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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to ________________.
Commission file number: 33-17922-C
IMMUNE RESPONSE, INC.
(Exact name of Registrant as specified in its charter)
COLORADO 84-0950197
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
7001 POST ROAD, STE. 100, DUBLIN, OHIO 43016
(Address of principal executive offices, including zip code)
(614) 336-2000
(Registrant's telephone number, including area code)
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date: 7,524,560 common
shares, $.0001 par value, on May 12, 2000.
Transitional Small Business Disclosure Format YES ___ NO _X_
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
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<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
Balance Sheets March 31, 2000 and December 31, 1999 1
Statements of Operations For the Three Months Ended March 31, 2
2000 and 1999, and the Period From July 28, 1984 (date of
inception) to March 31, 2000.
Statements of Cash Flows For the Three Months Ended March 31, 3
2000 and 1999, and the Period From July 28, 1984 (date of
inception) to March 31, 2000.
Notes to Financial Statements - 4
March 31, 2000.
Item 2. Management's Discussion and Analysis. 7
PART II. OTHER INFORMATION
Item 1. Legal Proceedings. 9
Item 2. Changes in Securities. 9
Item 3. Defaults Upon Senior Securities. N/A
Item 4. Submission of Matters to a Vote of Security Holders. 9
Item 5. Other Information. N/A
Item 6. Exhibits and Reports on Form 8-K. 11
Signatures
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
IMMUNE RESPONSE, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
Balance Sheets
March 31, 2000
<TABLE>
<CAPTION>
MARCH 31, 2000 DECEMBER 31, 1999
Assets (Unaudited) (see note 2)
-------------- ------------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 2,181,053 13,736
Deferred merger costs -- 32,344
Prepaid expenses and other current assets 12,424 1,031
----------- -----------
Total current assets 2,193,477 47,111
Property and equipment, net 36,601 44,099
Intangibles, net of accumulated amortization of $72,604 in 2000
and $69,700 in 1999 124,896 127,801
Other assets 4,979 7,264
----------- -----------
Total assets $ 2,359,953 226,275
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current portion of capital lease obligations $ 2,840 4,644
Note payable to Immune Response, Inc. -- 100,000
Accounts payable 84,500 43,273
Accounts payable and accrued liabilities to related parties 6,250 121,173
Dividends payable 7,000 --
Accrued interest on debentures 9,250 --
Accrued compensation and related taxes 30,000 168,178
Other accrued liabilities 24,148 --
----------- -----------
Total current liabilities 163,988 437,268
Capital lease obligations, net of current portion -- 480
----------- -----------
Total liabilities 163,988 437,748
Stockholders' equity (deficit):
Preferred stock, $.0001 par value, 1,000,000 shares authorized:
Series A convertible preferred stock, 3,000 shares authorized,
issued and outstanding at March 31, 2000;
liquidation preference of $3,016,250 1,806,369 --
Common stock, $.0001 par value, 25,000,000 shares authorized,
7,524,560 shares issued and outstanding at March 31, 2000 and 7,497,500
shares issued and outstanding at December 31, 1999
retroactively restated to reflect merger 752 750
Additional paid-in capital 6,675,283 4,153,193
Deficit accumulated during the development stage (6,286,439) (4,365,416)
----------- -----------
Total stockholders' equity (deficit) 2,195,965 (211,473)
----------- -----------
Total liabilities and stockholders' equity (deficit) $ 2,359,953 226,275
=========== ===========
</TABLE>
See accompanying notes to financial statements.
1
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IMMUNE RESPONSE, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
CUMULATIVE
FROM
JULY 28, 1994
THREE MONTHS ENDED (INCEPTION) TO
MARCH 31, MARCH 31,
2000 1999 2000
-------------- -------------- ----------------------
<S> <C> <C> <C>
Costs and expenses:
Selling, general and administrative $ 222,859 160,091 2,052,115
Research and development 36,086 42,756 1,254,850
Clinical and regulatory -- 16,325 929,457
Depreciation of property and equipment 7,498 4,893 141,872
Amortization of intangible assets 2,904 2,904 153,599
-------------- -------------- ----------------------
Loss from operations (269,347) (226,969) (4,531,893)
-------------- -------------- ----------------------
Other income (expense):
Interest income 9,545 -- 60,480
Interest expense (1,661,221) (397) (1,815,026)
-------------- -------------- ----------------------
Total other expense (1,651,676) (397) (1,754,546)
-------------- -------------- ----------------------
Loss before income taxes (1,921,023) (227,366) (6,286,439)
Income taxes -- -- --
-------------- -------------- ----------------------
Net loss $ (1,921,023) (227,366) (6,286,439)
-------------- -------------- ----------------------
Preferred stock dividends $ 7,000 -- 7,000
-------------- -------------- ----------------------
Net loss attributable to
common stockholders $ (1,928,023) (227,366) (6,293,439)
============== ============== ======================
Loss per common share (basic and diluted) $ (0.26) (0.04) (1.33)
============== ============== ======================
Weighted average number of shares
outstanding during period (basic
and diluted) retroactively restated to reflect
merger $ 7,498,690 6,138,067 4,727,620
============== ============== ======================
</TABLE>
See accompanying notes to financial statements.
2
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IMMUNE RESPONSE, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
CUMULATIVE FROM
JULY 28, 1994
THREE MONTHS ENDED (INCEPTION) TO
MARCH 31, MARCH 31,
2000 1999 2000
---------------- -------------- ---------------
<S> <C> <C> <C>
Cash used in operating activities (451,087) (167,229) (4,110,436)
Cash flows from investing activities:
Purchases of property and equipment -- -- (158,306)
Purchases of intangibles -- -- (59,147)
---------------- -------------- ---------------
Cash used in investing activities -- -- (217,453)
Cash flows from financing activities:
Cash acquired in merger 99,119 -- 99,119
Merger costs (47,696) -- (47,696)
Proceeds from issuance of stock, net of issuance cost -- 150,000 2,866,927
Proceeds from the issuance of note payable to Immune
Response, Inc. -- -- 100,000
Net proceeds from exercise of stock options 22,000 -- 22,000
Proceeds from convertible debentures with warrants 2,547,265 -- 3,372,265
Proceeds from long-term debt -- -- 115,000
Payments on capital lease obligations (2,284) (1,632) (18,673)
---------------- -------------- ---------------
Cash provided by financing activities 2,618,404 148,368 6,508,942
Increase (decrease) in cash and cash equivalents 2,167,317 (18,861) 2,181,053
Cash and cash equivalents, beginning of period 13,736 51,961 --
---------------- -------------- ---------------
Cash and cash equivalents, end of period $ 2,181,053 33,100 2,181,053
================ ============== ===============
SUPPLEMENTAL CASH FLOWS INFORMATION:
Cash paid for interest $ 26,300 47,890 30,992
================ ============== ===============
NONCASH INVESTING ACTIVITY:
Equipment acquired through capital lease obligations $ -- -- 21,513
================ ============== ===============
NONCASH FINANCING ACTIVITIES:
Cancellation of Immune Response, Inc. debt in merger $ 100,000 -- 100,000
================ ============== ===============
Deferred issuance costs related to merger $ 32,344 -- 32,344
================ ============== ===============
Conversion of debt in exchange for common stock $ -- -- 115,000
================ ============== ===============
Issuance of warrants in connection with convertible debt $ 775,000 -- 775,000
================ ============== ===============
Conversion of debt in exchange for stock $ 2,547,265 -- 3,421,432
================ ============== ===============
Issuance of common stock in exchange for intangibles $ -- -- 219,350
================ ============== ===============
</TABLE>
See accompanying notes to financial statements.
3
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IMMUNE RESPONSE, INC.
Notes to Financial Statements
(Unaudited)
March 31, 2000
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Immune Response,
Inc. (the "Company") have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-QSB and Item 10(a) of Regulation S-B. Accordingly, they
do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the three month period ended March 31, 2000 are not necessarily
indicative of the results that may be expected for the year ended December 31,
2000. For further information, refer to the financial statements and footnotes
thereto included in the Immune Response, Inc. Form 10-KSB for the year ended
December 31, 1999, as filed with the Securities and Exchange Commission.
NOTE 2 - MERGER WITH IMMUNE RESPONSE, INC. AND OPTICON MEDICAL, INC.
On December 9, 1999, Immune Response, Inc., Opticon Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of the Company ("Sub"), and
Opticon Medical, Inc. (Opticon), an Iowa corporation entered into an Agreement
and Plan of Reorganization (the "Merger Agreement"), providing for the merger of
Opticon with and into Sub (the "Merger").
The Merger Agreement was approved by the Company, acting as sole shareholder of
Sub. The shareholders of Opticon approved and adopted the Merger Agreement at a
special meeting held on January 28, 2000. The Merger became effective February
25, 2000 (the "Effective Date"). Through the Certificate of Merger, Sub changed
its name to Opticon Medical, Inc.
At the Effective Date of the Merger, each outstanding share of Common Stock, no
par value, Series A Preferred Stock, no par value, and Series B Preferred Stock,
no par value, of Opticon, totaling 4,482,906 shares (the "Opticon Stock") and
held by approximately 88 shareholders, was converted into the right to receive
1.23 shares of common stock, $.0001 par value, of the Company (the "Company
Common Stock"), so that, in the aggregate, the holders of Opticon Stock would,
on the Effective Date, hold 80% of the outstanding Company Common Stock, on a
fully diluted basis, and the then current shareholders of the Company would
hold, in the aggregate, 20% of the outstanding Company Common Stock on a fully
diluted basis. No fractional shares were issued. All fractional shares of
Company Common Stock to which a holder of Opticon Stock would otherwise be
entitled at the Effective Date were aggregated, and any fractional share
resulting from such aggregation was rounded to the nearest whole. All shares
issued pursuant to the Merger Agreement were issued pursuant to exemptions from
registration under the Securities Act of 1933, as amended (the "Act"). In
addition, notes outstanding between the two companies, totaling $100,000 were
cancelled in connection with the Merger. The Merger consideration was determined
based upon arms-length negotiations between the Company and Opticon.
The Merger Agreement provided that the Company assume Opticon's rights and
obligations under all of Opticon's outstanding options and warrants and other
purchase rights. As a result, on the Effective Date, the right of any holder of
an outstanding option, warrant, or other purchase right, was converted into the
right to receive the number of shares of Company Common Stock as would have been
issued or delivered to the holder if it had exercised the warrant or option and
received the shares of Opticon Stock upon such exercise immediately prior to the
effectiveness of the Merger. At the Effective Date, there were outstanding an
aggregate of 1,968,517 Opticon options and warrants. There were no options or
warrants granted subsequent to the Merger.
In connection with the Merger, on January 20, 2000, the Company's shareholders
approved a one-for-three reverse stock split and authorized 1,000,000 shares of
preferred stock and an increase in the authorized capital stock to 26,000,000
shares. As a result, prior to the Effective Date, the Company had a total of
1,983,526 shares of Company Common Stock issued and outstanding. In the Merger,
5,513,974 shares of Company Common Stock were issued in exchange for the
outstanding shares of Opticon Stock, causing the Company to have a total of
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7,497,500 shares of Company Common Stock issued and outstanding. If all of the
Opticon options and warrants were to be exercised, approximately another
2,421,276 shares of Company Common Stock would be issued.
The transaction between the Company and Opticon was a business combination
between an operating enterprise (Opticon) and a "shell company" (the Company),
in which the shell company was the issuer of securities and the operating
enterprise was determined to be the acquiring enterprise for financial reporting
purposes. In this case, the business combination is being treated for financial
reporting purposes as an issuance of securities by Opticon. Opticon has credited
equity for the fair value of the tangible net assets of the Company (i.e., no
goodwill or intangible assets were recognized in this transaction). Costs
related to this transaction were charged directly to equity.
In this filing and in future filings, the historical financial statements of
Opticon (accounting acquirer) has and will be presented as the historical
financial statements of the combined enterprise and the assets and liabilities
of the Company (legal acquirer) has and will be accounted for as required by the
purchase method of accounting without regard to which enterprise is the
surviving enterprise. The results of operations of the Company (legal acquirer)
are included in the financial statements of the combined enterprise only from
the date of acquisition. The equity of Opticon is presented as the equity of the
combined enterprise; however, the capital stock account of Opticon has been
adjusted to reflect the par value of the outstanding stock of the Company after
giving effect to the number of shares issued in the business combination. The
difference between the capital stock account of Opticon and the capital stock
account of the Company has been recorded as an adjustment to additional paid-in
capital of the combined enterprise. For periods prior to the business
combination, the equity of the combined enterprise is the historical equity of
Opticon prior to the merger retroactively restated to reflect the number of
shares received in the business combination. The accumulated deficit of Opticon
will be carried forward after the acquisition. Earnings (loss) per share for
periods prior to the business combination have been restated to reflect the
number of equivalent shares received by Opticon shareholders in the Merger.
If the Merger had occurred at the beginning of each interim period presented,
the results would have been as follows:
<TABLE>
<CAPTION>
Quarter Ended March 31, 2000 Quarter Ended March 31, 1999
<S> <C> <C>
Loss from operations $ (334,182) $ (228,296)
Net loss $ (1,983,249) $ (1,944,017)
Loss per share $ (0.26) $ (0.32)
</TABLE>
NOTE 3 - CONVERTIBLE PREFERRED STOCK SERIES A
Immediately following the Merger, the Company entered into Securities Purchase
Agreements with certain investors (the Investors") whereby the Company agreed to
sell, and the Investors to purchase $3 million in principal amount of 6%
convertible debentures (the "Debentures") and warrants to purchase 300,000
shares of the Company's common stock (the Warrants") at a price of $6.60 per
share. At the option of the holder, the Debentures were convertible, either in
whole or in part, into common shares, at any time, and from time to time, at a
conversion price per share of common stock equal to the lesser of: (a) $4.50 or
(b) 65% of the market price of the Company common stock. Any principal amount of
Debentures outstanding on the third anniversary of the issuance were
automatically convertible into common stock at the conversion price unless the
common stock issuable on such conversion would exceed 19.99% of the common stock
outstanding on the mandatory conversion date, in which case the Company's
shareholders would have to approve the issuance of the common stock in excess of
the 19.99% threshold. In the event of no shareholder approval, any unconverted
portion of the Debentures were required to be redeemed for cash.
The Debentures were recorded at the amount of gross proceeds of $3 million, less
the fair value of the Warrants, which were valued at $775,000. The calculated
conversion price at February 25, 2000, the first available conversion date, was
$2.93 per share. In accordance with the FASB's Emerging Issues Task Force Issue
98-5, the difference between this conversion price and the market price of $4.50
per share was reflected as additional interest expense of $1,613,013 in the
merged company's statement of operations for the quarter ended March 31, 2000.
On March 17, 2000, the Debentures were exchanged for 3,000 shares of Series A 6%
Convertible Preferred Stock (the "Preferred Stock"). The Preferred Stock has
identical terms and conditions to the Debentures, except that the
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holders of Preferred Stock are entitled to cumulative dividends rather than
interest, payable quarterly in cash or common stock. At the time of conversion,
the principal balance of the Debentures was $2,246,528, and accrued interest was
$9,250. On the conversion date, the Company also netted the deferred debt
issuance costs of $440,159, previously recorded as an asset, with the carrying
value of the Preferred Stock. The dividends were accrued at March 31, 2000, in
the amount of $7,000.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OVERVIEW
On February 25, 2000, as part of a merger among the Company, Opticon
Medical, Inc., and Opticon Acquisition Corporation, the Company's wholly-owned
subsidiary, the Company acquired the stock of Opticon Medical, Inc., a
development stage enterprise formed to develop, manufacture, and market
disposable devices to manage and control the symptoms of urinary incontinence in
adults. As a result of the merger, the Company's sole business now consists of
the research and development activities relating to the OPTICON(TM) , a
disposable, silicone indwelling valved catheter designed to manage urinary
incontinence, and other related products for urology markets.
This report contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ materially from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, those discussed in Item I of
the Company's Form 10-KSB as filed with the United States Securities and
Exchange Commission, File No. 33-17922-C, in the section entitled "Business
Risks."
PLAN OF OPERATION
The Debenture/Preferred Stock financing completed in February 2000,
produced net proceeds to the Company of approximately $2.5 million, which are
expected to fund the Company's planned operations for a period of 12-15 months,
after which additional funds will be required for further business development.
The Company intends to apply its current cash resources to executing the next
stage of its business plan, specifically across four initiatives -
infrastructure, product development, regulatory approval and manufacturing
scale-up. Broadly, it is the Company's plan to advance development to the point
that initial market introduction of the OPTICON(TM) device is considered
imminent, thereby establishing the basis for subsequent funding.
The Company has, through the current time, operated as a "virtual
company," leveraging the efforts of a small number of direct employees with
those of a host of consulting contractors. The Company intends now to commence
the hiring of key employees with the requisite financial, engineering and
management skills. The Company has engaged a local consultant for internal
finance and accounting services and the Board of Directors has elected him as
the Company's Chief Financial Officer. Management and operating personnel are
being recruited in the areas of product development/engineering and clinical and
regulatory affairs, although outside contractors will still be utilized to some
extent in these areas. Manufacturing and assembly will continue to be contracted
to outside sources; however, a quality assurance supervisor will be recruited to
internally develop and maintain quality standards as well as serving the
Company's requirements for documentation. Marketing and business development
management will be added to the organization later in the cycle as the product
approaches market readiness. The Company currently expects to directly employ a
total of some 8-10 associates by the end of 2000.
The focus of the Company's product development activities will center
on finalizing the specifications of the first-generation female device and on
progressing the male device from prototype stage to pilot production. In
addition, a final packaging design will be specified and sourced. The
development, construction and validation of a test fixture (already specified
and sourced) will be a high priority, as this equipment will be used in
qualifying manufactured devices to meeting certain performance criteria and also
to serve ongoing second-generation development plans. The extent to which
progress can be made in other developmental areas such as the suprapubic
configuration and the artificial sphincter will be limited by resource
constraints and the prioritization of first-generation market entry.
Conducting the clinical trials to support a 510(k) submission for
short-term urinary management will be the primary objective in regulatory
affairs. A trial protocol has been drafted and will be brought to final form
with assistance from our previously assembled network of clinical investigators,
after which we will collaborate with the FDA to gain agreement to proceed to
trial. The Company believes that a statistically valid sampling of patients can
be studied over a relatively short 4-5 month time frame once the Institutional
Review Boards of each of the Company's investigative sites grant their approval
to proceed. Assuming trial results remain satisfactory, the Company expects to
have made its submission to the FDA before the end of the first quarter of 2001.
Within that
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same timeframe, it is the Company's goal to have essentially completed the
process necessary to apply for the European CE marking - the regulatory
requirement for entering the markets abroad.
Finally, tooling will be specified and constructed to equip the
Company's contract manufacturers for producing product components in scale
quantities. This will enable a marketing-level manufacturing capacity and
provide for meeting the Company's initial unit cost forecasts. Such tooling is
significant in cost. The Company, however, is currently exploring means to
leverage its capitalization through debt or lease in order to mitigate some of
the impact on cash flow. Lead times for tooling construction are estimated to
run 6-8 months from the point of order.
Underlying the operating plan described above is the objective to
secure sales and distribution channels to the urology markets in both the U.S.
and Europe. The Company continues to have dialog with a number of the
established market participants for creating a strategic alliance and as the
Company gets closer to demonstrating market readiness, it is likely that one or
more of these discussions will become more meaningful and definitive.
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
Statements in this report which relate to other than strictly
historical facts, including statements about the Company's plans and strategies,
as well as management's expectations about new and existing products,
technologies and opportunities, market growth, demand for and acceptance of new
and existing products (including the OPTICON(TM) device), are forward looking
statements. The words "believe," "expect," "anticipate," "estimate," "project,"
and similar expressions identify forward-looking statements that speak only as
of the date hereof. Investors are cautioned that such statements involve risks
and uncertainties that could cause actual results to differ materially from
historical or anticipated results due to many factors including, but not limited
to, the Company's ability to successfully commercialize the OPTICON(TM),
continuing losses from operations and negative cash flow, the challenges of
research and development of new products, and other risks detailed in the
Company's most recent Annual Report on Form 10-KSB and other Securities and
Exchange Commission filings. The Company undertakes no obligation to publicly
update or revise any forward-looking statements.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is not currently involved in any material pending legal
proceedings.
ITEM 2. CHANGES IN SECURITIES
(b) On February 24, 2000, the Board of Directors authorized the
designation of 3,000 shares of preferred stock as the Series A, 6% Convertible
Preferred Stock (the "Preferred Stock"). The shares of Preferred Stock were
issued pursuant to an Exchange Agreement between us and certain investors (the
"Investors") whereby we exchanged debentures held by the Investors for shares of
the Preferred Stock. See Item 2(c).
The Preferred Stock ranks prior to the common stock. Holders of shares
of common stock are entitled to dividends that the Board of Directors may
declare out of funds legally available therefor, subject, however, to the
preferences of the holders of the Preferred Stock. Further, upon the Company's
liquidation, dissolution or winding-up, the assets legally available for
distribution to stockholders are distributable ratably among the holders of
common stock only after distributions have been made to the holders of the
Preferred Stock.
(c) In February 2000, in connection with the merger of Opticon Medical,
Inc. with and into Opticon Acquisition Corporation, the Company's wholly-owned
subsidiary, the Company sold to the Investors $3,000,000 in principal amount of
6% Redeemable Convertible Debentures ("Debentures"), and warrants to purchase
300,000 shares of the Company's common stock ("Warrants"), for an aggregate
purchase price of $3,000,000. The Debentures were subsequently exchanged for
3,000 shares of Preferred Stock. The Preferred Stock is entitled to cumulative
dividends at the rate of 6% per annum. The Warrants are exercisable at a price
equal to $6.60 per share. The shares of Preferred Stock are convertible from
time to time at the option of the holder into shares of common stock at a
conversion price equal to 65% of the average closing bid price of common stock
for the 5 business days prior to conversion. Both the Preferred Stock and the
Warrants have adjustment features to compensate for the dilutive issuance by the
Company of common equity (or options, warrants or other rights convertible into
or exercisable for common equity) while the Preferred Stock and Warrants remain
outstanding. The Company also entered into a Registration Rights Agreement
pursuant to which it will be required to file and keep effective a registration
statement under the Securities Act of 1933 for the resale by the Investors of
shares of common stock issuable on conversion of the Preferred Stock or exercise
of the Warrants, and the Company will incur substantial penalties if the
registration statement is not declared effective within 180 days of the closing
of the sale of the Debentures and Warrants. The Company's net proceeds from this
transaction, after payment of fees and expenses, were approximately $2.5
million.
The Debentures, Warrants, and shares of Preferred Stock were issued
pursuant to Rule 506 of Regulation D under the Securities Act of 1933, as
amended.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On January 20, 2000, a Special Meeting of the Shareholders was held to
consider and take action on the following matters:
Proposal 1: An Amendment to the Amended and Restated Articles
of Incorporation to reduce the affirmative shareholder vote necessary to approve
major transactions, such as mergers, major acquisitions or sales of assets, or
any matter which would require amendment to the Amended and Restated Articles of
Incorporation, from two-thirds of the issued and outstanding common shares to a
majority of the issued and outstanding shares.
Proposal 2: An Amendment to the Amended and Restated Articles
of Incorporation to effect a one-for-three reverse stock split and to reduce the
number of outstanding shares of common stock of the Company
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from 5,949,700 shares to approximately 1,983,233 shares, and to keep the
authorized shares of common stock of the Company at 25,000,000 shares, as
permitted under Section 7-106-105 of the Colorado Business Corporation Act, with
fractional shares resulting from the reverse stock split being rounded to the
closest whole share of common stock.
Proposal 3: An Amendment to the Amended and Restated Articles
of Incorporation to authorize 1,000,000 shares of blank check preferred stock
and increase the authorized capital to 26,000,000 shares as permitted under
Section 7-106-105 of the Colorado Business Corporation Act, giving the Board of
Directors the ability to authorize the creation and issuance of up to 1,000,000
shares of preferred stock in one or more series with such terms, limitations,
and restrictions as may be determined in the Board's sole discretion, with no
further authorization by the Company's shareholders except as may be required by
applicable laws or securities exchange listing rules.
The Company's shareholders duly approved all three proposals as
follows:
Proposal 1:
FOR AGAINST ABSTAIN
4,196,203 162,387 19,195
Proposal 2:
FOR AGAINST ABSTAIN
4,189,098 168,347 20,340
Proposal 3:
FOR AGAINST ABSTAIN
4,186,888 167,782 23,115
As of the record date of the meeting, there were 6,124,709 shares
issued and outstanding.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
Exhibit Exhibit Description
------- -------------------
3.1 * Amended and Restated Articles of Incorporation of the
Registrant.
3.2 ** Bylaws of the Registrant (Previously filed with the
Registrant's Registration Statement on Form S-18,
Commission file no. 33-17922-C, and incorporated
herein by reference.)
4 ** Articles V, VI, VII, and VIII of the Registrant's
Amended and Restated Articles of Incorporation and
Articles II, IX, XI, and XIV of the Registrant's
Bylaws.
10.1 * Lease between Pharmacia & Upjohn Company, successor
by merger to Adria Laboratories, Inc., and Opticon
Medical, Inc., dated August 20, 1998, for the lease
of real property located at 7001 Post Road, Dublin,
Ohio 43016.
10.2 * First Amendment to Lease Agreement between Pharmacia
& Upjohn Company, successor by merger to Adria
Laboratories, Inc., "Landlord," and Opticon Medical,
Inc., "Tenant," dated October 27, 1998.
10.3 * Employment Agreement, dated March 10, 1997, between
Opticon Medical, Inc. and William J. Post.
10.4 * Amendment to Employment Agreement, dated February 12,
1998, between Opticon Medical, Inc. and William J.
Post.
10.5 * Employment Agreement, dated September 9, 1997,
between Opticon Medical, Inc. and John LaMarche.
10.6 * Amendment to Employment Agreement, dated February 12,
1998, between Opticon Medical, Inc. and John
LaMarche.
10.7 * Consulting Agreement, dated November 1, 1997, between
Opticon Medical, Inc. and Dr. Fouad A. Salama, M.D.
10.8 * Employee Stock Option Agreement, dated June 3, 1998,
between Opticon Medical, Inc. and William J. Post.
10.9 * Employee Stock Option Agreement, dated July 26, 1996,
between Medical Device International, Inc. and John
LaMarche.
10.10 * Employee Stock Option Agreement, dated June 3, 1998,
between Opticon Medical, Inc. and John LaMarche.
10.11 * Form of Director's Stock Option Agreement, dated May
30, 1997, between Opticon Medical, Inc. and Ron
Eibensteiner, Opticon Medical, Inc. and Walter
Sembrowich, and Opticon Medical, Inc. and David
Lundquist.
10.12 * Employee Stock Option Agreement, dated July 26, 1997,
between Medical Device International, Inc. and F.A.
Salama, M.D.
11
<PAGE> 14
10.13 * Amendment to Employee Stock Opticon Agreement, dated
November 1, 1997, between Opticon Medical, Inc. and
Dr. Fouad A. Salama.
10.14 * Form of Securities Purchase Agreement between Immune
Response, Inc. and the selling stockholders.
10.15 * Form of Registration Rights Agreement between Immune
Response, Inc. and selling stockholders.
10.16 ** Form of Warrant issued by the Registrant to the
selling stockholders.
27 Financial Data Schedule
* Previously filed with Registrant's Annual Report on Form 10-KSB, dated
March 30, 2000, Commission file no. 33-17922-C, and incorporated herein
by reference.
** Previously filed with Registrant's Registration Statement on Form SB-2,
dated April 26, 2000, Commission file no. 33-17922-C, and incorporated
herein by reference.
(b) REPORTS ON FORM 8-K.
(1) Current Report on Form 8-K, dated March 10, 2000,
reporting a change in control/acquisition of assets pursuant to Items 1
and 2. No financial statements were filed therewith.
(2) Current Report on Form 8-K, dated March 17, 2000,
reporting a change in accountants, pursuant to Item 4. No financial
statements were filed therewith.
12
<PAGE> 15
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Form 10-QSB for the quarterly
period ended March 31, 2000, to be signed on its behalf by the undersigned,
thereto duly authorized.
By:/s/William J. Post
--------------------------------------
William J. Post, President and Chief
Executive Officer
By:/s/David B. Bittner
--------------------------------------
David B. Bittner, Chief Financial
Officer and Treasurer
Dated: May 15, 2000
13
<PAGE> 16
EXHIBIT INDEX
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
------ -----------
3.1 * Amended and Restated Articles of Incorporation of the
Registrant.
3.2 Bylaws of the Registrant (Previously filed with the
Registrant's Registration Statement on Form S-18,
Commission file no. 33-17922-C, and incorporated
herein by reference.)
4 ** Articles V, VI, VII, and VIII of the Registrant's
Amended and Restated Articles of Incorporation and
Articles II, IX, XI, and XIV of the Registrant's
Bylaws.
10.1 * Lease between Pharmacia & Upjohn Company, successor
by merger to Adria Laboratories, Inc., and Opticon
Medical, Inc., dated August 20, 1998, for the lease
of real property located at 7001 Post Road, Dublin,
Ohio 43016.
10.2 * First Amendment to Lease Agreement between Pharmacia
& Upjohn Company, successor by merger to Adria
Laboratories, Inc., "Landlord," and Opticon Medical,
Inc., "Tenant," dated October 27, 1998.
10.3 * Employment Agreement, dated March 10, 1997, between
Opticon Medical, Inc. and William J. Post.
10.4 * Amendment to Employment Agreement, dated February 12,
1998, between Opticon Medical, Inc. and William J.
Post.
10.5 * Employment Agreement, dated September 9, 1997,
between Opticon Medical, Inc. and John LaMarche.
10.6 * Amendment to Employment Agreement, dated February 12,
1998, between Opticon Medical, Inc. and John
LaMarche.
10.7 * Consulting Agreement, dated November 1, 1997, between
Opticon Medical, Inc. and Dr. Fouad A. Salama, M.D.
10.8 * Employee Stock Option Agreement, dated June 3, 1998,
between Opticon Medical, Inc. and William J. Post.
10.9 * Employee Stock Option Agreement, dated July 26, 1996,
between Medical Device International, Inc. and John
LaMarche.
10.10 * Employee Stock Option Agreement, dated June 3, 1998,
between Opticon Medical, Inc. and John LaMarche.
10.11 * Form of Director's Stock Option Agreement, dated May
30, 1997, between Opticon Medical, Inc. and Ron
Eibensteiner, Opticon Medical, Inc. and Walter
Sembrowich, and Opticon Medical, Inc. and David
Lundquist.
10.12 * Employee Stock Option Agreement, dated July 26, 1997,
between Medical Device International, Inc. and F.A.
Salama, M.D.
14
<PAGE> 17
10.13 * Amendment to Employee Stock Opticon Agreement, dated
November 1, 1997, between Opticon Medical, Inc. and
Dr. Fouad A. Salama.
10.14 * Form of Securities Purchase Agreement between Immune
Response, Inc. and the selling stockholders.
10.15 * Form of Registration Rights Agreement between Immune
Response, Inc. and selling stockholders.
10.16 ** Form of Warrant issued by the Registrant to the
selling stockholders.
27 Financial Data Schedule
* Previously filed with Registrant's Annual Report on Form 10-KSB, dated
March 30, 2000, Commission file no. 33-17922-C, and incorporated herein
by reference.
** Previously filed with Registrant's Registration Statement on Form SB-2,
dated April 26, 2000, Commission file no. 33-17922-C, and incorporated
herein by reference.
15
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM 3/31 10-QSB
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 2,181,053
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 2,193,477
<PP&E> 178,473
<DEPRECIATION> 141,872
<TOTAL-ASSETS> 2,359,953
<CURRENT-LIABILITIES> 163,988
<BONDS> 0
0
1,806,369
<COMMON> 752
<OTHER-SE> 425,445
<TOTAL-LIABILITY-AND-EQUITY> 2,359,953
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 259,802
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,661,221
<INCOME-PRETAX> (1,921,023)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,921,023)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,928,023)
<EPS-BASIC> (.26)
<EPS-DILUTED> (.26)
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