future success will depend on
our ability to meet the clinical goals of nephrologists, improve patient outcomes and remain cost-effective for payers.
We
compete with other suppliers of ESRD therapies, supplies and services. These suppliers include Fresenius Medical Care AG and Baxter
International Inc., currently two of the primary machine manufacturers in hemodialysis. At present, Fresenius Medical Care AG
and Baxter International Inc. also manufacture HDF machines that are not currently approved in the United States.
The
markets in which we sell our dialysis products are highly competitive. Our competitors in the sale of hemodialysis products include
Baxter International Inc., Fresenius Medical Care AG, Asahi Kasei Medical Co. Ltd., B. Braun Melsungen AG, Nipro Medical Corporation
Ltd., Nikkiso Co., Ltd., Terumo Medical Corporation and Toray Medical Co., Ltd.
Other
competitive considerations include pharmacological and technological advances in preventing the progression of ESRD in high-risk
patients such as those with diabetes and hypertension, technological developments by others in the area of dialysis, the development
of new medications designed to reduce the incidence of kidney transplant rejection and progress in using kidneys harvested from
genetically-engineered animals as a source of transplants.
We
are not aware of any other companies using technology similar to ours in the treatment of ESRD. Our competition would increase,
however, if companies that currently sell ESRD products, or new companies that enter the market, develop technology that is more
efficient than ours. We believe that in order to become competitive in this market, we will need to develop and maintain competitive
products and take and hold sufficient market share from our competitors. Therefore, we expect our methods of competing in the
ESRD marketplace to include:
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continuing
our efforts to develop, have manufactured and sell products which, when compared to existing products, perform more efficiently
and are available at prices that are acceptable to the market;
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displaying
our products and providing associated literature at major industry trade shows in the United States;
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initiating
discussions with dialysis clinic medical directors, as well as representatives of dialysis clinical chains, to develop interest
in our products;
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pursuing
alliance opportunities in certain territories for distribution of our products and possible alternative manufacturing facilities;
and
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entering
into license agreements similar to the Bellco S.r.l. agreement to expand market share.
|
Intellectual
Property
Patents
We
protect our technology and products through patents and patent applications. In addition to the United States, we also applied
for patents in other jurisdictions, such as the European Patent Office, Canada and Japan, to the extent we deem appropriate. We
have built a portfolio of patents and applications covering our products, including their hardware design and methods of hemodiafiltration.
We
believe that our patent strategy will provide a competitive advantage in our target markets, but our patents may not be broad
enough to cover our competitors’ products and may be subject to invalidation claims. Our U.S. patents for the “Method
and Apparatus for Efficient Hemodiafiltration” and for the “Dual-Stage Filtration Cartridge” have claims that
cover the OLpur MDHDF filter series and the method of hemodiafiltration employed in the operation of the products. Technological
developments in ESRD therapy could reduce the value of our intellectual property. Any such reduction could be rapid and unanticipated.
We have issued patents on our water filtration products and applications in process to cover various applications in residential,
commercial, and remote environments.
As
of December 31, 2016, we have twenty-three issued U.S. patents, one issued Eurasian patent, seven Mexican patents, four South
Korean patents, three Russian patents, six Chinese patents, nine French patents, nine German patents, five Israeli patents, seven
Italian patents, three Spanish patents, nine United Kingdom patents, fourteen Japanese patents, three Hong Kong patents, ten Canadian
patents, one Australian patent, two patents in Brazil, one patent in Sweden and one patent in the Netherlands. Our issued U.S.
patents expire between 2018 and 2033. In addition, we have two pending patent applications in Canada, two pending patent applications
in the European Patent Office, and one pending patent application in Brazil. Our pending patent applications relate to a range
of filter technologies, including cartridge configurations, cartridge assembly, substitution fluid systems, and methods to enhance
and ensure performance.
Trademarks
As
of December 31, 2016, we secured registrations of the trademarks H2H and OLpūr in the European Union and OLpūr in the
United States. We have also filed trademark applications for PATHOGUARD, NANOGUARD, and ENDOPUR in the United States and the European
Union.
Governmental
Regulation
The
research and development, manufacturing, promotion, marketing and distribution of our ESRD therapy products in the United States,
Europe and other regions of the world are subject to regulation by numerous governmental authorities, including the FDA, the European
Union and analogous agencies.
United
States
The
FDA regulates the manufacture and distribution of medical devices in the United States pursuant to the FDCA. All of our ESRD therapy
products are regulated in the United States as medical devices by the FDA under the FDCA. Under the FDCA, medical devices are
classified in one of three classes, namely Class I, II or III, on the basis of the controls deemed necessary by the FDA to reasonably
ensure their safety and effectiveness.
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●
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Class
I devices are medical devices for which general controls are deemed sufficient to ensure their safety and effectiveness. General
controls include provisions related to (1) labeling, (2) producer registration, (3) defect notification, (4) records and reports
and (5) quality service requirements, or QSR.
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●
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Class
II devices are medical devices for which the general controls for the Class I devices are deemed not sufficient to ensure
their safety and effectiveness and require special controls in addition to the general controls. Special controls include
provisions related to (1) performance and design standards, (2) post-market surveillance, (3) patient registries and (4) the
use of FDA guidelines.
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●
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Class
III devices are the most regulated medical devices and are generally limited to devices that support or sustain human life
or are of substantial importance in preventing impairment of human health or present a potential, unreasonable risk of illness
or injury. Pre-market approval by the FDA is the required process of scientific review to ensure the safety and effectiveness
of Class III devices.
|
Before
a new medical device can be introduced to the market, FDA clearance of a pre-market notification under Section 510(k) of the FDCA
or FDA clearance of a pre-market approval, or PMA, application under Section 515 of the FDCA must be obtained. A Section 510(k)
clearance will be granted if the submitted information establishes that the proposed device is “substantially equivalent”
to a legally marketed Class I or Class II medical device or to a Class III medical device for which the FDA has not called for
pre-market approval under Section 515. The Section 510(k) pre-market clearance process is generally faster and simpler than the
Section 515 pre-market approval process.
For
any devices cleared through the Section 510(k) process, modifications or enhancements that could significantly affect the safety
or effectiveness of the device or that constitute a major change to the intended use of the device will require a new Section
510(k) pre-market notification submission. Accordingly, if we do obtain Section 510(k) pre-market clearance for any of our ESRD
therapy and DSU products, we will need to submit another Section 510(k) pre-market notification if we significantly affect that
product’s safety or effectiveness through subsequent modifications or enhancements.
In
July 2009, we received FDA clearance of the DSU to be used to filter biological contaminants from water and bicarbonate concentrate
used in hemodialysis procedures.
In
April 2012, we announced that 510(k) clearance was received from the FDA to market the OLpūr H2H Module and OLpūr MD
220 Hemodiafilter for use with a UF controlled hemodialysis machine that provides ultrapure dialysate in accordance with current
ANSI/AAMI/ISO standards, for the treatment of patients with chronic renal failure in the United States.
In
October 2014, we announced that we received 510(k) clearance from the FDA to market our DSU-H and SSU-H Ultrafilters; in April
2016, we announced that we received 510(k) clearance from the FDA to market our S100 Point of Use Filter; in December 2016, we
announced that we received 510(k) clearance from the FDA to market our HydraGuard™ 10” Ultrafilter; and in March 2017,
we announced that we received 510(k) clearance from the FDA to market our EndoPur™ 10” Endotoxin.
The
FDCA requires that medical devices be manufactured in accordance with the FDA’s current QSR regulations which require, among
other things, that:
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the
design and manufacturing processes be regulated and controlled by the use of written procedures;
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the
ability to produce medical devices which meet the manufacturer’s specifications be validated by extensive and detailed
testing of every aspect of the process;
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any
deficiencies in the manufacturing process or in the products produced be investigated;
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detailed
records be kept and a corrective and preventative action plan be in place; and
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manufacturing
facilities be subject to FDA inspection on a periodic basis to monitor compliance with QSR regulations.
|
If
violations of the applicable QSR regulations are noted during FDA inspections of our manufacturing facilities or the manufacturing
facilities of our contract manufacturers, there may be a material adverse effect on our ability to produce and sell our products.
In
addition to the requirements described above, the FDCA requires that:
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all
medical device manufacturers and distributors register with the FDA annually and provide the FDA with a list of those medical
devices which they distribute commercially;
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information
be provided to the FDA on death or serious injuries alleged to have been associated with the use of the products, as well
as product malfunctions that would likely cause or contribute to death or serious injury if the malfunction were to recur;
and
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●
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certain
medical devices not cleared with the FDA for marketing in the United States meet specific requirements before they are exported.
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European
Union
The
European Union began to harmonize national regulations comprehensively for the control of medical devices in member nations in
1993, when it adopted its Medical Devices Directive 93/42/EEC. The European Union directive applies to both the manufacturer’s
quality assurance system and the product’s technical design and discusses the various ways to obtain approval of a device
(dependent on device classification), how to properly CE Mark a device and how to place a device on the market.
The
regulatory approach necessary to demonstrate to the European Union that the organization has the ability to provide medical devices
and related services that consistently meet customer requirements and regulatory requirements applicable to medical devices requires
the certification of a full quality management system by a notified body. Initially, we engaged TÜV Rheinland of North America,
Inc. (“TÜV Rheinland”) as the notified body to assist us in obtaining certification to the International Organization
for Standardization (“ISO”), 13485/2003 standard, which demonstrates the presence of a quality management system that
can be used by an organization for design and development, production, installation and servicing of medical devices and the design,
development and provision of related services.
European
Union requirements for products are set forth in harmonized European Union standards and include conformity to safety requirements,
physical and biological properties, construction and environmental properties, and information supplied by the manufacturer. A
company demonstrates conformity to these requirements, with respect to a product, by pre-clinical tests, biocompatibility tests,
qualification of products and packaging, risk analysis and well-conducted clinical investigations approved by ethics committees.
Once
a manufacturer’s full quality management system is determined to be in compliance with ISO 13485/2003 and other statutory
requirements, and the manufacturer’s products conform to harmonized European standards, the notified body will recommend
and document such conformity. The manufacturer will receive a CE marking and ISO certifications, and then may place a CE mark
on the relevant products. The CE mark, which stands for Conformité Européenne, demonstrates compliance with the
relevant European Union requirements. Products subject to these provisions that do not bear the CE mark cannot be imported to,
or sold or distributed within, the European Union.
In
July 2003, we received a certification from TÜV Rheinland that our quality management system conforms to the requirements
of the European Community. At the same time, TÜV Rheinland approved our use of the CE marking with respect to the design
and production of high permeability hemodialyzer products for ESRD therapy. In April 2010, we changed our notified body from TÜV
Rheinland to BSI America, Inc. and expanded our scope to include design and development and production of water filters.
Under
the Bellco license agreement, as discussed above, we granted Bellco a license to manufacture, market and sell the covered products
under its own name, label and CE mark in the stated territory. In addition, if requested by us, Bellco will be required to sell
the covered products to our distributors in the stated territory.
Regulatory
Authorities in Regions Outside of the United States and the European Union
We
also plan to sell our ESRD therapy products in foreign markets outside the United States that are not part of the European Union.
Requirements pertaining to medical devices vary widely from country to country, ranging from no health regulations to detailed
submissions such as those required by the FDA. We believe the extent and complexity of regulations for medical devices such as
those produced by us are increasing worldwide. We anticipate that this trend will continue and that the cost and time required
to obtain approval to market in any given country will increase, with no assurance that such approval will be obtained. Our ability
to export into other countries may require compliance with ISO 13485, which is analogous to compliance with the FDA’s QSR
requirements. In November 2007 and May 2011, the Therapeutic Products Directorate of Health Canada, the Canadian health regulatory
agency, approved our OLpūr MD220 Hemodiafilter and our DSU, respectively, for marketing in Canada. Other than the Canadian
approval of our OLpūr MD220 Hemodiafilter and DSU products, we have not obtained any regulatory approvals to sell any of
our products outside of the United States and the European Union and there is no assurance that any such clearance or certification
will be issued.
Reimbursement
In
both domestic markets and markets outside of the United States, sales of our ESRD therapy products will depend in part, on the
availability of reimbursement from third-party payers. In the United States, ESRD providers are reimbursed through Medicare, Medicaid
and private insurers. In countries other than the United States, ESRD providers are also reimbursed through governmental and private
insurers. In countries other than the United States, the pricing and profitability of our products generally will be subject to
government controls. Despite the continually expanding influence of the European Union, national healthcare systems in its member
nations, including reimbursement decision-making, are neither regulated nor integrated at the European Union level. Each country
has its own system, often closely protected by its corresponding national government.
Product
Liability and Insurance
The
production, marketing and sale of our products have an inherent risk of liability in the event of product failure or claim of
harm caused by product operation. We have acquired product liability insurance for our products in the amount of $2 million. A
successful claim in excess of our insurance coverage could materially deplete our assets. Moreover, any claim against us could
generate negative publicity, which could decrease the demand for our products, our ability to generate revenues and our profitability.
Some
of our existing and potential agreements with manufacturers of our products and components of our products do or may require us
(1) to obtain product liability insurance or (2) to indemnify manufacturers against liabilities resulting from the sale of our
products. If we are not able to maintain adequate product liability insurance, we will be in breach of these agreements, which
could materially adversely affect our ability to produce our products. Even if we are able to obtain and maintain product liability
insurance, if a successful claim in excess of our insurance coverage is made, then we may have to indemnify some or all of our
manufacturers for their losses, which could materially deplete our assets.
Employees
As
of December 31, 2016, we employed a total of 10 employees, 9 of whom are full time and 1 who is employed on a part-time basis.
We also have engaged 2 consultants on an ongoing basis. Of the 12 total employees and consultants, 3 are employed in a sales/marketing/customer
support capacity, 4 in general and administrative and 5 in research and development.
Properties
Our
U.S. facilities are located at 41 Grand Avenue, River Edge, New Jersey, 07661 and consist of approximately 4,688 square feet of
space. The current rental agreement expires in November 2018 with a monthly cost of approximately $9,000. We use these facilities
to house our corporate headquarters and research facilities.
Our
office space in Europe are currently located at Ulysses House, Foley Street, Dublin, Ireland. The lease agreement was entered
into on August 1, 2016 and is for a twelve month term.
We
use these facilities to house our accounting, operations and customer service departments.
We
believe our current facilities will be adequate to meet our needs. We do not own any real property for use in our operations or
otherwise.
Legal
Proceedings
There
are no currently pending legal proceedings and, as far as we are aware, no governmental authority is contemplating any proceeding
to which we are a party or to which any of our properties is subject.
Available
Information
We
make available free of charge on our website (http://www.nephros.com) our Annual Report on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K, and all amendments to those reports, as soon as reasonably practicable after such material
is electronically filed with or furnished to the SEC. We provide electronic or paper copies of filings free of charge upon request.
The public may read and copy any materials filed with the SEC at the SEC’s Public Reference Room at 100 F Street N.E. Washington,
D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy and information statements and other information regarding issuers
that file with the SEC at http://www.sec.gov.
MANAGEMENT
Director
Classes
Our
Board of Directors (the “Board”) is currently composed of five directors. Our Board is divided into three classes.
Each year, one class is elected to serve for three years. The business address for each director for matters regarding our company
is 41 Grand Avenue, River Edge, New Jersey 07661.
In
connection with our September 2007 financing, we entered into an investor rights agreement with the 2007 investors pursuant to
which we agreed to take such corporate actions as may be required, among other things, to entitle Lambda Investors, LLC (“Lambda”)
(i) to nominate two individuals having reasonably appropriate experience and background to our Board to serve as directors until
their respective successor(s) are elected and qualified, (ii) to nominate each successor to the Lambda Investors nominees, provided
that any successor shall have reasonably appropriate experience and background, and (iii) to direct the removal from the Board
of any director nominated under the foregoing clauses (i) or (ii). Under the investor rights agreement, we are required to convene
meetings of the Board at least once every three months. If we fail to do so, a Lambda director will be empowered to convene such
meeting. Arthur Amron and Paul Mieyal are the current Lambda directors.
Name
|
|
Age
(as of
3/31/17)
|
|
Director
Since
|
|
Business
Experience For The Last Five Years
|
|
|
|
|
|
|
|
Class
I Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arthur
H. Amron
|
|
60
|
|
2007
|
|
Mr.
Amron has served as a director of our company since September 2007. Mr. Amron is a Partner of Wexford Capital LP, an SEC-registered
investment advisor and serves as its General Counsel. Mr. Amron also actively participates in various private equity transactions,
particularly in the bankruptcy and restructuring areas, and has served on the boards and creditors’ committees of a
number of public and private companies in which Wexford has held investments. Mr. Amron served as a director of Rhino GP LLC,
which is the general partner of Rhino Resource Partners LP, a publicly traded master limited partnership (NYSE - RNO), from
October 2010 to March 2016. From 1991 to 1994, Mr. Amron was an Associate at Schulte Roth & Zabel LLP, specializing in
corporate and bankruptcy law, and from 1984 to 1991, Mr. Amron was an Associate at Debevoise & Plimpton LLP specializing
in corporate litigation and bankruptcy law. Mr. Amron holds a J.D. from Harvard University, a B.A. in Political Theory from
Colgate University and is a member of the New York Bar. Among other experience, qualifications, attributes and skills, Mr.
Amron’s legal training and experience in the capital markets, as well as his experience serving on boards of directors
of other public companies, led to the conclusion of our Board that he should serve as a director of our company in light of
our business and structure.
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|
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Class
II Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul
A. Mieyal
|
|
47
|
|
2007
|
|
Dr.
Mieyal has served as a director of our company since September 2007 and served as our Acting President, Acting Chief Executive
Officer, Acting Chief Financial Officer and Acting Secretary from January 4, 2015 to April 15, 2015. Dr. Mieyal also previously
served as our Acting Chief Executive Officer from April 6, 2010 until April 20, 2012.Dr. Mieyal has been a Vice President
of Wexford Capital LP since October 2006. From January 2000 through September 2006, he was Vice President in charge of healthcare
investments for Wechsler & Co., Inc., a private investment firm and registered broker-dealer. Dr. Mieyal was a director
of Nile Therapeutics, Inc., a publicly traded company, from September 2007 through November 2013. Dr. Mieyal received his
Ph.D. in Pharmacology from New York Medical College, a B.A. in Chemistry and Psychology from Case Western Reserve University,
and is a Chartered Financial Analyst. Among other experience, qualifications, attributes and skills, Dr. Mieyal’s pharmacology
and chemistry education, his experience in investment banking in the healthcare industry, as well as his experience serving
on boards of directors of other public companies, led to the conclusion of our Board that he should serve as a director of
our company in light of our business and structure.
|
Malcolm
Persen
|
|
63
|
|
2015
|
|
Mr.
Persen has served as a director of our Company since May 2015 and is currently the President of Resolute Performance Contracting,
a solar construction firm that he founded in 2011. Previously, from 2009 through 2011, he was the Executive Vice President
at Ironco Enterprises, a renewable energy contracting organization. From 2004 through 2008, Mr. Persen served as the Chief
Financial Officer for Radyne Corporation, a NASDAQ-traded manufacturer and distributor of satellite and telecommunications
equipment. While at Radyne, he was part of the management team that tripled revenues and sold the firm, resulting in a 100%
return for shareholders. Earlier, Mr. Persen was employed as Group Financial Officer for Avnet, Inc., a global distributor
of electronic components and computer systems. Other experience included assignments with consultancies Arthur D. Little and
Mercer Management Consulting. In addition, Mr. Persen lectured in finance at the University of Arizona from 2010 to 2013 and
at Boston College from 1988 to 1999. Mr. Persen currently serves on the Board of Valutek, a supplier of cleanroom supplies
through direct and distribution channels. Mr. Persen holds a BA in Political Economics from The Colorado College, and an MBA
from The Amos Tuck School of Business at Dartmouth College. Among other experience, qualifications, attributes and skills,
Mr. Persen’s extensive financial background led to the conclusion of our Board that he should serve as a director of
our Company in light of our business and structure.
|
|
|
|
|
|
|
|
Class
III Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daron
Evans
|
|
42
|
|
2013
|
|
Mr.
Evans is currently our President and Chief Executive Officer. He previously served as the Chairman of our Board of Directors
from January 4, 2015 through April 15, 2015. Mr. Evans is a life sciences executive with over 20 years of financial leadership
and operational experience. Mr. Evans is currently Managing Director of PoC Capital, LLC, and a Director of Zumbro Discovery,
an early stage company developing a novel therapy for resistant hypertension. Mr. Evans was most recently Chief Financial
Officer of Nile Therapeutics, Inc., from 2007 until its merger with Capricor, Inc. in November 2013. From 2004 to 2007, he
held various positions at Scios, Inc. and Vistakon, Inc., both divisions of Johnson & Johnson Corp. Mr. Evans was a co-founder
of Applied Neuronal Network Dynamics, Inc. and served as its President from 2002 to 2004. From 1995 to 2002, Mr. Evans served
in various roles at consulting firms Arthur D. Little and Booz Allen & Hamilton. Mr. Evans is the author of four U.S.
patents. Mr. Evans received his Bachelor of Science in Chemical Engineering from Rice University, his Master of Science in
Biomedical Engineering from a joint program at the University of Texas at Arlington and Southwestern Medical School and his
MBA from the Fuqua School of Business at Duke University. Among other experience, qualifications, attributes and skills, Mr.
Evans’s extensive operational and business development experience led to the conclusion of our Board that he should
serve as a director of our company in light of our business and structure.
|
Moshe
Pinto
|
|
42
|
|
2015
|
|
Mr.
Pinto has served as a director of our Company since August 2015. Mr. Pinto was recently the CEO of Home Dialysis Plus, now
Outset Medical, Inc., a Warburg Pincus backed company dedicated to the development and commercialization of a new hemodialysis
system, providing an improved experience for patients. Previously, from 2007 through 2010, he was CEO of Spiracur Inc., a
developer of innovative wound healing technologies that Mr. Pinto co-founded out of the Stanford University Biodesign Innovation
Program. Mr. Pinto also worked for Herzog, Fox & Neeman, a law firm based in Israel. He served on the Board of Directors
of Spiracur Inc. from 2010 to 2015. Mr. Pinto received an MBA from Stanford University, an LLM from Universita di Bologna,
an EMLE from the University of Hamburg, and an LLB in Law from Tel Aviv University. Among other experience, qualifications,
attributes and skills, the Board concluded that Mr. Pinto should serve as a director of our Company due to his historical
experience with businesses in the medical industry and in light of our business and structure.
|
Director
Independence
Our
Board of Directors has determined that all of the current directors are “independent” within the meaning of the Nasdaq
independence standard, other than Mr. Evans, who currently serves as the Company’s President and CEO, and Mr. Mieyal, who
served as the Company’s Acting President, Acting Chief Executive Officer, Acting Chief Financial Officer and Acting Secretary
from January 4, 2015 until April 15, 2015.
Executive
Officer
Our
current executive officers are Daron Evans, who serves as our President and Chief Executive Officer, and Andy Astor, who serves
as our Chief Financial Officer. Mr. Astor joined as our Chief Financial Officer on February 13, 2017, and his biography is set
forth below:
Andrew
Astor, age 60, is a technology and business executive with 30 years of financial and
operating experience. From June 2015 to January 2017, Mr. Astor was President and Chief
Financial Officer at Open Source Consulting Group, a growth stage services firm. Previously,
he was a Managing Director at Synechron, a global consulting organization, from 2013
to 2015. From 2009 to 2013, he served as Vice President at Asurion, a large, privately-held
insurance company. Mr. Astor was co-founder of the software company EnterpriseDB, and
served as its CEO from 2004 to 2008. Mr. Astor was Vice President, Strategic Solutions
at webMethods, a software firm, from 2002 to 2004 and Vice President of Transactional
Products at Dun & Bradstreet from 1998 to 2001. Prior to 1998, Mr. Astor held various
roles at American Management Systems, SHL/MCI Systemhouse, and Ernst & Young. Mr.
Astor received his Bachelor of Arts in Mathematics from Clark University, and his MBA
from The Wharton School at the University of Pennsylvania.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act requires our officers and directors, and persons who own more than 10% of a registered class
of our equity securities, to file reports of ownership on Form 3 and changes in ownership on Form 4 or Form 5 with the SEC. Officers,
directors and 10% stockholders are also required by SEC rules to furnish us with copies of all such forms that they file. Based
solely on a review of the copies of such forms received by us, or written representations from reporting persons, we believe that
during fiscal year 2016, all of our officers, directors and 10% stockholders complied with applicable Section 16(a) filing requirements.
Changes
in and Disagreements with Accountants on Accounting and Financial Disclosure
There
have been no disagreements with our accountants during 2016 or 2015 reportable pursuant to this requirement.
EXECUTIVE
COMPENSATION
The
following table sets forth all compensation earned in the fiscal years ended December 31, 2016 and 2015 by our named executive
officers.
Summary
Compensation Table
Name
and Principal Position
|
|
Year
|
|
Salary
($)
|
|
|
Bonus
($)
(1)
|
|
|
Stock
Awards
($)
(2)
|
|
|
Option
Awards
($)
(2)
|
|
|
All
Other Compensation
($)
(3)
|
|
|
Total
|
|
Daron Evans
|
|
2016
|
|
$
|
240,000
|
|
|
$
|
-
|
|
|
$
|
68,182
|
|
|
$
|
-
|
|
|
$
|
17,880
|
|
|
$
|
326,062
|
|
President and Chief
Executive Officer
(4)
|
|
2015
|
|
$
|
170,000
|
|
|
$
|
11,475
|
|
|
$
|
12,852
|
|
|
$
|
1,150,087
|
|
|
$
|
7,000
|
|
|
$
|
1,351,414
|
|
|
(1)
|
The amounts in this
column reflect decisions approved by our Compensation Committee and are based on an analysis of the executive’s contribution
to our company during fiscal years 2016 and 2015.
|
|
|
|
|
(2)
|
The amount reported
is the aggregate grant date fair value of the options and restricted stock awards granted, computed in accordance with FASB
ASC Topic 718. The assumptions used in determining the grant date fair values of the option awards are set forth in Note 2
of the consolidated financial statements set forth elsewhere in this Annual Report.
|
|
|
|
|
(3)
|
See table below
for details on “All Other Compensation.”
|
|
|
|
|
(4)
|
Mr. Evans has served
as President, Chief Executive Officer and Acting Chief Financial Officer since April 15, 2015. He no longer serves as Acting
Chief Financial Officer as of February 13, 2017, in connection with the appointment of Andrew Astor as Chief Financial Officer.
|
All
Other Compensation
Name
|
|
Year
|
|
Matching
401(k) Plan Contribution
($)
|
|
|
Health
Insurance Paid by Company
($)
|
|
|
Life
Insurance Paid by Company
($)
|
|
|
Severance
Payments
($)
|
|
|
Total
Other Compensation
($)
|
|
Daron Evans
|
|
2016
|
|
$
|
17,880
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
17,880
|
|
|
|
2015
|
|
$
|
7,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
7,000
|
|
Option
and Restricted Stock Holdings and Fiscal Year-End Option and Restricted Stock Values
The
following table shows information concerning unexercised options and unvested restricted stock awards outstanding as of December
31, 2016 for our named executive officers.
Outstanding
Equity Awards at Fiscal Year-End 2016
|
|
|
|
Option
Awards
|
|
|
Stock
Awards
|
|
Name
|
|
Grant
Date
(1)
|
|
Number
of Securities Underlying Unexercised Options Exercisable
(#)
(2)
|
|
|
Number
of Securities Underlying Unexercised Options Unexercisable
(#)
(2)
|
|
|
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options
(#)
|
|
|
Option
Exercise Price
($)
|
|
|
Option
Expiration
Date
(3)
|
|
|
Number
of Shares or Units of Stock that Have Not Vested
(#)
|
|
|
Market
Value of Shares or Units That Have Not Vested
($)
|
|
Daron Evans
|
|
3/26/14
|
|
|
75,361
|
|
|
|
-
|
|
|
|
-
|
|
|
|
0.46
|
|
|
|
3/26/24
|
|
|
|
-
|
|
|
|
-
|
|
Daron Evans
|
|
3/15/15
|
|
|
334,454
|
|
|
|
430,014
|
|
|
|
1,419,725
|
|
|
|
0.60
|
|
|
|
4/15/25
|
|
|
|
-
|
|
|
|
-
|
|
Daron Evans
|
|
12/14/16
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
9,165
|
|
|
|
3,391
|
|
Daron Evans
|
|
12/22/16
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
213,068
|
|
|
|
78,835
|
|
|
(1)
|
For
better understanding of this table, we have included an additional column showing the grant date of stock options.
|
|
|
|
|
(2)
|
As
of December 31, 2016, stock options became exercisable in accordance with the vesting schedule below:
|
Name
|
|
Grant
Date
|
|
Vesting
|
|
|
|
|
|
Daron
Evans
|
|
3/26/14
|
|
Fully
exercisable
|
|
|
|
|
|
Daron
Evans
|
|
3/15/15
|
|
35%
of the shares subject to the option vest in 16 equal quarterly installments over 4 years, commencing June 30, 2015
|
|
|
|
|
|
Daron
Evans
|
|
3/15/15
|
|
15%
of the shares subject to the option will vest upon approval of listing of the Company’s common stock on the NASDAQ Stock
Market, New York Stock Exchange or such other national securities exchange approved by the Board
|
|
|
|
|
|
Daron
Evans
|
|
3/15/15
|
|
10%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $3,000,000
|
|
|
|
|
|
Daron
Evans
|
|
3/15/15
|
|
20%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $6,000,000
|
|
|
|
|
|
Daron
Evans
|
|
3/15/15
|
|
20%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $10,000,000
|
Advisory
Vote on Executive Compensation
Our
Board of Directors recognizes the fundamental interest our stockholders have in the compensation of our executive officers. At
our 2014 Annual Meeting, our stockholders approved with approximately 98% of the votes cast, on an advisory basis, in favor of
the compensation of our named executive officers as disclosed in the compensation tables and related narrative disclosure in the
proxy statement for the 2014 Annual Meeting. Based on the results of such advisory vote and our review of our compensation policies
and decisions, we believe that our existing compensation policies and decisions are consistent with our compensation philosophy
and objectives disclosed in the compensation tables and related narrative disclosure and adequately align the interests of our
named executive officers with our long term goals. In addition, based on a separate advisory vote of our stockholders at the Company’s
2014 Annual Meeting relating to the frequency of the advisory vote on the compensation of our named executive officers, our stockholders
indicated their approval of the Board’s recommendation to hold a non-binding advisory vote on our executive compensation
once every two years.
Employment
and Change in Control Agreements
We
have used employment agreements as a means to attract and retain executive officers. These are more fully discussed below. We
believe that these agreements provide our executive officers with the assurance that their employment is a long-term arrangement
and provide us with the assurance that the officers’ services will be available to us for the foreseeable future.
Agreement
with Mr. Daron Evans
The
terms of Mr. Evans’ employment with the Company are set forth in an Employment Agreement dated as of April 15, 2015 (the
“Evans Employment Agreement”). The Evans Employment Agreement provides for a four-year term expiring on April 14,
2019, unless sooner terminated by either party. Pursuant to the Evans Employment Agreement, Mr. Evans will receive an initial
annualized base salary of $240,000 and will be eligible to receive an annual performance bonus of up to 30% of his annualized
base salary. At such time that the Company’s common stock is approved for listing on the NASDAQ Stock Market, New York Stock
Exchange or such other national securities exchange approved by the Board and begins trading on such exchange, the Board may review
and adjust Executive’s base salary to a market competitive level. In addition, Mr. Evans was granted a 10-year stock option
to purchase an aggregate of 2,184,193 shares of the Company’s common stock pursuant to the Company’s 2015 Equity Incentive
Plan. The option is exercisable at a price of $0.60 per share, which represents the closing sale price of the Company’s
common stock on the Effective Date. Mr. Evans right to purchase the shares vests, subject to his continued employment, as follows:
|
●
|
35%
of the shares subject to the option vest in 16 equal quarterly installments over 4 years, commencing June 30, 2015;
|
|
|
|
|
●
|
15%
of the shares subject to the option will vest upon approval of listing of the Company’s common stock on the NASDAQ Stock
Market, New York Stock Exchange or such other national securities exchange approved by the Board;
|
|
|
|
|
●
|
10%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $3,000,000;
|
|
|
|
|
●
|
20%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $6,000,000; and
|
|
|
|
|
●
|
20%
of the shares subject to the option will vest, if ever, on the February 1st following the Company’s first completed
fiscal year in which annual revenue exceeds $10,000,000.
|
The
Evans Employment Agreement provides that if the Company terminates Mr. Evans without “Cause,” or if he resigns for
“Good Reason” (each as defined in the Evans Employment Agreement), then he shall be entitled to: (i) continuation
of his base salary for a period of three months if such termination occurs prior to the first anniversary of April 15, 2015, or
if such termination occurs following the first anniversary of April 15, 2015, continuation of his base salary for a period of
six months (or the expiration of the term of the Evans Employment Agreement, if sooner).
2004
Stock Incentive Plan
The
2004 Stock Incentive Plan (the “2004 Plan”) provides that if there is a change in control, as such term is defined
in the 2004 Plan, unless the agreement granting an award provides otherwise, all awards under the 2004 Plan will become vested
and exercisable as of the effective date of the change in control.
2015
Stock Incentive Plan
The
2015 Equity Incentive Plan (the “2015 Plan”) provides that upon a change of control, as such term is defined in the
2015 Plan, unless the agreement granting an award provides otherwise, the administrator of the 2015 Plan may provide for one or
more of the following: (i) the acceleration of the exercisability, vesting, or lapse of the risks of forfeiture of any or all
awards (or portions thereof); (ii) the complete termination of the 2015 Plan and the cancellation of any or all awards (or portions
thereof) that have not been exercised, have not vested, or remain subject to risks of forfeiture, as applicable in each case as
of the effective date of the change of control; (iii) that the entity succeeding the Company by reason of such change of control,
or the parent of such entity, must assume or continue any or all awards (or portions thereof) outstanding immediately prior to
the change of control or substitute for any or all such awards (or portions thereof) a substantially equivalent award with respect
to the securities of such successor entity, as determined in accordance with applicable laws and regulations; or (iv) that participants
holding outstanding awards will become entitled to receive, with respect to each share of common stock subject to such award (whether
vested or unvested, as determined by the administrator pursuant to the 2015 Plan) as of the effective date of any such change
of control, cash in an amount equal to (1) for participants holding options or stock appreciation rights, the excess of the fair
market value of such common stock on the date immediately preceding the effective date of such change of control over the exercise
price per share of options or stock appreciation rights, or (2) for participants holding awards other than options or stock appreciation
rights, the fair market value of such common stock on the date immediately preceding the effective date of such change of control.
The administrator need not take the same action with respect to all awards (or portions thereof) or with respect to all participants.
401(k)
Plan
We
have established a 401(k) deferred contribution retirement plan (the “401(k) Plan”) which covers all employees. The
401(k) Plan provides for voluntary employee contributions of up to 15% of annual earnings, as defined. As of January 1, 2004,
we began matching 100% of the first 3% and 50% of the next 2% of employee earnings to the 401(k) Plan. We contributed and expensed
$42,000 and $44,000 in 2016 and 2015, respectively.
Director
Compensation
For
fiscal year 2016, our directors received a $20,000 annual retainer, $1,500 per meeting for each quarterly Board meeting attended
and reimbursement for expenses incurred in connection with serving on our Board of Directors. The Chairman of our Audit Committee
was paid a $10,000 annual retainer and $1,000 per meeting for meetings of the Audit Committee, with a maximum of eight meetings
per year. There was no named Chairman of the Board during fiscal year 2016.
We
grant each non-employee director who first joins our Board, immediately upon such director joining our Board, the number of options
equal to the product of 0.0011 multiplied by the total number of outstanding shares of common stock of the Company on a fully-diluted
basis. The exercise price per share will be equal to the fair market value price per share of our common stock on the date of
grant. We will also grant annually to each non-employee director the number of options equal to the product of 0.0006 multiplied
by the total number of outstanding shares of common stock of the company on a fully-diluted basis. The exercise price per share
will be equal to the fair market value price per share of our common stock on the date of grant. These non-employee director options
vest in three equal installments on each of the date of grant and the first and second anniversaries thereof.
Our
executive officers do not receive additional compensation for service as directors if any of them so serve.
The
following table shows the compensation earned by each of our non-employee directors for the year ended December 31, 2016.
Non-Employee
Director Compensation in Fiscal Year 2016
Name
|
|
Fees
Earned
or Paid in
Cash
|
|
|
Restricted
Stock
Awards
(1)(2)
|
|
|
Option
Awards
(3)(4)
|
|
|
Total
|
|
Arthur
H. Amron
(5)
|
|
$
|
6,500
|
|
|
$
|
29,545
|
|
|
$
|
10,994
|
|
|
$
|
47,039
|
|
Paul A. Mieyal
(5)
|
|
$
|
6,500
|
|
|
$
|
29,545
|
|
|
$
|
10,994
|
|
|
$
|
47,039
|
|
Malcolm Persen
|
|
$
|
10,000
|
|
|
$
|
35,455
|
|
|
$
|
10,994
|
|
|
$
|
66,449
|
|
Moshe Pinto
|
|
$
|
6,500
|
|
|
$
|
29,545
|
|
|
$
|
10,994
|
|
|
$
|
47,039
|
|
Matthew Rosenberg
(6)
|
|
$
|
-
|
|
|
$
|
15,659
|
|
|
$
|
-
|
|
|
$
|
22,159
|
|
|
(1)
|
Director
fees owed as of September 30, 2016 were paid in restricted stock in lieu of a cash payment.
|
|
|
|
|
(2)
|
As
of December 31, 2016, Mr. Persen had 113,636 shares of restricted stock, Mr. Pinto had 73,864 shares of restricted stock,
and Mr. Rosenberg had 55,398 shares of restricted stock.
|
|
|
|
|
(3)
|
The
amount reported is the aggregate grant date fair value of the options granted, computed in accordance with FASB ASC Topic
718. The assumptions used in determining the grant date fair values of these awards are set forth in Note 2 of the consolidated
financial statements set forth elsewhere in this Annual Report.
|
|
|
|
|
(4)
|
As
of December 31, 2016, Mr. Persen had 49,281 shares of common stock issuance upon exercise of vested options and 41,580 shares
issuable upon the exercise of unvested options; Mr. Pinto had 50,731 shares of common stock issuance upon exercise of vested
options and 42,304 shares issuable upon the exercise of unvested options; and Mr. Rosenberg had 48,864 shares issuable upon
the exercise of vested options.
|
|
|
|
|
(5)
|
At
the request of Messrs. Amron and Mieyal, their respective options and director fees were directed to Wexford Capital LP.
|
|
|
|
|
(6)
|
Mr.
Rosenberg’s service as a director ended on June 30, 2016.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
In
connection with the May 2015 private placement of shares, Matthew Rosenberg and Janet Persen, the spouse of Malcolm Persen, purchased
shares of common stock and warrants from us for an aggregate purchase price of $134,000 and $20,877, respectively. These purchase
prices are the equivalent of 200,000 shares and warrants to purchase 100,000 shares for Mr. Rosenberg and 31,160 shares and warrants
to purchase 15,580 shares for Ms. Persen. Additionally, the following immediate family members, or entities controlled by immediate
family members, of Mr. Rosenberg purchased shares of common stock and warrants from us in the May 2015 private placement: Best
Six, LLC purchased 149,254 shares and warrants to purchase 74,627 shares for an aggregate purchase price of $100,000; Franklin
Associates, LLC purchased 74,630 shares and warrants to purchase 37,315 shares for an aggregate purchase price of $50,002; Fredric
R. Rosenberg purchased 220,000 shares and warrants to purchase 110,000 shares for an aggregate purchase price of $147,400; and
Seligman Rosenberg purchased 74,626 shares and warrants to purchase 37,313 shares for an aggregate purchase price of $50,000.
The exercise price for the warrants is $0.85 per share and the warrants are exercisable for five-years from the date of issuance.
On
September 29, 2015, we entered into a Warrant Amendment and Exercise Agreement (the “Amendment”) with Lambda. Pursuant
to the Amendment, we agreed to reduce the current exercise price of the Class D Warrant issued to Lambda Investors on November
14, 2007 (together with all amendments thereto entered into prior to the Amendment, the “Lambda Warrant”) representing
the right to purchase 11,742,100 shares of our common stock by 50%, from $0.30 to $0.15 per share, in exchange for Lambda’s
agreement to exercise such Lambda Warrant in its entirety. Upon exercise of the Lambda Warrant, we issued 11,742,100 shares of
common stock to Lambda and received approximately $1.76 million in cash proceeds from Lambda. In addition, pursuant to the Amendment,
we committed to initiating a tender offer to the holders of all of our remaining outstanding warrants pursuant to which we will
offer such holders the right to exercise their respective warrants at a 50% discount to their current exercise prices, which range
from $0.40 to $0.85 per share.
On
December 18, 2015, we completed our offer to exercise certain warrants to purchase an aggregate of 5,008,689 shares of our common
stock, including outstanding warrants to purchase an aggregate of 2,782,577 shares of our common stock at an exercise price of
$0.40 per share, issued on March 10, 2011 to Lambda in connection with a private placement financing transaction. These warrants
were exercisable at a temporarily reduced cash exercise price of $0.20 per share of common stock for the period beginning on November
20, 2015 and ending on December 18, 2015, and upon exercise of the warrants, we received gross proceeds of approximately $556,000.
On
June 3, 2016, we entered into a note and warrant purchase agreement with certain accredited investors pursuant to which we sold
an aggregate principal amount of $807,000 of 11% unsecured promissory notes and five-year warrants to purchase an aggregate of
1,614,000 shares of our common stock at an exercise price of $0.30 per share. Purchasers included PoC Capital, LLC, an entity
owned by Daron Evans, our President and Chief Executive Officer, as well as two of Mr. Evans minor children for whom he acts as
custodian. Collectively, such purchasers related to Mr. Evans purchased $30,000 principal amount of notes and warrants to purchase
60,000 shares of common stock. Lambda also purchased notes in the principal amount of $300,000 and received warrants to purchase
600,000 shares of common stock. Lambda is controlled by Wexford Capital LP. Arthur H. Amron, one of our directors, is a Partner
and General Counsel of Wexford Capital LP. Paul A. Mieyal, one of our directors and our former Acting President, Acting Chief
Executive Officer, and Acting Chief Financial Officer until April 15, 2015, is a Vice President of Wexford Capital LP.
On
March 17, 2017, we entered into a securities purchase agreement with certain purchasers identified therein pursuant to which we
agreed to sell, and the purchasers agreed to purchase 4,059,994 units of our securities, each unit consisting of one share of
our common stock, par value $0.001 per share, and a warrant to purchase one share of common stock, at a cash purchase price equal
to $0.30 per unit. Purchasers included two minor children of Daron Evans, the Company’s President and Chief Executive Officer,
who collectively purchased 83,332 units of the our securities under the securities purchase agreement, and Andy Astor, our Chief
Financial Officer, who purchased 166,666 units.
The
shares beneficially owned by Lambda may be deemed beneficially owned by Wexford Capital LP, which is the managing member of Lambda
Investors. Arthur H. Amron, a director of Nephros, is a partner and general counsel of Wexford Capital. Paul A. Mieyal, a director
of Nephros and the former Acting President, Acting Chief Executive Officer and Acting Chief Financial Officer until April 15,
2015, is a vice president of Wexford Capital. During 2016 and 2015, at the request of Messrs. Amron and Mieyal, fees and options
in the aggregate amount of approximately $94,078 and $71,240, respectively, earned in respect of services they rendered to the
company were directed to Wexford Capital LP.
As
of March 31, 2017, Lambda Investors is our largest stockholder and beneficially owns approximately 56% of our outstanding common
stock.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS
Securities
Authorized for Issuance under Equity Compensation Plans
The
following table provides information as of December 31, 2016 about compensation plans under which shares of our common stock may
be issued to employees, consultants or members of our Board of Directors. Our equity compensation plans as of December 31, 2015
consisted of our Amended and Restated Nephros 2000 Equity Incentive Plan and our Nephros, Inc. 2004 Stock Incentive Plan (together,
the “Prior Plans”) and our 2015 Equity Incentive Plan (the “2015 Plan”). All of our employees and directors
were eligible to participate in the Prior Plans and are eligible to participate in the 2015 Plan. The Prior Plans are both expired
and no further equity is granted under the Prior Plans. Our Prior Plans were approved by our stockholders.
On
March 26, 2015, our Board approved the 2015 Plan.
Plan
Category
|
|
(a)
Number of securities to be issued upon exercise of outstanding options, warrants and rights
|
|
|
(b)
Weighted-average exercise price of outstanding options, warrants and rights
|
|
|
(c)
Number of securities remaining available for issuance under equity compensation plans (excluding securities reflected in column
(a) and restricted stock granted under the 2015 Plan)
|
|
Equity compensation plans
approved by our stockholders
|
|
|
1,268,123
|
|
|
$
|
0.50
|
|
|
|
-
|
|
Equity compensation plans not approved
by our stockholders
|
|
|
3,324,224
|
|
|
$
|
0.54
|
|
|
|
1,865,610
|
|
Total
|
|
|
4,592,347
|
|
|
|
|
|
|
|
1,865,610
|
|
Security
Ownership of Certain Beneficial Owners
The
following table sets forth the beneficial ownership of our common stock as of March 31, 2017, by (i) each person known to us to
own beneficially more than five percent (5%) of our common stock, based on such persons’ or entities’ filings with
the SEC as of that date; (ii) each director and named executive officer; and (iii) all directors and executive officers as a group:
Name
and Address of Beneficial Owner
|
|
Amount
and Nature
of Beneficial
Ownership
|
|
|
Percentage
of Class
(1)
|
|
Lambda
Investors LLC
(2)
|
|
|
30,921,882
|
|
|
|
56.3
|
%
|
Arthur H. Amron
(3)
|
|
|
-
|
|
|
|
*
|
|
Andrew Astor
(4)
|
|
|
333,332
|
|
|
|
*
|
|
Daron Evans
(5)
|
|
|
1,263,676
|
|
|
|
2.3
|
%
|
Paul A. Mieyal
(6)
|
|
|
-
|
|
|
|
*
|
|
Malcolm Persen
(7)
|
|
|
266,620
|
|
|
|
*
|
|
Moshe Pinto
(8)
|
|
|
133,312
|
|
|
|
*
|
|
All executive officers
and directors as a group
(3)-(8)
|
|
|
1,996,940
|
|
|
|
3.6
|
%
|
*
Represents less than 1% of the outstanding shares of our common stock.
|
(1)
|
Applicable
percentage ownership is based on 54,160,548 shares of common stock outstanding as of March 31, 2017, together with applicable
options and warrants for each stockholder. Beneficial ownership is determined in accordance with the rules of the SEC, based
on factors including voting and investment power with respect to shares. Common stock subject to options and warrants exercisable
on or within 60 days after March 31, 2017 are deemed outstanding for the purpose of computing the percentage ownership of
the person holding those options or warrants, but not for computing the percentage ownership of any other person.
|
|
|
|
|
(2)
|
Based
on information provided in a Form 4 dated June 3, 2016 and updated by information provided to us. The shares beneficially
owned by Lambda Investors may be deemed beneficially owned by Wexford Capital LP, which is the managing member of Lambda Investors,
Wexford GP LLC, which is the General Partner of Wexford Capital LP, by Charles E. Davidson in his capacity as Chairman and
managing member of Wexford Capital LP and by Joseph M. Jacobs in his capacity as President and managing member of Wexford
Capital LP. The address of each of Lambda Investors LLC, Wexford Capital LP, Mr. Davidson and Mr. Jacobs is c/o Wexford Capital
LP, 411 West Putnam Avenue, Greenwich, CT 06830. Each of Wexford Capital LP, Wexford GP LLC, Mr. Davidson and Mr. Jacobs disclaims
beneficial ownership of the shares of Common Stock owned by Lambda Investors except, in the case of Mr. Davidson and Mr. Jacobs,
to the extent of their respective interests in each member of Lambda Investors. Includes 183,284 vested stock options and
600,000 shares issuable upon the exercise of warrants. Lambda Investors is controlled by Wexford Capital LP. Arthur H. Amron,
one of our directors, is a Partner and General Counsel of Wexford Capital LP. Paul A. Mieyal, one of our directors and our
former Acting President, Acting Chief Executive Officer, and Acting Chief Financial Officer until April 15, 2015, is a Vice
President of Wexford Capital LP.
|
|
|
|
|
(3)
|
Mr.
Amron’s address is c/o Wexford Capital LP, 411 West Putnam Avenue, Greenwich, CT 06830.
|
|
|
|
|
(4)
|
Mr.
Astor’s address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being
beneficially owned by Mr. Astor consist of: (i) 166,666 shares of common stock and (ii) 166,666 shares issuable upon the exercise
of warrants. Does not include 579,571 shares issuable upon the exercise of options which will not vest within 60 days of March
31, 2017.
|
|
|
|
|
(5)
|
Mr.
Evans’ address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being
beneficially owned by Mr. Evans consist of: (i) 422,760 shares of common stock; (ii) 239,989 shares of restricted stock; (iii)
457,595 shares issuable upon exercise of options and (iv) 143,332 shares of common stock issuable upon the exercise of warrants.
Does not include 1,801,959 shares issuable upon the exercise of options which will not vest within 60 days of March 31, 2017.
|
|
|
|
|
(6)
|
Dr.
Mieyal’s address is c/o Wexford Capital LP, 411 West Putnam Avenue, Greenwich, CT 06830.
|
|
|
|
|
(7)
|
Mr.
Persen’s address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being
beneficially owned by Mr. Persen consist of: (i) 151,605 shares of common stock; (ii) 31,160 shares of common stock held by
Mr. Persen’s spouse; (iii) 68,275 shares of common stock issuable upon exercise of options and (v) 15,580 shares of
common stock issuable upon the exercise of warrants having an exercise price of $0.85 per share. Does not include 22,586 shares
issuable upon the exercise of options which will not vest within 60 days of March 31, 2017.
|
|
|
|
|
(8)
|
Mr.
Pinto’s address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being
beneficially owned by Mr. Pinto consist of: (i) 82,581 shares of common stock; (ii) 50,731 shares of common stock issuable
upon exercise of options. Does not include 42,304 shares issuable upon the exercise of options which will not vest within
60 days of March 31, 2017.
|
DESCRIPTION
OF CAPITAL STOCK
This
prospectus relates to the shares of our common stock that have been issued to Lincoln Park and that may be issued to Lincoln Park
in the future pursuant to the Purchase Agreement. For a further description of the Purchase Agreement, see “The Lincoln
Park Transaction.”
Our
authorized capital stock consists of 90,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred
stock, par value $0.001 per share.
As
of December 31, 2016, we had issued and outstanding approximately:
|
●
|
49,782,797
shares of common stock;
|
|
|
|
|
●
|
Options
to purchase 4,592,347 shares of our common stock at exercise prices ranging from $16.00 to $0.30, with a weighted average
exercise price of $0.60; and
|
|
|
|
|
●
|
Warrants
to purchase 3,291,149 shares of our common stock, including warrants to purchase 917,149 shares of our common stock at $0.85
per share with expiration dates in 2020 and warrants to purchase 2,374,000 shares at an exercise price of $0.30 per share
with expiration dates in 2021.
|
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders
and do not have cumulative voting rights. Accordingly, holders of a majority of the shares of our common stock entitled to vote
in any election of directors may elect all of the directors standing for election. Apart from preferences that may be applicable
to any holders of preferred stock outstanding at the time, holders of our common stock are entitled to receive dividends, if any,
ratably as may be declared from time to time by the Board out of funds legally available therefor. Upon our liquidation, dissolution
or winding up, the holders of our common stock are entitled to receive ratably our net assets available after the payment of all
liabilities and liquidation preferences on any outstanding preferred stock. Holders of our common stock have no preemptive, subscription,
redemption or conversion rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights,
preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which we may designate and issue in the future.
LEGAL
MATTERS
The
legality of the securities offered hereby have been passed upon for us by Fredrikson & Byron P.A., Minneapolis, Minnesota.
EXPERTS
Our
financial statements as of and for the years ended December 31, 2016 and 2015 included in this prospectus have been audited by
Moody, Famiglietti & Andronico, LLP, an independent registered public accounting firm, as stated in their report, which
report includes an explanatory paragraph related to the Company’s ability to continue as a going concern.
Such
financial statements have been so included in reliance upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document
we file at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Our SEC filings are also available to the public free of
charge at the SEC’s website at www.sec.gov and on our website at www.nephros.com.
DISCLOSURE
OF SEC POSITION ON INDEMNIFICATION FOR SECURITIES LAW VIOLATIONS
Our
Fourth Amended and Restated Certificate of Incorporation, as amended, provides for indemnification of directors and officers of
the Registrant to the fullest extent permitted by the Delaware General Corporation Law, or DGCL. We have obtained liability insurance
for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities
as directors or officers of the registrant. Our Second Amended and Restated By-Laws provide for indemnification of our officers,
directors and others who become a party to an action on our behalf by us to the fullest extent not prohibited under the DGCL.
However, insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers,
and controlling persons pursuant to the foregoing provisions or otherwise, we have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director,
officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter
has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification
by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
FINANCIAL
STATEMENTS
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To
the Board of Directors and Stockholders of
Nephros,
Inc.
River
Edge, New Jersey
We
have audited the accompanying consolidated balance sheets of Nephros, Inc. and Subsidiary (the “Company”) as of December
31, 2016 and 2015, and the related consolidated statements of operations and comprehensive loss, changes in stockholders’
equity (deficit) and cash flows for the years then ended. These consolidated financial statements are the responsibility of the
Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our
audits.
We
conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements
are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the
effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit
also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements,
assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall consolidated
financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In
our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position
of Nephros, Inc. and Subsidiary as of December 31, 2016 and 2015, and the results of their operations and their cash flows for
the years then ended, in conformity with accounting principles generally accepted in the United States of America.
The
accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern.
As discussed in Note 2 to the consolidated financial statements, the Company has incurred negative cash flow from operations and
recurring net losses. These conditions, among others, raise substantial doubt about its ability to continue as a going concern.
Management’s plans in regard to these matters are also described in Note 2. The accompanying consolidated financial statements
do not include any adjustments that might result from the outcome of this uncertainty.
/s/
Moody, Famiglietti & Andronico, LLP
|
|
Tewksbury,
MA
|
|
March
20, 2017
|
|
NEPHROS,
INC. AND SUBSIDIARY
CONSOLIDATED
BALANCE SHEETS
(In
Thousands, Except Share and Per Share Amounts)
|
|
December
31, 2016
|
|
|
December
31, 2015
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
275
|
|
|
$
|
1,248
|
|
Accounts receivable, net
|
|
|
388
|
|
|
|
397
|
|
Investment in lease, net-current portion
|
|
|
27
|
|
|
|
-
|
|
Inventory, net
|
|
|
479
|
|
|
|
591
|
|
Prepaid expenses
and other current assets
|
|
|
95
|
|
|
|
228
|
|
Total current assets
|
|
|
1,264
|
|
|
|
2,464
|
|
Property and equipment, net
|
|
|
70
|
|
|
|
12
|
|
Investment in lease, net-less current
portion
|
|
|
61
|
|
|
|
-
|
|
License
and supply agreement, net
|
|
|
1,262
|
|
|
|
1,473
|
|
Other asset
|
|
|
21
|
|
|
|
21
|
|
Total assets
|
|
$
|
2,678
|
|
|
$
|
3,970
|
|
LIABILITIES AND STOCKHOLDERS’
EQUITY
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
585
|
|
|
$
|
652
|
|
Accrued expenses
|
|
|
240
|
|
|
|
237
|
|
Deferred revenue,
current portion
|
|
|
70
|
|
|
|
70
|
|
Total current liabilities
|
|
|
895
|
|
|
|
959
|
|
Unsecured long-term note payable, net
of debt issuance costs and debt discount of $349
|
|
|
838
|
|
|
|
-
|
|
Long-term portion
of deferred revenue
|
|
|
278
|
|
|
|
347
|
|
Total liabilities
|
|
|
2,011
|
|
|
|
1,306
|
|
|
|
|
|
|
|
|
|
|
Commitments and Contingencies (Note
13)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $.001 par value; 5,000,000
shares authorized at December 31, 2016 and 2015; no shares issued and outstanding at December 31, 2016 and 2015.
|
|
|
-
|
|
|
|
-
|
|
Common stock, $.001 par value; 90,000,000
shares authorized at December 31, 2016 and 2015; 49,782,797 and
48,580,355 shares issued and
outstanding at December 31, 2016 and December 31, 2015, respectively.
|
|
|
50
|
|
|
|
49
|
|
Additional paid-in capital
|
|
|
120,835
|
|
|
|
119,797
|
|
Accumulated other comprehensive income
|
|
|
67
|
|
|
|
71
|
|
Accumulated deficit
|
|
|
(120,285
|
)
|
|
|
(117,253
|
)
|
Total stockholders’
equity
|
|
|
667
|
|
|
|
2,664
|
|
Total liabilities
and stockholders’ equity
|
|
$
|
2,678
|
|
|
$
|
3,970
|
|
The
accompanying notes are an integral part of these consolidated financial statements.
NEPHROS,
INC. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(In
Thousands, Except Share and Per Share Amounts)
|
|
Years
Ended December 31,
|
|
|
|
2016
|
|
|
2015
|
|
Net revenue:
|
|
|
|
|
|
|
|
|
Product revenues
|
|
$
|
2,093
|
|
|
$
|
1,790
|
|
License, royalty
and other revenues
|
|
|
227
|
|
|
|
154
|
|
Total net revenues
|
|
|
2,320
|
|
|
|
1,944
|
|
|
|
|
|
|
|
|
|
|
Cost of goods
sold
|
|
|
1,026
|
|
|
|
884
|
|
Gross margin
|
|
|
1,294
|
|
|
|
1,060
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
1,079
|
|
|
|
826
|
|
Depreciation and amortization
|
|
|
230
|
|
|
|
212
|
|
Selling, general
and administrative
|
|
|
2,854
|
|
|
|
3,443
|
|
Total operating
expenses
|
|
|
4,163
|
|
|
|
4,481
|
|
Loss from operations
|
|
|
(2,869
|
)
|
|
|
(3,421
|
)
|
Change in fair value of warrant liability
|
|
|
-
|
|
|
|
2,099
|
|
Warrant modification expense
|
|
|
-
|
|
|
|
(1,761
|
)
|
Interest expense
|
|
|
(172
|
)
|
|
|
(42
|
)
|
Interest income
|
|
|
5
|
|
|
|
-
|
|
Other income
(expense), net
|
|
|
4
|
|
|
|
37
|
|
Net loss
|
|
|
(3,032
|
)
|
|
|
(3,088
|
)
|
Other comprehensive
loss, foreign currency translation adjustments
|
|
|
(4
|
)
|
|
|
(1
|
)
|
Total comprehensive
loss
|
|
$
|
(3,036
|
)
|
|
$
|
(3,089
|
)
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(3,032
|
)
|
|
$
|
(3,088
|
)
|
Deemed dividend
as a result of warrant modification
|
|
|
-
|
|
|
|
(73
|
)
|
Net loss attributable
to common stockholders
|
|
$
|
(3,032
|
)
|
|
$
|
(3,161
|
)
|
Net loss per
common share, basic and diluted
|
|
$
|
(0.06
|
)
|
|
$
|
(0.09
|
)
|
Weighted average
common shares outstanding, basic and diluted
|
|
|
48,583,165
|
|
|
|
34,780,506
|
|
The
accompanying notes are an integral part of these consolidated financial statements.
NEPHROS,
INC. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)
(In
Thousands, Except Share Amounts)
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional
|
|
|
Other
|
|
|
|
|
|
Stockholders’
|
|
|
|
Common
Stock
|
|
|
Paid-in
|
|
|
Comprehensive
|
|
|
Accumulated
|
|
|
Equity (Deficit)
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Capital
|
|
|
Income
|
|
|
Deficit
|
|
|
Total
|
|
Balance, December 31, 2014
|
|
|
30,391,513
|
|
|
$
|
30
|
|
|
$
|
108,382
|
|
|
$
|
72
|
|
|
$
|
(114,165
|
)
|
|
$
|
(5,681
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,088
|
)
|
|
|
(3,088
|
)
|
Net unrealized losses on foreign currency
translation, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
(1
|
)
|
Issuance of common stock, net of equity
issuance costs of $24
|
|
|
1,834,299
|
|
|
|
2
|
|
|
|
1,203
|
|
|
|
|
|
|
|
|
|
|
|
1,205
|
|
Issuance of common stock, net of commitment
fee of $163
|
|
|
550,000
|
|
|
|
1
|
|
|
|
135
|
|
|
|
|
|
|
|
|
|
|
|
136
|
|
Issuance of restricted stock
|
|
|
501,182
|
|
|
|
1
|
|
|
|
174
|
|
|
|
|
|
|
|
|
|
|
|
175
|
|
Issuance of restricted stock to a vendor
|
|
|
116,613
|
|
|
|
|
|
|
|
68
|
|
|
|
|
|
|
|
|
|
|
|
68
|
|
Exercise of warrants
|
|
|
15,186,748
|
|
|
|
15
|
|
|
|
9,484
|
|
|
|
|
|
|
|
|
|
|
|
9,499
|
|
Noncash stock-based
compensation
|
|
|
|
|
|
|
|
|
|
|
351
|
|
|
|
|
|
|
|
|
|
|
|
351
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2015
|
|
|
48,580,355
|
|
|
$
|
49
|
|
|
$
|
119,797
|
|
|
$
|
71
|
|
|
$
|
(117,253
|
)
|
|
$
|
(2,664
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,032
|
)
|
|
|
(3,032
|
)
|
Net unrealized losses on foreign currency
translation, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4
|
)
|
|
|
|
|
|
|
(4
|
)
|
Issuance of restricted stock
|
|
|
1,021,763
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
Restricted stock issued to settle liability
|
|
|
179,773
|
|
|
|
|
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
|
51
|
|
Exercise of warrants
|
|
|
906
|
|
|
|
-
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
Issuance of warrants
|
|
|
|
|
|
|
|
|
|
|
389
|
|
|
|
|
|
|
|
|
|
|
|
389
|
|
Noncash stock-based
compensation
|
|
|
|
|
|
|
|
|
|
|
597
|
|
|
|
|
|
|
|
|
|
|
|
597
|
|
Balance, December 31, 2016
|
|
|
49,782,797
|
|
|
$
|
50
|
|
|
$
|
120,835
|
|
|
$
|
67
|
|
|
$
|
(120,285
|
)
|
|
$
|
667
|
|
The
accompanying notes are an integral part of these consolidated financial statements.
NEPHROS,
INC. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(In
Thousands)
|
|
Years
Ended December 31,
|
|
|
|
2016
|
|
|
2015
|
|
|
|
|
|
|
|
|
Operating activities
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(3,032
|
)
|
|
$
|
(3,088
|
)
|
Adjustments to reconcile net loss to
net cash used in operating activities:
|
|
|
|
|
|
|
|
|
Depreciation of property and equipment
|
|
|
19
|
|
|
|
1
|
|
Amortization of
license and supply agreement
|
|
|
211
|
|
|
|
211
|
|
Non-cash stock-based compensation, including
stock options and restricted stock
|
|
|
551
|
|
|
|
489
|
|
Non-employee stock-based compensation
|
|
|
46
|
|
|
|
68
|
|
Change in fair value of warrant liability
|
|
|
-
|
|
|
|
(2,099
|
)
|
Warrant modification
|
|
|
-
|
|
|
|
1,761
|
|
Inventory reserve
|
|
|
27
|
|
|
|
-
|
|
Allowance for doubtful accounts reserve
|
|
|
35
|
|
|
|
15
|
|
Amortization of debt discount
|
|
|
53
|
|
|
|
-
|
|
Gain on foreign currency transactions
|
|
|
(4
|
)
|
|
|
(7
|
)
|
(Increase) decrease in operating assets:
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(17
|
)
|
|
|
(302
|
)
|
Inventory
|
|
|
103
|
|
|
|
(405
|
)
|
Prepaid expenses and other current assets
|
|
|
(10
|
)
|
|
|
(144
|
)
|
Increase (decrease) in operating liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
|
(76
|
)
|
|
|
(176
|
)
|
Accrued expenses
|
|
|
51
|
|
|
|
(69
|
)
|
Deferred revenue
|
|
|
(69
|
)
|
|
|
(70
|
)
|
Net cash used in operating activities
|
|
|
(2,112
|
)
|
|
|
(3,815
|
)
|
|
|
|
|
|
|
|
|
|
Investing activities
|
|
|
|
|
|
|
|
|
Purchases of
property and equipment
|
|
|
(45
|
)
|
|
|
(13
|
)
|
Net cash used in investing activities
|
|
|
(45
|
)
|
|
|
(13
|
)
|
|
|
|
|
|
|
|
|
|
Financing activities
|
|
|
|
|
|
|
|
|
Proceeds from issuance of unsecured
note
|
|
|
1,187
|
|
|
|
-
|
|
Proceeds from issuance of common stock
|
|
|
-
|
|
|
|
1,340
|
|
Proceeds from exercise of warrants
|
|
|
1
|
|
|
|
2,451
|
|
Payment of senior
secured notes
|
|
|
-
|
|
|
|
-
|
|
Net cash provided by financing activities
|
|
|
1,188
|
|
|
|
3,791
|
|
Effect of exchange
rates on cash
|
|
|
(4
|
)
|
|
|
1
|
|
Net decrease in cash
|
|
|
(973
|
)
|
|
|
(36
|
)
|
Cash, beginning
of year
|
|
|
1,248
|
|
|
|
1,284
|
|
Cash, end of
year
|
|
$
|
275
|
|
|
$
|
1,248
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow
information
|
|
|
|
|
|
|
|
|
Cash paid for
interest expense
|
|
$
|
113
|
|
|
$
|
43
|
|
Cash paid for
income taxes
|
|
$
|
11
|
|
|
$
|
5
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of noncash financing
activities
|
|
|
|
|
|
|
|
|
Fair
value
of warrants issued with unsecured note payable
|
|
$
|
393
|
|
|
$
|
-
|
|
Investment in
lease receivable, net
|
|
$
|
92
|
|
|
$
|
-
|
|
Cost of equipment
in sales-type lease
|
|
$
|
92
|
|
|
$
|
-
|
|
Restricted stock
issued to settle liability
|
|
$
|
51
|
|
|
$
|
36
|
|
Deposit on inventory
reclassified from prepaid expenses and other current assets to inventory
|
|
$
|
18
|
|
|
$
|
-
|
|
Deposit on property
and equipment reclassified from prepaid expenses and other current assets to property and equipment
|
|
$
|
124
|
|
|
$
|
-
|
|
Deemed dividend
as a result of warrant modification
|
|
$
|
-
|
|
|
$
|
73
|
|
Issuance of common
stock as commitment fee
|
|
$
|
-
|
|
|
$
|
163
|
|
Extinguishment
of warrant liability
|
|
$
|
-
|
|
|
$
|
5,287
|
|
The
accompanying notes are an integral part of these consolidated financial statements.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
1 - Organization and Nature of Operations
Nephros,
Inc. (“Nephros” or the “Company”) was incorporated under the laws of the State of Delaware on April 3,
1997. Nephros was founded by health professionals, scientists and engineers affiliated with Columbia University to develop advanced
End Stage Renal Disease (“ESRD”) therapy technology and products. The Company has two products in the hemodiafiltration
(“HDF”) modality to deliver therapy for ESRD patients. These are the OLpūr mid-dilution HDF filter or “dialyzer,”
designed expressly for HDF therapy, and the OLpūr H2H HDF module, an add-on module designed to allow the most common types
of hemodialysis machines to be used for HDF therapy. In 2009, the Company introduced its Dual Stage Ultrafilter (“DSU”)
water filter, which represented a new and complementary product line to the Company’s ESRD therapy business. The DSU incorporates
the Company’s unique and proprietary dual stage filter architecture.
On
June 4, 2003, Nephros International Limited was incorporated under the laws of Ireland as a wholly-owned subsidiary of the Company.
In August 2003, the Company established a European Customer Service and financial operations center in Dublin, Ireland.
The
U.S. facilities, located at 41 Grand Avenue, River Edge, New Jersey, 07661, are used to house the Company’s corporate headquarters
and research facilities.
Note
2 - Summary of Significant Accounting Policies
Principles
of Consolidation and Basis of Presentation
The
accompanying consolidated financial statements include the accounts of the Company and its wholly owned subsidiary, Nephros International
Limited. All intercompany accounts and transactions have been eliminated in consolidation.
Use
of Estimates in the Preparation of Financial Statements
The
preparation of consolidated 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 amount of revenues
and expenses, during the reporting period. Actual results could differ materially from those estimates. Included in these estimates
are assumptions about the valuation of the warrant liability, the collection of accounts receivable, value of inventories, useful
life of fixed assets and intangible assets, assumptions used in determining stock compensation such as expected volatility and
risk-free interest rate and the ability of the Company to continue as a going concern.
Reclassifications
Certain
reclassifications were made to the prior year’s amounts to conform to the 2016 presentation. Other assets, net, as presented
as of December 31, 2015 is now presented as license and supply agreement, net and other asset, respectively.
Going
Concern
The
accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern.
The Company’s recurring losses and difficulty in generating sufficient cash flow to meet its obligations and sustain its
operations raise substantial doubt about its ability to continue as a going concern. The Company’s consolidated financial
statements do not include any adjustments that might result from the outcome of this uncertainty.
The
Company has incurred significant losses from operations in each quarter since inception. In addition, the Company has not generated
positive cash flow from operations for the years ended December 31, 2016 and 2015. To become profitable, the Company must increase
revenue substantially and achieve and maintain income from operations. If the Company is not able to increase revenue and generate
income from operations sufficiently to achieve profitability, its results of operations and financial condition will be materially
and adversely affected.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
On
March 17, 2017, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain purchasers,
including members of the Company’s management, identified therein. Pursuant to the Purchase Agreement, the Company agreed
to issue and sell, and the purchasers agreed to purchase, an aggregate of 4,059,994 shares at a price of $0.30 per share for total
gross proceeds of approximately $1.2 million. In addition, the Company will issue to the purchasers warrants to purchase an aggregate
of 4,059,994 shares of common stock. The warrants will have an exercise price of $0.30 per share and will be exercisable for a
five-year term. See Note 14 for further discussion.
On
June 7, 2016, the Company received gross proceeds of approximately $1,187,000 in connection with the issuance of unsecured promissory
notes and warrants. The portion of the outstanding unsecured promissory notes held by related parties comprised of entities controlled
by a member of management and by Lambda Investors LLC (“Lambda”), the majority shareholder, amounted to $30,000 and
$300,000, respectively. The outstanding principal under the Notes accrues interest at a rate of 11% per annum. In addition to
the Notes, the Company issued Warrants to purchase approximately 2.4 million shares of the Company’s common stock to the
investors in the Agreement. The Warrants have an exercise price of $0.30 per share and are exercisable for 5 years from the issuance
date. See Note 7 for further discussion.
On
December 23, 2015, the Company received proceeds of approximately $688,000 in connection with its offer to holders of certain
warrants of the opportunity to exercise their warrants at a temporarily reduced cash exercise price. Warrant holders elected to
exercise warrants to purchase an aggregate of 3,442,521 shares of the Company’s common stock at the reduced cash exercise
price of $0.20 per share, providing a total of approximately $688,000 in gross proceeds to the Company. Of the 3,442,521 shares
issued, 2,782,577 are held by Lambda, the majority shareholder. The warrants that were not exercised pursuant to the offer to
exercise will remain in effect, with an exercise price of $0.40 per share of common stock.
On
September 29, 2015, the Company issued 11,742,100 shares of common stock to Lambda, the majority shareholder, for warrants exercised
and received approximately $1,761,000 in cash proceeds. The exercise price for each warrant was $0.15. See Note 3 for further
discussion.
On
July 24, 2015, the Company entered into a purchase agreement (the “Purchase Agreement”), together with a registration
rights agreement (the “Registration Rights Agreement”), with Lincoln Park Capital Fund, LLC (“Lincoln Park”),
pursuant to which the Company has the right to sell and Lincoln Park has the obligation to purchase up to $10,000,000 of the Company’s
common stock. In connection with the Purchase Agreement, the Company issued to Lincoln Park 250,000 shares of common stock for
no proceeds. Pursuant to the Purchase Agreement, in September 2015, the Company issued and sold 300,000 shares of common stock
to Lincoln Park at a per share purchase price of $0.45, resulting in gross proceeds of $136,000. See Note 11 - Stockholders’
Equity (Deficit).
On
May 18, 2015, the Company raised gross proceeds of approximately $1,230,000 through the private placement of 1,834,299 units of
its securities. Each unit consisted of one share of its common stock and a five-year warrant to purchase one-half of one share
of the Company’s common stock. The purchase price for each unit was $0.67. The 917,149 warrants issued are exercisable at
a price of $0.85 per share. See Note 11 - Stockholders’ Equity (Deficit).
There
can be no assurance that the Company’s future cash flow will be sufficient to meet its obligations and commitments. If the
Company is unable to generate sufficient cash flow from operations in the future to service its commitments, the Company will
be required to adopt alternatives, such as seeking to raise debt or equity capital, curtailing its planned activities or ceasing
its operations. There can be no assurance that any such actions could be effected on a timely basis or on satisfactory terms or
at all, or that these actions would enable the Company to continue to satisfy its capital requirements.
Recently
Adopted Accounting Pronouncement
In
August 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”)
2014-15, “Presentation of Financial Statements - Going Concern (Subtopic 205-40): Disclosure of Uncertainties about an Entity’s
Ability to Continue as a Going Concern.” ASU 2014-15 provides guidance about management’s responsibility to evaluate
whether there is substantial doubt about an entity’s ability to continue as a going concern and sets rules for how this
information should be disclosed in the financial statements. ASU 2014-15 is effective for annual periods ending after December
15, 2016 and interim periods thereafter. The Company adopted ASU 2014-15 as of the fiscal year ended December 31, 2016.
In
April 2015, the FASB issued ASU 2015-03, “Interest - Imputation of Interest (Subtopic 2015-03): Simplifying the Presentation
of Debt Issuance Costs” related to the presentation requirements for debt issuance costs and debt discount and premium.
ASU 2015-03 requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct
deduction from the carrying amount of that debt liability, consistent with debt discounts. The recognition and measurement guidance
for debt issuance costs are not affected by ASU 2015-03. ASU 2015-03 is effective for annual and interim periods beginning after
December 15, 2015. The Company adopted ASU 2015-03 upon entering into the Note and Warrant Agreement as discussed in Note 7.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
Concentration
of Credit Risk
The
Company deposits its cash in financial institutions. At times, such deposits may be in excess of insured limits. To date, the
Company has not experienced any impairment losses on its cash.
Major
Customers
For
the year ended December 31, 2016, four customers accounted for 55% of the Company’s revenues. For the year ended December
31, 2015, four customers accounted for 67% of the Company’s revenues. As of December 31, 2016, four customers accounted
for 59% of the Company’s accounts receivable. As of December 31, 2015, four customers accounted for 73% of the Company’s
accounts receivable.
Accounts
Receivable
The
Company provides credit terms to customers in connection with purchases of the Company’s products. Management periodically
reviews customer account activity in order to assess the adequacy of the allowances provided for potential collection issues and
returns. Factors considered include economic conditions, each customer’s payment and return history and credit worthiness.
Adjustments, if any, are made to reserve balances following the completion of these reviews to reflect management’s best
estimate of potential losses. The allowance for doubtful accounts was approximately $50,000 and $15,000 as of December 31, 2016
and 2015, respectively. There was no allowance for sales returns at December 31, 2016 or 2015. There were no write offs of accounts
receivable to bad debt expense during 2016 or 2015.
Inventory
The
Company engages third parties to manufacture and package inventory held for sale, takes title to certain inventory once manufactured,
and warehouses such goods until packaged for final distribution and sale. Inventory consists of finished goods held at the manufacturers’
facilities, and are valued at the lower of cost or market using the first-in, first-out method.
The
Company’s inventory reserve requirements are based on factors including the products’ expiration date and estimates
for the future sales of the product. If estimated sales levels do not materialize, the Company will make adjustments to its assumptions
for inventory reserve requirements.
License
and Supply Rights
The
Company’s rights under the License and Supply Agreement are capitalized and stated at cost, less accumulated amortization,
and are amortized using the straight-line method over the term of the License and Supply Agreement. The License and Supply Agreement
term is from April 23, 2012 through December 31, 2022. The Company determines amortization periods for licenses based on its assessment
of various factors impacting estimated useful lives and cash flows of the acquired rights. Such factors include the expected launch
date of the product, the strength of the intellectual property protection of the product and various other competitive, developmental
and regulatory issues, and contractual terms.
Patents
The
Company has filed numerous patent applications with the United States Patent and Trademark Office and in foreign countries. All
costs and direct expenses incurred in connection with patent applications have been expensed as incurred and are included in Selling,
General and Administrative expenses on the accompanying consolidated statement of operations and comprehensive loss.
Property
and Equipment, net
Property
and equipment, net is stated at cost less accumulated depreciation. These assets are depreciated over their estimated useful lives
of three to seven years using the straight line method.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
Impairment
for Long-Lived Assets
The
Company adheres to Accounting Standards Codification (“ASC”) Topic 360 and periodically evaluates whether current
facts or circumstances indicate that the carrying value of its depreciable assets to be held and used may not be recoverable.
If such circumstances are determined to exist, an estimate of undiscounted future cash flows produced by the long-lived assets,
or the appropriate grouping of assets, is compared to the carrying value to determine whether impairment exists. If an asset is
determined to be impaired, the loss is measured based on the difference between the asset’s fair value and its carrying
value. For long-lived assets, the estimate of fair value is based on various valuation techniques, including a discounted value
of estimated future cash flows. The Company reports an asset to be disposed of at the lower of its carrying value or its fair
value less costs to sell. There were no impairment losses for long-lived assets recorded for the years ended December 31, 2016
and December 31, 2015.
Fair
Value of Financial Instruments
The
carrying amounts of cash, accounts receivable, accounts payable and accrued expenses approximate fair value due to the short-term
maturity of these instruments. See Note 3 for information on the fair value of derivative liabilities.
The
carrying amounts of the investment in lease, net, and the unsecured long-term note payable approximate fair value as of December
31, 2016 because those financial instruments bear interest at rates that approximate current market rates for similar agreements
with similar maturities and credit.
Revenue
Recognition
Revenue
is recognized in accordance with ASC Topic 605. Four basic criteria must be met before revenue can be recognized: (i) persuasive
evidence of an arrangement exists; (ii) delivery has occurred or services have been rendered; (iii) the fee is fixed or determinable;
and (iv) collectability is reasonably assured.
The
Company recognizes revenue related to product sales when delivery is confirmed by its external logistics provider and the other
criteria of ASC Topic 605 are met. Product revenue is recorded net of returns and allowances. All costs and duties relating to
delivery are absorbed by Nephros. All shipments are currently received directly by the Company’s customers.
Deferred
revenue was approximately $348,000 and $417,000 on the accompanying consolidated balance sheets as of December 31, 2016 and 2015,
respectively, and is related to the License Agreement with Bellco. The Company has recognized approximately $2,728,000 of revenue
related to this license agreement to date, including approximately $69,000 for the year ended December 31, 2016, resulting in
$348,000 being deferred over the remainder of the expected obligation period (see Note 13). The Company recognized approximately
$70,000 of revenue related to this license agreement for the year ended December 31, 2015.
Beginning
on January 1, 2015, Bellco began paying the Company a royalty based on the number of units of certain products sold per year (see
Note 13). The Company recognized royalty income of approximately $114,000 and $84,000, respectively, for the years ended December
31, 2016 and 2015.
The
Company also invoiced Biocon 1, LLC approximately $24,000 related to consulting services provided during the fiscal year ended
December 31, 2016, which is included in license, royalty and other revenue on the consolidated statement of operations and comprehensive
loss. Approximately $24,000 is also included in accounts receivable as of December 31, 2016.
On
May 6, 2015, the Company entered into a Sublicense Agreement with CamelBak Products, LLC (“CamelBak”). The Company
granted CamelBak an exclusive, non-transferable, worldwide (with the exception of Italy) sublicense and license, in each case
solely to market, sell, distribute, import and export the HydraGuard individual water treatment devices. In exchange for the rights
granted to CamelBak, CamelBak agreed, through December 31, 2022, to pay the Company a percentage of the gross profit on any sales
made to a branch of the U.S. military, subject to certain exceptions, and to pay the Company a fixed per-unit fee for any other
sales made. The Company recognized royalty revenue of $10,000 during the fiscal year ended December 31, 2016.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
On
October 17, 2016, the Company entered into a Sublicense Agreement with Roving Blue, Inc. (“Roving Blue”). The Company
granted Roving Blue an exclusive, non-transferable, worldwide (with the exception of Italy) sublicense and license. In exchange
for the rights granted to Roving Blue, Roving Blue paid the Company an upfront fee of $10,000, which was recognized as royalty
revenue during the fiscal year ended December 31, 2016. The Sublicense Agreement with Roving Blue also includes an agreement for
Roving Blue to pay the Company a fixed per-unit fee for sales made, subject to certain minimums.
Shipping
and Handling Costs
Shipping
and handling costs charged to customers are recorded as cost of goods sold and were approximately $24,000 and $12,000 for the
years ended December 31, 2016 and 2015, respectively.
Research
and Development Costs
Research
and development costs are expensed as incurred.
Stock-Based
Compensation
The
fair value of stock options is recognized as stock-based compensation expense in the Company’s consolidated statement of
operations and comprehensive loss. The Company calculates employee stock-based compensation expense in accordance with ASC 718.
The Company accounts for stock option grants to consultants under the provisions of ASC 505-50, and as such, these stock options
are revalued at each reporting period through the vesting period. The fair value of the Company’s stock option awards are
estimated using a Black-Scholes option valuation model. This model requires the input of highly subjective assumptions and elections
including expected stock price volatility and the estimated life of each award. In addition, the calculation of compensation costs
requires that the Company estimate the number of awards that will be forfeited during the vesting period. The fair value of stock-based
awards is amortized over the vesting period of the award.
Warrants
The
Company accounts for stock warrants as either equity instruments or derivative liabilities depending on the specific terms of
the warrant agreement. Stock warrants that allow for cash settlement or provide for anti-dilution of the warrant exercise price
under certain conditions are accounted for as derivative liabilities. The Company classifies derivative warrant liabilities on
the balance sheet as a liability, which is revalued using a binomial options pricing model at each balance sheet date subsequent
to the initial issuance. A binomial options pricing model requires the input of highly subjective assumptions and elections including
expected stock price volatility and the estimated life of each award. The changes in fair value of the derivative warrant liabilities
are remeasured at each balance sheet date and the resulting changes in fair value are recorded in current period earnings.
Amortization
of Debt Issuance Costs
The
Company accounts for debt issuance costs in accordance with ASU 2015-03, which requires that costs paid directly to the issuer
of a recognized debt liability be reported in the balance sheet as a direct deduction from the carrying amount of that debt liability,
consistent with debt discounts. The Company amortizes the debt discount, including debt issuance costs, in accordance with ASC
835, Interest, over the term of the associated debt. See Note 7 for a discussion of the Company’s unsecured long-term note
payable.
Other
Income (Expense), net
Other
income of approximately $4,000 and $37,000, respectively, for the years ended December 31, 2016 and 2015 is primarily due to foreign
currency transaction gains.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
Income
Taxes
The
Company accounts for income taxes in accordance with ASC Topic 740, which requires accounting for deferred income taxes under
the asset and liability method. Deferred income taxes are recognized for the tax consequences of temporary differences by applying
enacted statutory tax rates applicable in future years to differences between the financial statement carrying amounts and the
tax basis of existing assets and liabilities.
For
financial reporting purposes, the Company has incurred a loss in each period since its inception. Based on available objective
evidence, including the Company’s history of losses, management believes it is more likely than not that the net deferred
tax assets will not be fully realizable. Accordingly, the Company provided for a full valuation allowance against its net deferred
tax assets at December 31, 2016 and 2015.
ASC
Topic 740 prescribes, among other things, a recognition threshold and measurement attributes for the financial statement recognition
and measurement of uncertain tax positions taken or expected to be taken in a company’s income tax return. ASC 740
utilizes a two-step approach for evaluating uncertain tax positions. Step one, or recognition, requires a company to determine
if the weight of available evidence indicates a tax position is more likely than not to be sustained upon audit, including resolution
of related appeals or litigation processes, if any. Step two, or measurement, is based on the largest amount of benefit,
which is more likely than not to be realized on settlement with the taxing authority. The Company is subject to income tax examinations
by major taxing authorities for all tax years subsequent to 2012. During the years ended December 31, 2016 and 2015, the
Company recognized no adjustments for uncertain tax positions. However, management’s conclusions regarding this policy may
be subject to review and adjustment at a later date based on factors including, but not limited to, on-going analyses of and changes
to tax laws, regulation and interpretations, thereof.
Net
Income (loss) per Common Share
Basic
income (loss) per common share is calculated by dividing net income (loss) available to common shareholders by the number of weighted
average common shares issued and outstanding. Diluted earnings (loss) per common share is calculated by dividing net income (loss)
available to common shareholders by the weighted average number of common shares issued and outstanding for the period, plus amounts
representing the dilutive effect from the exercise of stock options and warrants, as applicable. The Company calculates dilutive
potential common shares using the treasury stock method, which assumes the Company will use the proceeds from the exercise of
stock options and warrants to repurchase shares of common stock to hold in its treasury stock reserves.
The
following securities have been excluded from the dilutive per share computation as they are antidilutive:
|
|
December
31,
|
|
|
|
2016
|
|
|
2015
|
|
Shares underlying options
outstanding
|
|
|
4,592,347
|
|
|
|
4,303,638
|
|
Shares underlying warrants outstanding
|
|
|
3,291,149
|
|
|
|
2,482,563
|
|
Unvested restricted stock
|
|
|
957,336
|
|
|
|
501,182
|
|
Foreign
Currency Translation
Foreign
currency translation is recognized in accordance with ASC Topic 830. The functional currency of Nephros International Limited
is the Euro and its translation gains and losses are included in accumulated other comprehensive income. The balance sheet is
translated at the year-end rate. The statement of operations is translated at the weighted average rate for the year.
Comprehensive
Income (Loss)
Comprehensive
income (loss), as defined in ASC 220, is the total of net income (loss) and all other non-owner changes in equity (or other comprehensive
income (loss)). The Company’s other comprehensive income (loss) consists only of foreign currency translation adjustments.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
Recent
Accounting Pronouncements
In
May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”)
2014-09, “Revenue from Contracts with Customers,” related to revenue recognition. The underlying principle of the
new standard is that a business or other organization will recognize revenue to depict the transfer of promised goods or services
to customers in an amount that reflects what it expects to be entitled to in exchange for the goods or services. The standard
also requires more detailed disclosures and provides additional guidance for transactions that were not addressed completely in
prior accounting guidance. ASU 2014-09 provides alternative methods of initial adoption, and was effective for fiscal years beginning
after December 15, 2016, and interim periods within those annual periods. Early adoption was not permitted. In August, 2015, the
FASB issued ASU No. 2015-14, “Revenue from Contracts with Customers: Deferral of the Effective Date”. The amendment
in this ASU defers the effective date of ASU No. 2014-09 for all entities for one year. Public business entities, certain not-for-profit
entities, and certain employee benefit plans should apply the guidance in ASU 2014-09 to fiscal years beginning after December
15, 2017, including interim reporting periods within that fiscal year. Earlier application is permitted only as of fiscal years
beginning after December 31, 2016, including interim reporting periods with that fiscal year. The Company is currently reviewing
the revised guidance and assessing the potential impact on its consolidated financial statements.
In
July 2015, the FASB issued ASU No. 2015-11, “Simplifying the Measurement of Inventory,” that requires inventory be
measured at the lower of cost and net realizable value and options that currently exist for market value be eliminated. The standard
defines net realizable value as estimated selling prices in the ordinary course of business, less reasonably predictable costs
of completion, disposal, and transportation and is effective for fiscal years beginning after December 15, 2016 and interim periods
within those fiscal years with early adoption permitted. The guidance should be applied prospectively. The Company does not believe
that the adoption of ASU 2015-11 will have a significant impact on its consolidated financial statements.
In
November 2015, the FASB issued ASU No. 2015-17, “Balance Sheet Classification of Deferred Taxes,” that requires that
deferred tax liabilities and assets be classified as noncurrent in a classified statement of financial position. The current requirement
that deferred tax liabilities and assets of a tax-paying component of an entity be offset and presented as a single amount is
not affected by this amendment. The new guidance is effective for fiscal years, and interim periods within those years, beginning
after December 15, 2016. Early adoption is permitted and the standard may be applied either retrospectively or on a prospective
basis to all deferred tax assets and liabilities. The Company does not believe that the adoption of ASU 2015-17 will have a significant
impact on its consolidated financial statements.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
In
January 2016, the FASB issued ASU No. 2016-01, “Recognition and Measurement of Financial Assets and Financial Liabilities,”
that modifies certain aspects of the recognition, measurement, presentation, and disclosure of financial instruments. The accounting
standard update is effective for fiscal years, and interim periods within those years, beginning after December 15, 2017, and
early adoption is permitted. The Company is currently assessing the impact that adopting this new accounting guidance will have
on its consolidated financial statements.
In
February 2016, the FASB issued ASU No. 2016-02, “Leases”, that discusses how an entity should account for lease assets
and lease liabilities. The guidance specifies that an entity who is a lessee under lease agreements should recognize lease assets
and lease liabilities for those leases classified as operating leases under previous FASB guidance. Accounting for leases by lessors
is largely unchanged under the new guidance. The guidance is effective for the Company beginning in the first quarter of 2019.
Early adoption is permitted. In transition, lessees and lessors are required to recognize and measure leases at the beginning
of the earliest period presented using a modified retrospective approach. The Company is evaluating the impact of adopting this
guidance on its consolidated financial statements.
In
March 2016, the FASB issued ASU 2016-08, “Principal versus Agent Considerations (Reporting Revenue Gross versus Net),”
which clarifies the implementation guidance on principal versus agent considerations. The amendments in this update do not change
the core principle of ASU 2014-09. The effective date and transition requirements for the amendments in this update are the same
as the effective date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14 defers the effective date of
ASU 2014-09 by one year. The Company is assessing the impact that adopting this new accounting guidance will have on its consolidated
financial statements.
In
March 2016, the FASB issued ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting,” which simplifies
several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification
of awards as either equity or liabilities, and classification on the statement of cash flows. The guidance is effective for the
Company beginning in the first quarter of fiscal year 2017. Early adoption is permitted. The Company is evaluating the impact
of adopting this guidance on its consolidated financial statements.
In
April 2016, the FASB issued ASU 2016-10, “Identifying Performance Obligations and Licensing,” which clarifies the
implementation guidance for performance obligations and licensing. The amendments in this update do not change the core principle
of ASU 2014-09. The effective date and transition requirements for the amendments in this update are the same as the effective
date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14 defers the effective date of ASU 2014-09 by one
year. The Company is currently assessing the impact that adopting this new accounting guidance will have on its consolidated financial
statements.
In
May 2016, the FASB issued ASU 2016-12, “Narrow Scope Improvements and Practical Expedients,” which clarifies the accounting
for certain aspects of guidance issued in ASU 2014-09, including assessing collectability and noncash consideration. The clarifications
in this update do not change the core principle of ASU 2014-09. The effective date and transition requirements for the amendments
in this update are the same as the effective date and transition requirements of ASU 2014-09. As discussed above, ASU 2015-14
defers the effective date of ASU 2014-09 by one year. The Company is currently assessing the impact that adopting this new accounting
guidance will have on its consolidated financial statements.
In
June 2016, the FASB issued ASU 2016-13, “Measurement of Credit Losses on Financial Instruments,” which replaces the
incurred loss impairment methodology in current GAAP with a methodology that reflects expected credit losses and requires consideration
of a broader range of reasonable and supportable information to inform credit loss estimates. The guidance is effective for the
Company beginning in the first quarter of fiscal year 2020. Early adoption is permitted beginning in the first quarter of fiscal
year 2019. The Company is evaluating the impact of adopting this guidance on its consolidated financial statements.
In
August 2016, the FASB issued ASU 2016-15, “Classification of Certain Cash Receipts and Cash Payments,” which clarifies
how certain cash receipts and cash payments are presented and classified in the statement of cash flows in order to reduce diversity
in practice. The guidance is effective for the Company beginning in the first quarter of fiscal year 2018. Early adoption is permitted.
The Company is evaluating the impact of adopting this guidance on its consolidated financial statements.
In
November 2016, the FASB issued ASU 2016-17, “Restricted Cash,” which clarifies how restricted cash is presented and
classified in the statement of cash flows. The guidance is effective for the Company beginning in the first quarter of fiscal
year 2018. Early adoption is permitted. The Company is evaluating the impact of adopting this guidance on its consolidated financial
statements.
In
January 2017, the FASB issued ASU 2017-01, “Clarifying the Definition of a Business,” which clarifies the definition
of a business in a business combination. The guidance is effective for the Company beginning in the first quarter of fiscal year
2018. Early adoption is permitted. The Company does not expect this ASU to have a significant impact on its consolidated financial
statements.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
2 - Summary of Significant Accounting Policies (continued)
In
January 2017, the FASB issued ASU 2017-04, “Simplifying the Test for Goodwill Impairment,” which simplifies the test
for goodwill impairment. The guidance is effective for the Company beginning in the first quarter of fiscal year 2020. Early adoption
is permitted for interim or annual goodwill impairments tests after January 1, 2017. The Company does not expect this ASU to have
a significant impact on its consolidated financial statements.
Note
3 - Financial Instruments
The
fair value guidance requires fair value measurements be classified and disclosed in one of the following three categories:
|
●
|
Level
1: Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets
or liabilities;
|
|
|
|
|
●
|
Level
2: Quoted prices in markets that are not active, or inputs which are observable, either directly or indirectly, for substantially
the full term of the asset or liability;
|
|
|
|
|
●
|
Level
3: Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable
(i.e., supported by little or no market activity).
|
The
Company had outstanding warrants originally issued in 2007 (the “2007 Warrants”) that were accounted for as a derivative
liability until they were fully exercised on September 29, 2015. The 2007 Warrants were classified as a liability because the
transactions that would trigger the anti-dilution adjustment provision in the 2007 Warrants were not inputs to the fair value
of the warrants. The 2007 Warrants were recorded as liabilities at their estimated fair value at the date of issuance, with the
subsequent changes in estimated fair value recorded in changes in fair value of warrant liability in the Company’s consolidated
statement of operations and comprehensive income (loss) in each subsequent period. The Company utilized a binomial options pricing
model to value the 2007 Warrants at each reporting period.
The
estimated fair value of the 2007 Warrants was determined using Level 3 inputs. Inherent in a binomial options pricing model are
assumptions related to expected stock-price volatility, expected life, risk-free interest rate and dividend yield. The Company
estimates the volatility of its common stock based on historical volatility that matches the expected remaining life of the warrants.
The risk-free interest rate is based on the U.S. Treasury zero-coupon yield curve on the grant date for a maturity similar to
the expected remaining life of the warrants. The expected life of the warrants is assumed to be equivalent to their remaining
contractual term. The dividend rate is based on the historical rate, which the Company anticipates to remain at zero.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
3 - Financial Instruments (continued)
On
the consolidated statement of operations for the year ended December 31, 2015, the Company recorded income of approximately $2,099,000
as a result of the change in fair value of the warrant liability. A reconciliation of the warrant liability is as follows (in
thousands):
|
|
2007
Warrants
|
|
Balance at December 31, 2014
|
|
$
|
7,386
|
|
Decrease
in fair value of warrant liability
|
|
|
(2,099
|
)
|
Balance at September 29, 2015
|
|
$
|
5,287
|
|
The
following table summarizes the calculated aggregate fair value of the warrants, along with the assumptions utilized in the calculation:
|
|
September
29, 2015
|
|
Calculated aggregate value
|
|
$
|
5,287
|
|
Weighted average exercise price
|
|
$
|
0.30
|
|
Closing price per share of common stock
|
|
$
|
0.40
|
|
Volatility
|
|
|
137
|
%
|
Weighted average remaining expected
life (years)
|
|
|
4.2
|
|
Risk-free interest rate
|
|
|
1.4
|
%
|
Dividend yield
|
|
|
-
|
|
On
September 29, 2015, the Company entered into a Warrant Amendment and Exercise Agreement (the “Amendment”) with Lambda.
Pursuant to the Amendment, the Company agreed to reduce the current exercise price of the 2007 Warrants by 50%, to $0.15 per share,
in exchange for Lambda’s agreement to exercise the 2007 Warrants in their entirety immediately following the modification.
Upon exercise of the 2007 Warrants, the Company issued 11,742,100 shares of common stock to Lambda and received approximately
$1,761,000 in cash proceeds from Lambda. Following such exercise, no 2007 Warrants remain outstanding. The value of the 2007 Warrants
as of September 29, 2015, after the modification, was approximately $7,048,000, calculated as intrinsic value with an expected
term of zero. As a result, approximately $1,761,000 was recorded as warrant modification expense for the year ended December 31,
2015.
Note
4 - Inventory
The
Company’s inventory components as of December 31, 2016 and 2015 were as follows:
|
|
December
31,
|
|
|
|
2016
|
|
|
2015
|
|
Total gross inventory, finished
goods
|
|
$
|
528,000
|
|
|
$
|
634,000
|
|
Less: inventory
reserve
|
|
|
(49,000
|
)
|
|
|
(43,000
|
)
|
Total inventory
|
|
$
|
479,000
|
|
|
$
|
591,000
|
|
Note
5 - Prepaid Expenses and Other Current Assets
Prepaid
expenses and other current assets as of December 31, 2016 and 2015 were as follows:
|
|
December
31,
|
|
|
|
2016
|
|
|
2015
|
|
Prepaid insurance premiums
|
|
$
|
66,000
|
|
|
$
|
62,000
|
|
Deposit on equipment
|
|
|
-
|
|
|
|
124,000
|
|
Inventory in transit
|
|
|
-
|
|
|
|
18,000
|
|
Other
|
|
|
29,000
|
|
|
|
24,000
|
|
Prepaid expenses
and other current assets
|
|
$
|
95,000
|
|
|
$
|
228,000
|
|
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
6 - Property and Equipment, Net
Property
and equipment as of December 31, 2016 and 2015 was as follows:
|
|
|
|
December
31,
|
|
|
|
Life
|
|
2016
|
|
|
2015
|
|
Manufacturing equipment
|
|
3-5 years
|
|
$
|
690,000
|
|
|
$
|
611,000
|
|
Research equipment
|
|
5 years
|
|
|
37,000
|
|
|
|
37,000
|
|
Computer equipment
|
|
3-4 years
|
|
|
43,000
|
|
|
|
43,000
|
|
Furniture and
fixtures
|
|
7 years
|
|
|
37,000
|
|
|
|
37,000
|
|
Property and equipment, gross
|
|
|
|
|
807,000
|
|
|
|
728,000
|
|
Less: accumulated
depreciation
|
|
|
|
|
737,000
|
|
|
|
716,000
|
|
Property and
equipment, net
|
|
|
|
$
|
70,000
|
|
|
$
|
12,000
|
|
Depreciation
expense for each of the years ended December 31, 2016 and 2015 was approximately $19,000 and $1,000, respectively.
Note
7 - Unsecured Promissory Notes and Warrants
On
June 7, 2016, the Company entered into a Note and Warrant Agreement (the “Agreement”) with new creditors as well as
existing shareholders under which the Company issued unsecured promissory notes (“Notes”) and warrants (“Warrants”)
resulting in total gross proceeds to the Company during June 2016 of approximately $1,187,000. As of December 31, 2016, the portion
of the outstanding unsecured promissory notes held by related parties comprised of entities controlled by a member of management
and by Lambda Investors LLC (“Lambda”), the majority shareholder, amounted to $30,000 and $300,000, respectively.
The outstanding principal under the Notes accrues interest at a rate of 11% per annum. The Company is required to make interest
only payments on a semi-annual basis, and all outstanding principal under the Notes is repayable in cash on June 7, 2019, the
third anniversary of the date of issuance. In addition to the Notes, the Company issued Warrants to purchase approximately 2.4
million shares of the Company’s common stock to the investors in the Agreement. The Warrants have an exercise price of $0.30
per share and are exercisable for 5 years from the issuance date. The Warrants issued under the Agreement are indexed to the Company’s
common stock, therefore, the Company is accounting for the Warrants as a component of equity. In connection with the Agreement,
the Company incurred approximately $13,000 in legal fees.
The
approximately $1,187,000 in gross proceeds from the Agreement, along with the legal fees of approximately $13,000, were allocated
between the Notes and Warrants based on their relative fair values. The portion of the gross proceeds allocated to the Warrants
of approximately $393,000 was accounted for as additional paid-in capital. Approximately $4,000 of the legal fees were allocated
to the Warrants and recorded as a reduction to additional paid-in capital. The remainder of the gross proceeds of approximately
$794,000, net of the remainder of the fees of approximately $9,000, was allocated to the Notes with the fair value of the Warrants
resulting in a debt discount. The debt discount is being amortized to interest expense using the effective interest method in
accordance with ASC 835 over the term of the Agreement. Approximately $53,000 was recognized as amortization of debt discount
during the fiscal year ended December 31, 2016 and is included in interest expense on the consolidated statement of operations
and comprehensive loss. Approximately $77,000 was recognized as interest expense for the fiscal year ended December 31, 2016 for
interest payable to noteholders. For the year ended December 31, 2016, the amount of interest expense recognized related to related
parties comprised of entities controlled by a member of management and by Lambda Investors LLC (“Lambda”), the majority
shareholder, was approximately $2,000 and $19,000, respectively. As of December 31, 2016, approximately $65,000 of interest has
been paid to noteholders and approximately $12,000 of interest is included in accrued expenses on the consolidated balance sheet.
There were no unsecured long-term
notes payable outstanding as of December 31, 2015.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
8 - Accrued Expenses
Accrued
expenses as of December 31, 2016 and 2015 were as follows:
|
|
December
31,
|
|
|
|
2016
|
|
|
2015
|
|
Accrued legal
|
|
$
|
99,000
|
|
|
$
|
103,000
|
|
Accrued directors’ compensation
|
|
|
30,000
|
|
|
|
52,000
|
|
Accrued royalty
|
|
|
18,000
|
|
|
|
14,000
|
|
Accrued credits issued to customers
|
|
|
-
|
|
|
|
10,000
|
|
Accrued management bonus
|
|
|
19,000
|
|
|
|
-
|
|
Accrued accounting
|
|
|
6,000
|
|
|
|
1,000
|
|
Accrued interest
|
|
|
17,000
|
|
|
|
12,000
|
|
Accrued other
|
|
|
51,000
|
|
|
|
45,000
|
|
|
|
$
|
240,000
|
|
|
$
|
237,000
|
|
Note
9 - Income Taxes
A
reconciliation of the income tax provision computed at the statutory tax rate to the Company’s effective tax rate is as
follows:
|
|
2016
|
|
|
2015
|
|
U.S. federal statutory rate
|
|
|
35.00
|
%
|
|
|
34.00
|
%
|
Warrant liability
|
|
|
-
|
%
|
|
|
3.71
|
%
|
State & local taxes
|
|
|
(5.21
|
)%
|
|
|
5.78
|
%
|
Tax on foreign operations
|
|
|
-
|
%
|
|
|
0.36
|
%
|
State research and development credits
|
|
|
1.87
|
%
|
|
|
1.47
|
%
|
Other
|
|
|
0.97
|
%
|
|
|
(3.11
|
)%
|
Valuation allowance
|
|
|
(32.63
|
)%
|
|
|
(42.21
|
)%
|
Effective tax
rate
|
|
|
-
|
%
|
|
|
-
|
%
|
Significant
components of the Company’s deferred tax assets as of December 31, 2016 and 2015 are as follows:
|
|
2016
|
|
|
2015
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Net operating loss carry
forwards
|
|
$
|
29,861,148
|
|
|
$
|
29,092,799
|
|
Research and development credits
|
|
|
1,220,115
|
|
|
|
1,163,616
|
|
Nonqualified stock option compensation
expense
|
|
|
537,037
|
|
|
|
374,769
|
|
Other temporary
book - tax differences
|
|
|
254,813
|
|
|
|
258,445
|
|
Total deferred tax assets
|
|
|
31,873,112
|
|
|
|
30,889,629
|
|
Valuation allowance
for deferred tax assets
|
|
|
(31,873,112
|
)
|
|
|
(30,889,629
|
)
|
Net deferred
tax assets
|
|
$
|
-
|
|
|
$
|
-
|
|
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
9 - Income Taxes (continued)
A
valuation allowance has been recognized to offset the Company’s net deferred tax asset as it is more likely than not that
such net asset will not be realized. The Company primarily considered its historical loss and potential Internal Revenue Code
Section 382 limitations to arrive at its conclusion that a valuation allowance was required. The Company’s valuation allowance
increased $983,483 from December 31, 2015 to December 31, 2016.
At
December 31, 2016, the Company had Federal income tax net operating loss carryforwards of $79,458,888 and New Jersey income tax
net operating loss carryforwards of $19,233,370. Foreign income tax net operating loss carryforwards were $7,403,077 as of December
31, 2016. The Company also had Federal research tax credit carryforwards of $1,220,115 at December 31, 2016 and $1,163,616 at
December 31, 2015. The Company’s net operating losses and research credits may ultimately be limited by Section 382 of the
code and, as a result, it may be unable to offset future taxable income (if any) with losses, or its tax liability with credits,
before such losses and credits expire. The Federal and New Jersey net operating loss carryforwards and Federal tax credit carryforwards
will expire at various times between 2017 and 2035 unless utilized.
The
Company has analyzed the tax positions taken or expected to be taken in its tax returns and concluded it has no liability related
to uncertain tax positions. It is the Company’s policy to report interest and penalties, if any, related to unrecognized
tax benefits in income tax expense.
Note
10 - Stock Plans, Share-Based Payments and Warrants
Stock
Plans
In
2015, the Board of Directors adopted the Nephros, Inc. 2015 Equity Incentive Plan (“2015 Plan”). Under the 2015 Plan,
7,000,000 shares are reserved and authorized for awards and the maximum contractual term is 10 years for stock options issued
under the 2015 Plan.
The
Company’s previously adopted and approved plan, the 2004 Stock Incentive Plan (“2004 Plan”), expired in the
year ended December 31, 2014.
As
of December 31, 2016, 3,042,568 options had been issued to employees under the 2015 Plan and were outstanding. The options issued
to employees expire on various dates between May 7, 2025 and December 14, 2026. As of December 31, 2016, 281,656 options had been
issued to non-employees under the 2015 Plan, were outstanding and will expire on various dates between May 31, 2021 and May 7,
2025. Taking into account all options and restricted stock granted under the 2015 Plan, 1,865,610 shares are available for future
grant under the 2015 Plan. Options currently outstanding are fully vested or will vest upon a combination of the following: immediate
vesting, performance-based vesting or straight line vesting of two or four years. Of the 3,042,568 options granted to employees,
1,604,725 options will vest when the specified performance condition is met.
As
of December 31, 2016, 475,263 options had been issued to employees under the 2004 Plan and were outstanding. The options expire
on various dates between January 6, 2019 and February 5, 2024. As of December 31, 2016, 792,861 options had been issued to non-employees
under the 2004 Plan and were outstanding. Such options expire at various dates between November 30, 2017 and November 17, 2024.
No shares are available for future grants under the 2004 Plan. Options currently outstanding are fully vested or are currently
vesting over a period of four years.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
10 - Stock Plans, Share-Based Payments and Warrants (continued)
Share-Based
Payment
Expense
is recognized, net of expected forfeitures, over the vesting period of the options. Stock based compensation expense recognized
for the years ended December 31, 2016 and 2015 was approximately $388,000 and approximately $328,000, respectively. Approximately
$5,000 of total stock based compensation expense is the result of a modification of stock options awards issued to a non-employee
director who is no longer serving as a director for the Company.
Approximately
$363,000 and $306,000, respectively, has been recognized in Selling, General and Administrative expenses on the consolidated statement
of operations and comprehensive loss for the years ended December 31, 2016 and 2015. Approximately $25,000 and $22,000, respectively,
has been recognized in Research and Development expenses on the consolidated statement of operations and comprehensive loss for
the years ended December 31, 2016 and 2015.
The
following table summarizes the option activity for the years ended December 31, 2016 and 2015:
|
|
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
Outstanding at December 31, 2014
|
|
|
2,472,234
|
|
|
$
|
0.96
|
|
Options granted
|
|
|
2,911,829
|
|
|
|
0.56
|
|
Options forfeited or expired
|
|
|
(1,080,425
|
)
|
|
|
1.28
|
|
Outstanding at December 31, 2015
|
|
|
4,303,638
|
|
|
|
0.65
|
|
Options granted
|
|
|
510,520
|
|
|
|
0.37
|
|
Options forfeited
or expired
|
|
|
(221,811
|
)
|
|
|
1.04
|
|
Outstanding at December 31, 2016
|
|
|
4,592,347
|
|
|
$
|
0.60
|
|
The
following table summarizes the options exercisable and vested and expected to vest as of December 31, 2016 and 2015:
|
|
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
Exercisable at December
31, 2015
|
|
|
1,377,665
|
|
|
$
|
0.84
|
|
Vested and expected
to vest at December 31, 2015
|
|
|
4,133,932
|
|
|
$
|
0.66
|
|
Exercisable at December 31, 2016
|
|
|
1,866,019
|
|
|
$
|
0.70
|
|
Vested and expected
to vest at December 31, 2016
|
|
|
4,434,220
|
|
|
$
|
0.61
|
|
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
10 - Stock Plans, Share-Based Payments and Warrants (continued)
The
fair value of each option grant is estimated on the date of grant using the Black-Scholes option pricing model with the below
assumptions for the risk-free interest rates, expected dividend yield, expected lives and expected stock price volatility.
|
|
Option
Pricing Assumptions
|
|
Grant Year
|
|
2016
|
|
|
2015
|
|
Stock Price Volatility
|
|
|
114.63
|
%
|
|
|
121.90
|
%
|
Risk-Free Interest Rates
|
|
|
1.81
|
%
|
|
|
1.60
|
%
|
Expected Life (in years)
|
|
|
5.83
|
|
|
|
6.15
|
|
Expected Dividend Yield
|
|
|
0
|
%
|
|
|
0
|
%
|
Expected
volatility is based on historical volatility of the Company’s common stock at the time of grant. The risk-free interest
rate is based on the U.S. Treasury yields in effect at the time of grant for periods corresponding with the expected life of the
options. For the expected life, the Company is using the simplified method as described in the SEC Staff Accounting Bulletin 107.
This method assumes that stock option grants will be exercised based on the average of the vesting periods and the option’s
life.
The
weighted-average fair value of options granted in 2016 and 2015 is $0.31 and $0.49, respectively. The aggregate intrinsic values
of stock options outstanding and stock options vested or expected to vest as of December 31, 2016 are approximately $25,000 and
$24,000, respectively. A stock option has intrinsic value, at any given time, if and to the extent that the exercise price of
such stock option is less than the market price of the underlying common stock at such time. The weighted-average remaining contractual
life of options vested or expected to vest is 7.8 years.
The
aggregate intrinsic values of stock options outstanding and of stock options vested or expected to vest as of December 31, 2015
are $0. A stock option has intrinsic value, at any given time, if and to the extent that the exercise price of such stock option
is less than the market price of the underlying common stock at such time. The weighted-average remaining contractual life of
options vested or expected to vest is 8.5 years.
As
of December 31, 2016, there was approximately $934,000 of total unrecognized compensation cost related to unvested share-based
compensation awards granted under the equity compensation plans. Approximately $158,000 of the $934,000 total unrecognized compensation
will be recognized at the time if and when certain performance conditions are met. The remaining approximately $776,000 will be
amortized over the weighted average remaining requisite service period of 2.2 years.
Restricted
Stock Issued to Employees and Directors
The
Company has issued restricted stock as compensation for the services of certain employees and non-employee directors. The grant
date fair value of restricted stock was based on the fair value of the common stock on the date of grant, and compensation expense
is recognized based on the period in which the restrictions lapse.
The
following table summarizes restricted stock activity for the year end December 31, 2016 and 2015:
|
|
Shares
|
|
|
Weighted
Average
Grant Date
Fair Value
|
|
Nonvested at December 31, 2014
|
|
|
132,077
|
|
|
$
|
0.86
|
|
Granted
|
|
|
617,795
|
|
|
|
0.48
|
|
Vested
|
|
|
(248,690
|
)
|
|
|
0.73
|
|
Nonvested at December 31, 2015
|
|
|
501,182
|
|
|
|
0.46
|
|
Granted
|
|
|
957,336
|
|
|
|
0.35
|
|
Vested
|
|
|
(501,182
|
)
|
|
|
0.46
|
|
Nonvested at December 31, 2016
|
|
|
957,336
|
|
|
$
|
0.35
|
|
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
10 - Stock Plans, Share-Based Payments and Warrants (continued)
The
total fair value of restricted stock which vested during the years ended December 31, 2016 and 2015 was approximately $291,000
and $181,000, respectively.
Total
stock-based compensation expense for the restricted stock granted to employees and non-employee directors was approximately $163,000
and $161,000, respectively, for the years ended December 31, 2016 and December 31, 2015 and is included in Selling, General and
Administrative expenses on the accompanying consolidated statement of operations and comprehensive loss. Approximately $51,000
and $36,000 of restricted stock was granted to employees for the years ended December 31, 2016 and 2015, respectively, to settle
liabilities for services incurred in the respective prior fiscal years. As of December 31, 2016, there was approximately $178,000
of unrecognized compensation expense related to the restricted stock awards, which is expected to be recognized over the next
six months.
Restricted
Stock Issued to Nonemployees
In
March 2016, 57,143 shares of restricted stock, with a fair value of approximately $16,000, were issued as payment for consulting
services to be provided through December 2016. The Company recorded approximately $16,000 of selling, general and administrative
expense during the year ended December 31, 2016. The restricted stock vested on June 15, 2016.
In
March 2016, 38,461 shares of restricted stock, with a fair value of approximately $10,000, were issued as payment for consulting
services to be provided during the fiscal year ended December 31, 2016. The Company recorded approximately $10,000 of selling,
general and administrative expense during the year ended December 31, 2016. The restricted stock vested on September 30, 2016.
In
January 2016, 58,823 shares of restricted stock, with a fair value of approximately $20,000, were issued as payment for consulting
services to be provided through December 2016. The Company recorded approximately $20,000 of selling, general and administrative
expense during the year ended December 31, 2016. The restricted stock vested on April 12, 2016.
In
September 2015, 47,382 shares of restricted stock, with a fair value of approximately $23,000, were issued as payment for marketing
services to be provided in fiscal year 2015. The Company recorded approximately $23,000 of selling, general and administrative
expense during the year ended December 31, 2015. The restricted stock vested on November 25, 2015.
In
July 2015, 69,231 shares of restricted stock, with a fair value of approximately $45,000, were issued as payment for marketing
services to be provided through November 2015 under the Company’s agreement with Proactive Capital Resources Group. The
Company recorded approximately $45,000 of selling, general and administrative expense during the year ended December 31, 2015.
The restricted stock vested on August 7, 2015.
Warrants
The
Company accounts for stock warrants as either equity instruments or derivative liabilities depending on the specific terms of
the warrant agreement. Stock warrants are accounted for as derivative liabilities if the stock warrants allow for cash settlement
or provide for modification of the warrant exercise price in the event that subsequent sales of common stock are at a lower price
per share than the then-current warrant exercise price. The Company classifies derivative warrant liabilities on the balance sheet
as a long-term liability, which is measured to fair value at each balance sheet date subsequent to the initial issuance of the
stock warrant.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
10 - Stock Plans, Share-Based Payments and Warrants (continued)
The
following table summarizes certain terms of all of the Company’s outstanding warrants at December 31, 2016 and 2015:
Total
Outstanding Warrants
|
|
|
|
|
|
Exercise
|
|
|
Total
Common
Shares Issuable as of
December 31,
|
|
Title
of Warrant
|
|
Date
Issued
|
|
Expiry
Date
|
|
Price
|
|
|
2016
|
|
|
2015
|
|
Equity-classified
warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholder Rights Offering
Warrants
|
|
3/10/2011
|
|
3/10/2016
|
|
$
|
0.40
|
|
|
|
-
|
|
|
|
1,565,414
|
|
May 2015 - private placement warrants
|
|
3/18/2015
|
|
3/18/2020
|
|
$
|
0.85
|
|
|
|
917,149
|
|
|
|
917,149
|
|
June 2016 –
Note and Warrant Agreement
|
|
6/7/2016
|
|
6/7/2021
|
|
$
|
0.30
|
|
|
|
2,374,000
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
3,291,149
|
|
|
|
2,482,563
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
3,291,149
|
|
|
|
2,482,563
|
|
The
weighted average exercise price of the outstanding warrants was $0.45 as of December 31, 2016 and $0.57 as of December 31, 2015.
Warrants
exercised during 2016 and 2015
During
the twelve months ended December 31, 2016, 19,621 warrants were exercised, resulting in proceeds of approximately $1,000 and the
issuance of 906 shares of the Company’s common stock.
On
December 18, 2015, the Company completed its offer to exercise (the “Offer to Exercise”) certain outstanding warrants
to purchase an aggregate of 5,008,689 shares of the Company’s common stock, consisting of outstanding warrants to purchase
an aggregate of 2,226,112 shares of the Company’s common stock at an exercise price of $0.40 per share, issued on March
10, 2011 to investors participating in the Company’s 2011 rights offering (the “Rights Offering Warrants”) and
outstanding warrants to purchase an aggregate of 2,782,577 shares of the Company’s common stock at an exercise price of
$0.40 per share, issued on March 10, 2011 to Lambda in connection with a private placement financing transaction (the “Lambda
Warrants” and, together with the Rights Offering Warrants, the “2011 Warrants”). Pursuant to the Offer to Exercise,
2011 Warrants to purchase an aggregate of 3,442,521 shares of the Company’s common stock were tendered by their holders
and were exercised in connection therewith. Gross proceeds of approximately $688,000 were received by the Company on December
23, 2015.
The
2011 Warrants of holders who elected to participate in the Offer to Exercise were exercisable at a temporarily reduced cash exercise
price of $0.20 per share of common stock beginning on November 20, 2015 and expiring on December 18, 2015. The incremental value
of the 2011 Warrants exercised pursuant to the Offer to Exercise on November 20, 2015, after the modification, was approximately
$106,000. As a result, approximately $73,000 was recorded as a deemed dividend for the year ended December 31, 2015.
During
the twelve months ended December 31, 2015, in addition to those warrants exercised during Offer to Exercise period above and those
warrants exercised by Lambda on September 29, 2015 (see Note 3), 2,127 shares of common stock were issued as a result of additional
warrants exercised, resulting in proceeds of $851.
In
addition, 30 common shares were not issued as a result of warrant exercises for the years ended December 31, 2015 due to rounding.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
11 - Stockholders’ Equity (Deficit)
July
2015 Purchase Agreement and Registration Rights Agreement
On
July 24, 2015, the Company entered into a Purchase Agreement, together with a Registration Rights Agreement, with Lincoln Park,
an Illinois limited liability company.
Under
the terms and subject to the conditions of the Purchase Agreement, the Company has the right to sell to and Lincoln Park is obligated
to purchase up to $10.0 million in shares of the Company’s common stock, subject to certain limitations, from time to time,
over the 36-month period commencing on September 4, 2015. The Company may direct Lincoln Park, at its sole discretion and subject
to certain conditions, to purchase up to 100,000 shares of common stock on any business day, provided that at least one business
day has passed since the most recent purchase, increasing to up to 200,000 shares depending upon the closing sale price of the
common stock (such purchases, “Regular Purchases”). However, in no event shall a Regular Purchase be more than $500,000.
The purchase price of shares of common stock related to the future funding will be based on the prevailing market prices of such
shares at the time of sales, but in no event will shares be sold to Lincoln Park on a day the common stock closing price is less
than the floor price as set forth in the Purchase Agreement. In addition, the Company may direct Lincoln Park to purchase additional
amounts as accelerated purchases if on the date of a Regular Purchase the closing sale price of the common stock is not below
the threshold price as set forth in the Purchase Agreement. The Company’s sales of shares of common stock to Lincoln Park
under the Purchase Agreement are limited to no more than the number of shares that would result in the beneficial ownership by
Lincoln Park and its affiliates, at any single point in time, of more than 9.99% of the then-outstanding shares of the common
stock.
In
connection with the Purchase Agreement, the Company issued to Lincoln Park 250,000 shares of common stock for no proceeds. The
fair value of the 250,000 shares of common stock issued was approximately $163,000 and was recorded as a commitment fee. Pursuant
to the Purchase Agreement, in September 2015, the Company issued and sold an additional 300,000 shares of common stock to Lincoln
Park at a per share price of $0.45, resulting in gross proceeds of $135,000. The commitment fee of $163,000 was fully amortized
and recorded in additional paid-in capital as of December 31, 2015.
The
Purchase Agreement and the Registration Rights Agreement contain customary representations, warranties, agreements and conditions
to completing future sale transactions, indemnification rights and obligations of the parties. The Company has the right to terminate
the Purchase Agreement at any time, at no cost or penalty. Actual sales of shares of common stock to Lincoln Park under the Purchase
Agreement will depend on a variety of factors to be determined by the Company from time to time, including, among others, market
conditions, the trading price of the common stock and determinations by the Company as to the appropriate sources of funding for
the Company and its operations. There are no trading volume requirements or restrictions under the Purchase Agreement. Lincoln
Park has no right to require any sales by the Company, but is obligated to make purchases from the Company as the Company directs
in accordance with the Purchase Agreement. Lincoln Park has covenanted not to cause or engage in any manner whatsoever, any direct
or indirect short selling or hedging of Company shares.
May
2015 Private Placement
On
May 18, 2015, the Company raised gross proceeds of approximately $1.23 million through the private placement of 1,834,299 units
of its securities. Each unit consisted of one share of its common stock and a five-year warrant to purchase one-half of one share
of the Company’s common stock. The purchase price for each unit was $0.67. The 917,149 warrants issued are equity-classified
and are exercisable at a price of $0.85 per share. Proceeds net of equity issuance costs of $24,000 were recorded as a result
of the private placement was approximately $1,205,000.
Note
12 - 401(k) Plan
The
Company has established a 401(k) deferred contribution retirement plan (the “401(k) Plan”) which covers all employees.
The 401(k) Plan provides for voluntary employee contributions of up to 15% of annual earnings, as defined. As of January 1, 2004,
the Company matches 100% of the first 3% and 50% of the next 2% of employee earnings to the 401(k) Plan. The Company contributed
and expensed $44,000 and $42,000 in 2016 and 2015, respectively.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
13 - Commitments and Contingencies
Manufacturing
and Suppliers
The
Company has not and does not intend in the near future, to manufacture any of its products and components. With regard to the
OLpur MD190 and MD220, on June 27, 2011, the Company entered into a license agreement, effective July 1, 2011, with Bellco S.r.l.,
an Italy-based supplier of hemodialysis and intensive care products, for the manufacturing, marketing and sale of our patented
mid-dilution dialysis filters (MD 190, MD 220), referred to herein as the Products. Under the agreement, Nephros granted Bellco
a license to manufacture, market and sell the Products under its own name, label and CE mark in Italy, France, Belgium, Spain
and Canada on an exclusive basis, and to do the same on a non-exclusive basis in the United Kingdom and Greece and, upon our written
approval, other European countries where the Company does not sell the Products as well as non-European countries (referred to
as the “Territory”).
On
February 19, 2014, the Company entered into the First Amendment to License Agreement (the “First Amendment”), by and
between the Company and Bellco, which amends the License Agreement, entered into as of July 1, 2011 by and between the Company
and Bellco. Pursuant to the First Amendment, the Company and Bellco agreed to extend the term of the License Agreement from December
31, 2016 to December 31, 2021. The First Amendment also expands the Territory covered by the License Agreement to include, on
an exclusive basis, Sweden, Denmark, Norway and Finland and on a non-exclusive basis, Korea, Mexico, Brazil, China and the Netherlands.
The First Amendment further provides new minimum sales targets which, if not satisfied, will, at the discretion of the Company,
result in conversion of the license to non-exclusive status. The Company has agreed to reduce the fixed royalty payment payable
to the Company for the period beginning on January 1, 2015 through and including December 31, 2021. Beginning on January 1, 2015
through and including December 31, 2021, Bellco will pay the Company a royalty based on the number of units of Products sold per
year in the Territory as follows: for the first 125,000 units sold in total, €1.75 (approximately $1.91) per unit; thereafter,
€1.25 (approximately $1.36) per unit. In addition, the Company received a total of €450,000 (approximately $612,000)
in upfront fees in connection with the First Amendment, half of which was received on February 19, 2014 and the remaining half
was received on April 4, 2014. In addition, the First Amendment provides that, in the event that the Company pursues a transaction
to sell, assign or transfer all right, title and interest to the licensed patents to a third party, the Company will provide Bellco
with written notice thereof and a right of first offer with respect to the contemplated transaction for a period of thirty (30)
days.
L
icense
and Supply Agreement
On
April 23, 2012, the Company entered into a License and Supply Agreement (the “License and Supply Agreement”) with
Medica S.p.A. (“Medica”), an Italy-based medical product manufacturing company, for the marketing and sale of certain
filtration products based upon Medica’s proprietary Medisulfone ultrafiltration technology in conjunction with the Company’s
filtration products (collectively, the “Filtration Products”), and to engage in an exclusive supply arrangement for
the Filtration Products. Under the License and Supply Agreement, Medica granted to the Company an exclusive license, with right
of sublicense, to market, promote, distribute, offer for sale and sell the Filtration Products worldwide, excluding Italy for
the first three years, during the term of the License and Supply Agreement. In addition, the Company granted to Medica an exclusive
license under the Company’s intellectual property to make the Filtration Products during the term of the License and Supply
Agreement. In exchange for the rights granted, the Company agreed to make minimum annual aggregate purchases from Medica of €300,000
(approximately $400,000), €500,000 (approximately $700,000) and €750,000 (approximately $1,000,000) for the years 2012,
2013 and 2014, respectively. The Company’s aggregate purchase commitments totaled approximately €1,200,000 (approximately
$1,300,000) and €999,000 (approximately $1,119,000) for the years ended December 31, 2016 and 2015, respectively. For calendar
years 2017 through 2022, annual minimum amounts will be mutually agreed upon between Medica and the Company. The Company has not
yet formalized an agreed upon minimum purchase level for 2017 with Medica. In exchange for the license, the Company paid Medica
a total of €1,500,000 (approximately $2,000,000) in three installments: €500,000 (approximately $700,000) on April 23,
2012, €600,000 (approximately $800,000) on February 4, 2013, and €400,000 (approximately $500,000) on May 23, 2013.
As
further consideration for the license and other rights granted to the Company, the Company granted Medica options to purchase
300,000 shares of the Company’s common stock. The fair market value of these stock options was approximately $273,000 at
the time of their issuance, calculated as described in Note 2 under Stock-Based Compensation. The fair market value of the options,
along with the total installment payments, is approximately $2,250,000 and has been capitalized as a long-term intangible asset
on the consolidated balance sheet. As of December 31, 2016 and 2015, accumulated amortization related to the Medica long-term
asset is approximately $988,000 and $777,000, respectively. The Medica long-term asset is being amortized as an expense over the
life of the agreement. Approximately $211,000 has been charged to amortization expense for the years ended December 31, 2016 and
2015 on the consolidated statement of operations and comprehensive loss. Approximately $210,000 of amortization expense will be
recognized in each of the years ended December 31, 2017 through 2022. In addition, for the period beginning April 23, 2014 through
December 31, 2022, the Company will pay Medica a royalty rate of 3% of net sales of the Filtration Products sold, subject to reduction
as a result of a supply interruption pursuant to the terms of the License and Supply Agreement.
Royalty
expense of approximately $18,000 and $14,000, respectively was included in accrued expenses as of December 31, 2016 and 2015.
The term of the License and Supply Agreement commenced on April 23, 2012 and continues in effect through December 31, 2022, unless
earlier terminated by either party in accordance with the terms of the License and Supply Agreement.
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
13 - Commitments and Contingencies (continued)
As
of September 2013, the Company has an understanding with Medica whereby the Company has agreed to pay interest to Medica at a
12% annual rate calculated on the principal amount of any outstanding invoices that are not paid pursuant to the original payment
terms. For each of the fiscal years ended December 31, 2016 and 2015, approximately $41,000 was recognized as interest expense.
Contractual
Obligations
The
Company had an operating lease that expired on November 30, 2015 for the rental of its U.S. office and research and development
facilities with a monthly cost of approximately $8,000. The rental agreement was renewed with a monthly cost of approximately
$9,000 and will expire in November 2018. Approximately $21,000 related to a security deposit for the U.S. office facility is classified
as an other asset on the consolidated balance sheet as of December 31, 2016 and 2015. We use these facilities to house our corporate
headquarters and research facilities.
The
lease agreement for the office space in Europe was entered into on August 1, 2016 and includes a twelve month term.
Rent
expense for the years ended December 31, 2016 and 2015 totaled $126,000 and $125,000, respectively.
Investment
in Lease, net
On
October 8, 2015, the Company entered into an equipment lease agreement with Biocon 1, LLC. The lease commenced on January 1, 2016
with a term of 60 months and monthly rental payments of approximately $1,800 will be paid to the Company. At the completion of
the lease term, Biocon 1, LLC will own the equipment provided under the agreement. An investment in lease was established for
the sales-type lease receivable at the present value of the future minimum lease payments. Interest income will be recognized
monthly over the lease term using the effective-interest method. Cash received will be applied against the direct financing lease
receivable and will be presented within changes in operating assets and liabilities in the operating section of the Company’s
consolidated statement of cash flows. At lease inception, an investment in the lease of approximately $92,000 was recorded, net
of unearned interest of approximately $14,000. During the fiscal year ended December 31, 2016, approximately $5,000 was recognized
in interest income. As of December 31, 2016, investment in lease, current, is approximately $27,000, net of unearned interest
of $4,000. As of December 31, 2016, investment in lease, noncurrent, is approximately $61,000, net of unearned interest of $5,000.
As
of December 31, 2016, scheduled maturities of minimum lease payments receivable were as follows:
2016
|
|
$
|
13,000
|
|
2017
|
|
|
17,000
|
|
2018
|
|
|
18,000
|
|
2019
|
|
|
19,000
|
|
2020
|
|
|
21,000
|
|
|
|
|
88,000
|
|
Less: Current
portion
|
|
|
(27,000
|
)
|
Investment in
sales-type lease, noncurrent
|
|
$
|
61,000
|
|
NEPHROS,
INC. AND SUBSIDIARY
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Note
13 - Commitments and Contingencies (continued)
Contractual
Obligations and Commercial Commitments
The
following tables summarize our approximate minimum contractual obligations and commercial commitments as of December 31, 2016:
|
|
Payments
Due in Period
|
|
|
|
Total
|
|
|
Within
1 Year
|
|
|
Years
2 - 3
|
|
|
Years
4 - 5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases
1
|
|
$
|
240,000
|
|
|
$
|
116,000
|
|
|
$
|
118,000
|
|
|
$
|
6,000
|
|
Employment
Contract
2
|
|
|
550,000
|
|
|
|
240,000
|
|
|
|
310,000
|
|
|
|
-
|
|
Total
|
|
$
|
790,000
|
|
|
$
|
356,000
|
|
|
$
|
428,000
|
|
|
$
|
6,000
|
|
1
In
addition to lease obligations for office space, obligations include a lease for various office equipment which expires in 2020.
2
Relates
to employment agreement with Daron Evans, the Company’s President and Chief Executive Officer, entered into on April 15,
2015 for a term of four years.
Note
14 – Subsequent Event
On
March 17, 2017, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain purchasers
identified therein. Pursuant to the Purchase Agreement, the Company agreed to issue and sell, and the purchasers agreed to purchase,
an aggregate of 4,059,994 shares at a price of $0.30 per share for total gross proceeds of approximately $1.2 million. In addition,
the Company will issue to the purchasers warrants to purchase an aggregate of 4,059,994 shares of common stock. The warrants will
have an exercise price of $0.30 per share and will be exercisable for a five-year term. The purchase and sale of the shares and
warrants is expected to close on or about March 22, 2017, subject to satisfying customary closing conditions. Additionally, the
Company entered into a Registration Rights Agreement with such purchasers, pursuant to which the Company has agreed to file a
registration statement with the SEC covering the resale of the shares of common stock and shares issuable upon the exercise of
the warrants within thirty days of the closing date. Maxim Group LLC (“Maxim”) is acting as the sole placement agent
for the offering, and the Company has agreed to pay Maxim a cash fee equal to 7.5% of the aggregate gross proceeds of the offering,
to reimburse Maxim for certain expenses, and to grant Maxim a warrant to purchase 81,199 shares of common stock, upon substantially
the same terms as the warrants issued to the purchasers, except that the warrant issued to Maxim will have an exercise price of
$0.33 per share.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable by the registrant in connection with the sale of the securities
being registered. All amounts are estimates.
SEC filing fee
|
|
$
|
300
|
|
Legal fees and expenses
|
|
$
|
35,000
|
|
Accounting fees and expenses
|
|
$
|
15,000
|
|
Miscellaneous
|
|
$
|
5,000
|
|
Total
|
|
$
|
55,300
|
|
Item
14. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law, or DGCL, permits a corporation, under specified circumstances, to indemnify its directors,
officers, employees or agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason
of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action,
that is one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect
to a matter as to which they will have acted in good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification will be made if such person will have been adjudged liable
to the corporation, unless and only to the extent that the court in which the action or suit was brought will determine upon application
that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Our
Fourth Amended and Restated Certificate of Incorporation, as amended, provides for indemnification of our directors and officers
of the registrant to the fullest extent permitted by the DGCL. Our Second Amended and Restated By-Laws provides that the we will
generally indemnify our directors, officers, employees or agents to the fullest extent permitted by the law against all losses,
claims, damages or similar events. We have obtained liability insurance for each director and officer for certain losses arising
from claims or charges made against them while acting in their capacities as directors or officers of our company.
Item
15. Recent Sales of Unregistered Securities.
On
May 12, 2015, the Company entered into a securities purchase agreement with various accredited investors pursuant to which the
Company agreed to sell in a private placement a total of 1,834,299 units of its securities, each unit consisting of one share
of its common stock and a five-year warrant to purchase one-half of one share of the Company’s common stock. Pursuant to
the purchase agreement, the closing of the purchase and sale of the shares and warrants occurred on May 19, 2015. The purchase
price for each unit was $0.67. The warrants are exercisable at a price of $0.85 per warrant share. The sale of the shares and
warrants resulted in aggregate gross proceeds of approximately $1.23 million, before deducting expenses. The sales of the securities
described above were not registered under the Securities Act because they were made in transactions exempt from registration under
Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder.
On
July 9, 2015, the Company issued 69,231 shares of restricted stock, with a grant date fair value of approximately $45,000, to
Proactive Capital Resources Group (“Proactive”) for services rendered and to be rendered by Proactive through November
19, 2015. The Company issued the shares in reliance upon an exemption from registration contained in Section 4(a)(2) under the
Securities Act as the shares were not issued in a public offering.
On
July 24, 2015, the Company entered into a purchase agreement with Lincoln Park, an Illinois limited liability company, pursuant
to which the Company initially issued to Lincoln Park 250,000 shares of common stock. In the year ended December 31, 2015, the
Company issued and sold an additional 300,000 shares of common stock to Lincoln Park at a per share price of $0.45. Lincoln Park
represented to the Company, among other things, that it was an “accredited investor” (as such term is defined in Rule
501(a) of Regulation D under the Securities Act), and the Company sold the securities in reliance upon an exemption from registration
contained in Section 4(a)(2) under the Securities Act. The securities sold may not be offered or sold in the United States absent
registration or an applicable exemption from registration requirements.
On
September 25, 2015, the Company issued 47,382 shares of restricted stock, with a grant date fair value of approximately $22,000,
to Scratched Anchor, LLC for services rendered and to be rendered by Scratched Anchor, LLC through December 31, 2016. The
Company issued the shares in reliance upon an exemption from registration contained in Section 4(a)(2) under the Securities Act
as the shares were not issued in a public offering.
On
December 18, 2015, the Company completed its offer to exercise certain outstanding warrants to purchase an aggregate of 2,782,577
shares of the Company’s common stock at an exercise price of $0.40 per share, issued on March 10, 2011 to Lambda Investors
LLC in connection with a private placement financing transaction (the “Lambda Warrants”). The Lambda Warrants were
exercisable at a temporarily reduced cash exercise price of $0.20 per share of common stock for the period beginning on November
20, 2015 and ending at 12:00 midnight (Eastern Time) on the evening of December 18, 2015. The Company issued the Lambda Warrants
in a private placement transaction to an accredited investor, in reliance on the exemption from registration provided by Rule
506 of Regulation D under the Securities Act. Similarly, the issuance of the shares of the Company’s common stock upon the
exercise of the 2,782,577 Lambda Warrants was exempt from registration under the Securities Act pursuant to Rule 506 of Regulation
D.
On
June 3, 2016, the Company entered into a note and warrant purchase agreement with certain accredited investors pursuant to which
the Company sold an aggregate principal amount of $807,000 of 11% unsecured promissory notes and five-year warrants to purchase
an aggregate of 1,614,000 shares of Company common stock at an exercise price of $0.30 per share. On June 9, 2016, the Company
conducted a second closing under the note and warrant purchase agreement with additional purchasers pursuant to which the Company
issued an additional $380,000 principal amount of notes and warrants to purchase 720,000 shares of the Company’s common
stock. Between the June 3 and June 9, 2016 closings, the Company issued notes having an aggregate principal amount of $1,187,000
and warrants to purchase an aggregate of 2,374,000 shares of common stock. The outstanding principal under the notes bears interest
at the rate of 11 percent per annum. During the term of the notes, interest is payable in cash semi-annually in arrears. The entire
outstanding principal and accrued interest is due in full on the third anniversary of the issuance of the notes. The offer and
sale of notes and warrants pursuant to the terms of the note and warrant purchase agreement constituted a private placement under
Section 4(a)(2) of the Securities Act of 1933, as amended, in accordance with Regulation D promulgated thereunder.
On
March 17, 2017, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain purchasers
identified therein (the “Purchasers”) pursuant to which the Company agreed to sell, and the Purchasers agreed to purchase
4,059,994 units of the Company’s securities, each unit consisting of one share of the Company’s common stock, par
value $0.001 per share, and a warrant to purchase one share of common Stock, at a cash purchase price equal to $0.30 per unit.
The aggregate purchase price payable to the Company for all of the shares and warrants sold under the securities purchase agreement
was $1,218,000 before deducting placement agent fees and other transaction-related expenses of approximately $116,350. In connection
with the closing of the transactions contemplated by the Purchase Agreement, the Company paid Maxim Group LLC (“Maxim”),
which served as the Company’s sole placement agent in connection with the offer and sale of the shares and warrants, a cash
fee equal to 7.5% of the gross proceeds from such sale. In addition, the Company issued to Maxim a warrant to purchase 81,199
shares of common stock. The form of the warrant issued to Maxim is substantially the same as the warrants issued to the purchasers,
except that the exercise price applicable to the warrant issued to Maxim is $0.33 per share. The offer and sale of the shares,
warrants and the warrant issued to Maxim pursuant to the terms of the Purchase Agreement constituted a private placement under
Section 4(a)(2) of the Securities Act of 1933, as amended, in accordance with Regulation D promulgated thereunder.
Item
16. Exhibits.
(a)
Exhibits
. The following exhibits are filed as part of this registration statement:
EXHIBIT
INDEX
Exhibit
No.
|
|
Description
|
|
|
|
3.1
|
|
Fourth
Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit 4.4 to Nephros,
Inc.’s Registration Statement on Form S-8 (Reg. No. 333-127264), filed with the Securities and Exchange Commission (the
“SEC”) on August 5, 2005.
|
|
|
|
3.2
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.2 to Nephros, Inc.’s Quarterly Report on Form 10-QSB for the quarter ended June 30, 2007, filed with the
SEC on August 13, 2007 (SEC File No. 001-32288).
|
|
|
|
3.3
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.3 to Nephros, Inc.’s Quarterly Report on Form 10-QSB for the quarter ended June 30, 2007, filed with the
SEC on August 3, 2007 (SEC File No. 001-32288).
|
|
|
|
3.4
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.4 to Nephros, Inc.’s Quarterly Report on Form 10-QSB for the quarter ended September 30, 2007, filed with
the SEC on November 13, 2007 (SEC File No. 001-32288).
|
|
|
|
3.5
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.5 to Nephros, Inc.’s Registration Statement on Form S-1 (Reg. No. 333-162781), filed with the SEC on October
30, 2009.
|
|
|
|
3.6
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.6 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on March 16, 2011.
|
|
|
|
3.7
|
|
Certificate
of Amendment to the Fourth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
to Exhibit 3.7 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on March 16, 2011.
|
|
|
|
3.8
|
|
Second
Amended and Restated By-Laws of the Registrant, incorporated by reference to Exhibit 3.1 to Nephros, Inc.’s Current
Report on Form 8-K, filed with the SEC on December 3, 2007 (SEC File No. 001-32288).
|
|
|
|
4.1
|
|
Specimen
of Common Stock Certificate of the Registrant, incorporated by reference to Exhibit 4.1 to Nephros, Inc.’s Amendment
No. 1 to Registration Statement on Form S-1/A (Reg. No. 333-116162), filed with the SEC on July 20, 2004.
|
|
|
|
4.2
|
|
Form
of Warrant to Purchase Common Stock issued to various investors, incorporated by reference to Exhibit 4.1 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on May 18, 2015.
|
|
|
|
4.3
|
|
Form
of Unsecured Promissory Note issued June 3 and 9, 2016, incorporated by reference to Exhibit 4.1 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on June 14, 2016.
|
|
|
|
4.4
|
|
Form
of Common Stock Purchase Warrant issued June 3 and 9, 2016, incorporated by reference to Exhibit 4.2 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on June 14, 2016.
|
|
|
|
4.5
|
|
Form
of Warrant, incorporated by reference to Exhibit 4.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC
on March 23, 2017.
|
5.1
|
|
Opinion
of Fredrikson & Byron, P.A. as to the legality of the securities being registered.
**
|
|
|
|
10.1
|
|
Nephros,
Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit 10.2 to Nephros, Inc.’s Amendment No. 1 to Registration
Statement on Form S-1/A (Reg. No. 333-116162), filed with the SEC on July 20, 2004. †
|
|
|
|
10.2
|
|
Amendment
No. 1 to Nephros, Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit 4.3 to Nephros, Inc.’s Registration
Statement on Form S-8 (Reg. No. 333-127264), filed with the SEC on August 5, 2005. †
|
|
|
|
10.3
|
|
Amendment
No. 2 to Nephros, Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit 10.7 to Nephros, Inc.’s Quarterly
Report on Form 10-QSB for the quarter ended September 30, 2007, filed with the SEC on November 13, 2007 (SEC File No. 001-32288).
†
|
|
|
|
10.4
|
|
Registration
Rights Agreement, dated September 19, 2007, among the Registrant and the Holders, incorporated by reference to Exhibit 10.3
to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on September 25, 2007 (SEC File No. 001-32288).
|
|
|
|
10.5
|
|
License
Agreement, dated October 1, 2007, between the Trustees of Columbia University in the City of New York, and the Registrant,
incorporated by reference to Exhibit 10.41 to Nephros, Inc.’s Annual Report on Form 10-KSB for the year ended December
31, 2007, filed with the SEC on March 31, 2008 (SEC File No. 001-32288).
|
|
|
|
10.6
|
|
Lease
Agreement between Nephros, Inc. and 41 Grand Avenue, LLC dated as of November 20, 2008, incorporated by reference to Nephros,
Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 20, 2008 (SEC File
No. 001-32288).
|
|
|
|
10.7
|
|
Amendment
No. 3 to Nephros, Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit 10.51 to Nephros, Inc.’s Annual
Report on Form 10-K for the year ended December 31, 2008, filed with the SEC on March 31, 2009 (SEC File No. 001-32288). †
|
|
|
|
10.8
|
|
Form
of Registration Rights Agreement, between the Registrant and Lambda Investors LLC, incorporated by reference to Exhibit 10.57
to Nephros, Inc.’s Registration Statement on Form S-1 (Reg. No. 333-169728), filed with the SEC on October 1, 2010.
|
|
|
|
10.9
|
|
Amendment
No. 4 to Nephros, Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit A to Nephros, Inc.’s Definitive
Proxy Statement, filed with the SEC on December 2, 2010 (SEC File No. 001-32288). †
|
|
|
|
10.10
|
|
License
Agreement, dated July 1, 2011 between the Registrant and Bellco S.r.l., incorporated by reference to Exhibit 10.62 to Nephros,
Inc.’s Current Report on Form 8-K, filed with the SEC on June 27, 2011.
|
|
|
|
10.11
|
|
License
and Supply Agreement dated April 23, 2012 between the Registrant and Medica S.p.A., incorporated by reference to Exhibit 10.1
to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on April 26, 2012.
|
|
|
|
10.12
|
|
Registration
Rights Agreement, dated February 4, 2013, between the Registrant and Lambda Investors LLC, incorporated by reference to Exhibit
10.68 to Nephros, Inc.’s Registration Statement on Form S-1 (Reg. No. 333-187036), filed with the SEC on March 4, 2013.
|
|
|
|
10.13
|
|
Amendment
No. 5 to Nephros, Inc. 2004 Stock Incentive Plan, incorporated by reference to Exhibit A to Nephros, Inc.’s Definitive
Proxy Statement, filed with the SEC on April 11, 2013. †
|
|
10.14
|
|
First
Amendment to Registration Rights Agreement, dated May 23, 2013, between the Registrant and Lambda Investors LLC, incorporated
by reference to Exhibit 10.1 to Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2013, filed
with the SEC on August 13, 2013.
|
10.15
|
|
Amendment
No. 6 to Nephros, Inc. 2004 Stock Incentive Plan, dated June 14, 2013, incorporated by reference to Exhibit 10.2 to Nephros,
Inc.’s Quarterly Report on From 10-Q for the quarter ended June 30, 2013, filed with the SEC on August 13, 2013. †
|
|
|
|
10.16
|
|
Registration
Rights Agreement, dated November 12, 2013, by and between the Registrant and Lambda Investors LLC, incorporated by reference
to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on November 14, 2013.
|
|
|
|
10.17
|
|
First
Amendment to License Agreement, dated February 19, 2014, between the Registrant and Bellco S.r.l., incorporated by reference
to Exhibit 10.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on February 25, 2014.
|
|
|
|
10.18
|
|
First
Amendment to Registration Rights Agreement, dated April 14, 2014, between the Registrant and Lambda Investors LLC, incorporated
by reference to Exhibit 10.2 to Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014,
filed with the SEC on May 14, 2014.
|
|
|
|
10.19
|
|
Registration
Rights Agreement, dated August 29, 2014, between the Registrant and Lambda Investors LLC, incorporated by reference to Exhibit
10.2 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on September 3, 2014.
|
|
|
|
10.20
|
|
First
Amendment to Registration Rights Agreement, dated September 23, between the Registration and Lambda Investors LLC, incorporated
by reference to Exhibit 10.5 to Nephros, Inc’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014,
filed with the SEC on November 13, 2014.
|
|
|
|
10.21
|
|
Employment
Agreement, dated April 15, 2015, between the Registrant and Daron Evans, incorporated by reference to Exhibit 10.1 to Nephros,
Inc.’s Current Report on Form 8-K, filed with the SEC on April 21, 2015. †
|
|
|
|
10.22
|
|
Nephros,
Inc. 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.2 to Nephros, Inc.’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2015, filed with the SEC on May 15, 2015. †
|
|
|
|
10.23
|
|
Form
of Incentive Stock Option Agreement under the 2015 Stock Incentive Plan, incorporated by reference to Exhibit to 10.3 to Nephros,
Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 15, 2015. †
|
|
|
|
10.24
|
|
Form
of Non-Qualified Stock Option Agreement under the 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.4 to
Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 15, 2015.
†
|
|
|
|
10.25
|
|
Form
of Restricted Stock Agreement under the 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.5 to Nephros,
Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 15, 2015. †
|
|
|
|
10.26
|
|
Form
of Restricted Stock Unit Agreement under the 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.6 to Nephros,
Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 15, 2015. †
|
|
|
|
10.27
|
|
Securities
Purchase Agreement, dated May 12, 2015, among the Registrant and various accredited investors, incorporated by reference to
Exhibit 10.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on May 18, 2015.
|
|
|
|
10.28
|
|
Purchase
Agreement, dated July 24, 2015, between the Registrant and Lincoln Park Capital Fund, LLC, incorporated by reference to Exhibit
10. 1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on July 27, 2015.
|
10.29
|
|
Registration
Rights Agreement, dated July 24, 2015, between the Registrant and Lincoln Park Capital Fund, LLC, incorporated by reference
to Exhibit 10.2 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on July 27, 2015.
|
|
|
|
10.30
|
|
Second
Amendment to License and Supply Agreement, dated May 4, 2015, by and between the Registrant and Medica S.p.A., incorporated
by reference to Exhibit 10.4 to Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed
with the SEC on August 10, 2015.
|
|
|
|
10.31
|
|
Sublicense
Agreement, dated May 6, 2015, between the Registrant and CamelBak Products, LLC, incorporated by reference to Exhibit 10.5
to Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed with the SEC on August 10,
2015. +
|
|
|
|
10.32
|
|
Form
of Note and Warrant Purchase Agreement entered into on June 3, 2016, between the Registrant and the purchasers of the Notes
and Warrants sold by the Registrant on June 3 and 9, 2016, incorporated by reference to Exhibit 10.1 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on June 14, 2016.
|
|
|
|
10.33
|
|
Letter
Agreement dated February 10, 2017, between Andrew Astor and the Registrant, incorporated by reference to Exhibit 10.1 to Nephros,
Inc.’s Current Report on Form 8-K, filed with the SEC on February 14, 2017. †
|
|
|
|
10.34
|
|
Securities
Purchase Agreement dated March 17, 2017, among the Registrant and the Purchasers identified therein, incorporated by reference
to Exhibit 10.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on March 23, 2017.
|
|
|
|
10.35
|
|
Registration
Rights Agreement dated March 17, 2017, among the Registrant and the Purchasers identified therein, incorporated by reference
to Exhibit 10.2 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on March 23, 2017.
|
|
|
|
14.1
|
|
Code
of Ethics and Business Conduct, as amended through April 2, 2007, incorporated by reference to Exhibit 14.1 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on April 6, 2007 (SEC File No. 001-32288).
|
|
|
|
21.1
|
|
Subsidiaries
of Registrant, incorporated by reference to Exhibit 21.1 to Nephros, Inc.’s Annual Report on Form 10-KSB for the year
ended December 31, 2006, filed with the SEC on April 10, 2007 (SEC File No. 001-32288).
|
|
|
|
23.1
|
|
Consent
of Moody, Famiglietti & Andronico, LLP Independent Registered Public Accounting Firm. *
|
|
|
|
23.2
|
|
Consent
of Fredrikson & Byron, P.A. **
|
|
|
|
24.1
|
|
Power
of Attorney. **
|
|
|
|
101
|
|
Interactive
Data File. *
|
*
Filed herewith.
**
Previously filed.
†
Management contract or compensatory plan arrangement.
+
Confidential treatment has been granted for certain portions omitted from this exhibit pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.
Item
17. Undertakings.
(a)
|
The
undersigned registrant hereby undertakes:
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Act”);
|
|
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
|
|
|
|
|
(iii)
|
To
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement.
|
|
(2)
|
That,
for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
|
|
|
|
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
|
|
|
|
|
(4)
|
That,
for the purpose of determining liability under the Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as
part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is a part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, superseded or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
|
(h)
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Insofar
as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of River Edge, State of New Jersey, on April 14, 2017.
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NEPHROS,
INC.
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Date:
April 14, 2017
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By:
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/s/
Daron Evans
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Name:
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Daron
Evans
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Title:
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President
and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature
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Title
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Date
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/s/
Daron Evans
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President,
Chief Executive Officer and Director
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April
14, 2017
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Daron
Evans
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(Principal
Executive Officer)
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/s/
Andrew Astor
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Chief
Financial Officer
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April
14, 2017
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Andrew
Astor
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(Principal
Financial and Accounting Officer)
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*
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Director
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April
14, 2017
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Arthur
H. Amron
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*
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Director
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April
14, 2017
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Paul
A. Mieyal
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|
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*
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Director
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April
14, 2017
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Malcolm
Persen
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|
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/s/
Moshe Pinto
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Director
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April
14, 2017
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Moshe
Pinto
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*
By:
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/s/
Daron Evans
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Attorney-in-Fact
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April
14, 2017
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Daron
Evans
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