Minnesota
|
3842
|
33-1007393
|
||
(State
or other jurisdiction
of
incorporation or
organization)
|
(Primary
Standard Industrial
Classification
Code
Number)
|
(I.R.S.
Employer
Identification
No.)
|
Large
accelerated filer o
|
Accelerated
filer o
|
Non-accelerated
filer (Do not check if a smaller reporting company) o
|
Smaller
reporting company x
|
Title of each class of
securities to be registered
|
|
|
Amount to
be
Registered
|
|
Proposed
maximum
offering
price
per share
|
|
Proposed
maximum
aggregate
offering
price
|
|
|
Amount of
registration
fee
|
||||||
Common
stock, $0.01 par value (1)
|
7,101,266
|
.46
|
$
|
3,266,583
|
$
|
182.27
|
||||||||||
Common
stock underlying warrants to purchase common stock (2)
|
4,689,291
|
$
|
.46
|
$
|
2,157,074
|
$
|
120.36
|
|||||||||
Common
stock underlying convertible debentures (1)
|
620,095
|
.46
|
$
|
285,244
|
$
|
15.92
|
||||||||||
Common
stock underlying warrants (3)
|
620,095
|
$
|
.46
|
$
|
285,244
|
$
|
15.92
|
|||||||||
TOTAL
|
13,030,747
|
N/A
|
$
|
5,994,145
|
$
|
334.47
|
(1)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933, as amended. As a result,
only the title of class of securities to be registered, the proposed
maximum aggregate offering price and the amount of registration fee need
to appear in this Calculation of Registration Fee
table.
|
(2)
|
Calculated
in accordance with Rule 457 (g) under the Securities Act on the basis of
an exercise price of $.46 per
share.
|
(3)
|
Calculated
in accordance with Rule 457 (g) under the Securities Act on the basis of
an exercise price of $.35 per
share.
|
•
|
7,101,266
shares of common stock;
|
|
•
|
5,309,386
shares of common stock underlying common stock purchase warrants, which
includes 4,689,291 and 620,095 shares of common stock underlying warrants
issued in conjunction with an October 2008 financing and bridge loans we
undertook in July 2007, respectively; and
|
|
•
|
620,095
shares of common stock underlying the convertible
notes.
|
Page
|
||||
Prospectus
Summary
|
1 | |||
Risk
Factors
|
3 | |||
Special
Note Regarding Forward-Looking Statements
|
12 | |||
Use
of Proceeds
|
13 | |||
Determination
of Offering Price
|
13 | |||
Market
Price of and Dividends on the Registrant’s Common Equity and Related
Stockholder Matters
|
14 | |||
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
18 | |||
Description
of Business
|
34 | |||
Legal
Proceedings
|
57 | |||
Description
of Property
|
57 | |||
Directors,
Executive Officers, Promoters and Control Persons
|
58 | |||
Executive
Compensation
|
61 | |||
Corporate
Governance
|
68 | |||
Certain
Relationships and Related Transactions
|
69 | |||
Selling
Security Holders
|
69 | |||
Plan
of Distribution
|
74 | |||
Security
Ownership of Certain Beneficial Owners and Management
|
75 | |||
Description
of Securities
|
78 | |||
Disclosure
of Commission Position on Indemnification for Securities Act
Liabilities
|
81 | |||
Where
You Can Find More Information
|
84 | |||
Experts
|
84 | |||
Legal
Matters and Interests of Named Experts
|
84 | |||
Financial
Information
|
85 | |||
Exhibits
Index
|
II-8
|
|||
Signatures
|
II-14
|
•
|
6,839,606
shares of common stock issuable upon the exercise of warrants having a
range of exercise prices from $.02 to $1.67 per share (consisting of
5,309,386 shares of common stock underlying the warrants we are
registering pursuant to this registration statement, 970,000 shares
underlying warrants issued in a private placement in April, May and June
2009 and 560,220 shares of common stock reserved for issuance upon the
exercise of outstanding warrants granted to certain other investors and
consultants.
|
•
|
outstanding
options to purchase 1,466,174 shares of our common
stock;
|
•
|
800,405
shares of common stock remaining reserved for issuance under our 2008
Equity Incentive Plan;
|
•
|
620,095
shares of common stock issuable in conjunction with a bridge loan we
undertook in July 2007; and
|
•
|
297,142
shares subject to issuance upon conversion of certain
notes.
|
•
|
7,101,266
shares of common stock;
|
•
|
5,309,386
shares of common stock underlying common stock purchase warrants, which
includes 620,095 shares of common stock underlying warrants issued in
conjunction with a bridge loan we undertook in July 2007;
and
|
•
|
620,095
shares of common stock underlying the 2007 convertible
notes.
|
•
|
Raise
capital;
|
•
|
Develop
and implement our business plan in a timely and effective
manner;
|
•
|
Be
successful in uncertain markets;
|
•
|
Respond
effectively to competitive
pressures;
|
•
|
Successfully
address intellectual property issues of
others;
|
•
|
Protect
and expand our intellectual property rights;
and
|
•
|
Continue
to develop and upgrade our
products.
|
•
|
the
willingness and ability of customers to adopt new
technologies;
|
•
|
our
ability to convince prospective strategic partners and customers that our
technology is an attractive alternative to conventional methods used by
the medical industry;
|
•
|
our
ability to select and execute agreements with effective distributors and
manufacturers representatives to market and sell our product;
and
|
•
|
our
ability to assure customer use of the BioDrain proprietary cleaning
fluid.
|
•
|
our
ability to raise capital when we need
it;
|
•
|
our
ability to market and distribute or sell our
Fluid
Management System (FMS) and related products;
and
|
•
|
our
ability to protect our intellectual property and operate our business
without infringing upon the intellectual property rights of
others.
|
(i)
|
incentive
stock options, as defined in Section 422 of the Internal Revenue Code of
1986 (the “Code”);
|
(ii)
|
nonqualified
stock options, defined as any option granted under the Plan other than an
incentive stock option;
|
(iii)
|
stock
appreciation rights (“SARs”), defined as an award granted under the Plan
that is exercisable either in lieu of options, in addition to options,
independent of options or in any combination thereof, which, upon
exercise, entitles the holder to receive payment of an amount determined
by multiplying (a) the difference between the fair market value of a share
on the date of exercise and the exercise price established by the
administrator of the Plan on the date of grant by (b) the number of shares
with respect to which the SAR is exercised, the payment of which will be
made in cash or stock; or
|
(iv)
|
restricted
stock, defined as stock granted under the Plan that is subject to
restrictions on sale, transfer, pledge, or
assignment.
|
Expense Item
|
Amount
|
Total
|
||||||
Expected
expenses in connection with our current offering
|
225,200 | |||||||
SEC
registration fee
|
200 | |||||||
Printing
fees
|
30,000 | |||||||
Legal
fees and expenses
|
80,000 | |||||||
Accounting
fees and expenses
|
60,000 | |||||||
Miscellaneous
|
55,000 | |||||||
Financing
fees owed in connection with our current offering (1)
|
0 | |||||||
Accounts
payable:
|
640,000 | |||||||
Marshall
C. Ryan
|
100,000 | |||||||
Richardson
& Patel LLP
|
180,000 | |||||||
Complete
Automation
|
25,000 | |||||||
TriVirix
|
22,000 | |||||||
Evergreen
Medical
|
20,000 | |||||||
Olsen
Thielen, CPAs
|
35,000 | |||||||
Larkin
Hoffman
|
87,000 | |||||||
Various
accounts payable
|
121,000 | |||||||
Andcor
Companies, Inc.
|
50,000 | |||||||
Sales,
marketing, administrative, operations and other operating
expenses
|
1,200,000 | |||||||
Market
expansion to Europe and Pacific Rim
|
500,000 | |||||||
Personnel
additions
|
200,000 | |||||||
Miscellaneous
|
100,000 | |||||||
Total
|
$ | 2,865,200 |
(1)
|
All fees were withheld by the
broker of our current
offering.
|
Payment Due by Period as of December 31
|
||||||||||||||||||||
Total
|
Less than 1
Year
|
1-3 Years
|
4-5 Years
|
After 5
Years
|
||||||||||||||||
Long
Term Debt
|
$ | 322,183 | $ | 197,620 | $ | 24,563 | $ | 100,000 | — | |||||||||||
Operating
Leases
|
150,000 | 35,000 | 59,000 | 56,000 | — | |||||||||||||||
Capital
Leases
|
— | — | — | — | — | |||||||||||||||
Total
Contractual Cash Obligations
|
$ | 472,183 | $ | 232,620 | $ | 83,563 | $ | 156,000 | — |
December 31,
|
June
30,
|
|||||||||||
2008
|
2007
|
2009
|
||||||||||
(Unaudited)
|
||||||||||||
Notes
payable to seven individuals due April 2008 including 8% fixed interest
and are now delinquent. The 2007 balance is shown net of a $30,899
debt discount based upon the Black-Scholes valuation assigned to the
warrants issued in connection with the debt. The notes are convertible
into 620,095 shares of the Company’s common stock and automatically
convert at the effective date of this registration
statement.
|
$
|
170,000
|
$
|
139,101
|
$
|
170,000
|
||||||
Note
payable to bank in monthly installments of $1,275/including variable
interest at 2% above the prevailing prime rate (3.25% at December 31,
2008) to August 2011 when the remaining balance is payable. The note is
personally guaranteed by former executives of the
Company.
|
38,183
|
48,308
|
31,486
|
|||||||||
Note
payable to NWBDC with interest only payments at 8% to December 2008 when
the remaining balance is payable. The note was personally guaranteed by
former executives of the Company. The note was paid in full on June 24,
2008.
|
—
|
18,000
|
—
|
|||||||||
Notes
payable to two individuals, net of discounts of $26,157, $34,205 and
$21,631 with interest only payments at 12% to March 2012 when the
remaining balance is payable. The notes are convertible into 285,715
shares of stock in the Company at $.35 per share.
|
73,843
|
65,794
|
78,369
|
|||||||||
Notes
payable to four shareholders of the Company that are overdue. The notes
are convertible into 11,429 shares of stock in the Company at $.35 per
share.
|
4,000
|
4,000
|
4,000
|
|||||||||
Total
|
286,026
|
275,203
|
283,855
|
|||||||||
Less
amount due within one year
|
187,620
|
172,901
|
187,620
|
|||||||||
Long-Term
Debt
|
$
|
98,406
|
$
|
102,302
|
$
|
96,235
|
Stock Options (1)
|
Warrants (1)
|
|||||||||||||||
Number of
Shares
|
Average
Exercise
Price
|
Number of
Shares
|
Average
Exercise
Price
|
|||||||||||||
Outstanding
at December 31, 2005
|
17,956 | $ | 1.67 | 20,950 | $ | 2.62 | ||||||||||
Issued
|
23,942 | 1.67 | 71,826 | 0.85 | ||||||||||||
Outstanding
at December 31, 2006
|
41,898 | $ | 1.67 | 92,776 | $ | 1.25 | ||||||||||
Issued
|
5,985 | 1.67 | 28,502 | 0.35 | ||||||||||||
Outstanding
at December 31, 2007
|
47,882 | $ | 1.67 | 121,278 | $ | 1.04 | ||||||||||
Issued
|
1,243,293 | 0.20 | 5,075,204 | 0.45 | ||||||||||||
Expired
|
(11,971 | ) | 3.76 | |||||||||||||
Outstanding
at December 31, 2008
|
1,291,174 | $ | 0.26 | 5,184,511 | 0.45 |
Range of Exercise Prices
|
Shares
|
Weighted
Average
Remaining
Life
|
||||||
At
December 31, 2007:
|
||||||||
Options:
|
||||||||
$0.35
|
11,970
|
4.37
|
||||||
$1.67
|
41,898
|
3.31
|
||||||
Warrants:
|
||||||||
$0.02
|
35,913
|
5.45
|
||||||
$0.35
|
28,502
|
4.17
|
||||||
$1.67
|
44,892
|
3.69
|
||||||
$3.34
|
11,971
|
0.79
|
||||||
At
December 31, 2008:
|
||||||||
Options:
|
||||||||
$0.01
|
543,292
|
9.43
|
||||||
$0.35
|
700,000
|
4.29
|
||||||
$1.67
|
47,882
|
2.50
|
||||||
Warrants:
|
||||||||
$0.02
|
71,826
|
5.45
|
||||||
$0.35
|
178,502
|
4.29
|
||||||
$0.46
|
4,889,291
|
2.57
|
||||||
$1.67
|
44,892
|
2.01
|
||||||
At
June 30, 2009:
|
||||||||
Options:
|
||||||||
$0.01
|
543,292
|
8.94
|
||||||
$0.35
|
875,000
|
4.12
|
||||||
$1.67
|
47,882
|
2.26
|
||||||
Warrants:
|
||||||||
$0.02
|
71,826
|
4.95
|
||||||
$0.35
|
798,597
|
3.29
|
||||||
$0.45
|
4,954,291
|
2.05
|
||||||
$0.65
|
970,000
|
2.83
|
||||||
$1.67
|
44,892
|
2.19
|
||||||
Number of Shares
|
Reverse
|
|||||||||||
Outstanding
|
Split Ratio
|
|||||||||||
Before
|
After
|
|||||||||||
As
of June 30, 2008:
|
||||||||||||
-
original shareholders
|
1,376,105 | (1) | 1,096,935 | 1.2545 | ||||||||
-
new investors, other
|
3,720,293 | 3,720,293 | ||||||||||
Total
|
5,096,398 | 4,817,228 | ||||||||||
As
of September 30, 2008:
|
||||||||||||
-
original shareholders
|
1,096,935 | 1,096,935 | ||||||||||
-
new investors, other
|
6,997,842 | 6,997,842 | ||||||||||
Total
|
8,094,237 | 8,094,237 | ||||||||||
As
of October 20, 2008:
|
||||||||||||
-
original shareholders
|
1,096,935 | 823,676 | 1.33177 | |||||||||
-
new investors, other
|
7,307,165 | 7,307,165 | ||||||||||
Total
|
8,403,560 | 8,130,841 | ||||||||||
As
of October 30, 2008 (closing date):
|
||||||||||||
-
original shareholders
|
823,676 | |||||||||||
-
new investors, other
|
7,307,165 | |||||||||||
Total
|
8,130,841 |
(1)
|
1,376,105 divided by 1.670705
equals 823,676.
|
Feature
|
BioDrain
Medical
|
Stryker
|
Cardinal
Health
|
DeRoyal
|
Dornoch
|
MD
Technologies
|
||||||
Portable
to Bedside vs. Fixed Installation
|
Fixed
|
Portable
|
Portable
|
Fixed
|
Portable
|
Fixed
|
||||||
Uses
Canisters
|
No
|
Yes
|
Yes
|
Yes
|
Yes
|
No
|
||||||
Secondary
Installed Device Required for Fluid Disposal
|
No
|
Yes
|
Yes
|
Yes
|
Yes
|
No
|
||||||
Numeric
Fluid Volume Measurement
|
Yes
|
Yes
|
No
|
No
|
Yes
|
Optional
|
||||||
Unlimited
Fluid Capacity
|
Yes
|
No
|
No
|
No
|
No
|
Yes
|
||||||
Installation
Requirements
|
||||||||||||
·
Water
|
No
|
Yes
|
Yes
|
Yes
|
Yes
|
No
|
||||||
·
Sewer
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
||||||
·
Vacuum
|
|
Yes
|
|
No
|
|
No
|
|
No
|
|
No
|
|
Yes
|
•
|
Minimal
Human Interaction . The wall-mounted FMS provides for a
small internal reservoir that keeps surgical waste isolated from medical
personnel and disposes the medical waste directly into the hospital
sanitary sewer with minimal medical personnel interaction. This minimal
interaction is facilitated by the automated electronic controls and
computerized LCD touch-screen allowing for simple and safe single touch
operation of the FMS.
|
•
|
Minimizes
Exposure . The FMS minimizes surgical team and cleaning crew
exposure to bloodborne pathogens, as the system is hands-free and fully
automated with electronic controls with regards to handling any waste
fluid. The FMS provides advanced fluid management technology in that it
eliminates the use of canisters, traditional or powered, for fluid
collection, is directly connected to the hospital sanitary sewer, provides
continuous flow of waste fluids from the operative field, allows
visualization of those fluids prior to disposal and provides measurement
of disposed fluids. It does not require any transport to and from the
operating room or any secondary procedure such as attachment to a
companion device for disposal of the waste
fluids
|
•
|
Fluid
Measurement . The FMS volume measurement allows for in-process,
accurate measurement of blood/saline suctioned during the operative
procedure, and eliminates much of the estimation of fluid loss currently
practiced in the operating room. This will be particularly important in
minimally invasive surgical procedures, where accounting for all fluids,
including saline added for the procedure, is vital to the operation. The
surgical team can view in real time the color of the extracted or
evacuated fluid through the viewing window on the
FMS.
|
•
|
Disposable Cleaning
Kit . A single-use, disposable cleaning kit that is used for the
automated cleaning cycle at the conclusion of each procedure prepares the
FMS for the next use, reducing operating room turnover time. The cleaning
kit includes a BioDrain proprietary cleaning fluid for cleaning the
internal tubing, pathways and chamber within the FMS unit and a disposable
external manifold required for each surgical procedure. The cleaning
solution bottle is attached to the FMS with a cleaning fluid adapter which
is designed to mate with the special connector on the FMS. One manifold
will be supplied with each bottle of cleaning fluid, attached to the
bottle for user convenience in securing all consumables needed for each
use of the FMS. The disposable cleaning fluid bottle collapses at the end
of the cleaning cycle rendering it unusable; therefore it cannot be
refilled with any other solution. The instructions for use clearly state
that the FMS cleaning fluid, and only the FMS cleaning fluid, must be used
with the FMS following each surgical case. The cleaning fluid should be a
substantial revenue generator for the life of the
FMS.
|
•
|
Ease of Use .
The FMS simply connects to the existing suction tubing from the operative
field (causing no change to the current operative methods). Pressing the
START button on
the FMS touch screen causes the suction tip to operate similarly to
preexisting systems, thereby minimizing the learning curve for operation
at the surgical site.
|
•
|
Installation .
BioDrain will arrange installation of the FMS through a partnership or
group of partnerships. Such partnerships will include but not be limited
to being executed with distribution partners, manufacturer's
representatives, hospital supply companies and the like. We will train our
partners and standardize the procedure to ensure the seamless installation
of our products. The FMS is designed for minimal interruption of operating
room and surgical room utilization. Plug-and-play features of the design
allow for almost immediate connection and hook up to hospital utilities
for wall-hung units allowing for quick start-up post
installation.
|
•
|
Sales Channel
Partners . The FMS will be sold to end-users through a combination
of independent stocking distributors, manufacturers’ representatives and,
possibly later, direct sales personnel. All personnel involved in direct
contact with the end-user will have extensive training and will be
approved by BioDrain. Exclusive agreements will be in place between
BioDrain and the sales channel partners outlining stocking expectations,
sales objectives, target accounts, and the like. Contractual agreements
with the sales channel partners will be reviewed on an annual basis and
could possibly be terminated at any time by BioDrain based on certain
specified conditions.
|
•
|
Competitive
Pricing . Estimated end-user pricing is expected to be in the range
of $12,000 - $15,000 list per system (one per operating room -
installation extra) and $15 - $20 per unit retail for the proprietary
cleaning kit to the U.S. hospital market. The distributor or channel
partner then sets the final retail price based on quantity discounts for
multiple installations.
|
n
|
Develop a complete line of
wall-installed fluid evacuation systems (“FMS”) for use in hospitals and
free standing surgery centers as well as clinics and physicians’
offices. Initially, we have developed the FMS to work in hospital
operating rooms and surgical centers. This device was developed for use
with the wall vacuum suction currently installed in hospitals.
Opportunities for future products include an FMS developed for
post-operation and recovery rooms with multiple inlet ports and multiple
volume measurements.
|
n
|
Provide products that greatly
reduce worker and patient exposure to harmful materials present in
infectious fluids and that contribute to an adverse working
environment. As one of the few stand-alone surgical fluid disposal
systems directly connected to the sanitary sewer, the FMS could advance
the manner in which such material is collected, measured and disposed of
in operating rooms, post-operating recovery, emergency rooms and intensive
care settings by eliminating the need to transport a device to the patient
bedside and remove it for emptying and cleaning at the end of the
procedure. The cost of such exposures, measured in terms of human
suffering, disease management costs, lost productivity, liability or
litigation, will be, when properly leveraged, the strongest motivating
factor for facilities looking at investing in the FMS line of
products..
|
n
|
Utilize experienced
independent distributors and manufacturers representatives of medical
products to achieve the desired market penetration. Contacts have
been established with several existing medical products distributors and
manufacturers’ representatives and interest has been generated regarding
the sales of the BioDrain FMS and cleaning kits. In addition to their
normal sales practices, the distributors will carry a significant
inventory of cleaning kits for their current customers and could purchase
an FMS for demonstration to new potential
customers.
|
n
|
Continue to utilize operating
room consultants, builders and architects as referrals to hospitals and
day surgery centers. To date, referrals have been received from
this group resulting in several potential sales and a potential beta site.
These referrals have shortened the time frame for contacting and
demonstrating the FMS to potential customers as well as providing us with
valuable responses to the FMS from the customer base, the vast majority of
which have been extremely positive to
date.
|
n
|
Utilize a Medical Advisory
Board to assist in market penetration. We have a Medical Advisory
Board consisting of a respected surgeon, two operating room consultants
and a nurse anesthetist to assist us in understanding the needs of our
market and ways to better serve that market. From time to time executive
management may elect to change the composition of the Medical Advisory
Board, including but not limited to, expanding the size of the Medical
Advisory Board.
|
n
|
Employing
a lean operating structure, while utilizing the latest trends and
technologies in manufacturing and marketing, to achieve both market share
growth and projected profitability.
|
n
|
Providing
a leasing program and/or “pay per use” program as purchasing
alternatives.
|
n
|
Providing
service contracts to establish an additional revenue
stream.
|
n
|
Utilizing
the international manufacturing experience of our management team to
develop international sources of supply and manufacturing to take
advantage of the lower cost of labor and materials while still obtaining
excellent quality. While cost is not a major consideration in the roll-out
of leading edge products we believe that being a low cost provider will be
important over time.
|
n
|
Offering
an innovative warranty program that is contingent on the exclusive use of
our disposable cleaning kit to insure the success of our after-market
disposable products.
|
•
|
Direct Disposal Through the
Sanitary Sewer. In virtually all municipalities, the disposal of
liquid blood may be done directly to the sanitary sewer where it is
treated by the local waste management facility. This practice is approved
and recommended by the EPA. In most cases these municipalities
specifically request that disposed bio-materials not be treated with any
known anti-bacterial agents such as glutalderhyde, as these agents not
only neutralize potentially infectious agents but also work to defeat the
bacterial agents employed by the waste treatment facilities themselves.
Disposal through this method is fraught with potential exposure to the
service workers, putting them at risk for direct contact with these
potentially infectious agents through spillage of the contents or via
splash when the liquid is poured into a hopper - a specially designated
sink for the disposal of infectious fluids. Once the infectious fluids are
disposed of into the hopper, the empty canister is sent to central
processing for re-sterilization (glass and certain plastics) or for
disposal in the biohazardous/infectious waste generated by the hospital
(red-bagged).
|
•
|
Conversion to Gel for Red-Bag
Disposal. In many hospital systems the handling of this liquid
waste has become a liability issue due to worker exposure incidents and in
some cases has even been a point of contention during nurse contract
negotiations. Industry has responded to concerns of nurses over splash and
spillage contamination by developing a powder that, when added to the
fluid in the canisters, produces a viscous, gel-like substance that can be
handled more safely. After the case is completed and final blood loss is
calculated, a port on the top of each canister is opened and the powder is
poured into it. It takes several minutes for the gel to form, after which
the canisters are placed on a service cart and removed to the red-bag
disposal area for disposal with the other infectious waste. There are four
major drawbacks to this system:
|
o
|
It
does not ensure protection for healthcare workers, as there remains the
potential for splash when the top of the canister is
opened.
|
o
|
Based
on industry pricing data, the total cost per canister increases by
approximately $2.00.
|
o
|
Disposal
costs to the hospital increase dramatically as shipping, handling and
landfill costs are based upon weight rather than volume in most
municipalities. The weight of an empty 2,500 ml canister is approximately
one pound. A canister and its gelled contents weigh approximately 7.5
pounds.
|
o
|
The
canister filled with gelled fluid must be disposed; it cannot be cleaned
and re-sterilized for future use.
|
•
|
OSHA
(Occupational Safety and Health
Administration)
|
•
|
EPA
(Environmental Protection Agency)
|
•
|
DOT
(Department of Transportation)
|
•
|
JCAHO
(Joint Commission of Accreditation of
Hospitals)
|
•
|
NFPA
(National Fire Protection
Association)
|
•
|
AIA
(American Institute of Architects)
|
•
|
AORN
(Association of Operating Room
Nurses)
|
•
|
Specific
state, county, hospital or institution
guidelines
|
Investors
|
||||||||
Name
|
Number of
Shares
|
Percentage of
Common Stock
Outstanding
|
||||||
Investors:
|
||||||||
Caron
Partners LP
|
246,500
|
2.7
|
%
|
|||||
Marc
I. Abrams
|
28,571
|
0.3
|
%
|
|||||
Douglas
Gold
|
203,571
|
2.2
|
%
|
|||||
Stuart
A. Liner
|
71,429
|
0.8
|
%
|
|||||
Steven
M & Sheila A. Gold
|
71,429
|
0.8
|
%
|
|||||
Tangiers
Investors, L.P.
|
142,857
|
1.6
|
%
|
|||||
MLPF&S:
Jerome Cowan
|
71,429
|
0.8
|
%
|
|||||
Jeremy
Roll
|
28,572
|
0.3
|
%
|
|||||
Bernard
& Twyla Vosika
|
71,429
|
0.8
|
%
|
|||||
Sally
& Naomi Maslon JTWROS
|
28,571
|
0.3
|
%
|
|||||
Michael
Sobeck
|
14,286
|
0.2
|
%
|
|||||
Cavalier
Consulting Corp.
|
71,429
|
0.8
|
%
|
|||||
RP
Capital
|
183,991
|
2.1
|
%
|
|||||
Brian
Weitman
|
42,599
|
0.5
|
%
|
|||||
Bellajule
Partners LP
|
102,429
|
1.1
|
%
|
|||||
Morris
Esquenazi
|
100,000
|
1.1
|
%
|
|||||
Schwartz
Holding
|
500,000
|
5.4
|
%
|
|||||
Jack
& Thelma Farbman
|
100,000
|
1.1
|
%
|
|||||
Morrie
R. Rubin
|
50,000
|
0.6
|
%
|
|||||
Lee
M. Terpstra & Orlando Stephenson
|
100,000
|
1.1
|
%
|
Investors
|
||||||||
Name
|
Number of
Shares
|
Percentage of
Common Stock
Outstanding
|
||||||
Bernard Puder
Revocable Trust
|
430,000
|
4.7
|
%
|
|||||
Thomas
J. Klas
|
71,429
|
0.8
|
%
|
|||||
Chad
Ruwe
|
571,429
|
6.2
|
%
|
|||||
Peter
Abramowicz
|
57,143
|
0.6
|
%
|
|||||
Scott
R. Storick
|
100,000
|
1.1
|
%
|
|||||
James
Dauwalter Living Trust
|
571,429
|
6.2
|
%
|
|||||
CGMI
as IRA Custodian FBO John D. Villas
|
71,429
|
0.8
|
%
|
|||||
Stan
Geyer Living Trust
|
71,429
|
0.8
|
%
|
|||||
James
Taylor, IV
|
571,429
|
6.2
|
%
|
|||||
Gregory
B, Graves
|
42,857
|
0.5
|
%
|
|||||
Fenton
Fitzpatrick
|
8,571
|
0.1
|
%
|
|||||
Peter
Persad
|
71,429
|
0.8
|
%
|
|||||
Thomas
M. Pronesti
|
55,964
|
0.6
|
%
|
|||||
Craig
Kulman
|
38,821
|
0.4
|
%
|
|||||
Kulman
IR LLC
|
125,000
|
1.4
|
%
|
|||||
Cross
Street Partners, Inc.
|
125,000
|
1.4
|
%
|
|||||
Namaste
Financial, Inc.
|
125,000
|
1.4
|
%
|
|||||
Ryan
Hong
|
57,404
|
0.6
|
%
|
|||||
Richardson
& Patel LLP
|
60,714
|
0.7
|
%
|
|||||
Sean
Fitzpatrick
|
150,000
|
1.6
|
%
|
|||||
David
Baker
|
225,000
|
2.5
|
%
|
|||||
Si
Phillips
|
50,000
|
0.6
|
%
|
|||||
Cameron
Broumand
|
35,000
|
0.4
|
%
|
|||||
Sylvia
Karayan
|
11,646
|
0.1
|
%
|
|||||
Jason
Cavalier
|
15,000
|
0.2
|
%
|
|||||
Greg
Suess
|
104,114
|
1.1
|
%
|
|||||
Ben
Padnos
|
100,000
|
1.1
|
%
|
|||||
Nimish
Patel
|
412,411
|
4.5
|
%
|
|||||
Erick
Richardson
|
399,543
|
4.4
|
%
|
|||||
Mark
Abdou
|
32,907
|
0.4
|
%
|
|||||
Addison
Adams
|
8,227
|
0.1
|
%
|
|||||
Michael
Cavalier
|
8,227
|
0.1
|
%
|
|||||
Mick
Cavalier
|
8,227
|
0.1
|
%
|
|||||
Francis
Chen
|
2,334
|
0.0
|
%
|
|||||
Doug
Croxall
|
6,170
|
0.1
|
%
|
|||||
Jennifer
& Michael Donahue
|
28,009
|
0.3
|
%
|
|||||
EGATNIV,
LLC
|
13,710
|
0.2
|
%
|
|||||
Dan
Estrin
|
823
|
0.0
|
%
|
|||||
Kevin
Friedmann
|
1,440
|
0.0
|
%
|
|||||
Abdul
Ladha
|
4,114
|
0.0
|
%
|
|||||
Jody
Samuels
|
8,227
|
0.1
|
%
|
|||||
Yossi
Stern
|
10,284
|
0.1
|
%
|
|||||
Steve
Yakubov
|
10,284
|
0.1
|
%
|
|||||
Total
|
7,101,266
|
77.0
|
%
|
Founders
|
||||||||
Name
|
Number of
Shares
|
Percentage of
Common Stock
Outstanding
|
||||||
Lawrence W.
Gadbaw
|
139,163
|
1.5
|
%
|
|||||
Peter
L. Morawetz
|
107,739
|
1.2
|
%
|
|||||
Gerald
D. Rice
|
85,294
|
0.9
|
%
|
|||||
Jay
D. Nord
|
102,336
|
1.1
|
%
|
|||||
Sophia
M. Nord, Trust
|
29,928
|
0.3
|
%
|
|||||
Emily
A. Nord, Trust
|
29,928
|
0.3
|
%
|
|||||
Jeffrey
K. Drogue
|
53,870
|
0.6
|
%
|
|||||
Jonathon
N. Drogue, Trust
|
29,928
|
0.3
|
%
|
|||||
Samantha
N. Drogue, Trust
|
29,928
|
0.3
|
%
|
|||||
Staci
M. Lauer (Spade)
|
35,913
|
0.4
|
%
|
|||||
Wisconsin
Rural Enterprise
|
180,000
|
2.0
|
%
|
|||||
Richard
E. & Carol A. Thurk
|
5,986
|
0.1
|
%
|
|||||
Thomas
W. Gadbaw
|
599
|
0.0
|
%
|
|||||
Gail
C. & Ginger L. Smith
|
2,993
|
0.0
|
%
|
|||||
Charles
W. Gadbaw
|
300
|
0.0
|
%
|
|||||
Judith
A. Bright
|
1,497
|
0.0
|
%
|
|||||
Marshall
C. Ryan
|
71,906
|
0.8
|
%
|
|||||
Alice
I. North
|
399
|
0.0
|
%
|
|||||
Arliss
A. Gadbaw
|
400
|
0.0
|
%
|
|||||
Gaynelle
A. Templin
|
399
|
0.0
|
%
|
|||||
Kevin
R. Davidson
|
29,928
|
0.3
|
%
|
|||||
Mark
K. Lawlis
|
9,577
|
0.1
|
%
|
|||||
Wisconsin
Business Innovation Corporation
|
2,993
|
0.0
|
%
|
|||||
Andcor
Companies, Inc.
|
78,571
|
0.9
|
%
|
|||||
Total
|
1,029,575
|
11.2
|
%
|
Name
|
Age
|
Position
Held
|
||
Lawrence
W. Gadbaw
|
71
|
Chairman
of the Board of Directors
|
||
Kevin
R. Davidson
|
49
|
President,
Chief Executive Officer, Chief Financial Officer and
Director
|
||
Chad
A. Ruwe
|
45
|
Chief
Operating Officer and Director
|
||
James
E. Dauwalter
|
58
|
Director
|
||
Kirsten
Doerfert
|
52
|
Vice
President of Sales and Marketing
|
||
Peter
L. Morawetz
|
81
|
Director
|
||
Thomas
J. McGoldrick
|
67
|
Director
|
||
Andrew
P. Reding
|
38
|
Director
|
•
|
had
any bankruptcy petition filed by or against any business of which such
person was a general partner or executive officer, either at the time of
the bankruptcy or within two years prior to that
time,
|
•
|
been
convicted in a criminal proceeding and none of our directors or executive
officers is subject to a pending criminal
proceeding,
|
•
|
been
subject to any order, judgment, or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining, barring, suspending or otherwise limiting his
involvement in any type of business, securities, futures, commodities or
banking activities, or
|
•
|
been
found by a court of competent jurisdiction (in a civil action), the
Securities and Exchange Commission or the Commodity Futures Trading
Commission to have violated a federal or state securities or commodities
law, and the judgment has not been reversed, suspended, or
vacated.
|
Name
and
principal
position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option
Awards
($) (4)
|
Non-
Equity
Incentive
Plan
Compen-
sation
($)
|
Nonquali-
fied
Deferred
Compen-
sation
Earnings
($)
|
All
Other
Compen-
sation
($)
|
Total ($)
|
||||||||||||||||||||||||||
Kevin
R. Davidson,
|
2008
|
160,000 | 25,000 | 186,307 | 371,307 | ||||||||||||||||||||||||||||||
President
and Chief Executive Officer
|
2007
|
150,000 | 23,000 | 14,966 | 187,966 | (1) | |||||||||||||||||||||||||||||
Gerald
D.
|
2008
|
114,250 | 114,250 | ||||||||||||||||||||||||||||||||
Rice,
Former Chief Financial Officer and Secretary (3)
|
2007
|
110,000 | 46,000 | 23,990 | 179,990 | (2) |
|
(1)
|
In 2008 Mr. Davidson was entitled
to $160,000 in base salary under his employment agreement and a $25,000
board approved bonus, but was paid only $126,650, due to a shortage of
cash. The bonus was established by the board as an incentive for Mr.
Davidson to complete a financing of not less than $1 million and was paid
after the successful completion of the October 2008 financing. Of the
$126,650 paid Mr. Davidson in 2008 $25,000 was a bonus and $101,650 was
salary. In 2007, although Mr. Davidson was entitled to $150,000 in base
salary under his employment agreement, he received $59,375 in base salary
due to lack of funds. In June 2008 we reached agreement with three current
and former officers to reduce accrued payroll liabilities relating to 2007
and prior years, by a total of $346,700 (of which Mr. Davidson waived
compensation in the aggregate amount of $90,000 for 2007 and prior years).
In addition, Mr. Davidson waived $58,350 in underpaid compensation related
to 2008. In exchange therefore, Mr. Davidson will be granted a one-time
cash payment of $23,000 as well as an option to purchase 80,000 shares of
common stock at $.35 per share when the Company raises an additional $3
million of funding subsequent to the financing completed in October
2008.
|
|
(2)
|
In 2008 Mr. Rice was entitled to
$114,250 in base salary under his employment agreement and board approved
salary increase, but was paid only $73,525 due to a shortage of cash. In
2007, although Mr. Rice was entitled to $110,000 in base salary under his
employment agreement, he received $43,542 in base salary due to lack of
cash. In June 2008 we reached agreement with three current and former
officers to reduce accrued payroll liabilities relating to 2007 and prior
years, by a total of $346,700 (of which Mr. Rice waived compensation in
the aggregate amount of $125,000 relating to 2007 and prior years). In
addition, Mr. Rice waived $40,725 in underpaid compensation related to
2008. In exchange therefore, Mr. Rice will be granted a one-time cash
payment of $46,000 as well as an option to purchase 160,000 shares of
common stock at $.35 per share when we raise an additional $3 million of
funding subsequent to the financing completed in October 2008.
|
|
(3)
|
Mr. Rice terminated his
employment as our Chief Financial Officer and Secretary on January 15,
2009.
|
|
(4)
|
Values expressed represent the
actual compensation cost recognized by our Company during 2008 for equity
awards granted in 2008 and previous years as determined pursuant to
Statement of Financial Accounting Standards No. 123, Share-Based Payment (“SFAS 123R”)
utilizing the assumptions discussed in Note 3, “Stock Options and
Warrants,” in the notes to financial statements included as page F-8 to
this filing on Form
S-1.
|
Option aw
ards
|
Stock awa
rds
|
|||||||||||||||||||||||||||||||||||
Name
|
Number
of
securities
underlying
unexercised
options
(#)
exercisable
|
Number
of
securities
underlying
unexercised
options
(#)
unexercisable
|
Equity
incentive
plan
awards:
Number
of
securities
underlying
unexercised
unearned
options
(#)
|
Option
exercise
price
($)
|
Option
expiration
date
|
Number
of
shares
or
units
of
stock
that
have
not
vested
(#)
|
Market
value
of
shares
of
units
of
stock
that
have
not
vested
($)
|
Equity
incentive
plan
awards:
Number
of
unearned
shares,
units
or
other
rights
that
have
not
vested
(#)
|
Equity
incentive
plan
awards:
Market
or
payout
value
of
unearned
shares,
units
or
other
rights
that
have
not
vested
($)
|
|||||||||||||||||||||||||||
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(f)
|
(g)
|
(h)
|
(i)
|
(j)
|
|||||||||||||||||||||||||||
Kevin
R. Davidson, President and Chief Executive Officer
|
- | 80,000 | (1) | - | $ | .35 |
12/31/13
|
- | - | - | - | |||||||||||||||||||||||||
543,292 | (2) | .01 |
06/05/18
|
|||||||||||||||||||||||||||||||||
Gerald
D. Rice, Former Chief Financial Officer and Secretary
|
- | 160,000 | (1) | - | $ | .35 |
12/31/13
|
- | - | - | - |
(1)
|
Issuance of these stock options
is contingent upon the Company achieving $3 million in total investment
funding.
|
(2)
|
Mr. Davidson was entitled to
receive 543,292 shares of company stock under terms of his employment
agreement, but agreed to accept a stock option to purchase 543,292 shares
at $.01 per share. The option vested immediately and has a 10 year
term.
|
·
|
Shares
underlying a convertible bridge loan from seven investors who loaned us
$170,000 in July 2007. Such securities are convertible into 620,095 shares
and the lenders also received warrants to purchase 620,095 shares at $.35
per share;
|
·
|
4,552,862
common shares and 4,552,862 common shares underlying warrants (at an
exercise price per share of $0.46) to 33 investors pursuant to an equity
private placement from June 2007 to October 2008 for $0.35 per share for
an aggregate of approximately $1.6
million;
|
·
|
547,285
common shares and 136,429 warrants to consultants who provided services in
connection with such equity private placement;
and
|
·
|
Shares
issued pursuant to a binding term sheet with a consultant pursuant to
which the consultant would assist us in obtaining bridge financing and
subsequent equity financing and the consultant and its assigns received
2,001,119 shares in satisfaction of such
obligation.
|
Name of Selling Shareholder
|
|
Number of
Shares
Owned
Before
Offering(1)
|
Number of
Shares
Underlying
Warrants
Owned
Before
Offering
|
Number of
Shares
Offered in
this
Offering(1)
|
Number of
Shares
Owned
After
Offering(2)
|
Percentage
Owned
After
Offering(2)
|
|
|||||||||||||
Caron
Partners LP(3) (25)(31)
|
246,500
|
100,000
|
246,500
|
0
|
0
|
|||||||||||||||
Alan
Topchik (25)(1)
|
200,000
|
100,000
|
200,000
|
0
|
0
|
|||||||||||||||
Marc
I. Abrams (25)(31)
|
57,142
|
28,571
|
57,142
|
0
|
0
|
|||||||||||||||
Douglas
J. Gold (21) (25) (27)(31)
|
232,142
|
28,571
|
232,142
|
0
|
0
|
|||||||||||||||
Stuart
A. Liner (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Steven
M. Gold and Sheila A. Gold (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Tangiers
Investors, L.P.(4) (25)(31)
|
285,714
|
142,857
|
285,714
|
0
|
0
|
|||||||||||||||
Jerome
M. Cowan (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Jeremy
Roll (25) (26)(31)
|
68,573
|
40,001
|
68,573
|
0
|
0
|
|||||||||||||||
Bernard
Vosika and Twyla Vosika (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
Name of Selling Shareholder
|
Number of
Shares
Owned
Before
Offering(1)
|
Number of
Shares
Underlying
Warrants
Owned
Before
Offering
|
Number of
Shares
Offered in
this
Offering(1)
|
Number of
Shares
Owned
After
Offering(2)
|
Percentage
Owned
After
Offering(2)
|
|||||||||||||||
Sally
Maslon & Naomi Maslon JTWROS (25)(31)
|
57,142
|
28,571
|
57,142
|
0
|
0
|
|||||||||||||||
Michael
Sobeck (25)(31)
|
28,572
|
14,286
|
28,572
|
0
|
0
|
|||||||||||||||
Cavalier
Consulting Corp.(5) (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
RP
Capital(6) (21) (25)(31)
|
326,848
|
142,857
|
326,848
|
0
|
0
|
|||||||||||||||
Brian
Weitman (25)(31)
|
64,028
|
21,429
|
64,028
|
0
|
0
|
|||||||||||||||
Bellajule
Partners LP(7) (25)(31)
|
173,858
|
71,429
|
173,858
|
0
|
0
|
|||||||||||||||
Morris
Esquenazi (25(31))
|
200,000
|
100,000
|
200,000
|
0
|
0
|
|||||||||||||||
Schwartz
Holding (25)(28)(31)
|
1,000,000
|
500,000
|
1,000,000
|
0
|
0
|
|||||||||||||||
Jack
Farbman and Thelma Farbman (25)(31)
|
200,000
|
100,000
|
200,000
|
0
|
0
|
|||||||||||||||
Morrie
R. Rubin (25)(31)
|
225,000
|
50,000
|
100,000
|
125,000
|
1.3
|
%
|
||||||||||||||
Lee
M. Terpstra and Orlando Stephenson (25)(31)
|
200,000
|
100,000
|
200,000
|
0
|
0
|
|||||||||||||||
Bernard
Puder Revocable Trust (25)(31)
|
860,000
|
430,000
|
860,000
|
0
|
0
|
|||||||||||||||
Thomas
J. Klas (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Chad
A. Ruwe(22) (25) (30)(31)
|
1,442,858
|
621,429
|
1,142,858
|
300,000
|
(8)
|
3.
|
0%
|
|||||||||||||
Peter
Abramowicz (25)(31)
|
114,286
|
57,143
|
114,286
|
0
|
0
|
|||||||||||||||
Scott
R. Storick (25)(31)
|
200,000
|
100,000
|
200,000
|
0
|
0
|
|||||||||||||||
James
R. Taylor, IV(25)(31)
|
1,142,858
|
571,429
|
1,142,858
|
0
|
0
|
|||||||||||||||
Citigroup
Global Markets Inc. as IRA Custodian FBO John D. Villas (25)(31)
|
242,858
|
121,429
|
142,858
|
100,000
|
1.1
|
%
|
||||||||||||||
Gregory
B. Graves (25)(31)
|
125,714
|
62,857
|
85,714
|
40,000
|
*
|
|||||||||||||||
James
E. Dauwalter Living Trust dated 12/11/01(9) (25) (29)(31)
|
1,572,858
|
771,429
|
1,142,858
|
430,000
|
4.3
|
%
|
||||||||||||||
Stan
Geyer Living Trust dated 10/15/2001, as amended, Stan Geyer & Beverly
Geyer, Trustees(10) (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Fenton
Fitzpatrick (25)(31)
|
17,142
|
8,571
|
17,142
|
0
|
0
|
|||||||||||||||
Peter
Persad (25)(31)
|
142,858
|
71,429
|
142,858
|
0
|
0
|
|||||||||||||||
Nimish
Patel(11) (21) (24)
|
503,601
|
45,595
|
503,601
|
0
|
0
|
|||||||||||||||
Erick
Richardson(12) (21) (24)
|
490,733
|
45,595
|
490,733
|
0
|
0
|
|||||||||||||||
Core
Fund Management, LP(13) (24)
|
364,762
|
182,381
|
364,762
|
0
|
0
|
|||||||||||||||
James
Jensen(14) (24)
|
364,762
|
182,381
|
364,762
|
0
|
0
|
|||||||||||||||
Steve
Andress(15) (24)
|
72,952
|
36,476
|
72,952
|
0
|
0
|
|||||||||||||||
Kendall
Morrison(16) (24)
|
72,952
|
36,476
|
72,952
|
0
|
0
|
|||||||||||||||
EGATNIV,
LLC(17) (24)
|
196,092
|
91,191
|
196,092
|
0
|
0
|
|||||||||||||||
Thomas
Pronesti(23) (26)
|
55,964
|
55,964
|
0
|
0
|
||||||||||||||||
Craig
Kulman(23) (26)
|
38,821
|
38,821
|
0
|
0
|
||||||||||||||||
Kulman
IR LLC(18)(23) (26)
|
125,000
|
125,000
|
0
|
0
|
||||||||||||||||
Cross
Street Partners, Inc.(19)(23) (26)
|
125,000
|
125,000
|
0
|
0
|
||||||||||||||||
Bill
Glaser(23) (26)
|
250,000
|
125,000
|
250,000
|
0
|
0
|
|||||||||||||||
Ryan
Hong(21) (27)
|
57,404
|
57,404
|
0
|
0
|
||||||||||||||||
Richardson
& Patel, LLP(20) (27)
|
60,714
|
60,714
|
0
|
0
|
||||||||||||||||
Sean
Fitzpatrick (27)
|
150,000
|
150,000
|
0
|
0
|
||||||||||||||||
David
Baker (27)
|
225,000
|
225,000
|
0
|
0
|
||||||||||||||||
Si
Phillips (27)
|
50,000
|
50,000
|
0
|
0
|
||||||||||||||||
Cameron
Broumand (27)
|
35,000
|
35,000
|
0
|
0
|
||||||||||||||||
Sylvia
Karayan(21) (27)
|
10,000
|
10,000
|
0
|
0
|
||||||||||||||||
Jason
Cavalier (27)
|
15,000
|
15,000
|
0
|
0
|
||||||||||||||||
Greg
Suess (27)
|
104,114
|
104,114
|
0
|
0
|
||||||||||||||||
Ben
Padnos (27)
|
100,000
|
100,000
|
0
|
0
|
Name of Selling Shareholder
|
Number of
Shares
Owned
Before
Offering(1)
|
Number of
Shares
Underlying
Warrants
Owned
Before
Offering
|
Number of
Shares
Offered in
this
Offering(1)
|
Number of
Shares
Owned
After
Offering(2)
|
Percentage
Owned
After
Offering(2)
|
|||||||||||||||
Mark
Abdou (27)
|
32,907
|
32,907
|
0
|
0
|
||||||||||||||||
Addison
Adams(21) (27)
|
8,227
|
8,227
|
0
|
0
|
||||||||||||||||
Michael
Cavalier (27)
|
8,227
|
8,227
|
0
|
0
|
||||||||||||||||
Mick
Cavalier
|
8,227
|
8,227
|
0
|
0
|
||||||||||||||||
Francis
Chen (21) (27)
|
2,334
|
2,334
|
0
|
0
|
||||||||||||||||
Doug
Croxall (27)
|
6,170
|
6,170
|
0
|
0
|
||||||||||||||||
Jennifer
& Michael Donohue (21) (27)
|
28,009
|
28,009
|
0
|
0
|
||||||||||||||||
Dan
Estrin (27)
|
823
|
823
|
0
|
0
|
||||||||||||||||
Kevin
Friedmann(21) (27)
|
1,440
|
1,440
|
0
|
0
|
||||||||||||||||
Sylvia
Karayan(21) (27)
|
1,646
|
1,646
|
0
|
0
|
||||||||||||||||
Abdul
Ladha (27)
|
4,114
|
4,114
|
0
|
0
|
||||||||||||||||
Jody
Samuels(21) (27)
|
8,227
|
8,227
|
0
|
0
|
||||||||||||||||
Yossi
Stern (27)
|
10,284
|
10,284
|
0
|
0
|
||||||||||||||||
Steve
Yakubov
|
10,284
|
10,284
|
0
|
0
|
||||||||||||||||
TOTAL
|
14,065,747
|
5,629,386
|
13,030,747
|
995,000
|
8.9
|
%
|
Name of Beneficial Owner
|
Amount and
Nature of
Beneficial
Ownership
|
Percent
Of
Class
|
||||||
Lawrence
W. Gadbaw (1)
|
139,563
|
1.5
|
%
|
|||||
Kevin
R. Davidson (2)
|
573,219
|
5.9
|
%
|
|||||
Chad
A. Ruwe (3)(11)
|
821,429
|
8.7
|
%
|
|||||
Peter
L. Morawetz (4)
|
107,739
|
1.2
|
%
|
|||||
Thomas
J. McGoldrick (5)
|
23,942
|
*
|
%
|
|||||
Andrew
P. Reding (6)
|
23,942
|
*
|
%
|
|||||
Kirsten
Doerfert (14)
|
75,000
|
*
|
%
|
|||||
James
Dauwalter Living Trust (9)(11)
|
801,429
|
8.7
|
%
|
|||||
Carl
Schwartz (7)(11)
|
500,000
|
5.4
|
%
|
|||||
Bernard
Puder Revocable Trust (8)
|
430,000
|
4.7
|
%
|
|||||
James
R. Taylor IV (10) (11)
|
571,429
|
6.2
|
%
|
|||||
Nimish
Patel (12)
|
687,592
|
7.4
|
%
|
|||||
Erick
Richardson (13)
|
674,724
|
7.2
|
%
|
|||||
Total
|
5,430,008
|
58.1
|
%
|
|||||
All
directors and executive officers as a group (8
persons)
|
2,566,263
|
25.7
|
%
|
|
(1)
|
Includes 139,563 shares of common
stock. Does not include an option to purchase 160,000 shares at $.35 per
shares to be issued upon the Company raising an additional $3 million in
equity. Mr. Gadbaw does not currently have any outstanding options to
acquire additional shares of common stock of the
Company.
|
|
(2)
|
Includes (i) 29,927 shares of
common stock and (ii) options to acquire up to an additional 543,292
shares of common stock of the Company, all of which are presently
exercisable. Does not include an option to purchase 80,000 shares at $.35
per shares to be issued upon the Company raising an additional $3 million
in equity.
|
|
(3)
|
Includes
621,429 shares of common stock and options to acquire an additional
200,000 shares of common stock at $.35 per share that are presently
exercisable. Does not include (i) 621,429 shares of common stock
underlying warrants that are not exercisable within 60 days and (ii)
options to purchase 50,000 shares of common stock at $.35 per share that
are not exercisable until achievement of certain performance targets as
provided in Mr. Ruwe’s employment agreement.
|
|
(4)
|
Includes
107,739 shares of common stock but does not include an option to purchase
75,000 shares at $.35 per share to be issued upon the Company raising
an additional $3 million in equity.
|
|
(5)
|
Includes options to acquire up to
23,942 shares of common stock, which are presently exercisable, granted
pursuant to a director stock option agreement by and between Mr.
McGoldrick and the
Company.
|
|
(6)
|
Includes options to acquire up to
23,942 shares of common stock, which are presently exercisable, granted
pursuant to a director stock option agreement by and between Mr. Reding
and the Company.
|
|
(7)
|
Includes 500,000 shares of common
stock. Does not include 500,000 shares of common stock underlying warrants
that are not exercisable within 60
days.
|
|
(8)
|
Includes 430,000 shares of common
stock. Does not include 430,000 shares of common stock underlying warrants
that are not exercisable within 60
days.
|
|
(9)
|
Includes 771,429 shares of
common stock. Does not include 771,429 shares of common stock underlying
warrants that are not exercisable within 60 days. Includes an option to
purchase 30,000 shares held by David Dauwalter, the son of James
Dauwalter. Does not include an option to purchase 20,000 held
by David Dauwalter because they vest only upon achieving certain
performance conditions and are, therefore, not exercisable within 60
days.
|
|
(10)
|
Includes 571,429 shares of common
stock. Does not include 571,429 shares of common stock underlying warrants
that are not exercisable within 60
days.
|
|
(11)
|
These warrants are fully vested.
However they include a clause that prohibit the warrants to be exercised
if it would cause the holdings of such equity holder to be in excess of
4.99% of our total outstanding shares. The warrant holder may amend this
clause to eliminate this requirement. However, such clause will not take
effect until the 61 day after notice has been given. Consequently they
cannot exercise their warrants within 60 days of the current date, and
those warrants are not included in the total outstanding and percentage of
outstanding shares.
|
|
(12)
|
Includes 412,411 shares of common
stock, 45,595 shares of common stock underlying warrants and, 45,595
shares of common stock underlying convertible notes. Also includes 183,991
shares of common stock held by RP Capital LLC, for which Nimish Patel and
Erick Richardson have shared voting and dispositive control. Does not
include a warrant for 142,857 shares held by RP Capital LLC because these
warrants are not exercisable within 60 days. Does not include 60,714
shares of common stock held by Richardson & Patel LLP. The voting and
dispositive control of such shares are held by Mr. Douglas Gold. Mr. Patel
does not currently have options to acquire additional shares of common
stock of the Company.
|
|
(13)
|
Includes 399,543 shares of common
stock, 45,595 shares of common stock underlying warrants and, 45,595
shares of common stock underlying convertible notes. Also includes 183,991
shares of common stock held by RP Capital LLC, for which Nimish Patel and
Erick Richardson have shared voting and dispositive control. Does not
include a warrant for 142,857 shares held by RP Capital LLC because these
warrants are not exercisable within 60 days. Does not include 60,714
shares of common stock held by Richardson & Patel LLP. The voting and
dispositive control of such shares are held by Mr. Douglas Gold. Mr. Patel
does not currently have options to acquire additional shares of common
stock of the Company.
|
(14)
|
Includes
a warrant to purchase 15,000 shares at $.46 per share and an option to
purchase 60,000 shares at $.35 per share. Does not include an option to
purchase 40,000 shares at $.35 per share that are not excercisable until
achievement of certain performance targets as provided in Ms. Doerfert’s
employment agreement.
|
Conversion
Price
|
||||||||
0.274151
|
||||||||
Shares
of
|
||||||||
Name
|
Amount
|
Stock
|
||||||
Core
Fund Mgmt LP
|
$
|
50,000
|
182,381
|
|||||
C.
James Jensen
|
50,000
|
182,381
|
||||||
Steve
Andress
|
10,000
|
36,476
|
||||||
Kendall
Morrison
|
10,000
|
36,476
|
||||||
EGATNIV,
LLC
|
25,000
|
91,191
|
||||||
Erick
Richardson
|
12,500
|
45,595
|
||||||
Nimish
Patel
|
12,500
|
45,595
|
||||||
Total
|
$
|
170,000
|
620,095
|
(1)
|
has
not been indemnified by another organization or employee benefit plan for
the same judgments, penalties, fines, including, without limitation,
excise taxes assessed against the person with respect to an employee
benefit plan, settlements, and reasonable expenses, including attorneys’
fees and disbursements, incurred by the person in connection with the
proceeding with respect to the same acts or
omissions;
|
(2)
|
acted
in good faith;
|
(3)
|
received
no improper personal benefit and Section 302A.255, if applicable, has been
satisfied;
|
(4)
|
in
the case of a criminal proceeding, had no reasonable cause to believe the
conduct was unlawful;
and
|
(5)
|
in
the case of acts or omissions occurring in the person’s performance in the
official capacity of director or, for a person not a director, in the
official capacity of officer, board committee member or employee,
reasonably believed that the conduct was in the best interests of the
corporation or, in the case of performance by a director, officer or
employee of the corporation involving service as a director, officer,
partner, trustee, employee or agent of another organization or employee
benefit plan, reasonably believed that the conduct was not opposed to the
best interests of the corporation. If the person’s acts or omissions
complained of in the proceeding relate to conduct as a director, officer,
trustee, employee, or agent of an employee benefit plan, the conduct is
not considered to be opposed to the best interests of the corporation if
the person reasonably believed that the conduct was in the best interests
of the participants or beneficiaries of the employee benefit
plan
|
(1)
|
by
the board by a majority of a quorum, if the directors who are at the time
parties to the proceeding are not counted for determining either a
majority or the presence of a
quorum;
|
(2)
|
if
a quorum under clause (1) cannot be obtained, by a majority of a committee
of the board, consisting solely of two or more directors not at the time
parties to the proceeding, duly designated to act in the matter by a
majority of the full board including directors who are
parties;
|
(3)
|
if
a determination is not made under clause (1) or (2), by special legal
counsel, selected either by a majority of the board or a committee by vote
pursuant to clause (1) or (2) or, if the requisite quorum of the full
board cannot be obtained and the committee cannot be established, by a
majority of the full board including directors who are
parties;
|
(4)
|
if
a determination is not made under clauses (1) to (3), by the affirmative
vote of the shareholders required by Section 302A.437 of the Minnesota
Statutes, but the shares held by parties to the proceeding must not be
counted in determining the presence of a quorum and are not considered to
be present and entitled to vote on the determination;
or
|
(5)
|
if
an adverse determination is made under clauses (1) to (4) or under
paragraph (b), or if no determination is made under clauses (1) to (4) or
under paragraph (b) within 60 days after (i) the later to occur of the
termination of a proceeding or a written request for indemnification to
the corporation or (ii) a written request for an advance of expenses, as
the case may be, by a court in this state, which may be the same court in
which the proceeding involving the person’s liability took place, upon
application of the person and any notice the court requires. The person
seeking indemnification or payment or reimbursement of expenses pursuant
to this clause has the burden of establishing that the person is entitled
to indemnification or payment or reimbursement of
expenses.
|
Page
|
||||
Financial
Statements:
|
85
|
|||
Report of Independent Registered Public Accounting
Firm
|
F-1
|
|||
Balance Sheets
|
F-2
|
|||
Statements of Operations
|
F-3
|
|||
Statements of Changes in Stockholders’
Deficit
|
F-4
|
|||
Statements of Cash Flows
|
F-5
|
|||
Notes to Financial
Statements
|
F-6
|
June
30,
|
December
31,
|
|||||||||||
2009
|
2008
|
2007
|
||||||||||
ASSETS
|
(Unaudited) | (Restated) | (Restated) | |||||||||
Current Assets: | ||||||||||||
Cash
|
$ | 235,227 | $ | 463,838 | 4,139 | |||||||
Prepaid expense and other
assets
|
6,166 | 7,974 | 4,558 | |||||||||
Accounts receivable
|
15,737 | - | - | |||||||||
Restricted cash in escrow (See Note
4)
|
163,333 | 163,333 | - | |||||||||
Total Current Assets
|
420,463 | 635,145 | 8,737 | |||||||||
Fixed assets, net
|
10,475 | 11,689 | - | |||||||||
Intangibles, net
|
141,532 | 142,145 | 112,456 | |||||||||
Total Assets
|
$ | 572,470 | $ | 788,979 | $ | 121,283 | ||||||
LIABILITIES AND SHAREHOLDERS'
DEFICIT
|
||||||||||||
Current Liabilities:
|
||||||||||||
Current portion of long term debt (See Note
8)
|
$ | 17,620 | $ | 17,620 | $ | 33,800 | ||||||
Current portion of convertible debt, net of
discount of $30,899 in 2007
|
170,000 | 170,000 | 139,101 | |||||||||
Accounts payable
|
649,445 | 497,150 | 207,148 | |||||||||
Accrued expenses
|
274,642 | 305,248 | 341,429 | |||||||||
Convertible
debenture
|
10,000 | 10,000 | 10,000 | |||||||||
Total Current
Liabilites
|
1,121,707 | 1,000,018 | 731,478 | |||||||||
Long term debt and convertible debt, net of
discounts
|
||||||||||||
of $21,631, $26,157 and $34,206 (See Note
8)
|
96,235 | 98,406 | 102,302 | |||||||||
Liability for equity-linked financial
instruments (See Note 12)
|
1,086,186 | - | - | |||||||||
Commitments and contingencies (See Note
9)
|
- | - | - | |||||||||
Stockholders
Deficit:
|
||||||||||||
Common stock, 40,000,000 authorized, 9,225,841,
8,130,841, and 823,676 outstanding
|
92,258 | 81,308 | 8,237 | |||||||||
Additional paid-in
capital
|
2,736,946 | 2,753,039 | 660,430 | |||||||||
Deficit accumulated during development
stage
|
(4,560,862 | ) | (3,143,792 | ) | (1,381,164 | ) | ||||||
Total Shareholder'
Deficit
|
(1,731,658 | ) | (309,445 | ) | (712,497 | ) | ||||||
Total Liabilities and Shareholders'
Deficit
|
$ | 572,470 | $ | 788,979 | $ | 121,283 |
Period From
|
||||||||||||||||||||
April 23, 2002
|
||||||||||||||||||||
(Inception)
|
||||||||||||||||||||
Year ended December
31,
|
Six Months Ended June
30,
|
To June 30,
|
||||||||||||||||||
2008
|
2007
|
2009
|
2008
|
2009
|
||||||||||||||||
(Restated)
|
(Restated)
|
(Unuadited)
|
(Unuadited)
|
(Restated)
|
||||||||||||||||
Sales
|
$
|
-
|
$
|
-
|
$
|
15,737
|
$ |
-
|
$
|
15,737
|
||||||||||
Cost of goods sold
|
-
|
-
|
7,450
|
-
|
7,450
|
|||||||||||||||
Gross margin
|
-
|
-
|
8,287
|
-
|
8,287
|
|||||||||||||||
General and administrative
expense
|
1,316,398
|
636,517
|
552,839
|
409,159
|
2,982,979
|
|||||||||||||||
Operations expense
|
321,205
|
1,434
|
194,926
|
91,449
|
648,800
|
|||||||||||||||
Sales and marketing
expense
|
35,682
|
13,392
|
208,503
|
210
|
257,578
|
|||||||||||||||
Interest expense
|
89,343
|
101,071
|
39,320
|
7,001
|
250,023
|
|||||||||||||||
Loss on valuation of
equity-linked
|
||||||||||||||||||||
financial
instruments
|
-
|
-
|
436,423
|
-
|
429,769
|
|||||||||||||||
|
|
|
|
|
||||||||||||||||
Total expense
|
1,762,628
|
752,414
|
1,432,011
|
507,819
|
4,569,149
|
|||||||||||||||
Net loss available
to
|
$
|
(1,762,628
|
)
|
$
|
(752,414
|
)
|
$
|
(1,423,724
|
)
|
$
|
(507,819
|
)
|
$
|
(4,560,862
|
)
|
|||||
common
shareholders
|
||||||||||||||||||||
Loss per common
share
|
||||||||||||||||||||
basic and
diluted
|
$
|
(0.41
|
)
|
$
|
(0.91
|
)
|
$
|
(0.17
|
)
|
$
|
(0.38
|
)
|
$
|
(2.54
|
)
|
|||||
Weighted average shares used
in
|
||||||||||||||||||||
computation, basic and
diluted
|
4,335,162
|
823,676
|
8,531,200
|
1,349,506
|
1,793,898
|
Accumulated
|
||||||||||||||||||||
Shares
|
Amount
|
Paid-in
Capital
|
Deficit
|
Total
|
||||||||||||||||
Issuance
of common stock 9/1/02, $.0167 (1)
|
598,549 | $5,985 | $4,015 | $- | $10,000 | |||||||||||||||
- | ||||||||||||||||||||
Issuance
of common 10/23/02, $1.67/share
|
2,993 | 30 | 4,970 | 5,000 | ||||||||||||||||
Net
loss
|
(51,057 | ) | (51,057 | ) | ||||||||||||||||
Balance
12/31/02
|
601,542 | $6,015 | $8,985 | $(51,057 | ) | $(36,057 | ) | |||||||||||||
Issuance
of common 2/12/03, $.0167 (2)
|
23,942 | 239 | 161 | 400 | ||||||||||||||||
Issuance
o common 6/11&12,$1.67 (3)
|
21,548 | 216 | 34,784 | 35,000 | ||||||||||||||||
Net
Loss
|
(90,461 | ) | (90,461 | ) | ||||||||||||||||
Balance
12/31/03
|
647,032 | $6,470 | $43,930 | $(141,518 | ) | $(91,118 | ) | |||||||||||||
Issuance
of common 5/25/04, $.0167 (4)
|
6,567 | 66 | 44 | 110 | ||||||||||||||||
Net
Loss
|
(90,353 | ) | (90,353 | ) | ||||||||||||||||
Balance
12/31/04
|
653,599 | $6,536 | $43,974 | $(231,871 | ) | $(181,361 | ) | |||||||||||||
Issuance
of common 12/14/05, $.0167 (5)
|
14,964 | 150 | 100 | 250 | ||||||||||||||||
Vested
stock options and warrants
|
2,793 | 2,793 | ||||||||||||||||||
Net
Loss
|
(123,852 | ) | (123,852 | ) | ||||||||||||||||
Balance
12/31/05
|
668,563 | $6,686 | $46,867 | $(355,723 | ) | $(302,170 | ) | |||||||||||||
Issuance
of common 5/16 & 8/8, $.0167 (6)
|
86,869 | 869 | 582 | 1,451 | ||||||||||||||||
Issuance
of common 10/19 & 23, $.0167 (7)
|
38,906 | 389 | 261 | 650 | ||||||||||||||||
Issuance
of common 12/01, $1.67 (8)
|
28,739 | 287 | 44,523 | 44,810 | ||||||||||||||||
Vested
stock options and warrants
|
13,644 | 13,644 | ||||||||||||||||||
Net
Loss
|
(273,026 | ) | (273,026 | ) | ||||||||||||||||
Balance
12/31/06
|
823,077 | $8,231 | $105,877 | $(628,749 | ) | $(514,641 | ) | |||||||||||||
Issuance
of common 1/30/07 @ 1.67 (9)
|
599 | 6 | 994 | 1,000 | ||||||||||||||||
Value
of equity instruments issued with debt
|
132,938 | 132,938 | ||||||||||||||||||
Capital
contributions resulting from waivers of debt
|
346,714 | 346,714 | ||||||||||||||||||
Vested
stock options and warrants
|
73,907 | 73,907 | ||||||||||||||||||
Net
loss
|
(752,415 | ) | (752,415 | ) | ||||||||||||||||
Balance
12/31/07
|
823,676 | $8,237 | $660,430 | $(1,381,164 | ) | $(712,497 | ) | |||||||||||||
Issuance
of common 6/11 to 9/30, $.35 (10)
|
4,552,862 | 45,528 | 1,547,974 | 1,593,502 | ||||||||||||||||
Shares
issued to finders, agents
|
2,012,690 | 20,127 | (20,127 | ) | - | |||||||||||||||
Shares
issued to pay direct legal fees
|
285,714 | 2,857 | (2,857 | ) | ||||||||||||||||
Issuance
of common due to antidilution provisions
|
205,899 | 2,059 | (2,059 | ) | - | |||||||||||||||
Shares
issued to pay investor relations
|
||||||||||||||||||||
services 6/23/08,
$.35
|
250,000 | 2,500 | 85,000 | 87,500 | ||||||||||||||||
Vested
stock options and warrants
|
354,994 | 354,994 | ||||||||||||||||||
Capital
contributions resulting from waivers of debt
|
129,684 | 129,684 | ||||||||||||||||||
Net
loss
|
(1,762,628 | ) | (1,762,628 | ) | ||||||||||||||||
Balance
12/31/08
|
8,130,841 | $81,308 | $2,753,039 | $(3,143,792 | ) | $(309,445 | ) | |||||||||||||
Cumulative
effect of adoption of EITF 07-5
|
(486,564 | ) | 6,654 | (479,910 | ) | |||||||||||||||
Vested
stock options and warrants
|
81,676 | 81,676 | ||||||||||||||||||
Shares
issued 3/20/09 to pay for fund raising
|
125,000 | 1,250 | (1,250 | ) | - | |||||||||||||||
Shares
issued under PPM in April 2009, $.50
|
700,000 | 7,000 | 343,000 | 350,000 | ||||||||||||||||
Shares
issued under PPM in May 2009, $.50
|
220,000 | 2,200 | 107,800 | 110,000 | ||||||||||||||||
Shares
issued under PPM in June 2009, $.50
|
50,000 | 500 | 24,500 | 25,000 | ||||||||||||||||
Capital
contributions resulting from waivers of debt
|
84,600 | 84,600 | ||||||||||||||||||
Value
of equity-linked financial instruments issued
|
(169,855 | ) | (169,855 | ) | ||||||||||||||||
in
connection with PPM
|
||||||||||||||||||||
Net
Loss
|
(1,423,724 | ) | (1,423,724 | ) | ||||||||||||||||
Balance
6/30/09 (unaudited)
|
9,225,841 | $92,258 | $2,736,946 | $(4,560,862 | ) | $(1,731,658 | ) | |||||||||||||
(1)
|
Founders
shares, 1,000,000 pre-split
|
(2)
|
23,492
(40,000 pre-split) shares valued at $.0167 per share as compensation for
loan guarantees by management
|
(3)
|
Investment
including 670 shares issued as a 10% finders
fee
|
(4)
|
For
payment of patent legal fees
|
(5)
|
Compensation
for loan guarantees by
management
|
(6)
|
For
vendor contractual
consideration
|
(7)
|
Employment
agreements
|
(8)
|
Investment
|
(9)
|
Conversion
of convertible notes by management
|
(10)
|
Investment,
"October 2008 financing".
|
April
23,
|
||||||||||||||||||||
2002
|
||||||||||||||||||||
(Inception)
|
||||||||||||||||||||
Year
Ended December 31,
|
Six
Months Ended June 30,
|
To
June 30,
|
||||||||||||||||||
2008
|
2007
|
2009
|
2008
|
2009
|
||||||||||||||||
(Restated)
|
(Restated)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||||||||
Cash
flow from operating activities:
|
||||||||||||||||||||
Net
loss
|
$(1,762,628 | ) | $ | $(752,414 | ) | $ | (1,423,725 | ) | $ | (507,818 | ) | $ | (4,560,862 | ) | ||||||
Adjustments
to reconcile net loss to
|
||||||||||||||||||||
net
cash used in operating activities:
|
||||||||||||||||||||
Depreciation
and amortization
|
569 | 47 | 1,827 | - | 2,746 | |||||||||||||||
Vested
stock options and warrants
|
354,994 | 73,907 | 81,675 | 6,084 | 527,004 | |||||||||||||||
Stock
issued for consulting services
|
87,500 | 87,500 | ||||||||||||||||||
Conversion
of accrued liabilites to capital
|
129,684 | 346,714 | 84,600 | - | 560,998 | |||||||||||||||
Amortization
of debt discount
|
38,948 | 67,833 | 4,526 | - | 111,307 | |||||||||||||||
Loss
on valuation of equity-linked instruments
|
436,423 | - | 429,769 | |||||||||||||||||
Changes
in assets and liabilities:
|
||||||||||||||||||||
Accounts
receivable
|
- | - | (15,737 | ) | - | (15,737 | ) | |||||||||||||
Prepaid
expense and other
|
(3,417 | ) | (4,287 | ) | 1,808 | (6,792 | ) | (6,166 | ) | |||||||||||
Notes
payable to shareholders
|
- | (10,973 | ) | - | (8,500 | ) | (10,964 | ) | ||||||||||||
Accounts
payable
|
290,003 | 126,616 | 152,293 | 43,801 | 649,445 | |||||||||||||||
Accrued
expenses
|
(36,181 | ) | (72,092 | ) | (30,586 | ) | 63,684 | 274,642 | ||||||||||||
Net
cash used in operating activities:
|
(900,528 | ) | (224,649 | ) | (706,895 | ) | (409,541 | ) | (1,950,318 | ) | ||||||||||
Cash
flow from investing activities:
|
||||||||||||||||||||
Purchase
of fixed assets
|
(12,258 | ) | - | - | - | (12,258 | ) | |||||||||||||
Purchase
of intangibles
|
(29,599 | ) | (45,583 | ) | - | (5,796 | ) | (142,495 | ) | |||||||||||
Net
cash used in investing activities
|
(41,857 | ) | (45,583 | ) | - | (5,796 | ) | (154,753 | ) | |||||||||||
Cash
flow from financing activities:
|
||||||||||||||||||||
Proceeds
from long term debt
|
- | 264,000 | - | - | 421,505 | |||||||||||||||
Principal
payments on long term debt
|
(28,125 | ) | (1,592 | ) | (6,697 | ) | (18,065 | ) | (95,046 | ) | ||||||||||
Restricted
cash in escrow
|
(163,333 | ) | - | - | (163,333 | ) | (163,333 | ) | ||||||||||||
Issuance
of common stock
|
1,593,502 | (1) | 11,000 | 485,000 | 941,898 | 2,177,173 | ||||||||||||||
Net
cash provided by (used in) financing activities
|
1,402,044 | 273,408 | 478,303 | 760,500 | 2,340,299 | |||||||||||||||
Net
increase (decrease) in cash
|
459,659 | 3,176 | (228,591 | ) | 345,162 | 235,227 | ||||||||||||||
Cash
at beginning of period
|
4,179 | 1,003 | 463,818 | 4,179 | - | |||||||||||||||
Cash
at end of period
|
$463,838 | $4,179 | $235,227 | $349,341 | $235,227 | |||||||||||||||
Supplemental
disclosure:
|
||||||||||||||||||||
Non-cash
financing activities:
|
||||||||||||||||||||
Discount
of issuance of debt
|
$ | - | $132,938 | $ | - | $ | - | $132,938 | ||||||||||||
(1)
|
All
funds were a part of the October 2008 financing at $.35 per unit, which
included one share of common stock and one warrant to purchase and an
equal number of shares at $.46 per share.
|
Years
|
||||
Computers
and office equipment
|
3
|
|||
Furniture
and fixtures
|
5
|
|
Stock Options (1)
|
Warrants (1)
|
||||||||||||||
|
Number of
Shares
|
Average
Exercise
Price
|
Number of
Shares
|
Average
Exercise
Price
|
||||||||||||
Outstanding
at December 31, 2005
|
17,956
|
|
$1.67 |
20,950
|
|
$2.62 | ||||||||||
Issued
|
23,942
|
1.67
|
71,826
|
0.85
|
||||||||||||
Outstanding
at December 31, 2006
|
41,898
|
|
$1.67 |
92,776
|
|
$1.25 | ||||||||||
Issued
|
5,984
|
1.67
|
28,502
|
0.35
|
||||||||||||
Outstanding
at December 31, 2007
|
47,882
|
|
$1.67 |
121,278
|
|
$1.04 | ||||||||||
Issued
|
1,243,292
|
0.20
|
5,075,204
|
0.45
|
||||||||||||
Expired
|
(11,971)
|
3.76
|
||||||||||||||
Outstanding
at December 31, 2008
|
1,291,174
|
|
$0.26 |
5,184,511
|
0.45
|
|||||||||||
Issued
|
175,000
|
0.35
|
635,095
|
0.35
|
||||||||||||
Outstanding
at June 30, 2009
|
1,466,174
|
0.27
|
6,839,606
|
0.48
|
|
(1)
|
Adjusted for the reverse stock
splits in total at June 6, 2008 and October 20, 2008. There
were no options or warrants exercised in the
periods.
|
Year
|
Options
|
Fair Value
|
||||||
2005
|
17,956
|
|
$0.671 | |||||
2006
|
23,942
|
|
$0.682 | |||||
2007
|
5,984
|
|
$0.687 | |||||
2008
|
1,243,292
|
|
$0.232 | |||||
2009
|
175,000
|
|
$0.141 | |||||
Total
|
1,466,174
|
|
$0.236 |
Year
|
Fair value vested
|
|||
2005
|
|
$1,673 | ||
2006
|
|
$12,919 | ||
2007
|
|
$71,038 | ||
2008
|
|
$220,287 | ||
2009
|
|
$48,956 | ||
Total
|
|
$354,873 |
Range of Exercise Prices
|
Shares
|
Weighted
Average
Remaining
Life
|
||||||
Options
|
||||||||
$0.01
|
$
|
543,292
|
$
|
9.43
|
||||
$0.35
|
700,000
|
4.46
|
||||||
$1.67
|
47,882
|
2.50
|
||||||
Total
|
1,291,174
|
|||||||
Warrants
|
||||||||
$0.02
|
71,826
|
5.45
|
||||||
$0.35
|
178,502
|
4.29
|
||||||
$0.46
|
4,889,291
|
2.57
|
||||||
$1.67
|
44,892
|
2.69
|
||||||
Total
|
5,184,511
|
Range of Exercise Prices
|
Shares
|
Weighted
Average
Remaining
Life
|
||||||
Options
|
||||||||
$0.01
|
$
|
543,292
|
$
|
8.94
|
||||
$0.35
|
875,000
|
4.12
|
||||||
$1.67
|
47,882
|
2.26
|
||||||
Total
|
1,466,174
|
|||||||
Warrants
|
||||||||
$0.02
|
71,826
|
4.95
|
||||||
$0.35
|
798,597
|
3.29
|
||||||
$0.46
|
4,954,291
|
2.05
|
||||||
$0.65
|
970,000
|
2.83
|
||||||
$1.67
|
44,892
|
2.19
|
||||||
Total
|
6,839,606
|
Stock Options:
|
December 31, 2008
|
|||||||
Year
|
Shares
|
Price
|
||||||
2005
|
17,956
|
$ |
1.67
|
|||||
2006
|
23,942
|
1.67
|
||||||
2007
|
5,984
|
.35-1.67
|
||||||
2008
|
1,243,292
|
.01-.35
|
||||||
Total
|
1,291,174
|
$ |
.01-$1.67
|
|||||
Warrants:
|
||||||||
Year
|
Shares
|
Price
|
||||||
2005
|
8,979
|
$ |
1.67
|
|||||
2006
|
71,826
|
.02-1.67
|
||||||
2007
|
28,502
|
.35
|
||||||
2008
|
5,075,204
|
.02-.46
|
||||||
Total
|
5,184,511
|
$ |
.02-$1.67
|
|||||
Stock
Options:
|
June
30, 2009
|
|||||||
Year
|
Shares
|
Price
|
||||||
2005
|
17,956
|
|
$1.67 | |||||
2006
|
23,942
|
1.67
|
||||||
2007
|
5,984
|
.35-1.67
|
||||||
2008
|
1,243,292
|
.01-.35
|
||||||
2009
|
175,000
|
.35
|
||||||
Total
|
1,466,174
|
|
$.01-$1.67 | |||||
Warrants:
|
||||||||
Year
|
Shares
|
Price
|
||||||
2005
|
8,979
|
|
$1.67 | |||||
2006
|
71,826
|
.02-1.67
|
||||||
2007
|
28,502
|
.35
|
||||||
2008
|
5,075,204
|
.02-.46
|
||||||
2009
|
1,655,095
|
.35-.65
|
||||||
Total
|
6,839,606
|
|
$.02-$1.67 |
From April
23,
|
||||||||||||||||||||
Year Ended December 31,
|
Six Months Ended
|
2002 To
|
||||||||||||||||||
2008
|
2007
|
June
30,
2009
|
June
30,
2008
|
June
30,
2009
|
||||||||||||||||
(Restated)
|
(Restated)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||||||||
Numerator:
|
||||||||||||||||||||
Net
Loss available in basic and diluted calculation
|
|
$1,762,628 |
|
$752,414 |
|
$1,423,724 |
|
$507,819 |
|
$4,560,862 | ||||||||||
Denominator:
|
||||||||||||||||||||
Weighted
average common shares oustanding-basic
|
4,335,162
|
823,627
|
8,531,200
|
1,349,506
|
1,793,898
|
|||||||||||||||
Effect
of dilutive stock options and warrants (1)
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||
Weighted
average common shares outstanding-diluted
|
4,335,162
|
823,627
|
8,531,200
|
1,349,506
|
1,793,898
|
|||||||||||||||
Loss
per common share-basic and diluted
|
|
$0.41 |
|
$0.91 |
|
$0.17 |
|
$0.38 |
|
$2.54 |
December 31 ,
|
June
30,
|
|||||||||||
2008
|
2007
|
2009
|
||||||||||
(Unaudited)
|
||||||||||||
Deferred
Tax Asset:
|
||||||||||||
Net
Operating Loss
|
|
$747,000 |
|
$321,000 | $ |
1,073,000
|
||||||
Total
Deferred Tax Asset
|
747,000
|
321,000
|
1,073,000
|
|||||||||
Less
Valuation Allowance
|
747,000
|
321,000
|
1,073,000
|
|||||||||
Net
Deferred Income Taxes
|
|
$— |
|
$— |
—
|
December 31,
|
June
30,
|
|||||||||||
2008
|
2007
|
2009
|
||||||||||
(Unaudited)
|
||||||||||||
Notes
payable to seven individuals due April 2008 including 8% fixed interest
and are now delinquent. The 2007 balance is shown net of a $30,899 debt
discount based upon the Black-Scholes valuation assigned to the warrants
issued in connection with the debt. The notes are convertible into 620,095
shares of the Company’s common stock and automatically convert at the
effective date of this registration statement.
|
|
$170,000 |
|
$139,101 |
|
$170,000 | ||||||
Note
payable to bank in monthly installments of $1,275/including variable
interest at 2% above the prevailing prime rate (3.25% at December 31,
2008) to August 2011 when the remaining balance is payable. The note is
personally guaranteed by former executives of the
Company.
|
38,183
|
48,308
|
31,486
|
|||||||||
Note
payable to NWBDC with interest only payments at 8% to December 2008 when
the remaining balance is payable. The note was personally guaranteed by
former executives of the Company. The note was paid in full on June 24,
2008.
|
—
|
18,000
|
—
|
|||||||||
Notes
payable to two individuals, net of discounts of $26,157, $34,205 and
$23,643 with interest only payments at 12% to March 2012 when the
remaining balance is payable. The notes are convertible into 285,715
shares of stock in the Company at $.35 per share.
|
73,843
|
65,794
|
78,369
|
|||||||||
Notes
payable to four shareholders of the Company that are overdue. The notes
are convertible into 11,429 shares of stock in the Company at $.35 per
share.
|
4,000
|
4,000
|
4,000
|
|||||||||
Total
|
286,026
|
275,203
|
283,855
|
|||||||||
Less
amount due within one year
|
187,620
|
172,901
|
187,620
|
|||||||||
Long-Term
Debt
|
|
$98,406 |
|
$102,302 |
$
|
$96,235 |
2009 -
|
$ | 197,620 | ||
2010 -
|
$ | 14,353 | ||
2011 -
|
$ | 10,210 | ||
2012 -
|
$ | 100,000 | ||
2013 -
|
$ | 0 |
2009
|
$
|
35,000
|
||
2010
|
29,000
|
|||
2011
|
30,000
|
|||
2012
|
30,000
|
|||
2013
|
26,000
|
2007 Restatement
|
||||||||||||
As Originally
|
As
|
Net
|
||||||||||
Reported
|
Restated
|
Change
|
||||||||||
Balance Sheet
|
||||||||||||
Current
portion of convertible debt, net of discounts (4)(5)
|
$
|
170,000
|
$
|
139,101
|
$
|
(30,899
|
)
|
|||||
Accrued
expenses (3)
|
$
|
226,429
|
$
|
341,429
|
$
|
115,000
|
||||||
Long-term
debt and convertible debt, (6)(7)
|
$
|
136,508
|
$
|
102,302
|
$
|
(34,206
|
)
|
|||||
net
of discounts
|
||||||||||||
Additional
paid-in capital (1)(2)(4)(6)
|
$
|
117,833
|
$
|
660,430
|
$
|
542,597
|
||||||
Deficit
accumulated during development stage (1)(2)(3)(5)(7)
|
$
|
(788,701)
|
$
|
(1,381,164)
|
$ |
(592,492)
|
||||||
As
Originally
|
As
|
Net
|
||||||||||
Reported
|
Restated
|
Change
|
||||||||||
Income Statement
|
||||||||||||
General
and administrative expense (1)(2)(3)
|
111,858
|
636,517
|
524,659
|
|||||||||
Interest
expense (5)(7)
|
33,238
|
101,071
|
67,833
|
|||||||||
Total
|
$
|
159,922
|
$
|
752,414
|
$
|
592,492
|
||||||
Loss
per share
|
$
|
(0.19
|
)
|
$
|
(0.91
|
)
|
$
|
(0.72
|
)
|
|||
Weighted
average shares used in the computation of basic and diluted loss per share
|
823,627
|
823,627
|
-
|
2008 Restatement
|
||||||||||||
As Originally
|
As
|
Net
|
||||||||||
Reported
|
Restated
|
Change
|
||||||||||
Balance
Sheet
|
||||||||||||
Accrued
expenses (9)(14)
|
$
|
280,248
|
$
|
305,248
|
$
|
25,000
|
||||||
Long-term
debt and convertible debt, (10)(11)(12)(13)
|
$
|
99,608
|
$
|
98,406
|
$
|
(1,202
|
)
|
|||||
net
of discounts
|
||||||||||||
Additional
paid-in capital (8)(10)(12)(15)(16)
|
$
|
2,171,080
|
$
|
2,753,039
|
$
|
581,959
|
||||||
Deficit
accumulated during development stage (8)(9)(11)(13)(14)(15)(16)
|
$
|
(2,538,035)
|
$ |
(3,143,792)
|
$ |
(605,756)
|
||||||
As
Originally
|
As
|
Net
|
||||||||||
Reported
|
Restated
|
Change
|
||||||||||
Income
Statement
|
||||||||||||
Operations
expense (16)
|
$
|
318,066
|
$
|
321,205
|
$
|
3,139
|
||||||
Sales
and marketing expense (16)
|
35,199
|
35,682
|
483
|
|||||||||
General
and administrative expense (8)(9)(14)(15)(16)
|
1,278,937
|
1,316,398
|
37,461
|
|||||||||
Interest
expense (11)(13)
|
117,162
|
89,343
|
(27,819
|
)
|
||||||||
Total
|
$
|
1,749,364
|
$
|
1,762,628
|
$
|
13,264
|
||||||
Loss
per share
|
$
|
(0.40
|
)
|
$
|
(0.41
|
)
|
$
|
(0.01
|
)
|
|||
Weighted
average shares used in the computation of basic and diluted loss per share
|
4,335,162
|
4,335,162
|
-
|
Paid-in
|
Accrued
|
Accumulated
|
|||||||||||||||
2007
|
Capital
|
Expenses
|
Debt
|
Deficit
|
|||||||||||||
$
|
(346,714
|
)
|
$
|
346,714
|
(1)
Reverse credit to salary expense for waived salaries, credit this amount
as a capital contribution.
|
||||||||||||
(62,945
|
)
|
62,945
|
(2)
Record FAS 123R value of stock options granted to Gadbaw, Rice and
Davidson
|
||||||||||||||
(115,000
|
)
|
115,000
|
(3)
Accrue salary expense for the estimated payout to Gadbaw, Rice and
Davidson upon raising $3 million
|
||||||||||||||
(92,696
|
)
|
92,696
|
(4)
Record the Black-Scholes value of the debt discount computed on the July
2007 convertible bridge loan
|
||||||||||||||
(61,797
|
)
|
61,797
|
(5)
Record amortization of interest expense for July 2007 through December
2007 on bridge loan debt discount
|
||||||||||||||
(40,242
|
)
|
40,242
|
(6)
Record the Black-Scholes value of the debt discount computed on the March
2007 Moore loans
|
||||||||||||||
(6,036
|
)
|
6,036
|
(7)
Record amortization of interest expense for March 2007 through December
2007 on Moore loan debt discount
|
||||||||||||||
Total
net change
|
$
|
(542,597
|
)
|
$
|
(115,000
|
)
|
$
|
65,105
|
$
|
592,492
|
|||||||
Paid-in
|
Accrued
|
Accumulated
|
|||||||||||||||
2008
|
Capital
|
Expenses
|
Debt
|
Deficit
|
|||||||||||||
27,533
|
(27,533
|
)
|
(8)
Reverse FAS 123R compensation expense previously expensed in 2008 on an
amortization schedule, entire amount has been expensed in restated 2007
financial statements
|
||||||||||||||
115,000
|
(115,000
|
)
|
(9)
Reverse accrued expense for Gadbaw, Rice and Davidson, this amount is
expensed in restated 2007 financials
|
||||||||||||||
53,328
|
(53,328
|
)
|
(10)
Reverse portion of debt discount on convertible bridge loan that was
applied to 2007 restated financials
|
||||||||||||||
22,430
|
(22,430
|
)
|
(11)
Reverse the portion of interest expense on debt discount amortization that
applies to 2007 restatement
|
||||||||||||||
38,392
|
(38,392
|
)
|
(12)
Reverse portion of debt discount on Moore loan that was applied to 2007
restated financials
|
||||||||||||||
5,389
|
(5,389
|
)
|
(13)
Reverse the portion of interest expense on Moore loan debt discount that
was applied to 2007 restatement
|
||||||||||||||
(25,000
|
)
|
25,000
|
(14)
Accrue the additional $25,000 that Gadbaw will receive upon raising $3
million in new equity
|
||||||||||||||
(129,685
|
)
|
129,685
|
(15)
Record capital contribution and salary expense for waived 2008 salaries
for Gadbaw, Rice and Davidson
|
||||||||||||||
(28,931
|
)
|
28,931
|
(16)
Record additional stock based compensation and consulting expense due to
revised expected volatility and revised expected term inputs to the
Black-Scholes model
|
||||||||||||||
1 |
(2
|
)
|
Rounding
|
||||||||||||||
Total
net change
|
$
|
(39,362
|
)
|
$
|
90,000
|
$
|
(63,903
|
)
|
$
|
13,264
|
|||||||
Cumulative change
|
$
|
(581,959
|
)
|
$
|
(25,000
|
)
|
$
|
1,202
|
$
|
605,756
|
|
(1)
|
has not been indemnified by
another organization or employee benefit plan for the same judgments,
penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements,
and reasonable expenses, including attorneys’ fees and
disbursements, incurred by the person in connection with the proceeding
with respect to the same acts or omissions;
|
(2)
|
acted in good
faith;
|
|
|
(3)
|
received no improper personal
benefit and Section 302A.255, if applicable, has been
satisfied;
|
|
(4)
|
in the case of a criminal
proceeding, had no reasonable cause to believe the conduct was unlawful;
and
|
|
(5)
|
in the case of acts or omissions
occurring in the person’s performance in the
official capacity of director or, for a person not a director, in the
official capacity of officer, board committee member or employee,
reasonably believed that the conduct was in the best interests of the
corporation or, in the case of performance by a director, officer or
employee of the corporation involving service as a director, officer,
partner, trustee, employee or agent of another organization or employee
benefit plan, reasonably believed that the conduct was not opposed to the
best interests of the corporation. If the person’s acts or omissions
complained of in the proceeding relate to conduct as a director, officer,
trustee, employee, or agent of an employee benefit plan, the conduct is
not considered to be opposed to the best interests of the corporation if
the person reasonably believed that the conduct was in the best interests
of the participants or beneficiaries of the employee benefit
plan.
|
|
(1)
|
by the board by a majority of a
quorum, if the directors who are at the time parties to the proceeding are
not counted for determining either a majority or the presence of a
quorum;
|
|
(2)
|
if a quorum under clause (1)
cannot be obtained, by a majority of a committee of the board, consisting
solely of two or more directors not at the time parties to the proceeding,
duly designated to act in the matter by a majority of the full board
including directors who are parties;
|
|
(3)
|
if a determination is not made
under clause (1) or (2), by special legal counsel, selected either by a
majority of the board or a committee by vote pursuant to clause (1) or (2)
or, if the requisite quorum of the full board cannot be obtained and the
committee cannot be established, by a majority of the full board including
directors who are parties;
|
|
(4)
|
if a determination is not made
under clauses (1) to (3), by the affirmative vote of the shareholders
required by Section 302A.437 of the Minnesota Statutes, but the shares
held by parties to the proceeding must not be counted in determining the
presence of a quorum and are not considered to be present and entitled to
vote on the determination; or
|
|
(5)
|
if an adverse determination is
made under clauses (1) to (4) or under paragraph (b), or if no
determination is made under clauses (1) to (4) or under paragraph (b)
within 60 days after (i) the later to occur of the termination of a
proceeding or a written request for indemnification to the corporation or
(ii) a written request for an advance of expenses, as the case may be, by
a court in this state, which may be the same court in which the proceeding
involving the person’s liability took
place, upon application of the person and any notice the court requires.
The person seeking indemnification or payment or reimbursement of expenses
pursuant to this clause has the burden of establishing that the person is
entitled to indemnification or payment or reimbursement of
expenses.
|
Amount
|
||||
SEC
Registration Fee
|
$
|
200
|
||
Printing
Fees
|
$
|
30,000
|
||
Legal
Fees and Expenses
|
$
|
80,000
|
||
Accounting
Fees and Expenses
|
$
|
60,000
|
||
Miscellaneous
|
$
|
55,000
|
||
Total
|
$
|
225,200
|
3.1
|
Articles
of Incorporation of the Registrant, as amended**
|
|
3.2
|
Bylaws
of the Registrant, as amended**
|
|
3.3
|
Amendment
to Articles**
|
|
5.1
|
Opinion
of Richardson & Patel LLP***
|
|
10.1
|
Form
of Employment Agreement by and between the Registrant and Kevin R.
Davidson dated October 4, 2006**
|
|
10.2
|
Form
of Employment Agreement by and between the Registrant and Gerald D. Rice
dated October 18, 2006**
|
|
10.3
|
Form
of Employment Agreement by and between the Registrant and Chad A. Ruwe
dated June 16, 2008**
|
|
10.4
|
Form
of Confidential Separation Agreement and Release by and between the
Registrant and Lawrence W. Gadbaw dated August 13,
2008**
|
|
10.5
|
Form
of Nondisclosure and Non-compete Agreement by and between the Registrant
and Lawrence W. Gadbaw dated October 18,
2006**
|
10.6
|
Form
of Stock Option Agreement by and between the Registrant and Kevin R.
Davidson dated June 5, 2008**
|
|
10.7
|
Form
of Director Stock Option Agreement between the Registrant and Thomas
McGoldrick dated August 22, 2006**
|
|
10.8
|
Form
of Director Stock Option Agreement between the Registrant and Andrew P.
Reding dated November 11, 2006**
|
|
10.9
|
Form
of Consulting Agreement by and between the Registrant and Jeremy Roll
dated February 29, 2008**
|
|
10.10
|
Form
of Consulting Agreement by and between the Registrant and Namaste
Financial, Inc. dated June 30, 2008**
|
|
10.11
|
Form
of Consulting Agreement by and between the Registrant and Marshall C. Ryan
and Mid-State Stainless, Inc. dated June 2008**
|
|
10.12
|
Form
of Investor Relations Agreement by and between the Registrant and Kulman
IR, LLC dated April 15, 2008**
|
|
10.13
|
Form
of Finder Agreement by and between the Registrant and Thomas Pronesti
dated March 10, 2008**
|
|
10.14
|
Form
of Patent Assignment by Marshall C. Ryan in favor of the Registrant dated
June 18, 2008**
|
|
10.15
|
Form
of Convertible Debenture by and between the Registrant and Kevin R.
Davidson dated February 2, 2007**
|
|
10.16
|
Form
of Convertible Debenture by and between the Registrant and Peter L.
Morawetz dated February 2, 2007**
|
|
10.17
|
Form
of Convertible Debenture by and between the Registrant and Andrew P.
Reding dated February 2, 2007**
|
|
10.18
|
Form
of Convertible Debenture by and between the Registrant and Thomas
McGoldrick dated January 30, 2007**
|
|
10.19
|
Form
of Convertible Debenture by and between the Registrant and Andcor
Companies, Inc. dated September 29, 2006**
|
|
10.20
|
Form
of Convertible Debenture by and between the Registrant and Carl Moore
dated March 1, 2007**
|
|
10.21
|
Form
of Convertible Debenture by and between the Registrant and Roy Moore dated
March 1, 2007**
|
|
10.22
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Debbie Heitzman dated August 31, 2005**
|
|
10.23
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Mary
Wells Gorman dated August 31,
2005**
|
10.24
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
David Feroe dated August 31, 2005**
|
|
10.25
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Dr.
Arnold S. Leonard dated June 12, 2006**
|
|
10.26
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Karen A. Ventura dated December 7, 2006**
|
|
10.27
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Nancy A. Kolb dated December 20, 2006**
|
|
10.28
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Kim
Shelquist dated December 20, 2006**
|
|
10.29
|
Form
of Warrant Agreement by and between the Registrant and Wisconsin Rural
Enterprise Fund, LLC dated December 1, 2006**
|
|
10.30
|
Form
of Stock Purchase and Sale Agreement by and between the Registrant and
Wisconsin Rural Enterprise Fund, LLC dated July 31,
2006**
|
|
10.31
|
Form
of Subscription Agreement**
|
|
10.32
|
Form
of Registration Rights Agreement**
|
|
10.33
|
Form
of Escrow Agreement**
|
|
10.34
|
Form
of Warrant**
|
|
10.35
|
2008
Equity Incentive Plan**
|
|
10.36
|
Office
Lease Agreement by and between the Registrant and Roseville Properties
Management Company, as agent for Lexington Business Park,
LLC**
|
|
10.37
|
Form
of Employment Agreement by and between the Registrant and David Dauwalter
dated August 11, 2008**
|
|
10.38
|
Form
of Amendment No. 1 to Employment Agreement by and between the Registrant
and David Dauwalter dated September 11, 2008**
|
|
10.39
|
Form
of Consulting Agreement by and between the Registrant and Andcor
Companies, Inc. dated September 15, 2008**
|
|
10.40
|
Form
of Consulting Agreement by and between the Registrant and Taylor &
Associates, Inc. dated August 15, 2008**
|
|
10.41
|
Form
of Consulting Agreement by and between the Registrant and Gregory Sachs
dated October 20, 2008**
|
|
10.42
|
Form
of Restructuring Agreement dated June 9, 2008**
|
|
10.43
|
Form
of Secured Convertible Note Purchase Agreement dated July 23,
2007**
|
|
10.44
|
Form
of Secured Convertible Note dated July 2007**
|
|
10.45
|
Form
of Secured Convertible Note Security Agreement dated July
2007**
|
10.46
|
Independent
Contractor Agreement dated as of February 2, 2009 by and between Belimed,
Inc. and BioDrain Medical, Inc.**(1)
|
|
10.47
|
Supply
Agreement dated as of February 20, 2009 by and between Oculus Innovative
Sciences, Inc., and BioDrain Medical, Inc.**(1)
|
|
10.48
|
Employment
Agreement made and entered into effective the 1st of February, 2009 by and
between Kirsten Doerfert**
|
|
10.49
|
Term
Sheet by and among the Registrant and Longport Holdings, as
amended**
|
|
10.50 | Agreement between the Company and Peter Morawetz dated May 15, 2009** | |
14
|
Code
of Ethics**
|
|
21
|
Subsidiaries
of the Registrant**
|
|
23.1
|
Consent
of Olsen Thielen & Co., Ltd.*
|
|
23.2
|
Consent
of Richardson & Patel LLP (See Exhibit
5.1)***
|
i.
|
Include any prospectus required
by section 10(a)(3) of the Securities Act of
1933;
|
ii.
|
Reflect in the prospectus any
facts or events which, individually or together, represent a fundamental
change in the information in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the
“Calculation of Registration
Fee” table in the effective registration statement;
and
|
iii.
|
Include any additional or changed
material information on the plan of
distribution.
|
BIODRAIN
MEDICAL, INC.
|
||
By:
|
/s/
Kevin R. Davidson
|
|
Kevin
R. Davidson
|
||
President,
Chief Executive Officer (Principal Executive
Officer),
Chief Financial Officer (Principal Financial and
Accounting
Officer).
|
Name
|
Title
|
Date
|
||
*
|
Chairman
of the Board of Directors
|
August
20, 2009
|
||
Lawrence
W. Gadbaw
|
||||
President,
Chief Executive Officer (Principal
|
||||
/s/
Kevin R. Davidson
|
Executive
Officer), Chief Financial Officer
(Principal
Financial and Accounting
Officer)
and
Director
|
|||
Kevin
R. Davidson
|
|
August
20, 2009
|
*
|
Director
|
August
20, 2009
|
||
Chad
A. Ruwe
|
||||
*
|
Director
|
August
20, 2009
|
||
Peter
L. Morawetz
|
*
|
Director
|
August
20, 2009
|
||
Thomas
J. McGoldrick
|
||||
*
|
Director
|
August
20, 2009
|
||
Andrew
P. Reding
|
*
/s/ Kevin Davidson
|
Chief
Executive Officer and Power of Attorney
|
Re:
|
BioDrain
Medical, Inc.
Amendment
No. 7 to Registration Statement on Form S-1
Filed August
12, 2009
File
No. 333-155299
|
1.
|
It
appears from your disclosures on pages 18 and 32 that you have recently
begun generating revenues. However, your disclosures here and
on page 4 state that you have not generated any revenues to
date. Please reconcile. Also ensure that the
remainder of your document accurately reflects the status of your
revenue-producing activities.
|
|
Response: We
have updated this section to indicate that we realized our first revenue
in June 2009.
|
2.
|
We
note your response to prior comment 7. Refer to the penultimate
column of Exhibit 10.50, which is captioned "Future
Cash." Please reconcile the number in that column for Mr. Rice
with your disclosure here and page 69, which disclosures indicate that Mr.
Rice will receive a one-time cash payment of
$46,000.
|
|
The
compensation table on page 62 and the disclosure regarding Mr. Rice on
page 69 is correct in that Mr. Rice will be paid a one-time cash payment
of $46,000 upon the company raising an additional $3 million in new
funding. Exhibit 10.50 properly captures our agreement with Mr.
Morawetz. Exhibit 10.50 does not reflect the future obligations
for Messrs. Gadbaw, Davidson and Rice but rather management’s May 2009
“draft” evaluation of past compensation. This information is
inaccurate for such purpose. Under the May 15, 2009 agreement
with Mr. Morawetz we have agreed to pay him $30,000 and will issue a stock
option to purchase 75,000 shares of common stock at $.35 per upon the
company raising an additional $3 million in new
funding.
|
3.
|
Refer
to the penultimate paragraph on page 66, where you discuss the vesting of
options granted to Mr. Ruwe. Please reconcile your disclosure there and on
page 32 regarding the number of options that have vested to
date.
|
|
Response:
Page 66 has been updated to indicate that Mr. Ruwe
earned an additional 50,000 shares in June 2009 as result of achieving our
first sale of our FMS unit and his total vested shares are now
200,000.
|
4.
|
Please
update your financial statements as required by Rule 8-08 of Regulation
S-X.
|
|
Response: The
financial statements for the period ended June 30, 2009 and June 30, 2008
are included in amendment 8 to the
S-1.
|
5.
|
Previously
you disclosed that $346,700 of accrued salaries was forgiven by certain
officers and directors in December 2007. Please tell us why the
disclosure now indicates that the salaries were forgiven in June
2008.
|
|
Response: The
agreement to waive salaries was reached in June 2008 with $346,700
applying to 2007 and prior years and $129,685 applying to
2008. Since the 2007 financials were not released until August
2008 the original application of the waived salaries in the amount of
$346,700 was reflected in 2007 and $129,685 was reflected in
2008.
|
6.
|
We
note the revisions made in response to prior comment
6. However, it appears that at least one of the cross
references between the itemized tables is not correct. For
example, for 2008, it appears that the adjustment to accrued expenses
should only be attributed to footnote (14) and that footnote (9) is not
applicable to this adjustment. Please proof to ensure that all
footnotes are appropriately cross
referenced.
|
|
We
believe that the cross references are correct in the table as
disclosed. Specifically, footnote (9) applies to the adjustment
to accrued expenses because the $115,000 in expense for payments to
Messrs. Gadbaw, Rice and Davidson had not been expensed in 2007 until the
restatement of 2007 financials. Consequently, the entry
originally made to expense this amount in 2008 was reversed, to avoid the
duplication of expense and the additional $25,000 expense, footnote (14)
was made to accrue the additional amount to be paid Mr. Gadbaw, as
specified in his separation of employment agreement, upon the Company
raising an additional $3
million.
|
Very truly yours, | |||
|
|
/s/ Kevin Davidson | |
Kevin
Davidson
Chief
Executive Officer
|
|||