UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2015
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period from to
Commission File Number 001-32288
NEPHROS, INC.
(Exact name of registrant specified in its charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
13-3971809
(I.R.S. Employer
Identification No.)
41 Grand Avenue
River Edge, NJ 07661
(Address of Principal Executive Offices)
(201) 343-5202
(Telephone Number, Including Area Code)
Securities Registered Pursuant to Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, $.001 par value per share
(Title of Class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to
submit and post such files).
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best
of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a smaller reporting company. See definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [ ]
Accelerated filer [ ]
Non-accelerated filer [ ]
(Do not check if a smaller reporting company)
Smaller reporting company [X]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
The aggregate market value of the voting stock held by non-affiliates of the registrant, as of June 30, 2015, was approximately $11,179,000. Such aggregate
market value was computed by reference to the closing price of the common stock as reported on the OTCQB Marketplace operated by the OTC Markets
Group, Inc., or OTCQB, on June 30, 2015. For purposes of making this calculation only, the registrant has defined affiliates as including only directors and
executive officers and shareholders holding greater than 10% of the voting stock of the registrant as of June 30, 2015.
As of March 18, 2016 there were 48,581,261 shares of the registrant’s common stock, $0.001 par value, outstanding.
NEPHROS, INC. AND SUBSIDIARY
TABLE OF CONTENTS
PART I
Item 1. Business
Item 1A. Risk Factors
Item 1B. Unresolved Staff Comments
Item 2. Properties
Item 3. Legal Proceedings
Item 4. Mine Safety Disclosures
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Item 6. Selected Financial Data
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Item 8. Financial Statements and Supplementary Data
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Item 9A. Controls and Procedures
Item 9B. Other Information
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Item 11. Executive Compensation
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Item 13. Certain Relationships and Related Transactions, and Director Independence
Item 14. Principal Accounting Fees and Services
Item 15. Exhibits, Financial Statement Schedules
Signatures
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FORWARD LOOKING STATEMENTS
Certain statements in this Annual Report on Form 10-K constitute “forward-looking statements”. Such statements include statements regarding the
efficacy and intended use of our technologies under development, the timelines and strategy for bringing such products to market, the timeline for regulatory
review and approval of our products, 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:
● we may not be able to continue as a going concern;
● we face significant challenges in obtaining market acceptance of our products, which could adversely affect our potential sales and revenues;
● 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;
● 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;
● to the extent our products or marketing materials are found to violate any provisions of the U.S. Food, Drug and Cosmetic Act, or FDC Act or any other
statutes or regulations then we could be subject to enforcement actions by the FDA or other governmental agencies;
● we may not be able to obtain funding if and when needed or on terms favorable to us in order to continue operations;
● we may not have sufficient capital to successfully implement our business plan;
● we may not be able to effectively market our products;
● we may not be able to sell our water filtration products or chronic renal failure therapy products at competitive prices or profitably;
● we may encounter problems with our suppliers, manufacturers and distributors;
● we may encounter unanticipated internal control deficiencies or weaknesses or ineffective disclosure controls and procedures;
● we may not obtain appropriate or necessary regulatory approvals to achieve our business plan;
● 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;
● we may not be able to secure or enforce adequate legal protection, including patent protection, for our products; and
● we may not be able to achieve sales growth in key geographic markets.
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 Annual Report on Form 10-K, 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.
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Item 1. Business
Overview
PART I
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 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 U.S. 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 U.S. 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 U.S., HDF is much more prevalent in Europe and is performed in approximately 16% 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
Improved survival - up to a 35% reduction in mortality risk
Reduction in the occurrence of dialysis-related amyloidosis
Reduction in inflammation
Reduction in medication such as EPO and phosphate binders
Improved patient quality of life
Reduction in number of hospitalizations and overall length of stay
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, 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.
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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 February 2015, 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.
We are in discussions to evaluate our HDF system at other clinics throughout the U.S. and hope to announce the deployment of our HDF System at a new site
in the first half of 2016. Our goal over the next 12-18 months is to work with RRI and the potential new site to developing 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
phamacoeconomic 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.
● 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.
● Dialysis Centers - Water/Bicarbonate: Filtration of water or bicarbonate concentrate used in hemodialysis devices.
● 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.
● Commercial Facilities: Filtration of water for washing and drinking including use in ice machines and soda fountains.
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 U.S. in 2013. The United States Centers for Disease Control and Prevention estimates that healthcare associated
infections, or HAIs, 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.
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On June 30, 2014 we submitted to the FDA, for 510(k) clearance, the DSU-H and SSU-H Ultrafilters to filter EPA quality drinking water to remove
microbiological contaminants and waterborne pathogens. 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 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 February 2016, the FDA performed another on-site inspection. There were no observations, or 483’s, cited at the conclusion of the inspection.
In the first half of 2016, we plan to launch new products to expand on our hospital product line. The DSU-H and the SSU-H are both in-line filters designed
to be installed between the wall water outlet and the point of delivery fixture, be it sink faucet, shower head or ice machine. The new products are designed to
be attached to the end of a faucet or shower line. On October 27th, 2015 we announced that we had submitted the S100 Point of Use filter to the FDA for
510(k) clearance. In late December 2015, the FDA requested additional information. We subsequently performed additional testing and filed the needed
supplemental information with the FDA in March 2016. These products will compete directly with other end-of-faucet filters for short term use.
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 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. Our in-line filters are easily installed into the fluid circuits supplying water and bicarbonate concentrate just prior to entering each dialysis
machine.
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In September 2015, we launched a new marketing campaign focused on further expanding our products into dialysis clinics, the Nephros Challenge. The
Nephros Challenge is a money-back guarantee if a dialysis clinic does not see any measurable self-defined benefit from using Nephros Ultrafilters at the HD
station to provide ultrapure water and bicarbonate. We will be concluding this program on March 31, 2016 as we shift marketing focus to the launch of our
10” cartridge platform.
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 reverse osmosis (“RO”) water systems or on bicarbonate
concentrate lines in dialysis clinics with centralized bicarbonate concentrate systems.
In the second quarter of 2016, we intend to file for 510(k) clearance of an endotoxin cartridge filter. The endotoxin cartridge filter is designed to provide
hemodialysis quality water through ultrafiltration of the water in a dialysis clinic’s RO loop. The 10” filter retains particles as small as 0.005 microns, is
designed to handle higher flowrates and can be stacked to provide a 20”, 30” or 40” form factor. Because the cartridge conforms to the design controls of the
DSU-D, and has the same intended use, the cartridge qualifies for the Special 510(k): Device Modification process, which has a 30 day FDA review timeline.
Pending FDA clearance, we aim to launch the filter by the end of second quarter of 2016.
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 (HydraGuard in-line) and point-of-use (HydraGuard Universal) 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 HydraGuard individual water treatment devices. 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.
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 Facilities.
In 2014, we launched NanoGuard-D and NanoGuard-S in-line ultrafilters for the filtration of water which is 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 micons 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’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’s anti-scale
and related water filtration technology to develop filter products for the medical industry. In March 2016, Nephros shipped the first lot of filter cartridges to
Biocon for inclusion with its AETHER® line of filtration products. Also in March 2016, Biocon shipped the first anti-scale filter samples to Nephros for
testing in the medical setting.
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Our 10” filter cartridge platform, initially intended for use in the dialysis setting, should be available for commercial uses by the second half of 2016. We will
be working with existing distributors and their existing customers, and seeking new distributors to address customers not currently targeted by our existing
distributors.
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 intend to provide limited release of a 25 GPM system to specific customers for additional testing and validation by the third quarter of 2016.
We intend to develop flushable filter cartridges capable to filtering 2.5, 5 and 10 GPM through our fiber membrane. These smaller flushable filter systems
have potential utility as a point-of-entry water purification system in restaurants, convenience stores and households. We intend to provide limited release of
these products initially through Biocon in the second half of 2016.
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.
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 have not generated positive cash flow from
operations for the years ended December 31, 2015 and 2014. 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.
Recent Developments
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 Investors LLC (“Lambda”), our largest stockholder who owns approximately 62% of our outstanding
common stock . The warrants that were not exercised pursuant to the offer to exercise remained in effect, 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, the Company 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 the Company’s 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, the Company
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.
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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, the Company 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. 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 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, 2015 and 2014, we spent
approximately $826,000 and $781,000, respectively, on research and development activities.
Major Customers
For the year ended December 31, 2015, four customers accounted for 64% of our revenues. For the year ended December 31, 2014, three customers
accounted for 78% of our revenues.
As of December 31, 2015 three customers accounted for 71% of our accounts receivable. As of December 31, 2014, three customers accounted for
83% 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, 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;
offering unique attributes that illustrate our product reliability, “user-friendliness,” and performance capabilities;
selling products to specific customer groups where our unique product attributes are mission-critical; and
pursuing alliance opportunities for joint product development and distribution.
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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 U.S.
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;
displaying our products and providing associated literature at major industry trade shows in the United States;
initiating discussions with dialysis clinic medical directors, as well as representatives of dialysis clinical chains, to develop interest in our products;
pursuing alliance opportunities in certain territories for distribution of our products and possible alternative manufacturing facilities; and
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, 2015, we have twenty two 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 one pending U.S. patent
application, 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.
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Trademarks
As of December 31, 2015, we secured registrations of the trademarks H2H and OLpūr in the European Union and OLpūr in the United States.
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 FDC Act. All of our ESRD therapy
products are regulated in the United States as medical devices by the FDA under the FDC Act. Under the FDC Act, 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.
● 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.
● 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.
● 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 FDC Act or
FDA clearance of a pre-market approval, or PMA, application under Section 515 of the FDC Act 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.
On July 1, 2009, we received FDA clearance of the DSU to be used to filter biological contaminants from water and bicarbonate concentrate used in
hemodialysis procedures.
On August 11, 2011, we filed a 510(k) application with the FDA for clearance of our hemodiafiltration (HDF) system for end-stage renal disease. On
April 30, 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.
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 USP sterile water.
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The FDC Act 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;
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;
any deficiencies in the manufacturing process or in the products produced be investigated;
detailed records be kept and a corrective and preventative action plan be in place; and
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 FDC Act 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;
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
certain medical devices not cleared with the FDA for marketing in the United States meet specific requirements before they are exported.
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, or 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.
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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, 2015, we employed a total of 11 employees, 10 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 13 total employees and consultants, 2 are employed in a sales/marketing/customer support capacity, 5 in
general and administrative and 6 in research and development.
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Item 1A. Risk Factors
Risks Related to Our Company
Our independent registered public accounting firm, in its audit report related to our financial statements for the fiscal year ended December 31, 2015,
expressed doubt about our ability to continue as a going concern.
Our independent registered public accounting firm has included an explanatory paragraph in its report on our consolidated financial statements
included in this Annual Report on Form 10-K expressing 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 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, we expect that the proceeds from the Lambda Class D warrant exercise and the additional warrant exercises that
resulted from the tender offer and the projected increase in product sales will allow us to fund our operations at least into the third quarter of 2016, and
potentially longer depending on the timing and market up-take of our new products . As a result, 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, 2015, we had an accumulated deficit of approximately $117,253,000, as a result of historical operating losses. We expect to
continue to incur additional losses for the foreseeable future as a result of a high level of operating expenses, significant up-front expenditures, including the
cost of clinical trials, production and marketing activities and very limited revenue from the sale of our products. 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:
● the market acceptance of our technologies and products in each of our target markets;
● our ability to effectively and efficiently manufacture, market and distribute our products;
● our ability to sell our products at competitive prices which exceed our per unit costs; and
● our ability to continue to develop products and maintain a competitive advantage in our industry.
If we violate any provisions of the FDC Act 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 FDC Act 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 of our facility in River Edge, New Jersey.
The warning letter alleges deficiencies relating to our compliance with the Quality System regulation and the Medical Device Reporting regulation. We take
the matters identified in the warning letter seriously and are in the process of evaluating the corrective actions required to address the matters raised in the
warning letter. We responded to the warning letter within 15 business days as requested by the FDA, and intend to work diligently and expeditiously to
resolve the issues raised by the FDA. The warning letter does not restrict the manufacture, production or shipment of any of our products, nor require the
withdrawal of any product from the marketplace. On August 12, 2015, we received an additional letter from the FDA acknowledging our responses and
noting that it will verify our implementation of corrective measures at its next inspection of our facility. In February 2016, the FDA performed another on-site
inspection. There were no observations, or 483’s, cited at the conclusion of the inspection.
If we violate the FDC Act 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;
injunctions;
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civil penalties;
recalls or seizures of products;
total or partial suspension of the production of our products;
withdrawal of any existing approvals or pre-market clearances of our products;
refusal to approve or clear new applications or notices relating to our products;
recommendations that we not be allowed to enter into government contracts; and
criminal prosecution.
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 FDC Act, 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:
● information contained in the MDRs could trigger FDA regulatory actions such as inspections, recalls and patient/physician notifications;
● because the reports are publicly available, MDRs could become the basis for private lawsuits, including class actions; and
● if we fail to submit a required MDR to the FDA, the FDA could take enforcement action against us.
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:
● to obtain product liability insurance; or
● to indemnify manufacturers against liabilities resulting from the sale of our products.
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.
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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:
● such products will be safe for use;
● such products will be effective;
● such products will be cost-effective;
● we will be able to demonstrate product safety, efficacy and cost-effectiveness;
● there are unexpected side effects, complications or other safety issues associated with such products; and
● government or third party reimbursement for the cost of such products is available at reasonable rates, if at all.
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.
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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 U.S.
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:
● 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;
● lower than expected retention rates of subjects in a clinical trial;
● inadequately trained or insufficient personnel at the study site to assist in overseeing and monitoring clinical trials;
● delays in approvals from a study site’s review board, or other required approvals;
● longer treatment time required to demonstrate effectiveness;
● lack of sufficient supplies of the product;
● adverse medical events or side effects in treated subjects; and
● lack of effectiveness of the product being tested.
17
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.
18
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, or QSR, 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:
● fluctuations in exchange rates of the United States dollar could adversely affect our results of operations;
● we may face difficulties in enforcing and collecting accounts receivable under some countries’ legal systems;
● local regulations may restrict our ability to sell our products, have our products manufactured or conduct other operations;
● political instability could disrupt our operations;
● some governments and customers may have longer payment cycles, with resulting adverse effects on our cash flow; and
● some countries could impose additional taxes or restrict the import of our products.
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.
19
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 Owning Our Common Stock
There currently is a limited trading market for 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.
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. 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, 2015, our Common Stock has traded at prices ranging from a high of $1.29 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:
● achievement or rejection of regulatory approvals by our competitors or us;
● publicity regarding actual or potential clinical or regulatory results relating to products under development by our competitors or us;
● delays or failures in initiating, completing or analyzing clinical trials or the unsatisfactory design or results of these trials;
20
● announcements of technological innovations or new commercial products by our competitors or us;
● developments concerning proprietary rights, including patents;
● regulatory developments in the United States and foreign countries;
● economic or other crises and other external factors;
● period-to-period fluctuations in our results of operations;
● threatened or actual litigation;
● changes in financial estimates by securities analysts; and
● sales of our Common Stock.
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:
● authorizing our board of directors to issue “blank check” preferred stock without stockholder approval;
● providing for a classified board of directors with staggered, three-year terms;
● 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;
● prohibiting cumulative voting in the election of directors;
● limiting the persons who may call special meetings of stockholders; and
● 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.
21
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 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 December 31, 2015, Lambda, our largest stockholder, beneficially owned approximately 62% 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 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.
Item 1B. Unresolved Staff Comments
Not required.
Item 2. 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 facilities in Europe are currently located at A5 Clonlara Avenue, Baldonnell Business Park, Dublin, Ireland, and consist of approximately 500
square feet of space. The lease agreement was entered into on July 1, 2010. The lease term is renewable for 6 month terms with a 2 month notice to
discontinue, on a rolling basis. Our monthly cost is 500 Euro (approximately $545).
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.
Item 3. 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.
Item 4. Mine Safety Disclosures
Not applicable.
22
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
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, 2014
June 30, 2014
September 30, 2014
December 31, 2014
March 31, 2015
June 30, 2015
September 30, 2015
December 31, 2015
$
$
$
$
$
$
$
$
0.75 $
1.29 $
1.19 $
1.00 $
0.96 $
0.80 $
0.77 $
0.43 $
0.30
0.35
0.76
0.61
0.50
0.49
0.37
0.20
As of March 18 , 2016, there were approximately 64 holders of record and approximately 2,650 beneficial holders of our common stock.
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.
Recent Sales of Unregistered Securities
Except as previously reported in our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K, we have not sold any other equity
security during the year ended December 31, 2015 which was not registered under the Securities Act of 1933, as amended.
Issuer Repurchases of Equity Securities
There were no repurchases of our Common Stock during the fourth quarter of 2015.
Item 6. Selected Financial Data
Not required for smaller reporting companies.
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Item 7. 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 in Item 1A “Risk Factors.” 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:
the market acceptance of our products in the United States and of our technologies and products in each of our target markets;
our ability to effectively and efficiently manufacture, market and distribute our products;
our ability to sell our products at competitive prices which exceed our per unit costs;
the consolidation of dialysis clinics into larger clinical groups; and
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.
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 fiscal years. 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 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.
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In August 2014, the FASB issued ASU No. 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. Early adoption is permitted.
We are currently evaluating any impact the adoption of ASU 2014-15 might have on our consolidated financial statements.
In April 2015, the FASB issued ASU No. 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. Early adoption of the amendments in ASU 2015-03 is permitted for financial statements that
have not been previously issued. We do not believe that the adoption of ASU 2015-03 will have a significant 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 August 2015, the FASB issued ASU No. 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-
Credit Arrangements” which clarifies the presentation requirements for debt issuance costs discussed in ASU 2015-03 as they relate to line-of-credit
arrangements. The SEC will not object to an entity deferring and presenting debt issuance costs as an asset and subsequently amortizing the deferred debt
issuance costs ratably over the term of the line-of-credit arrangement, regardless of whether there are any outstanding borrowings on the line-of-credit
arrangement. We do not believe that the adoption of ASU 2015-15 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 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.
Going Concern
Our independent registered public accounting firm has included an explanatory paragraph in their report on our consolidated financial statements
included in this Form 10-K 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.
25
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 Annual Report on Form 10-K for the year ended December 31, 2015, 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, 2015 consolidated balance sheet is approximately $417,000 and is related to the Bellco license
agreement. We have recognized approximately $2,659,000 of revenue related to this license agreement to date and approximately $70,000 for the year ended
December 31, 2015, resulting in $417,000 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 six 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 and elections 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 and elections
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.
26
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, 2015 Compared to the Fiscal Year Ended December 31, 2014
Revenues
Total revenues for the year ended December 31, 2015 were approximately $1,944,000 compared to approximately $1,748,000 for the year ended
December 31, 2014. Total revenues increased approximately $196,000, or 11.2%. Increases of approximately $856,000, or 96%, in ultrafilter sales and
approximately $84,000 in Bellco royalties were partially offset by a decrease of approximately $764,000 in revenue recognized under the Bellco license
agreement.
Cost of Goods Sold
Cost of goods sold was approximately $884,000 for the year ended December 31, 2015 compared to approximately $549,000 for the year ended
December 31, 2014. The increase of approximately $335,000, or 61%, in cost of goods sold was primarily related to an increase in ultrafilter sales.
Research and Development
Research and development expenses were approximately $826,000 and $781,000, respectively, for the years ended December 31, 2015 and
December 31, 2014. This increase of approximately $45,000, or 5.8%, is primarily due to increases in product development expenses relating to new
ultrafilter products and the addition of personnel.
Depreciation and Amortization Expense
Depreciation and amortization expense was approximately $212,000 for the year ended December 31, 2015 compared to approximately $217,000 for
the year ended December 31, 2014, representing a decrease of 2.3%.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were approximately $3,443,000 for the year ended December 31, 2015 compared to approximately
$2,870,000 for the year ended December 31, 2014, representing an increase of $573,000 or 20%. The increase is due to a severance expense of approximately
$175,000, to an increase in auditor expenses of $120,000, to an increase in marketing expenses of approximately $110,000, and to an increase in travel
expenses of approximately $84,000. The increases were partially offset by a decrease in stock option expenses of approximately $97,000.
27
Interest Expense
The table below summarizes interest expense for the years ended December 31, 2015 and 2014:
Interest related to August 2014 senior secured note
Interest related to November 2013 senior secured note
Amortization of debt discount - August 2014 senior secured note
Amortization of debt discount - November 2013 senior secured note
Interest - outstanding payables due to a vendor
Other
Total interest expense
Change in Fair Value of Warrant Liability
2015
2014
- $
-
-
-
41,000
1,000
42,000 $
63,000
37,000
178,000
142,000
61,000
2,000
483,000
$
$
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 has been 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 and expense of approximately
$4,277,000 for the year ended December 31, 2014. These liability classified warrants were exercised in full on September 29, 2015.
Other Income/Expense
Other income of approximately $37,000 and $58,000, respectively, for the years ended December 31, 2015 and 2014 is due to foreign currency
gains.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements as of December 31, 2015 or 2014.
Liquidity and Capital Resources
The following table summarizes our liquidity and capital resources as of December 31, 2015 and 2014 and is intended to supplement the more
detailed discussion that follows. The amounts stated are expressed in thousands.
Liquidity and capital resources
Cash
Other current assets
Working capital
Stockholders’ equity (deficit)
$
December 31,
2015
2014
1,248 $
1,216
1,505
2,664
1,284
400
437
(5,681)
Our future liquidity sources and requirements will depend on many factors, including:
● the availability of additional financing, through the sale of equity securities or otherwise, on commercially reasonable terms or at all;
● the market acceptance of our products, and our ability to effectively and efficiently produce and market our products;
● the continued progress in, and the costs of, clinical studies and other research and development programs;
● the costs involved in filing and enforcing patent claims and the status of competitive products; and
● the cost of litigation, including potential patent litigation and any other actual or threatened litigation.
28
We expect to put our current capital resources to the following uses:
● for the marketing and sales of our water-filtration products;
● to pursue business development opportunities with respect to our chronic renal treatment system; and
● for working capital purposes.
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, 2015, we had an accumulated deficit of approximately $117,253,000, 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 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, 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, the Company 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 the Company’s 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, the Company
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, 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 $1.90) 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.
29
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. In
the year ended December 31, 2015, our aggregate purchase commitments totaled approximately €999,000 (approximately $1,119,000). For calendar years
2016 through 2022, annual minimum amounts will be mutually agreed upon between Medica and us. In December 2015, we formalized the agreed upon
minimum purchase level for 2016 of €1,200,000 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 Form 10-K, we expect that the proceeds from the Lambda Class D warrant exercise and the additional warrant exercises that
resulted from the tender offer and the projected increase in product sales will allow us to fund our operations at least into the third quarter of 2016 , and
potentially longer depending on the timing and market up-take 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 our Company.
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 $3,815,000 for the year ended December 31, 2015 compared to approximately $2,495,000
for the year ended December 31, 2014. Excluding the noncash impacts of the change in fair value of the warrant liability and the warrant modification, our net
loss was approximately $3,426,000 for the year ended December 31, 2015 compared to approximately $3,094,000 for the year ended December 31, 2014, an
increase of approximately $332,000.
In addition to the increase in the net loss, the most significant items contributing to the net increase of approximately $1,320,000 in cash used in
operating activities during the year ended December 31, 2015 compared to the year ended December 31, 2014 are highlighted below:
● our inventory increased by approximately $405,000 during the 2015 period compared to an increase of approximately $82,000 during the 2014 period as a
result of increased sales volume and projected sales volume;
● our accounts receivable increased by approximately $302,000 during the 2015 period compared to a decrease of approximately $12,000 during the 2014
period as a result of increased sales volume and projected sales volume;
● our prepaid expenses and other current assets increased by approximately $144,000 during the 2015 period compared to a decrease of approximately
$21,000 during the 2014 period as a result of increased deposits;
● during the 2015 period, our amortization of debt discount decreased by approximately $320,000 compared to the 2014 period. There was no outstanding
debt during the 2015 period; and
30
Offsetting the above changes:
● our revenue related to the Bellco licensing agreement was approximately $70,000 in the 2015 period compared to approximately $216,000 in the 2014
period as a result of timing.
Net cash used in investing activities for the year ended December 31, 2015 was approximately $13,000 related to the purchase of equipment. There
were no investing transactions in 2014.
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.
Net cash provided by financing activities for the year ended December 31, 2014 was approximately $3,203,000. Net cash provided by financing
activities resulted primarily from gross proceeds of $5.1 million related to the issuance of common stock related to the March 2014 rights offering and
December 2014 rights offering net of equity issuance costs of approximately $0.3 million, gross proceeds from the issuance of the August 2014 senior
secured note of $1.75 million, offset by payment of financing costs of approximately $178,000 and approximately $15,000 of proceeds resulting from the
exercise of warrants. Net cash provided by financing activities was partially offset by the repayment of the $1.75 million August 2014 senior secured note and
repayment of the $1.5 million November 2013 senior secured note.
Contractual Obligations and Commercial Commitments
The following tables summarize our approximate minimum contractual obligations and commercial commitments as of December 31, 2015:
Total
Within
1 Year
Payments Due in Period
Years
2 - 3
Years
4 - 5
More than
5 Years
Leases1
Employment Contracts
Total
$
$
355,000
790,000
1,145,000
$
$
115,000
240,000
355,000
$
$
226,000 $
480,000
706,000 $
14,000 $
70,000
84,000 $
-
-
-
1In addition to lease obligations for office space, obligations include a lease for various office equipment which expires in 2020.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not required for smaller reporting companies.
31
Item 8. Financial Statements and Supplementary Data
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 sheet of Nephros, Inc. and Subsidiary (the “Company”) as of December 31, 2015, and the related
consolidated statements of operations and comprehensive loss, changes in stockholders’ equity (deficit) and cash flows for the year 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 audit.
We conducted our audit 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 audit provides 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, 2015, and the results of their operations and their cash flows for the year 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 since inception. 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, Massachusetts
March 30, 2016
32
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Nephros, Inc.
We have audited the accompanying consolidated balance sheet of Nephros, Inc. and Subsidiary (collectively, the “Company”), as of December 31, 2014, and
the related consolidated statements of operations and comprehensive loss, changes in stockholders’ deficit and cash flows for the year 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 audit.
We conducted our audit 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
includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes 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 audit provides 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, 2014, and the results of their operations and their cash flows for the year then ended in accordance 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 since inception. 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/ Withum Smith+Brown, PC
Morristown, New Jersey
April 15, 2015
33
NEPHROS, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Share and Per Share Amounts)
December 31, 2015
December 31, 2014
ASSETS
Current assets:
Cash
Accounts receivable, net
Inventory, net
Prepaid expenses and other current assets
Total current assets
Property and equipment, net
Other assets, net
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)
Current liabilities:
Accounts payable
Accrued expenses
Deferred revenue, current portion
Total current liabilities
Warrant liability
Long-term portion of deferred revenue
Total liabilities
Commitments and Contingencies
Stockholders’ equity (deficit):
Preferred stock, $.001 par value; 5,000,000 shares authorized at December 31, 2015 and 2014;
no shares issued and outstanding at December 31, 2015 and 2014.
Common stock, $.001 par value; 90,000,000 shares authorized at December 31, 2015 and
2014; 48,580,355 and 30,391,513 shares issued and outstanding at December 31, 2015 and
December 31, 2014, respectively.
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total stockholders’ equity (deficit)
Total liabilities and stockholders’ equity (deficit)
$
$
$
$
1,248 $
397
591
228
2,464
12
1,494
3,970 $
652 $
237
70
959
-
347
1,306
1,284
110
186
104
1,684
1
1,684
3,369
835
342
70
1,247
7,386
417
9,050
-
-
49
119,797
71
(117,253)
2,664
3,970 $
30
108,382
72
(114,165)
(5,681)
3,369
The accompanying notes are an integral part of these consolidated financial statements.
34
NEPHROS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(In Thousands, Except Share and Per Share Amounts)
Net revenue:
Product revenues
License and royalty revenues
Total net revenues
Cost of goods sold
Gross margin
Operating expenses:
Research and development
Depreciation and amortization
Selling, general and administrative
Total operating expenses
Loss from operations
Change in fair value of warrant liability
Warrant modification expense
Interest expense
Other income (expense), net
Net loss
Other comprehensive loss, foreign currency translation adjustments
Total comprehensive loss
Net loss
Deemed dividend as a result of warrant modification
Net loss attributable to common stockholders
Net loss per common share, basic and diluted
Weighted average common shares outstanding, basic and diluted
Years Ended December 31,
2015
2014
1,790 $
154
1,944
884
1,060
826
212
3,443
4,481
(3,421)
2,099
(1,761)
(42)
37
(3,088)
(1)
(3,089) $
(3,088) $
(73)
(3,161) $
(0.09) $
34,780,506
914
834
1,748
549
1,199
781
217
2,870
3,868
(2,669)
(4,277)
-
(483)
58
(7,371)
(2)
(7,373)
(7,371)
-
(7,371)
(0.31)
23,817,184
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
35
NEPHROS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)
(In Thousands, Except Share Amounts)
Additional
Accumulated
Other
Balance, December 31, 2013
18,082,043 $
Common Stock
Shares
Amount
Paid-in Comprehensive Accumulated
Capital
18 $ 102,983 $
74 $
Income
Deficit
(106,794) $
Net loss
Net unrealized losses on foreign currency
translation, net of tax
Shareholder rights offerings, net
Issuance of restricted stock
Exercise of warrants
Noncash stock-based compensation
12,140,823
132,077
36,570
12
4,854
15
530
(7,371)
(2)
Stockholders’
Equity
(Deficit)
Total
(3,719)
(7,371)
(2)
4,866
-
15
530
Balance, December 31, 2014
30,391,513 $
30 $ 108,382 $
72 $
(114,165) $
(5,681)
Net loss
Net unrealized losses on foreign currency
translation, net of tax
Issuance of common stock, net of equity issuance
costs of $24
Issuance of common stock, net of commitment
fee of $163
Issuance of restricted stock
Issuance of restricted stock to a vendor
Exercise of warrants
Noncash stock-based compensation
Balance, December 31, 2015
(3,088)
(3,088)
(1)
1,834,299
550,000
501,182
116,613
15,186,748
2
1
1
15
1,203
135
174
68
9,484
351
48,580,355 $
49 $ 119,797 $
71 $
(117,253) $
(1)
1,205
136
175
68
9,499
351
2,664
The accompanying notes are an integral part of these consolidated financial statements.
36
NEPHROS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
Operating activities
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation of property and equipment
Amortization of other assets
Non-cash stock-based compensation, including stock options and restricted stock
Non-employee stock-based compensation
Change in fair value of warrant liability
Warrant modification expense
Inventory reserve
Allowance for doubtful accounts
Amortization of debt discount
Gain on foreign currency transactions
(Increase) decrease in operating assets:
Accounts receivable
Inventory
Prepaid expenses and other current assets
Increase (decrease) in operating liabilities:
Accounts payable
Accrued expenses
Deferred revenue
Net cash used in operating activities
Investing activities
Purchases of property and equipment
Net cash used in investing activities
Financing activities
Proceeds from issuance of common stock
Proceeds from issuance of senior secured notes
Proceeds from exercise of warrants
Payment of senior secured notes
Net cash provided by financing activities
Effect of exchange rates on cash
Net increase (decrease) in cash
Cash, beginning of year
Cash, end of year
Supplemental disclosure of cash flow information
Cash paid for interest expense
Cash paid for income taxes
Supplemental disclosure of noncash financing activities
Deemed dividend as a result of warrant modification
Issuance of common stock as commitment fee
Extinguishment of warrant liability
Restricted stock issued to settle liability
Years Ended December 31,
2015
2014
$
(3,088) $
(7,371)
1
211
489
68
(2,099)
1,761
-
15
-
(7)
(302)
(405)
(144)
(176)
(69)
(70)
(3,815)
(13)
(13)
1,340
-
2,451
-
3,791
1
(36)
1,284
1,248 $
43 $
5 $
73 $
163 $
5,287 $
36 $
6
210
530
-
4,277
-
59
-
320
(48)
12
(82)
21
(190)
(23)
(216)
(2,495)
-
-
4,866
1,572
15
(3,250)
3,203
(3)
705
579
1,284
188
6
-
-
-
-
$
$
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
37
NEPHROS, INC.
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 2015 presentation.
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, 2015 and 2014. 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.
38
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 2 - Summary of Significant Accounting Policies (continued)
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 Investors LLC (“Lambda”). 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 for warrants exercised and received approximately $1.76
million 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 $10.0 million 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 $135,000, see Note 11 – Stockholders’
Equity (Deficit).
On May 18, 2015, the Company raised gross proceeds of $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 exercisable at a price of $0.85 per share, see Note 11 – Stockholders’ Equity (Deficit).
The Company expects that the proceeds from the Lambda Class D warrant exercise and the additional warrant exercises that resulted from the tender offer
and the projected increases in product sales will allow the Company to fund its operations at least into the third quarter of 2016 , and potentially longer
depending on the timing and market up-take of our new products . This assumption excludes the impact of future cash receipts from recurring operations.
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.
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, 2015, four customers accounted for 64% of our revenues. For the year ended December 31, 2014, three customers
accounted for 78% of our revenues. As of December 31, 2015 three customers accounted for 71% of our accounts receivable. As of December 31, 2014, three
customers accounted for 83% of our 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 $15,000 and $1,000 as of
December 31, 2015 and 2014, respectively. There was no allowance for sales returns at December 31, 2015 or 2014. There were no write offs of accounts
receivable to bad debt expense during 2015 or 2014.
39
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 2 - Summary of Significant Accounting Policies (continued)
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.
In March 2014, the Company requested the closeout of its October 2013 voluntary product recall. The Company destroyed the respective product in April
2014.
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.
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, 2015 and December 31, 2014.
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.
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 $417,000 and $487,000 on the accompanying consolidated balance sheets as of December 31, 2015 and 2014,
respectively, and is related to the License Agreement with Bellco. The Company has recognized approximately $2,659,000 of revenue related to this license
agreement to date, including approximately $70,000 for the year ended December 31, 2015,
40
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 2 - Summary of Significant Accounting Policies (continued)
resulting in $417,000 being deferred over the remainder of the expected obligation period (see Note 13). The Company recognized approximately $834,000
of revenue related to this license agreement for the year ended December 31, 2014.
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). For
the year ended December 31, 2015, the Company recognized royalty income of approximately $84,000.
Shipping and Handling Costs
Shipping and handling costs charged to customers are recorded as cost of goods sold and were approximately $12,000 and $4,000 for the years ended
December 31, 2015 and 2014, 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 ASC 835, which allows that costs paid directly to the issuer of the notes be reported in the
balance sheet as a debt discount and amortized over the term of the associated debt. Debt issuance costs associated with the senior secured note issued to
Lambda on August 29, 2014 were $178,000. All of these costs, in addition to the remaining unamortized debt issuance costs related to the senior secured note
issued to Lambda on November 12, 2013 of $142,000, were amortized as of December 31, 2014 and are included in interest expense on the consolidated
statements of operations and comprehensive loss for the year ended December 31, 2014.
Other Income (Expense), net
Other income of approximately $37,000 and $58,000, respectively, for the years ended December 31, 2015 and 2014 is due to foreign currency transaction
gains.
41
NEPHROS, INC.
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, 2015 and 2014.
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 2011. During the years ended December 31, 2015 and 2014, 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:
Shares underlying options outstanding
Shares underlying warrants outstanding
Unvested restricted stock
Foreign Currency Translation
December 31,
2015
4,303,638
2,482,563
501,182
2014
2,472,234
16,752,915
132,077
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.
42
NEPHROS, INC.
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
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 August 2014, the FASB issued ASU No. 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. Early adoption is permitted. The
Company is currently evaluating any impact the adoption of ASU 2014-15 might have on its consolidated financial statements.
In April 2015, the FASB issued ASU No. 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 fiscal years
beginning after December 15, 2015 and interim periods within those fiscal years. Early adoption of the amendments in ASU 2015-03 is permitted for
financial statements that have not been previously issued. The Company does not believe that the adoption of ASU 2015-03 will have a significant 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 August 2015, the FASB issued ASU No. 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit
Arrangements” which clarifies the presentation requirements for debt issuance costs discussed in ASU 2015-03 as they relate to line-of-credit arrangements.
The Securities and Exchnage Commission (“SEC”) will not object to an entity deferring and presenting debt issuance costs as an asset and subsequently
amortizing the deferred debt issuance costs ratably over the term of the line-of-credit arrangement, regardless of whether there are any outstanding
borrowings on the line-of-credit arrangement. The Company does not believe that the adoption of ASU 2015-15 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.
43
NEPHROS, INC.
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 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
our 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 as of December 31, 2014 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.
44
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 3 - Financial Instruments (continued)
The following fair value hierarchy table presents information about each major category of the Company’s financial assets and liability measured at fair value
on a recurring basis as of December 31, 2014 (in thousands).
At December 31, 2014:
Warrant liability
Fair value measurement at reporting date using:
Quoted prices in
active markets for
identical assets
(Level 1)
Significant other
observable
inputs
(Level 2)
Significant
unobservable
inputs
(Level 3)
Total
$
-
$
-
$
7,386 $
7,386
On the consolidated statement of operations for the years ended December 31, 2015 and 2014, the Company recorded income of approximately $2,099,000
and expense of approximately $4,277,000, respectively, as a result of the change in fair value of the warrant liability. A reconciliation of the warrant liability
is as follows (in thousands):
Balance at January 1, 2014
Increase in fair value of warrant liability
Balance at December 31, 2014
Decrease in fair value of warrant liability
Balance at September 29, 2015
2007 Warrants
$
$
$
3,109
4,277
7,386
(2,099
5,287
The following table summarizes the calculated aggregate fair values of the warrants, along with the assumptions utilized in each calculation:
Calculated aggregate value
Weighted average exercise price
Closing price per share of common stock
Volatility
Weighted average remaining expected life (years)
Risk-free interest rate
Dividend yield
September 29,
2015
December 31,
2014
$
$
$
$
$
$
5,287
0.30
0.40
137%
4.2
1.4%
-
7,386
0.30
0.79
165.6%
5.2
1.8%
-
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 $1.76 million 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.
45
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 4 - Inventory
The Company’s inventory components as of December 31, 2015 and 2014 were as follows:
Total gross inventory, finished goods
Less: inventory reserve
Total inventory
Note 5 - Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets as of December 31, 2015 and 2014 were as follows:
Prepaid insurance premiums
Deposit on equipment
Inventory in transit
Security deposit
Other
Prepaid expenses and other current assets
Note 6 - Property and Equipment, Net
Property and equipment as of December 31, 2015 and 2014 was as follows:
Manufacturing equipment
Research equipment
Computer equipment
Furniture and fixtures
Property and equipment, gross
Less: accumulated depreciation
Property and equipment, net
December 31,
2015
2014
634,000 $
(43,000)
591,000 $
297,000
(111,000)
186,000
December 31,
2015
2014
62,000 $
124,000
18,000
-
24,000
228,000 $
70,000
-
-
21,000
13,000
104,000
$
$
$
$
Life
2015
2014
December 31,
3-5 years
5 years
3-4 years
7 years
$
$
611,000 $
37,000
43,000
37,000
728,000
716,000
12,000 $
599,000
37,000
59,000
39,000
734,000
733,000
1,000
Depreciation expense for each of the years ended December 31, 2015 and 2014 was approximately $1,000 and $6,000, respectively.
Note 7 - Related Party Senior Secured Notes
On August 29, 2014, the Company issued a senior secured note to Lambda, in the principal amount of $1.75 million. Lambda is the Company’s largest
stockholder and beneficially owns approximately 62% of the Company’s outstanding common stock. The note bore interest at the rate of 12% per annum and
was scheduled to mature on February 28, 2015, at which time all principal and accrued interest was due. However, the Company paid all amounts due under
the note on December 18, 2014 with the cash proceeds from the rights offering that closed in December 2014. In connection with the note, the Company
incurred an 8%, or $140,000, sourcing/transaction fee with Lambda. In addition, the Company incurred additional legal fees and other expenses in connection
with the note in the amount of $38,000 with Lambda. Those payments totaling $178,000 were initially reflected as a debt discount and amortized over the
term of the note. For the year ended December 31, 2014, $178,000 is included in interest expense on the consolidated statements of operations and
comprehensive loss.
46
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 7 – Related Party Senior Secured Notes (continued)
On November 12, 2013, the Company issued a senior secured note to Lambda in the principal amount of $1.5 million. The note bore interest at the rate of
12% per annum and was scheduled to mature on May 12, 2014, at which time all principal and accrued interest was due. However, the Company paid
amounts due under the note on March 18, 2014 with the cash proceeds from the rights offering that closed in March 2014. In connection with the note, the
Company incurred an 8%, or $120,000, sourcing/transaction fee with Lambda. In addition, the Company incurred additional legal fees and other expenses in
connection with the note in the amount of $75,000 with Lambda. Those payments totaling $195,000 were made on November 12, 2013 and were reflected as
a debt discount which was amortized over the term of the senior secured note. Approximately $142,000 is included in interest expense on the consolidated
statement of operations and comprehensive loss for the year ended December 31, 2014.
Lambda is an affiliate of Wexford Capital LP, which is the managing member of Lambda. Arthur H. Amron, a director of the Company, is a partner and
general counsel of Wexford Capital LP. Paul A. Mieyal, a director of the Company, served as Acting President, Acting Chief Executive Officer and Acting
Chief Financial Officer, from January 4, 2015 to April 15, 2015 and is also a Vice President of Wexford Capital LP.
Note 8 - Accrued Expenses
Accrued expenses as of December 31, 2015 and 2014 were as follows:
December 31,
2015
2014
Accrued legal
Accrued directors’ compensation
Accrued royalty
Accrued credits issued to customers
Accrued management bonus
Accrued stock transfer agent fees
Accrued accounting
Accrued interest
Accrued other
Note 9 - Income Taxes
$
$
103,000 $
52,000
14,000
10,000
-
-
1,000
12,000
45,000
237,000 $
A reconciliation of the income tax provision computed at the statutory tax rate to the Company’s effective tax rate is as follows:
U.S. federal statutory rate
Warrant liability
State & local taxes
Tax on foreign operations
State research and development credits
Other
Valuation allowance
Effective tax rate
2015
2014
34.00%
3.71%
5.78%
0.36%
1.47%
( 3.11)%
( 42.21)%
-
47
145,000
36,000
-
-
50,000
27,000
23,000
14,000
47,000
342,000
35.00%
(23.70)%
5.02%
0.20%
0.55%
(3.10)%
(13.97)%
-
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 9 - Income Taxes (continued)
Significant components of the Company’s deferred tax assets as of December 31, 2015 and 2014 are as follows:
Deferred tax assets:
Net operating loss carry forwards
Research and development credits
Nonqualified stock option compensation expense
Other temporary book - tax differences
Total deferred tax assets
Valuation allowance for deferred tax assets
Net deferred tax assets
2015
2014
$
$
29,092,799 $
1,163,616
374,769
258,445
30,889,629
(30,889,629)
- $
27,935,165
1,118,389
1,913,673
436,178
31,403,405
(31,403,405)
-
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.
At December 31, 2015, the Company had Federal income tax net operating loss carryforwards of $76,656,025 and New Jersey income tax net operating loss
carryforwards of $ 16,508,292 . Foreign income tax net operating loss carryforwards were $7,448,287 as of December 31, 2015. The Company also had
Federal research tax credit carryforwards of $1,163,616 at December 31, 2015 and $1,118,389 at December 31, 2014. The Company’s net operating losses
and research credits may ultimately be limited by Section 382 of the code and, as a result, the may be unable to offset future taxable income (if any) with
losses, or our 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 2015 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, 2015, 2,795,693 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 17, 2025, As of December 31, 2015, 116,136 options had been issued to non-employees under
the 2015 Plan, were outstanding and will expire on August 14, 2025. Taking into account all options and restricted stock granted under the 2015 Plan,
3,470,376 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 2,795,693 options granted to employees,
327,629 options will vest when the specified performance condition is met.
As of December 31, 2015, 488,600 options had been issued to employees under the 2004 Plan and were outstanding. The options expire on various dates
between January 5, 2016 and February 5, 2024. As of December 31, 2015, 903,209 options had been issued to non-employees under the 2004 Plan and were
outstanding. Such options expire at various dates between January 5, 2016 and November 17, 2024. No shares are available for future grants under the 2004
Plan. Options currently outstanding are fully vested or will vest upon a combination of the following: immediate vesting or straight line vesting of two or four
years.
As of December 31, 2014, 1,236,975 options had been issued to employees under the 2004 Plan and were outstanding. The options expire on various dates
between April 27, 2015 and February 5, 2024, and have vested or will vest upon a combination of the following:
48
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 10 - Stock Plans, Share-Based Payments and Warrants (continued)
immediate vesting or straight line vesting of two or four years. At December 31, 2014, there were 2,054,799 shares available for future grants under the 2004
Plan. As of December 31, 2014, 903,709 options had been issued to non-employees under the 2004 Plan and were outstanding. Such options expire at various
dates between April 26, 2015 and November 17, 2024, and vest upon a combination of the following: immediate vesting or straight line vesting of two or four
years.
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, 2015 and 2014 was approximately $328,000 and approximately $421,000, respectively.
The following table summarizes the option activity for the years ended December 31, 2015 and 2014:
Outstanding at December 31, 2013
Options granted
Options forfeited or expired
Outstanding at December 31, 2014
Options granted
Options forfeited or expired
Outstanding at December 31, 2015
Shares
2,410,134 $
352,519
(290,419)
2,472,234
2,911,829
(1,080,425)
4,303,638 $
The following table summarizes the options exercisable and vested and expected to vest as of December 31, 2015 and 2014:
Exercisable at December 31, 2014
Vested and expected to vest at December 31, 2014
Exercisable at December 31, 2015
Vested and expected to vest at December 31, 2015
Shares
1,679,392 $
2,426,249 $
1,377,665 $
4,133,932 $
Weighted
Average
Exercise
Price
Weighted
Average
Exercise
Price
1.28
0.50
2.45
0.96
0.56
1.28
0.65
1.11
1.04
0.84
0.66
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.
Grant Year
Stock Price Volatility
Risk-Free Interest Rates
Expected Life (in years)
Expected Dividend Yield
Option Pricing Assumptions
2014
2015
121.9%
1.60%
6.15
0%
129.8%
1.86%
5.84
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.
49
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 10 - Stock Plans, Share-Based Payments and Warrants (continued)
The total fair value of options vested during the fiscal year ended December 31, 2015 was approximately $234,000. The total fair value of options vested
during the fiscal year ended December 31, 2014 was approximately $507,000.
The weighted-average fair value of options granted in 2015 and 2014 is $0.56 and $0.45, respectively. The aggregate intrinsic values of stock options
outstanding and 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.
The aggregate intrinsic value of stock options outstanding at December 31, 2014 is $241,000 and of stock options vested or expected to vest is approximately
$235,000. 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 7.5 years.
As of December 31, 2015, there was approximately $1,174,000 of total unrecognized compensation cost related to unvested share-based compensation
awards granted under the equity compensation plans. Approximately $158,000 of the $1,174,000 total unrecognized compensation will be recognized at the
time that certain performance conditions are met. The remaining approximately $1,016,000 will be amortized over the weighted average remaining requisite
service period of 3.5 years.
Restricted Stock
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, 2015 and 2014:
Nonvested at December 31, 2013
Granted
Vested
Nonvested at December 31, 2014
Granted
Vested
Nonvested at December 31, 2015
Weighted
Average
Grant Date
Fair Value
0.66
0.86
0.66
0.86
0.48
0.73
0.46
Shares
75,450 $
132,077
(75,450)
132,077
617,795
(248,690)
501,182 $
Total stock-based compensation expense for the restricted stock was approximately $161,000 and $109,000, respectively, for the years ended December 31,
2015 and December 31, 2014 and is included in Selling, General and Administrative expenses on the accompanying consolidated statement of operations and
comprehensive loss. As of December 31, 2015, there was approximately $39,000 of unrecognized compensation expense related to the restricted stock
awards, which is expected to be recognized over the next six months.
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.
50
NEPHROS, INC.
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, 2015 and 2014:
Total Outstanding Warrants
Title of Warrant
Date Issued
Expiry Date
Exercise Price
Liability-classified warrants
2007 Warrants - Lambda
11/14/2007
3/21/2019
$
0.30
Equity-classified warrants
Shareholder Rights Offering Warrants
March 2011 Lambda Warrants
May 2015 – private placement warrants
Total
3/10/2011
3/10/2011
3/18/2015
3/10/2016
3/21/2019
3/18/2020
$
$
$
0.40
0.40
0.85
Total Common
Shares Issuable as December 31,
2015
2014
-
-
11,742,100
11,742,100
1,565,414
-
917,149
2,482,563
2,482,563
2,228,238
2,782,577
-
5,010,815
16,752,915
The weighted average exercise price of the outstanding warrants was $0.57 as of December 31, 2015 and $0.33 as of December 2014.
Warrants exercised during 2015 and 2014
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.
During the twelve months ended December 31, 2014, 791,278 warrants were exercised, resulting in proceeds of approximately $15,000 and the issuance of
36,570 shares of the Company’s common stock.
In addition, 30 and 9 common shares, respectively, were not issued as a result of warrant exercises for the years ended December 31, 2015 and 2014 due to
rounding.
51
NEPHROS, INC.
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 mortized 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.
Issuance of Restricted Stock to Nonemployees
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 (see Note 6). 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.
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.
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.
52
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 11 - Stockholders’ Equity (Deficit) (continued)
December 2014 Rights Offering
On October 20, 2014, the Company filed a Registration Statement on Form S-1 in connection with a $3 million rights offering. On November 4, 2014, the
Company’s Registration Statement on Form S-1 related to the Rights Offering was declared effective by the SEC.
The December 2014 rights offering commenced on November 10, 2014 and expired on December 15, 2014. All of the Company’s stockholders and warrant
holders were eligible to participate in the rights offering on a pro rata basis based upon their proportionate ownership of the Company’s common stock on a
fully-diluted basis. Pursuant to the rights offering, the Company distributed to holders of its common stock and/or warrants one non-transferable subscription
right for each share of common stock, and each share of common stock underlying a warrant, held as of November 5, 2014. Each right entitled the holder to
purchase 0.11901 of a share of the Company’s common stock at a subscription price of $0.60 per share. The Company rounded up any fractional shares to the
nearest whole share.
On December 18, 2014, the Company completed a rights offering which resulted in the issuance of 5,000,000 shares for gross proceeds of $3.0 million. The
aggregate net proceeds were approximately $1.1 million, after deducting the repayment of the $1.75 million August 2014 senior secured note, plus $64,000 of
accrued interest thereon, issued to Lambda, and an aggregate of $75,000 for reimbursement of Lambda’s legal fees incurred in connection with the August
2014 senior secured note and the rights offering.
March 2014 Rights Offering
On January 7, 2014, the Company filed a Registration Statement on Form S-1 in connection with a $2.8 million rights offering. On February 12, 2014, the
Company’s Registration Statement on Form S-1 related to the March 2014 rights offering was declared effective by the SEC. The March 2014 rights offering
commenced on February 14, 2014 and expired on March 14, 2014. All of the Company’s stockholders and warrant holders were eligible to participate in the
March 2014 rights offering on a pro rata basis based upon their proportionate ownership of the Company’s common stock on a fully-diluted basis. Pursuant to
the March 2014 rights offering, the Company distributed to holders of its common stock and/or warrants one non-transferable subscription right for each
share of common stock, and each share of common stock underlying a warrant, held as of January 30, 2014. Each right entitled the holder to purchase
0.28673 of a share of the Company’s common stock at a subscription price of $0.30 per share. The Company rounded up any fractional shares to the nearest
whole share.
On March 21, 2014, the Company completed the March 2014 rights offering that resulted in gross proceeds of $2.1 million. The aggregate net proceeds were
approximately $581,000, after deducting the repayment of the November 2013 $1.5 million senior secured note and the $61,000 of accrued interest thereon.
The Company issued a total of 7,140,823 shares of common stock to the holders of subscription rights who validly exercised their subscription rights, which
represents 77% of the total shares offered in the March 2014 rights offering. Fees of approximately $128,000 were also incurred related to the March 2014
rights offering and were recorded as reduction to equity.
53
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
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 $42,000 and $43,000 in 2015 and 2014, respectively.
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.
License 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 $880,000) for
the years 2012, 2013 and 2014, respectively. In the year ended December 31, 2015, the Company’s aggregate purchase commitments totaled approximately
€999,000 (approximately $1,119,000). For calendar years 2016 through 2022, annual minimum amounts will be mutually agreed upon between Medica and
the Company. In December 2015, the Company and Medica formalized the agreed upon minimum purchase level for 2016 of €1,200,000. 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.
54
NEPHROS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 13 - Commitments and Contingencies (continued)
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 has been capitalized as a long-term intangible asset along with the total
installment payments described. Other long-term assets on the consolidated balance sheet is approximately $1,473,000, net of $777,000 accumulated
amortization, and is related to the License and Supply Agreement. The asset is being amortized as an expense over the life of the agreement. Approximately
$211,000 and $210,000 has been charged to amortization expense for the years ended December 31, 2015 and 2014, respectively, 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, 2016 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.
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.
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.
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.
Included in other assets on the consolidated balance sheet as of December 31, 2015 is approximately $21,000 related to a security deposit for the U.S. office
facility. We use these facilities to house our corporate headquarters and research facilities.
The lease agreement for the facilities in Europe was entered into on July 1, 2010. The lease term is renewable for 6 month terms with a 2 month notice to
discontinue, on a rolling basis. The monthly cost is 500 Euro (approximately $545).
Rent expense for the years ended December 31, 2015 and 2014 totaled $125,000 and $117,000, respectively.
Contractual Obligations and Commercial Commitments
The following tables summarize our approximate minimum contractual obligations and commercial commitments as of December 31, 2015:
Total
Within
1 Year
Payments Due in Period
Years
2 - 3
Years
4 - 5
More than
5 Years
Leases1
Employment Contracts
Total
$
$
355,000
790,000
1,145,000
$
$
115,000
240,000
355,000
$
$
226,000 $
480,000
706,000 $
14,000 $
70,000
84,000 $
-
-
-
1In addition to lease obligations for office space, obligations include a lease for various office equipment which expires in 2020.
Product Recall
On October 30, 2013, the Company filed a Current Report on Form 8-K announcing the voluntary recalls of its point of use (POU) and DSU in-line
ultrafilters used in hospital water treatment applications. As a result, the Company recalled all production lots of its POU filters, and also requested that
customers remove and discard certain labeling/promotional materials for the products. In addition, the Company also requested, for the DSU in-line
ultrafilter, that customers remove and discard certain labeling/promotional materials for the product. These voluntary recalls did not affect the Company’s
dialysis products. The consolidated financial statements for the year ended December 31, 2013 included product revenues and cost of goods sold adjustments
of approximately $216,000 and $110,000, respectively, reflecting estimates of the financial impact of product recalled to the Company. The recall and the
related circumstances could subject the Company to claims or proceedings by consumers, the FDA or other regulatory authorities which may adversely
impact the Company’s sales and revenues. The Company destroyed the respective product in April 2014.
55
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
There have been no disagreements with our accountants during 2015 or 2014 reportable pursuant to this Item.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed in our reports filed
or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.
Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in
company reports filed or submitted under the Exchange Act is accumulated and communicated to management, including our Chief Executive Officer and
Acting Chief Financial Officer, to allow timely decisions regarding required disclosure.
As required by Rules 13a-15 and 15d-15 under the Exchange Act, our Chief Executive Officer and Acting Chief Financial Officer carried out an evaluation of
the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2015. Based upon this evaluation, the Chief
Executive Officer and Acting Chief Financial Officer have concluded that our disclosure controls and procedures were effective as of December 31, 2015.
Accordingly, management believes that the financial statements included in this Annual Report on Form 10-K present fairly in all material respects our
financial position, results of operations and cash flows for the period presented.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act
Rules 13a-15(f) and 15d-15(f). Under the supervision of the Chief Executive Officer and Acting Chief Financial Officer, management conducted an
evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2015 based on the framework set forth by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO) in “Internal Control-Integrated Framework”. Based on our assessment, management has
concluded that as of December 31, 2015, the previously-identified material weakness (discussed in further detail below) has been remediated and our internal
control over financial reporting was effective as of December 31, 2015.
Changes in Internal Control Over Financial Reporting
Other than as described herein, there were no changes in our internal control over financial reporting that occurred during our most recent fiscal quarter that
materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
In connection with the preparation of our financial statements for the year ended December 31, 2014, our management discovered that we had improperly
accounted for certain of our outstanding common stock 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. During the quarter ended December 31, 2015, we
continued to expand and improve our review process for complex securities and related accounting standards to remediate this material weakness, and, as
noted above, management has concluded that as of December 31, 2015, this material weakness has been remediated. We plan to continue to improve our
review process by enhancing access to accounting literature, identifying third party professionals with whom to consult regarding complex accounting
applications and considering additional staff with the requisite experience and training to supplement existing accounting professionals.
Item 9B. Other Information
Not applicable.
56
Item 10. Directors, Executive Officers and Corporate Governance
Board of Directors
PART III
Our Board of Directors (the “Board”) is currently composed of six 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.
Board Members
Name
Class I Directors
Age
(as of
3/26/16)
Director Since
Business Experience for the Last Five Years
Arthur H. Amron
59
2007
Matthew Rosenberg
35
2014
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 has also 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), since October 2010.
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.
Dr. Rosenberg has served as a director of our company since May 2014. Dr.
Rosenberg is an accomplished professional with extensive healthcare public policy
experience. He is the Founder and President of Opake as well as an active early stage
investor. Dr. Rosenberg was formerly at McKinsey & Company, a global
management consulting firm, where he focused on the Healthcare Systems and
Services Practice. Dr. Rosenberg specialized in driving impact for payors and
providers through strategic, organizational and operational improvements, including
managed care contracting, alternative reimbursement designs, and clinical operations
improvement. Dr. Rosenberg received his A.B. in Economics from Harvard
University and his M.D. from Yale University School of Medicine. Among other
experience, qualifications, attributes and skills, Dr. Rosenberg’s medical background
and healthcare policy 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.
57
Class II Directors
Paul A. Mieyal
46
2007
Malcolm Persen
62
2015
Class III Directors
Daron Evans
42
2013
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.
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.
Mr. Evans is currently our President, Chief Executive Officer and Acting Chief
Financial 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 2006 to 2007, he was Director of Business Assessment for Vistakon, a division
of Johnson & Johnson Corp. From 2004 to 2006, he was Associate Director of
Portfolio Management & Business Analytics at Scios, Inc. after its acquisition by
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
41
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.
58
Executive Officers
We currently have no executive officers other than Daron Evans, who serves as our President, Chief Executive Officer and Acting Chief Financial Officer.
On January 4, 2015, John C. Houghton separated from service with the Company as President, Chief Executive Officer and Acting Chief Financial Officer of
the Company. Mr. Houghton also resigned as a member of the Board effective January 4, 2015. From January 4, 2015 through April 15, 2015, Paul A.
Mieyal, a member of the Board, served as the Acting President, Acting Chief Executive Officer and Acting Chief Financial Officer.
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 2015, all of our officers, directors and 10% stockholders complied with
applicable Section 16(a) filing requirements.
Code of Ethics and Business Conduct
During the fiscal year ended December 31, 2004, we adopted a Code of Ethics and Business Conduct, which was amended and restated on April 2, 2007, for
our employees, officers and directors that complies with SEC regulations. The Code of Ethics is available free of charge on our website at www.nephros.com,
by clicking on the Investor Relations link, then the Corporate Governance link. We intend to timely disclose any amendments to, or waivers from, our code of
ethics and business conduct that are required to be publicly disclosed pursuant to rules of the SEC by filing such amendment or waiver with the SEC.
Committees
Our Board has established an Audit Committee and a Compensation Committee. These committees are each governed by a specific charter, each of which is
available on our website at www.nephros.com, by clicking on the Investor Relations link, and then the Corporate Governance link. All members of these
committees are independent directors.
The Board does not currently have a Nominating and Corporate Governance Committee given that the entire Board participates in discussions and decisions
regarding identifying qualified individuals to become Board members, determining the composition of the Board and its committees, in monitoring a process
to assess Board effectiveness and developing and implementing corporate procedures and policies.
Audit Committee
The Audit Committee is composed of Malcolm Persen (Chairman) and Matthew Rosenberg, neither of whom is our employee and each of whom has been
determined by the Board of Directors to be independent under the Nasdaq listing standards. The purpose of the Audit Committee is to: (i) oversee accounting,
auditing, and financial reporting processes; (ii) assess the integrity of our financial statements; (iii) ensure that our internal controls and procedures are
designed to promote compliance with accounting standards and applicable laws and regulations; and (iv) appoint and evaluate the qualifications and
independence of our independent registered public accounting firm. The Audit Committee held four meetings in 2015.
The Board has determined that all Audit Committee members are financially literate under the current listing standards of Nasdaq. The Board also determined
that Mr. Persen qualifies as an “audit committee financial expert” as defined by the Securities and Exchange Commission, or SEC, rules adopted pursuant to
the Sarbanes-Oxley Act of 2002 based on his extensive experience previously outlined.
59
Compensation Committee
During fiscal year 2015, the Compensation Committee was composed of directors Lawrence J. Centella (Chairman during 2015) and Paul A. Mieyal. Mr.
Centella resigned from the Board on December 31, 2015, and the Board has not yet determined who will replace Mr. Centella on the Compensation
Committee. Neither of these directors is our employee; however, Dr. Mieyal served as Acting Chief Executive Officer from April 6, 2010 until April 20, 2012
and served as our Acting President, Acting Chief Executive Officer and Acting Chief Financial Officer, from January 4, 2015 to April 15, 2015. The purpose
of the Compensation Committee is to: (i) assist the Board in discharging its responsibilities with respect to compensation of our executive officers and
directors; (ii) evaluate the performance of our executive officers; (iii) assist the Board in developing succession plans for executive officers; and (iv)
administer our stock and incentive compensation plans and recommend changes in such plans to the Board as needed. The Compensation Committee
establishes the compensation of senior executives on an annual basis. The Compensation Committee held two meetings in 2015.
The Compensation Committee reviews and approves, on an annual basis, the corporate goals and objectives with respect to the compensation of our executive
officers. The Compensation Committee evaluates, at least once a year, our executive officers’ performance in light of these established goals and objectives,
and, based upon these evaluations, recommends to the full Board the annual compensation of such executive officers, including salary, bonus, incentive, and
equity compensation. In reviewing and recommending the compensation of the executive officers, the Compensation Committee may consider the
compensation awarded to officers of similarly situated companies, our performance, the individuals’ performance, compensation given to our executive
officers in past years or any other fact that the Compensation Committee deems appropriate. The Chief Executive Officer does not participate in the
discussions and processes concerning his own compensation and is not present during any discussions regarding his own compensation. The Compensation
Committee also reviews and recommends to the full Board appropriate director compensation programs for service as directors and committee members. The
Compensation Committee has the authority to delegate any of its responsibilities to subcommittees as the Committee may deem appropriate.
Lawrence J. Centella and Paul A. Mieyal served as members of our Compensation Committee during all of 2015. Neither of these individuals was at any time
during 2015 or at any other time an officer or employee of our company, except that Dr. Mieyal served as our Acting Chief Executive Officer until April 20,
2012, during which time he received no employee compensation or employee benefits from us, and Dr. Mieyal served as our Acting President, Acting Chief
Executive Officer and Acting Chief Financial Officer, from January 4, 2015 to April 15, 2015, during which time he received no employee compensation or
employee benefits from us. No interlocking relationship exists between any member of our Compensation Committee and any member of any other
company’s Board of Directors or Compensation Committee.
Selection of Nominees for the Board of Directors
The entire Board is responsible for nominating members for election to the Board and for filling vacancies on the Board that might occur between annual
meetings of the stockholders. The Board is also responsible for identifying, screening, and recommending candidates for prospective Board membership.
When formulating its membership recommendations, the Board also considers any qualified candidate for an open Board position timely submitted by our
stockholders in accordance with our established procedures.
The Board will evaluate and recommend candidates for membership on the Board consistent with criteria, including: personal qualities and characteristics,
accomplishments, and reputation in the business community; financial, regulatory, and business experience; current knowledge and contacts in the industry in
which we do business; ability and willingness to commit adequate time to Board and committee matters; fit of the individual’s skills with those of other
directors and potential directors in building a Board that is effective and responsive to our needs; independence; and any other factors the Board deems
relevant, including diversity of viewpoints, background, experience, and other demographics. In addition, prior to nominating an existing director for re-
election, the Board will consider and review an existing director’s Board and committee attendance and performance; length of Board service; experience,
skills, and contributions that the existing director brings to the Board; and independence.
To identify nominees, the Board will rely on personal contacts as well as its knowledge of persons in our industry. We have not previously used an
independent search firm to identify nominees.
The Board will consider stockholder recommendations of candidates when the recommendations are properly submitted. Stockholder recommendations
should be submitted to us under the procedures discussed in “Procedures For Security Holder Submission of Nominating Recommendations” which is
available on our website at www.nephros.com, by clicking on the Investor Relations link, then the Corporate Governance link. Written notice of any
nomination must be timely delivered to Nephros, Inc., 41 Grand Avenue, River Edge, New Jersey 07661, Attention: Board of Directors, c/o President, Chief
Executive Officer and Chief Financial Officer.
60
The Board uses a variety of methods for identifying and evaluating non-incumbent candidates for director. The Board regularly assesses the appropriate size
and composition of the Board, the needs of the Board and the respective committees of the Board as well as the qualifications of candidates in light of these
needs. The Board will solicit recommendations for nominees from persons that the Board believes are likely to be familiar with qualified candidates,
including members of the Board, our management or a professional search firm. The evaluation of these candidates may be based solely upon information
provided to the Board or may also include discussions with persons familiar with the candidate, an interview of the candidate or other actions the Board
deems appropriate, including the use of third parties to review candidates.
Item 11. Executive Compensation
Executive Compensation
The following table sets forth all compensation earned in the fiscal years ended December 31, 2015 and 2014 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
President, Chief Executive Officer and Acting
Chief Financial Officer(4)
Paul A. Mieyal, Acting President, Acting Chief
Executive Officer, Acting Chief Financial Officer
and Acting Secretary(5)
John C. Houghton
Former President, Chief Executive Officer and
Acting Chief Financial Officer(6)
2015 $ 170,000 $ 11,475 $ 12,852 $ 1,150,087 $
7,000 $ 1,351,414
2015 $
- $
- $
- $
- $
- $
-
- $
2015 $
2014 $ 350,000 $
- $
- $
- $
- $
- $
10,500 $
175,000 $ 175,000
37,784 $ 398,284
(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 2015 and 2014.
(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. Compensation paid to Mr. Evans for
his service as a director prior to April 15, 2015 is included on the Director Compensation table below.
(5) Mr. Mieyal served as Acting President, Acting Chief Executive Officer, Acting Chief Financial Officer and Acting Secretary from January 4, 2015
through April 15, 2015. Mr. Mieyal did not receive compensation from the Company for his service as Acting President, Acting Chief Executive Officer,
Acting Chief Financial Officer and Acting Secretary. Compensation paid to Mr. Mieyal for his service as a director is included on the Director
Compensation table below.
(6) Mr. Houghton separated from service with the Company effective January 4, 2015.
61
All Other Compensation
Name
Daron Evans
John C. Houghton
John C. Houghton
Year
2015
2015
2014
Matching
401(k) Plan
Contribution
($)
Health
Insurance Paid
by Company
($)
Life Insurance
Paid by
Company
($)
Severance
Payments
($)
Total Other
Compensation
($)
$
$
$
7,000
-
14,000
$
$
$
-
-
20,520
$
$
$
- $
- $
3,264 $
- $
175,000 $
- $
7,000
175,000
37,784
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, 2015 for our
named executive officers.
Outstanding Equity Awards at Fiscal Year-End 2015
Option Awards
Stock Awards
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
(#)
Number of
Shares or
Units of
Stock that
Have Not
Vested
(#)
Market
Value of
Shares or
Units That
Have Not
Vested($)
Option
Exercise
Price ($)
Option
Expiration
Date (3)
50,241
25,120
0.46
3/26/24
143,338
621,130
1,419,725
0.60
4/15/25
70,610
15,534
42,840
9,425
Name
Daron Evans
Daron Evans
Daron Evans
Daron Evans
Grant
Date(1)
March 26,
2014
April 15,
2015
September
9, 2015
December
17, 2015
(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, 2015, stock options became exercisable in accordance with the vesting schedule below:
Name
Daron Evans
Daron Evans
Daron Evans
Daron Evans
Daron Evans
Daron Evans
Grant Date
March 26, 2014
April 15, 2015
April 15, 2015
April 15, 2015
April 15, 2015
April 15, 2015
Vesting
1/3 on March 26, 2014, 1/3 on March 26, 2015, 1/3 on March 26, 2016
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
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
62
Advisory Vote on Executive Compensation
Our Board of Directors recognizes the fundamental interest our stockholders have in the compensation of our executive officers. At the Company’s 2014
Annual Meeting, our stockholders approved with approximately 98% of the votes cast, on an advisory basis, in favor of the compensation of the Company’s
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 the long term goals of the Company. 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 the Company’s NEOs, the
Company’s stockholders indicated their approval of the Board’s recommendation to hold a non-binding advisory vote on the Company’s 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).
63
Agreements with Mr. John C. Houghton
Mr. Houghton’s employment with the Company ended January 4, 2015. In connection with his separation from employment with the Company, Mr.
Houghton entered into a Separation Agreement and General Release. Pursuant to this Agreement, Mr. Houghton was entitled to six months severance (equal
to six months of his then-current base salary, or a total of $175,000 and was permitted to exercise his vested unexpired stock options for ninety days following
January 4, 2015. During the severance term, Mr. Houghton was subject to customary non-competition, non-solicitation and confidentiality restrictions.
On April 20, 2012, we entered into an Employment Agreement (the “Houghton Employment Agreement”), effective as of April 20, 2012, with Mr. Houghton.
The Houghton Employment Agreement had a term of four years, ending on April 20, 2016. The Houghton Employment Agreement provided that Mr.
Houghton’s annual base salary would be $350,000. Mr. Houghton was eligible to receive a target discretionary bonus of 30% of annual base salary, as
determined by us. The targets with respect to the bonus for the year ending December 31, 2012 were mutually agreed upon between Mr. Houghton and the
Compensation Committee of the Board within 60 days following April 20, 2012 and such bonus was appropriately prorated for such annual period. The
targets for each subsequent annual period were to be mutually agreed upon at the beginning of each calendar year between Mr. Houghton and the
Compensation Committee.
Upon execution of the Houghton Employment Agreement, we granted Mr. Houghton options to purchase 675,000 shares of our common stock pursuant to
our 2004 Stock Incentive Plan (the “2004 Plan”). In addition, we were required to grant Mr. Houghton options to purchase an additional 331,550 shares of our
common stock. The Houghton Employment Agreement further provided that, subject to Mr. Houghton meeting and maintaining the director eligibility
requirements of the Board, Mr. Houghton would be nominated for election as a director at each stockholders meeting during his employment at which his
term as a director would otherwise expire.
The Houghton Employment Agreement provided that upon the occurrence of a change in control (as defined in the Houghton Employment Agreement), all of
Mr. Houghton’s unvested stock options would vest and become exercisable immediately and, unless all such options were cashed-out in the change in control
transaction, would remain exercisable for a period of not less than 360 days (or the expiration of the stock option term, if sooner), regardless of whether Mr.
Houghton’s employment was terminated in connection with such change in control transaction.
In the event that Mr. Houghton’s employment was terminated by us for “cause” (as defined in the Houghton Employment Agreement), then we would pay the
earned but unpaid base salary for services rendered through the date of termination and any and all unvested stock options would automatically be cancelled
and forfeited by Mr. Houghton as of the date of termination.
In the event that Mr. Houghton’s employment was terminated by reason of Mr. Houghton’s death, or by reason of Mr. Houghton’s resignation or retirement
(as to which at least two weeks notice is required), then we would pay to Mr. Houghton only the earned but unpaid base salary for services rendered through
the date of termination. Any and all unvested stock options will automatically be cancelled and forfeited as of the date of Mr. Houghton’s death, resignation or
retirement.
If, as a result of Mr. Houghton’s incapacity due to physical or mental illness, we determined that Mr. Houghton had failed to perform his duties on a full time
basis for either ninety (90) days within any three hundred sixty-five (365) day period or sixty (60) consecutive days, we could terminate his employment
hereunder for “disability”. In that event, we would pay the earned but unpaid base salary for services rendered through such date of termination. Any and all
unvested stock options would be cancelled as of the date of termination. During any period that Mr. Houghton failed to perform his duties as a result of
incapacity due to physical or mental illness, he would continue to receive compensation and benefits provided by the Houghton Employment Agreement until
his employment was terminated; provided, however, that the amount of compensation and benefits received during such period would be reduced by the
aggregate amounts, if any, payable under our disability benefit plans and programs or under the Social Security disability insurance program. Additionally, the
vesting of stock options would be tolled during such period and in the event of a termination of the Houghton Employment Agreement as a result of disability,
any and all unvested stock options would automatically be cancelled and forfeited as of the date of termination.
In the event that Mr. Houghton’s employment was terminated by us prior to the expiration of the term of the Houghton Employment Agreement for any
reason other than as described above or by Mr. Houghton for “good reason” (as defined in the Houghton Employment Agreement) any and all unvested stock
options would automatically be cancelled and forfeited by Mr. Houghton as of the date of such termination (except as provided in a change in control), vested
stock options would remain exercisable for ninety (90) days after the date of such termination or the expiration of the stock option term, if sooner (except as
otherwise provided in the event of a change in control), and we would pay to Mr. Houghton any earned but unpaid base salary for services rendered through
the date of termination and continuing payments of severance pay (less applicable withholding taxes) at a rate equal to his base salary rate, as then in effect,
for a period equal to three (3) months (or, when Mr. Houghton has been employed for at least one (1) year, a period equal to six (6) months), to be paid
periodically in accordance with our normal payroll policies; provided that if Mr. Houghton continued to be employed in any capacity by a successor entity
following a change in control, the severance pay that would otherwise be payable would be reduced by the amount of base compensation and guaranteed
bonus (if any) Mr. Houghton received in such capacity during or attributable to the severance term. Payment of any severance benefits would be subject to the
execution by Mr. Houghton of a general release and an agreement to continue to be bound by certain provisions of the Houghton Employment Agreement
relating to, among others, non-competition, non-solicitation and confidentiality.
Mr. Houghton was also subject to non-competition, non-solicitation and confidentiality covenants during the term of his employment.
64
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 $43,000 in 2015 and 2014, respectively.
Director Compensation
For fiscal year 2015, 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 the Board received an annual retainer of $30,000 and $1,800 per
meeting for each quarterly Board meeting attended. 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.
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.
65
The following table shows the compensation earned by each of our non-employee directors for the year ended December 31, 2015.
Non-Employee Director Compensation in Fiscal Year 2015
Name
Fees Earned or
Paid in Cash
Restricted Stock
Awards (1) (2)
Option Awards(3)(4)
Total
Arthur H. Amron(5)
Lawrence J. Centella
Daron Evans(6)
Paul A. Mieyal(5)
Malcolm Persen
Moshe Pinto
Matthew Rosenberg
$
$
$
$
$
$
$
6,500
15,800
-
6,500
10,000
6,500
6,500
$
$
$
$
$
$
$
29,120 $
48,568 $
35,305 $
29,120 $
18,895 $
4,359 $
29,120 $
- $
- $
- $
- $
38,491 $
23,160 $
- $
35,620
64,368
35,305
35,620
49,350
34,019
35,620
(1) Director fees owed as of September 30, 2015 were paid in restricted stock in lieu of a cash payment.
(2) As of December 31, 2015, Mr, Centella had 97,135 shares of restricted stock, Mr. Evans had 70,610 shares of restricted stock, Mr. Persen had 37,969
shares of restricted stock, Mr. Pinto had 8,717 shares of restricted stock, and Mr. Rosenberg had 58,240 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, 2015, Mr. Centella had 99,732 shares issuable upon the exercise of vested options and 8,866 shares issuance upon the exercise of
unvested options; Mr. Evans had 193,579 shares issuable upon exercise of vested options and 2,065,975 shares issuable upon the exercise of unvested
options; Mr. Persen had 18,994 shares of common stock issuance upon exercise of vested options and 37,987 shares issuable upon the exercise of
unvested options; Mr. Pinto had 19,719 shares of common stock issuance upon exercise of vested options and 39,436 shares issuable upon the exercise of
unvested options; and Mr. Rosenberg had 32,576 shares issuable upon the exercise of vested options and 16,288 shares issuable upon the exercise of
unvested options.
(5) At the request of Messrs. Amron and Mieyal, their respective options and director fees were directed to Wexford Capital LP.
(6) Reflects only payments made and restricted stock granted to Mr. Evans for his service as a director prior to his appointment as President, Chief Executive
Officer and Acting Chief Financial Officer on April 15, 2015. Mr. Evans did not receive additional compensation for his service as a director after April
15, 2015.
Compensation Committee Interlocks and Insider Participation
The members of our Compensation Committee during 2015 were Lawrence J. Centella and Paul A. Mieyal. Neither of these individuals was at any time
during 2015 or at any other time an officer or employee of our company, except that Dr. Mieyal served as our Acting Chief Executive Officer until April 20,
2012, during which time he received no employee compensation or employee benefits from us, and Dr. Mieyal served as our Acting President, Acting Chief
Executive Officer and Acting Chief Financial Officer, from January 4, 2015 through April 15, 2015, during which time he received no employee
compensation or employee benefits from us. No interlocking relationship exists between any member of our Compensation Committee and any member of
any other company’s Board of Directors or Compensation Committee.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Equity Compensation Plan Information
The following table provides information as of December 31, 2015 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.
66
On March 26, 2015, our Board approved the 2015 Plan.
(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 )
1,391,809 $
2,911,829 $
4,303,638
0.84
0.56
-
3,470,376
3,470,376
Plan Category
Equity compensation plans approved
by our stockholders
Equity compensation plans not
approved by our stockholders
Total
Stock Ownership of Certain Beneficial Owners
The following table sets forth the beneficial ownership of our common stock as of March 18 , 2016, 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
Lambda Investors LLC(2)
Arthur H. Amron(3)
Daron Evans(4)
John C. Houghton(5)
Paul A. Mieyal(6)
Malcolm Persen(7)
Moshe Pinto(8)
Matthew Rosenberg(9)
All executive officers and directors as a group(3)-(4), (6)-(9)
Amount and Nature of
Beneficial Ownership
Percentage of
Class (1)
30,151,566
-
549,687
74,139
-
122,696
28,436
996,799
1,697,618
61.9%
*
*
*
*
*
*
2.0%
3.5%
* Represents less than 1% of the outstanding shares of our common stock.
(1) Applicable percentage ownership is based on 48, 581,261 shares of common stock outstanding as of March 18 , 2016, 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 18 , 2016 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 Schedule 13D/A dated December 18, 2015. 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 142,964 vested stock options. 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.
67
(3) Mr. Amron’s address is c/o Wexford Capital LP, 411 West Putnam Avenue, Greenwich, CT 06830.
(4) 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) 126,565 shares of common stock; (ii) 156,644 shares of restricted stock; and (iii) 266,478 shares issuable upon exercise of options.
Does not include 1,993,076 shares issuable upon the exercise of options which will not vest within 60 days of March 18 , 2016.
(5) Mr. Houghton’s address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being beneficially owned by
Mr. Houghton consist of: (i) 66,254 shares of restricted stock granted under the 2004 Stock Incentive Plan; and (ii) 7,885 shares purchased in a rights
offering in December 2014.
(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) 37,969 shares of restricted stock; (ii) 31,160 shares of common stock held by Mr. Persen’s spouse; (iii) 37,987 shares of common
stock issuable upon exercise of options and (iv) 15,580 shares of common stock issuable upon the exercise of warrants having an exercise price of $0.85
per share. Does not include 18,994 shares issuable upon the exercise of options which will not vest within 60 days of March 18 , 2016.
(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) 8,717 shares of restricted stock and (ii) 19,719 shares of common stock issuable upon exercise of options. Does not include 39,436
shares issuable upon the exercise of options which will not vest within 60 days of March 18 , 2016.
(9) Mr. Rosenberg’s address is the company address: 41 Grand Avenue, River Edge, New Jersey 07661. The shares identified as being beneficially owned by
Mr. Rosenberg consist of: (i) 776,997 shares of common stock; (ii) 70,938 shares of restricted stock; (iii) 48,864 shares issuable upon exercise of options;
and (iv) 100,000 shares issuable upon exercise of warrants having an exercise price of $0.85 per share.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Certain Relationships and Related Transactions
On February 4, 2013, the Company issued a senior secured note to Lambda Investors LLC (“Lambda”) in the principal amount of $1.3 million. The note bore
interest at the rate of 12% per annum and was scheduled to mature on August 4, 2013, at which time all principal and accrued interest was due. However, the
Company paid amounts due under the note, including all accrued interest thereon of $46,800, on May 22, 2013 with the cash proceeds from the May 2013
rights offering. In connection with the note, the Company paid Lambda an 8%, or $104,000, sourcing/transaction fee. In addition, the Company paid
Lambda’s legal fees and other expenses incurred in connection with the note in the amount of $50,000 as well as Lambda Investors’ legal fees and other
expenses incurred in connection with the May 2013 rights offering in the amount of $50,000.
On November 12, 2013, the Company issued a senior secured note to Lambda in the principal amount of $1.5 million. The note bore interest at the rate of
12% per annum and was scheduled to mature on May 12, 2014, at which time all principal and accrued interest was due. However, the Company paid
amounts due under the note, including all accrued interest thereon of $61,000 on March 18, 2014 with the cash proceeds from the March 2014 rights offering.
In connection with the note, the Company paid Lambda an 8%, or $120,000, sourcing/transaction fee. In addition, the Company paid Lambda’s legal fees and
other expenses incurred in connection with the note in the amount of $75,000.
On August 29, 2014, the Company issued a senior secured note to Lambda, in the principal amount of $1.75 million. The note bore interest at the rate of 12%
per annum and was scheduled to mature on February 28, 2015, at which time all principal and accrued interest was due. However, the Company paid all
amounts due under the note on December 18, 2014 with the cash proceeds from the rights offering that closed in December 2014. In connection with the note,
the Company incurred an 8%, or $140,000, sourcing/transaction fee with Lambda. In addition, the Company incurred additional legal fees and other expenses
in connection with the note in the amount of $38,000 with Lambda.
In connection with the February 2013 loan, the November 2013 loan and the August 2014 loan from Lambda, the Company entered into registration rights
agreements with Lambda pursuant to which the Company will file a registration statement on Form S-1 covering the resale by Lambda of the common stock
underlying shares sold to Lambda. Under these registration rights agreements, the Company will pay all of the expenses, including reasonable legal fees, of
Lambda in connection with such registration statement and resale of shares by Lambda under such registration statement, which may be in an underwritten
public offering. The Company will be obligated to use its reasonable best efforts to keep such registration statement continuously effective until such time as
all the securities registered on such registration statement have been sold or are eligible for sale without restriction under the applicable securities laws.
68
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 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 the
Company’s 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 Warrant, the Company 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, the Company committed to initiating a tender offer to the holders of all of its remaining
outstanding warrants pursuant to which it 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, the Company completed its offer to exercise certain warrants to purchase an aggregate of 5,008,689 shares of the Company’s
common stock, including 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. 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, the Company received gross proceeds of approximately $556,000. The issuance of the shares of the Company’s
common stock upon the exercise of these warrants was exempt from registration under the Securities Act pursuant to Rule 506 of Regulation D.
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 2015 and
2014, at the request of Messrs. Amron and Mieyal, fees and options in the aggregate amount of approximately $71,240 and $65,490, respectively, earned in
respect of services they rendered to the company were directed to Wexford Capital LP.
As of March 18 , 2016, Lambda Investors is our largest stockholder and beneficially owns approximately 62% of our outstanding common stock.
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.
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, CEO and Acting CFO, 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.
Item 14. Principal Accounting Fees and Services
On July 7, 2014, the Audit Committee of the Company’s Board of Directors approved the engagement of, and engaged, WithumSmith+Brown, PC (“WS+B”)
as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements for the year ending December 31,
2014.
On December 30, 2015, the Company notified WS+B that it had been dismissed as the Company’s independent registered public accounting firm. The audit
report of WS+B on the Company’s financial statements as of and for the fiscal year ended December 31, 2014, did not contain an adverse opinion or
disclaimer of opinion, nor were such reports qualified or modified as to uncertainty, audit scope or accounting principles, except as follows: such audit report
contained an explanatory paragraph in which WS+B expressed substantial doubt as to the Company’s ability to continue as a going concern as a result of its
financial performance.
69
During the fiscal year ended December 31, 2014 and through December 30, 2015, there were no (a) disagreements between the Company and WS+B on any
matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures, which, if not resolved to the satisfaction of
WS+B, would have caused WS+B to make reference thereto in connection with its opinion on the financial statements for such years or (b) “reportable
events,” as such term is defined in Item 304(a)(1)(v) of Regulation S-K, other than as follows:
On a Form 8-K dated March 26, 2015, the Company reported that its audited financial statements for each of the fiscal years ended December 31,
2009 through December 31, 2013, and the Company’s unaudited financial statements for each of the fiscal quarters ended March 31, 2009 through
September 30, 2014 (collectively, the “Financial Statements”) should no longer be relied upon because of a misstatement relating the Company’s
accounting for certain outstanding common stock purchase warrants as components of equity instead of as derivative liabilities. On the Form 10-K
for the year ended December 31, 2014, the Company restated the Financial Statements and, as a result of the restatement, reported the existence of a
material weakness in its internal control over financial reporting related to the accounting for these warrants. The Company is in the process of
implementing additional procedures and processes for remediating this material weakness.
On December 30, 2015, the Company engaged Moody Famiglietti & Andronico, LLP (“MFA”) as its new independent registered public accounting firm
effective immediately. The Audit Committee of the Company’s Board of Directors approved the change in independent accountants.
MFA and before it, WS+B, our principal independent accountants, provided audit and non-audit services to the Company in 2015 and 2014, which are
described below. MFA conducted the year-end audit for the fiscal year ended December 31, 2015, while WS+B completed the prior year’s audit. We have
been advised by MFA and WS+B that neither of the two firms nor any of its associates has any relationship with our Company or its subsidiaries other than
the usual relationship that exists between independent accountants and clients.
Summary of Auditor Fees and Pre-Approval Policy
In accordance with its charter, the Audit Committee approves in advance all audit and non-audit services to be provided by our registered independent public
accounting firm. Although the Audit Committee does not have formal pre-approval policies and procedures in place, it pre-approved all of the services
performed by MFA and WS+B during fiscal year 2015.
Audit Fees
There were no audit services provided by MFA during the year end December 31, 2015. Fees billed for audit services by WS+B for the year ended December
31, 2015 totaled approximately $48,000 in connection with the March 31, 2015, June 30, 2015, and September 30, 2015 interim reviews and for the year
ended December 31, 2014 totaled approximately $180,000 for the June 30, 2014, September 30, 2014 interim reviews and the December 31, 2014 year-end
audit.
Audit-Related Fees
During the years ended December 31, 2015 and 2014, we were billed approximately $28,000 and $16,000, respectively, by WS+B for audit-related services
in connection with the registration statement filings. There were no audit-related services provided by MFA during the year ended December 31, 2015.
Our Audit Committee has considered whether, and determined that, the provision of the non-audit services rendered to us during 2014 and 2015 was
compatible with maintaining the independence of WS+B.
Tax Fees
There were no tax services provided by WS+B or MFA for the years ended December 31, 2015 and 2014, respectively.
All Other Fees
We did not engage WS+B or MFA to provide any information technology services or any other services during the fiscal years ended December 31, 2015 and
2014.
70
Item 15. Exhibits, Financial Statement Schedules
(a) Documents filed as part of this report:
(1) Consolidated Financial Statements of Nephros, Inc.
Reports of independent registered public accounting firms.
Consolidated balance sheets as of December 31, 2015 and 2014.
Consolidated statements of operations and comprehensive loss for the years ended December 31, 2015 and 2014.
Consolidated statements of changes in stockholders’ deficit for the years ended December 31, 2015 and 2014.
Consolidated statements of cash flows for the years ended December 31, 2015 and 2014.
Notes to consolidated financial statements.
71
(b) Exhibits:
Exhibit
No.
3.1
3.2
3.3
3.4
EXHIBIT INDEX
Description
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.
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).
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).
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 Class D Warrant, incorporated by reference to Exhibit 4.3 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on
September 25, 2007 (SEC File No. 001-32288).
4.3
Form of Warrant Certificate, incorporated by reference to Exhibit 4.9 to Nephros, Inc.’s Amendment No. 1 to Registration Statement on Form
S-1/A (Reg. No. 333-169728), filed with the SEC on November 8, 2010.
4.4
Form of Warrant Agreement between the Registrant and Continental Stock Transfer & Trust Company, incorporated by reference to Exhibit
4.10 to Nephros, Inc.’s Amendment No. 1 to Registration Statement on Form S-1/A (Reg. No. 333-169728), filed with the SEC on November
8, 2010.
4.5
Form of Subscription Rights Certificate, incorporated by reference to Exhibit 4.9 to Nephros, Inc.’s Amendment No. 1 to Registration
Statement on Form S-1/A (Reg. No. 333-199483), filed with the SEC on October 31, 2014.
72
4.6
Form of Subscription Agent Agreement, incorporated by reference to Exhibit 4.10 to Nephros, Inc.’s Amendment No. 1 to Registration
Statement on Form S-1/A (Reg. No. 333-199483 ), filed with the SEC on October 31, 2014.
4.7
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 (Reg. No. 333-199483 ), filed with the SEC on May 18, 2015.
4.8
Warrant Amendment and Exercise Agreement, dated September 29, 2015, between Nephros, Inc. and Lambda Investors, LLC, incorporated by
reference to Exhibit 4.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on September 30, 2015.
4.9
First Amendment, dated November 20, 2015, to Warrant Agreement dated March 10, 2011 between Nephros, Inc. and Continental Stock
Transfer & Trust Company, governing the 2011 Warrants, incorporated by reference to Exhibit (d)(5) to Nephros, Inc.’s Schedule TO, filed
with the SEC on November 20, 2015.
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.
73
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
Senior Secured Note, dated August 29, 2014, issued to Lambda Investors LLC, incorporated by reference to Exhibit 10.1 to Nephros, Inc.’s
Current Report on Form 8-K, filed with the SEC on September 3, 2014.
10.20
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.
10.21
Security Agreement, dated August 29, 2014, by and between the Registrant and Lambda Investors LLC, incorporated by reference to Exhibit
10. 3 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on September 3, 2014.
10.22
Intellectual Property Security Agreement, August 29, 2014, between the Registrant and Lambda Investors LLC, incorporated by reference to
Exhibit 10.4 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on September 3, 2014.
10.23
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.
74
10.24
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. †
10.25
Separation Agreement and General Release, dated January 4, 2015, between the Registrant and John C. Houghton,, incorporated by reference
to Exhibit 10.1 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
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. †
10.27
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. †
10.28
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. †
10.29
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. †
10.30
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. †
10.31
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.
10.32
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.
10.33
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.
10.34
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.
10.35
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. +
14.1
Code of Ethics and Business Conduct, as amended through April 2, 2007, incorporated by reference to 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 WithumSmith + Brown PC Independent Registered Public Accounting Firm. *
24.1
Power of Attorney. (included on the signature page)
31.1
Certification by the Chief Executive Officer and Acting Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. *
32.1
Certification by the Chief Executive Officer and Acting Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. *
101
Interactive Data File. *
*
†
+
Filed herewith.
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.
75
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Date: March 30 , 2016
NEPHROS, INC.
/s/ Daron Evans
By:
Name: Daron Evans
Title: President, Chief Executive Officer and Acting Chief Financial Officer
(Principal Executive Officer and Principal Financial and Accounting
Officer)
POWER OF ATTORNEY
We, the undersigned directors and officers of Nephros, Inc., hereby severally constitute and lawfully appoint Daron Evans, our true and lawful
attorney-in-fact with full power to him to sign for us, in our names in the capacities indicated below, the Annual Report on Form 10-K for the fiscal year
ended December 31, 2015 of Nephros, Inc. and any and all amendments thereto, and to file the same with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or their or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature
/s/ Daron Evans
Daron Evans
/s/ Arthur H. Amron
Arthur H. Amron
/s/ Paul A. Mieyal
Paul A. Mieyal
/s/ Malcolm Persen
Malcolm Persen
/s/ Moshe Pinto
Moshe Pinto
/s/ Matthew S. Rosenberg
Matthew S. Rosenberg
Title
President, Chief Executive Officer and Acting Chief Financial
Officer (Principal Executive Officer and Principal Financial and Accounting
Officer)
Director
Director
Director
Director
Director
76
Date
March 30 , 2016
March 30 , 2016
March 30 , 2016
March 30 , 2016
March 30 , 2016
March 30 , 2016
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements of Nephros, Inc. on Form S-8 (Registration Statements No. 333-127264 and No.
333-148236 and No. 333-188592 and No. 333-205167) pertaining to the 2004 Stock Incentive Plan and 2014 Equity Incentive Plan, of our report, dated
March 26, 2016 (which includes an explanatory paragraph relating to the Company’s ability to continue as a going concern), relating to the consolidated
balance sheet of Nephros, Inc. as of December 31, 2015, and the related consolidated statements of operations and comprehensive loss, changes in
stockholders’ deficit, and cash flows for the year ended December 31, 2015.
Exhibit 23.1
/s/ Moody Famiglietti & Andronico, LLP
Tewksbury, MA
March 30 , 2016
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements of Nephros, Inc. on Form S-8 (Registration Statements No. 333-127264 and No.
333-148236 and No. 333-188592 and No. 333-205167) pertaining to the 2004 Stock Incentive Plan and 2014 Equity Incentive Plan, of our report, dated April
15, 2015 (which includes an explanatory paragraph relating to the Company’s ability to continue as a going concern), relating to the consolidated balance
sheet of Nephros, Inc. and Subsidiary as of December 31, 2014, and the related consolidated statements of operations and comprehensive loss, changes in
stockholders’ deficit, and cash flows for the year ended December 31, 2014.
Exhibit 23.2
/s/ WithumSmith+Brown, PC
Morristown, New Jersey
March 28, 2016
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER AND ACTING CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 31.1
I, Daron Evans, certify that:
(1) I have reviewed this Annual Report on Form 10-K of Nephros, Inc.;
(2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by
this report;
(3) Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects,
the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
(4) I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-
15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of the annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
(5) I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit
committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Dated: March 30, 2016
/s/ Daron Evans
Daron Evans
President, Chief Executive Officer and Acting Chief Financial
Officer (Principal Executive Officer and Principal Financial and Accounting
Officer)
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER AND ACTING CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the Annual Report on Form 10-K of Nephros, Inc. (the “Company”) for the fiscal year ended December 31, 2015 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), I, Daron Evans, President, Chief Executive Officer and Acting Chief Financial
Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my
knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
Dated: March 30, 2016
/s/ Daron Evans
Daron Evans
President, Chief Executive Officer and Acting Chief Financial
Officer (Principal Executive Officer and Principal Financial and Accounting
Officer)