UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended January 31, 2010
or
o 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 333-68008
Commission file number 333-68008
NUVILEX, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 62-1772151 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
1971 Old Cuthbert Road, Cherry Hill, New Jersey 08034
(Address of principal executive offices)
(856) 354-0707
(Registrant’s telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer o | Smaller reporting company þ |
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No þ
As of January 31, 2010, the registrant had 320,997,582 outstanding shares of Common Stock.
This report includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “1933 Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). All statements other than statements of historical fact are “forward-looking statements” for purposes of this Quarterly Report on Form 10-Q, including any projections of earnings, revenue or other financial items, any statements regarding the plans and objectives of management for future operations, any statements concerning proposed new products or services, any statements regarding future economic conditions or performance, any statements regarding expected benefits from any transactions and any statements of assumptions underlying any of the foregoing. In some cases, forward-looking statements can be identified by the use of terminology such as “may,” “will,” “expects,” “plans,” “anticipates,” “estimates,” “potential” or “continue,” or the negative thereof or other comparable terminology. Although we believe that the expectations reflected in the forward-looking statements contained herein are reasonable, there can be no assurance that such expectations or any of the forward-looking statements will prove to be correct and actual results could differ materially from those projected or assumed in the forward-looking statements. Our future financial condition and results of operations, as well as any forward-looking statements, are subject to inherent risk and uncertainties, including, but not limited to, the risk factors set forth in “Part II, Item 1A – Risk Factors” below and for the reasons described elsewhere in this Quarterly Report on Form 10-Q. Al l forward looking statements and reasons why results may differ included in this report are made as of the date hereof and we do not intend to update any forward-looking statements accept as required by law or applicable regulations. Except where the context otherwise requires, in this Quarterly Report on Form 10-Q, the “Company,” “Nuvilex,” “we,” “us” and “our” refer to Nuvilex, Inc., a Nevada corporation, and, where appropriate, its subsidiaries.
ITEM 1. FINANCIAL STATEMENTS
The unaudited financial statements included herein have been prepared by Nuvilex, Inc. (the “Company”). In the opinion of management, the interim financial statements reflect all adjustments of a normal recurring nature necessary for a fair statement of the results for interim periods. It is suggested that these financial statements and notes to the financial statements be read in conjunction with the financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended April 30, 2009.
NUVILEX, INC.
F/K/A EFOODSAFETY.COM, INC.
C O N T E N T S
| Consolidated Balance Sheets January 31, 2010 (Unaudited) and April 30, 2009 | F-1 |
Consolidated Unaudited Statements of Operations for the Three and Nine Months Ended January 31, 2010 and 2009 | F-2 |
Consolidated Unaudited Statements of Cash Flows for the Nine Months Ended January 31, 2010 | F-3 |
| Notes to Consolidated Unaudited Financial Statements | F-4 |
| NUVILEX, INC. | |||
| F/K/A EFOODSAFETY.COM, INC. | |||
| CONSOLIDATED BALANCE SHEETS | |||
January 31, 2010 Unaudited | April 30, 2009 | ||
ASSETS | |||
| Cash | $ 650 | $ 603,727 | |
| Marketable securities | - | 31,185 | |
| Accounts receivable - net | 31,058 | 156,312 | |
| Inventory | 49,902 | 117,095 | |
| Prepaid expenses | 110,290 | 214,418 | |
| Current portion of loan receivable | - | 60,000 | |
| Total Current Assets | 191,900 | 1,182,737 | |
| Property, plant and equipment - net | 257,778 | 265,530 | |
| Goodwill | 2,113,412 | 2,113,412 | |
| Intangible assets | 857,025 | 857,025 | |
| Assets held for sale - net | 1,125,000 | 2,378,345 | |
| Other non-current assets | |||
| Loan receivable, net of current portion | - | 45,000 | |
| Total Assets | $ 4,545,115 | $ 6,842,049 | |
| LIABILITIES AND STOCKHOLERS' EQUITY | |||
| Current Liabilities | |||
| Accounts payable | $ 576,473 | $ 209,942 | |
| Accrued expenses | 177,302 | 223,459 | |
| Current portion of long-term debt | 1,859,235 | 485,395 | |
| Total Current Liabilities | 2,613,010 | 918,796 | |
| Long-term Liabilities | |||
| Long-term debt | 485,367 | 1,929,690 | |
| Tenant deposits | - | 3,987 | |
| Total Liabilities | 3,098,377 | 2,852,473 | |
| Stockholders' Equity: | |||
| Preferred stock, authorized 10,000,000 shares, | |||
| $0.0001 par value, 5,000 and 10,000 shares issued | |||
| and outstanding respectively | 1 | 1 | |
| Common Stock, authorized 500,000,000 shares, | |||
| $0.0001 par value, 320,997,582 and 245,173,330 | |||
| shares issued and outstanding respectively | 32,100 | 24,517 | |
| Additional paid in capital | 34,194,251 | 33,197,848 | |
| Comprehensive income | - | 8,910 | |
| Stock not yet issued | - | 250,000 | |
| Accumulated deficit | (32,779,614) | (29,491,700) | |
| Total Stockholders' Equity | 1,446,738 | 3,989,576 | |
| Total Liabilities and Stockholders' Equity | $ 4,545,115 | $ 6,842,049 | |
| The accompanying notes are an integral part of these consolidated financial statements | |||
F-1
| NUVILEX, INC. | |||||
| F/K/A EFOODSAFETY.COM, INC. | |||||
| CONSOLIDATED STATEMENTS OF OPERATIONS | |||||
| (Unaudited) | |||||
| For the Three Months Ended | For the Nine Months Ended | ||||
| January 31, | January 31, | ||||
| 2010 | 2009 | 2010 | 2009 | ||
| Revenues | $ 75,150 | $ 130,367 | $ 213,267 | $ 580,023 | |
| Cost of revenues | 45,402 | 31,273 | 139,163 | 166,469 | |
| Gross profit | 29,748 | 99,094 | 74,104 | 413,554 | |
| Expenses: | |||||
| Sales and marketing | 58,257 | 26,247 | 299,517 | 137,657 | |
| Research and development | 49,552 | 3,354 | 490,980 | 14,252 | |
| Consulting - paid in cash and stock | 338,657 | 516,213 | 846,755 | 1,372,107 | |
| Impairment loss recognized for fixed assets | 1,208,564 | - | 1,208,564 | - | |
| General and administrative | 247,503 | 439,143 | 292,994 | 744,399 | |
| Total operating expenses | 1,902,533 | 984,957 | 3,138,810 | 2,268,415 | |
| Net loss from operations | (1,872,785) | (885,863) | (3,064,706) | (1,854,861) | |
| Other income (expense) | |||||
| Interest income | - | 3,695 | - | 16,044 | |
| Dividend income | - | 34 | - | 305 | |
| Gain on sale of marketable securities | - | 11,933 | 2,692 | 11,933 | |
| Loss on settlement of loan receivable | - | - | (55,000) | - | |
| Interest expense | (30,877) | (386) | (88,004) | (1,007) | |
| Other income (expense) | (86,462) | - | (62,779) | - | |
| Total other income (expense) | (117,339) | 15,276 | (203,091) | 27,275 | |
| Net loss | (1,990,124) | (870,587) | (3,267,797) | (1,827,586) | |
| Stock dividend | - | - | (20,117) | - | |
| Net loss attributable to Common Stockholders | $ (1,990,124) | $ (870,587) | $ (3,287,914) | $ (1,827,586) | |
| Loss per share | |||||
| Basic and diluted | $ (0.01) | $ (0.00) | $ (0.01) | $ (0.01) | |
| Weighted average shares outstanding | |||||
| Basic and diluted | 311,618,067 | 193,468,330 | 286,173,334 | 192,918,330 | |
| The accompanying notes are an integral part of these consolidated financial statements | |||||
F-2
| NUVILEX, INC. | |||
| F/K/A EFOODSAFETY.COM, INC. | |||
| CONSOLIDATED STATEMENTS OF CASH FLOWS | |||
| (Unaudited) | |||
| For the Nine Months Ended | |||
| January 31, | |||
| 2010 | 2009 | ||
| Cash flows from operating activities: | |||
| Net loss | $ (3,267,797) | $ (1,827,586) | |
| Adjustments used to reconcile net loss to net cash | |||
| provided by (used in) operating activities: | |||
| Comprehensive income | - | 7,000 | |
| Depreciation | 98,306 | 6,851 | |
| Common stock issued for services | 373,969 | 1,168,056 | |
| Loss on disposal of fixed assets | 529 | - | |
| Loss on impairment of fixed assets | 1,208,564 | ||
| Loss on settlement of loan receivable | 55,000 | - | |
| Gain on sale of securities | (2,692) | - | |
| Bad debt expense | 27,039 | - | |
| Change in assets and liabilities, net of effects from | |||
| business acquisitions: | |||
| (Increase) decrease in accounts receivable | 98,215 | 236,282 | |
| (Increase) decrease in inventory | 67,193 | 54,239 | |
| (Increase) decrease in prepaid expenses | 104,128 | (10,569) | |
| (Increase) decrease in loan receivable | - | (96,125) | |
| Increase (decrease) in accounts payable | 366,531 | (86,646) | |
| Increase (decrease) in accrued expenses | (37,407) | 13,939 | |
| (Decrease) in deferred revenue | - | (5,625) | |
| (Decrease) in tenant deposits | (3,987) | - | |
| Net cash used in operating activities | (912,409) | (540,184) | |
| Cash flows from investing activities: | |||
| Purchase of fixed assets | (46,302) | (780) | |
| Proceeds from or (purchase) of marketable securities | 24,967 | (14,000) | |
| Collection of loan receivable | 50,000 | - | |
| Net cash provided by (used in) investing | |||
| activities | 28,665 | (14,780) | |
| Cash flows from financing activities: | |||
| Proceeds from sale of Common Stock | 359,900 | - | |
| Proceeds from borrowings | 52,749 | - | |
| Repayment of debt | (131,982) | - | |
| Net cash provided by financing activities | 280,667 | - | |
| Net (decrease) increase in cash and cash equivalents | (603,077) | (554,964) | |
| Cash and cash equivalents at beginning of period | 603,727 | 1,513,541 | |
| Cash and cash equivalents at end of period | $ 650 | $ 958,577 | |
| Supplementary non-cash disclosures: | |||
| Cash paid for interest | $ 88,004 | $ 1,007 | |
| Stock dividend | $ 20,117 | $ - | |
| Conversion of Preferred Stock for Common Stock | $ 2,500 | $ - | |
| Common Stock issued for stock not yet issued | $ 250,000 | $ - | |
| The accompanying notes are an integral part of these consolidated financial statements | |||
F-3
NUVILEX, INC.
F/K/A EFOODSAFETY.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BACKGROUND AND LIQUIDITY
This summary of accounting policies for Nuvilex, Inc. and its subsidiaries is presented to assist in understanding the Company’s consolidated financial statements. The accounting policies conform to generally accepted accounting principles and have been consistently applied in the preparation of the consolidated financial statements.
Background
The Company was founded as DJH International, Inc., a Nevada corporation, on October 28, 1996, and changed its name to eFoodSafety.com, Inc. following its October 16, 2000 acquisition of Global Procurement Systems, Inc. The Company acquired Ozone Safe Food, Inc. for Common Stock on October 29, 2003. The Company’s early mission was to provide methods and products to ensure the safety of marketed fruits and vegetables worldwide. On February 4, 2004, the Company registered shares with the Securities and Exchange Commission and its Common Stock began publicly trading on the OTC Bulletin Board under the trading symbol EFSF. The Company did not issue shares of Common Stock pursuant to an initial public offering. With less than projected demand for its produce sterilization methods and software tracking products, the Company changed its strategy and acquired Knock-Out Technologies, Ltd. and MedElite, Inc. in May 2004 and August 2005, respectively. Knock-Out Technologies, Ltd. is a developer of products using organic, non-toxic food based substances. MedElite, Inc. is the exclusive U.S. distributor of TalsynTM-CI Scar Cream (“Talsyn”), a topical scar reducing cream. The Company’s new strategy was to bring to market scientifically derived products designed to improve the health and well-being of those who use them. The Company sold its Ozone Safe Food, Inc. operations in August 2005. In November 2006, the Company formed Cinnergen, Inc., a wholly-owned subsidiary, to manufacture and market a non-prescription liquid nutritional supplement designed to promote healthy glucose metabolism, and purEffect, Inc., another wholly-owned subsidiary, to manufacture and market purEffectTM, a four-step non-prescription acne treatment. On March 10, 2006, the Company licensed the marketing rights for purEffectTM to Charlston Kentrist 41 Direct, Inc. (“CK41”). In July 2007, the Company formed I-Boost, Inc., a wholly-owned subsidiary, to manufacture and market a food bar designed to improve the effectiveness of the human immune system. In March 2008, the Company formed Cinnechol, Inc., a wholly-owned subsidiary, to manufacture and market a non-prescription nutritional supplement designed to promote cardiovascular health. In February 2009, the Company sold its remaining rights in the purEffectTM product to CK41 for an equity position in CK41 and future royalty compensation. In March 2009, the Company acquired Freedom2 Holdings, Inc., the manufacturer and marketer of Infinitink®, a permanent tattoo ink designed to be remo ved more easily using conventional laser removal methods. On March 18, 2009, the Company changed its name to Nuvilex, Inc.
NOTE 2 - Going Concern and Management’s Plans
The Company’s financial statements are prepared using accounting principles generally accepted in the United States of America (“GAAP”) applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The Company has not yet established an ongoing source of revenues sufficient to cover its operating costs and allow it to continue as a going concern. In addition, as of January 31, 2010, the Company has an accumulated deficit of $32,779,614, has incurred a net loss for the nine months ended January 31, 2010 of $3,287,914 and has a working capital deficit of $2,421,111. The Company’s current business plan requires additional funding beyond its anticipated cash flows from operations. These and other factors raise substantial doubt about the Com pany’s ability to continue as a going concern.
The Company’s current and evolving business strategy involves two key elements that it believes are essential to its success. The first is a new focus on “Green” products and technologies, which includes the Company’s development stage Oraphyte™ nematocide product line. The Company believes its new singular focus on “Green” products and technologies will place the Company in the mainstream of consumer, investor and government interests and will enable the Company to achieve, beyond its current product offerings, revenue growth and cash in-flows.
The second element is the continuation of the Company’s cost containment and expense reduction program. The Company’s largest overhead expense is the operation and upkeep of its Cherry Hill, New Jersey facility. On February 16, 2010, the Company entered into a $1.125 million Sale Agreement for its Cherry Hill facility. The Sale Agreement establishes a fair market value less than the book value for the Company’s building and building improvements. Generally accepted accounting procedures require the Company to adjust the value of its fixed asset to fair market value. The Company has adjusted the value of its fixed assets and recorded a loss for impairment of $1.208 million. The Sale Agreement is contingent on a “short sale” with Cornerstone Bank, the first mortgage holder on the property. The Company plans to transfer its operations to an appropriately sized, affordable leased facility. The Company will continue to assess its operations seeking to eliminate or mitigate expenses it deems expedient.
NOTE 3 – Significant Accounting Policies
Unaudited Financial Statements
The accompanying unaudited consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”), for interim financial information and pursuant to the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and disclosures required by GAAP for complete financial
F-4
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 nine months ended January 31, 2010 are not necessarily indicative of the results that may be expected for the year ending April 30, 2010. The balance sheet at April 30, 2009, has been derived from the audited financial statements at that date but does not include all of the information and disclosures required by GAAP for complete financial statements. For further information, refer to the financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the year ended April 30, 2009.
Principles of Consolidation
The consolidated financial statements include the accounts of Nuvilex, Inc. and its subsidiaries, Knock-Out Technologies, Ltd., MedElite, Inc., Cinnechol, Inc., Cinnergen, Inc., Freedom-2 Holdings, Inc., Freedom-2, Inc. and Exceptional Tattoo Equipment and Ink Supply Company, Inc. With respect to the latter three subsidiaries, the financials do not include any profit and loss activity from May 1, 2008 to October 31, 2008 as the acquisition was accounted for under the purchase method of accounting.
All significant intercompany balances and transactions have been eliminated.
Reclassification
Certain items from the April 30, 2009 balance sheet and the three and nine months ended January 31, 2009 statements of operations have been reclassified to conform with the three and nine months ended January 31, 2010 financial statement presentation. There is no effect on net income, cash flows or stockholders’ equity as a result of these reclassifications.
Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all highly liquid debt instruments purchased with a maturity of three months or less to be cash equivalents to the extent the funds are not being held for investment purposes.
Inventories
Inventories are stated at the lower of cost or market. Cost is computed on a weighted-average basis, which approximates the first-in, first-out method, and market is based upon estimated replacement costs. Costs included in inventory primarily include finished product and packaging.
Use of Estimates
The preparation of financial statements in conformity with GAAP required management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Property and Equipment
Property and equipment are recorded at cost. Expenditures that increase the useful lives or capacities of the plant and equipment are capitalized. Expenditures for repairs and maintenance are charged to income as incurred. Depreciation is provided using the straight-line method over the estimated useful lives as follows:
| Computer equipment/software | 3 years |
| Furniture and fixtures | 7 years |
| Machinery and equipment | 7 years |
| Building improvements | 15 years |
| Building | 40 years |
Goodwill and other indefinite-lived intangibles
The Company records the excess of purchase price over the fair value of the identifiable net assets acquired as goodwill and other indefinite-lived intangibles. The FASB standard on goodwill and other intangible assets, prescribes a two-step process for impairment testing of goodwill and indefinite-lived intangibles, which is performed annually, as well as when an event triggering impairment may have occurred. The first step tests for impairment, while the second step, if necessary, measures the impairment. The Company has elected to perform its annual analysis at the end of its reporting year. No indicators of impairment were identified in the years ended April 30, 2009 and 2008.
F-5
Valuation of long-lived assets
The Company accounts for the valuation of long-lived assets under the FASB standard for accounting for the impairment or disposal of Long-Lived Assets. The FASB standard requires that long-lived assets and certain identifiable intangible assets be reviewed for impairment whenever events or circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of the long-lived assets is measured by a comparison of the carrying amount of the asset to future undiscounted net cash flows generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the estimated fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value, less cost to sell.
Basic and Diluted Earnings (Loss) per Share
Basic and diluted earnings per share is calculated using the weighted-average number of common shares outstanding during the period without consideration of the dilutive effect of stock warrants, convertible notes and convertible preferred shares.
Fair value of financial instruments
For certain of the Company’s non-derivative financial instruments, including cash and cash equivalents, receivables, accounts payable, and other accrued liabilities, the carrying amount approximates fair value due to the short-term maturities of these instruments. The estimated fair value of long-term debt is based primarily on borrowing rates currently available to the Company for similar debt issues. The fair value approximates the carrying value of long-term debt.
Investment in Marketable Securities
In May and June 2009, the Company sold 2,227,500 shares in Sustainable Power Corporation (PK:SSTP) for $24,967. The shares were purchased for $22,275. The transaction resulted in a realized gain of $2,692.
The Company has made no additional investment in marketable securities.
Comprehensive Income
Comprehensive income is presented in the Stockholders’ Equity section of the Consolidated Balance Sheet and consists of unrealized gains or losses on marketable securities.
Revenue Recognition
Sales of products and related costs of products sold are recognized when (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred, (iii) the price is fixed or determinable and (iv) collectability is reasonably assured. These terms are typically met upon shipment of product to the customer.
Allowance for Doubtful Accounts
The Company provides an allowance for estimated uncollectible accounts receivable balances based on historical experience and the aging of the related accounts receivable.
Income Taxes
Deferred taxes are calculated using the liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
In June 2006, the FASB interpreted its standard for accounting for uncertainty in income taxes, an interpretation of accounting for income taxes. This interpretation clarifies the accounting for uncertainty in income taxes recognized in an entity’s financial statements in accordance the minimum recognition threshold and measurement attributable to a tax position taken on a tax return is required to be met before being recognized in the financial statements. The FASB’s interpretation had no material impact on the Company’s financial statements for the year ended April 30, 2009. As of April 30, 2009, the Company had a net operating loss carry forward for income tax reporting purposes of approximately $29,000,000 that may be offset against future taxable income through 2025. Current tax laws limit the amount o f loss available to be offset against future taxable income when a substantial change in ownership occurs. Therefore, the amount available to offset future taxable income may be limited. No tax benefit has been reported in the financial statements, because the Company believes there is a 50% or greater chance the carry forwards will expire unused. Accordingly, the potential tax benefits of the loss carry forwards are offset by a valuation allowance of the same amount.
F-6
Research and Development Costs
Expenditures for research and development are expensed as incurred. Such costs are required to be expensed until the point that technological feasibility is established. For the three and nine months ended January 31, 2010 and 2009, the Company incurred research and development costs of $49,552, $3,354, $490,980 and $14,252 respectively.
Concentration of Credit Risk
The Company has no significant off-balance-sheet concentrations of credit risk such as foreign exchange contracts, options contracts or other foreign hedging arrangements. The Company maintains the majority of its cash balances with one financial institution in the form of demand deposits.
NOTE 4 – ACCOUNTS RECEIVABLE
The Company recognizes receivables predominately on sales of its Cinnergen™ and private label ink products. For the nine months ended January 31, 2010, the Company has not established an allowance for doubtful accounts as the Company currently deems all of its receivables as collectable.
During the year ended April 30, 2009, the Company issued credit memos to a customer in the amount of $336,452 representing the entire amount billed to date. In exchange the customer forgave approximately $400,000 of charge backs. Both parties signed the settlement agreement on July 23, 2009.
NOTE 5 - INVENTORY
At January 31, 2010 and April 30, 2009, the total amount of inventory was allocated between raw materials and finished product as follows:
| January 31, 2010 | April 30, 2009 | ||||
| $ | % | $ | % | ||
| Finished goods | 21,424 | 42.9% | 90,280 | 77.1% | |
| Raw materials | 28,478 | 57.1% | 26,815 | 22.9% | |
| 49,902 | 100.0% | 117,095 | 100.0% | ||
NOTE 6 - LOAN RECEIVABLE
On August 7, 2006, the Company loaned Diamond Ranch Foods, Ltd. $100,000. Per the terms of the loan agreement, the loan carries an interest rate of 7.5% per annum and had a maturity date of December 31, 2008. At the maturity date, the Company elected to receive $5,000 per month for 24 months beginning in February 2009. As a result, $60,000 was classified as a short term receivable with the balance of $45,000 as a long term receivable.
On July 28, 2009, the Company agreed to receive a lump sum payment of $35,000 in exchange for cancellation of the note receivable. The remaining balance of $55,000 was recorded as a loss from settlement of loan receivable.
NOTE 7 - FIXED ASSETS
Fixed assets consisted of the following:
| January 31, 2010 | April 30, 2009 | ||
| Computers/software | $ 63,568 | $ 64,960 | |
| Furniture and fixtures | 39,029 | 38,393 | |
| Manufacturing equipment | 46,305 | - | |
| Lab equipment | 182,980 | 182,980 | |
| 331,882 | 286,333 | ||
| Less: accumulated depreciation | (74,104) | (20,803) | |
$ 257,778 | $ 265,530 |
F-7
Depreciation expense for the nine months ended January 31, 2010 and 2009 was $98,306 and $6,851, respectively.
In accordance with the authoritative guidance of the Financing Accounting Standards Board, assets held for sale are reported at the lower of the carrying amount or fair value less cost to sell and the recognition of depreciation expense is discontinued. On February 16, 2010, the Company entered into a $1,125,000 Sale Agreement for its Cherry Hill facility. The Sale Agreement establishes a fair market value less than the book value for the Company’s building and building improvements. Generally accepted accounting procedures require the Company to adjust the value of its fixed asset to fair market value. The Company has adjusted and reclassified the val ue of it’s building and building improvements to fixed assets held for sale in the amount of $1,125,000 and $2,378,345 as of January 31, 2010 and April 30, 2009 respectively and has recorded a loss for impairment of $1,208,564 for the nine months ending January 31, 2010.
NOTE 9 – DEBT
| Long Term Debt | |
| Note payable to a Bank for a mortgage secured by the building, interest at 7.75 % payable in monthly installments of $19,202, with a balloon payment due 2/1/2013. | $ 1,592,315 |
| Note Payable to a Law Firm, secured by a second mortgage on the building with interest at 2.5% payable in monthly installments of $5,787. | $ 173,537 |
| Note Payable to an individual secured by a third mortgage on the property due 12/31/2009 with interest at 10% payable on the first day of April, July and October until the maturity date with the balance payable on the maturity date. The lender has agreed to extend the maturity date to March 31, 2010. | $ 158,750 |
| License fee agreement with Brown University, amended February 12, 2009, for intellectual property rights. Equal payments of $100,000 are due on June 1, 2009, 2010, 2011 and 2012. The license fee payments do not include interest. | $ 400,000 |
| Bridge Loan payable initiated 12/01/2008 accruing interest at 8% and payable upon maturity on 6/30/2010. | $ 20,000 |
| Total notes payable | $ 2,344,602 |
| Less: current portion | $ 1,859,235 |
| Long term portion | $ 485,367 |
In July 2009, the mortgage agreement with Cornerstone bank was modified whereby the principle of $43,572 paid to date on the note was re-advanced to the borrower returning the principle balance to $1,600,000. Payments under the modified agreement commenced on September 1, 2009. The pending sale of the Company’s building accelerates the potential payment of the Cornerstone bank mortgage to the current year. Accordingly, although the maturity date of the mortgage extends to February 1, 2012, the Company recognizes the entire outstanding mortgage value as a current liability.
NOTE 10 - COMMON STOCK TRANSACTIONS
On June 1, 2009, the Company’s Board of Directors declared a stock dividend of one (1) Common Stock share for every five hundred (500) Common Stock shares owned. The dividend was payable to stockholders of record as of June 30, 2009 and resulted in 502,915 shares being issued. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved. The shares were valued at a fair market value of $20,117, which was recorded through retained earnings.
On June 2, 2009, 5,555,555 shares of Common Stock were issued to a shareholder for $250,000 cash received prior to April 30, 2009. The $250,000 was originally recorded on the balance sheet as of April 30, 2009 under the caption “stock not issued”. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
F-8
From August 1, 2009 through October 31, 2009, 25,000,000 shares of Common Stock were issued to a shareholder for conversion of 5,000 share of Series E Preferred Stock, which was purchased in December 2007 for $500,000 in cash. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
From August 1, 2009 through September 2, 2009, 23,700,000 share of Common Stock were issue to various shareholders for $227,748 cash. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On October 22, 2009, 1,734,296 shares of Common Stock were issued to a shareholder for consulting services with regard to fund raising activities. A charge of $58,966 based on the price of the Company’s Common Stock as of the date of grant was made to consulting expense. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 1, 2009, 1,250,000 shares of Common Stock were issued to each of Marylew Barnes, Senior Vice President and Chief Financial Officer of the Company, Robert Bowker, President of Knock-Out Technologies, Ltd., Dr. Richard Goldfarb, President of MedElite, Inc., and Mr. Tim Matula for director fees. A charge of $140,500 based on the price of the Company’s Common Stock as of the date of grant was made to consulting expense. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 4, 2009, 1,250,000 shares of Common Stock were issued to a private shareholder for a cash investment of $25,000. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 2,521,375 shares of Common Stock were issued to a private shareholder for a cash investment of $50,000. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 1,133,333 shares of Common Stock were issued to a private shareholder for a cash investment of $17,000. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 2,676,777 shares of Common Stock were issued to Martin E. Schmieg, Chairman and Chief Executive Officer of the Company, for a cash investment of $40,152. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On January 4, 2010, 6,750,000 shares of Common Stock were issued to Marmel Communications, LLC, for investor and public relations services. Marmel Communications, LLC contract covers the period of January 1, 2010 through June 30, 2011. The services contract was valued at $175,500 based on the price of the Company’s Common Stock as of the date of grant was made to consulting expense. The shares were issued without registration under the Securities Act of 1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
NOTE 11 - PREFERRED STOCK
In December 2007, the Company issued 5,000 shares of Series E Preferred Stock to a single shareholder for cash of $500,000.
In April 2008, the Company issued an additional 5,000 shares of Series E Preferred Stock to the same shareholder for cash of $500,000.
From August 1, 2009 through October 31, 2009, the shareholder converted 5,000 shares of Series E Preferred Stock to 25,000,000 shares of Common Stock.
Series E Preferred Stock has, among others, the following features:
| ● | Series E Preferred Shares will not bear any dividends. |
| ● | Each share of Series E Preferred Stock is entitled to receive its share of assets distributable upon the liquidation, dissolution or winding up of the affairs of the Company. The holders of the Series E Preferred Shares shall be entitled to receive in cash out of the assets of the Company before any amount shall be paid to the holders of any capital stock of the Company of any class junior in rank to the Series E Preferred Shares. |
| ● | Each share of Series E Preferred Stock is convertible, at the holder’s option, into shares of Common Stock, at the average Closing Bid Price of the Company’s common stock for five (5) trading days prior to the Conversion Date. |
| ● | At every meeting of stockholders, every holder of Series E Preferred Stock is entitled to 50,000 votes for each share of Series E Preferred Stock in his name, with the same and identical voting rights as a holder of a share of Common Stock. |
F-9
The average Closing Bid Price at January 31, 2010 was $0.03. Based on the Series E Preferred Stock provisions, if converted on January 31, 2010, the outstanding Series E Preferred Shares would have converted into 16,666,667 shares of the Company’s common stock.
NOTE 12 - COMMITTMENTS AND CONTINGENCIES
Legal
On June 11, 2009, Kurt Mussina, former Senior Vice President, Sales and Marketing for Freedom-2, Inc., instituted a lawsuit in the Superior Court of New Jersey, captioned Mussina v. Freedom-2, Inc., et al., against, inter alia, Freedom-2, Inc., Freedom-2 Holdings, Inc. and Nuvilex seeking payment of certain severance monies he argues are due to him under the terms of his previous agreements with Freedom2, Inc. and Freedom2 Holdings, Inc. Mr. Mussina sought payment of approximately $175,000 he claimed was due under these agreements, along with costs and fees associated with the lawsuit. On February 11, 2010, the parties entered into a mutual settlement agreement whereby Mr. Mussina would be paid $135,000. Mr. Mussina is to be paid $130,000 on March 29, 2010. A balance of $5,000 will then remain unpaid. Other Expenses as of January 31, 2 010 include an expense of $89,170 in relation to this payment. The Company had previously recorded $45,830 in related General and Administrative Expenses.
NOTE 13 - RELATED PARTY TRANSACTION
On February 11, 2009, the Company and Charlston Kentrist 41 Direct, Inc. (CK-41) restructured its Marketing Agreement (the “Restructured Agreement”) surrounding purEffect™, a four-step acne treatment system. Under the terms of the Restructured Agreement, the Company will transfer all of its rights to purEffect™ to CK-41 for four million two hundred-fifty thousand (4,250,000) shares of CK-41 common stock at the price of $0.01 per share. CK-41 will also grant the Company a three year warrant to purchase an additional four million two hundred-fifty thousand (4,250,000) shares of common stock at $6.00 per share. Additionally, the Company will receive a two percent (2%) royalty on worldwide purEffect™ adjusted gross sales. The Restructured Agreement sets minimum royalty payments of one hundred-fifty thousand ($ 150,000) dollars paid on March 1, 2010 and two hundred-fifty thousand ($250,000) dollars payable on March 1, 2011.
NOTE 14 - SUBSEQUENT EVENTS
On February 16, 2010, the Company entered into a $1.125 million Sale Agreement for its Cherry Hill facility. The Sale Agreement establishes a fair market value less than the book value for the Company’s building and building improvements. Generally accepted accounting procedures require the Company to adjust the value of its fixed asset to fair market value. The Company has adjusted the value of it fixed assets and recorded a loss for impairment of $1.208 million. The Sale Agreement is contingent on a “short sale” with Cornerstone Bank, the first mortgage holder on the property.
On March 8, 2010, the Company announced that it had entered into a letter of intent granting Nuvilex, Inc., an exclusive sixty-day right to define and structure a merger with Energy Innovation Group, LLC (“EIG”) on mutually acceptable terms and conditions. EIG’s mission is to bring a broad array of technology, inclusive of the latest advances in traditional and emerging technologies and incentive opportunities to the commercial and public sector marketplace to reduce energy consumption. Established in 2000, EIG is the developer of the Energy Grand Buffet, which has integrated all the critical elements for the commercialization of energy efficiency. EIG is a privately held company.
The Company has reviewed its subsequent events through March 22, 2010 and no materials events other than those disclosed above were found.
F-10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FOR THE NINE MONTHS ENDED JANUARY 31, 2010 AND 2009
The following discussion may contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed here. Factors that could cause or contribute to such differences include, but are not limited to, any factors discussed in this section as well as factors described in “Part II, Item 1A – Risk Factors.”
SALES
Revenues from operations for the nine months ended January 31, 2010 were $213,267. Revenues from operations for the nine months ended January 31, 2009 were $580,023. The decline in quarterly revenues is primarily attributable to the terminated Cinnergen™ retail contracts and retail and wholesale pricing reductions for Cinnergen™ and Talsyn™ products. Newly initiated Company sales of private label inks to Clementine Arts contributed $13,395 in revenues for the current quarter. The Company’s cost of sales was $139,163 for the nine months ended January 31, 2010 compared to $166,469 for the nine months ended January 31, 2009.
RESEARCH AND DEVELOPMENT
During the nine months ended January 31, 2010, the Company incurred research and development expenses of $490,980 compared with $14,252 during the nine months ended January 31, 2009. The Company’s research and development costs increased as the Company continued to research and develop its new and existing products, including Cinnsational! (formerly Last Shot Hangover Remedy), Prevorex™, the Company’s liquid dietary supplement, Cyclosurface3 Cosmetics and third party ink formulas, as well as to sponsor research programs for Oraphtye™ at Louisiana State University and Citroxin™ at the University of Minnesota.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
A summary of the Company’s selling, general and administrative costs is as follows:
During the nine months ended January 31, 2010, the Company incurred sales and marketing expenses of $299,517 compared to sales and marketing expenses of $137,657 during the nine months ended January 31, 2009. The primary increase in marketing and sales costs is directly related to the launch of Cinnsational! (formerly Last Shot Hangover Remedy™). On February 16, 2010, the Company entered into a $1,125,000 Sale Agreement for its Cherry Hill facility. The Sale Agreement establishes a fair market value less than the book value for the Company’s building and building improvements. Generally accepted accounting procedures require the Company to adjust the value of its fixed asset to fair market value. The Company has adjusted the value of its fixed assets and recorded a loss for impairment of $1,208,564. The Sale Agreement is conti ngent on a “short sale” with Cornerstone Bank, the first mortgage holder on the property. During the nine months ended January 31, 2010, stock compensation was paid as certain consulting fees for outside directors, legal advisors and marketing consultants. The Company incurred $846,755 in consulting fees for the nine months ended January 31, 2010 compared to $1,372,107 for the nine months ended January 31, 2009.
General and administrative expenses decreased to $292,994 from $744,399 for the nine months ended January 31, 2010 as compared to the prior year. The decrease is primarily attributable to decreases in personnel and related operating costs.
LIQUIDITY AND CAPITAL RESOURCES
As of January 31, 2010, the Company had a working capital deficit of $2,421,111.
By adjusting the Company’s operations, including a decrease in ongoing salary, benefits, facilities, research and development expenses, and through bridge financing to be provided by existing shareholders, management believes it has sufficient capital resources to meet projected cash flow deficits. Any failure by the Company to generate sufficient liquidity from operations or in raising sufficient capital resources on terms acceptable to it would have a materially adverse effect on the Company’s business, results of operations, liquidity and financial condition.
The Company’s independent certified public accountants have stated in their reports, which are included as part of the Company’s audited financial statements for the fiscal years ended April 30, 2009 and 2008, respectively, that the Company has suffered recurring losses from operations, which raises substantial doubt about the Company’s ability to continue as a going concern.
We have no off-balance sheet arrangements, special purpose entities, financing partnerships or guarantees.
ITEM 3. QUANTITATIVE AND QUALITIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 4T. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
The Company maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that are designed to be effective in providing reasonable assurance that information required to be disclosed in the Company’s reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the Securities and Exchange Commission (“SEC”), and that such information is accumulated and communicated to the Company’s management to allow timely decisions regarding required disclosure.
In designing and evaluating disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable, not absolute assurance of achieving the desired objectives. Also, the design of a control system must reflect the fact that there are resource constraints and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error or mistake. The design of any system of controls is based, in part, upon certain assump tions about the likelihood of future events and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.
As of the end of the period covered by this report, the Company conducted an evaluation, under the supervision and with the participation of its principal executive officer and principal financial officer, of the Company’s disclosure controls and procedures. Based on their evaluation, the principal executive officer and principal financial officer concluded that the Company’s disclosure controls and procedures need improvement and were not adequately effective as of January 31, 2010 to cause the information required to be disclosed in reports that the Company files or submits under the Exchange Act to be recorded, processed, summarized and reported within the time periods prescribed by the SEC, and that such information is accumulated and communicated to management, including the principal executive officer and principal financial officer, as appropriate, to ensure timely decisions regarding required disclosure. Management is in the process of identifying deficiencies with respect to the Company’s disclosure controls and procedures and implementing corrective measures.
Changes in Internal Control over Financial Reporting
There was no change in the Company’s internal control over financial reporting identified in connection with the requisite evaluation that occurred during the last fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
On June 11, 2009, Kurt Mussina, former Senior Vice President, Sales and Marketing for Freedom-2, Inc., instituted a lawsuit in the Superior Court of New Jersey, captioned Mussina v. Freedom-2, Inc., et al., against, inter alia, Freedom-2, Inc., Freedom-2 Holdings, Inc. and Nuvilex, seeking payment of certain severance monies he argues are due to him under the terms of his previous agreements with Freedom2, Inc. and Freedom2 Holdings, Inc. Mr. Mussina sought payment of approximately $175,000 he claimed was due under these agreements, along with costs and fees associated with the lawsuit. On February 11, 2010, the parties entered into a mutual settlement agreement whereby Mr. Mussina would be paid $135,000. Mr. Mussina is to be paid $130,000 on March 29, 2010. A balance of $5,000 will then remain unpaid. Other Expenses as of January 31, 2010 include an expense of $89,170 in relation to this payment. The Company had previously recorded $45,830 in related General and Administrative Expenses.
From time to time, the Company may be involved in lawsuits, claims, investigations, and proceedings, consisting of intellectual property, commercial, employment, and other matters that arise in the ordinary course of business.
ITEM 1A. RISK FACTORS
In evaluating the business of the Company and making investment decisions, you should carefully consider the risks described below, which may affect future results, together with all of the other information included or incorporated by reference in this Form 10-Q, the Company’s Annual Report on Form 10-K for the twelve months ended April, 30, 2009 and the other filings of the Company made from time to time with the Securities and Exchange Commission. The risks and uncertainties described below are those that the Company currently believes may materially affect its business, results of operations, financial condition, cash flow, future prospects, ability to pay liabilities and trading price of the Company’s shares of common stock. The below description includes any material changes to and super sedes the description of risk factors associated with the business previously disclosed in “Part II, Item 1A – Risk Factors” of the Company’s Annual Report on form 10K for the twelve months ended April 30, 2009. Additional risks and uncertainties that Nuvilex is unaware of or that it currently deems immaterial also may become important factors that affect its business, result of operations, financial condition, cash flow, future prospects, ability to pay liabilities and trading price of the Company’s shares of common stock. Nuvilex’s common shares involve a high degree of risk and should be purchased only by investors who can afford a loss of their entire investment. Prospective investors should carefully consider the following risk factors concerning the Company’s business before making an investment.
Doubt Regarding Ability to Continue as a Going Concern
Nuvilex’ financial statements have been presented on the basis that it is and will remain a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company had minimal revenues and incurred net operating losses for the period October 1999 (inception) to January 31, 2010. As the Company’s independent auditors have concluded, these factors create an uncertainty about Nuvilex’ ability to continue as a going concern. The ability of the Company to continue as a going concern is dependent, among other factors, on its success in marketing its products, containing costs, establishing a credit facility, and/or raising additional equity capital. The financial statements of Nuvilex do not include any adjustments that might be necessary if the Comp any is unable to continue as a going concern.
Early Revenue Stage Company: Generation of Revenues
Nuvilex is an early revenue stage company and an investor cannot reasonably determine if the Company will ever be profitable. Nuvilex is likely to continue to experience financial difficulties during its early revenue stage and beyond. The Company may be unable to operate profitably, even if it generates additional revenues. Nuvilex may not obtain the necessary working capital to continue developing and marketing its products. Furthermore, Nuvilex’ products may not receive sufficient interest to generate revenues or achieve profitability.
Need for Future Capital: Long-Term Viability of Company
Nuvilex will need additional capital to continue its operations.
There can be no assurance that the Company will generate revenues from operations or obtain sufficient capital on acceptable terms, if at all. Failure to obtain such capital or generate such operating revenues would have an adverse impact on the Company’s financial position, operations and ability to continue as a going concern. Nuvilex’ operating and capital requirements during the next fiscal year and thereafter will vary based on a number of factors, including the level of sales and marketing activities for its services and products. There can be no assurance that additional private or public financing, including debt or equity financing, will be available as needed or if available, on terms favorable to the Company. Any additional equity financing may be dilutive to stockholders and such additional equity sec urities may have rights, preferences, or privileges that are senior to those of Nuvilex’ existing common stock.
Furthermore, debt financing, if available, will require payment of interest and may involve restrictive covenants that could impose limitations on the flexibility of the Company to operate. Nuvilex’ failure to successfully obtain additional funding may jeopardize its ability to continue the business and its operations.
If the Company raises additional funds by issuing equity securities, existing stockholders may experience a dilution in their ownership. In addition, as a condition to giving additional funds to the Company, future investors may demand, and be granted, rights superior to those of existing shareholders.
Unpredictability of Future Revenues: Potential Fluctuations in Operating Results
The Company is currently unable to accurately forecast its revenues. Typically, current and future expense levels are based largely on marketing and development plans and estimates of future revenues. Sales and operating results will generally depend on the volume and timing of orders and on the Company’s ability to fulfill such orders, both of which are difficult to forecast at this stage. Nuvilex may be unable to adjust spending in a timely manner to compensate for any unexpected revenue shortfall. Accordingly, any significant shortfall in revenues in relation to planned expenditures could have an immediate adverse effect on the Company’s business, prospects, financial condition and results of operations. Further, as a strategic response to changes in the competitive environment, Nuvilex may from time to time make certain pricing, service or marketing decisions that could have a materially adverse effect on its business, prospects, financial condition and results of operations.
Nuvilex may experience significant fluctuations in future operating results due to a variety of factors, many of which are outside the Company’s control. Factors that may affect operating results include: (i) the ability to obtain and retain customers, attract new customers at a steady rate and maintain customer satisfaction with products, (ii) the announcement or introduction of new services by Nuvilex or its competitors, (iii) price competition, (iv) the level of use and consumer acceptance of its products, (v) the amount and timing of operating costs and capital expenditures relating to expansion of the business, operations and infrastructure, (vi) governmental regulations, and (vii) general economic conditions.
Flaws and Defects in Products
Products offered by Nuvilex may contain undetected flaws or defects when first introduced or as new versions are released. Any inaccuracy or defects may result in adverse product reviews and a loss or delay in market acceptance. There can be no assurance that flaws or defects will not be found in Nuvilex products. Flaws and defects, if found, could have a materially adverse effect upon the business operations and financial condition of the Company. Marketing of any of the Company’s potential products may expose the Company to liability claims resulting from the use of the Company’s products. These claims might be made by consumers, health care providers, sellers of the Company’s products or others. A claim, particularly resulting from a clinical trial, or a product recall could harm the Company’s business, resul ts of operations, financial condition, cash flow and future prospects.
Stock Price Volatility
The market price of the Company’s stock has fluctuated significantly in the past and may continue to fluctuate in the future. The Company believes that such fluctuations will continue as a result of many factors, including financing plans, future announcements concerning the Company, the Company’s competitors or principal customers regarding financial results or expectations, industry supply or demand dynamics, new product introductions, governmental regulations, the commencement or results of litigation or changes in earnings estimates by analysts. In addition, in recent years the stock market has experienced significant price and volume fluctuations often for reasons outside the control of the particular companies. These fluctuations as well as general economic, political and market conditions may ha ve an adverse affect on the market price of the Company’s common stock.
Worldwide Economic Conditions
The Company’s financial performance is significantly affected by worldwide economic conditions and the related impact on levels of consumer spending, which has recently deteriorated significantly in many countries and regions, including the U.S., and may remain depressed for the foreseeable future. Demand for the Company’s products is adversely affected by negative macroeconomic factors affecting consumer spending. The severe tightening of consumer credit, low level of consumer liquidity, and extreme volatility in credit and equity markets have weakened consumer confidence and decreased consumer spending. These and other economic factors have reduced demand for the Company’s products and harmed the Company’s business, financial condition and results of operations, and to the extent such economic c onditions continue, they could cause further harm to the Company’s business, financial condition and results of operations.
Dependence on Sales through Retailers and Distributors
The Company’s business depends significantly upon sales through retailers and distributors, and if the Company’s retailers and distributors are not successful, the Company could experience reduced sales, substantial product returns or increased price protection, any of which would negatively impact the Company’s business, financial condition and results of operations. A significant portion of the Company’s sales are made through retailers, either directly or through distributors. If the Company’s retailers and distributors are not successful due to weak consumer retail demand caused by the current worldwide economic downturn, decline in consumer confidence, or other factors, the Company could continue to experience reduced sales as well as substantial product returns or price protection claim s, which would harm the Company’s business, financial condition and results of operations.
Limited Senior Management Personnel: Management of Potential Growth; New Management Team
Under Nuvilex’ business plan, it intends to rapidly and significantly expand its operations to address potential growth in its customer base and market opportunities. This expansion is expected to place a significant strain on the Company’s management, operations and financial resources.
To manage the expected growth of its operations and personnel, the Company may be required to implement new, transaction processing, operating and financial systems, procedures and controls, and to expand, train and manage a growing employee base. Nuvilex may also deem it prudent to expand its finance, administrative and operations staff.
There can be no assurance that Nuvilex’ planned personnel, systems, procedures and controls will be adequate to support its future operations, that management will be able to hire, train, retain, motivate and manage personnel or that management will be able to successfully identify, manage and exploit existing and potential market opportunities. If Nuvilex is unable to manage growth effectively, the Company’s business, prospects, financial condition, results and operations could be materially adversely affected.
Competition
The market in which Nuvilex competes is highly competitive, and the Company has no assurance that it will be able to compete effectively, especially against established industry competitors with significantly greater financial resources. The Company expects to face competition from a few competitors with significantly greater financial resources, well-established brand names and large, existing customer bases. Nuvilex expects the level of competition to intensify in the future.
Dependence on Management
Nuvilex’ performance will be substantially dependent on the continued services and on the performance of the current senior management and other key personnel of the Company. Nuvilex’ performance will also depend on the Company’s ability to retain and motivate its other officers and key employees. The loss of Nuvilex’ chief executive officer or other key employees could have a materially adverse effect on the Company’s business, prospects, financial condition and results of operations. Nuvilex’ future success will depend on its ability to identify, attract, hire, train, retain and motivate other highly skilled technical, managerial, merchandising, marketing and customer service personnel. Competition for such personnel is intense and there can be no assurance that Nuvilex will be able to succes sfully attract, assimilate and retain sufficiently qualified personnel. The failure to retain and attract the necessary technical and managerial personnel could have a materially adverse effect on the Company’s business, prospects, financial condition and results of operations.
Nuvilex’ success will be dependent, in large part, on the services of Martin Schmieg, the Company’s Chairman and Chief Executive Officer. The loss of Nuvilex’ chief executive officer or other key employees could have a materially adverse effect on Company’s business, prospects, financial condition and results of operations. Nuvilex does not maintain “key-man” life insurance policies on the lives of its officers to compensate the Company in the event of their deaths. Nuvilex currently does not have an employment agreement with Mr. Schmieg.
Management of the Company will make decisions regarding the operations and marketing of the Company and its products, any future expansion of Nuvilex and the selection of additional lines of business to enter, and will ordinarily not be required to put such matters to a shareholder vote under applicable law. No person should become a shareholder in the company unless that person is willing to entrust all such investment and operational decisions to management.
Development of Brand Awareness
For certain market segments that Nuvilex plans to pursue, the development of its brand awareness is essential for it to reduce its marketing expenditures over time and realize greater benefits from marketing expenditures. If the Company’s brand-marketing efforts are unsuccessful, growth prospects, financial condition and results of operations would be materially adversely affected. Nuvilex’ brand awareness efforts have required, and will continue to require, incurrence of significant expenses.
Intellectual Property Protection: Uncertainty of Protection of Proprietary Rights
Nuvilex currently relies on a combination of patents, trademarks, trade secret protection, non-disclosure agreements and licensing arrangements to establish and protect its proprietary rights. Despite efforts to safeguard and maintain Nuvilex’ proprietary rights, there can be no assurance that the Company will be successful in doing so or that its competitors will not independently develop products that are substantially equivalent or superior to Nuvilex’ products.
Nuvilex also relies on trade secrets and proprietary know-how, which the Company seeks to protect by confidentiality and non-disclosure agreements with its employees, consultants, and third parties. There can be no assurance that these agreements will not be breached, that the Company will have adequate remedies for any breach, or that certain of Nuvilex’ trade secrets and proprietary know-how will not otherwise become known or be discovered by competitors.
Litigation may become necessary to enforce Nuvilex’ intellectual property rights, to protect trade secrets, to determine the validity or scope of the proprietary rights of others, or to defend against claims of infringement or invalidity. Such litigation, whether successful or unsuccessful, could result in substantial costs and diversions of management resources, either of which could have a materially adverse effect on Nuvilex’ business, prospects, financial condition, or operating results.
Availability and Coverage of Insurance
For certain risks, the Company does not maintain insurance coverage because of cost and/or availability. Because the Company retains some portion of its insurable risks, and in some cases self-insures completely, unforeseen or catastrophic losses in excess of insured limits could have a materially adverse effect on the Company’s financial condition and operating results.
Federal, State, Local and Foreign Laws and Regulations
The Company’s past research, product development and manufacturing activities have involved the controlled use of hazardous materials, and the Company may incur significant costs as a result of the need to comply with numerous laws and regulations. The Company is subject to laws and regulations enforced by the FDA, the DEA, the CDHS, foreign health authorities and other regulatory statutes including the Occupational Safety and Health Act, the Environmental Protection Act, the Toxic Substances Control Act, the Food, Drug and Cosmetic Act, the Resource Conservation and Recovery Act, and other current and potential federal, state, local and foreign laws and regulations governing the use, manufacture, storage, handling and disposal of the Company’s products, materials used to develop the Company’s products, and resulting was te products.
Penny Stock Regulation
The Company’s securities may be subject to “penny stock rules” that impose additional sales requirements on broker-dealers who sell such securities to persons other than established customers and accredited investors (generally those with assets in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together with their spouse). For transactions covered by these rules, the broker-dealer must make a special suitability determination for the purchase of such securities and have received the purchaser’s written consent to the transaction prior to the purchase. Additionally, for any transaction involving a penny stock, unless exempt, the “penny stock rules” require the delivery, prior to the transaction, of a disclosure schedule prescribed by the Securities and Exchange Commission r elating to the penny stock market. The broker-dealer also must disclose the commissions payable to both the broker-dealer and the registered representative and current quotations for the securities. Finally, monthly statements must be sent disclosing recent price information on the limited market in penny stocks. Consequently, the “penny stock rules” may restrict the ability of broker-dealers to sell the Company’s securities. The foregoing required penny stock restrictions will not apply to the Company’s common stock if such securities maintain a market price of $5.00 or greater. The market price of the Company’s common stock may not reach or remain at such a level.
Nuvilex anticipates that it will expend significant financial and management resources in its efforts to comply with the internal control attestation provisions of Section 404 of the Sarbanes-Oxley Act of 2002 for the fiscal year ending April 30, 2010.
Section 404 of the Sarbanes-Oxley Act of 2002, and the rules and regulations promulgated thereunder, require Nuvilex to have management attest to the adequacy of its internal controls in the Company’s annual report on Form 10-K for the year ending April 30, 2010. The Company’s internal controls did not meet such requirements on April 30, 2009 or January 31, 2010 and the Company will be required to make substantial changes to its internal controls in order for management to be able to make the required attestations by the end of the fiscal year ending April 30, 2010. Larger public companies that are currently required to comply with Section 404 have incurred significant monetary and other expenses from diversion of management time and attention, the acquisition of new computer software, the employment of additional personnel and training and third party internal controls consultants. In light of Nuvilex’ current capital position, the Company anticipates that it will be time-consuming, costly and difficult for it to develop and implement the internal controls necessary for management to make the required attestations. Nuvilex may need to hire additional financial reporting and internal controls personnel, acquire software and retain a third party consultant during 2010. Management inability to attest that the Company’s internal controls are effective as of April 30, 2009 may adversely affect the price of Nuvilex common stock.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
On December 1, 2009, 1,250,000 shares of Common Stock were issued to each of Marylew Barnes, Senior Vice President and Chief Financial Officer of the Company, Robert Bowker, President of Knock-Out Technologies, Ltd., Dr. Richard Goldfarb, President of MedElite, Inc. and Mr. Tim Matula for directors fees. A charge of $140,500 was made to consulting expense. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 4, 2009, 1,250,000 shares of Common Stock were issued to a private shareholder for a cash investment of $25,000. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 2,521,375 shares of Common Stock were issued to a private shareholder for a cash investment of $50,000. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 1,133,333 shares of Common Stock were issued to a private shareholder for a cash investment of $17,000. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On December 31, 2009, 2,676,777 shares of Common Stock were issued to Martin E. Schmieg, Chairman and Chief Executive Officer of the Company, for a cash investment of $40,152. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
On January 4, 2010, 6,750,000 shares of Common Stock were issued to Marmel Communications, LLC, for investor and public relations services. Marmel Communications, LLC contract covers the period of January 1, 2010 through June 30, 2011. The services contract was valued at $175,500 and will be amortized from prepaid expenses over 18 months. The shares were issued without registration under the Securities Act of1933, as amended, in reliance upon the exemption afforded by Section 4(2) of that Act. No underwriters were involved.
The Company issued the above securities in reliance on the safe harbor and exemption from registration provided under Section 4(2) of the Securities Act of 1933, as amended. No advertising or general solicitation was employed in offering the securities. The offerings and sales or issuances were made to a limited number of persons and transfer was restricted by the Company in accordance with the requirements of applicable law. In addition to representations by the above referenced persons, the Company has made independent determinations that investors were accredited or sophisticated, that they were capable of analyzing the merits and risks of their investment and that they understood the speculative nature of their investment. Furthermore, the investors were provided with access to the Company’s filings with the SEC.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES. None.
ITEM 5. OTHER INFORMATION. None.
ITEM 6. EXHIBITS.
Except as so indicated in Exhibits 32.1 and 32.2, the following exhibits are filed as part of, or incorporated by reference, this Quarterly Report on Form 10-Q.
Exhibit No. | Description | Location | ||
| 2.1 | Asset Purchase Agreement, dated August 24, 2005, between the Company and Mark Taggatz. | Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on August 30, 2005. | ||
| 2.2 | Share Purchase Agreement, dated August 31, 2005, between the Company and Dr. Richard Goldfarb. | Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on September 7, 2005. | ||
| 2.3 | Addendum to Share Purchase Agreement, dated August 31, 2005, between the Company and Dr. Richard Goldfarb. | Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on September 7, 2005. | ||
| 2.4 | Share Exchange Agreement, dated January 12, 2009, between the Company and Freedom2 Holdings, Inc. | Incorporated by reference from the Company’s Current Report on Form 10-K filed with the SEC on August 13, 2009. | ||
| 3.1 | Articles of Incorporation of DJH International, Inc. dated October 25, 1996. | Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. | ||
| 3.2 | Certificate of Amendment of Articles of Incorporation of DJH International, Inc. dated October 20, 2000. | Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. | ||
| 3.3 | Certificate of Amendment of Articles of Incorporation dated November 14, 2003. | Incorporated by reference from the Company’s Registration Statement on Form. | ||
| 3.4 | Certificate of Amendment of Articles of Incorporation dated June 30, 2008. | Incorporated by reference from the Company’s Registration Statement on Form | ||
| 3.5 | Certificate of Amendment of Articles of Incorporation dated January 22, 2009. | Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on March 26, 2009. | ||
| 3.6 | Corporate Bylaws. | Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. | ||
| 3.7 | Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock dated December 20, 2007. | Incorporated by reference from the Company’s Current Report on Form 10-K filed with the SEC on August 13, 2009. | ||
| 3.8 | Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock, dated April 29, 2008. | Incorporated by reference from the Company’s Current Report on Form 10-K filed with the SEC on August 13, 2009. | ||
| 4.1 | Reference is made to Exhibits 3.1, 3.2 and 3.3. | |||
| 4.2 | Form of Common Stock Certificate. | Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. | ||
| 10.1 | Real Estate Asset Sale Agreement, dated February 16, 2010, between the Company and Kol Marble and Granite | Filed herewith. |
| 31.1 | Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under Sarbanes-Oxley Act of 1934, as amended. | Filed herewith. | ||
| 31.2 | Certification of Chief Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under Sarbanes-Oxley Act of 1934, as amended. | Filed herewith. | ||
| 32.1 | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*. | Furnished herewith. | ||
| 32.2 | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*. | Furnished herewith. |
*Exhibits 32.1 and 32.2 are being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liability of that section, nor shall such exhibits be deemed to be incorporated by reference in any registration statement or other document filed under the Securities Act of 1933, as amended, or the Securities Exchange Act, except as otherwise stated in such filing.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
NUVILEX, INC.
By: /s/ Martin Schmieg Martin Schmieg, Director, President and Chief Executive Officer (Principal Executive Officer On behalf of the Registrant) Date: March 22, 2010 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| March 22, 2010 | By: /s/ Martin Schmieg Martin Schmieg, Chairman of the Board of Directors and Principal Executive Officer |
| March 22, 2010 | By: /s/ Marylew Barnes Marylew Barnes, Director, Secretary and Principal Financial Officer |
| March 22, 2010 | By: /s/ Robert Bowker Robert Bowker, Director |
| March 22, 2010 | By: /s/ Richard Goldfarb Richard Goldfarb, M.D., FACS, Director |
| March 22, 2010 | By: /s/ Timothy Matula Timothy Matula, Director |