Note 3. Summary of Significant Accounting Policies

9 Months Ended

Sep. 30, 2012

Significant Accounting Policies And New Accounting Pronouncements [Text Block]

3. Summary of Significant Accounting Policies

Consolidation

The accompanying condensed consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated.

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the condensed consolidated financial statements. Estimates also affect the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Revenue Recognition

Revenue under collaborative arrangements may result from license fees, milestone payments, research and development payments and royalty payments.  The Company’s application of accounting principles generally accepted in the U.S. requires subjective determinations and requires management to make judgments about the value of the individual elements and whether they are separable from the other aspects of the contractual relationship. The Company evaluates its collaboration agreements to determine units of accounting for revenue recognition purposes. To date, the Company has determined that its upfront non-refundable license fees cannot be separated from its ongoing collaborative research and development activities and, accordingly, does not treat them as a separate element. The Company recognizes revenue from non-refundable, upfront licenses and related payments, not specifically tied to a separate earnings process, either on the proportional performance method or ratably over either the development period in which the Company is obligated to participate on a continuing and substantial basis in the research and development activities outlined in the contract, or the later of 1) the conclusion of the royalty term on a jurisdiction by jurisdiction basis or 2) the expiration of the last EpiCept licensed patent. Ratable revenue recognition is only utilized if the research and development services are performed systematically over the development period. Proportional performance is measured based on costs incurred compared to total estimated costs to be incurred over the development period which approximates the proportion of the value of the services provided compared to the total estimated value over the development period. The Company periodically reviews its estimates of cost and the length of the development period and, to the extent such estimates change, the impact of the change is recorded at that time.

EpiCept recognizes milestone payments as revenue upon achievement of the milestone only if (1) it represents a separate unit of accounting as defined in ASC 605-25, “Revenue Recognition -  Multiple Element Arrangements”; (2) the milestone payments are nonrefundable; (3) substantive effort is involved in achieving the milestone; and (4) the amount of the milestone is reasonable in relation to the effort expended or the risk associated with the achievement of the milestone. If any of these conditions is not met, EpiCept will recognize milestones as revenue in accordance with its accounting policy in effect for the respective contract. For current agreements, EpiCept recognizes revenue for milestone payments based upon the portion of the development services that are completed to date and defers the remaining portion and recognizes it over the remainder of the development services on the proportional or ratable method, whichever is applicable. Deferred revenue represents the excess of cash received compared to revenue recognized to date under licensing agreements.

EpiCept chose early adoption of the milestone method of Revenue Recognition as defined in ASC 605-28, “Revenue Recognition - Milestone Method” on a prospective basis as of January 1, 2010. Under this method of revenue recognition, the Company will recognize into revenue research-related milestone payments for which there is substantial uncertainty at the date the arrangement is entered into that the event will be achieved, when that event can only be achieved based in whole or in part on EpiCept’s performance or a specific outcome resulting from EpiCept’s performance and, if achieved, would result in additional payments being due to EpiCept.

Revenue from the sale of product is recognized when title and risk of loss of the product is transferred to the customer.  Provisions for discounts, early payments, rebates, sales returns and distributor chargebacks under terms customary in the industry, if any, are provided for in the same period the related sales are recorded.

Royalty revenue is recognized in the period in which the sales occur, provided that the royalty amounts are fixed or determinable, collection of the related receivable is reasonably assured and the Company has no remaining performance obligations under the arrangement providing for the royalty. If royalties are received when the Company has remaining performance obligations, they would be attributed to the services being provided under the arrangement and, therefore, recognized as such obligations are performed under either the proportionate performance or ratable methods, as applicable.

Foreign Currency Translation

The financial statements of the Company’s foreign subsidiary are translated into U.S. dollars using the period-end exchange rate for all balance sheet accounts and the average exchange rates for expenses.  Adjustments resulting from translation have been reported in other comprehensive income (loss).

Gains or losses from foreign currency transactions relating to inter-company debt are recorded in the condensed consolidated statements of operations and comprehensive income (loss) in other income (expense).

Shares-Based Payments

The Company has various stock-based compensation plans for employees and outside directors, which are described more fully in Note 9 “Share-Based Payments.”

Income Taxes

The Company accounts for income taxes in accordance with ASC 740, “Income Taxes.” The Company files income tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. The Company’s income tax returns for tax years after 2007 are still subject to review. The Company does not believe there will be any material changes in its unrecognized tax positions over the next 12 months.

The Company accounts for its income taxes under the asset and liability method. Under the asset and liability method, deferred tax assets and liabilities are recognized based upon the differences arising from carrying amounts of the Company’s assets and liabilities for tax and financial reporting purposes using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect on the deferred tax assets and liabilities of a change in tax rates is recognized in the period when the change in tax rates is enacted. A valuation allowance is established when it is determined that it is more likely than not that some portion or all of the deferred tax assets will not be realized. As of September 30, 2012 and December 31, 2011, a full valuation allowance has been applied against the Company’s net deferred tax assets because it is not more likely than not that the Company will realize future benefits associated with these deferred tax assets.

The Company’s policy is to recognize interest and penalties accrued on any unrecognized tax benefits as a component of operating expense. The Company had no accrued interest or penalties associated with any unrecognized tax benefits, nor was any interest expense recognized during the three and nine months ended September 30, 2012 and 2011. Income tax expense for the three and nine months ended September 30, 2012 and 2011 is primarily due to minimum state and local income taxes.

Income (loss) per Share:

Basic and diluted loss per share is computed by dividing loss attributable to common stockholders by the weighted average number of shares of common stock outstanding during the period. Diluted weighted average shares outstanding excludes shares underlying convertible preferred stock, stock options, restrictive stock and warrants, since the effects would be anti-dilutive. Accordingly, basic and diluted loss per share is the same.  Such excluded shares are summarized as follows:

	September 30,
	2012	2011
Common stock options	2,552,866	4,446,297
Restricted stock and stock units	1,830,000	319,816
Shares issuable upon conversion of preferred stock	16,262,500	—
Warrants	26,005,372	34,134,119
Total shares excluded from calculation	46,650,738	38,900,232

Interest Expense:

Interest expense consisted of the following for the three and nine months ended September 30, 2012 and 2011:

	Three Months Ended September 30,						Nine Months Ended September 30,
	2012			2011			2012			2011
	(in $000s)						(in $000s)
Interest expense	$	(153	)	$	(269	)	$	(599	)	$	(520	)
Amortization of debt issuance costs and discount		(101	)		(140	)		(398	)		(350	)
Interest and amortization of debt discount and expense	$	(254	)	$	(409	)	$	(997	)	$	(870	)

Cash and Cash Equivalents

The Company considers all highly liquid investments with a maturity of 90 days or less when purchased to be cash equivalents.

Restricted Cash

The Company entered into an amendment to its senior secured term loan with Midcap Financial, LLC., (“Midcap”) in August 2012.  As a result of the amendment, the Company agreed to maintain a cash balance of $1.1 million in a bank account that is subject to the security interest maintained by Midcap under the loan agreement.  The Company’s has appropriately classified this amount as restricted cash on its balance sheet.

The Company has lease agreements for the premises it occupies.  Letters of credit in lieu of lease deposits for leased facilities totaling $0.1 million are secured by restricted cash in the same amount at September 30, 2012 and December 31, 2011. The Company failed to make certain payments on its lease agreement for the premises located in San Diego, California in 2008. As a result, the landlord exercised their right to draw down the full letter of credit, amounting to approximately $0.3 million, and applied approximately $0.2 million to unpaid rent.  The remaining balance of $0.1 million was classified as prepaid expense at December 31, 2011.  In April 2012, the Company ceased making payments on this lease and is currently in default under the lease agreement.  The $0.1 million prepaid balance was applied to unpaid rent resulting in a zero balance at September 30, 2012.

Inventory

Inventories are valued at the lower of cost (first-in, first-out) or market. The Company periodically evaluates its inventories and will reduce inventory to its net realizable value depending on certain factors, such as  product demand, remaining shelf life, future marketing plans, obsolescence and slow-moving inventories.

As of September 30, 2012 and December 31, 2011, inventory consists of the following:

	September 30, 2012		December 31, 2011
	(in thousands)
Raw materials	$	—	$	158
Work-in-process		6		202
Finished goods		—		—
Total inventory	$	6	$	360
Recognized as:
Inventory	$	6	$	57
Long-term inventory		—		303

In June 2012, the Company sold its rights to Ceplene® in Europe and certain Pacific Rim countries, along with most of the remaining Ceplene® inventory, to Meda. As a result, the Company is maintaining only a small inventory of Ceplene® to meet its contractual obligations to MegaPharm Ltd. in Israel. The Company expensed $0.7 million of Ceplene® inventory in 2011 as it believed such inventory would not be sold prior to reaching its product expiration date. The portion of inventory classified as long-term at December 31, 2011 was not expected to be realized in cash or sold or consumed during the normal operating cycle of the Company.

Prepaid Expenses and Other Current Assets:

As of September 30, 2012 and December 31, 2011, prepaid expenses and other current assets consist of the following:

	September 30, 2012		December 31, 2011
	(in thousands)
Prepaid expenses	$	33	$	150
Prepaid insurance		107		84
Other		6		68
Total prepaid expenses and other current assets	$	146	$	302

Property and Equipment:

Property and equipment consists of furniture, office, laboratory equipment, and leasehold improvements stated at cost. Furniture, office and laboratory equipment are depreciated on a straight-line basis over their estimated useful lives ranging from five to seven years.  Leasehold improvements are amortized on a straight-line basis over the shorter of the lease term or the estimated useful life of the asset.  Maintenance and repairs are charged to expense as incurred.

As of September 30, 2012 and December 31, 2011, property and equipment consist of the following:

	September 30, 2012			December 31, 2011
	(in thousands)
Furniture, office and laboratory equipment	$	1,002		$	1,002
Leasehold improvements		763			763
		1,765			1,765
Less accumulated depreciation		(1,693	)		(1,645	)
	$	72		$	120

Depreciation expense was approximately $13,000 and $32,000 for the three months ended September 30, 2012 and 2011, respectively. Depreciation expense was approximately $49,000 and $0.1 million for the nine months ended September 30, 2012 and 2011, respectively.

Deferred Financing Cost

Deferred financing costs represent legal and other costs and fees incurred to negotiate and obtain debt financing. Deferred financing costs are capitalized and amortized using the effective interest method over the life of the applicable financing.  As of September 30, 2012 and December 31, 2011, deferred financing costs were approximately $0.1 million and $0.3 million, respectively. Amortization expense was $0.1 million for each of the three months ended September 30, 2012 and 2011.  Amortization expense was $0.4 million for each of the nine months ended September 30, 2012 and 2011, respectively.

Beneficial Conversion Feature of Certain Instruments

The convertible feature of certain financial instruments provide for a rate of conversion that is below market value at the commitment date. Such feature is normally characterized as a beneficial conversion feature (“BCF”). Pursuant to ASC 470-20, Debt with Conversion and Other Options (“ASC 470-20”), the estimated fair value of the BCF is recorded as a dividend if it is related to preferred stock. Our Series A 0% Convertible Preferred Stock and Series B 0% Convertible Preferred Stock are each immediately convertible and contain a BCF.  Therefore, we initially recorded a BCF of approximately $1.9 million as a deemed dividend for the nine months ended September 30, 2012.  As the result of the Reset Offer in September 2012, we recorded an additional BCF of $1.6 million. (see Note 7).

Accumulated Other Comprehensive Loss

The Company’s only element of accumulated other comprehensive loss was foreign currency translation adjustments of ($0.9) million and ($1.0) million at September 30, 2012 and December 31, 2011, respectively.

Fair Value of Financial Instruments

The Company applies ASC Topic 820, Fair Value Measurements and Disclosures (“ASC 820”) to all financial instruments that are being measured and reported on a fair value basis, non-financial assets and liabilities measured and reported at fair value on a non-recurring basis, and disclosures of fair value of certain financial assets and liabilities.

The following fair value hierarchy is used in selecting inputs for those instruments measured at fair value that distinguishes between assumptions based on market data (observable inputs) and the Company’s assumptions (unobservable inputs).  The hierarchy consists of three levels:

· Level 1 — Quoted prices in active markets for identical assets or liabilities.

· Level 2 — Inputs other than Level 1 that are observable for similar assets or liabilities either directly or indirectly.

· Level 3 — Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable.

The financial instruments recorded in the Company’s condensed consolidated balance sheets consist primarily of cash and cash equivalents, accounts payable and the Company’s debt obligations.  The carrying amounts of the Company’s cash and cash equivalents and accounts payable approximate fair value due to their short-term nature.  The fair market value of the Company’s non-convertible loans is based on the present value of their cash flows discounted at a rate that approximates current market returns for issues of similar risk.

The carrying amount and estimated fair values of the Company’s debt instruments are as follows:

	September 30, 2012				December 31, 2011
	Carrying Amount		Level 2 Fair Value		Carrying Amount		Level 2 Fair Value
	(in millions)
Non-convertible loans		4.1		4.0		8.4		8.3

Recent Accounting Pronouncements

In June 2011, the FASB issued ASU 2011-05, "Comprehensive Income (Topic 220) – Presentation of Comprehensive Income" which amends ASC 220, “Comprehensive Income”.  ASU 2011-05 gives an entity the option to present the total comprehensive income, the components of net income, and the components of other comprehensive income either in a single continuous statement of comprehensive income or in two separate but consecutive statements. ASU 2011-05 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011.  The Company adopted the provisions of ASU 2011-05 on a retrospective basis in the year ended December 31, 2011. The adoption of ASU 2011-05 did not have a material impact on the Company’s condensedconsolidated financial statements.

In May 2011, the FASB issued ASU 2011-04, “Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in GAAP and IFRS”, which amends ASC 820“Fair Value Measurement”.  ASU 2011-04 improves the comparability of fair value measurements presented and disclosed in financial statements prepared in accordance with U.S. GAAP and International Financial Reporting Standards. The amended guidance changes the wording used to describe many requirements in U.S. GAAP for measuring fair value and for disclosing information about fair value measurements. Additionally, the amendments clarify the FASB’s intent about the application of existing fair value measurement and disclosure requirements.  ASU 2011-04 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011.  The Company adopted the provisions of ASU 2011-04 beginning on January 1, 2012. The adoption of ASU 2011-04 did not have a material impact on the Company’s condensedconsolidated financial statements.