UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(X) QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 2003
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from to
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Commission File Number: 000-49620
Biogentech Corp.
----------------
(Exact name of small business issuer as specified in its charter)
Nevada 91-1868007
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2445 McCabe Way, Suite 150, Irvine, California 92614
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(Address of principal executive offices)
(949) 757-0001
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(Issuer's Telephone Number)
APPLICABLE ONLY TO CORPORATE ISSUERS
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 twelve 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 ( )
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practical date: As of February 13, 2004 there were
23,864,708 shares of the issuer's $0.001 par value common stock issued and
20,864,708 outstanding*.
Also as of February 13, 2004 there were 1,000 shares of the issuer's $0.001 par
value preferred stock issued and outstanding.
*Represents stock issued and outstanding in BioGentech Corp., the reporting
issuer. The attached financial statements reflect a total of 23,864,708 shares
issued and outstanding as of December 31, 2003. That will be the number of
shares issued and outstanding when the BioGentech Corp. (the reporting issuer)
stock is issued to the BioGentec Incorporated (the wholly-owned subsidiary of
reporting issuer) shareholders in exchange for their BioGentec Incorporated
stock. Included therein are 3,000,000 shares of BioGentech's common stock that
have been issued as collateral for a transaction that did not occur, and these
shares are expected to be cancelled and are not shown as outstanding.
1
ITEM 1. FINANCIAL STATEMENTS
-----------------------------
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED BALANCE SHEET (UNAUDITED)
ASSETS
December 31,
2003
--------------------
CURRENT ASSETS:
Cash and cash equivalents $ 28,133
Prepaid expenses and other current assets 1,789
Inventory 5,903
--------------------
Total current assets 35,825
DEBT ISSUE COSTS, net 74,222
ACQUISITION DEPOSIT (see Note 10) 2,220,000
PROPERTY AND EQUIPMENT, net 68,223
WEBSITE DEVELOPMENT COSTS, net 8,825
PATENTS, net 3,850,000
DEPOSIT 40,000
--------------------
$ 6,297,095
====================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses $ 639,778
Due to related parties 1,026,169
Warrant liability 351,027
Convertible preferred stock 885,000
Demand Loans payable 1,060,000
Preferred dividend payable 18,750
--------------------
Total current liabilities 3,980,724
CONVERTIBLE NOTE PAYABLE, net of discount of $386,302 213,698
--------------------
Total Liabilities 4,194,422
--------------------
COMMITMENTS AND CONTINGENCIES -
STOCKHOLDERS' EQUITY:
Common stock, $0.001 par value; 50,000,000 shares authorized;
23,864,708 shares issued and 20,864,708 outstanding 20,865
Additional paid-in capital 8,054,934
Deficit accumulated during the development stage (5,973,126)
--------------------
Total stockholders' equity 2,102,673
--------------------
$ 6,297,095
====================
The accompanying notes form an integral part of these
consolidated financial statements.
2
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED)
Three months ended December 31,
------------------------------------------
2003 2002
------------------- -------------------
Net sales $ 181 $ -
Cost of sales - -
------------------- -------------------
Gross loss 181 -
------------------- -------------------
Operating expenses:
Depreciation and amortization 5,248 5,338
General and administrative expenses 486,625 410,361
------------------- -------------------
Total operating expenses 491,873 415,699
------------------- -------------------
Loss from operations (491,692) (415,699)
Interest expense (176,356) (31,029)
------------------- -------------------
Loss before provision for income taxes (668,048) (446,728)
Provision for income taxes - -
------------------- -------------------
Net loss (668,048) (446,728)
Preferred dividend (18,750) -
------------------- -------------------
Net loss attributable to common shareholders $ (686,798) $ (446,728)
=================== ===================
Loss per common share attributable to
common shareholders basic and diluted $ (0.03) $ (0.03)
=================== ===================
Number of weighted average shares -
basic and diluted 20,811,708 17,383,164
=================== ===================
The accompanying notes form an integral part of these
consolidated financial statements.
3
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED) (CONTINUED)
Cumulative from
Nine months ended December 31, November 21, 2000
--------------------------------------- (inception) to
2003 2002 December 31, 2003
------------------ ----------------- -------------------
Net sales $ 3,344 $ - $ 3,791
Cost of sales 478 7,323 16,918
------------------ ----------------- -------------------
Gross profit (loss) 2,866 (7,323) (13,127)
------------------ ----------------- -------------------
Operating expenses:
Depreciation and amortization 15,746 15,632 59,942
General and administrative expenses 1,513,709 1,393,330 4,485,360
------------------ ----------------- -------------------
Total operating expenses 1,529,455 1,408,962 4,545,302
------------------ ----------------- -------------------
Loss from operations (1,526,589) (1,416,285) (4,558,429)
Interest expense (231,874) (93,089) (510,947)
------------------ ----------------- -------------------
Loss before provision for income taxes (1,758,463) (1,509,374) (5,069,376)
Provision for income taxes - - -
------------------ ----------------- -------------------
Net loss (1,758,463) (1,509,374) (5,069,376)
Preferred dividend (903,750) - (903,750)
------------------ ----------------- -------------------
Net loss attributable to common
shareholders $ (2,662,213) $ (1,509,374) $ (5,973,126)
================== ================= ===================
Loss per common share -
basic and diluted $ (0.13) $ (0.09) $ (0.33)
================== ================= ===================
Number of weighted average shares -
basic and diluted 20,453,977 17,128,920 17,917,317
================== ================= ===================
The accompanying notes form an integral part of these
consolidated financial statements.
4
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT)
Deficit
Accumulated Total
Common stock Additional during the stockholders'
---------------------- paid-in Deferred development equity
Shares Amount Capital compensation stage (deficit)
------------ --------- ---------- ------------ ------------ --------------
Balance at inception (November 21, 2000) - $ - $ - $ - - $ -
Issuance of founder's shares in exchange
for property and equipment 16,300,000 16,300 - - - 16,300
Issuance of common stock for cash -
November 2000 @ $1.00 30,000 30 29,970 - - 30,000
Issuance of common stock for cash -
December 2000 @ $1.00 15,000 15 14,985 - - 15,000
Issuance of common stock for cash -
February 2001 @ $1.00 12,000 12 11,988 - - 12,000
Issuance of common stock for cash -
March 2001 @ $1.00 125,000 125 124,875 - - 125,000
Issuance of common stock for services -
March 2001 @ $1.00 10,000 10 9,990 - - 10,000
Contributed capital - - 62,681 - - 62,681
Net loss for the period from inception
(November 21, 2000) to March 31, 2001 - - - - (194,864) (194,864)
------------ --------- ---------- ------------ ------------ --------------
Balance at March 31, 2001 16,492,000 16,492 254,489 - (194,864) 76,117
Issuance of common stock for cash -
April 2001 @ $1.00 10,000 10 9,990 - - 10,000
Issuance of common stock for telephone
equipment - April 2001 @ $1.00 6,750 7 6,743 - - 6,750
Issuance of common stock for cash -
May 2001 @ $1.00 11,000 11 10,989 - - 11,000
Issuance of common stock for website
development - May 2001 @ $1.00 17,000 17 16,983 - - 17,000
Issuance of common stock for legal
services - May 2001 @ $1.00 1,000 1 999 - - 1,000
Issuance of common stock for cash -
June 2001 @ $1.00 23,500 24 23,476 - - 23,500
Issuance of common stock for cash -
July 2001 @ $1.00 20,000 20 19,980 - - 20,000
Issuance of common stock for cash -
August 2001 @ $1.00 25,000 25 24,975 - - 25,000
Issuance of common stock for services,
related party - September 2001 @ $1.00 65,858 66 65,792 - - 65,858
5
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
Deficit
Accumulated Total
Common stock Additional during the stockholders'
---------------------- paid-in Deferred development equity
Shares Amount Capital compensation stage (deficit)
------------ --------- ---------- ------------ ------------ --------------
Issuance of common stock for cash -
September 2001 @ $1.00 15,000 15 14,985 - - 15,000
Issuance of common stock for services -
September 2001 @ $1.00 11,000 11 10,989 - - 11,000
Issuance of stock options for services -
September 2001 - - 32,000 - - 32,000
Issuance of common stock for cash -
October 2001 @ $1.00 5,000 5 4,995 - - 5,000
Issuance of common stock for cash -
December 2001 @ $1.00 30,000 30 29,970 - - 30,000
Issuance of common stock for services -
December 31, 2001 @ $1.00 33,000 33 32,967 - - 33,000
Issuance of common stock for services,
related party - December 2001 @ $1.00 117,500 118 117,382 - - 117,500
Issuance of common stock for prepaid
advertising - December 2001 @ $1.00 15,600 15 15,585 - - 15,600
Issuance of common stock for property
and equipment - January 2002 @ $3.00 1,000 1 2,999 - - 3,000
Issuance of common stock for services,
related party - January 2002 @ $1.00 33,000 33 32,967 - - 33,000
Issuance of common stock for cash -
February 2002 @ $2.00 20,000 20 39,980 - - 40,000
Issuance of common stock for cash -
March 2002 @ $2.00 12,500 12 24,988 - - 25,000
Contributed capital - - 211,269 - - 211,269
Deferred compensation - - - (60,108) - (60,108)
Net loss - - - - (1,028,397) (1,028,397)
------------ --------- - ---------- ------------ ------------ --------------
Balance at March 31, 2002 16,965,708 16,966 1,005,492 (60,108) (1,223,261) (260,911)
Issuance of common stock for services -
April 2002 @ $2.00 3,000 3 5,997 - - 6,000
Issuance of common stock for cash -
April 2002 @ $1.00 10,000 10 9,990 - - 10,000
Issuance of common stock for cash -
April 2002 @ $2.00 17,500 17 34,983 - - 35,000
Issuance of common stock for cash -
May 2002 @ $1.00 10,000 10 9,990 - - 10,000
Issuance of common stock for cash -
May 2002 @ $2.00 16,000 16 31,984 - - 32,000
Issuance of stock options for services -
May 2002 - - 350,000 - - 350,000
Contributed capital - bonus expense - - 50,000 - - 50,000
Issuance of common stock for cash -
June 2002 @ $1.00 5,000 5 4,995 - - 5,000
Issuance of common stock for cash -
June 2002 @ $2.00 5,000 5 9,995 - - 10,000
Issuance of common stock for cash -
July 2002 @ $1.00 5,000 5 4,995 - - 5,000
Issuance of common stock for cash -
August 2002 @ $2.00 10,000 10 19,990 - - 20,000
Issuance of common stock for cash -
September 2002 @ $2.00 10,000 10 19,990 - - 20,000
Issuance of stock options below fair
market value - November 2002 - - 250,000 (250,000) - -
Issuance of common stock for conversion
of note - December 2002 @ 2.00 50,000 50 99,950 - - 100,000
Issuance of common stock for cash -
December 2002 @ $2.00 20,000 20 39,980 - - 40,000
Issuance of common stock for services -
December 2002 @ $2.00 15,000 15 29,985 - - 30,000
Issuance of common stock for patents -
December 2002 @ $2.00 2,000,000 2,000 3,998,000 - - 4,000,000
Contributed capital - - 292,718 - - 292,718
Issuance of common stock for exercise
of options - December 2002 574,000 574 574,028 - - 574,602
Deferred compensation - - - 60,108 - 60,108
Contributed capital - - 5,000 - - 5,000
6
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
Deficit
Accumulated Total
Common stock Additional during the stockholders'
---------------------- paid-in Deferred development equity
Shares Amount Capital compensation stage (deficit)
------------ --------- ---------- ------------ ------------ --------------
Issuance of options for services -
January 2003 - - 25,000 - - 25,000
Issuance of common stock for cash
February 2003 @ $2.00 11,500 12 22,988 - - 23,000
Issuance of common stock for cash
March 2003 @ $2.00 5,000 5 9,995 - - 10,000
Deferred compensation - - - 54,000 - 54,000
Net loss - - - - (2,087,652) (2,087,652)
------------ --------- ---------- ------------ ------------ --------------
Balance at March 31, 2003 19,732,708 19,733 6,906,045 (196,000) (3,310,913) 3,418,865
Issuance of common stock for cash
April 2003 @ $2.00 (unaudited) 70,000 70 139,930 - - 140,000
Issuance of common stock for cash
May 2003 @ $2.00 (unaudited) 30,000 30 59,970 - - 60,000
Acquisition of BioGentec Inc. by
Togs for Tykes (unaudited) 1,032,000 1,032 (101,032) - - (100,000)
Deferred compensation - - - 196,000 - 196,000
Fair value allocation of warrant liability
of Preferred Stock (audited) - - (181,849) - - (181,849)
Value of beneficial conversion feature
of convertible debenture issued in
September 2003 (unaudited) - - 346,870 - - 346,870
Amortization on discount of
Preferred Stock treated as dividend
(unaudited) - - 885,000 - (885,000) -
Preferred stock dividend (unaudited) - - - (18,750) (18,750)
Net loss (unaudited) - - - - (1,758,463) (1,758,463)
------------ --------- ---------- ------------ ------------ --------------
Balance at December 31, 2003 (unaudited) 20,864,708 $ 20,865 $ 8,054,934 $ - $ (5,973,126) $ 2,102,673
============ ========= ========== ============= ============ ==============
The accompanying notes form an integral part of these
consolidated financial statements.
7
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
Nine months Nine months Cumulative from
ended ended November 21, 2000
December 31, December 31, (inception) to
2003 2002 December 31, 2003
----------------- ----------------- ----------------------
Cash flows from operating activities:
Net loss $ (1,758,463) $ (1,509,374) $ (5,069,376)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation and amortization 15,277 15,632 59,473
Common stock issued for services - 36,000 307,358
Change in value of warrant liability (452) - (452)
Amortization of debt issue costs 9,278 - 9,278
Exercise of stock options for services - 26,961 26,960
Amortization of discount on notes 130,198 93,089 403,826
Issuance of stock options for services - 350,000 407,000
Capital contribution - bonus (related party) - 50,000 50,000
Amortization of prepaid advertising - 11,700 15,600
Amortization of Deferred compensation 196,000 60,108 250,000
Discount on common stock issued for
settlement of debt - 50,000 50,000
Impairment expense - 55,832 55,832
Changes in assets and liabilities:
Decrease(increase) prepaid express and other assets 1,697 16,200 (1,789)
Increase in accounts payable and - - -
accrued expenses 362,704 8,795 719,778
(Increase) decrease in inventory 97 (5,750) 347
Increase in amount due to related parties 204,907 310,030 850,594
----------------- ----------------- -------------------
Net cash (used for) operating activities (838,757) (430,777) (1,865,571)
----------------- ----------------- -------------------
Cash flows used for investing activities:
Purchase of property and equipment (19,550) (3,500) (79,620)
Increase in patent costs - (1,450) (24,711)
Increase in Restricted cash (100,000)
Merger fees and costs - - (100,000)
Increase in acquisition deposits (2,220,000) - (2,220,000)
Increase in other deposits - - (40,000)
Increase in capitalized website (450) - (14,430)
----------------- ----------------- -------------------
Net cash used for investing activities (2,240,000) (104,950) (2,478,671)
----------------- ----------------- -------------------
Cash flows provided by (used for) financing activities:
Increase in Bank Overdraft 9,912
Payment on contract - (11,000) (161,000)
Proceeds from advances - related party 525,400 831,007
Proceeds from issuance of notes payable 1,576,500 50,000 1,576,500
Proceeds from sale of common stock 200,000 187,000 806,500
Proceeds from sale of preferred stock 885,000 - 885,000
Contributed capital - 292,718 571,668
Payments on advances - related party (82,300) (137,300)
----------------- ----------------- -------------------
Net cash provided by financing activities 3,104,600 528,630 4,372,375
----------------- ----------------- -------------------
Net increase (decrease) in cash and
and cash equivalents 25,843 (7,097) 28,133
Cash and cash equivalents,
beginning of period 2,290 7,097 -
----------------- ----------------- -------------------
Cash and cash equivalents, end of period $ 28,133 $ - $ 28,133
================= ================= ===================
Cash paid during the period for:
Interest expense $ - $ - $ -
================= ================= ===================
Income taxes $ - $ - $ -
================= ================= ===================
The accompanying notes are an integral part of these
consolidated financial statements.
8
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED) (CONTINUED)
NON-CASH INVESTING AND FINANCING ACTIVITIES:
Nine months ended December 31, 2002:
During the nine months ended December 31, 2002, the Company issued 18,000 shares
of its common stock valued at $36,000 for consulting services provided, which
represented the fair market value on the date of issuance.
During the nine months ended December 31, 2002, R&R advanced the Company cash
and also paid certain expenses directly on behalf of the Company totaling
$292,718. The Company has recorded these transactions as a contribution to
capital as of December 31, 2002.
On May 5, 2002, a related party transferred 25,000 shares of the Company's
common stock valued at $50,000 to an employee of the Company as a bonus. The
fair market value on the date of the issuance was $2.00 per share. The Company
has recorded this transaction as a contribution to capital and salary expense as
of December 31, 2002.
In September 2002, a shareholder loaned the Company $50,000, which was
convertible into 50,000 shares of the Company's common stock. The fair market
value of the common stock was $2.00 per share, therefore, the Company recorded a
$50,000 expense relating to this note. Subsequently, on December 31, 2002, the
note holder converted the $50,000 promissory note into 50,000 shares of the
Company's common stock.
During the year ended March 31, 2002, the Company issued 216,358 shares of its
common stock valued at $1.00 per share or $216,358 as consideration for past and
future consulting services provided by a related party. The Company recognized
$60,108 of deferred compensation expense relating to these services during the
nine months ended December 31, 2002.
During the year ended March 31, 2001, the Company issued 15,600 shares of its
common stock valued at $15,600 for prepaid advertising expense. The Company
recognized $11,700 of advertising expense relating to the issuance during the
nine months ended December 31, 2002.
The Company recorded interest expense totaling $93,089 relating to the discount
on a note payable.
For the nine months ended December 31, 2003:
In September 2003, the Company sold a convertible debenture with detachable
warrants. The Company calculated the value of the warrants and the convertible
feature of the debenture utilizing the Black-Scholes model. The $169,630 value
of the warrants is included in the warrant liability due to registration rights
in accordance with EITF 00-19. The $346,870 value of the beneficial conversion
debenture was charged to additional paid-in capital.
9
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Basis of presentation
The unaudited consolidated financial statements have been prepared by BioGentech
Corp. (the "Company"), pursuant to Regulation S-B of the Securities and Exchange
Commission. (See Reverse Acquisition section below.) The information furnished
herein reflects all adjustments (consisting of normal recurring accruals and
adjustments) that are, in the opinion of management, necessary to fairly present
the operating results for the respective periods. Certain information and
footnote disclosures normally presented in annual consolidated financial
statements prepared in accordance with accounting principles generally accepted
in the United States of America have been omitted pursuant to such rules and
regulations. These unaudited consolidated financial statements should be read in
conjunction with the audited financial statements and footnotes for the fiscal
years ended March 31, 2003 and 2002 included on Form 8K/A as filed with the
Securities and Exchange Commission on July 18, 2003.
The unaudited results of operations for the interim periods are not necessarily
indicative of the results to be expected for the full year.
Reverse acquisition
BioGentec Incorporated ("BG"), a private Nevada corporation, was incorporated on
November 21, 2000 according to the laws of Nevada, under the name St Petka, Inc.
On May 4, 2001, BG formally changed its name to BioGentec Incorporated. On July
2, 2003, BG was merged into Togs for Tykes Acquisition Corp.("TTAC"), a wholly
owned subsidiary formed for the purpose of acquiring BG. TTAC is the wholly
owned subsidiary of the registrant, BioGentech Corp. ("BGTH") (formerly Togs for
Tykes, Inc.). As allowed under SFAS 141, the Company designated a date of
convenience of the closing for accounting purposes as June 30, 2003. Under the
terms of the merger agreement, all of BG's outstanding common stock (19,732,705
shares of $0.0001 par value stock) will be exchanged for 19,732,705 shares newly
issued shares of $0.001 par value stock of BioGentech Corp. common stock. At the
date of the transaction, BGTH had 5,532,000 shares of common stock outstanding
of which 4,500,000 will be cancelled as part of the transaction leaving
23,864,708 shares outstanding. As of the date of this filing, the share exchange
is in progress, and not all of BG's shares have been exchanged for BGTH's common
stock and the 4,500,000 shares have been cancelled. An internal review of BG's
shareholder register and related supporting documents was undertaken
concurrently with the merger and prior to passing such records to the transfer
agent for the issuance of the exchanged shares. The review project is complete
and the stock register will be forwarded to the transfer agent for processing.
This transaction was consummated with the filing of the Articles of Merger with
the State of Nevada on July 2, 2003 BG shareholders then effectively controlled
approximately 95% of the issued and outstanding common stock of BGTH. Since the
shareholders of BG obtained control of BGTH, according to FASB Statement No. 141
- "BUSINESS COMBINATIONS," this acquisition has been treated as a
recapitalization for accounting purposes, in a manner similar to reverse
acquisition accounting. In accounting for this transaction:
i) BG is deemed to be the purchaser and surviving company for accounting
purposes. Accordingly, its assets and liabilities are included in the
balance sheet at their historical book values and the results of
operations of BG have been presented for the comparative prior
period; and
ii) Control of the net assets and business of BGTH was acquired for
accounting purposes effective June 30, 2003. This transaction has
been accounted for as a purchase of the assets and liabilities of
BGTH by BG during the three months ended June 30 2003. The historical
cost of the net assets acquired was $0 and $100,000 cash was paid for
costs and fees associated with the merger.
10
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued):
Going concern
The accompanying consolidated financial statements have been prepared on a going
concern basis, which contemplates the realization of assets and the satisfaction
of liabilities in the normal course of business. Through December 31, 2003, the
Company is still in the development stage and has not been able to generate
sufficient revenue from its operations to cover its costs and operating
expenses. The Company has been able to raise a limited amount of funds via the
sale of its common and convertible preferred stock, and through the issuance of
its notes payable and convertible debenture, in order to fund its operations;
however, it is not known whether the Company will be able to continue this
practice, be able to obtain other types of financing, or if its revenue will
increase significantly to be able to meet its cash operating expenses. This, in
turn, raises substantial doubt about the Company's ability to continue as a
going concern. Management anticipates revenue to grow depending on the outcome
of the negotiation with InnoFood, Inc. (see Note 3 for further discussion)
Because the InnoFood agreement was terminated as of January 8, 2004, the Company
may not have any substantial revenue and will not have any means of generating
cash flows from its operations without making other arrangements. However,
management believes that the private equity financing, public equity financing
and new product offerings will enable the Company to generate positive cash
flows and continue its operations. However, no assurances can be given as to the
success of these plans. The consolidated financial statements do not include any
adjustments that might result from the outcome of these uncertainties.
During April 2003, a definitive agreement was signed between BioGentec
Incorporated and BGTH to merge BioGentec into BGTH's wholly owned subsidiary,
Togs for Tykes Acquisition Corp. The merger was consummated with the filing of
the merger agreement with the State of Nevada in July 2003. As a result of the
merger, the Company hopes to gain access to public equity markets and additional
financing.
On July 28 2003, the Company signed a definitive agreement to acquire InnoFood,
Inc. The Company currently has disputes with the sellers of InnoFood and the
purchase agreement may be terminated subject to the outcome of the negotiations
or may be restructured with the parent company Modofood. On January 8, 2004, the
agreement was terminated and the Company believes it is entitled to receive the
refund of deposits of $2,220,000.(see Notes 3 and 10 for further discussion)
Stock Options
The Company did not grant any new options and no options were cancelled or
exercised during the nine months ended December 31, 2003. As of December 31,
2003, 1,150,000 options were outstanding, all of which are fully vested.
Accordingly, no additional disclosure is required under SFAS 148.
Earnings (loss) per share
The Company has adopted Statement of Financial Accounting Standards No. 128
("SFAS 128"), "Earnings Per Share." Under SFAS 128, basic earnings (loss) per
share is computed by dividing income available to common stockholders (net
income less preferred dividends) by the weighted-average number of common shares
assumed to be outstanding during the period of computation. Diluted earnings per
share is computed similar to basic earnings per share except that the
denominator is increased to include the number of additional common shares that
would have been outstanding if the potential common shares had been issued and
if the additional common shares were dilutive. Because the Company has incurred
net losses, basic and diluted loss per share are the same. Additional potential
common shares would be anti-dilutive. As of December 31, 2003 the Company has
approximately 2,060,834 common stock equivalents.
11
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued):
Recent Accounting Pronouncements:
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities" (FIN 46). FIN 46 changes the criteria by which one
company includes another entity in its consolidated financial statements.
Previously, the criteria were based on control through voting interest. FIN 46
requires a variable interest entity to be consolidated by a company if that
company is subject to a majority of the risk of loss from the variable interest
entity's activities or entitled to receive a majority of the entity's residual
returns or both. A company that consolidates a variable interest entity is
called the primary beneficiary of that entity. The consolidation requirements of
FIN 46 apply immediately to variable interest entities created after January 31,
2003. The consolidation requirements apply to older entities in the first fiscal
year or interim period beginning after June 15, 2003. Certain of the disclosure
requirements apply in all financial statements issued after January 31, 2003,
regardless of when the variable interest entity was established.
During October 2003, the FASB issued Staff Position No. FIN 46, deferring the
effective date for applying the provisions of FIN 46 until the end of the first
interim or annual period ending after December 31, 2003 if the variable interest
was created prior to February 1, 2003 and the public entity has not issued
financial statements reporting that variable interest entity in accordance with
FIN 46.
On December 24, 2003, the FASB issued FASB Interpretation No. 46 (Revised
December 2003), "Consolidation of Variable Interest Entities," (FIN-46R)
primarily to clarify the required accounting for interests in variable interest
entities. FIN-46R replaces FIN-46 that was issued in January 2003. FIN-46R
exempts certain entities from its requirements and provides for special
effective dates for entities that have fully or partially applied FIN-46 as of
December 24, 2003. In certain situations, entities have the option of applying
or continuing to apply FIN-46 for a short period of time before applying
FIN-46R. While FIN-46R modifies or clarifies various provisions of FIN-46, it
also incorporates many FASB Staff Positions previously issued by the FASB. The
Company has deferred the adoption of FIN 46 with respect to VIEs created prior
to February 1, 2003. Management is currently assessing the impact, if any, FIN
46 may have on the Company; however, management does not believe there will be
any material impact to the Company's financial position, results of operations
or liquidity resulting from the adoption of this interpretation.
In December 2003, the FASB issued Statement of Financial Accounting Standards
(FAS) No. 132 (Revised 2003) "Employers' Disclosures about Pensions and Other
Postretirement Benefits." This standard replaces FAS-132 of the same title,
which was previously issued in February 1998. The revised FAS-132 was issued in
response to concerns expressed by financial statement users about their need for
more transparency of pension information. The revised standard increases the
existing GAAP disclosures for defined benefit pension plans and other defined
benefit postretirement plans. However, it does not change the measurement or
recognition of those plans as required under: FAS-87, "Employers' Accounting for
Pensions"; FAS-88, "Employers' Accounting for Settlements and Curtailments of
Defined Benefit Pension Plans and for Termination Benefits"; and FAS-106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions."
Specifically, the revised standard requires companies to provide additional
disclosures about pension plan assets, benefit obligations, cash flows, and
benefit costs of defined benefit pension plans and other defined benefit
postretirement plans. Also, for the first time, companies are required to
provide a breakdown of plan assets by category, such as debt, equity and real
estate, and to provide certain expected rates of return and target allocation
percentages for these asset categories. The revised FAS-132 is effective for
financial statements with fiscal years ending after December 15, 2003 and for
interim periods beginning after December 15, 2003. The adoption of this
Statement is not expected to have a material impact on the Company's financial
position, results of operations, or cash flows.
12
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
2. RELATED PARTY TRANSACTIONS:
Consulting Contract
BioGentec has a consulting contract with R&R Holdings, Inc ("R&R") whereby R&R
would provide managerial consulting services to the Company at the rate of
$125,000 per year. As stated in the agreement, the rate increased to $135,000
per year upon BioGentec's public company merger with BGTH. R&R is also a
shareholder of BioGentec. For the three months and nine months ended December
31, 2003, the Company expensed $33,750 and $98,750, respectively under this
contract. For the three months and nine months ended December 31, 2002, the
Company expensed $31,250 and $93,750, respectively. As of December 31, 2003, the
Company has a payable to R&R under the contact totaling $174,892 which is
included in due to related parties.
Advances
During the period from April 1, 2003 to December 31, 2003, R&R advanced
BioGentec additional cash totaling $287,100. During the three months and nine
months ended December 31, 2003, the Company repaid R&R in the amount of $59,500.
As of December 31, 2003, R&R has outstanding advances totaling $474,107. The
advances, excluding the transactions being classified as contributions to
capital, have been recorded as demand loans payable. The Company has imputed
interest on the note at a rate of 10% per annum. Interest expense totaled
$12,596 and $33,235 during the three months and nine months ended December 31,
2003, respectively and is included in Due to Related Parties. As of December 31,
2003, the Company has outstanding accrued interest payable of $36,398 on these
advances from R&R, which is included in due to related parties.
In September 2003, R&R advanced the Company an additional amount of $170,000 at
the rate of 10% per annum. These funds were specifically to provide the Company
with additional financing with regard to the InnoFood transaction. (See Note 3
and Note 10) Interest expense in the amount of $4,250 and $9,397 was accrued for
the three months and nine months ended December 31, 2003 relating to this
advance. As of December 31, 2003, the Company has outstanding accrued interest
payable of $9,397 on these advances which is included in due to related parties.
Employment Contracts
The President (previously the Executive Vice President) entered into an
employment agreement dated November 22, 2000, amended on December 31, 2001,
which pays an annual salary of up to $125,000 and certain bonuses. The Company
expensed $31,250 for each of the three-month period ended December 31, 2003 and
2002 and $93,750 for each of the nine-month period ended December 31, 2003 and
2002. As of December 31, 2003, the Company has a payable to the President
totaling $123,250 which is included in due to related parties.
BioGentec has entered into an employment agreement with the Chief Operating
Officer ("COO") that pays an annual salary of $120,000 per year. The agreement
provides that the COO's base salary shall increase by increments of $50,000 per
year upon the achievements of certain milestones, including the Company's
obtaining financing and achieving certain levels of revenues. In addition, the
agreement provides that the COO shall be eligible to receive bonuses tied to the
Company's revenues. The Company expensed $46,875 and $96,875 for the three
months and nine months ended December 31, 2003, respectively, and expensed
$20,000 for the three months and nine months ended December 31, 2002. During the
three months ended December 31, 2003, the Company paid $88,750 under this
employment agreement. As of December 31, 2003, the Company owed the COO
approximately $38,125 pursuant to this agreement. This amount is included in due
to related parties in the accompanying consolidated financial statements.
13
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
3. ACQUISITION DEPOSIT:
InnoFood, Inc. Agreement
On July 28, 2003, the Company entered into a definitive agreement (the "InnoFood
Agreement") to acquire InnoFood, Inc. ("InnoFood"), owner of certain rights to a
proprietary food processing technology developed by Modofood S.P.A. of Brescia,
Italy. The agreement provided BioGentech exclusive distribution rights (through
the acquisition of InnoFood) of Modofood's proprietary food sterilization and
preservation technology for North America, Central America, South America and
Japan, as well as the exclusive rights to negotiate on behalf of Modofood for
Southeast Asia, including Taiwan, China and Indonesia.
Under the terms of the agreement, InnoFood shareholders would receive one
BioGentech common share and one BioGentech warrant for every twelve (12) shares
of InnoFood common stock. InnoFood shareholders were also to receive one
InnoFood preferred share for every 1,200 InnoFood common shares. The agreement
called for BioGentech to infuse $5 million of working capital prior to December
31, 2003.
During the three months and nine months ended December 31, 2003, the Company has
advanced InnoFood the sum of $250,000 and $2,220,000, respectively.
On October 17, 2003 the Company entered into a Letter of Understanding ("LOU")
with InnoFood to restructure the relationship between the Company and InnoFood.
The Company believes that InnoFood may have misled the Company's management
regarding certain material matters. As a result, the definitive agreements were
never prepared and parties did not finalize the matters referenced in the LOU.
On January 8, 2004, InnoFood sent the Company a letter explaining that InnoFood
was terminating the original InnoFood agreement and the October 17, 2003 LOU.
InnoFood claimed that the Company breached both the original Agreement and the
LOU by failing to provide the funding provided for under those agreements. With
the letter of termination, InnoFood delivered a signed Promissory Note agreeing
to pay back the $2,160,000 (net of interest of $60,000 InnoFood charged to the
Company for non-payments). The Promissory Note accrues interest at 10% and is
due and payable on or before January 15, 2009. As of February 16, 2004, the
Company has not yet accepted the terms of this promissory note and is still in
negotiation with InnoFood regarding the purchase.
The Company believes that InnoFood breached not only the original InnoFood
Agreement but also the LOU. The Company intends to vigorously pursue InnoFood
and all other responsible parties, but has not determined whether it will file
suit against InnoFood and any other parties. The Company may also consider
pursuing legal action against Modofood S.P.A.; if it is unable to resolve these
matters informally through negotiations now taking place. In the meantime, the
Company is attempting to resolve this dispute without court intervention.
4. WARRANT LIABILITY:
Pursuant to EITF 00-19, "Accounting for Derivative Financial Instruments Indexed
to, and Potentially Settled in, a Company's Own Stock", the Company has recorded
the relative fair value of warrants issued with registration rights on the
Convertible Debenture (See Note 7) and the Convertible Preferred Stock (See Note
8) in the amount of $351,479 as a short-term liability until the Company has
obtained an effective registration statement for these shares.
Additionally, the Company is required to report a value of the warrant as a fair
market value and record the fluctuation to the fair value of the warrant
liability to current operations. The fair value increased by $47,751 during the
three months ended December 31, 2003 and decreased by $452 for the nine months
ended December 31, 2003.
14
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
5. PREFERRED STOCK LIABILITY:
Pursuant to EITF 00-19, "Accounting for Derivative Financial Instruments Indexed
to, and Potentially Settled in, a Company's Own Stock", the Company has recorded
the value of the net proceeds of Convertible Preferred Stock, which is
immediately convertible into shares of common stock with registration rights
(See Note 8) as a short-term liability until the Company has obtained an
effective registration statement for these shares. Upon the completion of an
effective registration statement, the net value of the shares shall be recorded
as permanent equity in additional paid-in capital.
6. DEMAND LOANS PAYABLE:
In July and August 2003, the Company was loaned $500,000 from an investor. The
Loans are payable on demand, and accrue interest at the rate of 10% per annum.
During the three months ended December 31, 2003, the Company received additional
loans of $560,000 from this investor. As of December 31, 2003, the Company has
outstanding accrued interest of $34,833 related to these loans payable.
7. CONVERTIBLE NOTE PAYABLE:
In September 2003, the Company sold a $600,000, three-year, 8% convertible
debenture (the "Convertible Debenture"), which is convertible into shares of the
Company's common stock at the initial conversion price of $2.00 per share. This
price is subject to adjustment should the Company issue shares of its common
stock at a price less than $1.75 per share. The Convertible Debenture was sold
with detachable three-year warrants (the "Debenture Warrants") to purchase
90,000 shares of the Company's common stock at $2.88 per share. The warrant
exercise price is also subject to adjustment based on sales of the Company's
common stock below the current fair market value on the contract date.
The Company capitalized $83,500 of debt issues costs that are being amortized
over the life of the Convertible Debenture. During the three months and nine
months ended December 31, 2003, the Company amortized $2,320 and $9,278,
respectively, relating to debt issue costs.
The discount attributable to the relative fair value of the warrants, as
calculated using the Black-Scholes pricing model, and the value of the
beneficial equity conversion feature exceeded the face value of the convertible
note. As a result, the Company has recorded a discount to additional paid in
capital of $169,630 related to the relative fair value of the warrants and
$346,870 of discount related to the beneficial conversion feature of the
Convertible Debenture. The discount will be amortized using the effective
interest rate method over the term of the debt. For the three and nine-month
periods ended December 31, 2003, the Company recorded the amortization of
discount in the amounts of $130,198 and $115,851, respectively, as interest
expense. The Company accrued $12,000 and $14,933 of interest expense (8% per
annum of the face value of the note) for the three months and nine months ended
December 31, 2003, respectively. Upon conversion of the debt, any unamortized
debt issue costs will be charged to expense.
The Company also entered into a registration rights agreement whereby the
Company agreed to file a valid registration statement with the Securities and
Exchange Commission to register the shares of common stock underlying the
Convertible Debentures and Debenture Warrants. Pursuant to EITF 00-19,
"Accounting for Derivative Financial Instruments Indexed to, and Potentially
Settled in, a Company's Own Stock", approximately $169,630, the relative fair
value of the warrants, has been recorded as a short-term liability until the
Company has obtained an effective registration statement for these shares (See
Note 4). If the Company does not file such an effective registration statement
within 30 days of the closing date, or October 8, 2003, the Company is subject
to penalties as follows: 1% of the principal amount of the funding for the first
30 day period in which the Company fails to file such registration statement,
and 2% for each 30 day period thereafter. At December 31, 2003, the Company had
not filed such a registration statement and accordingly is currently subject to
a penalty of $16,258.
15
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
8. STOCKHOLDERS' EQUITY
Convertible preferred stock / preferred dividend
In September 2003, the Company sold 1,000 shares of its 7.5% convertible
preferred stock (the "Convertible Preferred Stock") for $1,000,000, less direct
issuance costs of $115,000, which were netted against the proceeds of the
offering. The Convertible Preferred Stock carries voting rights equivalent to
the number of shares of common stock into which it can be converted, and has
liquidation preference of $1,000 per share. The Convertible Preferred Stock is
convertible into shares of the Company's common stock at the initial conversion
price of $2.40 per share. This price is subject to change should the Company
issue shares of its common stock at a price less than $1.75 per share. Included
with the Convertible Preferred Stock were detachable three-year warrants to
purchase 104,167 shares of the Company's common stock at the price of $2.88 per
share (the "Preferred Warrants"). The warrant exercise price is also subject to
adjustment based on sales of the Company's common stock below the current fair
market value on the contract date.
The discount attributable to the value of the warrants, as calculated using the
Black-Scholes pricing model, and the value of the beneficial conversion feature
exceeded the net proceeds received from the sale the shares. As a result, the
Company has recorded a discount to additional paid in capital of $181,849
related to the relative fair value of the relative fair value of the warrants
and $703,151 related to the beneficial conversion feature of the Convertible
Preferred Stock. The shares are convertible at the option of the holder and,
pursuant to EITF 98-5, "Accounting for Convertible Securities with Beneficial
Conversation Features or Contingently Adjustable Conversion Ratios", the
discount attributable to the beneficial conversation feature of was recorded as
a preferred stock dividend at the date of issuance. The Company recognized
$885,000 of preferred dividends related to the discount.
Pursuant to EITF 00-19, "Accounting for Derivative Financial Instruments Indexed
to, and Potentially Settled in, a Company's Own Stock", approximately $181,849,
the relative fair value of the warrants, has been recorded as a short-term
liability until the Company has obtained an effective registration statement for
these shares. (See Note 4)
Further, the preferred shares are convertible into registered shares of the
Company's common stock. Pursuant to EITF 00-19, "Accounting for Derivative
Financial Instruments Indexed to, and Potentially Settled in, a Company's Own
Stock", approximately $885,000 (the net proceeds attributable to the preferred
stock) has been recorded as a current liability until the Company has obtained
an effective registration statement relating to these shares. (See Note 5)
The Company accrued $18,750 for the preferred dividend for the three months and
nine months ended December 31, 2003, which is classified as preferred dividend
payable as of December 31, 2003.
If the Company does not file such an effective registration statement within 30
days of the closing date, or October 25, 2003, the Company is subject to
penalties as follows: 1% of the value of the shares and the warrants paid by the
purchaser for the first 30 day period in which the Company fails to file such
registration statement, and 2% for each 30 day period thereafter. At December
31, 2003, the Company had not filed such a registration statement and
accordingly is currently subject to a penalty of $38,193.
Sale of Common Stock
During the nine months ended December 31, 2003, the Company sold 100,000
restricted common shares in a private placement at $2.00 per share, which
represented the fair market value of the common stock.
Common stock issued pursuant to the InnoFood transaction - cancelled
In August 2003, the Company issued 2,000,000 shares of its common stock pursuant
to its contemplated transaction with InnoFood (see Note 3). Subsequently, the
InnoFood transaction was re-negotiated, and in November 2003 the certificates
representing these 2,000,000 shares were cancelled.
16
BIOGENTECH CORP. AND SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
FOR THE THREE MONTHS AND NINE MONTHS ENDED DECEMBER 31, 2003 AND 2002
8. STOCKHOLDERS' EQUITY (Continued):
Common stock issued as collateral on loan
During July 2003, the Company was negotiating with a lender in Germany for a
loan in the amount of approximately $2,400,000. On July 31 2003, the Company
issued 3,000,000 shares of its restricted common stock as collateral for this
loan. This transaction was never completed, there was no consideration to serve
as basis for a transaction, and the Company is in the process of attempting to
cancel the share certificate. These shares are shown as issued as of December
31, 2003, but not outstanding. The share certificates have not yet been returned
by the prospective lender.
9. COMMITMENT AND CONTINGENCIES:
Lease Agreement
As of March 31, 2003, BioGentec Incorporated, which is as of the date of this
report, the Company's wholly owned subsidiary, vacated previously occupied
office space and is in a dispute with the prior landlord. The landlord has filed
suit against us in the County of Orange, Superior Court of California, Case
#03CC02904. The Company accrued liability of approximately $60,000 related to
this lawsuit.
See also Notes 3 and 10 relating to InnoFood Agreement and Note 8 relating to
common stock issued as collateral on loans.
10. SUBSEQUENT EVENTS:
On January 8, 2004, InnoFood sent the Company a letter explaining that InnoFood
was terminating the original InnoFood agreement and the October 17, 2003 LOU.
InnoFood claimed that the Company breached both the original agreement and the
LOU by failing to provide the funding provided for under those agreements. With
the letter of termination, InnoFood delivered a signed Promissory Note agreeing
to pay back the $2,160,000 (net of interest of $60,000 InnoFood charged to the
Company for non-payments). The Promissory Note accrues interest at 10% and is
due and payable on or before January 15, 2009. As of February 16, 2004, the
Company has not yet accepted the terms of this promissory note and is still in
negotiation with InnoFood regarding the purchase.
The Company believes that InnoFood breached not only the InnoFood Agreement but
also the LOU. The Company intends to vigorously pursue InnoFood and all other
responsible parties, but has not yet determined whether it will file suit
against InnoFood or any other parties. The Company may also consider pursuing
legal action against Modofood if it is unable to resolve these matters
informally. In the meantime, the Company is attempting to resolve this dispute
without court intervention.
17
ITEM 2. PLAN OF OPERATION
THIS FOLLOWING INFORMATION SPECIFIES CERTAIN FORWARD-LOOKING STATEMENTS OF
MANAGEMENT OF THE COMPANY. FORWARD-LOOKING STATEMENTS ARE STATEMENTS THAT
ESTIMATE THE HAPPENING OF FUTURE EVENTS AND ARE NOT BASED ON HISTORICAL FACT.
FORWARD-LOOKING STATEMENTS MAY BE IDENTIFIED BY THE USE OF FORWARD-LOOKING
TERMINOLOGY, SUCH AS "MAY," "SHALL," "COULD," "EXPECT," "ESTIMATE,"
"ANTICIPATE," "PREDICT," "PROBABLE," "POSSIBLE," "SHOULD," "CONTINUE," OR
SIMILAR TERMS, VARIATIONS OF THOSE TERMS OR THE NEGATIVE OF THOSE TERMS. THE
FORWARD-LOOKING STATEMENTS SPECIFIED IN THE FOLLOWING INFORMATION HAVE BEEN
COMPILED BY OUR MANAGEMENT ON THE BASIS OF ASSUMPTIONS MADE BY MANAGEMENT AND
CONSIDERED BY MANAGEMENT TO BE REASONABLE. OUR FUTURE OPERATING RESULTS,
HOWEVER, ARE IMPOSSIBLE TO PREDICT AND NO REPRESENTATION, GUARANTY, OR WARRANTY
IS TO BE INFERRED FROM THOSE FORWARD-LOOKING STATEMENTS.
THE ASSUMPTIONS USED FOR PURPOSES OF THE FORWARD-LOOKING STATEMENTS SPECIFIED IN
THE FOLLOWING INFORMATION REPRESENT ESTIMATES OF FUTURE EVENTS AND ARE SUBJECT
TO UNCERTAINTY AS TO POSSIBLE CHANGES IN ECONOMIC, LEGISLATIVE, INDUSTRY, AND
OTHER CIRCUMSTANCES. AS A RESULT, THE IDENTIFICATION AND INTERPRETATION OF DATA
AND OTHER INFORMATION AND THEIR USE IN DEVELOPING AND SELECTING ASSUMPTIONS FROM
AND AMONG REASONABLE ALTERNATIVES REQUIRE THE EXERCISE OF JUDGMENT. TO THE
EXTENT THAT THE ASSUMED EVENTS DO NOT OCCUR, THE OUTCOME MAY VARY SUBSTANTIALLY
FROM ANTICIPATED OR PROJECTED RESULTS, AND, ACCORDINGLY, NO OPINION IS EXPRESSED
ON THE ACHIEVABILITY OF THOSE FORWARD-LOOKING STATEMENTS. WE CANNOT GUARANTY
THAT ANY OF THE ASSUMPTIONS RELATING TO THE FORWARD-LOOKING STATEMENTS SPECIFIED
IN THE FOLLOWING INFORMATION ARE ACCURATE, AND WE ASSUME NO OBLIGATION TO UPDATE
ANY SUCH FORWARD-LOOKING STATEMENTS.
CRITICAL ACCOUNTING POLICY AND ESTIMATES. Our Management's Discussion and
Analysis of Financial Condition and Results of Operations section discusses our
consolidated financial statements, which have been prepared in accordance with
accounting principles generally accepted in the United States of America. The
preparation of these consolidated financial statements requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities at the date of the consolidated financial statements and the
reported amounts of revenues and expenses during the reporting period. On an
on-going basis, management evaluates its estimates and judgments, including
those related to revenue recognition, stock based compensation, fair value of
financial instruments, impairment of long lived assets and commitments and
contingencies. Management bases its estimates and judgments on historical
experience and on various other factors that are believed to be reasonable under
the circumstances, the results of which form the basis for making judgments
about the carrying value of assets and liabilities that are not readily apparent
from other sources. Actual results may differ from these estimates under
different assumptions or conditions. The most significant accounting estimates
inherent in the preparation of our financial statements include revenue
recognition, stock based compensation, fair value of financial instruments,
impairment of long lived assets and commitments and contingencies. These
accounting policies are further discussed in the notes to the consolidated
financial statements included in the first amendment to Form 8-K filed on July
18, 2003 for the years ended March 31, 2003 and 2002 and the period from
November 21, 2000 (inception) to March 31, 2003.
OUR BACKGROUND. We were incorporated in Nevada on September 26, 1997, as Aztec
Ventures, Inc. Our original business was the sale of pay phone services. In June
2001, our management and business changed. On September 5, 2001, we amended our
Articles of Incorporation to change our name to Togs for Tykes, Inc. due to the
shift of our business to designing and marketing children's apparel. Since we
were not successful in implementing that business plan due to lack of funds, in
March 2003, we entered into negotiations regarding an acquisition of BioGentec
Incorporated, a Nevada corporation ("BG"), in order to merge it with and into
our wholly owned subsidiary, Togs for Tykes Acquisition Corporation, a Nevada
corporation. By means of a shareholder vote in March 2003, we changed our name
to BioGentech Corp.
18
We entered into an Agreement and Plan of Merger with BG that provided that BG
would become our subsidiary by merging with our acquisition subsidiary. That
agreement is attached as an exhibit to our report on Form 8-K filed on July 3,
2003. On July 2, 2003, our subsidiary filed Articles of Merger with the
Secretary of State of Nevada to complete that acquisition for accounting
purposes, the company has deemed the transaction closed as of June 30, 2003. We
anticipate that the acquisition will increase the total value of the corporation
to our investors. Also in July 2003, we changed our fiscal year end from
December 31 to March 31.
BIOGENTEC INCORPORATED. BioGentec Incorporated ("BG") was incorporated in Nevada
on November 21, 2000. BG is dedicated to the development and commercialization
of consumer medical products and life style - health improvement products. BG's
first product focus is in the fields of immunomodulation, menopause, pinpoint
detoxification and cholesterol reduction. BG anticipates that its initial
patented product, Prehistin, (formerly Allertin, will create a unique niche
within the allergy relief category. In November 2000, BG acquired Allergy
Limited, LLC ("Allergy Limited"). Allergy Limited sponsored the clinical
research for Prehistin's formula from 1989 through 2000 and secured the first
patent, in 1992 and BG secured the second in 2001.
On July 28, 2003, the Company entered into a definitive agreement (the "InnoFood
Agreement") to acquire InnoFood, Inc. ("InnoFood"), owner of certain rights to a
proprietary food processing technology developed by Modofood S.P.A. of Brescia,
Italy. The agreement would have provided BioGentech with exclusive distribution
rights (through the acquisition of InnoFood) of Modofood's proprietary food
sterilization and preservation technology for North America, Central America,
South America and Japan, as well as the exclusive rights to negotiate on behalf
of Modofood for Southeast Asia, including Taiwan, China and Indonesia.
Under the terms of the agreement, InnoFood shareholders would receive one
BioGentech common share and one BioGentech warrant for every twelve (12) shares
of InnoFood common stock. InnoFood shareholders were also to receive one
InnoFood preferred share for every 1,200 InnoFood common shares. The agreement
called for BioGentech to infuse $5 million of working capital prior to December
31, 2003.
During the three months and nine months ended December 31, 2003, the Company
advanced InnoFood the sum of $250,000 and $2,220,000, respectively.
On October 17, 2003 the Company entered into a Letter of Understanding ("LOU")
with InnoFood to restructure the relationship between the Company and InnoFood.
The Company believes that InnoFood may have misled the Company's management
regarding certain material matters. As a result, the definitive agreements were
never prepared and parties did not finalize the matters referenced in the LOU.
On January 8, 2004, InnoFood sent the Company a letter explaining that InnoFood
was terminating the original InnoFood agreement and the October 17, 2003 LOU.
InnoFood claimed that the Company breached both the original Agreement and the
LOU by failing to provide the funding provided for under those agreements. With
the letter of termination, InnoFood delivered a signed Promissory Note agreeing
to pay back the $2,160,000 (net of interest of $60,000 InnoFood charged to the
Company for non-payments). The Promissory Note accrues interest at 10% and is
due and payable on or before January 15, 2009. As of February 16, 2004, the
Company has not yet accepted the terms of this promissory note and is still in
negotiation with InnoFood regarding the purchase.
The Company believes that InnoFood breached not only the original InnoFood
Agreement but also the LOU. The Company intends to vigorously pursue InnoFood
and all other responsible parties, but has not determined whether it will file
suit against InnoFood. The Company may also consider pursuing legal action
against Modofood if it is unable to resolve these matters informally through
negotiations now taking place. In the meantime, the Company is attempting to
resolve this dispute without court intervention.
19
LIQUIDITY AND CAPITAL RESOURCES
We had cash of $28,133 at December 31, 2003. We also had $1,789 in prepaid and
other current assets and $5,903 in inventory making our total current assets as
at December 31, 2003 equal to $35,825. We also had the following long term
assets: $74,222 in debt issue costs; $68,223 in property and equipment, net,
$8,825 in net website development costs, $3,850,000 represented by net value of
our patents, $40,000 in deposits, and $2,220,000 represented by an acquisition
deposit. Therefore, our total assets as of December 31, 2003 were $6,297,095.
Our total current liabilities were $3,980,724 at December 31, 2003, which was
represented by accounts payable and accrued expenses of $639,778, $1,026,169 due
to related parties, warrant liability of $351,027, convertible preferred stock
of $885,000, demand loans payable for $1,060,000, and $18,750 represented by a
preferred dividend payable. We also had long term net amount represented by
convertible note payable of $213,698, after a discount of $386,203. Therefore
our total liabilities as of December 31, 2003 were $4,134,422. Our assets
exceeded our liabilities by $2,102,673 as of December 31, 2003.
We have financed our operations primarily through cash generated from related
party debt financing and from the private placement sales of equity securities.
During the nine months ended December 31, 2003, BG sold 100,000 common shares of
its common stock for $2.00 per share and received $200,000. We also sold
Preferred Stock in the amount of $1,000,000, as well as issuing a Convertible
Debenture in the amount of $600,000 less $83,500. Additionally related parties
loaned an additional $525,400 to us. Also during the nine months ended December
31, 2003, we had $1,060,000 in demand loans payable.
As of December 31, 2003, we had cash of $28,133. Our net cash used by operating
activities was $838,757 for the nine months ended December 31, 2003 as compared
to net cash used by operating activities of $430,777 for the nine months ended
December 31, 2002, an increase of $407,980, primarily due to an increase in
accounts payable and accrued expenses and amounts payable to related parties.
Our cash used in investing activities was $2,240,000 for the nine-month period
ended December 31, 2003, as compared to $104,950 for the nine month an increase
of $2,135,050, which was due to the InnoFood acquisition deposit.
Our net cash provided by financing activities was $3,104,600 for the nine months
ended December 31, 2003 compared to $528,630 for the same period a year earlier,
an increase of $2,575,970 or 487%. The increase is primarily due to the sale of
Preferred Stock, Convertible Debentures, and increases in the sale of common
stock and loan proceeds from related parties.
RESULTS OF OPERATIONS FOR THE THREE MONTH PERIOD ENDED DECEMBER 31, 2003 AS
COMPARED TO THE THREE MONTH PERIOD ENDED DECEMBER 31, 2002
Revenue and Cost of Sales
We had no significant revenues for the three months and nine months ended
December 31, 2003 and 2002 as we are undertaking a Phase III clinical trial in
order to obtain FDA approval of Prehistin as an over the counter drug. Our net
sales were $181 for the three months ended December 31, 2003 as compared to zero
for the same period ended December 31, 2002.
Operating Expenses
Operating expenses for the three months ended December 31, 2003 were $491,873
compared to $415,699 for the quarter ended December 31, 2002. For both periods,
expenses incurred were for two major purposes: i) ongoing development of our
Prehistin product and related product management and ii) general management and
fund raising efforts. Our operating expenses increased due primarily to
increased compensation and consulting expenses.
During the three months ended December 31, 2003, our net loss attributable to
common shareholders for three months ended December 31, 2003, after preferred
dividends was $626,798 or loss per share of $0.03 per share compared to $446,728
or loss per share of $0.03 per share for the three months ended December 31,
2002.
20
RESULTS OF OPERATIONS FOR THE NINE MONTH PERIOD ENDED DECEMBER 31, 2003 AS
COMPARED TO THE NINE MONTH PERIOD ENDED DECEMBER 31, 2002
Revenues and Cost of Sales
We had no significant revenues for the nine months ended December 31, 2003 and
2002 as we are undertaking a Phase III clinical trial in order to obtain FDA
approval of Prehistin as an over the counter drug. Our net sales were $3,344
less $478 for cost of sales for a gross profit of $2,866 for the nine months
ended December 31, 2003 as compared to a cost of sales and gross loss of $7,323
for the nine months ended December 31, 2002.
Operating Expenses
Operating expenses for the nine months ended December 31, 2003 were $1,529,455
compared to $1,408,962 for the nine months ended December 31, 2002. For both
periods, expenses incurred were for two major purposes: i) ongoing development
of our Prehistin product and related product management and ii) general
management and fund raising efforts. For the nine months ended December 31,
2003, this amount was represented by $15,746 in depreciation and amortization
and $1,513,709 in general and administrative expenses, as compared to the nine
months ended December 31, 2002, where we had $15,632 in administrative expenses
and $1,393,330 in general and administrative expenses. Our operating expenses
increased due primarily to increased compensation and consulting expenses.
During the nine months ended December 31, 2003, we recognized $903,750 of a
preferred stock dividend relating to the issuance of convertible preferred
stock. (See Notes 5 and 8). Our net loss attributable to common shareholders for
nine months ended December 31, 2003, after preferred dividends was $2,662,213 or
loss per share of $0.13 compared to $1,509,374 or loss per share of $0.09 for
the nine months ended December 31, 2002.
OUR PLAN OF OPERATION FOR THE NEXT TWELVE MONTHS.
Over the next 12 months, we plan to continue moving forward with the Phase III
clinical trials of our allergy prevention product, Prehistin, followed
immediately by submission of an application to the FDA for marketing approval of
Prehistin as an over the counter ("OTC") allergy medication. We hope to receive
approval from the FDA in early 2005, enabling our US marketing launch of the
product for the spring 2005 allergy season.
While continuing with the US FDA approval process, we are working to finalize
the international launch strategy in the primary global markets. Discussions are
progressing with potential joint venture partners for marketing, manufacturing,
regulatory approval and distribution throughout the world, the most advanced of
which are with companies in Japan and Canada.
In addition to seeking approval from the FDA for the primary indication of
seasonal allergic rhinitis (hay fever) for Prehistin, we plan to conduct
additional studies to validate the viability of approval for supplemental
indications and alternative delivery mechanisms. The tests will be a combination
of clinical trials and laboratory analyses.
We are also actively pursuing the acquisition and development of products that
we hope will enable us to leverage our resources. Areas of focus are OTC
pharmaceutical products and nutritional supplements.
As of December 31, 2003, we had cash of $28,133. To fully execute our business
plan for the next 12 months, we will need to raise additional funds in order to
complete the Phase III clinical trials, submit the Prehistin application to the
United States FDA and to execute a marketing launch of the Prehistin product. We
will also need to raise funds to execute studies for the further development of
the Prehistin product line and to complete the acquisition of additional
products. Along with our investment bankers, we plan to raise these funds
through private and institution or other equity offerings. We may attempt to
secure other loans from lending institutions or other sources. There is no
guarantee that we will be able to raise additional funds through offerings or
other sources. If we are unable to raise funds, our ability to continue with
product development will be hindered.Other than the research and development
related to our Prehistin product, we do not plan to engage in any other research
and development unless we are able to raise additional funds. We do anticipate
the purchase of significant equipment within the next 12 months for either our
Prehistin product or for marketing the InnoFood product line. We do not
anticipate any significant hiring over the next 12 months.
21
ITEM 3. CONTROLS AND PROCEDURES
-------------------------------
(a) Evaluation of disclosure controls and procedures. We maintain controls and
procedures designed to ensure that information required to be disclosed in the
reports that we file or submit under the Securities Exchange Act of 1934 is
recorded, processed, summarized and reported within the time periods specified
in the rules and forms of the Securities and Exchange Commission. Based upon
their evaluation of those controls and procedures performed as of December 31,
2003, our chief executive officer and the principal financial officer
concludedthat our disclosure controls and procedures were adequate.(b) Changes
in internal controls. There were no significant changes in our internal controls
or in other factors that could significantly affect these controls subsequent to
the date of the evaluation of those controls by the chief executive officer and
principal financial officer.
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
--------------------------
Former premises---The Company is a defendant in a suit brought by its former
landlord for breach of agreement and unpaid rent. The landlord recently obtained
a writ of attachment in the amount of $58,840, which the Company is seeking to
overturn. The Company believes that its security deposit and other collateral
will be sufficient to cover this claim should an adverse ruling result, even
though the Company anticipates a favorable outcome to this suit. However, to
reflect this contingency, the Company has accrued $60,000 for potential judgment
of this case.
InnoFood---On July 28, 2003, the Company entered into a Stock Exchange Agreement
("Agreement") with InnoFood Inc. ("InnoFood") wherein it agreed, among other
things, to provide InnoFood with Funding totaling $5,000,000 in exchange for,
among other things, 100% interest in InnoFood. The Completed purchase of
InnoFood was not to occur until the $5,000,000 funding was delivered. Under the
Agreement, the Company was obligated to provide InnoFood with the Funding on or
before December 31, 2003. Due to what the Company considers to be significant
breaches by InnoFood, it was unable to provide the required funding by the
December 31, 2003 deadline. The Company did provide InnoFood with approximately
$2,220,000. The Company believes that $1,850,000 of the funds provided to
InnoFood was sent to ModoFood S.P.A., an Italian company ("ModoFood"). InnoFood
originally entered into a Licensing Agreement with ModoFood to market and
distribute ModoFood's food processing technology. On October 17, 2003, the
Company entered into a Letter of Understanding ("LOU") with InnoFood to
restructure the relationship between the Company and InnoFood. The Company
believes that InnoFood may have misled the Company's management regarding
certain material matters. As a result, the definitive agreements were never
prepared and parties did not finalize the matters referenced in the LOU.
On January 8, 2004, InnoFood sent the Company a letter explaining that InnoFood
was terminating the original InnoFood Agreement and the October 17, 2003, LOU.
InnoFood claimed that the Company breached both the Agreement and the LOU by
failing to provide the funding provided for under those agreements. With the
letter of termination, InnoFood delivered a signed Promissory Note agreeing to
pay back the $2,160,000 (net of interest of $60,000 InnoFood charged to the
Company for non-payments). The Promissory Note accrues interest at 10% and is
due and payable on or before January 15, 2009. As of February 16, 2004, the
Company has not yet accepted the terms of this promissory note and is still in
negotiation with InnoFood regarding the purchase. The Company believes that
InnoFood breached not only the InnoFood Agreement but also the LOU. The Company
intends to vigorously pursue InnoFood and all other responsible parties, but has
not determined whether it will file suit against InnoFood. The Company may also
consider pursuing legal action against Modofood if it is unable to resolve these
matters informally. In the meantime, the Company is attempting to resolve this
dispute without court intervention.
IBCG---The Company has retained counsel to file an action in Orange County
Superior Court against International Business Consultants, Gmbh ("IBCG"). In
July 2003, IBCG was issued 3,000,000 shares of the Company's stock as collateral
for certain financing IBCG agreed to arrange. IBCG never delivered the financing
but has failed and refused to return the stock. By means of this lawsuit, the
Company will seek to cancel the stock issued to IBCG on the grounds of lack of
consideration, breach of contract and fraud, among other things. The Company
intends to vigorously prosecute the suit and hopes that this suit will result in
the cancellation of 3,000,000 shares but it cannot guarantee that such will be
the result.
22
ITEM 2. CHANGES IN SECURITIES.
-------------------------------
SALE OF COMMON STOCK:
During the nine months ended December 31, 2003, we sold 100,000 restricted
common shares in a private placement at $2.00 per share, which represented the
fair market value of the common stock.
COMMON STOCK ISSUED PURSUANT TO THE INNOFOOD TRANSACTION - CANCELLED:
In August 2003, we issued 2,000,000 shares of our common stock pursuant to its
contemplated transaction with InnoFood. Subsequently, the InnoFood transaction
was re-negotiated, and in November 2003 the certificates representing these
2,000,000 shares were cancelled.
COMMON STOCK ISSUED AS COLLATERAL ON LOAN:
During July 2003, we were negotiating with a lender in Germany for a loan in the
amount of approximately $2,400,000. On July 31 2003, we issued 3,000,000 shares
of our restricted common stock as collateral for this loan. This transaction was
never completed, there was no consideration to serve as basis for a transaction,
and we are in the process of canceling the share certificates. These shares are
shown as issued as of December 31, 2003, but not outstanding. The share
certificates have not yet been returned by the prospective lender. We have
contacted the holder of these certificates in order to have them returned and
properly cancelled during the fourth quarter of fiscal year 2004.
CONVERTIBLE NOTE PAYABLE:
In September 2003, we sold a $600,000, three-year, 8% convertible debenture (the
"Convertible Debenture"), which is convertible into shares of our common stock
at the initial conversion price of $2.00 per share. This price is subject to
adjustment should we issue shares of our common stock at a price less than $1.75
per share. The Convertible Debenture was sold with detachable three-year
warrants (the "Debenture Warrants") to purchase 90,000 shares of our common
stock at $2.88 per share. The warrant exercise price is also subject to
adjustment based on sales of our common stock below the current fair market
value on the contract date.
CONVERTIBLE PREFERRED STOCK:
In September 2003, we sold 1,000 shares of its 7.5% convertible preferred stock
(the "Convertible Preferred Stock") for $1,000,000, less direct issuance costs
of $115,000, which were netted against the proceeds of the offering. The
Convertible Preferred Stock carries voting rights equivalent to the number of
shares of common stock into which it can be converted, and has liquidation
preference of $1,000 per share. The Convertible Preferred Stock is convertible
into shares of our common stock at the initial conversion price of $2.40 per
share. This price is subject to change should we issue shares of our common
stock at a price less than $1.75 per share. Included with the Convertible
Preferred Stock were detachable three-year warrants to purchase 104,167 shares
of our common stock at the price of $2.90 per share. The warrant exercise price
is also subject to adjustment based on sales of our common stock below the
current fair market value on the contract date.
23
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
----------------------------------------
None.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
----------------------------------------------------------
None.
ITEM 5. OTHER INFORMATION
--------------------------
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
------------------------------------------
(a) Exhibits.
31. Rule 13a-14(a)/15d-14(a) Certifications.
32. Section 1350 Certifications.
(b) Reports on Form 8-K
On October 1, 2003, we filed a report on Form 8-K for September 25, 2003,
concerning the sale of $1,000,000 of convertible preferred stock to Gryphon
Master Fund, L.P. The Form 8-K included Item 5 - Other Events and Required
Disclosure, and Item 7 - Exhibits, attaching as 4.1, a Certificate of
Designations for 7.5% Convertible Preferred Stock, 10.1, the Share Purchase
Agreement between BioGentech Corp. and Gryphon Master Fund, L.P., 10.2, a
Warrant Agreement and 10.3, a Registration Rights Agreement.
24
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
BioGentech Corp., a Nevada corporation
February 20, 2004
By: /s/ Chaslav Radovich
----------------------------------
Chaslav Radovich
Its: Chief Executive Officer, President, Director