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2. DERIVATIVES LIABILITIES, WARRANTS AND OTHER OPTIONS | 12 Months Ended
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Sep. 30, 2012
Notes to Financial Statements |
2. DERIVATIVES LIABILITIES, WARRANTS AND OTHER OPTIONS | Below is a chart showing the derivative liabilities, the number of warrants and other options outstanding at September 30, 2012:
Warrant | Issue Date | Shares Issuable upon Exercise of Warrant | Exercise Price | Expiration Date | Refer-ence
Series K | 8/4/06 | - | - | - | 1
Series N | 8/18/08 | 5,187,709 | 0.30 | 8/18/14 | 1
Series A | 6/24/09 | 1,303,472 | 0.50 | 12/24/14 | 1
Schleuning (Series A) | 7/8/09 | 167,500 | 0.50 | 01/08/15 | 1
Series B | 9/4/09 | 500,000 | 0.68 | 9/4/14 | 1
Series C | 8/20/09 -8/26/09 | 4,634,886 | 0.55 | 2/20/15 | 1
Series E | 9/21/09 | 714,286 | 1.75 | 8/12/14 | 1
Series F | 10/6/11 | 12,000,000 | 0.40 | 10/6/14 | 1
Series G | 10/6/11 | 666,667 | 0.40 | 8/12/14 | 1
Series H | 1/26/12 | 12,000,000 | 0.50 | 8/1/15 | 1
Series Q | 6/21/12 | 12,000,000 | 0.50 | 12/22/15 | 1
Series L | 4/18/07 | 250,000 | 0.75 | 4/17/14 | 2
Series L (repriced) | 4/18/07 | 1,000,000 | 0.34 | 4/17/13 | 2
Series M (modified) | 4/18/07 | 6,000,000 | 0.34 | 7/31/14 | 2
Series O | 3/6/09 | - | - | - | 3
Series P | 2/10/12 | 5,900,000 | 0.45 | 3/6/17 | 3
Private Investors | 5/30/03- 6/30/09 | 8,609,375 | 0.47 – 1.25 | 5/30/13 - 7/18/14 | 4
Warrants held by Officer and Director | 6/24/09- 7/6/09 | 3,497,539 | 0.40 – 0.50 | 12/24/14 - 1/6/15 | 5
Consultants | 5/22/03 – 3/6/12 | 937,500 | 0.28 – 2.00 | 5/22/13 - 3/5/17 | 6
| 1. | Derivative Liabilities
See below for details of the balances of derivative instruments at September 30, 2012 and 2011.
| September 30, 2012 | September 30, 2011
Series K warrants | $ - | $ 69,552
Series A through E | 786,989 | 1,375,458
Series N | 830,034 | 817,063
Series F and G warrants | 1,646,667 | -
Series H warrants | 1,800,000 | -
Series Q warrants | 1,920,000 | -
Convertible notes issued in settlement (Note 13) | - | 4,999,000
Total derivative liabilities | $ 6,983,690 | $ 7,261,073
The Company reviews all outstanding warrants in accordance with the requirements of Codification 815, “Derivatives and Hedging”. This topic provides that an entity should use a two-step approach to evaluate whether an equity-linked financial instrument (or embedded feature) is indexed to its own stock, including evaluating the instrument’s contingent exercise and settlement provisions. The warrant agreements provide for adjustments to the exercise price for certain dilutive events, which includes an adjustment to the number of shares issuable upon the exercise of the warrant in the event that the Company makes certain equity offerings in the future at a price lower than the exercise prices of the warrant instruments. Under the provisions of Codification 815, the warrants are not considered indexed to the Company’s stock because future equity offerings or sales of the Company’s stock are not an input to the fair value of a “fixed-for-fixed” option on equity shares, and equity classification is therefore precluded. Series K and Series A through E Warrants The Company accounted for the Series K and A through E Warrants as derivative liabilities in accordance with Codification 815, “Derivative Instruments and Hedging Activities”. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. These warrants do not qualify for equity accounting and must be accounted for as a derivative liability since the Warrant Agreement provides the holder with the right, at its option, to require the Company to a cash settlement of the warrants at Black-Scholes value in the event of a Fundamental Transaction, as defined in the Warrant Agreement. Since the occurrence of a Fundamental Transaction is not entirely within the Company’s control, there exist circumstances that would require net-cash settlement of the warrants while holders of shares would not receive a cash settlement. In August 2006, the Company issued 4,825,581 Series K warrants at $0.95. In connection with the April 2007 financing and issuance of Series L and M warrants, there was a reset of the conversion price of the Series K warrants to $0.75. The Series K note holders received 1,286,819 additional Series K warrants as well. In connection with the June 2009 financing and issuance of the Series A warrants, there was a reset of the conversion price of the Series K notes and the exercise price of the Series K warrants from $0.75 to $0.40. The Series K note holders received 5,348,357 additional Series K warrants as well. In October 2011, 2,318,396 warrants held by the investors were reset from $0.40 to $0.30. In addition, the investors were issued 772,799 warrants exercisable at $0.30 per share at an initial cost of $30,912. This cost was accounted for as a debit to loss on derivatives and a credit to derivative liabilities. In February 2012, all Series K warrants were exercised, and the Company received $927,359 from the exercise of Series K warrants to purchase 3,091,195 of the Company’s common shares. As of September 30, 2012, no Series K warrants are outstanding and no liability is recorded. When the warrants were exercised, the value of the warrants was converted from derivative liabilities to equity. For the year ended September 30, 2012, Series K warrants transferred to equity totaled $122,367. During the year ended September 30, 2011, no Series K warrants were exercised. During the year ended September 30, 2010, 1,335,221 Series K warrants, on which the Company recognized a gain on exercise of $280,223, were exercised. During the year ended September 30, 2012, the Company recorded a loss of $21,903 from the exercise and mark to market on the remaining Series K warrants. During the years ended September 30, 2011 and 2010, the Company recorded a gain of $932,950 and $2,856,355, respectively, on the remaining Series K warrants. During the years ended September 30, 2012, 2011 and 2010, the Company recorded a gain of $588,469 $2,225,887 and $12,993,883, respectively, on the Series A through E derivative instruments. In June 2009, the Company issued 10,116,560 Series A warrants exercisable at $0.50 per share in connection with a financing. The cost of the warrants of $2,775,021 was recorded as a debit to additional paid in capital and a credit to derivative liabilities. As of September 30, 2012, 1,303,472 of these warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of these derivative liabilities totaled $156,417 and $260,694, respectively. During the years ended September 30, 2012 and 2011, no Series A warrants were exercised. During the year ended September 30, 2010, 8,813,088 Series A warrants were exercised, on which the Company recognized a gain of $8,433,451. When the warrants were exercised, the value of these warrants was converted from derivative liabilities to equity. In July 2009, the Company issued warrants to a private investor. The 167,500 warrants were issued with an exercise price of $0.50 per share and valued at $43,550 using the Black Scholes method. The cost of the warrants was accounted for as a debit to additional paid in capital and a credit to derivative liabilities. As of September 30, 2012, 167,500 warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of these derivative liabilities totaled $20,100 and $33,500, respectively. In connection with a loan, received and fully repaid in a prior period, the Company issued 500,000 Series B warrants with an exercise price of $0.68 per share. As of September 30, 2012, 500,000 Series B warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of the remaining derivative liabilities totaled $40,000 and $90,000, respectively. In connection with an August 2009 financing, the Company issued 5,392,218 Series C warrants exercisable at $0.55 per share. As of September 30, 2012, 4,634,886 of these warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of these derivative liabilities totaled $556,186 and $926,977, respectively. During the years ended September 30, 2012, 2011 and 2010, 0, 757,331 and 0 Series C warrants were exercised, respectively. The Company recognized a gain on exercise of $0, $232,891 and $0, respectively. When the warrants were exercised, the value of these warrants was converted from derivative liabilities to equity. Series C warrants transferred to equity totaled $0, $202,830 and $0 during the years ended September 2012, 2011 and 2010, respectively. In September 2009, the Company issued 4,714,284 Series D warrants with an exercise price of $1.50 per share in connection with a financing. The cost of the warrants of $3,488,570 was calculated and was recorded as a debit and a credit to additional paid in capital. In addition, 714,286 Series E warrants were issued with an exercise price of $1.75 per share to the placement agent on the transaction. The cost of $664,286 was accounted for as a debit to additional paid in capital and a credit to derivative liabilities. On September 21, 2011, all 4,714,284 Series D warrants expired. As of September 30, 2012, 714,286 Series E warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of these derivative liabilities totaled $14,286 and $64,287, respectively. Series N Warrants In August 2008 and June 2009, 3,890,782 Series N warrants were issued to two investors in connection with a financing and a reset provision. In October 2011, the 3,890,782 warrants held by the investors were reset from $0.40 to $0.30. In addition, the investors were issued 1,296,927 warrants exercisable at $0.30 per share at an initial cost of $220,478. The cost was accounted for as a debit to loss on derivatives and a credit to derivative liabilities. As of September 30, 2012, 5,187,709 Series N warrants remained outstanding. In accordance with Codification 815, derivative liabilities must be revalued at the end of each interim period and at the end of the fiscal year, as long as they remain outstanding. As of September 30, 2012 and 2011, the fair value of these derivative liabilities totaled $830,034 and $817,063, respectively. During the years ended September 30, 2012, 2011 and 2010, the Company recorded a gain of $207,507, $1,089,420 and $4,279,860, respectively, on the Series N derivative instruments. Series F and G warrants In October 2011, the Company issued 12,000,000 Series F warrants with an exercise price of $0.40 per share at any time prior to October 6, 2014 in connection with a financing. The Company also issued 666,667 Series G warrants with an exercise price of $0.40 per share to the placement agent for this offering. The Series G warrants are exercisable at any time prior to August 12, 2014. In accordance with ASC 815, derivative liabilities must be measured at fair value upon issuance and revalued at the end of each reporting period through their expiration. Any change in fair value between the respective reporting dates shall be recognized as gain or loss. The initial cost of the warrants of $2,146,667 was recorded as a debit to additional paid in capital and a credit to derivative liabilities. As of September 30, 2012, the value of the derivative liabilities totaled $1,646,667. During the year ended September 30, 2012 the Company recorded a gain of $500,000 on the Series F and G derivative instruments. Series H Warrants In January 2012, the Company issued 12,000,000 Series H warrants with an exercise price of $0.50 per share at any time on or after August 1, 2012 and prior to August 1, 2015 in connection with a financing. The Company accounted for the Series H warrants as derivative liabilities in accordance with Codification 815. The initial cost of the warrants of $2,400,000 was recorded as a debit to additional paid in capital and a credit to derivative liabilities. As of September 30, 2012, the value of the derivative liabilities totaled $1,800,000. During the year ended September 30, 2012 the Company recorded a gain of $600,000 on the Series H derivative instruments. Series Q Warrants In June 2012, the Company issued 12,000,000 Series Q warrants with an exercise price of $0.50 per share at any time on or after December 22, 2012 and prior to December 22, 2015 in connection with a financing. The Company accounted for the Series Q warrants as derivative liabilities in accordance with Codification 815. The initial cost of the warrants of $2,160,000 was recorded as a debit to additional paid in capital and a credit to derivative liabilities. As of September 30, 2012, the value of the derivative liabilities totaled $1,920,000. During the year ended September 30, 2012 the Company recorded a gain of $240,000 on the Series Q derivative instruments. Senior Convertible Notes and Redeemable Series A Convertible Preferred Stock In March 2012, the Company repaid the remaining Senior Secured Convertible Notes derived from the settlement, thereby completely eliminating the Senior Secured Convertible Notes, satisfying the settlement and having the lien on the Company’s assets removed (see Note 13). As of September 30, 2012 and September 30, 2011, the Senior Secured Convertible Notes totaled to $0 and $4,999,000, respectively. The accounting for the Senior Secured Convertible Notes was within the scope of ASC 815. Under ASC 815, the Company may make an irrevocable election to initially and subsequently measure a hybrid financial instrument in its entirety at fair value. Any change in fair value between the respective reporting dates shall be recognized as a gain or loss. Based on the analysis of the Senior Secured Convertible Notes, the Company identified several embedded derivative features. The Company elected, in accordance with ASC 825, to initially and subsequently carry the instrument at fair value without bifurcating the embedded derivatives. For the year ended September 30, 2012, the Company recorded a gain of $49,000 on the Senior Secured Convertible Notes. For the year ended September 30, 2011, the Company recorded a loss of $49,000 on the Senior Secured Convertible Notes. The Series A Convertible Preferred Stock falls within the scope of ASC 480 because the conversion option was considered nonsubstantive. ASC 480 states, “Mandatorily redeemable financial instruments shall be measured initially at fair value.” Therefore, immediately after initially recording Series A Convertible Preferred Stock, the carrying value of the instrument in its entirety was adjusted to fair value as of the issuance date with the difference recorded as a loss. The Company also elected to adopt the fair value option in ASC 825. The Series A Convertible Preferred Stock was measured in its entirety and reported at fair value at each reporting date for so long as shares remained outstanding. Any change in fair value between the respective reporting dates was recognized as a gain or loss. During the year ended September 30, 2011, the Company redeemed all of the Series A Convertible Preferred Stock (see Note 13).
| 2. | Series L and M Warrants
In April 2007, the Company completed a $15 million private financing. Shares were sold at $0.75, a premium over the closing price of the previous two weeks. The financing was accompanied by 10,000,000 warrants with an exercise price of $0.75 and 10,000,000 warrants with an exercise price of $2.00. The warrants are known as Series L and Series M warrants, respectively. The warrants issued with the financing qualified for equity treatment in accordance with ASC 815. The cost of Series L and series M warrants were recorded as a debit and a credit to additional paid-in capital. In November 2011, the Company repriced 1,600,000 of the Series L warrants to $0.34. The additional cost of $86,826 was recorded as a debit and a credit to additional paid-in capital and was a deemed dividend. This cost is included in modification of warrants and increased the net loss available to shareholders on the consolidated statements of operations. In March 2012, 600,000 Series L warrants were exercised at a price of $0.34, and the Company received proceeds of $204,000. In April 2012, the 250,000 Series L warrants were transferred to a consultant exercisable at a price of $0.75 per share and were extended for two years from the current expiration date. The additional value of $43,910 was accounted for as a credit to additional paid in capital and a debit to general and administrative expense. In June 2012, 101,669 Series L warrants with an exercise price of $0.75 per share, expired. As of September 30, 2012, 1,000,000 of the Series L warrants at the reduced exercise price of $0.34 and 250,000 at the original exercise price of $0.75 remained outstanding. On March 12, 2010, the Company temporarily reduced the exercise price of the Series M warrants, originally issued on April 18, 2007. The exercise price was reduced from $2.00 to $0.75. At any time prior to June 16, 2010, investors could have exercised the Series M warrants at a price of $0.75 per share. For every two Series M warrants exercised prior to June 16, 2010 the investor would have received one Series F warrant. Each Series F warrant would have allowed the holder to purchase one share of the Company’s common stock at a price of $2.50 per share at any time on or before June 15, 2014. After June 15, 2010, the exercise price of the Series M warrants reverted back to $2.00 per share. Any person exercising a Series M warrant after June 15, 2010 would not receive any Series F warrants. The Series M warrants expire on April 17, 2012. An analysis of the modification to the warrants determined that the modification increased the value of the warrants by $1,432,456. This cost was recorded as a debit and a credit to additional paid-in capital and was a deemed dividend. This cost is included in modification of warrants and increased the net loss available to shareholders on the consolidated statements of operations. There were no exercises of the Series M warrants at the reduced price and the exercise price of the Series M warrants reverted back to $2.00 on June 16, 2010. On August 3, 2010, the Company’s Board of Directors approved an amendment to the terms of the Series M warrants held by an investor. The investor was the owner of 8,800,000 warrants priced at $2.00 per share. The amendment modified the number of warrants to 6,000,000 shares of the Company’s common stock and the exercise price to $0.60 per share. This modification increased the value of the warrants by $100,000. The adjustment was recorded as a debit and a credit to additional paid-in capital. In February 2011, 6,000,000 Series M warrants, exercisable at a price of $0.60 per share were extended for two years. This cost of $661,547 was recorded as a debit and a credit to additional paid-in capital and was a deemed dividend. This cost is included in modification of warrants and increased the net loss available to shareholders on the consolidated statements of operations. The additional value of $661,457 was calculated using the Black-Scholes method. In November 2011, the Company repriced 6,000,000 of the Series M warrants from $0.60 to $0.34. The additional cost of $238,794 was recorded as a debit and a credit to additional paid-capital and was a deemed dividend. This cost is included in modification of warrants and increased the net loss available to shareholders on the consolidated statements of operations. The remaining 1,221,668 Series M warrants at the original exercise price of $2.00 expired in April 2012. As of September 30, 2012, 6,000,000 Series M warrants at the reduced exercise price of $0.34 remained outstanding. 3. Series O and P Warrants In March 2009, as further consideration for its rights under a licensing agreement, Byron Biopharma LLC (“Byron”) purchased 3,750,000 Units from the Company at a price of $0.20 per Unit. Each Unit consisted of one share of the Company’s common stock and two Series O warrants. Each Series O warrant entitles the holder to purchase one share of the Company’s common stock at a price of $0.25 per share. The Series O warrants expire on March 6, 2016. The Company filed a registration statement to register the shares issuable upon the exercise of the warrants. The Units were accounted for as an equity transaction using the Black Scholes method to value the warrants. The fair value of the warrants was calculated to be $1,015,771. During the year end September 30, 2012, 6,500,000 warrants were exercised for which the Company received $1,625,000. During the year end September 30, 2011, 1,000,000 Series O warrants were exercised for which the Company received $250,000. As of September 30, 2012, no Series O warrants remained outstanding. On February 10, 2012, the Company issued 5,900,000 Series P warrants to the former holder of the Series O warrants as an inducement for the early exercise of the Series O warrants. Series O warrants entitled the holder to purchase 5,900,000 shares of the Company’s common stock at a price of $0.25 per share at any time on or prior to March 6, 2016. The Series P warrants allow the holder to purchase up to 5,900,000 shares of the Company’s common stock at a price of $0.45 per share. The Series P warrants are exercisable at any time on or after August 12, 2012 and prior to March 6, 2017. The warrants were accounted for as an equity transaction using the Black-Scholes method to value the warrants. The fair value of the warrants was calculated to be $1,593,000. This cost was recorded as a debit and a credit to additional paid-in capital. This cost is included in inducement warrants and increased the net loss available to shareholders on the consolidated statements of operations. As of September 30, 2012, 5,900,000 Series P warrants remained outstanding.
| 4. | Private Investor Warrants
Between May 2003 and April 2006, the Company issued 1,900,000 warrants as part of a financing to a private investor at exercise prices between $0.47 and $1.25. As of September 30, 2012, 1,200,000 warrants remain outstanding. The fair value of the warrants has been recorded as an addition to additional paid-in capital and also as a charge to additional paid-in capital since they qualified for equity accounting. Between July 2005 and May 2006, 1,925,000 warrants were issued to a private investor. In July 2009, 375,000 warrants held by the investor were extended for two years. The additional value of the warrants of $24,061 was calculated using the Black Scholes method and was accounted for as a debit and a credit to additional paid in capital. In February 2011, 1,325,000 warrants issued to an investor with an exercise price between $0.56 and $0.82 were extended for three years. The additional value of $406,912 was calculated using the Black Scholes method and was accounted for as a debit and a credit to additional paid in capital. As of September 30, 2012, 1,325,000 warrants remained outstanding. In January 2009, as part of an amended lease agreement on the manufacturing facility, the Company repriced 3,000,000 warrants issued to the lessor in July 2007 at $1.25 per share and which were to expire on July 12, 2013. These warrants were repriced at $0.75 per share and expire on January 26, 2014. The cost of this repricing and extension of the warrants was $70,515 and was accounted for as a debit to the deferred rent asset and a credit to additional paid-in capital. In addition, 787,500 additional warrants were given to the lessor of the manufacturing facility on the same date, exercisable at a price of $0.75 per share, and will expire on January 26, 2014. The cost of these warrants was $45,207 and was accounted for as a debit to the deferred rent asset and a credit to additional paid-in capital. As of September 30, 2012, 3,787,500 warrants remained outstanding. Between March 31 and June 30, 2009, 2,296,875 warrants were issued at $0.75 to the leaseholder on the manufacturing facility in consideration for the deferment of rent payments. The cost of these warrants of $251,172 was recorded as a debit to research and development and a credit to additional paid in capital. As of September 30, 2012, 2,296,875 warrants remained outstanding.
| 5. | Warrants held by Officer and Director
Between December 2008 and June 2009, Maximilian de Clara, the Company’s President and a director, loaned the Company $1,104,057 under a note payable. In June 2009, the Company issued 1,648,244 warrants exercisable at $0.40 per share to the holder of the note. The warrants are exercisable at any time prior to December 24, 2014. These warrants were valued at $65,796 using the Black-Scholes method. In July 2009, as consideration for a further extension of the loan, the Company issued 1,849,295 warrants exercisable at $0.50 per share to the holder of the note that was amended for the second time. These warrants were valued at $341,454 using the Black-Scholes method and can be exercised at any time prior to January 6, 2015. The first warrants were recorded as a discount to the loan and a credit to additional paid-in capital. The second warrants were recorded as a debit to derivative loss of $831,230, a premium of $341,454 on the loan and a credit to additional paid in capital of $489,776. The first warrants were amortized as interest expense at the time of the second amendment. On the second amendment, $338,172 of the premium was amortized as a reduction to interest expense as of September 30, 2009. The balance of the premium of $3,282 was amortized as a reduction to interest expense in October 2009. As of September 30, 2012, 3,497,539 warrants remained outstanding. See Note 10 for additional information. Options held by Consultants As of September 30, 2012, 937,500 options that were issued to consultants as payment for services provided between May 2003 and March 2012 remained outstanding, of which 842,500 options were issued from the Non-Qualified Stock Option plans. In August 2010, 70,000 options issued to a consultant with an exercise price between $0.63 and $0.70 were extended for two years at a cost of $15,477. This cost was accounted for as a credit to additional paid in capital and a debit to general and administrative expense. In October 2010, 80,000 options issued to a consultant with an exercise price of $2.00 were extended for five years from the current expiration date. The additional value of $30,186 was accounted for as a credit to additional paid in capital and a debit to general and administrative expense. In December 2011, 50,000 options were issued to a consultant with an exercise price of $0.30 which vested immediately and expire on December 1, 2016. The cost of these options was $10,211 calculated using the Black-Scholes method and was accounted for as a credit to additional paid in capital and a debit to general and administrative expense. In March 2012, 50,000 options were issued to a consultant with an exercise price of $0.35 which vested immediately and expire on March 5, 2017. The cost of these options was $12,037 calculated using the Black-Scholes method and was accounted for as a credit to additional paid in capital and a debit to general and administrative expense. In April 2012, 70,000 options issued to a consultant with an exercise price between $0.63 and $0.70 were extended for two years from the current expiration date. The additional value of $10,879 was accounted for as a credit to additional paid in capital and a debit to general and administrative expense.

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