UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
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x
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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For the
fiscal year ended December 31, 2009
OR
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¨
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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Commission
file number: 333-155299
BIODRAIN
MEDICAL, INC.
(Exact
name of registrant as specified in its charter)
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Minnesota
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33-1007393
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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2060
Centre Pointe Boulevard, Suite 7,
Mendota
Heights, Minnesota
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55120
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (651) 389-4800
Securities
registered pursuant to Section 12(b) of the Act:
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Title
of each class
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Name
of each exchange on which registered
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Common
Stock, One Cent ($0.01)
Par
Value Per Share
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None
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Securities
registered pursuant to Section 12(g) of the Act: None.
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes ¨ No x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate
by check mark whether the issuer (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No ¨
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Website, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files). Yes ¨ No ¨
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. x
Indicate by check mark whether the
Registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
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Large accelerated
filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller reporting
company x
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes ¨ No x
As of
June 30, 2009, no market price existed for the voting and non-voting common
equity held by non-affiliates of the registrant.
There
were 12,031,761 shares of the registrant’s common stock outstanding as of April
20, 2010.
DOCUMENTS
INCORPORATED BY REFERENCE
None.
EXPLANATORY
NOTE
On March 31, 2010, we filed our Annual
Report on Form 10-K for the year ended December 31, 2009 (the “Original
Filing”), with the Securities and Exchange Commission (the
“SEC”). The Original Filing intended to incorporate Part III of Form
10-K by reference to the Company’s definitive proxy statement (to be
subsequently filed). This Amendment No. 1 (this “Amendment”) on
Form-10-K/A, which amends and restates items identified below with respect to
the Original Filing, is being filed to provide the disclosure required by Part
III of Form 10-K.
This Form 10-K/A only amends information
in Part III, Item 10 (Directors, Executive Officers and Corporate
Governance), Item 11 (Executive Compensation), Item 12 (Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters), Item 13 (Certain Relationships and Related Transactions, and
Director Independence), Item 14 (Principal Accounting Fees and Services)
and Part IV, Item 15 (Exhibits, Financial Statement Schedules). All
other items as presented in the Original Filing are unchanged. Except
for the foregoing amended and restated information, this Amendment does not
amend, update or change any other information presented in the Original
Filing.
In addition, as required by Rule 12b-15
of the Securities Exchange Act of 1934, this Form 10-K/A contains new
certifications by our principal executive officer and principal financial and
accounting officer, filed as an exhibit hereto.
INDEX TO
FORM 10-K/A
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Page Number
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PART
III
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Item
10
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Directors,
Executive Officers and Corporate Governance
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1
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Item
11
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Executive
Compensation
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4
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Item
12
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Security Ownership
of Certain Beneficial Owners and Management and
Related Stockholder Matters
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7
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Item
13
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Certain
Relationships and Related Transactions, and Director
Independence
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10
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Item
14
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Principal
Accounting Fees and Services
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10
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PART
IV
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Item
15
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Exhibits,
Financial Statement Schedules
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11
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SIGNATURES
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PART
III
Item
10. Directors, Executive Officers and Corporate Governance
The
following table identifies our current executive officers and
directors:
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Name
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Age(1)
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Position
Held
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Lawrence
W. Gadbaw (3)
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72
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Chairman
of the Board of Directors
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Kevin
R. Davidson
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50
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President,
Chief Executive Officer, Chief Financial Officer and
Director
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Chad
A. Ruwe
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45
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Chief
Operating Officer and Director
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Jess
R. Carsello
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48
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Vice
President of Sales
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James
E. Dauwalter
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58
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Director
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Peter
L. Morawetz (2)
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82
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Director
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Thomas
J. McGoldrick (2)
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68
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Director
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Andrew
P. Reding (3)
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40
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Director
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(1)
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As
of the date of this Report.
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(2)
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Member
of the Compensation Committee.
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(3)
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Member
of the Audit Committee.
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We have
not set a term of office for our directors and each director will serve until
their successors are elected and have duly qualified.
There are
no family relationships between any of our directors or executive officers. Our
executive officers are appointed by our Board of Directors and serve at the
Board’s discretion. There is no arrangement or understanding between any of our
directors or executive officers and any other person pursuant to which any
director or officer was or is to be selected as a director or
officer.
None of
our directors or executive officers has, during the past ten
years,
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1)
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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,
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2)
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had
been convicted in a criminal proceeding and none of our directors or
executive officers is subject to a pending criminal
proceeding,
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3)
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has
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
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4)
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has
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.
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1
Business
Experience
Lawrence W. Gadbaw, Chairman of the
Board of Directors. Mr. Gadbaw has served as a director and Chairman of
the Board since our inception in 2002. He served as our President and Chief
Executive Officer from 2002 to 2006 and Executive Vice President Business
Development from 2006 to 2008. Mr. Gadbaw has also been Chairman of Health Care
Marketing, Inc., a manufacturer and marketer of health care products, since
1992. From 1990 to 1992, he was President, Chief Operating Officer and Director
of Augustine Medical, Inc., a manufacturer of hypothermia treatment products.
Mr. Gadbaw was President, Chief Executive Officer, Treasurer and Director of
Bio-Vascular, Inc., a manufacturer of tissue and biosynthetic-based medical
devices and grafts for cardiovascular surgery, from 1985 to 1989. From 1979 to
1981, he was Director of Sales and Marketing for Medical Incorporated, a
manufacturer of cardiovascular products. Mr. Gadbaw was General Manager of Sween
Corporation, a manufacturer of health care products, from 1977 to 1979. He held
numerous positions in marketing and sales with Medtronic, Inc., a manufacturer
and distributor of cardiovascular products from 1967 to 1977, including the
position of Director of U.S. Sales. We believe Mr. Gadbaw’s experience in the
healthcare and medical device industries as well as being a co-founder of
BioDrain makes him a valuable member of the Board.
Chad A. Ruwe, Chief Operating Officer and
Director. Mr. Ruwe became our Executive Vice President of Operations in
2008 and was promoted to Chief Operating Officer and a director in 2009. He has
over 20 years experience in global business leadership in critical fluid
management industries focused on containment, management, and delivery of highly
toxic and corrosive fluids. From 2002 to 2007 he held several senior management
positions with Entegris, Inc., including General Manager of NT International, a
wholly owned subsidiary of Entegris, Vice President of the Fluid Handling
Systems business, Vice President of the Semiconductor business and Vice
President & General Manager of the Liquid Micro-Contamination business. From
1996 to 2002, Mr. Ruwe was with Tescom Corporation (now part of Emerson’s
Climate Technologies Group) serving as Vice President & General Manager of
the High Purity Controls Division and Hankuk Tescom, Ltd., an assembly and test
facility in South Korea. Mr. Ruwe held several management level positions at
Parker Hannifin Corporation from 1987 to 1996. Mr. Ruwe has previously served on
the board of directors for two early stage venture start-ups. He holds a Master
of Science degree in Management, specializing in Operations Research, from the
University of Alabama, Huntsville, and he received his Bachelor of Science
degree in Mechanical Engineering, specializing in Fluid Dynamics, from The Ohio
State University in Columbus, Ohio.
Jess R. Carsello, Vice President of
Sales. Mr. Carsello became our Vice President of Sales in 2010. He has
over 20 years of sales and management experience in the medical industry, the
majority of which has been in selling single-use disposables and capital
equipment for operating room applications. From 2004 to 2009 Mr. Carsello served
as VP of Sales for Aspen Surgical with primary focus on sales into distribution
concentrating on Private Label sales for large distributors nationwide. From
2002 to 2004 Mr. Casello served as VP of Sales for Sterion Inc. where he was
responsible for managing worldwide sales of Sterilization Container Systems and
Wound Care products. Mr. Carsello served as the VP of Sales for Barriermed Inc,
from 2001 to 2002 where he introduced a new technology in Polyisoprene Surgical
Gloves. From 1991 to 2001 he was with Regent Medical/SSL Americas, (now
Mölnlycke Health Care) where he was Director of Distributor Relations for North
America, Regional Manager covering 13 Midwest states, Sales Rep and Sales
Trainer. He began his career as a Sales Representative for Vital Signs selling
products into Anesthesia, Respiratory Care and all Critical Care areas of the
hospital. Mr. Carsello holds a Bachelor of Science degree from the University of
Wisconsin, Eau Claire.
2
James E. Dauwalter, Director.
Mr. Dauwalter has served as a director of the Company since July 2009.
Mr. Dauwalter served as a director of VeraSun Energy Corporation from April 2008
to May 2009. He served as a director of US BioEnergy from July 2006 until April
2008, and served as chairman of the board from November 2007 until April 2008.
Mr. Dauwalter also served, from August 2005 until May 2008, as the chairman of
the board of directors of Entegris, Inc., a materials integrity management
company. Prior to his appointment as chairman of Entegris in August 2005, he
served as the chief executive officer of Entegris since January 2001. Mr.
Dauwalter joined Entegris in 1972 and held a variety of positions prior to his
first executive appointment in March 2000 as chief operating officer. Mr.
Dauwalter was also instrumental in founding Metron Technology, B.V., a supplier
of semiconductor products in Europe, and served on their board of directors from
their date of formation until May 2008, and served on the boards of several
subsidiaries and affiliates of Fluoroware, Inc., a predecessor company to
Entegris, Inc. Mr. Dauwalter holds a bachelors degree in business management
from Bemidji State University. We believe that Mr. Dauwalter's experience as CEO
and board member of public companies is a very important contribution to our
Board.
Peter L. Morawetz, PhD,
Director. Dr. Morawetz is a consultant to development-stage companies in
the medical and high technology field. He has served as a director of the
Company since its inception in 2002. From 1985 to 2002, he provided consulting
services in the fields of technology and product positioning for a large number
of U.S. and foreign corporations. Notable clients included Medtronic, EMPI,
Hutchinson Technologies, Minntech, Bauer Biopsy Needles, American Medical,
Lectec and Walker Reading Technologies. In the course of a thirty-year career,
he covered progressively important positions in engineering and R&D
management. His contributions include development of neurological devices at
Medtronic, Inc. from 1971 to 1981 and EMPI, Inc. from 1981 to 1985, as well as
magnetic-storage devices at Univac from 1958 to 1961 and again from 1965 to 1967
and Fabri-Tek from 1961 to 1965. He has seven patents and has been active in
market planning and corporate development. We believe that Dr. Morawetz’s
extensive consulting experience with development-stage companies and role as a
co-founder of BioDrain are strong endorsements for membership on our
Board.
Thomas J. McGoldrick,
Director. Mr. McGoldrick has served as a director of the Company since
2005. Prior to that, he served as Chief Executive Officer of Monteris Medical
Inc. from November 2002 to November 2005. He has been in the medical device
industry for over thirty years and was co-founder and Chief Executive Officer of
Fastitch Surgical in 2000. Fastitch is a startup medical device company with
unique technology in surgical wound closure. Prior to Fastitch, Mr. McGoldrick
was President and Chief Executive Officer of Minntech from 1997 to 2000.
Minntech was a $75 million per year publicly traded (Nasdaq-MNTX) medical device
company offering services for the dialysis, filtration, and separation markets.
Prior to employment at Minntech from 1970 to 1997, he held senior marketing,
business development and international positions at Medtronic, Cardiac
Pacemakers, Inc. and Johnson & Johnson. Mr. McGoldrick is on the board of
directors of two other startup medical device companies. We
believe Mr. McGoldrick’s experience as CEO of a public company and
extensive experience in the medical device industry provide valuable insight on
our Board.
Andrew P. Reding, Director.
Mr. Reding is an executive with extensive experience in sales and marketing of
capital equipment for the acute care markets. He has served as a director of the
Company since 2006 and he is currently the President and Chief Executive Officer
of TRUMPF Medical Systems, Inc., a position he has held since April 2007. Prior
to that, he was Director of Sales at Smith & Nephew Endoscopy and prior to
that, he served as Vice President of Sales and Director of Marketing with
Berchtold Corporation from 1994 to 2006. His experience is in the marketing and
sales of architecturally significant products for the operating room, emergency
department and the intensive care unit. Mr. Reding has successfully developed
high quality indirect and direct sales channels, implemented programs to
interface with facility planners and architects and developed GPO and IDN
portfolios. Mr. Reding holds a bachelors degree from Marquette University and an
MBA from The University of South Carolina. We believe Mr. Reding’s strong
experience in sales and marketing of capital equipment to hospital operating
rooms provides unique insight into the industry we serve and makes him a valued
member of the Board.
CODE
OF ETHICS
On
November 14, 2008, the Board adopted the Code of Ethics of BioDrain Medical,
Inc. that applies to all officers, directors and employees of the Company. We
intend to maintain the highest standards of ethical business practices and
compliance with all laws and regulations applicable to our business. The Code of
Ethics was filed as Exhibit 14 to the Company’s Registration Statement on Form
S-1/A filed with the SEC on January 12, 2009.
AUDIT
COMMITTEE
The Audit
Committee of the Board of Directors was established by the Board of Directors in
accordance with Section 3(a)(58)(A) of the Exchange Act to oversee the Company’s
corporate accounting and financial reporting processes and audits of its
financial statements.
The
functions of this Audit Committee include, among other
things:
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•
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serving as an independent and
objective party to monitor the Company’s financial reporting process and
internal control system;
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•
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coordinating, reviewing and
appraising the audit efforts of the Company’s independent auditors and
management and, to the extent the Company has an internal auditing or
similar department or persons performing the functions of such department
(“internal auditing department” or “internal auditors”), the internal
auditing department; and
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3
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•
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communicating directly with the
independent auditors, the financial and senior management, the internal
auditing department, and the Board of Directors regarding the matters
related to the committee’s responsibilities and
duties.
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Both our
independent registered public accounting firm and management periodically meet
privately with our Audit Committee.
Our Audit
Committee currently consists of Mr.Gadbaw, as the chairperson, and Mr. Reding.
Each Audit Committee member is a non-employee director of our Board. The Board
of Directors reviews the Nasdaq listing standards definition of independence for
Audit Committee members on an annual basis and has determined that all current
members of the Company’s Audit Committee are independent (as independence is
currently defined in Rule 5605(a)(2) of the Nasdaq listing standards). The
Audit Committee met four times in fiscal 2009.
Audit Committee Financial
Expert
The Board
has determined that neither Mr. Gadbaw nor Mr. Reding is an “audit committee
financial expert,” as defined in Item 407(d)(5)(ii) of Regulation S-K under the
Securities Act of 1933, as amended. As noted above, Mr. Gadbaw and Mr. Reding
are independent within the meaning of Nasdaq’s listing standards. The Board of
Directors is in the process of evaluating the depth of experience of all board
members to determine if any would qualify as an audit committee financial expert
and, if so, if they would be willing to serve as the financial expert on the
audit committee. In the meantime the Company is not required to meet Nasdaq
listing standards and the full board accepts responsibility for oversight of the
Company’s Audit Committee.
Section 16(a) of the Exchange Act
requires the Company’s directors and executive officers, and persons who own
more than ten percent of a registered class of the Company’s equity securities,
to file with the SEC initial reports of ownership and reports of changes in
ownership of common stock and other equity securities of the Company. Officers,
directors and greater than ten percent stockholders are required by SEC
regulation to furnish the Company with copies of all Section 16(a) forms they
file.
To the Company’s knowledge, based on a
review of the copies of such reports furnished to the Company during the fiscal
year ended December 31, 2009, all reports needed to be filed have been filed for
the fiscal year ended December 31, 2009.
DIRECTOR NOMINATIONS
The Company does not have a
Governance/Nominating Committee. The entire Board of Directors will consider
director candidates recommended by stockholders. The Board does not intend to
alter the manner in which it evaluates candidates based on whether or not the
candidate was recommended by a stockholder. To nominate a director, stockholders
must submit such nomination in writing to our Secretary at 2060 Centre Pointe
Boulevard, Suite 7,
Mendota
Heights, Minnesota 55120.
Item
11. Executive Compensation
This section describes the material
elements of the compensation awarded to, earned by or paid to our Chief
Executive Officer and the two most highly compensated executive officers as
determined in accordance with SEC rules, collectively referred to as the “Named
Executive Officers.”
Executive Compensation Components for
Fiscal 2009
Base
salary is an important element of our executive compensation program as it
provides executives with a fixed, regular, non-contingent earnings stream to
support annual living and other expenses. As a component of total compensation,
we generally set base salaries at levels believed to attract and retain an
experienced management team that will successfully grow our business and create
stockholder value. We also utilize base salaries to reward individual
performance and contributions to our overall business objectives, but seek to do
so in a manner that does not detract from the executives’ incentive to realize
additional compensation through our stock options and restricted stock
awards.
4
The
Compensation Committee reviews the Chief Executive Officer’s salary at least
annually. The Compensation Committee may recommend adjustments to the Chief
Executive Officer’s base salary based upon the Compensation Committee’s review
of his current base salary, incentive cash compensation and equity-based
compensation, as well as his performance and comparative market data. The
Compensation Committee also reviews other executives’ salaries throughout the
year, with input from the Chief Executive Officer. The Compensation Committee
may recommend adjustments to other executives’ base salary based upon the Chief
Executive Officer’s recommendation and the reviewed executives’
responsibilities, experience and performance, as well as comparative market
data.
In
utilizing comparative data, the Compensation Committee seeks to recommend
salaries for each executive at a level that is appropriate after giving
consideration to experience for the relevant position and the executive’s
performance. The Compensation Committee reviews performance for both our Company
(based upon achievement of strategic initiatives) and each individual executive.
Based upon these factors, the Compensation Committee may recommend adjustments
to base salaries to better align individual compensation with comparative market
compensation, to provide merit-based increases based upon individual or company
achievement, or to account for changes in roles and
responsibilities.
Our
employment agreement, dated October 4, 2006, with Kevin R. Davidson, President
and Chief Executive Officer, provided that his initial annual base salary would
be $150,000 and that his base salary for subsequent years is to be determined by
the Board. We offered this amount as part of a package of compensation for Mr.
Davidson sufficient to induce him to join our Company. The compensation package
for Mr. Davidson was designed to provide annual cash compensation, combined with
the equity compensation described below, sufficient to induce him to join the
Company and continue to incentivize him to create revenue growth and shareholder
value. Based upon the recommendation of the Compensation Committee, the Board
approved an increase to Mr. Davidson’s base salary rate from $160,000 to
$170,000 for calendar 2009.
Stock Option and Other Equity
Awards
Consistent
with our compensation philosophies related to performance-based compensation,
long-term stockholder value creation and alignment of executive interests with
those of stockholders, we make periodic grants of long-term compensation in the
form of stock options or restricted stock to our executive officers, directors
and others in the organization.
Stock
options provide executive officers with the opportunity to purchase common stock
at a price fixed on the grant date regardless of future market price. A stock
option becomes valuable only if the common stock price increases above the
option exercise price and the holder of the option remains employed during the
period required for the option shares to vest. This provides an incentive for an
option holder to remain employed by us. In addition, stock options link a
significant portion of an employee’s compensation to stockholders’ interests by
providing an incentive to achieve corporate goals and increase stockholder
value. Under our 2008 Equity Incentive Plan (the "Plan"), we may also make
grants of restricted stock awards, restricted stock units, performance share
awards, performance unit awards and stock appreciation rights to officers and
other employees. We adopted this plan to give us flexibility in the types of
awards that we could grant to our executive officers and other
employees. As of December 31, 2009 we have made grants of
797,810 shares of restricted stock under the Plan to directors and
management.
Limited Perquisites;
Other Benefits
5
Most of
our stock option agreements provide for an acceleration of vesting in the event
of a change in control as defined in the agreements. Additionally,
the restricted stock agreements that were awarded to management and directors in
2009 also provide for an acceleration of vesting in the event there is a change
in control as defined in the 2008 Equity Incentive Plan.
Under the
employment agreements with Mr. Davidson and Mr. Ruwe they will be entitled to
severance pay equal to twelve months pay in the event their employment is
terminated as a result of a "Change in Control", defined as a change in control
of more than 40% of the Company’s common stock.
Summary
Compensation Table for Fiscal 2008 and 2009
The
following table provides information regarding the compensation earned during
the fiscal years ended December 31, 2009 and December 31, 2008 by each of the
named executive officers:
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Non-
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Nonquali-
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|||||||||||||||||||||||||||||
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Equity
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fied
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|||||||||||||||||||||||||||||
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Name
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Incentive
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Deferred
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||||||||||||||||||||||||||||
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and
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(3)
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(4)
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Plan
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Compen-
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||||||||||||||||||||||||||
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Principal
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Stock
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Option
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Compen-
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sation
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Total
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|||||||||||||||||||||||||
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Position
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Year
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Salary
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Bonus
|
Awards
|
Awards
|
sation
|
Earnings
|
Compensation
|
||||||||||||||||||||||
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Kevin
R. Davidson
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2009
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$ | 170,000 | $ | - | $ | 150,000 | $ | - | $ | - | $ | 320,000 | |||||||||||||||||
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President,
Chief
|
2008
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$ | 160,000 | $ | 25,000 | $ | - | $ | 186,307 | $ | - | $ | - | $ | 371,307 | |||||||||||||||
|
Executive
Officer
|
||||||||||||||||||||||||||||||
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and
Chief Financial
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||||||||||||||||||||||||||||||
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Officer
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||||||||||||||||||||||||||||||
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Chad
A. Ruwe (1)
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2009
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$ | 135,000 | $ | - | $ | 100,000 | $ | - | $ | - | $ | - | $ | 235,000 | |||||||||||||||
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Chief
Operating
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2008
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$ | 80,375 | $ | 15,000 | $ | - | $ | - | $ | - | $ | - | $ | 95,375 | |||||||||||||||
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Officer
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||||||||||||||||||||||||||||||
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Kirsten
Doerfert (2)
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2009
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$ | 115,208 | $ | - | $ | 37,500 | $ | - | $ | 152,708 | |||||||||||||||||||
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Vice
President Sales
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2008
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$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||||||||
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and
Marketing
|
||||||||||||||||||||||||||||||
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(1)
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Mr.
Ruwe joined the Company as Executive Vice President of Operations in June
2008 and became Chief Operating Officer in
2009.
|
|
(2)
|
Ms.
Doerfert joined the Company in February 2009 and terminated her employment
January 31, 2010.
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|
(3)
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Restricted
stock awards were granted to management and directors under the 2008
Equity Incentive Plan on August 24, 2009. The value of the stock was
determined to be $.50 per common share on the date of the grant as
determined pursuant to FASB ASC 718 - Stock
Compensation.
|
|
(4)
|
Represents
the full value of an option to purchase 80,000 at $.35 per share that will
be issued when the Company raises a minimum of $3 million in additional
equity. The value expressed represents the actual compensation cost
recognized during 2008 as determined pursuant to FASB ASC 718 - Stock Compensation utilizing the
assumptions discussed in Note 3, “Stock Options and Warrants,” in the
notes to financial statements included in the Form 10-K filed on March 31,
2010.
|
Outstanding
Equity Awards at Fiscal Year-end for Fiscal 2009
The
following table sets forth certain information regarding outstanding equity
awards held by the named executive officers as of December 31,
2009:
|
Option
Awards
|
Stock
Awards
|
|||||||||||||||||||
|
Equity
|
Equity
|
|||||||||||||||||||
|
Incentive
|
Incentive
|
|||||||||||||||||||
|
Number
of
|
Number
of
|
Plan
|
Plan
|
|||||||||||||||||
|
Securities
|
Securities
|
Awards;
|
Awards;
|
|||||||||||||||||
|
Underlying
|
Underlying
|
Option
|
Option
|
Number
|
Number
|
|||||||||||||||
|
Grant
|
Options
|
Options
|
Exercise
|
Expiration
|
of
Shares
|
of
Shares
|
||||||||||||||
|
Date
|
Exercisable
|
Unexercisable
|
Price
|
Date
|
Vested
|
Unvested
|
||||||||||||||
|
Kevin
R. Davidson
|
6/5/2008
|
543,292 | $ | 0.01 |
6/5/2018
|
- | ||||||||||||||
|
6/11/2008
|
80,000 | $ | 0.35 |
6/11/2013
|
||||||||||||||||
|
8/24/2009
|
300,000 | |||||||||||||||||||
|
Chad
A. Ruwe
|
6/16/2008
|
200,000 | 50,000 | $ | 0.35 |
6/16/2013
|
||||||||||||||
|
8/24/2009
|
200,000 | |||||||||||||||||||
|
Kirsten
Doerfert
|
2/1/2009
|
60,000 | 40,000 | $ | 0.35 |
2/1/2014
|
||||||||||||||
|
8/24/2009
|
75,000 | |||||||||||||||||||
DIRECTOR
COMPENSATION
The
directors of BioDrain Medical, Inc. are not paid cash compensation for their
service on the Board except for Lawrence Gadbaw, who is paid $2,000 per month
for his service as Chairman of the Board. In addition, Mr. Gadbaw
receives $2,000 per month as payment under his Separation Agreement and Release
dated August 13, 2008. The final payment under this agreement will be
the earlier of August 15, 2010 or upon the Company raising an additional $3
million in equity.
Beginning
in 2009, the Board instituted an annual restricted stock award program for
non-employee directors, except for the Chairman, under which they will be
awarded 20,000 shares of restricted stock annually on each anniversary date of
service on the Board. The Board further determined that Mr.
McGoldrick, Mr. Reding and Mr. Morawetz would be awarded 40,000 shares, 20,000
shares and 100,000 shares, respectively, for their prior service on the
Board. Mr. Gadbaw is entitled to a stock option, as of September 30
of each year that he continues to serve as Chairman of the Board, to purchase
30,000 shares of common stock for a fixed price that is determined by the Board
to be the market value on the date of grant. Mr. Gadbaw was granted
an option to purchase 30,000 shares at $.50 per share on November 13,
2009. The option is immediately vested and has a term of three
years.
The
following table summarizes the compensation paid to each non-employee director
in the fiscal year ended December 31, 2009.
|
Name
|
Fees
Earned or
Paid
in Cash
(1)
|
Stock
Awards
(2)
|
Option
Awards
(1)(2)
|
Total
($)
|
||||||||||||
|
Lawrence
W. Gadbaw
|
$ | 48,000 | $ | 5,728 | $ | 53,728 | ||||||||||
|
Peter
L. Morawetz
|
$ | 50,000 | $ | 22,658 | $ | 72,658 | ||||||||||
|
Thomas
J. McGoldrick
|
$ | 20,000 | $ | 20,000 | ||||||||||||
|
Andrew
P. Reding
|
$ | 10,000 | $ | 10,000 | ||||||||||||
|
(1)
|
Mr.
Gadbaw received $2,000 per month as compensation for serving as Chairman
of the Board, $2,000 per month as payment under a Separation Agreement and
Release dated August 13, 2008 and an option to purchase 30,000 shares at
$.50 per share on November 13, 2009. The value of the option was
determined to be $5,728 in accordance with FASB ASC 718 - Stock
Compensation using the Black-Scholes option valuation model and,
because the option was immediately vested, this amount was expensed in
full during fiscal 2009.
|
6
|
(2)
|
Mr.
Morawetz received 100,000 shares of restricted stock on August 24, 2009,
with a value of $50,000, as compensation for his prior years’ service on
the Board. In addition, the Company agreed to grant Mr.
Morawetz an option to buy 75,000 shares at $.35 per share upon the Company
raising an additional $3 million in equity in return for his agreement to
forgive approximately $85,000 in consulting fees that had accrued in prior
years. The value of the option was determined to be $22,658 in accordance
with FASB ASC 718 - Stock
Compensation, using the Black-Scholes option valuation model and
this amount was expensed in full during fiscal 2009. Mr.
McGoldrick received 40,000 shares of restricted stock and Mr. Reding
received 20,000 shares of restricted stock on August 24, 2009 as
compensation for their prior years’ service on the Board. The
stock was determined to have a value of $.50 per share or $20,000 and
$10,000, respectively, for Mr. McGoldrick and Mr.
Reding.
|
Item
12. Securities Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth as of April 20, 2010 certain information regarding
beneficial ownership of our common stock by:
|
•
|
Each
person known to us to beneficially own 5% or more of our common stock and
those shareholders who would beneficially own 5% or more of our common
stock except for a 61 day notice of intent to exercise warrants (see Note
11);
|
|
•
|
Each
executive officer named in the Summary Compensation Table on page
6,
who in this Report are collectively referred to as the “Named
Executive Officers;”
|
|
•
|
Each
of our directors; and
|
|
•
|
All
of our executive officers (as that term is defined under the rules and
regulations of the SEC) and directors as a
group.
|
We have
determined beneficial ownership in accordance with Rule 13d-3 under the Exchange
Act. Beneficial ownership generally means having sole or shared voting or
investment power with respect to securities. Unless otherwise indicated in the
footnotes to the table, each stockholder named in the table has sole voting and
investment power with respect to the shares of common stock set forth opposite
the stockholder’s name. We have based our calculation of the percentage of
beneficial ownership on 12,031,761 shares of the Company’s common stock
outstanding on April 20, 2010. Unless otherwise noted below, the address for
each person or entity listed in the table is c/o BioDrain Medical, Inc., 2060
Centre Pointe Boulevard, Suite 7, Mendota
Heights, Minnesota 55120.
7
|
Name of Beneficial
Owner
|
Amount
and
Nature
of
Beneficial
Ownership
|
Percent
of
Class
|
|||
|
Lawrence
W. Gadbaw (1)
|
169,563
|
1.4
%
|
|||
|
Kevin
R. Davidson (2)
|
876,725
|
7.0
%
|
|||
|
Chad
A. Ruwe (3)(11)
|
1,021,429
|
8.4
%
|
|||
|
Kirsten
Doerfert (14)
|
150,000
|
1.2
%
|
|||
|
Jess
Carsello (15)
|
8,332
|
0.1
%
|
|||
|
Peter
L. Morawetz (4)
|
211,245
|
1.8
%
|
|||
|
Thomas
J. McGoldrick (5)
|
67,447
|
0.6
%
|
|||
|
Andrew
P. Reding (6)
|
47,447
|
0.4 %
|
|||
|
James
E. Dauwalter (9)(11)
|
1,051,429
|
8.6
%
|
|||
|
Carl
Schwartz (7)(11)
|
500,000
|
4.2
%
|
|||
|
Bernard
Puder Revocable Trust (8)
|
430,000
|
3.6
%
|
|||
|
James
R. Taylor IV (10) (11)
|
771,429
|
6.3
%
|
|||
|
Nimish
Patel (12)
|
710,780
|
5.9
%
|
|||
|
Erick
Richardson (13)
|
697,912
|
5.8
%
|
|||
|
Total
|
6,713,738
|
49.9
%
|
|||
|
All
directors and executive officers as a group
(9
persons)
|
3,453,617
|
26.4
%
|
|||
|
(1)
|
Includes
139,563 shares of common stock and an option to purchase 30,000 shares at
a price of $.50 per share. 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.
|
|
|
(2)
|
Includes
33,433 shares of common stock, 300,000 shares of restricted stock issued
August 24, 2009 under the 2008 Equity Incentive Plan and 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, 200,000 shares of restricted stock issued
August 24, 2009 under the 2008 Equity Incentive Plan and options to
acquire an additional 200,000 shares of common stock at $.35 per share
that are presently exercisable. Does not include 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, and does not include warrants for 621,429 shares
that are not currently exercisable within 60 days.
|
|
|
(4)
|
Includes
111,245 shares of common stock and 100,000 shares of restricted stock,
issued August 24, 2009 under the 2008 Equity Incentive Plan, 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
3,506 shares and 40,000 restricted shares, issued August 24, 2009 under
the 2008 Equity Incentive Plan, and an option to acquire up to 23,941
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
3,506 shares and 20,000 restricted shares, issued August 24, 2009 under
the 2008 Equity Incentive Plan, and an option to acquire up to 23,941
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 but does not include 500,000 shares of
common stock underlying a warrant at $.46 per share that is not currently
exercisable within 60 days.
|
|
|
(8)
|
Includes
430,000 shares of common stock but does not include 430,000 shares of
common stock underlying a warrant at $.46 per share that is not currently
exercisable within 60 days.
|
8
|
(9)
|
Includes
771,429 shares of common stock but does not include 771,429 shares of
common stock underlying warrants at $.46 per share and $.65 per share that
are not exercisable within 60 days. Includes 200,000 shares underlying a
$50,000 convertible debt agreement based upon an estimated conversion
price of $.25 per share. All shares, warrants and convertible debt are
held in the James E. Dauwalter Living Trust. Also includes an
option to purchase 30,000 shares and 50,000 restricted shares, issued
August 24, 2009 under the 2008 Equity Incentive Plan, held by David
Dauwalter, the son of James Dauwalter and an employee of BioDrain Medical,
Inc. 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. James Dauwalter disavows
any ownership or control over the shares and options held by David
Dauwalter.
|
|
|
(10)
|
Includes
571,429 shares of common stock and 200,000 shares underlying a $50,000
convertible debt agreement based upon an estimated conversion price of
$.25 per share but does not include 571,429 shares of common stock
underlying a warrant at $.46 per share that is not currently exercisable
within 60 days.
|
|
|
(11)
|
These
warrants are fully vested. However, they include a clause that prohibits
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 the clause to eliminate this requirement.
However, such amendment will not take effect until the 61st
day after notice has been given. Consequently, the holder 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)
|
Consists
of 665,185 shares of common stock, including 142,857 shares of common
stock held by RP Capital LLC, for which Nimish Patel and Erick Richardson
have shared voting and dispositive control, and 45,595 shares of common
stock underlying warrants. 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.
|
|
|
(13)
|
Consists
of 652,317 shares of common stock, including 142,857 shares of common
stock held by RP Capital LLC, for which Nimish Patel and Erick Richardson
have shared voting and dispositive control, and 45,595 shares of common
stock underlying warrants. 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.
|
|
|
(14)
|
Includes
a warrant to purchase 15,000 shares at $.46 per share, an option to
purchase 60,000 shares at $.35 per share and 75,000 restricted shares
issued August 24, 2009 under the 2008 Equity Incentive Plan. 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. Ms. Doerfert terminated her
employment on January 31, 2010.
|
|
|
(15)
|
Includes
an option to purchase 8,332 shares at $.50 per share, under a 150,000
share stock option agreement issued to Mr. Carsello on February 2, 2010,
under the Company’s 2008 Equity Incentive Plan. Does not
include 141,688 shares under the stock option agreement that have not
vested. The option vests at 4,167 shares per month for the
first 35 months of employment and 4,190 shares in month
36.
|
9
Equity
Compensation Plan Information
The
following table presents the equity compensation plan information as of December
31, 2009:
|
Number
of
securities
to be
issued
upon
exercise
of
outstanding
restricted
stock,
warrants
and options
|
Weighted-average
exercise
price of
outstanding
options,
warrants
|
Number
of
securities
remaining
available
for future
issuance
under
equity
compensation
plans
(excluding
securities
reflected
in
column (a))
|
||||||||||
|
(a)
|
(b)
|
(c)
|
||||||||||
|
Equity
compensation plans approved by security holders (1)
|
916,017 | $ | 0.367 | 59,388 | ||||||||
|
Equity
compensation plans not approved by security holders (2)
|
1,396,174 | $ | 0.237 | - | ||||||||
|
TOTAL
|
2,312,191 | $ | 0.247 | 59,388 | ||||||||
|
(1)
|
Includes
797,810 shares of restricted stock and 18,207 warrant shares issued under
the 2008 Equity Incentive Plan.
|
|
(2)
|
The
Company issued stock options to purchase 1,291,174 shares to employees and
directors prior to the adoption of the 2008 Equity Incentive Plan and
stock options to purchase 105,000 shares outside of the 2008 Equity
Incentive Plan after the Plan was
adopted.
|
Item
13. Certain Relationships and Related Transactions, and Director
Independence
The Audit
Committee has the responsibility to review and approve all transactions to which
a related party and the Company may be a party prior to their implementation, to
assess whether such transactions meet applicable legal
requirements. Except as described in this Report, since the beginning
of fiscal 2009, there were no related party transactions arising or existing
requiring disclosure, as would be required if we were subject to Nasdaq listing
standards, SEC rules and regulations or the Company’s policy and
procedures.
Item
14. Principal Accountant Fees and Services
ACCOUNTANT
FEES
In
connection with the audit of the fiscal 2009 financial statements, the Company
entered into an engagement agreement with Olsen Theilen & Co., Ltd., which
sets forth the terms by which Olsen Theilen & Co., Ltd. will perform audit
services for the Company.
The
following table represents aggregate fees billed to the Company for the fiscal
years ended December 31, 2009 and December 31, 2008, by Olsen Theilen & Co.,
Ltd., the Company’s principal accountant. All fees described below were approved
by the Audit Committee.
|
2009
|
2008
|
|||||||
|
Audit
Fees(1)
|
$ | 96,198 | $ | 67,966 | ||||
|
Audit-Related
Fees(2)
|
- | - | ||||||
|
Tax
Fees(3)
|
1,200 | 1,963 | ||||||
|
All
Other Fees(4)
|
- | - | ||||||
| $ | 97,398 | $ | 69,929 | |||||
|
(1)
|
|
Audit
Fees were principally for services rendered for the audit and/or review of
our consolidated financial statements. Also includes fees for services
rendered in connection with the filing of registration statements and
other documents with the SEC, the issuance of accountant consents and
comfort letters and assistance in responding to SEC comment
letters.
|
10
|
(2)
|
There
were no audit-related fees in 2008 and 2009.
|
|
|
(3)
|
Tax
Fees consist of fees billed in the indicated year for professional
services performed by Olsen Theilen & Co., Ltd. with respect to tax
compliance, tax advice and tax planning.
|
|
|
(4)
|
All
Other Fees consist of fees billed in the indicated year for other
permissible work performed by Olsen Theilen & Co., Ltd. that is not
included within the above category
descriptions.
|
PRE-APPROVAL
POLICIES AND PROCEDURES
The Audit
Committee is required to pre-approve the audit and non-audit services performed
by our independent auditors. The Audit Committee may not approve
non-audit services prohibited by applicable regulations of the Securities and
Exchange Commission if such services are to be provided contemporaneously while
serving as independent auditors. The Audit Committee has delegated
authority to the Chairman of the Audit Committee to approve the commencement of
permissible non-audit related services to be performed by the independent
auditors and the fees payable for such services, provided that the full Audit
Committee subsequently ratifies and approves all such services. The
Audit Committee has determined that the rendering of the services other than
audit services by Olsen Theilen & Co., Ltd. is compatible with maintaining
the principal accountant’s independence.
DIRECTOR
INDEPENDENCE
Although we are not
required to comply with the Nasdaq Stock Market (“Nasdaq”) listing
standards, we use these listing standards as our guide toward determining
independence of our directors and other areas of corporate governance. Under
Nasdaq listing standards, a majority of the members of a listed company’s board
of directors must qualify as “independent,” as affirmatively determined by the
board of directors. The Board of Directors consults with the Company’s counsel
to ensure that the Board of Directors’ determinations are consistent with
relevant securities and other laws and regulations regarding the definition of
“independent,” including those set forth in pertinent listing standards of the
Nasdaq, as in effect from time to time.
Consistent with these considerations,
after review of all relevant transactions or relationships between each
director, or any of his or her family members, and the Company, its senior
management and its independent registered public accounting firm, the Board of
Directors has affirmatively determined that the following directors are
independent directors within the meaning of the Nasdaq listing standards:
Messrs. Dauwalter, Gadbaw, McGoldrick and Reding and Dr. Morawetz. In
making this determination, the Board of Directors found that none of these
directors or nominees for director had a material or other disqualifying
relationship with the Company. Mr. Davidson, the Company’s President, Chief
Executive Officer, and Chief Financial Officer, and Mr. Ruwe, the Company’s
Chief Operating Officer, are not independent directors by virtue of their
employment with the Company.
Exhibits.
See “Exhibit Index to Form 10-K” immediately following the signature page of
this Amendment.
11
SIGNATURES
Pursuant to the requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
|
BIODRAIN
MEDICAL, INC.
|
||
|
Date: April
28, 2010
|
By:
|
/s/ Kevin R. Davidson
|
|
Kevin
R. Davidson
|
||
|
President,
Chief Executive Officer, and Chief Financial
|
||
|
Officer
|
||
12
EXHIBIT
INDEX
BIODRAIN
MEDICAL, INC.
FORM
10-K/A
|
Exhibit
No.
|
Description
|
|
|
3.1
|
Articles
of Incorporation of the Registrant, as amended (4)
|
|
|
3.2
|
Bylaws
of the Registrant, as amended (1)
|
|
|
3.3
|
Amendment
to Articles (3)
|
|
|
10.1†
|
Form
of Employment Agreement by and between the Registrant and Kevin R.
Davidson dated October 4, 2006 (1)
|
|
|
10.2†
|
Form
of Employment Agreement by and between the Registrant and Gerald D. Rice
dated October 18, 2006 (1)
|
|
|
10.3†
|
Form
of Employment Agreement by and between the Registrant and Chad A. Ruwe
dated June 16, 2008 (1)
|
|
|
10.4†
|
Form
of Confidential Separation Agreement and Release by and between the
Registrant and Lawrence W. Gadbaw dated August 13, 2008
(1)
|
|
|
10.5
|
Form
of Nondisclosure and Non-compete Agreement by and between the Registrant
and Lawrence W. Gadbaw dated October 18, 2006
(1)
|
13
|
Exhibit
No.
|
Description
|
|
|
10.6†
|
Form
of Stock Option Agreement by and between the Registrant and Kevin R.
Davidson dated June 5, 2008 (1)
|
|
|
10.7†
|
Form
of Director Stock Option Agreement between the Registrant and Thomas
McGoldrick dated August 22, 2006 (1)
|
|
|
10.8†
|
Form
of Director Stock Option Agreement between the Registrant and Andrew P.
Reding dated November 11, 2006 (1)
|
|
|
10.9
|
Form
of Consulting Agreement by and between the Registrant and Jeremy Roll
dated February 29, 2008 (1)
|
|
|
10.10
|
Form
of Consulting Agreement by and between the Registrant and Namaste
Financial, Inc. dated June 30, 2008 (1)
|
|
|
10.11
|
Form
of Consulting Agreement by and between the Registrant and Marshall C. Ryan
and Mid-State Stainless, Inc. dated June 2008 (1)
|
|
|
10.12
|
Form
of Investor Relations Agreement by and between the Registrant and Kulman
IR, LLC dated April 15, 2008 (1)
|
|
|
10.13
|
Form
of Finder Agreement by and between the Registrant and Thomas Pronesti
dated March 10, 2008 (1)
|
|
|
10.14
|
Form
of Patent Assignment by Marshall C. Ryan in favor of the Registrant dated
June 18, 2008 (1)
|
|
|
10.15
|
Form
of Convertible Debenture by and between the Registrant and Kevin R.
Davidson dated February 2, 2007 (1)
|
|
|
10.16
|
Form
of Convertible Debenture by and between the Registrant and Peter L.
Morawetz dated February 2, 2007 (1)
|
|
|
10.17
|
Form
of Convertible Debenture by and between the Registrant and Andrew P.
Reding dated February 2, 2007 (1)
|
|
|
10.18
|
Form
of Convertible Debenture by and between the Registrant and Thomas
McGoldrick dated January 30, 2007 (1)
|
|
|
10.19
|
Form
of Convertible Debenture by and between the Registrant and Andcor
Companies, Inc. dated September 29, 2006 (1)
|
|
|
10.20
|
Form
of Convertible Debenture by and between the Registrant and Carl Moore
dated March 1, 2007 (1)
|
|
|
10.21
|
Form
of Convertible Debenture by and between the Registrant and Roy Moore dated
March 1, 2007 (1)
|
|
|
10.22
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Debbie Heitzman dated August 31, 2005 (1)
|
|
|
10.23
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Mary
Wells Gorman dated August 31, 2005
(1)
|
14
|
Exhibit
No.
|
Description
|
|
|
10.24
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
David Feroe dated August 31, 2005 (1)
|
|
|
10.25
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Dr.
Arnold S. Leonard dated June 12, 2006 (1)
|
|
|
10.26
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Karen A. Ventura dated December 7, 2006 (1)
|
|
|
10.27
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and
Nancy A. Kolb dated December 20, 2006 (1)
|
|
|
10.28
|
Form
of Advisory Board Warrant Agreement by and between the Registrant and Kim
Shelquist dated December 20, 2006 (1)
|
|
|
10.29
|
Form
of Warrant Agreement by and between the Registrant and Wisconsin Rural
Enterprise Fund, LLC dated December 1, 2006 (1)
|
|
|
10.30
|
Form
of Stock Purchase and Sale Agreement by and between the Registrant and
Wisconsin Rural Enterprise Fund, LLC dated July 31, 2006
(1)
|
|
|
10.31
|
Form
of Subscription Agreement (1)
|
|
|
10.32
|
Form
of Registration Rights Agreement (1)
|
|
|
10.33
|
Form
of Escrow Agreement (1)
|
|
|
10.34
|
Form
of Warrant (1)
|
|
|
10.35†
|
2008
Equity Incentive Plan (1)
|
|
|
10.36
|
Office
Lease Agreement by and between the Registrant and Roseville Properties
Management Company, as agent for Lexington Business Park, LLC
(1)
|
|
|
10.37†
|
Form
of Employment Agreement by and between the Registrant and David Dauwalter
dated August 11, 2008 (2)
|
|
|
10.38†
|
Form
of Amendment No. 1 to Employment Agreement by and between the Registrant
and David Dauwalter dated September 11, 2008 (2)
|
|
|
10.39
|
Form
of Consulting Agreement by and between the Registrant and Andcor
Companies, Inc. dated September 15, 2008 (2)
|
|
|
10.40
|
Form
of Consulting Agreement by and between the Registrant and Taylor &
Associates, Inc. dated August 15, 2008 (2)
|
|
|
10.41
|
Form
of Consulting Agreement by and between the Registrant and Gregory Sachs
dated October 20, 2008 (2)
|
|
|
10.42
|
Form
of Restructuring Agreement dated June 9, 2008 (2)
|
|
|
10.43
|
Form
of Secured Convertible Note Purchase Agreement dated July 23, 2007
(2)
|
|
|
10.44
|
Form
of Secured Convertible Note dated July 2007 (2)
|
|
|
10.45
|
Form
of Secured Convertible Note Security Agreement dated July 2007
(2)
|
15
|
Exhibit
No.
|
Description
|
|
|
10.46
|
Independent
Contractor Agreement dated as of February 2, 2009 by and between Belimed,
Inc. and BioDrain Medical, Inc. (4)
|
|
|
10.47
|
Supply
Agreement dated as of February 20, 2009 by and between Oculus Innovative
Sciences, Inc., and BioDrain Medical, Inc. (6)
|
|
|
10.48†
|
Employment
Agreement made and entered into effective the 1st of February, 2009 by and
between Kirsten Doerfert (4)
|
|
|
10.49
|
Term
Sheet by and among the Registrant and Longport Holdings, as amended
(4)
|
|
| 10.50† | Agreement between the Company and Peter Morawetz dated May 15, 2009 (5) (7) | |
|
14
|
Code
of Ethics (2)
|
|
|
21
|
Subsidiaries
of the Registrant (1)
|
|
|
23.1
|
Consent
of Olsen Thielen & Co., Ltd. (8)
|
|
16
|
Exhibit
No.
|
Description
|
|
|
24.1
|
Power
of Attorney. (8)
|
|
|
31.1*
|
|
Certification
of principal executive officer and principal financial officer required by
Rule 13a-14(a).
|
|
*
|
Filed
herewith.
|
|
†
|
Compensatory
plan or agreement.
|
|
(1)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, filed with the
SEC on November 12, 2008.
|
|
(2)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
1, filed with the SEC on January 12,
2009.
|
|
(3)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
2, filed with the SEC on February 12,
2009.
|
|
(4)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
3, filed with the SEC on April 6,
2009.
|
|
(5)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
4, filed with the SEC on May 14,
2009.
|
|
(6)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
5, filed with the SEC on July 1,
2009.
|
|
(7)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Registration Statement on Form S-1, Amendment No.
7, filed with the SEC on August 12,
2009.
|
|
(8)
|
Previously
filed with the SEC as an Exhibit to and incorporated herein by reference
from the Company’s Annual Report on Form 10-K filed on March 31,
2010.
|
17
EXHIBIT
31.1
CERTIFICATION
PURSUANT
TO SECTION 302 OF THE SARBANES-OXLEY ACT
I, Kevin
R. Davidson, certify that:
|
1.
|
I
have reviewed this report on Form 10-K/A of BioDrain Medical, Inc.;
and
|
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report.
|
Date:
April 28, 2010
|
/s/
Kevin R. Davidson
|
|
|
Kevin
R. Davidson
|
|
|
President,
Chief Executive Officer, and Chief
Financial
Officer
|