UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
|X| QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended: May 31, 2007
OR
|_| TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE EXCHANGE ACT OF 1934
For the transition period from ________________ to ________________
Commission File No. 0-26057
BIOPHAN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Nevada 82-0507874
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
15 Schoen Place
Pittsford, New York 14534
(Address of principal executive offices) (Zip Code)
(585) 267-4800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes |X| No |_|
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer or a non-accelerated filer. See definition of "accelerated
filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. (Check
one).
Large Accelerated Filer |_| Accelerated Filer |X| Non-Accelerated Filer |_|
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act).
Yes |_| No |X|
Indicate the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date.
Class outstanding as of June 28, 2007 - Common Stock, $.005 par value:
87,669,931
INDEX
Page
Number
------
Part I: Financial Information
ITEM 1. Financial Statements
Condensed Consolidated Balance Sheets, May 31, 2007
(Unaudited) and February 28, 2007 1
Condensed Consolidated Statements of Operations, Three Months
Ended May 31, 2007 and 2006
(Unaudited), and from August 1, 1968 (Date of Inception)
through May 31, 2007 (Unaudited) 2
Condensed Consolidated Statements of Cash Flows, Three Months
Ended May 31, 2007 and 2006 (Unaudited) and from August 1,
1968 (Date of Inception) through May 31, 2007 (Unaudited) 3
Notes to Condensed Consolidated Financial Statements 6
ITEM 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 10
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk 15
ITEM 4. Controls and Procedures 15
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings 16
ITEM 1A. Risk Factors 16
ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds 16
ITEM 3. Defaults Upon Senior Securities 16
ITEM 4. Submission of Matters to a Vote of Security Holders 16
ITEM 5. Other Information 17
ITEM 6. Exhibits 17
SIGNATURES 18
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED BALANCE SHEETS
May 31, February 28,
2007 2007
------------ ------------
(Unaudited)
ASSETS
Current assets:
Cash and cash equivalents $ 740,354 $ 2,418,551
Accounts receivable 12,427 21,448
Prepaid expenses 108,850 166,171
Other current assets 45,764 25,350
------------ ------------
Total current assets 907,395 2,631,520
Property and equipment, net 401,466 418,362
Other assets:
Intangible assets, net of amortization
Myotech, LLC 22,729,640 23,074,028
Other 1,299,154 1,322,777
Deferred financing costs, net of amortization
of $310,580 and $186,350, respectively 1,221,627 1,345,860
Investment in New Scale Technologies, Inc. 100,000 100,000
Deposits 206 3,704
Deferred tax asset, net of valuation allowance of
$12,584,000 and $12,784,000 respectively -- --
------------ ------------
25,350,627 25,846,369
------------ ------------
$ 26,659,488 $ 28,896,251
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current liabilities:
Current portion of capital lease obligation $ 9,610 $ 7,445
Current portion of senior secured convertible
notes, net of discount of $2,199,833 and
$2,183,580, respectively 1,315,315 672,481
Accounts payable and accrued expenses 2,414,202 1,942,033
Liquidated damages payable 652,500 --
Note payable 60,050 78,007
Line of credit - related party 4,430,000 4,430,000
Due to related parties 79,430 80,280
Deferred revenues 145,833 208,333
------------ ------------
Total current liabilities 9,106,940 7,418,579
Long-term debt:
Capital lease obligation 23,757 19,604
Senior secured convertible notes payable, less
discount of $2,337,327 and $3,359,354, respectively 1,397,525 1,034,585
Fair value of warrant liability -- 10,494,006
------------ ------------
Total liabilities 10,528,220 18,966,774
Minority interest 12,657,272 13,139,882
Stockholders' equity (deficiency):
Common stock $.005 par value
Authorized, 250,000,000 and 125,000,000 shares,
respectively
Issued, 83,431,699 shares 417,158 417,158
Additional paid-in capital 61,034,639 54,532,204
------------ ------------
61,451,797 54,949,362
Less treasury stock, 4,923,080 shares (8,467,698) (8,467,698)
------------ ------------
52,984,099 46,481,664
Deficit accumulated during the development stage (49,510,105) (49,692,069)
------------ ------------
Total stockholders' equity (deficiency) 3,473,994 (3,210,405)
------------ ------------
Total liabilities and stockholders'
equity (deficiency) $ 26,659,488 $ 28,896,251
============ ============
See Notes to Condensed Consolidated Financial Statements
1
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
Period from
August 1, 1968
Three Months Ended (date of
--------------------------- inception) to
May 31, 2007 May 31, 2006 May 31, 2007
------------ ------------ -------------
Revenues:
Development payments $ -- $ -- $ 300,000
License fees 62,500 250,000 1,104,166
Grant revenues 50,000 -- 50,000
Consulting fees 59,833 94,922 827,557
----------- ----------- ------------
172,333 344,922 2,281,723
Operating expenses:
Research and development 1,319,947 2,588,408 21,530,341
General and administrative 1,487,670 2,086,191 26,253,987
Write-down of intellectual property rights -- -- 530,000
----------- ----------- ------------
2,807,617 4,674,599 48,314,328
----------- ----------- ------------
Operating loss (2,635,284) (4,329,677) (46,032,605)
----------- ----------- ------------
Other income(expense):
Interest income 15,441 6,343 226,813
Interest expense (1,384,901) (303,473) (8,560,233)
Additional expense related to warrants -- -- (7,304,105)
Change in fair value of warrant liability 4,339,214 -- 9,657,278
Loss on extinguishment of debt -
Related party -- -- (670,053)
Liquidated damages (652,500) -- (652,500)
Other income 28,175 47,538 881,568
Other expense -- -- (70,528)
----------- ----------- ------------
2,345,429 (249,592) (6,491,760)
----------- ----------- ------------
Loss from continuing operations before minority
interest in Myotech, LLC (289,855) (4,579,269) (52,524,365)
Minority interest in Myotech, LLC 471,819 695,825 3,103,617
----------- ----------- ------------
Income (loss)from continuing operations 181,964 (3,883,444) (49,420,748)
Loss from discontinued operations -- -- (89,357)
----------- ----------- ------------
Net income (loss) $ 181,964 $(3,883,444) $(49,510,105)
=========== =========== ============
Net income(loss) per common share:
Basic $ 0.002 $ (0.050)
=========== ===========
Diluted $ 0.002 $ (0.050)
=========== ===========
Weighted average shares outstanding:
Basic 78,508,619 76,893,764
=========== ===========
Diluted 78,886,445 76,893,764
=========== ===========
See Notes to Condensed Consolidated Financial Statements
2
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Period from
Three Months Ended August 1, 1968
May 31, (date of
------------------------ inception) to
2007 2006 May 31, 2007
---------- ----------- --------------
Cash flows used for operating activities:
Net income (loss) $ 181,964 $(3,883,444) $(49,510,105)
Adjustments to reconcile net income (loss) to net cash
used in operating activities:
Amortization of intangible assets 368,011 364,511 2,231,497
Amortization of deferred financing costs 124,233 -- 310,583
Depreciation and amortization 31,066 9,340 265,868
(Gain) loss on disposal of equipment -- -- (10,599)
Additional expenses related to warrants -- -- 7,304,105
Change in fair value of derivative liability (4,339,214) -- (9,657,278)
Realized and unrealized losses on marketable securities -- -- 66,948
Loss on debt extinguishment - related party -- -- 670,053
Accrued interest on note converted to common stock -- -- 31,504
Amortization of discount on convertible notes payable 1,005,774 -- 3,763,790
Write-down of intellectual property rights -- -- 530,000
Amortization of discount on payable to related party -- 209,524 2,887,555
Issuance of common stock for services -- -- 406,948
Issuance of common stock for interest -- -- 468,823
Grant of stock options for services 347,643 580,954 8,356,001
Expenses paid by stockholder -- -- 2,640
Minority interest (482,611) (740,904) (3,068,454)
Changes in operating assets and liabilities:
(Increase) decrease in accounts receivable 9,021 93,548 (4,927)
(Increase) decrease in due from related parties 27,246 (31,859) (32,054)
(Increase) decrease in prepaid expenses 57,321 51,729 (108,850)
(Increase) decrease in other current assets (20,414) 22,371 (4,426)
(Increase) decrease in deposits 3,498 -- 2,043
Increase (decrease) in accounts payable and
accrued expenses 472,170 553,499 1,854,197
Increase (decrease) in liquidated damages 652,500 -- 652,500
Increase (decrease) in due to related parties (28,096) 2,143 8,688
Increase (decrease) in deferred revenues (62,500) (250,000) 145,833
----------- ----------- ------------
Net cash used in operating activities (1,652,388) (3,018,588) (32,415,919)
Cash flows used for investing activities:
Purchases of property and equipment (6,984) (201,882) (611,628)
Sales of marketable securities -- -- 2,369,270
Purchase of investment -- -- (100,000)
Acquisition costs of intangible assets -- -- (466,583)
Cash paid for investment in Myotech,
net of cash received of $19,408 -- -- (280,594)
Cash paid for acquisition of Biophan Europe,
net of cash received of $107,956 -- -- (258,874)
Purchases of marketable securities -- -- (2,436,218)
----------- ----------- ------------
Net cash used in investing activities (6,984) (201,882) (1,784,627)
See Notes to Condensed Consolidated Financial Statements.
3
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Period from
Three Months Ended August 1, 1968
May 31, (date of
------------------------- inception) to
2007 2006 May 31, 2007
----------- ----------- --------------
Cash flows provided by financing activities:
Proceeds of bridge loans -- -- 986,500
Loan from stockholder -- -- 143,570
Line of credit borrowing from related party -- 3,630,000 7,980,950
Line of credit payments -- (1,500,000) (2,072,500)
Proceeds of convertible notes payable -- -- 7,250,000
Notes payable (17,957) 31,372 (139,950)
Principal payments on capital lease obligation (868) -- (868)
Proceeds from sales of common stock -- 300,000 19,438,849
Exercise of options -- 1,978 658,467
Exercise of warrants -- -- 1,142,451
Swing profits -- -- 696,087
Deferred financing costs -- -- (1,030,120)
Deferred equity placement costs -- -- (112,536)
----------- ----------- -----------
Net cash provided by (used in) financing activities (18,825) 2,463,350 34,940,900
----------- ----------- -----------
Net increase(decrease) in cash and equivalents (1,678,197) (757,120) 740,354
Cash and equivalents, beginning 2,418,551 1,477,716 --
----------- ----------- -----------
Cash and equivalents, ending $ 740,354 $ 720,596 $ 740,354
=========== =========== ===========
Supplemental schedule for cash paid for:
Interest $ -- 195,081 $ 204,881
=========== =========== ===========
Supplemental schedule of non cash investing and financing activities:
Allocation of proceeds from line of credit - related party
to beneficial conversion feature and warrants $ -- $ 272,945 $ 2,812,555
=========== =========== ===========
Allocation of proceeds from notes and warrants $ -- $ -- $ 7,250,000
=========== =========== ===========
Change in fair value of warrants reclassified from equity
to warrants liability $ -- $ -- $ 755,876
=========== =========== ===========
Reclassification of warrants from warrant liability to equity $ 6,154,792 $ -- $ 6,154,792
=========== =========== ===========
Capital lease obligation $ 7,186 $ -- $ 34,235
=========== =========== ===========
Common stock issued for subscription receivable $ -- $ 1,700,000 $ --
=========== =========== ===========
Issuance of common stock upon conversion
of line of credit loans $ -- $ -- $ 1,978,450
=========== =========== ===========
Issuance of common stock for the acquisition of
a 35% interest in Myotech, LLC $ -- $ -- $ 8,467,698
=========== =========== ===========
Issuance of common stock in satisfaction of
accounts payable $ -- $ -- $ 134,000
=========== =========== ===========
See Notes to Condensed Consolidated Financial Statements.
4
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Period from
Three Months Ended August 1, 1968
May 31, (date of
------------------ inception) to
2007 2006 May 31, 2007
---- ---- --------------
Liabilities assumed in conjunction with acquisition of 51% interest in
Biophan Europe and certain intellectual property rights:
Fair value of assets acquired $1,105,714
Cash paid (366,830)
Promissory note issued (200,000)
Restricted stock issued (134,000)
Payables incurred (226,500)
----------
Liabilities assumed $ -- $ -- $ 178,384
==== ==== ==========
Issuance of common stock upon conversion
of bridge loans $ -- $ -- $1,142,068
==== ==== ==========
Acquisition of intellectual property $ -- $ -- $ 425,000
==== ==== ==========
Intellectual property acquired through issuance of
capital stock and assumption of related party payable $ -- $ -- $ 175,000
==== ==== ==========
See Notes to Condensed Consolidated Financial Statements.
5
BIOPHAN TECHNOLOGIES, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
May 31, 2007
6
INTERIM FINANCIAL STATEMENTS:
The condensed consolidated financial statements as of May 31, 2007 and for the
three months ended May 31, 2007 and 2006 are unaudited. However, in the opinion
of management of the Company, these financial statements reflect all
adjustments, consisting solely of normal recurring adjustments, necessary to
present fairly the financial position and results of operations for such interim
periods. The results of operations for the interim periods presented are not
necessarily indicative of the results to be obtained for a full year. These
unaudited condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 2007.
BASIS OF CONSOLIDATION:
The consolidated financial statements include the accounts of Biophan
Technologies, Inc. ("Biophan"), its wholly owned subsidiaries, LTR Antisense
Technology, Inc.("Antisense") and Nanolution Technologies, Inc., formerly MRIC
Drug Delivery Systems, LLC, ("Nanolution"), its majority owned subsidiaries
Biophan Europe GmbH ("Biophan Europe"), formerly aMRIs GmbH, and TE Bio LLC ("TE
Bio"), and Myotech, LLC ("Myotech"), a variable interest entity, collectively
referred to as the "Company". All significant inter-company accounts and
transactions have been eliminated in consolidation.
COMPANY HISTORY:
The Company was incorporated under the laws of the State of Idaho on August 1,
1968 and on January 12, 2000, changed its domicile to Nevada by merging into a
Nevada corporation, and on July 19, 2001, changed its name to Biophan
Technologies, Inc. From the inception of the current line of business on
December 1, 2000, the Company has not generated any material revenues and
operating profits. Therefore, the Company is in the development stage and will
remain so until the realization of significant revenues and operating profits.
The Company's ability to continue in business is dependent upon maintaining
sufficient financing or attaining future profitable operations.
PRINCIPAL BUSINESS ACTIVITIES:
The primary mission is to develop and commercially exploit technologies for
improving the performance, and as a result, the competitiveness of biomedical
devices manufactured by third party companies. The Company possesses
technologies for enabling biomedical devices, both implantable and those used in
diagnostic and interventional procedures, to be safe (do not harm the patient or
physician) and image compatible (allow effective imaging of the device and its
surrounding tissue) with MRI (magnetic resonance imaging). The Company is also
developing and marketing a system for generating power for implantable devices
from body heat, and a series of implantable devices including MRI-visible
vascular implants such as a vena cava filter, a heart valve and an occluder for
the treatment of atrial septal defects, a hole in the wall separating the left
and right chambers of the heart. The Company's first licensee for several of
these technologies is Boston Scientific (NYSE: BSX). The Company is also an
owner of a substantial minority interest, with rights to take a majority
interest, in Myotech,(accounted for as a variable interest entity) developer of
the MYO-VAD, a cardiac assist device that does not contact circulating blood and
utilizes technology that has the potential to become a standard of care in the
device market for treating multiple types of acute and chronic heart failure
including congestive heart failure and sudden cardiac arrest.
GOING CONCERN:
As presented in the accompanying financial statements, the Company has been in
the development stage since inception, incurring recurring losses from
operations and, as of May 31, 2007, the Company's current liabilities exceeded
its current assets by $8,199,545. Beginning on December 1, 2006 we were
obligated to make quarterly interest payments and monthly payments of $219,697
principal. We made an initial timely interest payment of $165,081 in cash and in
June 2007, we made interest and principal payments in stock aggregating
$1,332,870 (4,238,232 shares). As of the date hereof, we remain in default of
our obligations to make payments to the investors of liquidated damages of
$652,500 and past due principal payments of $847,403 under the Senior Secured
Convertible Notes, but the investors have not demanded payment. These factors
raise potential doubt about the Company's ability to continue as a going
concern. Management is taking several actions to ensure that the Company will
continue as a going concern.
The Company is in regular contact with its current investors to resolve the
defaults and is seeking to negotiate additional capital arrangements that will
enable the funding of operations for a period of up to twelve months.
Further, in order to address the current situation, management has instituted a
cost reduction program that includes a reduction in monthly costs from
approximately $1,100,000 at this time last year to a goal of under $300,000 per
month in the months ahead. In addition, the Company has reduced its investments
in several product lines and pursued alternative funding vehicles. The Company
has reorganized its efforts on the Myotech cardiac assist device development
while keeping core functions operational and maintaining intellectual property
and designs.
7
Management believes these factors and actions will contribute toward obtaining
sufficient financing for the near term and ultimate profitability. The
accompanying financial statements do not include any adjustments that might be
necessary if the Company is unable to continue as a going concern.
DEFERRED TAXES:
Deferred tax assets and liabilities are recognized for future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases. Deferred tax
assets and liabilities are measured using enacted rates expected to apply when
the differences are expected to be realized. A valuation allowance is recognized
if it is anticipated that some or all of the deferred tax asset may not be
realized.
In June 2006, the Financial Accounting Standards Board ("FASB") issued FASB
Interpretation No. 48, "Accounting for Uncertainty in Income Taxes - an
interpretation of FASB Statement No. 109" ("FIN 48"). FIN 48 clarifies the
accounting for uncertainty in income taxes recognized in a company's financial
statements in accordance with SFAS No. 109, "Accounting for Income Taxes." FIN
48 prescribes a recognition threshold and measurement attribute for the
financial statement recognition and measurement of a tax position taken or
expected to be taken in a tax return. The Company adopted FIN 48 effective March
1, 2007. The Company does not believe that FIN 48 had a material effect on its
consolidated financial position or results of operations as the Company has no
unrecognized tax benefits and has not incurred any interest or penalties in any
of its tax jurisdictions. The Company has open tax years beginning in fiscal
years ended year February 28, 2004 through 2007. None of the Company's tax
returns have been examined by federal or state jurisdictions during these
periods.
REGISTRATION RIGHTS AGREEMENT:
In December 2006, the FASB issued Staff Position No. EITF 00-19-2 ("FSP"). This
FSP addresses an issuer's accounting for registration payment arrangements and
specifies that the contingent obligation to make future payments or otherwise
transfer consideration under a registration payment arrangement should be
separately recognized and measured in accordance with FASB No. 5. The guidance
in this FSP amends FASB Statements 133 and 150 and FASB Interpretation No. 45 to
include scope exceptions for registration payment arrangements. This FSP further
clarifies that a financial instrument subject to a registration payment
arrangement should be accounted for without regard to the contingent obligation
to transfer consideration pursuant to the registration payment arrangement. This
guidance is effective for financial statements issued for fiscal years beginning
after December 15, 2006. The Company has adopted this FSP in the current quarter
as it pertains to the issuance of the Senior Secured Convertible Notes and
related warrants as explained in the Note captioned "Senior Secured Convertible
Notes".
RECENT ACCOUNTING PRONOUNCEMENTS:
Management does not believe that any recently issued, but not yet effective
accounting standards, if currently adopted, would have a material effect on the
accompanying financial statements.
INVESTMENT IN MYOTECH, LLC:
Effective November 30, 2005, we entered into a Securities Purchase Agreement for
the acquisition of an initial 35% interest in Myotech, LLC ("Myotech"), a New
York limited liability company, whereby we exchanged 4,923,080 shares of our
common stock, par value $.005, for 3,768,488 Class A (voting) units of Myotech.
Based upon the terms of the Securities Purchase Agreement, we were obligated to
purchase for cash consideration of $2.225 million an additional 811,037 Class A
units. We may elect to acquire up to an additional 3,563,097 Class A units for
further cash consideration of up to $9.775 million, over a 24-month period,
which may result in the Company owning a majority interest in Myotech. During
the three month period ended February 28, 2006, Biophan provided $1,185,000 of
additional funding for 431,946 newly issued Class A units of Myotech. During the
year ended February 28, 2007, Biophan has provided $1,040,000 of additional
funding satisfying the cash consideration of $2.225 million cited above, for
379,091 newly issued Class A units of Myotech. In addition, Biophan has also
provided an additional investment of $1,994,349 to Myotech against milestone 2
in the year ended February 28, 2007 for 726,963 newly issued Class A units,
which increased our ownership to 43.7%. Additional investments of $279,014 were
made since during the three months ended May 31, 2007 for 101,704 additional
newly issued Class A units, which raised our ownership percentage to 44.1%.
We have determined that Myotech is a Variable Interest Entity within the meaning
of FIN 46(R) and that we are the primary beneficiary (as defined in FIN 46(R)).
Consequently, the financial statements of Myotech have been consolidated with
our consolidated financial statements for all periods ending on or after
November 30, 2005, the date of our initial investment in Myotech.
8
The following is selected financial data for Myotech, LLC at May 31, 2007 and
2006 and for the three months then ended:
May 31, 2007 May 31, 2006
------------ ------------
Total current assets $ 46,594 $ 23,167
Intangible assets, net of amortization 22,729,640 24,107,192
Other assets 178,907 218,925
----------- -----------
Total assets $22,955,141 $24,349,284
=========== ===========
Current liabilities $ 375,341 $ 547,732
Equity 22,579,800 23,801,552
----------- -----------
$22,955,141 $24,349,284
=========== ===========
Net loss from operations $ (956,632) $(1,259,843)
=========== ===========
LINE OF CREDIT AGREEMENTS:
On May 27, 2005, we entered into a Line of Credit Agreement with Biomed
Solutions, LLC, a related party, whereby Biomed agreed to provide a line of
credit facility of up to $2 million. Borrowings under the line, bear interest at
8% per annum, are payable on demand and are convertible at Biomed's election,
into the Company's common stock at 90% of the average closing price for the 20
trading days preceding the date of borrowings under the line. In June 2005, the
Company borrowed the entire $2 million under the line in two separate draws of
$1 million each. In accordance with the agreement, Biomed received warrants to
purchase 500,000 shares of the Company's common stock at an exercise price of
110% of the average closing price for the 20 trading days preceding the date of
execution of the credit agreement. The Company recorded a discount on the
borrowings of $958,160 due to the beneficial conversion feature of the note as
well as for the value of the warrants. The discount was amortized as additional
interest expense over the term of the note. In August 2005, Biomed elected to
convert $1 million of the note plus accrued interest into 480,899 shares of
common stock at which time, the remaining discount related to the $1 million
portion of the loan was fully expensed. On October 7, 2005, we repaid $500,000
of principal and all accrued interest on the loan. The balance of borrowings on
the line was $500,000 at May 31, 2007.
On January 24, 2006, we entered into an additional Line of Credit Agreement (the
"Line of Credit Agreement") with Biomed Solutions, LLC, pursuant to which Biomed
committed to make advances to us, in an aggregate amount of up to $5,000,000.
Under the Line of Credit Agreement, advances may be drawn down in such amounts
and at such times as we determine upon 15 days prior notice to Biomed, except
that we may not draw down more than $1,500,000 in any 30-day period. Amounts
borrowed bear interest at the rate of 8% per annum and were convertible into
shares of our Common Stock at the rate of $1.46 per share. Biomed's obligation
to lend to us under the Line of Credit Agreement expires on June 30, 2007, on
which date the entire amount borrowed by us (and not converted into shares of
our Common Stock) becomes due and payable. In connection with the establishment
of the credit facility, we issued to Biomed a warrant to purchase up to
1,198,630 shares of our Common Stock at an exercise price of $1.89 per share.
The Company recorded a discount on the borrowings of $1,678,425 due to the
beneficial conversion feature of the note as well as for the value of the
warrant.
On October 11, 2006, in connection with our Securities Purchase Agreement dated
October 11, 2006 with Iroquois Master Fund Ltd and other private investors (the
"Purchase Agreement"), we amended our January 24, 2006 Line of Credit Agreement
(the "Biomed Line of Credit Agreement") with Biomed and the Convertible
Promissory Note in the original principal amount of $5,000,000 issued by us to
Biomed on January 24, 2006 pursuant to the Biomed Line of Credit Agreement (the
"$5,000,000 Biomed Note"). The amendment reduced the price at which the
$5,000,000 Biomed Note is convertible into shares of our Common Stock from $1.46
per share to a conversion price of $0.67. In connection with the Purchase
Agreement, we also entered into a Subordination and Standstill Agreement (the
"Subordination Agreement") with Biomed and the investors who are parties to the
Purchase Agreement, pursuant to which Biomed agreed (i) to subordinate its
rights to payment under the $5,000,000 Biomed Note and the Convertible
Promissory Note in the original principal amount of $2,000,000 issued by us to
Biomed on May 27, 2005 to the rights of the investors under the Notes and (ii)
to convert the entire outstanding amount of principal and interest due under the
$5,000,000 Biomed Note in excess of $700,000 into shares of our common stock
upon the effectiveness of an amendment to our Articles of Incorporation to
increase the number of our authorized shares which was effective May 9, 2007. As
of this date, the required conversion has not occurred and the balance of the
borrowings of the line was $3,930,000 at May 31, 2007.
The fair value of the notes is not readily determinable as there is a limited
market for such related party debt.
9
SENIOR SECURED CONVERTIBLE NOTES:
On October 11, 2006, we entered into a Securities Purchase Agreement (the
"Purchase Agreement") with 10 private investors led by Iroquois Master Fund Ltd
("Iroquois"). Pursuant to the Purchase Agreement, on October 12, 2006 we issued
$7,250,000 of Senior Secured Convertible Notes (the "Notes") to the investors
and received proceeds of $6,219,880 after paying estimated fees and expenses of
$1,030,120 related to the transaction. The holders of the Notes may elect to
convert the Notes at any time into shares of our common stock based upon a price
of $0.67 per share (the "Conversion Price"). Interest on the outstanding
principal amount under the Notes is payable quarterly at a rate equal to the
six-month London InterBank Overnight Rate plus 500 basis points, with a minimum
rate of 10% per annum and a maximum rate of 12% per annum, payable at our option
in cash or shares of our common stock registered for resale under the Securities
Act of 1933, as amended (the "Securities Act"). If we elect to make an interest
payment in common stock, the number of shares issuable by us will be based upon
the lower of (i) 90% of the 20-day trailing average volume weighted average
price per share as reported on Bloomberg LP (the "VWAPS") or (ii) the Conversion
Price. Principal on the Notes amortizes and payments are due in 33 equal monthly
installments commencing four months following issuance of the Notes, and may be
made at our option in cash or shares of our common stock registered for resale
under the Securities Act. If we elect to make a principal payment in common
stock, the number of shares issuable by us will be based upon the lower of (i)
87.5% of the 15-day trailing VWAPS prior to the principal payment date or (ii)
the Conversion Price. Our obligations under the Notes are secured by a first
priority security interest in substantially all of our assets pursuant to a
Security Agreement dated as of October 11, 2006 among us, the investors and
Iroquois, as agent for the investors (the "Security Agreement").
As further consideration to the investors, we issued to the investors one-year
warrants to purchase an aggregate of 10,820,896 shares of our common stock at a
price of $0.67 per share. If the investors elect to exercise these one-year
warrants, they will also receive additional five-year warrants to purchase the
shares of our common stock equal to the number of shares purchased under the
one-year warrants, with 50% of the additional warrants having an exercise price
of 115% of the per share purchase price, and the remaining 50% of the additional
five-year warrants having an exercise price of 125% of the per share purchase
price. We also issued to the investors five-year warrants to purchase an
aggregate of 10,820,896 shares of our common stock. The first five-year warrants
allow for the purchase of 5,410,448 shares of our common stock at an exercise
price of $0.81 per share, and the second five-year warrants allow for the
purchase of 5,410,448 shares of our common stock at an exercise price of $0.89
per share. The warrants contain anti-dilution protection that, should we issue
equity or equity-linked securities at a price per common share below the
exercise price of the five-year warrants, it will automatically adjust the
exercise price of the warrants to the price at which we issue such equity or
equity-linked securities. The total fair value of the warrants was $14,554,105.
The Company recorded a discount on the Notes of $7,250,000 for the fair value of
the related warrants. The excess of the fair value of the warrants over the
carrying value of the notes, which amounted to $7,304,105, was recognized as
additional expense related to warrants in the statement of operations for the
year ended February 28, 2007. The discount on the Notes is being amortized over
the life of the Notes using the effective interest method. The discount
amortization for the three months ended May 31, 2007 amounted to $1,005,774 and
is included in interest expense.
We further agreed to register for resale under the Securities Act the common
stock issuable upon the exercise of the warrants and any shares of common stock
we may issue to the holders of the Notes in connection with payments of interest
and principal, or which we are obligated to issue upon any conversion of the
Notes at the option of the holders. Because we were unable to comply with
various provisions of the registration requirements of the Purchase Agreement we
incurred liquidated damages amounting to $652,500 that have been accrued and
charged to operations during the three months ended May 31, 2007.
On February 21, 2007, we entered into a Forbearance Agreement (the "Forbearance
Agreement") with the investors pursuant to which the investors agreed that,
during the period commencing on February 16, 2007 and ending on the earlier of
(i) March 31, 2007 or (ii) the date on which any Termination Event (as defined
in the Forbearance Agreement) first occurs (the "Forbearance Period"), they will
forbear from exercising any and all of the rights and remedies which they may
have against us or any of our assets under the Notes or the Purchase Agreement
or at law or in equity as a result of any default under the Notes or as a result
of the occurrence of certain events with respect to the Purchase Agreement. In
exchange for entering into the Forbearance Agreement, we issued pro rata to the
investors three-year warrants for the purchase of an aggregate of 60,000 shares
of our common stock at an exercise price of $0.51 per share (the "Fee
Warrants").
Upon the issuance of the Fee Warrants, the exercise prices of the five-year
warrants issued to the investors pursuant to the Purchase Agreement (the
"Original Warrants") for the purchase of an aggregate of 10,820,896 shares of
our common stock were automatically adjusted from $0.81 per share and $0.89 per
share, respectively, to $0.51 per share, and the number of shares of our common
stock issuable upon exercise of the Original Warrants was automatically
adjusted, proportionately, to an aggregate of 18,034,830 shares. In the
Forbearance Agreement, the investors waived, with respect to the issuance of the
Fee Warrants, application of similar anti-dilution adjustments contained in the
Notes and in a third series of warrants for the purchase, on or before October
12, 2007, of an aggregate of 10,820,896 additional shares of our common stock at
an exercise price of $0.67 per share (the "One Year Warrants"). C.E. Unterberg
Towbin, which holds a warrant for the purchase of 865,672 shares of our common
stock at an exercise price of $0.67 per share, issued to it in connection with
its services as exclusive placement agent under the Purchase Agreement,
separately agreed to waive, with respect to the issuance of the Fee Warrants,
application of the anti-dilution provisions set forth in that warrant. Because
the anti-dilution adjustment to the Original Warrants is accounted for as a
modification of the Original Warrants, we recorded an expense for this
modification in the period ended February 28, 2007.
10
FAIR VALUE OF WARRANT LIABILITY:
In accordance with the guidance provided by EITF 00-19, Accounting for
Derivative Financial Instruments Indexed to and Potentially Settled in, a
Company's Own Stock, we recorded a liability of $10,157,937 for the fair value
of the warrants related to the Senior Secured Convertible Notes at February 28,
2007 in order to provide for the possibility that we would not be able to comply
with the registration rights of the lenders as contained in the Securities
Purchase Agreement because we did not have sufficient available authorized
shares to execute a potential conversion of the Notes and related warrants and
thus we would be required to settle the contract in cash. In addition, since we
did not have sufficient available authorized shares to execute a potential
conversion of other outstanding warrants, if requested to do so by the grantees,
we could be required to settle any conversion requests in cash. Therefore, we
reclassified warrants with an approximate value of $756,000 from equity to the
warrant liability. The fair value of this amount was $336,069 at February 28,
2007. The Company obtained stockholder approval to increase the authorized
shares at a Special Meeting held on May 8, 2007. The total fair value of
derivative liability, recorded at $10,494,006 at February 28, 2007, was adjusted
by $4,339,214 to $6,154,792 at May 8, 2007 resulting in a net non-cash income
adjustment of that amount. The balance of the liability was then reclassified to
additional paid-in capital.
STOCKHOLDERS' EQUITY:
On May 8, 2007, at a Special Meeting of Stockholders, a proposal to increase the
authorized shares of common stock, $.005 par value, from 125 million to 250
million was approved by the stockholders. As a result, additional paid-in
capital was increased by $6,154,792 due to the elimination of the fair value of
warrant liability as of the date of the stockholder approval. In addition, a
non-cash charge for stock option expense increased additional paid-in capital in
the amount of $347,643 for the three months ended May 31, 2007.
EARNINGS PER SHARE:
Dilutive potential common shares are calculated in accordance with the treasury
stock method. Basic earnings per common share for the three months ended May 31,
2007 are calculated by dividing net income by weighted-average common shares
outstanding during the period. Diluted earnings per common share for the three
months ended May 31, 2007 are calculated by dividing net income by
weighted-average common shares outstanding during the period plus dilutive
potential common shares, which are determined as follows:
Weighted-average common shares 78,508,619
Effect of dilutive securities:
Warrants 250,000
Options to purchase common stock 680,000
Treasury shares purchased with proceeds of exercises (552,174)
----------
Dilutive potential common shares 78,886,445
==========
Dilutive potential common shares are calculated in accordance with the treasury
stock method, which assumes that proceeds from the exercise of all warrants and
options are used to repurchase common stock at market value. The amount of
shares remaining after the proceeds are exhausted represents the potentially
dilutive effect of the securities.
11
SHARE-BASED COMPENSATION PLANS:
The Company has two stock-based compensation plans, entitled Biophan
Technologies, Inc. 2001 Stock Option Plan and Biophan Technologies, Inc. 2006
Incentive Stock Plan (the "Plans") which are stockholder approved. The Plans
provide for the grant of incentive and non-qualified stock options to selected
employees, and the grant of non-qualified options to selected consultants and to
directors and advisory board members. In addition, various other types of
stock-based awards may be granted. The Plans are administered by the
Compensation Committee of the Board and authorizes the grant of options or
restricted stock awards for 13,000,000 shares under the 2001 Plan and 7,500,000
shares under the 2006 Plan. The Compensation Committee determines which eligible
individuals are to receive options or other awards under the Plans, the terms
and conditions of those awards, the applicable vesting schedule, the option
price and term for any granted options, and all other terms and conditions
governing the option grants and other awards made under the Option Plan.
Non-employee directors also receive periodic option grants pursuant to the
automatic grant program in effect for them under the 2006 Plan.
Effective March 1, 2006, the Company adopted SFAS No. 123 (revised),
"Share-Based Payment" (SFAS 123(R)) utilizing the modified prospective approach.
Prior to the adoption of SFAS 123(R), stock option grants to employees and
directors were accounted for in accordance with APB Opinion No. 25, "Accounting
for Stock Issued to Employees" (the intrinsic value method) and the
disclosure-only provisions of SFAS 123, "Accounting for Stock-Based
Compensation". Accordingly, employee compensation expense was recognized only to
the extent that the fair value of our common stock on the date of grant exceeded
the stock option exercise price.
Under the modified prospective approach, SFAS 123(R) applies to new grants and
to grants that were outstanding on February 28, 2006 that are subsequently
modified, repurchased or cancelled. Under the modified prospective approach,
compensation cost recognized in fiscal 2007 includes compensation cost for all
share-based payments granted prior to, but not yet vested as of February 28,
2006, based on the grant-date fair value estimated in accordance with the
original provisions of SFAS 123, and compensation cost for all share-based
payments granted subsequent to February 28, 2006, based on the grant-date fair
value estimated in accordance with the provisions of SFAS 123(R). Prior periods
were not restated to reflect the impact of adopting the new standard.
We use the Black-Scholes option pricing model to estimate the fair value of
stock-based awards with the following weighted-average assumptions for the
quarters ended May 31, 2007 and 2006:
2007 2006
------------ -----------
Expected volatility 75.2-81.4 119.7-121.8
Risk-free interest rate 4.55%-4.67% 4.6%
Expected life of options (years) 8 years 5-10 years
Expected dividends -0- -0-
The assumptions above are based on multiple factors, including historical
exercise patterns of employees in relatively homogeneous groups with respect to
exercise and post-vesting employment termination behaviors, expected future
exercising patterns for these same homogeneous groups and the implied volatility
of our stock price.
At May 31, 2007, there was $ 963,715 of unrecognized compensation cost related
to stock-based payments which is expected to be recognized over a
weighted-average period of 1.18 years.
The following table represents stock option activity for the quarter ended May
31, 2007:
Weighted-
Weighted- Average
Number Average Remaining
of Exercise Contract
Shares Price Life (years)
--------- --------- ------------
Outstanding options at 2/28/07 9,428,062 $ .96
Granted 115,000 $ .45
Exercised -0-
Forfeited (631,500) $1.49
Expired -0-
---------
Outstanding options at 5/31/07 8,911,562 $ .93 6.21
========= ===== ====
Outstanding exercisable at 5/31/07 7,281,979 $ .84 6.02
========= ===== ====
At May 31, 2007, shares available for future stock option grants to employees
and others under our 2001 Stock Option Plan were 1,189,481 and shares available
for future stock option grants to employees and others under our 2006 Incentive
Stock Plan were 7,190,003.
At May 31, 2007, the aggregate intrinsic value of shares outstanding was
$32,500, and the aggregate intrinsic value of options exercisable was $32,500.
No options were exercised during the quarter ended May 31, 2007.
12
The following table summarizes our non-vested stock option activity for the
quarter ended May 31, 2007:
Weighted-Average
Number of Grant-Date Fair
Shares Value
---------- ----------------
Non-vested stock options at 2/28/07 1,994,583 $ .62
Granted 115,000 $ .35
Vested (18,750) $ .37
Forfeited (461,250) $ .50
----------
Non-vested stock options at 5/31/07 1,629,583 $ .72
==========
CONTINGENCIES:
We are not a party to any material legal proceedings and there are no material
legal proceedings pending with respect to our property, except as noted below.
We are not aware of any legal proceedings contemplated by any governmental
authorities involving either us or our property. None of our directors, officers
or affiliates is an adverse party in any legal proceedings involving us or our
subsidiaries, or has an interest in any proceeding which is adverse to us or our
subsidiaries.
The Company is pursuing legal claims against one of its former law firms and
certain of its attorneys. Review of the firm's work product and bills revealed
questions about the firm's billing practices and other activities. The amount of
potential damages has not yet been quantified. Also, the law firm has asserted
claims seeking payment of additional legal fees, which claims the Company has
denied. The litigation is in an early stage. While, as with any legal
proceedings, no assurance can be given as to ultimate outcome, management
believes that the outcome of the litigation will not have a material adverse
effect upon the Company's financial condition. Accordingly, adjustments, if any
that might result from the resolution of this matter have not been reflected in
the financial statements.
On April 5, 2007, SBI Brightline LLC and SBI Brightline XI, LLC brought suit
against us and Biomed Solutions, LLC in the Superior Court of Orange County,
California. The suit alleges, among other things, that in September 2006 we
entered into an agreement to terminate the Stock Purchase Agreement dated as of
May 27, 2005 and amended on January 8, 2006, between us and SBI Brightline XI,
LLC, and seeks unspecified monetary damages and an order by the Court deeming
the Stock Purchase Agreement to be terminated. We believe the allegations made
by SBI are without basis in fact and in response moved for dismissal of the
complaint. The plaintiffs withdrew their complaint following our motion and
filed an amended complaint containing nearly identical allegations. We intend to
continue to defend the law suit vigorously, including seeking dismissal of the
amended complaint. Because of the potential costs of litigation and the
anticipated demands that our defense may place on the time and attention of our
management our defense of this matter, regardless of the outcome, could have a
material adverse effect on our business and operations.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
GENERAL
Our primary mission is to develop and commercially exploit technologies for
improving the performance, and the corresponding competitiveness, of biomedical
devices manufactured by third party companies. We do not currently employ our
own manufacturing or distribution channels but rather rely on relationships with
sub-contractors and/or partner companies. We develop technology protected by
strong intellectual property targeted at specific markets within the medical
technology sector.
COMPANY BUSINESS
During this period we have:
o Continued to develop and market our technology to help solve the problems
of MRI safety that prevent MRI examination of people with pacemakers,
implantable cardioverter defibrillators (ICDs), neurostimulators, pain
control devices, pumps, and virtually any implanted or interventional
device with elongated metal leads.
o Continued technical meetings and negotiations with representatives of
multiple medical device companies interested in Biophan's solutions for
MRI safety, and entered into currently ongoing negotiations with several
of these companies in which we have responded to requests for pricing for
co-exclusive licensing options. As a result of the acquisition of Guidant
and Advanced Bionics by Boston Scientific, these companies have a license
to use our technology for MRI safety for pacemakers, ICDs, and
neurostimulators on a non-exclusive basis. This has led to a significant
increase in activity and interest in additional licenses for our
technology. Several of these discussions have resulted in the exchange of
term sheets as well as discussions about possible forms of new R&D
relationships.
o Recognized approximately $172,000 in revenue from licensing, MRI testing,
and consulting. We expect to recognize additional revenue from these
transactions in the next several quarters.
13
o Continued development of a new cardiac support system, the Myotech CSS,
through our relationship with MYOTECH, LLC. The Myotech CSS is a
life-saving device that provides benefits and competitive advantages not
possible with other cardiac support devices. In the past, this technology
has saved human lives and holds tremendous promise for the treatment of
multiple forms of acute and chronic heart failure.
o Continued optimization of our technology to improve stents so they can be
non-invasively imaged with MRI to detect the presence of restenosis (blood
vessel blockage) and blood clots after implantation. We are also
developing an MRI visible heart valve, including the ability to optionally
place the valve under MRI guidance, which provides significant advantages
over existing imaging procedures. Several technologies to enable stent and
heart valve visibility are licensed exclusively to Boston Scientific
(NYSE:BSX), with rights to enforce and/or sub-license the technology to
third parties.
o Continued development of an MRI image compatible vena cava filter, which
allows MR imaging of blood clots that may be present in the filter to help
ensure the safe removal of the device. We are also developing a septal
occluder device that can also be imaged and optionally implanted under MRI
guidance to treat conditions such as PFO (patent foramen ovale) and atrial
septal defects, the latter being a hole in the septum between the left and
right atria in the heart. This will be the first septal occluder to be
visible as well as optionally implantable under MRI.
o Continued working under a Cooperative Research and Development Agreement
(CRADA) with the FDA's Office of Science and Engineering Laboratories
(OSEL) to research and define methods for measuring MRI safety of medical
implants by examining the leads of cardiac rhythm management and
neurostimulation devices. This work will involve identifying worst case
conditions for testing MRI safety, establishing precise device safety
guidelines, and defining measurement methods, i.e., how to measure device
safety. One objective of the CRADA is to develop test methods and
guidelines that could be offered to standards-setting groups as well as
FDA reviewers for consideration for testing MR compatibility. This
initiative had initial participation by all major pacemaker,
defibrillator, neurostimulator manufacturers, and several MRI
manufacturers, and Biophan is supporting movement of the industry towards
solving in earnest the problems of MRI contraindication for these devices.
o Changed our distributorship for the MRI Safe "Squiggle Motor" to a
non-exclusive agreement to eliminate the annual fees associated with
maintaining exclusivity. We retain the rights to distribute the technology
to certain named accounts in the medical field with whom we have been
involved in evaluating the Squiggle motor.
We have determined that the technologies that we control which are the most
proven and the most likely to produce revenues within the near term are our MRI
technologies (both for safety and image compatibility), and the MYOTECH MYO-VAD
technology. These technologies are our primary areas of focus.
Other programs, such as the biothermal power supply that we have been developing
with NASA, will take longer to develop, and we have decided to fund these
projects through either government grants, strategic partners, or other
structures that do not divert focus and resources from our short-term goals of
capitalizing on our core business fields.
The work done to date at NASA on the biothermal power supply has indicated that
it may require an additional 18 months to determine if we can develop a
significant improvement in performance of thermoelectric materials over the
current state of the art, and adequate to generate power from the available heat
in the human body. This is the first step that we must complete before we can
begin construction of a prototype for generating power from body heat. We
estimate that the additional investment required to take this technology to a
completed prototype stage will be at least two more years, at a cost of
approximately $200,000 to $300,000 per year. We are exploring collaborations or
joint development efforts to continue active development of this program. We
have secured one SBIR Phase 1 grant from Department of Homeland Security, are
expecting a similar grant from Department of Energy, and are pursuing additional
grant and matching fund opportunities with other Federal agencies.
LIQUIDITY
As further described under the heading "Line of Credit Agreements" in the Notes
to the Condensed Consolidated Financial Statements, our affiliate Biomed
Solutions, LLC, provided us with a $5 million Line of Credit. Under the Line of
Credit agreement, advances may be drawn down in such amounts and at such times
as we determine upon 15 days prior notice to Biomed, except that we may not draw
down more than $1,500,000 in any 30-day period. Amounts borrowed will bear
interest at the rate of 8% per annum and are convertible into shares of our
Common Stock at the rate of $1.46 per share. Biomed's obligation to lend to us
under the line of credit agreement expires on June 30, 2007, on which date the
entire amount borrowed by us (and not converted into shares of our Common Stock)
becomes due and payable. We are obligated to utilize the entire credit facility.
The balance of borrowings on the line was $3,930,000 at November 30, 2006.
Biomed is headed by our President, Michael Weiner, who is also a substantial
beneficial owner of Biomed. On October 11, 2006, in connection with our
Securities Purchase Agreement dated October 11, 2006 with Iroquois Master Fund
Ltd and other private investors (the "Purchase Agreement"), we amended our
January 24, 2006 Line of Credit Agreement (the "Biomed Line of Credit
Agreement") with Biomed and the Convertible Promissory Note in the original
principal amount of $5,000,000 issued by us to Biomed on January 24, 2006
pursuant to the Biomed Line of Credit Agreement (the "$5,000,000 Biomed Note").
The amendments reduce the price at which the $5,000,000 Biomed Note is
convertible into shares of our Common Stock from $1.46 per share to a conversion
price of $0.67. The amendments also eliminate our obligation to draw down the
entire credit facility. In connection with the Purchase Agreement, we also
entered into a Subordination and Standstill Agreement (the "Subordination
Agreement") with Biomed and the investors who are parties to the Purchase
Agreement, pursuant to which Biomed agreed (i) to subordinate its rights to
payment under the $5,000,000 Biomed Note and the Convertible Promissory Note in
the original principal amount of $2,000,000 issued by us to Biomed on May 27,
2005 to the rights of the investors under the Iroquois Notes and (ii) to convert
the entire outstanding amount of principal and interest due under the $5,000,000
Biomed Note in excess of $700,000 into shares of our common stock upon the
effectiveness of an amendment to our Articles of Incorporation to increase the
number of our authorized shares which we have agreed, in the Purchase Agreement,
to propose to our shareholders. Although the Articles of Incorporation were
amended on May 9, 2007, we have not yet converted the major portion of the
Biomed Note to common stock, as described above, at May 31, 2007.
14
On May 27, 2005, we entered into a Line of Credit Agreement with Biomed, whereby
Biomed agreed to provide a line of credit facility of up to $2 million.
Borrowings under the line bear interest at 8% per annum, are payable on demand
after November 30, 2006 and are convertible, at Biomed's election into the
Company's common stock at 90% of the average closing price for the 20 trading
days preceding the date of borrowings under the line. In June 2005, the Company
borrowed the entire $2 million under the line in two separate draws of $1
million each, in accordance with the agreement. On August 31, 2005, Biomed
elected to convert $1 million of the note plus accrued interest into 480,899
shares of common stock at which time, the remaining discount related to the $1
million portion of the loan was fully expensed. On October 7, 2005, we repaid
$500,000 of principal and all accrued interest on the loan. The balance of
borrowings on the line was $500,000 at May 31, 2007.
We have an agreement with SBI Brightline XI, LLC for a $30 million fixed price
financing involving the sale to SBI of up to 10,000,000 shares of our common
stock. The Company elected to sell the first tranche of 1 million shares at $2
per share on May 23, 2006; the funds from the sale of this first tranche have
been received. The Company elected to sell the second tranche of 1 million
shares at $2 per share on July 21, 2006. To date $1,175,000 of the funds from
the sale of this tranche has been received and 587,500 shares have been issued.
On October 11, 2006, we elected to exercise all of our remaining put rights,
requiring SBI to purchase the remaining tranches at a price of $26,000,000. To
date, SBI has failed to meet its obligation to purchase these shares and the
Company has not issued the shares. We believe SBI's failure to purchase all of
the shares which we elected to sell to them on July 21, 2006, or any of the
shares which we elected to sell to them on October 11, 2006 constitutes a breach
of SBI's contractual obligations under the SBI Agreement. Under the SBI
Agreement, SBI is irrevocably bound to purchase the shares in the amounts and at
the times determined by us. We filed an action to enforce all of our rights
under the SBI Agreement. In our Purchase Agreement with Iroquois Master Fund Ltd
and the other investors, we agreed (i) to enforce all of our rights and remedies
under the SBI Agreement in connection with the breach by SBI, and (ii) not to
agree to any settlement, amendment, waiver or consent under the SBI Agreement
without the prior written consent of Iroquois.
Effective November 30, 2005, we entered into a Securities Purchase Agreement for
the acquisition of an initial 35% interest in Myotech, LLC ("Myotech"), a New
York limited liability company, whereby we exchanged 4,923,080 shares of our
common stock, par value $.005, for 3,768,488 Class A (voting) units of Myotech.
Based upon the terms of the Securities Purchase Agreement, we were obligated to
purchase for cash consideration of $2.225 million an additional 811,037 Class A
units. We may elect to acquire up to an additional 3,563,097 Class A units for
further cash consideration of up to $9.775 million, over a 24-month period,
which may result in the Company owning a majority interest in Myotech. During
the three month period ended February 28, 2006, Biophan provided $1,185,000 of
additional funding for 431,946 newly issued Class A units of Myotech.
During the year ended February 28, 2007, Biophan has provided $1,040,000 of
additional funding satisfying the cash consideration of $2.225 million cited
above, for 379,091 newly issued Class A units of Myotech. In addition, Biophan
has also provided an additional investment of $1,994,349 to Myotech against
milestone 2 in the year ended February 28, 2007 for 726,963 newly issued Class A
units, which increased our ownership to 43.7%. Additional investments of
$279,014 were made since during the three months ended May 31, 2007 for 101,704
additional newly issued Class A units, which raised our ownership percentage to
44.1%.
This investment was previously accounted for using the equity method. However,
the Company re-evaluated its investment in Myotech and has determined that
Myotech is a variable interest entity in accordance with FASB Interpretation No.
46 (FIN-46R) (Revised December 2003), Consolidation of Variable Interest
Entities. The Company has further concluded that it is the primary beneficiary
as defined by FIN-46R and, as a result, the Company is required to consolidate
Myotech as of the date of acquisition of November 30, 2005. Therefore, the
consolidated financial statements of the Company include the accounts of
Myotech, LLC.
15
The Company revalued its investment in Myotech, now reported on the balance
sheet as intangible assets, using the services of a nationally-recognized
appraisal firm.
On October 11, 2006, we entered into a Securities Purchase Agreement (the
"Purchase Agreement") with 10 private investors led by Iroquois Master Fund Ltd
("Iroquois").
Pursuant to the Purchase Agreement, on October 12, 2006 we issued $7,250,000
face amount of Senior Secured Convertible Notes (the "Notes") to the investors
and received proceeds of $6,219,880 after paying fees and expenses of $1,030,120
related to the transaction. The holders of the Notes may elect to convert the
Notes at any time into shares of our common stock based upon a price of $0.67
per share (the "Conversion Price"). Interest on the outstanding principal amount
under the Notes is payable quarterly at a rate equal to the six-month London
InterBank Overnight Rate plus 500 basis points, with a minimum rate of 10% per
annum and a maximum rate of 12% per annum, payable at our option in cash or
shares of our common stock registered for resale under the Securities Act of
1933, as amended (the "Securities Act"). If we elect to make an interest payment
in common stock, the number of shares issuable by us will be based upon the
lower of (i) 90% of the 20-day trailing average volume weighted average price
per share as reported on Bloomberg LP (the "VWAPS") or (ii) the Conversion
Price. Principal on the Notes amortizes and payments are due in 33 equal monthly
installments commencing four months following issuance of the Notes, and may be
made at our option in cash or shares of our common stock registered for resale
under the Securities Act. If we elect to make a principal payment in common
stock, the number of shares issuable by us will be based upon the lower of (i)
87.5% of the 15-day trailing VWAPS prior to the principal payment date or (ii)
the Conversion Price. Our obligations under the Notes are secured by a first
priority security interest in substantially all of our assets pursuant to a
Security Agreement dated as of October 11, 2006 among us, the investors and
Iroquois, as agent for the investors (the "Security Agreement").
As further consideration to the investors, we issued to the investors one-year
warrants to purchase an aggregate of 10,820,896 shares of our common stock at a
price of $0.67 per share. If the investors elect to exercise these one-year
warrants, they will also receive additional five-year warrants to purchase the
shares of our common stock equal to the number of shares purchased under the
one-year warrants, with 50% of the additional warrants having an exercise price
of 115% of the per share purchase price, and the remaining 50% of the additional
five-year warrants having an exercise price of 125% of the per share purchase
price. We also issued to the investors five-year warrants to purchase an
aggregate of 10,820,896 shares of our common stock. The first five-year warrants
allow for the purchase of 5,410,448 shares of our common stock at an exercise
price of $0.81 per share, and the second five-year warrants allow for the
purchase of 5,410,448 shares of our common stock at an exercise price of $0.89
per share. The warrants contain anti-dilution protection that will automatically
adjust the exercise price of the warrants should we issue equity or
equity-linked securities at a price per common share below the exercise price of
the five-year warrants to the price at which we issue such equity or
equity-linked securities.
We further agreed to register for resale under the Securities Act the common
stock issuable upon the exercise of the warrants and any shares of common stock
the Company may issue to the holders of the Notes in connection with payments of
interest and principal, or which the Company is obligated to issue upon any
conversion of the Notes at the option of the holders. Because we were unable to
comply with various provisions of the registration requirements of the Purchase
Agreement we incurred liquidated damages amounting to $652,500 that have been
accrued and charged to operations during the three months ended May 31, 2007.
On February 21, 2007, we entered into a Forbearance Agreement (the "Forbearance
Agreement") with the investors pursuant to which the investors agreed that,
during the period commencing on February 16, 2007 and ending on the earlier of
(i) March 31, 2007 or (ii) the date on which any Termination Event (as defined
in the Forbearance Agreement) first occurs (the "Forbearance Period"), they will
forbear from exercising any and all of the rights and remedies which they may
have against us or any of our assets under the Notes or the Purchase Agreement
or at law or in equity as a result of any default under the Notes or as a result
of the occurrence of certain events with respect to the Purchase Agreement. In
exchange for entering into the Forbearance Agreement, we issued pro rata to the
investors three-year warrants for the purchase of an aggregate of 60,000 shares
of our common stock at an exercise price of $0.51 per share (the "Fee
Warrants").
Upon the issuance of the Fee Warrants, the exercise prices of the five-year
warrants issued to the investors pursuant to the Purchase Agreement (the
"Original Warrants") for the purchase of an aggregate of 10,820,896 shares of
our common stock were automatically adjusted from $0.81 per share and $0.89 per
share, respectively, to $0.51 per share, and the number of shares of our common
stock issuable upon exercise of the Original Warrants was automatically
adjusted, proportionately, to an aggregate of 18,034,830 shares. In the
Forbearance Agreement, the investors waived, with respect to the issuance of the
Fee Warrants, application of similar anti-dilution adjustments contained in the
Notes and in a third series of warrants for the purchase, on or before October
12, 2007, of an aggregate of 10,820,896 additional shares of our common stock at
an exercise price of $0.67 per share (the "One Year Warrants"). C.E. Unterberg
Towbin, which holds a warrant for the purchase of 865,672 shares of our common
stock at an exercise price of $0.67 per share, issued to it in connection with
its services as exclusive placement agent under the Purchase Agreement,
separately agreed to waive, with respect to the issuance of the Fee Warrants,
application of the anti-dilution provisions set forth in that warrant. Because
the anti-dilution adjustment to the Original Warrants is accounted for as a
modification of the Original Warrants, we recorded an expense for this
modification in the period ended February 28, 2007.
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Our second $250,000 annual minimum payment under our license was received in
December, 2006. As was the case with the first annual minimum payment, this
payment will be recognized over 12 months starting in January 2007. Accordingly,
for the three months ended May 31, 2007, the Company recorded $62,500 in
revenue.
Further, in order to address the current liquidity situation, management has
instituted a cost reduction program that includes a reduction in monthly costs
from approximately $1,100,000 at this time last year to a goal of under $300,000
per month in the months ahead. In addition, the Company has reduced its
investments in several product lines and pursued alternative funding vehicles in
support of other projects. As an example, the Company has been awarded two SBIR
grants, one from the Dept of Homeland Security and one from the Department of
Energy, totaling $200,000, in support of our biothermal battery (a power system
for implantable pacemakers and other devices that generates electricity from the
output of body heat, using proprietary technology patented by Biophan) used both
for implantable power generation as well as for the needs of the military and
homeland security from which to generate power. The Dept of Homeland Security
grant is for $100,000, of which we have received $50,000 on schedule. This
allows us to move the technology forward and maintain the intellectual property.
The Company has also reorganized its efforts on the Myotech cardiac assist
device development while keeping core functions operational and maintaining
intellectual property and designs.
We believe that the Company has adequate working capital resources for the
upcoming 1-2 months of operations.
RESULTS OF OPERATIONS
The following comments discuss the significant factors affecting the
consolidated operating results, financial condition and liquidity and cash flows
of the Company for the three months ended May 31, 2007 as compared to the three
months ended May 31, 2006.
COMPARISON OF THE THREE MONTHS ENDED MAY 31, 2007 AND 2006
REVENUES
Revenues. Revenues were $0.172 million for the three months ended May 31, 2007
as compared to $0.345 million for the three months ended May 31, 2006. The
decrease is due to reduced license fees from Boston Scientific Scimed, and
operating revenues from our European subsidiary, which consisted primarily of
MRI-related testing and consulting services to medical device manufacturers,
partially offset by a federal grant of $50,000 related to the development of our
thermal power technology.
OPERATING EXPENSES
Research and Development. Research and development expenses decreased by 49 %,
to approximately $1.320 million for the three months ended May 31, 2007 from
approximately $2.588 million for the three months ended May 31, 2006. This
decrease is primarily attributable to reduced spending on several research and
development projects of $0.880 million, reduced non-cash stock option expense of
$0.180 million and reduced outside services of $0.050 million.
General and Administrative. General and administrative expenses decreased by 29%
to approximately $1.488 million for the three months ended May 31, 2007 from
approximately $2.086 million for the three months ended May 31, 2006. This
decrease is primarily attributable to decreased salaries of $0.175 million,
decreased spending for legal services of $0.150 million, reduced non-cash stock
option expense of $0.050 million, combined with reduced spending for almost all
other expenses.
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OTHER INCOME (EXPENSE)
Interest Expense. We incurred interest expense amounting to approximately $1.385
million for the three months ended May 31, 2007 compared to $0.303 million for
the three months ended May 31, 2006. The expense pertained primarily to the
senior secured convertible note of $7.250 million.
Change in Fair Value of Warrant Liability. We reduced this liability of $10.494
million at February 28, 2007 by $4.339 million through May 8, 2007. Then as a
result of a successful vote at a Special Shareholder Meeting on May 8, 2007
wherein shareholders approved the increase in our authorized shares of common
stock from 125 million to 250 million shares, thus eliminating the need for this
warrant liability, we reclassified the remaining $6.155 million to Stockholders
Equity - Additional Paid in Capital at the end of the quarter. Minority Interest
in Myotech LLC. The loss of $0.472 million is a pro rata share of the loss
incurred by Myotech, LLC attributable to minority interests for the quarter
ended May 31, 2007. The loss for the current quarter is lower than for the same
period in the prior year by approximately $0.224 million due to aggressive
efforts to reduce spending in all non-critical areas of the Myotech operation to
preserve cash in the near term. As further described under the heading
"Investment in Myotech, LLC" in the "Notes to Consolidated Financial Statements"
the Company holds a 44.1 % interest in Myotech LLC.
We have determined that Myotech is a Variable Interest Entity within the meaning
of FIN 46(R) and that we are the primary beneficiary (as defined in FIN 46(R)).
Consequently, the financial statements of Myotech have been consolidated with
our consolidated financial statements for all periods ending on or after
November 30, 2005, the date of our initial investment in Myotech.
CAPITAL RESOURCES
Our current strategic plan does not indicate a need for material capital
expenditures in the conduct of research and development activities.
We currently employ sixteen full-time individuals, fourteen in the U.S. and two
in Europe.
FORWARD LOOKING STATEMENTS
Forward looking statements in this Form 10-Q and in other documents incorporated
herein, as well as in oral statements made by the Company, statements that are
prefaced with the words "may," "will," "expect," "anticipate," "continue,"
"estimate," "project," "intend," "designed" and similar expressions, are
intended to identify forward-looking statements regarding events, conditions,
and financial trends that may affect the Company's future plans of operations,
business strategy, results of operations and financial position. These
statements are based on the Company's current expectations and estimates as to
prospective events and circumstances about which the Company can give no firm
assurance. Further, any forward-looking statement speaks only as of the date on
which such statement is made, and the Company undertakes no obligation to update
any forward-looking statement to reflect subsequent events or circumstances.
Forward-looking statements should not be relied upon as a prediction of actual
future financial condition or results. These forward-looking statements, like
any forward-looking statements, involve risks and uncertainties that could cause
actual results to differ materially from those projected or unanticipated.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Derivative Financial Instruments, Other Financial Instruments, and Derivative
Commodity Instruments
As of May 31, 2007, the Company did not participate in any derivative financial
instruments, or other financial and commodity instruments for which fair value
disclosure would be required under SFAS No. 107.
Primary Market Risk Exposures
The Company's primary market risk exposures are in the areas of interest rate
risk and foreign currency exchange rate risk. The Company's investment portfolio
of cash equivalents is subject to interest rate fluctuations, but the Company
believes this risk is immaterial due to the short-term nature of these
investments. For the three months ended May 31, 2007, foreign currency
translation gains were approximately $3,197 as a result of consolidating the
Company's foreign subsidiaries. During the period, the Company did not engage in
any foreign currency hedging activities.
ITEM 4. CONTROLS AND PROCEDURES
Based on their evaluation as of the end of the period covered by this quarterly
report on Form 10-Q, our principal executive officer and principal financial
officer, with the participation and assistance of our management, concluded that
our disclosure controls and procedures, as defined in Rule 13a-15(e) promulgated
under the Securities Exchange Act of 1934, were effective in design and
operation. There have been no changes in our system of internal control over
financial reporting in connection with the evaluation by our principal executive
officer and principal financial officer during our fiscal quarter ended May 31,
2007 that have materially affected, or are reasonably likely to materially
affect, our internal control over financial reporting.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Except as noted below, we are not a party to any material legal proceedings and
there are no material legal proceedings pending with respect to our property,
except as noted below. We are not aware of any legal proceedings contemplated by
any governmental authorities involving either us or our property. None of our
directors, officers or affiliates is an adverse party in any legal proceedings
involving us or our subsidiaries, or has an interest in any proceeding which is
adverse to us or our subsidiaries.
The Company is pursuing legal claims against one of its former law firms and
certain of its attorneys. Review of the firm's work product and bills revealed
questions about the firm's billing practices and other activities. The amount of
potential damages has not yet been quantified. Also, the law firm has asserted
claims seeking payment of additional legal fees, which claims the Company has
denied. The litigation is in an early stage. While, as with any legal
proceedings, no assurance can be given as to ultimate outcome, management
believes that the outcome of the litigation will not have a material adverse
effect upon the Company's financial condition. Accordingly, adjustments, if any
that might result from the resolution of this matter have not been reflected in
the financial statements.
On April 5, 2007, SBI Brightline LLC and SBI Brightline XI, LLC brought suit
against us and Biomed Solutions, LLC in the Superior Court of Orange County,
California. The suit alleges, among other things, that in September 2006 we
entered into an agreement to terminate the Stock Purchase Agreement dated as of
May 27, 2005 and amended on January 8, 2006, between us and SBI Brightline XI,
LLC, and seeks unspecified monetary damages and an order by the Court deeming
the Stock Purchase Agreement to be terminated. We believe the allegations made
by SBI are without basis in fact and in response moved for dismissal of the
complaint. The plaintiffs withdrew their complaint following our motion and
filed an amended complaint containing nearly identical allegations. We intend to
continue to defend the law suit vigorously, including seeking dismissal of the
amended complaint. Because of the potential costs of litigation and the
anticipated demands that our defense may place on the time and attention of our
management our defense of this matter, regardless of the outcome, could have a
material adverse effect on our business and operations.
ITEM 1A. RISK FACTORS
There are no material changes from risk factors as previously disclosed in the
Company's Form 10-K for the fiscal year ended February 28, 2007 and Form S-1,
Amendment No. 4, dated May 24, 2007.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
In connection with our Securities Purchase Agreement dated October 11, 2006 with
Iroquois Master Fund Ltd and other private investors we are required to make
scheduled payments of principal and interest. Beginning on December 1, 2006 we
were obligated to make quarterly interest payments and monthly payments of
$219,697 principal. We made an initial timely interest payment of $165,081 in
cash and in June 2007, we made interest and principal payments in stock
aggregating $ 1,332,870 (4,238,232 shares). As of the date hereof, we remain in
default of our obligations to make payments to the investors of liquidated
damages of $652,500 and past due principal payments of $847,403 under the Senior
Secured Convertible Notes, but the investors have not demanded payment. In the
event of a default of our obligations under the Senior Secured Convertible
Notes, the investors are entitled to, among other remedies, demand that we
repurchase the outstanding principal and pay accrued interest in an amount equal
to the greater of 110% of the outstanding principal and accrued interest or a
calculated "Event Equity Value" of the underlying convertible shares of stock.
Although we entered into a Forbearance Agreement with the investors dated
February 16, 2007 to postpone the foregoing obligations, the Forbearance
Agreement has since expired. Accordingly, we are still obligated to make
payments of liquidated damages and past due principal payments under the Senior
Secured Convertible Notes, which had been postponed, but not waived under the
Forbearance Agreement. Since the Senior Secured Convertible Notes are secured by
all of our assets, any demand from the investors would result in a foreclosure
on our assets and a resulting termination of our operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On Tuesday, May 8, 2007, pursuant to proper notice to stockholders, the Company
held a Special Meeting of Stockholders in West Henrietta, New York. At the
Meeting, a proposal was made to approve an increase in the authorized shares of
common stock, $.005 par value, from 125 million to 250 million. The proposal
carried by a vote of 50,238,671 for, 4,639,216 against and 327,284 abstaining.
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ITEM 5. OTHER INFORMATION
Not applicable.
ITEM 6. EXHIBITS
Exhibit No. Exhibit Description Location
----------- ------------------------------------------------- -------------
31.1 Certification of principal executive officer Filed herewith
pursuant to Rule 13a-14(a)
31.2 Certification of principal financial officer Filed herewith
pursuant to Rule 13a-14(a)
32.1 Certification of principal executive officer Filed herewith
pursuant to Rule 13a-14(b) and 18 U.S.C.
Section 1350
32.2 Certification of principal financial officer Filed herewith
pursuant to Rule 13a-14(b) and 18 U.S.C.
Section 1350
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SIGNATURES
Pursuant to the requirements 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.
BIOPHAN TECHNOLOGIES, INC.
(Registrant)
By: /s/ Michael L. Weiner
---------------------------------------
Name: Michael L. Weiner,
Title: President
By: /s/ Darryl L. Canfield
---------------------------------------
Name: Darryl L. Canfield
Title: Chief Financial Officer,
Treasurer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
Date: July 6, 2007
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