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Note 8. Equity Based Transactions
6 Months Ended
Jun. 30, 2011
Shareholders' Equity and Share-based Payments [Text Block]
8. EQUITY BASED TRANSACTIONS

Equity Financing

On May 4, 2011, the Company closed an underwritten public offering of 11,500,000 shares of its common stock at a price to the public of $4.00 per share.  The net proceeds from the sale of the shares, after deducting the underwriters’ discounts and other offering expenses payable by the Company were approximately $43.0 million.

Equity Line Financing

On July 6, 2010, the Company entered into a common stock purchase agreement (“Purchase Agreement”) with Small Cap Biotech Value Fund, Ltd. (“SCBV”) providing for a committed equity line financing facility.  The Purchase Agreement provides that, upon the terms and subject to the conditions in the Purchase Agreement, SCBV is committed to purchase up to $20.0 million of shares of the Company’s common stock over the 24-month term of the Purchase Agreement under certain specified conditions and limitations and subject to a maximum of 5,150,680 shares of common stock.  After subtracting 59,921 shares of common stock the Company issued to SCBV in July 2010 as compensation for their commitment to enter into the financing arrangement, the Company may sell, under the Purchase Agreement, no more than the 5,090,759 remaining shares of common stock.  Furthermore, in no event may SCBV purchase any shares of the Company’s common stock which, when aggregated with all other shares of common stock then beneficially owned by SCBV, would result in the beneficial ownership by SCBV of more than 9.9% of the then outstanding shares of the Company’s common stock.  These maximum share and beneficial ownership limitations may not be waived by the parties.

From time to time over the term of the Purchase Agreement, and in the Company’s sole discretion, the Company may present SCBV with draw down notices requiring SCBV to purchase a specified dollar amount of shares of the Company’s common stock, based on the price per share over 10 consecutive trading days (the “Draw Down Period”) with the total dollar amount of each draw down subject to certain agreed-upon limitations based on the market price of the Company’s common stock at the time of the draw down (which may not be waived or modified).  In addition, in the Company’s sole discretion, but subject to certain limitations, the Company may require SCBV to purchase a percentage of the daily trading volume of the Company’s common stock for each trading day during the Draw Down Period.  The Company is allowed to present SCBV with up to 24 draw down notices during the term of the Purchase Agreement, with only one such draw down notice allowed per Draw Down Period and a minimum of five trading days required between each Draw Down Period.  As of June 30, 2011, no draw downs have taken place.

Before SCBV is obligated to purchase any shares of the Company’s common stock pursuant to a draw down notice, certain conditions specified in the Purchase Agreement, none of which are in SCBV’s control, must be satisfied.  One such condition is that the registration statement registering the resale of any shares issued to SCBV pursuant to the Purchase Agreement (the “Registration Statement”) must be effective under the Securities Act of 1933, as amended (the “Securities Act”).  In connection with the execution of the Purchase Agreement, the Company entered into a registration rights agreement with SCBV, pursuant to which the Company agreed to use its commercially reasonable efforts to prepare and file the Registration Statement.

Once presented with a draw down notice, SCBV is required to purchase a pro rata portion of the shares on each trading day during the trading period on which the daily volume weighted average price for the Company’s common stock exceeds a threshold price determined by the Company for such draw down.  The per share purchase price for these shares equals the daily volume weighted average price of the Company’s common stock on each date during the Draw Down Period on which shares are purchased, less a discount ranging from 5.00% to 7.00% (which range may not be modified), based on a minimum price the Company specifies.  If the daily volume weighted average price of the Company’s common stock falls below the threshold price on any trading day during a Draw Down Period, the Purchase Agreement provides that SCBV will not be required to purchase the pro-rata portion of shares of common stock allocated to that trading day.  The obligations of SCBV under the Purchase Agreement to purchase shares of the Company’s common stock may not be transferred to any other party.

If the Company issues a draw down notice and fails to deliver the shares to SCBV on the applicable settlement date, and such failure continues for 10 trading days, the Company agreed to pay SCBV, in addition to all other remedies available to SCBV under the Purchase Agreement, an amount in cash equal to 2.0% of the purchase price of such shares for each 30-day period the shares are not delivered, plus accrued interest.

Reedland Capital Partners, an Institutional Division of Financial West Group, member FINRA/SIPC, served as the Company’s placement agent in connection with the financing arrangement contemplated by the Purchase Agreement.  The Company agreed to pay Reedland, upon each sale of its common stock to SCBV under the Purchase Agreement, a fee equal to 1.0% of the aggregate dollar amount of common stock purchased by SCBV upon settlement of each such sale.

In partial consideration for SCBV’s execution and delivery of the Purchase Agreement, the Company issued to SCBV upon the execution and delivery of the Purchase Agreement 59,921 shares of the Company’s common stock (the “Commitment Shares”), which is equal to the sum of $200,000 divided by the volume weighted average price of the Company’s common stock for each trading day during the 10 trading day period ending July 6, 2010.  The average price per Commitment Share was approximately $3.34.  The Company recorded the fair value of the Commitment Shares issued to SCBV as an expense during the three months ended September 30, 2010.