AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2004
REGISTRATION NO. 333- 112432
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM SB-2/A
AMENDMENT NO. 2
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CDEX INC.
(Name of Small Business Issuer in Its Charter)
Nevada 3829 52-2336836
(State or Other Jurisdiction (Primary Standard Employer
of Incorporation Industrial Classification Identification No.)
or Organization) Code Number)
1700 Rockville Pike, Suite 400
Rockville, Maryland 20852
(301) 881-0080
(Address and telephone number of Principal
Executive Offices and Principal Place of Business)
Malcolm H. Philips, Jr.
1700 Rockville Pike, Suite 400
Rockville, Maryland 20852
(301) 881-0080
(Name, address and telephone number of
agent for service)
Copies to:
Jeffrey A. Rinde, Esq.
Bondy & Schloss LLP
60 East 42nd St., 37th Floor
New York, New York 10165
(212) 661-3535
Facsimile: (212) 972-1677
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
ii
The information in this prospectus is not complete and may be changed. The
shareholders selling under this prospectus may not sell these securities until
the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and neither
the selling shareholders nor we are soliciting offers to buy these securities in
any state where their offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 21, 2004
CDEX INC.
2,567,172 SHARES OF COMMON STOCK
Initial Offering Price: $0.75 per share
This prospectus relates to the distribution by certain shareholders of CDEX Inc.
of up to 2,567,172 shares of our common stock. CDEX is not selling any shares of
common stock in this offering and therefore will not receive any proceeds from
this offering. All costs associated with this registration will be borne by
CDEX.
Brokers or dealers effecting transactions in these shares should confirm that
the shares are registered under applicable state law or that an exemption from
registration is available.
Currently, no public market exists for CDEX common stock. Shareholders selling
under this prospectus must offer or sell our common stock at a fixed price of
$0.75 per share until such time as our shares are traded on the OTC Bulletin
Board or other specified market. This price is based solely upon the terms of
recent issuances of our securities, in negotiated transactions, and does not
reflect the book value or any other specific valuation of our common stock. Once
traded on such a market or securities exchange, market factors will determine
the offering price of our common stock.
THESE SECURITIES ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK. PLEASE REFER
TO "RISK FACTORS" BEGINNING ON PAGE 6.
No underwriter or person has been engaged to facilitate the distribution of
shares of common stock in this offering.
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved of these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ___________, 2004.
1
TABLE OF CONTENTS
NUMBER
Prospectus Summary 3
Summary of the Offering 3
Summary of Consolidated Financial Information 5
Risk Factors 6
Cautionary Statement Regarding Forward-Looking Statements 11
Use of Proceeds 12
Capitalization 12
Management's Discussion and Analysis of Financial Conditions
and Plan of Operations 13
Our Business 18
Management 28
Executive Compensation 31
Selling Shareholders 34
Security Ownership Of Certain Beneficial Holders And Management 36
Description of Securities 38
Plan of Distribution 38
Experts 39
Legal Matters 39
Certain Transactions 39
Where You Can Find More Information 40
Financial Statements F-1
2
PROSPECTUS SUMMARY
NOTE: ON DECEMBER 11, 2002, CDEX EFFECTED A 1-FOR-5 REVERSE SPLIT OF ITS COMMON
STOCK. THROUGHOUT THIS SUMMARY AND THE ENTIRE PROSPECTUS, UNLESS OTHERWISE
INDICATED, SHARE AMOUNTS FOR SECURITIES ISSUED PRIOR TO THAT DATE HAVE BEEN
ADJUSTED TO REFLECT THIS REVERSE STOCK SPLIT.
OVERVIEW
CDEX Inc was incorporated in the State of Nevada on July 6, 2001. We are a
technology company with a current focus on developing and marketing products
using chemical detection and validation technologies. At present, we are
devoting our resources to the development of products for two distinct markets:
(i) identification of substances of concern (e.g., explosives, illegal
drugs and chemical/biological weapons); and
(ii) validation of substances for anti-counterfeiting, brand protection and
quality assurance (e.g., validation of prescription medication; detection
of counterfeit or sub-par products for brand protection; and quality
assurance inspection of incoming raw materials and outgoing final
products). All CDEX products are based on applying the same underlying
technologies for which we have patents pending.
We anticipate acquiring other technologies in the future through partnering and
investment. However, unless and until such time as we acquire other technology
assets, we anticipate that almost all of our revenues, if any, will come from
our chemical detection products.
Our principal office is located at 1700 Rockville Pike, Suite 400, Rockville, MD
20852. Our telephone number is (301)881-0080.
SUMMARY OF THE OFFERING
DESCRIPTION OF SHARES OFFERED Class A Common Stock, par value
$.005 per share
COMMON STOCK OUTSTANDING Class A: 24,295,868 shares
Class B: 220,000 shares
CLASS A COMMON STOCK BEING
OFFERED BY SELLING SHAREHOLDERS 2,567,172 shares
VOTING RIGHTS
Each holder of our Class A Common Stock is entitled to one vote for each share
held of record on all matters including the election of directors. However,
until December 11, 2006, the holders of shares of Class B Common Stock, most of
whom are now our executive officers, are entitled to vote as a class to elect a
majority of our directors. Until that time, holders of shares of Class A Common
Stock are entitled to vote as a class to elect the remainder of our directors.
Following December 11, 2006, holders of Class A Common Stock and Class B Common
Stock shall be entitled to one vote per share on the election of directors as
well as all other matters.
OFFERING PRICE
Our common stock is presently not traded on any market or securities exchange
(although shares of our common stock have traded to a limited extent on the
over-the-counter "gray market"). Until such time as our shares are traded on the
OTC Bulletin Board or other specified market, shareholders selling under this
prospectus must offer or sell our common stock at a fixed price of $0.75 per
share. This price is based solely upon the terms of recent issuances of our
securities, in negotiated transactions, and does not reflect the book value or
any other specific valuation of our common stock. Once traded on a market or
securities exchange, the offering price of our common stock will be determined
by market factors.
3
USE OF PROCEEDS
Because we are conducting this offering on behalf of selling shareholders, they
will receive all of the proceeds from the sale of their shares. We will receive
none of the proceeds from the sale of shares under this prospectus, but we did
receive consideration from the selling shareholders at the time they purchased
their shares. Although we will not receive the proceeds from the sale of shares
in this offering, we will pay all of the expenses of the offering, including,
without limitation, professional fees and printing expenses which will total
approximately $260,000.
RISK FACTORS
An investment in our common stock involves a high degree of risk, and should be
considered only by persons who can afford the loss of their entire investment.
You should read carefully the factors discussed under Risk Factors beginning on
page 6. Several of the most significant risks of this offering include:
Limited prior operations, history of operating losses, and accumulated deficit
may affect CDEX's ability to survive.
We have a history of net losses and may continue to have them.
CDEX has received a going concern opinion from its independent auditors that
describes the uncertainty regarding its ability to continue as a going concern
due to its historical negative cash flow.
Need for additional financing may affect our operations and plan of business.
TRANSFER AGENT AND REGISTRAR FOR THE CDEX SHARES
Nevada Agency and Trust Company 50 Liberty Street, Suite 880, Reno, Nevada 89501
TRADING MARKET
No significant trading market for our common stock currently exists, although it
has come to our attention that shares of our common stock have traded to a
limited extent on the over-the-counter "gray market." The gray market is an
unofficial market where shares are traded that are not available for trading on
an official stock market or exchange. Trading in our shares in this market has
occurred without any instigation or involvement of our management, and we do not
encourage or sanction it. We did not choose the symbol under which these shares
are traded nor do we intend to keep this symbol going forward. Prior to the date
of this prospectus, CDEX was not a reporting company, and virtually no public
information regarding our business, operations or financial condition was
available other than preliminary versions of this prospectus and our
registration statement of which this prospectus forms a part. The shares traded
in this gray market are not being offered by CDEX or pursuant to any disclosure
provided by us. We anticipate that our Class A Common Stock will be traded on
the OTC Bulletin Board. We expect that a market maker will apply for quotation
on the OTC Bulletin Board on our behalf prior to the effective date of the
offering. However, we cannot guarantee that such application will be granted or
that a trading market in our common stock will develop.
DIVIDEND POLICY
CDEX has not paid dividends in the past, nor do we anticipate paying cash
dividends at any time in the near future. Any decision to pay a dividend will be
in the sole discretion of the board of directors.
4
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
The following table presents summary historical financial information for the
fiscal years ended October 31, 2003 and 2002 and the three and six months ended
April 30, 2004, and certain balance sheet information. The data was taken from
our financial statements appearing elsewhere in this prospectus, and you should
read the actual financial statements for a complete presentation of this
information.
OPERATING DATA
Three Months Ended Six Months July 6, 2001
April 30 April 30 Year Ended October 31 (inception) to
2003 2004 2003 2004 2002 2003 April 30, 2004
----------- ----------- ----------- ----------- ----------- ----------- -------------
Revenue $ - $ 4,069 $ - $ 4,069 $ 75,952 $ 191,964 $ 271,985
Cost of revenue - - - - 52,130 126,701 178,831
Development costs 237,627 425,900 393,449 691,706 420,707 616,967 1,795,070
General and administrative expenses 120,223 314,853 224,105 515,221 379,634 609,611 1,612,881
Non-cash stock compensation 638,187 484,951 1,377,416 1,019,635 2,669,655 2,552,748 7,080,181
Other income (expense) - (206,224) - (206,168) (1,413) 143 (207,437)
Net loss $ (996,037) $(1,427,859) $(1,994,970) $(2,428,661) $(3,447,587) $(3,713,920) $(10,602,415)
Basic and diluted net loss
per common share: $ (0.05) $ (0.06) $ (0.11) $ (0.10) $ (0.22) $ (0.19) $ (0.58)
Basic and diluted weighted average
common shares outstanding 19,101,830 23,805,866 18,155,495 23,665,442 15,880,794 19,730,922 18,256,485
BALANCE SHEET DATA
October 31 April 30
2002 2003 2004
----------- ----------- -----------
Current assets $ 293,197 $ 434,477 $ 1,080,317
Total assets
600,124 756,529 1,335,756
Current liabilities
1,508,990 19,137 268,738
Long-term liabilities
- - 503,980
Stockholders' equity (deficit)
(908,866) 737,392 563,038
Working capital (deficit)
(1,215,793) 415,340 811,579
5
RISK FACTORS
You should carefully consider each of the following risk factors and all of the
other information in this prospectus. The following risks relate principally to
the offering and CDEX's business and contain forward-looking statements. Actual
results could differ materially from those set forth in the forward-looking
statements. See "Cautionary Statement Regarding Forward-Looking Statements"
below.
RISKS RELATED TO OUR BUSINESS
A HISTORY OF OPERATING LOSSES AND AN ACCUMULATED DEFICIT MAY AFFECT CDEX'S
ABILITY TO SURVIVE.
We have a history of operating losses and an accumulated deficit. Since our
principal activities to date have been limited to organizational activities,
research and development, product development and limited marketing and sales,
CDEX has produced only limited revenues. In addition, we have only limited
assets. As a result, we cannot be certain that CDEX will generate revenues or
become profitable in the future. If we are unable to obtain customers and
generate sufficient revenues to operate profitably, our business will not
succeed.
CDEX HAS RECEIVED A GOING CONCERN OPINION FROM ITS INDEPENDENT AUDITORS THAT
EXPRESSES UNCERTAINTY REGARDING ITS ABILITY TO CONTINUE AS A GOING CONCERN.
We have received a report from our independent auditors for the fiscal year
ended October 31, 2003 containing an explanatory paragraph that expresses
uncertainty regarding our ability to continue as a going concern due to
historical negative cash flow. We cannot be certain that our business plans will
be successful or what actions may become necessary to preserve our business. Any
inability to raise capital may require us to reduce operations or could cause
our business to fail.
OUR LIMITED OPERATING HISTORY MAKES OUR FUTURE OPERATING RESULTS UNPREDICTABLE
RENDERING IT DIFFICULT TO ASSESS THE HEALTH OF OUR BUSINESS OR ITS LIKELIHOOD OF
SUCCESS. THE INABILITY TO ASSESS THESE FACTORS COULD RESULT IN A TOTAL LOSS OF
AN INVESTOR'S INVESTMENT IN CDEX.
In the case of an established company in an ongoing market, investors may look
to past performance and financial condition to get an indication of the health
of the company or its likelihood of success. Our short operating history and the
evolving nature of the explosives detection and chemical identification markets
in which we focus make it difficult to forecast our revenues and operating
results accurately. We expect this unpredictability to continue into the future
due to the following factors:
o the timing of sales of our products and services, particularly in light of
our minimal sales history;
o difficulty in keeping current with changing technologies;
o unexpected delays in introducing new products, new product features and
services;
o increased expenses, whether related to sales and marketing, product
development or administration;
o deferral of recognition of our revenue in accordance with applicable
accounting principles due to the time required to complete projects;
o the mix of product license and services revenue; and
o costs related to possible acquisitions of technologies or businesses.
CDEX could experience operating losses or even a total loss of our business
which, as a result of the foregoing factors, would be difficult to anticipate
and could thus cause a total loss of capital invested in CDEX.
THE ABSENCE OF A CHIEF FINANCIAL OFFICER AND THE TYPES OF FINANCIAL CONTROLS AND
PROCEDURES WHICH WILL BE REQUIRED OF PUBLIC COMPANIES LEAVE INVESTORS IN CDEX
WITHOUT THESE PROTECTIONS UNTIL THEY ARE REMEDIED. The Sarbanes-Oxley Act
requires public companies to maintain disclosure controls and procedures that
are designed to ensure that information required to be disclosed in reports
filed with the SEC is recorded, processed, summarized and reported within the
time required. This includes controls and procedures to ensure that such
information is accumulated and communicated to management, including the chief
executive and financial officers, so as to allow timely decisions regarding
required disclosure of such information. The Sarbanes-Oxley Act also requires
documentation of internal control procedures, remediation as needed, and
periodic testing of the controls.
6
Moreover, because these controls and procedures are all designed to protect the
interests of investors in our securities, without these elements, purchasers of
the common stock in this offering would lack this protection. We are in the
process of reviewing our internal controls with a view toward documenting the
required controls and procedures, remediating existing deficiencies and adopting
a testing plan. This process is in the initial stages. We have retained a
qualified part-time chief financial officer for the next sixty to ninety days,
whereupon we expect that he will become a full time employee of CDEX. However,
whether this individual will become a long-term chief financial officer remains
uncertain and depends upon a number of factors, including negotiation of salary
and benefits and the adaptability of this individual's skill set to our needs.
LACK OF ADDITIONAL FINANCING COULD PREVENT US FROM OPERATING PROFITABLY WHICH,
EVENTUALLY, COULD RESULT IN A TOTAL LOSS OF OUR BUSINESS.
Since our inception, we have funded our operations through borrowings and
financings. Current funds available to CDEX may not be adequate for us to be
competitive in the areas in which we intend to operate, and we have no
arrangements or commitments for ongoing funding. If funding is insufficient at
any time in the future, we may not be able to grow revenue, take advantage of
business opportunities or respond to competitive pressures. The unavailability
of funding could prevent us from producing revenues or ever becoming profitable.
Our continued operations, as well as the successful implementation of our
business plan, may therefore depend upon our ability to raise additional funds
of approximately $2,500,000 to $4,000,000 through bank borrowings or equity or
debt financing over the next twelve months. We continue to seek prospective
investors who may provide some of this funding. However, such funding may not be
available when needed or may not be available on favorable terms. Certain family
members of our management team have advanced funds to CDEX on an as-needed basis
although there is no definitive or legally binding arrangement to do so. All
such advances have been repaid. If we do not produce revenues and become
profitable, eventually, we will be unable to sustain our business.
CDEX SHAREHOLDERS WILL EXPERIENCE SIGNIFICANT DILUTION IF WE ISSUE ADDITIONAL
EQUITY TO FUND OPERATIONS OR ACQUIRE BUSINESSES OR TECHNOLOGIES.
If working capital or future acquisitions are financed through the issuance of
equity securities, CDEX shareholders will experience significant dilution. In
addition, securities issued in connection with future financing activities or
potential acquisitions may have rights and preferences senior to the rights and
preferences of the currently outstanding CDEX shares of common stock. The
conversion of future debt obligations into equity securities could also have a
dilutive effect on our shareholders. Regardless of whether our cash assets prove
to be inadequate to meet our operational needs, we may elect to compensate
providers of services by issuing stock in lieu of cash.
OUR POTENTIAL INABILITY TO PROTECT THE PROPRIETARY RIGHTS IN CDEX'S TECHNOLOGIES
AND INTELLECTUAL PROPERTY MAY HAMPER OUR ABILITY TO MANUFACTURE PRODUCTS WHICH
WOULD PREVENT US FROM EARNING REVENUES OR BECOMING PROFITABLE.
Our success and ability to compete will depend in part on the protection of our
potential patents and other proprietary information. We currently have four
patent applications pending for our chemical detection technologies. We rely on
non-disclosure agreements and patent and copyright laws to protect the
intellectual property that we have developed and plan to develop. However, such
agreements and laws may provide insufficient protection. Moreover, other
companies may develop products that are similar or superior to CDEX's or may
copy or otherwise obtain and use our proprietary information without
authorization. If a third party were to violate one or more of our patents, we
may not have the resources to bring suit or otherwise protect the intellectual
property underlying the patent. In the event of such a violation or if a third
party appropriated any of our unpatented technology, such party may develop and
market products which we intend to develop and/or market. We would lose any
revenues which we would otherwise have received from the sale or licensing of
those products. This could prevent our ever making a profit on any products
based upon the misappropriated technology.
Policing unauthorized use of CDEX's proprietary and other intellectual property
rights could entail significant expense and could be difficult or impossible. In
addition, third parties may bring claims of copyright or trademark infringement
against CDEX or claim that certain of our processes or features violate a
patent, that we have misappropriated their technology or formats or otherwise
infringed upon their proprietary rights. Any claims of infringement, with or
without merit, could be time consuming to defend, result in costly litigation,
divert management attention, and/or require CDEX to enter into costly royalty or
licensing arrangements to prevent further
7
infringement, any of which could increase our operating expenses and thus
prevent us from becoming profitable.
Our competitive position also depends upon unpatented trade secrets. Trade
secrets are difficult to protect. Our competitors may independently develop
proprietary information and techniques that are substantially equivalent to ours
or otherwise gain access to our trade secrets, such as through unauthorized or
inadvertent disclosure of our trade secrets. If this occurs, our competitors may
use our processes or techniques to develop competing products and bring them to
market ahead of us. This could prevent us from becoming profitable.
We may rely on certain intellectual property licensed from third parties, and
may be required to license additional products or services in the future, in
order to move forward with our business plan. These third party licenses may be
unavailable on acceptable terms, when needed or at all. An inability to enter
into and maintain any of these licenses could prevent us from developing or
marketing products based upon the underlying technology which could prevent us
from earning revenues on these products or from becoming profitable.
NO ASSURANCE OF SUCCESSFUL MANUFACTURING MAY AFFECT OUR ABILITY TO SURVIVE.
CDEX itself has no experience in manufacturing commercial quantities of
products, and our management has had limited experience in this area. We
presently have no plans for developing in-house manufacturing capability beyond
aggregating off the shelf components for our initial units into a final
assembly. Accordingly, we may depend upon securing a contract manufacturer or
other third party to manufacture certain components although, in our early
stages, we plan to do the final assembly and testing of the initial units
in-house. We cannot be certain that the terms of any such arrangement would be
favorable enough to permit our products to compete effectively in the
marketplace.
DEPENDENCE ON OUTSOURCED MANUFACTURING MAY AFFECT ABILITY TO BRING PRODUCTS TO
MARKET.
At present, we do not plan to manufacture any of our products in-house. We are
considering different possibilities for bringing products to market among them,
licensing to third parties or outsourcing manufacturing. The risks of
association with outsourced manufacturers are related to their operations,
finances and suppliers. CDEX would have little control over an outsourced
manufacturer and may suffer losses if any outside manufacturer fails to perform
its obligations to manufacture and ship the manufactured product. These
manufacturers' financial affairs may also affect our ability to obtain product
from them in a timely fashion should they fail to continue to obtain sufficient
financing during a period of incremental growth. Problems with outsourced
manufacturers could damage our relationships with our clientele and cost us
future revenues. If we are unable to contract with adequate manufacturers, and
in the absence of licensing or other means, we may be unable to market our
products. This would prevent us from earning revenues.
LACK OF MARKET ACCEPTANCE MAY LIMIT OUR ABILITY TO SELL PRODUCTS AND GENERATE
REVENUES WHICH WOULD PREVENT US FROM EARNING REVENUES OR BECOMING PROFITABLE.
We cannot be certain that any products which we successfully develop will ever
achieve market acceptance. Our products, if successfully developed, may compete
with a number of traditional products manufactured and marketed by major
technology companies, as well as new products currently under development by
such companies and others. In the explosives detection marketplace, for example,
many airports and other facilities and agencies have already invested in and
implemented systems that are based upon technology that is different from ours.
While we believe our technology is superior, we will have to demonstrate its
superiority to these potential customers in order to sell our products and
generate revenues. We may encounter similar obstacles in other application
areas. The degree of market acceptance of our products will depend on a number
of factors, including the establishment and demonstration of the efficacy of the
product candidates, their potential advantage over alternative methods and
reimbursement policies of government and third party payors. We cannot be
certain that the marketplace in general will accept and utilize any of our
products. If potential customers do not accept and purchase our products, we
will be unable to generate revenues and become profitable.
8
WE INTEND TO MARKET OUR PRODUCTS IN INDUSTRIES WHERE TECHNOLOGY CHANGES RAPIDLY,
AND WE WILL INCUR COSTS TO KEEP OUR PRODUCTS CURRENT AND INNOVATIVE. OUR FAILURE
TO DO SO COULD RENDER OUR PRODUCTS OBSOLETE, MAKING OUR BUSINESS UNPROFITABLE.
We hope to market our products in industries characterized by rapid change due
to the introduction of new and emerging technologies. Critical issues concerning
the governmental or commercial use of chemical detection mechanisms, including
security, reliability, accuracy, cost, ease of use, accessibility, or potential
tax or other government regulation, may affect the relevance and functionality
of our products. Future technology or market changes may cause some of our
products to become obsolete more quickly than expected. We will need to make
research and development expenditures to create new features for our products to
enhance their effectiveness and become and remain competitive. If we are
unsuccessful in timely assimilating development changes in the various
environments, we may be unable to achieve or maintain profitability.
POTENTIAL DEFECTS AND PRODUCT LIABILITY COULD RESULT IN DELAYS IN MARKET
ACCEPTANCE, UNEXPECTED LIABILITY AND COSTS AND DIMINISHED OPERATING RESULTS.
Technology-based products frequently contain errors or defects, especially when
first introduced or when new versions are released. Defects and errors could be
found in current versions of our products, future upgrades to current products
or newly developed and released products. These defects could result in product
liability suits, delays in market acceptance or unexpected redevelopment costs,
which could cause any profits we might otherwise have to decline. We anticipate
most of our agreements with customers will contain provisions designed to limit
our exposure to potential product liability claims. It is possible, however,
that we will be unable to negotiate such provisions with certain customers or
that these provisions, if negotiated, may not be valid as a result of federal,
state, local or foreign laws or ordinances or unfavorable judicial decisions. A
successful product liability claim could damage our business, operating results
and financial condition. Prior to the actual licensing of our technologies for
use in distributed products or the entry of our products made by us into the
market, we plan to procure product liability insurance. Although we have
researched policies for such insurance, we currently have none in place, and we
cannot be certain that the amount or extent of coverage will be adequate once we
obtain it.
OUR POTENTIAL FUTURE BUSINESS AND/OR TECHNOLOGY ACQUISITIONS MAY BE
UNPREDICTABLE AND MAY CAUSE OUR BUSINESS TO SUFFER.
CDEX intends to expand its operations through the acquisition of additional
technologies (either by purchasing other businesses or acquiring their
technological assets) which it perceives to be unexploited and develop products
based upon these technologies. We have not yet identified these specific
technologies, and some of these technologies may be outside our current field of
operations. However, we may be unable to identify any such businesses or
technologies. Expansion may involve a number of special risks, including
possible adverse effects on our operating results or balance sheet (particularly
in the event of impairment of acquired intangible assets), diversion of
management attention, inability to retain key personnel, risks associated with
unanticipated events, any of which could prevent us from becoming profitable. In
addition, if competition for acquisition candidates or technologies were to
increase, the cost of acquiring businesses or technologies could increase as
well. If we are unable to implement and manage our expansion strategy
successfully, our business may suffer or fail.
SUBSTANTIAL COMPETITION MAY LIMIT OUR ABILITY TO SELL PRODUCTS AND THEREBY OUR
CHANCES OF BECOMING PROFITABLE.
We may experience substantial competition in our efforts to locate and attract
customers for our products. We are aware of two significant competitors in the
explosives detection industry which we believe have greater experience,
resources and managerial capabilities and may be in a better position than we
are to obtain access to and attract customers. General Electric Co. recently
announced its acquisition of one of these two competitors, InVision Technologies
Inc. which could increase our competitive pressure. A number of larger companies
similarly may enter some or all of our target markets and directly compete with
us. In the counter-terrorism arena, it is difficult to assess our competition
due to the high level of secrecy and lack of available information with respect
to defense and homeland security contracts and contractors. We must assume that
the demand for the technology in this area has given rise to a corresponding
supply of scientists and others who are developing technology similar to, or
otherwise competitive with, ours. In the area of brand protection, many
companies may seek to develop technology in-house to protect their own brands
rather than contract with us for our technology. In the areas of medical and
pharmaceutical validation and brand protection, various existing technologies
compete with ours and already are in
9
use in the marketplace. These include radio frequency identification tags,
tagant agents (chemical agents added to the target substance to serve solely as
identifying tags) and bar coding. If our competitors are more successful in
marketing their products, we may be unable to achieve or maintain profitability.
LOSS OF ANY OF OUR CURRENT MANAGEMENT OR INABILITY TO RECRUIT AND RETAIN QUALITY
PERSONNEL COULD ADVERSELY IMPACT OUR BUSINESS AND PROSPECTS. OUR DIRECTORS AND
OFFICERS EXERT SUBSTANTIAL CONTROL OVER OUR BUSINESS AND OPERATIONS.
We are dependent on our officers, i.e., Malcolm Philips Jr., Timothy Shriver and
Michael Mergenthaler, our Chairman of the Board, our Senior Vice President of
Technical Operations and our Vice President of Business Operations,
respectively, and our key employee. The loss of any of our key personnel could
materially harm our business because of the cost and time necessary to retain
and train a replacement. Such a loss would also divert management attention away
from operational issues. This would increase costs and prevent or reduce our
profits. To minimize the effects of such loss, we have entered into employment
contracts and non-competition agreements with our key officers and employees,
including Messrs. Philips, Shriver and Mergenthaler.
OUR MANAGEMENT LACKS EXPERIENCE IN THIS MARKET.
Although widely experienced in other industries, our current senior management
team has little experience leading the development, marketing and sales of
technology products in the chemical detection and validation marketplace. This
lack of experience could lead to inefficiency and slow the process of marketing
our products and prevent us from making sales or becoming profitable.
RISKS RELATING TO THE OFFERING AND OUR COMMON STOCK
THERE HAS NOT BEEN ANY SIGNIFICANT PRIOR TRADING MARKET FOR OUR SHARES, AND WE
CANNOT BE CERTAIN THAT ONE WILL DEVELOP OR THAT BROKER/DEALERS WILL MAKE A
MARKET IN OUR COMMON STOCK.
There is no current trading market for our common stock, although it has come to
our attention that shares of our common stock have traded to a limited extent on
the over-the-counter "gray market." The gray market is an unofficial market
where shares are traded that are not available for trading on an official stock
market or exchange. Trading in our shares in this market has occurred without
any instigation or involvement of our management, and we do not encourage or
sanction it. We did not choose the symbol under which these shares are traded
nor do we intend to keep this symbol going forward. Prior to the date of this
prospectus, CDEX was not a reporting company, and virtually no public
information regarding our business, operations or financial condition was
available other than preliminary versions of this prospectus and our
registration statement of which this prospectus forms a part. The shares traded
in this gray market are not being offered by CDEX or pursuant to any disclosure
provided by us. Subsequent to the date hereof, we anticipate that our common
stock will be listed on the Over The Counter Bulletin Board. If our common stock
is not eligible for such listing, an investor may find it difficult to dispose
of, or to obtain accurate quotations as to the market value of, our securities.
Even if our common stock is listed on the OTC Bulletin Board, we cannot be
certain that our shares will be actively traded or at what prices they will
trade.
If CDEX is unable to maintain National Association of Securities Dealers, Inc.
member broker/dealers as market makers, the liquidity of our common stock could
be impaired, not only in the number of shares of common stock which could be
bought and sold, but also through possible delays in the timing of transactions,
and lower prices for our common stock than might otherwise prevail. Furthermore,
the lack of market makers could result in CDEX shareholders being unable to buy
or sell shares of our common stock on any secondary market. We may be unable to
maintain such market makers.
RISK OF LOW PRICED SECURITIES MAY AFFECT THE MARKET VALUE OF OUR STOCK.
Our common stock may be subject to the low-priced security or so called "penny
stock" rules that impose additional sales practice requirements on
broker-dealers who sell such securities. The Securities Enforcement and Penny
Stock Reform Act of 1990 ("Reform Act") requires additional disclosure in
connection with any trades involving a stock defined as a "penny stock"
(generally defined as, according to recent regulations adopted by the U.S.
Securities and Exchange Commission, any equity security that has a market price
of less than $5.00 per share, subject to certain exceptions), including the
delivery, prior to any penny stock transaction, of a disclosure schedule
explaining the penny stock market and the risks associated therewith. The
regulations governing low-priced or penny stocks sometimes may limit the ability
of broker-dealers to sell CDEX's common stock and thus, ultimately, the ability
of the investors to sell their securities in the secondary market. Prices for
CDEX shares will be determined in the marketplace and may be influenced by many
factors, including the depth and liquidity of the market for the shares, CDEX's
results of operations, what investors think of CDEX and the chemical detection
and validation industry, changes in economic conditions in the industry, and
general economic and market conditions. Market fluctuations could have a
material adverse impact on the trading price of our shares.
10
SALE OF SHARES ELIGIBLE FOR FUTURE SALE COULD ADVERSELY AFFECT THE MARKET PRICE
OF OUR COMMON STOCK.
Other than the shares offered hereby, 3,712,667 of the 24,295,868 outstanding
shares of our Class A common stock have been issued in reliance on a
registration exemption under the Securities Act of 1933, as amended. Such shares
will not be available for sale in the open market without registration except in
reliance upon Rule 144 under the Securities Act. In general, under Rule 144 a
person, or persons whose shares are aggregated, who has beneficially owned
shares acquired in a non-public transaction for at least one year, including
persons who may be deemed "affiliates" of CDEX, as defined in Rule 144, would be
entitled to sell within any three-month period a number of shares that does not
exceed the greater of 1% of the then outstanding shares of common stock, or the
average weekly reported trading volume during the four calendar weeks preceding
such sale, provided that current public information is then available. In
addition, a person who is not deemed to have been an affiliate at any time
during the three (3) months preceding a sale and who has beneficially owned the
restricted securities for the last two (2) years, is entitled to sell all such
shares without regard to the volume limitations, current public information
requirements, manner of sale provisions and notice requirements. If a
substantial number of the shares owned by these shareholders were sold under
Rule 144, the market price of our common stock could be adversely affected.
DISTRIBUTION OF SHARES OF OUR COMMON STOCK BY A SIGNIFICANT SHAREHOLDER COULD
CREATE AN OVERHANG IN THE MARKET.
By order of the District Court of Travis County, Texas, Loch Harris, Inc., a
significant CDEX shareholder, was ordered to distribute to its shareholders and
others approximately 12,000,000 shares of CDEX common stock which it held. These
shares were originally issued to Loch Harris pursuant to an Asset Purchase
Agreement between CDEX and Loch Harris in exchange for certain intellectual
property rights acquired by CDEX from Loch Harris. (See "Business--Asset
Purchase Agreement.") The agreement required Loch Harris to distribute these
shares to its shareholders. By January 2002, the shares had not yet been
distributed. At that time, certain of Loch Harris's shareholders filed a class
action lawsuit against it, demanding, among other claims, that it distribute
these shares to its shareholders. As part of the settlement of this suit, Loch
Harris was required to do so. The shares were distributed to approximately
37,000 Loch Harris shareholders without registration, pursuant to Section
3(a)(10) of the Securities Act of 1933, as amended, because they were issued by
court order. Prior to the court's order, these shares were restricted and could
not be sold publicly by Loch Harris. However, under the court order and pursuant
to Section 3 of the Securities Act, these shares will be unrestricted in the
hands of the individual shareholders of Loch Harris. Thus, in addition to the
shares offered hereby, 12,000,000 shares held by the shareholders of this
significant shareholder will be eligible for public sale (subject to any state
securities law requirements). As a result, the prices at which our shares trade
may be lower than the price that would be expected for a fully distributed
issue.
HOLDERS OF OUR CLASS B COMMON STOCK (THE MAJORITY OF WHICH IS CURRENTLY HELD BY
OUR EXECUTIVE OFFICERS) WILL CONTROL THE ELECTION OF A MAJORITY OF OUR BOARD OF
DIRECTORS UNTIL DECEMBER 11, 2006.
Until December 11, 2006, the holders of shares of our Class B Common Stock are
entitled to vote as a class to elect a majority of our directors. The majority
of these shares are now held by our executive officers. Until that time, holders
of shares of Class A Common Stock are only entitled to vote as a class to elect
the remainder of our directors. Following December 11, 2006, holders of Class A
Common Stock and Class B Common Stock shall be entitled to one vote per share on
the election of directors. As a result, prior to December 11, 2006, purchasers
of the shares in this offering will be unable to elect a majority of the
directors of CDEX. Our executive officers hold the majority of the issued and
outstanding shares of Class B Common Stock.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Information included in this prospectus may contain forward-looking statements.
This information may involve known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from the future results, performance or achievements
expressed or implied by any forward- looking statements. Forward-looking
statements, which involve assumptions and describe our future plans, strategies
and expectations, are generally identifiable by use of the words "may,"
"should," "expect," "anticipate," "estimate," "believe," "intend" or "project"
or the negative of these words or other variations on these words or comparable
terminology.
This prospectus contains forward-looking statements, including statements
regarding, among other things, (a) our
11
projected sales and profitability, (b) our growth strategies, (c) anticipated
trends in our industry, (d) our future financing plans, and (e) our anticipated
needs for working capital. These statements may be found under "Management's
Discussion and Analysis of Financial Conditions and Results of Operations" and
"Our Business," as well as in this prospectus generally. Actual events or
results may differ materially from those discussed in forward-looking statements
as a result of various factors, including, without limitation, the risks
outlined under "Risk Factors" and matters described in this prospectus
generally. In light of these risks and uncertainties, there can be no assurance
that the forward-looking statements contained in this prospectus will in fact
occur.
USE OF PROCEEDS
CDEX will receive no proceeds from the distribution of securities in this
offering. All proceeds will go to the selling shareholders who are offering
their shares in this prospectus. However, CDEX will bear all of the expenses of
this offering which will total approximately $260,000.
CAPITALIZATION
The following table sets forth the capitalization of CDEX at April 30, 2004. The
following table should be read in conjunction with the financial statements and
related notes thereto included elsewhere in this prospectus.
Convertible debt $ 1,132,000
Discount on convertible notes (628,020)
Preferred Stock - $.005 par value per share, 6,000,000
shares authorized and none outstanding -
Class A common stock - $.005 par value per share, 33,500,000
shares authorized and 23,902,533 outstanding 119,515
Class B common stock - $.005 par value per share, 500,000
shares authorized and 220,000 outstanding 1,100
Additional paid in capital 11,642,602
Deferred stock compensation (597,764)
Deficit accumulated during development stage (10,602,415)
-------------
Total Capitalization $ 1,067,018
=============
12
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND PLAN OF OPERATION
You should read the following discussion in conjunction with our audited
financial statements and related notes included elsewhere in this information
statement. The following discussion contains forward-looking statements. Please
see Forward-Looking Statements for a discussion of uncertainties, risks and
assumptions associated with these statements.
PLAN OF OPERATION
We are a technology development company. Our primary focus is and will continue
to be products from technologies that we develop in-house or acquire from other
sources. Our current focus is on developing and marketing products using
chemical detection and validation technologies. With regard to these
technologies, our primary activities over the next twelve months will be
developing products with increasing focus on the marketing of those products.
For technical, accounting purposes, we are currently in the development stage
and expect to continue as such for the next 12 months. At present, we are
devoting our resources to the development of products for two potential markets:
(i) identification of substances of concern (e.g., explosives, illegal drugs and
chemical/biological weapons); and (ii) validation of substances for
anti-counterfeiting, brand protection and quality assurance (e.g., validation of
prescription medication; detection of counterfeit or sub-par products for brand
protection; and quality assurance inspection of incoming raw materials and
outgoing final products). We expect that our brand-protection and quality
assurance products will be ready for distribution in the third quarter of 2004
and that our products to identify substances of concern will be ready for
distribution in the fourth quarter of 2004. We anticipate further development
costs of $240,000 for the two initial brand protection products, and $75,000 for
the first substance identification product.
We anticipate acquiring other technologies in the future through partnering and
investment. However, unless and until such time as we acquire other technology
assets, we anticipate that almost all of our revenues, if any, will come from
our chemical detection and validation products.
In the medical area, we plan on continuing our emphasis on our SafeMed product
line, designed to validate authenticity of prescription medications (which is
intended for use in ensuring that medication has not been counterfeited by
substitution or dilution of the constituent ingredients or that the medication
administered is what was prescribed), by completing final engineering and
expanding marketing efforts. Until final engineering is complete on our initial
SafeMed products expected in July of 2004, we will support field test sites and
third party research projects using pre-production model prototypes. Our first
products will focus on the prescription medication anti-counterfeiting market,
with the Counterfeit Medication Detection Unit (CMDU) being the first completed
product CDEX places in the end-consumer marketplace, followed closely thereafter
by introduction of a quality assurance based application - also focused on
healthcare - namely the NDU (Narcotics Disposal Unit).
In the explosive detection area, the PS3 (Personnel Security Screening System,
designed to detect trace amounts of explosive on surfaces impacted by
ultraviolet energy) is scheduled to be our first end-consumer product. We
anticipate revenue from our security market (e.g., explosive detection
equipment) to be via government development contracts, licensing agreements with
existing vendors of security equipment and explosive detection products,
followed by unit sales to end-users. We have entered into discussions with
certain security solution vendors and have submitted joint proposals with
several large companies, but have not yet won proposals with those vendors or
reached any definitive licensing-type agreements with them. While potential
licensing opportunities are fully explored, we will continue to prosecute
development efforts. We anticipate continuing to seek development contracts with
the U.S. government for development of future products, including those
associated with detection of chemical and biological weapons. We have elected to
defer additional work on landmine detection pending receipt of additional
resources to address some of the technical issues associated with
commercialization, e.g., increasing the footprint and speed of the unit.
We anticipate further increases to our existing sales force and budget to
augment sales efforts in the healthcare industry as well as focus on sales to
the federal government. Our overall marketing budgets for our fiscal years
ending October 31, 2004 and 2005 are $525,000 and $1,250,000, respectively. Of
the 2004 budget, we have
13
allocated $125,000-150,000 for attending industry trade shows and
$200,000-300,000 for creating private audience demonstrations with potential
customers or partners. We anticipate entering into marketing and distribution
partnerships with companies established in the healthcare market to distribute
our anti-counterfeiting and quality assurance products through reseller
agreements and technology partnerships where our validation and identification
technologies will be integrated with their medication distribution systems.
RESULTS OF OPERATIONS
THREE MONTHS ENDED APRIL 30, 2004 COMPARED TO THREE MONTHS ENDED APRIL 30, 2003
Revenue: Revenue was $4,069 and $0 during the three months ended April 30, 2004
and April 30, 2003, respectively. The 2004 revenue was from a development
agreement with the U.S. Department of Defense under which we performed a
feasibility study for detection of chemical and biological agents with our
existing technologies.
Cost of revenue: There was no cost of revenue during the three months ended
April 30, 2004 and April 30, 2003.
Development costs: Development costs were $425,900 during the three months ended
April 30, 2004, compared with $237,627 during the three months ended April 30,
2003. The increase of $188,273 (or 79%) resulted from ongoing research and
development, statistical studies of equipment performance and preparation for
demonstrations and presentations.
General and administrative expenses: General and administrative expenses were
$314,853 during the three months ended April 30, 2004 compared with $120,223 for
the three months ended April 30, 2003. This increase of $194,630 (or 162%)
resulted from increased sales and marketing activities as well as professional
services related to our SEC filings.
Non-cash stock compensation: Non-cash stock compensation expense was $484,951
during the three months ended April 30, 2004, compared with $638,187 for the
three months ended April 30, 2003. This decrease of $153,236 (or 24%) resulted
from the full amortization of various stock grants in 2003.
Other income (expense): Other income (expense) was $(206,224) during the three
months ended April 30, 2004, compared with $0 for the three months ended April
30, 2003. This increase resulted primarily from the amortization of warrant
expense associated with convertible debentures.
Net loss was $1,427,859 during the three months ended April 30,2004, compared
with a net loss of $996,037 for the three months ended April 30, 2003, due to
the foregoing factors.
SIX MONTHS ENDED APRIL 30, 2004 COMPARED TO SIX MONTHS ENDED APRIL 30, 2003
Revenue: Revenue was $4,069 and $0 during the six months ended April 30, 2004
and April 30, 2003, respectively. The 2004 revenue was from a development
agreement with the U.S. Department of Defense under which we performed a
feasibility study for detection of chemical and biological agents with our
existing technologies.
Cost of revenue: There was no cost of revenue during the six months ended April
30, 2004 and April 30, 2003.
Development costs: Developent costs were $691,706 during the six months ended
April 30, 2004, compared with $393,449 during the six months ended April 30,
2003. The increase of $298,257 (or 76%) resulted from ongoing research and
development, statistical studies of equipment performance and preparation for
demonstrations and presentations.
General and administrative expenses: General and administrative expenses were
$515,221 during the six months ended April 30, 2004 compared with $224,105 for
the six months ended April 30, 2003. This increase of $291,116 (or 130%)
resulted from increased sales and marketing activities as well as professional
services.
Non-cash stock compensation.: Non-cash stock compensation expense was $1,019,635
during the six months ended April 30, 2004, compared with $1,377,416 for the six
months ended April 30, 2003. This decrease of $357,781 (or 26%) resulted from
the full amortization of various stock grants in 2003.
Other income (expense): Other income (expense) was $(206,238) during the six
months ended April 30, 2004, compared with $0 for the six months ended April 30,
2003. This increase resulted primarily from the amortization of warrant expense
associated with convertible debentures.
Net loss was $2,428,661 during the six months ended April 30,2004, compared with
a net loss of $1,994,970 for the six months ended April 30, 2003, due to the
foregoing factors.
YEAR ENDED OCTOBER 31, 2003 COMPARED WITH OCTOBER 31, 2002
Revenue: During the year ended October 31, 2003, we received revenue of
$191,964, representing an increase of $116,012 (or 152.7%) over $75,952 of
revenue for the year ended October 31, 2002. In fiscal 2003, revenues were from
our agreement with the U.S. Department of Defense under which we performed a
feasibility study for detection of chemical and biological agents with our
existing technologies. In fiscal 2002, these revenues came primarily from a
sub-contract with a government contractor to conduct initial field experiments
and data gathering, in arid and temperate climates, using an early stage
production model of a landmine detection system based on CDEX's base
technologies.
Cost of revenue: During the year ended October 31, 2003, we had cost of revenue
of $126,701, representing an increase of $74,571 (or 143%) over $52,130 for the
year ended October 31, 2002. These costs were for staff hours and materials to
support the U.S. Department of Defense agreement.
Development costs: During the year ended October 31, 2003, we had development
costs of $616,967, excluding non-cash compensation, representing an increase of
$196,260 (or 47%) over $420,707 for the year ended October 31, 2002. These costs
were for development of our base technology platform, which was used for the
fulfillment of development contracts from which we derived the aforementioned
revenues.
General and administrative expenses: During the year ended October 31, 2003, we
had general and administrative expenses of $609,611, excluding non-cash
compensation, representing an increase of $229,977 (or 61%) over $379,634 for
the year ended October 31, 2002. In both years, these expenses primarily
consisted of salaries, fees for professional services, preparation and review of
contracts, and intellectual property (filing of patent applications) as well as
insurance costs.
Non-cash stock compensation: During the year ended October 31, 2003, we had
non-cash stock compensation expense of $2,552,748, representing a decrease of
$116,907 (or 4%) over $2,669,655 for the year ended October 31, 2002.
Other income (expense). During the year ended October 31, 2003, we had other
income of $143, representing an income increase of $1,556 over expense of $1,413
for the year ended October 31, 2002.
Net loss was $3,713,920 for fiscal 2003 and of $3,447,587 for fiscal 2002 due to
the foregoing factors.
14
LIQUIDITY AND CAPITAL RESOURCES
To date, CDEX has incurred substantial losses, and will require financing for
working capital to meet its operating objectives. We anticipate that we will
require financing on an ongoing basis unless and until we are able to support
our operating activities with revenues.
As of October 31, 2003, we had working capital of $415,340, $342,923 of which
consisted of cash and cash equivalents. As of April 30, 2004, our working
capital was $811,579, with cash and cash equivalents in the amount of
$1,076,248. We anticipate the need to raise approximately $2,500,000 to
$4,000,000 over the next twelve months to satisfy our current budgetary
projections, which include substantial payments for the component parts
associated with assembly of our first products. Our continued operations, as
well as the implementation of our business plan, therefore will depend upon our
ability to raise additional funds through bank borrowings, equity or debt
financing. We continue to seek prospective investors who may provide some of
this funding. (For a discussion of the development status of each of our
products, see "Business - Products.")
In December 2003, we issued 83,335 shares of our common stock to accredited
investors at $1.50 per share. In January 2004, we executed Subscription
Agreements for additional funding in the aggregate amount of $55,000 from two of
our existing investors and are exploring other potential funding opportunities.
To date, CDEX has received $25,000 of this investment; the investor of the
$30,000 balance has indefinitely delayed fulfillment of the obligation, and CDEX
has returned the Class A Common stock to our treasury.
Also, on January 20, 2004, we received an unconditional subscription for
1,333,333 shares for an aggregate price of $1,000,000 from an accredited
investor. The purchase price was payable in installments. The investor has
defaulted on its payments, and CDEX has opted to terminate the agreement. In
addition to the foregoing, from time to time, certain family members of our
management team have advanced funds to CDEX on an as-needed basis although there
is no definitive or legally binding arrangement to do so. All such advances have
been repaid.
From March through May 2004, we received funding in the amount of $1,452,500
from the sale of convertible promissory notes to some of our existing investors
and one new investor. The notes are convertible into CDEX common stock at a
price of $0.75 per share, and the majority of these investors has elected to
convert shortly after purchasing the note. Each note was issued with warrants to
purchase shares of CDEX common stock equal to the number of shares of common
stock issuable on conversion of the note. The warrants are exercisable at $0.75
per share.
During the year ended October 31, 2003, we used net cash of $1,239,159 in
operating activities and invested $98,850 in property and equipment. We received
proceeds in the amount of $1,400,500 from the sale of restricted shares of
common stock to accredited investors.
During the six months ended April 30, 2004, we used net cash of $806,558 in
operating activities and invested $20,618 in property and equipment.
The spouse of the Chief Executive Officer purchased one $15,000, one $100,000
and two $20,000 convertible notes of CDEX, each paying interest at 9%. The
$20,000 notes were redeemed at face value for cash in August 2002, and the
$15,000 note was redeemed at face value for cash in September 2003, while the
$100,000 was redeemed at face value for cash in April 2004.
We have received limited revenues from operations to date and are actively
negotiating with potential contractors who, in some cases, may either license
our technologies for use in products produced by them or, in other cases, may
purchase products produced by us. We believe we may potentially begin to
generate revenues from such licenses or product sales as early as the third
calendar quarter of 2004. However, we cannot be certain whether or when we will
receive such revenues.
OFF-BALANCE SHEET ARRANGEMENTS
CDEX has not participated in any off balance sheet financing or other
arrangements.
15
CRITICAL ACCOUNTING POLICIES
The discussion and analysis of our financial condition and results of operations
are based on our financial statements, which have been prepared in accordance
with accounting principles generally accepted in the United States of America
(GAAP). The preparation of these financial statements requires us to make
estimates and judgments that affect the reported amounts of assets, liabilities,
revenues and expenses, and related disclosure of contingent assets and
liabilities. On an on-going basis, we evaluate these estimates, including those
related to bad debts, inventory obsolescence, intangible assets, payroll tax
obligations, and litigation. We base our estimates on historical experience and
on various other assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about
the carrying values of certain assets and liabilities. Actual results may differ
from these estimates under different assumptions or conditions.
We have identified below certain accounting policies which we apply in the
preparation of our financial statements. We believe that the policies discussed
below are those most critical to our business operations. These policies form
the basis of our discussion throughout this section and affect our reported and
expected financial results.
CASH AND CASH EQUIVALENTS: We maintain cash balances that may exceed federally
insured limits. We do not believe that this results in any significant credit
risk. We consider all highly liquid investments with original maturities of 90
days or less to be cash equivalents.
USE OF ACCOUNTING ESTIMATES: The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions. These estimates and assumptions affect (i) the
reported amounts of assets and liabilities, (ii) disclosure of contingent assets
and liabilities at the date of the financial statements and (iii) the reported
amounts of revenues and expenses during the periods covered by our financial
statements. Actual results could differ from those estimates.
PROPERTY AND EQUIPMENT: Property and equipment are stated at historical cost and
are depreciated using the straight line method over the estimated useful lives
of the related assets, ranging from five to seven years. Depreciation expenses
were $84,982, $66,968 and $168,392 for the years ended October 31, 2003 and
2002, and for the period from inception to October 31, 2003, respectively.
INCOME TAXES: We file our income tax returns on the cash basis of accounting,
whereby revenue is recognized when received and expenses are deducted when paid.
To the extent that items of income or expense are recognized in different
periods for income tax and financial reporting purposes, deferred income taxes
are provided to give effect to these temporary differences. Deferred tax assets
and liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of assets and
liabilities and their respective tax bases. Deferred tax assets and liabilities
are measured by applying presently enacted statutory tax rates, which are
applicable to the future years in which deferred tax assets or liabilities are
expected to be settled or realized, to the differences between the financial
statement carrying amounts and the tax bases of existing assets and liabilities.
The effect of a change in tax rates on deferred tax assets and liabilities is
recognized in operations in the period that the tax rate is enacted.
As we have never operated at a profit, no tax benefit has been reflected in the
statement of operations and a valuation allowance has been established reducing
the net carrying value of the deferred tax asset to zero.
ADVERTISING COSTS: The cost of advertising is expensed as incurred. Advertising
expense was $28,483, $9,873, and $38,481 for the years ended October 31, 2003
and 2002, and for the period from inception to October 31, 2003, respectively.
RESEARCH AND DEVELOPMENT: Total research and development costs include labor for
employees and contractors, rent, professional services, materials, lab equipment
and disposals. These costs are expensed in the accompanying Statement of
Operations which forms part of our financial statements appearing elsewhere in
this prospectus.
FAIR VALUE OF FINANCIAL INSTRUMENTS: The carrying amounts of items reflected in
current assets and
16
current liabilities approximate their fair value due to the short-term nature of
their underlying terms.
RISKS, UNCERTAINTIES AND CONCENTRATIONS: Financial instruments that potentially
subject CDEX to significant concentration of credit risk consist primarily of
cash equivalents and accounts receivable. In addition, at times CDEX's cash
balances exceed federally insured amounts
All revenue reported in our financial statements was earned under two contracts,
one for development and one for testing. Accounts receivable represents a
portion of the revenue outstanding on these contracts. We provide for estimated
credit losses at the time of revenue recognition.
NET LOSS PER COMMON SHARE: Basic net loss per share was determined by dividing
net loss by the weighted average number of common shares outstanding during each
year. The effect of common stock equivalents is not considered as it would be
anti-dilutive.
STOCK-BASED COMPENSATION: We have provided restricted stock grants to employees
and consultants as the principal element of their compensation. We determine
compensation expense as the fair value, at the measurement date, of the service
received or the common stock issued, whichever is more reliably determined. In
the case of employees, the measurement date is the date of grant. In the case of
outside consultants, the measurement date is the date at which their performance
is complete. This total cost is first reflected as deferred compensation in
stockholders' equity (deficit) and then amortized to compensation expense on a
straight-line basis over the period over which the services are performed. When
the fair value of the common stock is used and the measurement date is not the
date of grant, the total cost is remeasured at the end of each reporting period
based on the fair market value on that date, and the amortization is adjusted.
We have also utilized employment and consulting agreements which combine cash
and stock elements of compensation, where a fixed dollar value of stock is
awarded to settle noncash compensation. In this case, compensation cost is
determined based on the fair value of the services, which is the more reliably
determined measure. We have awarded some of the common shares in advance of when
the service is performed although these shares are subject to forfeiture in the
event of non-performance. These amounts are shown as deferred compensation in
the accompanying balance sheet. We have also paid performance bonuses in awards
of common stock.
17
OUR BUSINESS
GENERAL
CDEX Inc was incorporated in the State of Nevada on July 6, 2001. We are a
technology company with a current focus on developing and marketing products
using chemical detection and validation technologies. At present, we are
devoting our resources to the development of products for two distinct markets:
(i) identification of substances of concern (e.g., explosives, illegal drugs and
chemical/biological weapons); and (ii) validation of substances for
anti-counterfeiting, brand protection and quality assurance (e.g., validation of
prescription medication; detection of counterfeit or sub-par products for brand
protection; and quality assurance inspection of incoming raw materials and
outgoing final products). Each application area is supported by our patents
pending technologies and each by common technological platforms.
We anticipate acquiring other technologies in the future through partnering and
investment. However, unless and until such time as we acquire other technology
assets, we anticipate that almost all of our revenues, if any, will come from
our chemical detection products.
OUR TECHNOLOGY
Our chemical detection products are based upon the use of either x-ray
fluorescence or ultraviolet fluorescence technology. In systems using our
proprietary technologies, an energy source (either x-ray or ultraviolet) is
directed toward the target area. The energy source focused on the target area
fluoresces, or causes excitation of electrons in, the target. The resulting
electron decay within the target substance causes emission of characteristic
photons that form chemical signatures that can be captured and compared to those
in the CDEX database to provide real-time identification/validation of the
target substances.
Using information gathered from controlled laboratory measurements to establish
a database, CDEX proprietary software matches a signature or "fingerprint" of a
substance being tested to items in that database for identification. CDEX has
developed and extensively tested several first generation systems for detection
of substances. The systems have common platforms or chassis and components with
primary differences lying in the energy source (e.g., x-ray or ultraviolet), the
detection environment, the discriminating algorithms and supporting software.
CDEX's software performs analysis by using the signature of a targeted substance
gathered during operation of the product, then, after normalizing the signature
to reduce background clutter, comparing that chemical signature with signatures
in the CDEX database to validate the target within user defined standard
deviations. The analysis software is designed to alert the operator if a
particular substance of interest is identified, or if the chemical signature of
the target substance is outside the standard deviations.
PRODUCTS
We are currently focusing our resources on developing real-time (within seconds)
chemical detection products using our proprietary patents pending technologies.
We believe products using our technologies will be able to identify substances
from close range as well as longer distances, although we have not yet
determined the exact limits of this range. Laboratory testing demonstrates the
technologies' capability in identifying and discriminating between substances
(e.g., explosives, pills or liquid medications) in a wide range of environments
(e.g., buried underground, in luggage or trace amounts on surfaces). We know of
no insurmountable design obstacles that we will have to overcome before we can
introduce our initial suite of products to our target market.
We anticipate that CDEX's initial products, the Counterfeit Medication Detection
Unit and the Narcotics Disposal Unit, will be available to the public in July
2004 for anti-counterfeiting and quality assurance in the distribution and
control of prescription medication. Other CDEX products use the same base
technological platforms to validate the authenticity of target substances based
on their chemical signature for brand protection and detection of counterfeits
for a potentially wide variety of products. CDEX is also completing development
of products for identification of substances of concern, namely concealed
explosives or chemical and/or biological agents for sales to the homeland
security market. We expect the first of this product suite, the Personnel
Security Screening System, to be available in October 2004.
18
Following is a discussion of products in our two main product categories:
ANTI-COUNTERFEITING, BRAND PROTECTION AND QUALITY ASSURANCE PRODUCTS
For example, in the pharmaceutical and healthcare industries, CDEX products
enable verification that liquid medication has not been counterfeited by
substitution or dilution of the constituent ingredients or that the medication
administered is what was prescribed. Scanning the medication is non-destructive
and can be done in real-time (within seconds). CDEX technology differs from
currently utilized systems which rely primarily on "tagging" a package or pill
to identify counterfeit medication only by the absence of these taggants. CDEX
technology directly validates the medication by the unique composite spectra of
the constituent fluoresced ingredients. CDEX anticipates that since our products
do not come in direct contact with patients, they do not fall within current
regulatory guidelines for the FDA.
Products in this category are in various stages of development and include:
o SAFEMED COUNTERFEIT MEDICATION DETECTION UNIT (CMDU): The CMDU is a portable
solution that identifies counterfeit medication by analyzing the composite
chemical signatures of subject medications against the authentic signature
contained in the CMDU database to determine authenticity. Users scan medication
to detect counterfeits before they enter inventory or reach the consumer.
o SAFEMED NARCOTICS DISPOSAL UNIT (NDU): The NDU validates the concentration of
a narcotic designated for disposal is within user defined bans, and prints a
report that includes the amount, concentration, date and time stamp, therefore
greatly reducing the potential for narcotics to be diverted from the clinical
environment illegally.
o SAFEMED INTRAVENOUS MEDICATION VALIDATION SYSTEM (IMVS): The IMVS validates
medications that are combined in intravenous drip systems, most commonly for
patients with cancer or HIV-AIDS. The product will be installed directly into
the pump that combines the medications into a solution and then releases them
into the intravenous drip. The devices could be designed to validate and
authenticate the individual medications entering the machine as well as the
final mixture exiting the machine before it enters the patient. The IMVS would
trigger an alarm and/or mechanically discontinue the dispensing of the
medication should it detect an unauthenticated constituent medication or an
improper ratio of medications in the combined solution.
o SAFEPHARM: The same technologies applied in the CMDU (but with application
specific software) are applied in SafePharm, which validates medication being
distributed in a retail pharmacy.
The same approach is being applied in the area of brand protection for distilled
spirits, where counterfeiting and dilution of product adversely impact the taste
of a popular brand or collection of taxes by a local, regional or national
taxing authority.
PRODUCTS FOR IDENTIFICATION OF SUBSTANCES OF CONCERN
We are applying our chemical detection technologies to the development of a
suite of applications performing complementary tasks for the detection of
explosives, which include the following:
o PERSONNEL SECURITY SCREENING SYSTEM (PS(3)): A man-mobile system with a
handheld, ultraviolet-based scanning device to detect trace amounts of explosive
(and potentially drug residues) on areas impacted by the ultraviolet energy,
e.g., on the surface of clothing, shoes, luggage, parcels, skin and personal
items.
o MOBILE SECURITY SCREENING SYSTEM (MS(3)): A mobile unit that employs X-ray
energy to detect explosives concealed in luggage and packages, including
detection for unattended containers.
o ACCESS SECURITY SCREENING SYSTEM (AS(3)): Portal unit that screens individuals
for explosive residue on areas impacted by ultraviolet. The AS(3) expands the
PS(3)'s field of view by adding multiple light sources and detectors configured
in a portal walkway that examines individuals as they pass through the portal
for trace amounts of explosives (and potentially drug residues) on areas
impacted by ultraviolet energy, e.g., on the surface of their skin, clothing and
shoes.
19
o FIXED SECURITY SCREENING SYSTEM (FS(3)): Fuses the PS(3) and MS(3) into a
conveyor belt unit that provides a redundant approach to luggage/package
screening. The multiple detectors and sources of the FS(3) will permit the
examination of luggage/packages for concealed, bulk explosives as well as for
trace surface residue in a single integration with throughput comparable to
existing multi-train systems.
Using the explosive detection platforms noted above, development is also
progressing for systems that detect other substances of concern, including
illegal drugs and chemical/biological agents. Development has progressed under
contracts with the United States Government. We continue to seek other such
contracts both alone and in partnership with major companies.
PRODUCT STATUS AND DEVELOPMENT
CDEX is in the process of developing several products for different markets and
customers, and has used certain commonly used terminology in an attempt to
effectively and accurately communicate progress in our product development
cycle. Except as noted below, all our products are "in development", meaning we
have not yet completed software engineering or design and engineering of
hardware nor selected final components. CDEX has completed "first generation
prototypes" for the PS(3), CMDU and NDU. First generation prototypes demonstrate
application functionality, have completed software with a pre-populated test
database, with functional hardware under configuration control. We expect to
have "production prototypes" of the CMDU and the NDU in July 2004. The
production prototypes have completed final engineering and are the basis from
which the assembly line will produce production units in volume.
During the fiscal years ended October 31, 2003 and 2002, we spent approximately
$616,967 and $420,707, respectively, on research and development cash
expenditures.
As of February 3, 2004, we entered into a Master Engineering Services Agreement
with Systems 2000, Inc. pursuant to which Systems 2000 has agreed to provide
services to CDEX from time to time which are to be set forth more specifically
in "statements of work" to be executed by each party. Such services may include,
without limitation (i) non-recurring engineering services such as product
design, creation and modification of bills of materials, engineering drawing
packages, work instructions, manufacturing specifications, fabrication documents
and drawings, and survey documents, (ii) prototyping services such as the
development and testing of product prototypes; and (iii) other related design
and manufacturing services as needed. Payments for services performed are to be
on a time and materials basis (paid monthly) or on a fixed price basis (paid
upon successful completion of each milestone) all as set forth in the statement
of work pertaining to the particular services.
The agreement is to continue in effect unless terminated (i) by either party for
non-performance upon the expiration of 30 days' written notice of such
non-performance without cure, or (ii) by CDEX upon 30 days' written notice to
Systems 2000. We may also terminate individual statements of work on 30 days'
written notice. The parties have entered into a confidentiality agreement in
connection with the agreement which is attached to the agreement as an exhibit.
The parties also reserve their own intellectual property rights which existed
prior to the date of the agreement and are developed independently. However, the
agreement provides that CDEX owns all right, title and interest in and to any
intellectual property developed by Systems 2000 in connection with its
performance of the agreement. We have entered into initial statements of work
under this agreement for the evaluation of major components, final validation,
evaluation of user requirements, completion of design/manufacturing
specifications and assembly procedures and completion of user and training
manuals all with respect to the CMDU and NDU. These tasks are to be completed on
a time and materials basis.
As of February 23, 2004, we entered into a Master Engineering Services Agreement
with Catalina Tool and Mold, an Arizona corporation, on substantially the same
terms as that with Systems 2000 set forth above. We currently do not have any
active statements of work under this agreement with Catalina.
All of our potential products utilize the same basic technological platforms
with a customized database. We intend to market and deploy customized systems to
capture the chemical signature of customer's products in the database. Once a
chemical signature of an authentic product is loaded into the database, CDEX
products can validate target substances against that chemical signature.
20
Because our potential products utilize the same base technologies, the final
engineering achievement of the first product will be applied to other products
in development using the same energy source to fluoresce the target. Development
of prototypes is ongoing. All development has primarily utilized common, off the
shelf components for applications.
We will not be able to determine end user unit pricing until final engineering
is complete and vendor agreements for materials are in place. We have yet to
establish large volume relationships with suppliers. However we have established
relationships with suppliers during the research and development period. We
anticipate these relationships will be expanded to address higher volume of
units purchased. We have received large volume quotes from suppliers for some
components for our products, however until additional funding is received, we
will not be able to sign any large volume agreements with these suppliers. We
are not restricted in selecting sources for components. We intend to explore
outsourcing for manufacturing as well as certain engineering tasks.
The following is a list each of our products set forth above and the status of
its development:
o CMDU: Development is complete pending completion of the customer database. We
anticipate a production prototype in July 2004, with production units available
for distribution in August.
o NDU: We have produced a first generation prototype. We anticipate a production
prototype in July 2004 with production units available for distribution in
August. Final release of the product is also pending completion of the customer
database and statistical validation.
o IMVS: Development is ongoing. We have not produced a first generation
prototype.
o SAFEPHARM: Development is ongoing. We have completed a first generation
prototype.
o PS(3): Development of a first generation prototype is complete. Final release
of the product is pending refinement (in coordination with the appropriate
government agency), manufacturer-ready engineering, and software modification.
o MS(3): Development is ongoing; we anticipate a production prototype within
twelve months We have not completed software development or a first generation
prototype.
o AS(3): Development is ongoing. We have not completed software development or a
first generation prototype; we anticipate a prototype within twelve months.
o FS(3): Development is ongoing. We have not completed software development a
first generation prototype; we anticipate a prototype within twelve months
Other potential applications using our technologies include products to detect
chemical or biological agents. On May 8, 2003, we entered into an agreement with
the United States Department of Defense. Under Phase 1 of the agreement, we
performed a study of the feasibility of the CDEX technology to support
identification of chemical/biological agents. We have substantially completed
this phase of the agreement. Whether we proceed to Phase 2 of the agreement is
entirely at the option of the Defense Department and depends upon its internal
allocation of funds and whether it decides to focus its resources in this area.
If the Defense Department elects to proceed to Phase 2, it would involve the
design and building of prototypes. The total consideration payable to CDEX under
the agreement is slightly less than $991,409, $196,483 being allocated for Phase
1 and $794,926 for Phase 2. To date, we have received $192,415 for Phase 1, with
the final $4,068 invoice approved for payment by the Department of Defense.
INDUSTRY AND COMPETITION
In addition to airport security, the explosives detection marketplace is
potentially significant, including every major building, transportation
facility, or significant gathering place. We believe the market is potentially
lucrative because of growing awareness of terrorism due to recent world events.
We believe that this marketplace possibly includes the following potential
customers: militaries, airport/building security organizations and
transportation related organizations, government, law enforcement organizations,
and school systems. These markets are global in perspective and large in size,
e.g., the U.S. law enforcement market consists of over 20,000 local, state and
federal
21
agencies. Employing the marketing program outlined under "Sales and Marketing"
below, we intend to target as many of these market elements as we can given our
available resources.
Our research indicates that by 2010, the people-screening market will have
surpassed $9 billion in system deployment and services, up from $600 million in
2002. Sales for 2006 are expected to reach $3.5 billion. The compounded annual
growth rate during the 2003-2010 period is estimated to be approximately 47%.
(See The Homeland Security Research Corporation's - 2003-2010 PEOPLE SCREENING
WEAPONS & EXPLOSIVES DETECTION MARKET REPORT (2002), (WWW.HSRC.BIZ).)
Unfortunately, escalation of world terrorism makes it likely that this market
will continue to grow.
The same Homeland Security Research Corporation's report covering the people
screening industry underscores the potential and need for effective detection of
weapons, explosives and weapons of mass destruction. The report also highlights
current shortcomings that may require the industry to refocus and develop
totally new products. Slow throughput rates and false alarms virtually nullify
plans to screen every - or even most - person threats. Existing systems are for
the most part heavily operator dependent, making them susceptible to human
errors. Taken together, these limitations restrict the effectiveness and
thoroughness of people screening activities. The report points out that a
possible solution is development of multiple threat portals capable of providing
cost effective detection of most, or all, current threats without adversely
affecting people traffic. CDEX offers a low priced, easily integrated solution
to help provide this multi-layered approach to security.
Currently, domestic sales of people screening devices are dominated by a small
number of products sold by a handful of vendors. CDEX believes our chemical
detection products will compete with these existing detection products, and,
depending on the application, may even have a competitive advantage by being
more advanced than existing tools in a number of areas, including the following:
a. improves operator safety by permitting non-intrusive inspection from a
distance without contact with the subject;
b. potentially reduces error rates by eliminating operator interpretation of
results and using audible or visual alarms;
c. detects known substances of concern by a "chemical detection" process, not
simply known shapes of detonation mechanisms or bomb components, or ancillary
evidence of devices;
d. works in virtually "real time"; and
e. is expandable as new threats are identified, providing a more timely
reduction to potential threats to public safety.
According to PHARMACEUTICAL TECHNOLOGY (September 2002, pp. 16-26), a
substantial need exists for technology that distinguishes between authentic and
counterfeit products, including, for example, medications dispensed in
hospitals, pharmacies and other health care facilities. Moreover, in his October
2000 testimony to the Oversight and Investigations Hearing on Counterfeit Bulk
Drugs, U.S. Commerce Committee Chairman, Tom Bliley (R-VA), stated that "the FDA
has reviewed its records on drug imports and found that 242 foreign firms may
have shipped misbranded drugs to the United States in 1999 and have never been
inspected." Other potential users include law enforcement organizations, school
systems, large corporations and governments.
The U.S. Food and Drug Administration, U.S. Customs and Congress are looking for
new ways to keep the nation's medication supply chain safe from the increasing
incidents of counterfeiting. Currently, the FDA is expected to make
recommendations to the U.S. Congress addressing the counterfeit medication issue
facing U. S. consumers. It is believed that this report will act as a catalyst
to accelerate anti-counterfeit technology deployment across the industry. The
FDA (and Congress) may require anti-counterfeit solutions within the U.S. within
one year. This looming regulatory mandate is driving the demand for inexpensive,
easily deployable anti-counterfeit solutions.
Today, most of the imported prescription medications go through actual
inspection by the FDA and/or U.S. Customs, though they do not have the tools to
conduct comprehensive inspections. The FDA website quotes U.S. Customs estimates
that, at best, 10% of smuggled drugs are found by the inspection methodology.
Currently, the FDA inspects imported items side-by-side with U.S. Customs. While
U.S. Customs out number the FDA inspectors 18 to 1, only 25% of FDA inspectors
inspect medications. The FDA has stepped up its inspection intensity.
FDA and industry experts agree that the majority of counterfeits introduced into
the U.S. market enter through the U.S. distribution channels. No medication
inspections are made at the drug distribution channel or repackagers'
22
locations. The FDA is considering strategies to expand inspections beyond the
point of import into the U.S. distribution channel. (See FDA COUNTERFEIT DRUG
TASK FORCE INTERIM REPORT (October 2003 pp. 9-12).)
According to its 1999 NWDA INDUSTRY PROFILE AND HEALTHCARE FACTBOOK , the
National Wholesale Druggists' Association in Reston, Virginia reported that 90%
of all prescribed medications dispensed to U. S. consumers were dispensed by
hospital, retail chain and independent pharmacies. As defined by regulation, a
final check of a prescription is required by a pharmacist before a medication
can be dispensed to a patient. Unfortunately, this check is a visual check to
confirm the patient's vial or single dose of medication matches the
prescription. In addition, there are no tools available to take advantage of
this final opportunity to identify counterfeit medications. There is little
inspection of the wholesale distribution network or of the U.S. repackagers.
We may experience substantial competition in our efforts to locate and attract
customers for our products. We are aware of two significant competitors in the
explosives detection industry which we believe have greater experience,
resources and managerial capabilities and may be in a better position than we
are to obtain access to and attract customers. General Electric Co. recently
announced its acquisition of one of these two competitors, InVision Technologies
Inc. which could increase our competitive pressure. A number of larger companies
similarly may enter our target markets and directly compete with us in some or
all of them. In the counter-terrorism arena, it is difficult to assess our
competition due to the high level of secrecy and lack of available information
with respect to defense and homeland security contracts and contractors. We must
assume that the demand for the technology in this area has given rise to a
corresponding supply of scientists and others who are developing technology
similar to, or otherwise competitive with, ours. In the area of brand
protection, many companies may seek to develop technology in-house to protect
their own brands rather than contract with us for our technology. In the areas
of medical and pharmaceutical validation and brand protection, various existing
technologies compete with ours and already are in use in the marketplace. These
include radio frequency identification tags, tagant agents (chemical agents
added to the target substance to serve solely as identifying tags) and bar
coding.
SALES AND MARKETING
CDEX's business vision is to develop technologies to the point of market or
application viability and then, where management determines it to be beneficial,
team with organizations to complete commercial deployment and/or distribution
through our sales and marketing channels. In some instances, we may take a
technology directly to market. In others, we may seek to license the technology
to third parties who will then develop and market products employing it. Our
products and technologies may be licensed to original equipment manufacturers,
sold direct or via resellers as stand alone end units, or be integrated as
sensors that gather and relay information to an integrated solution that is the
repository of information gathered from many sources (e.g., in security
applications from perimeter, environmental and structural security devices).
Accordingly, our prospective "client base" varies depending on the application
and the stage of development. In marketing our chemical detection products and
technologies, we intend to target, via partnerships as well as direct sales,
both U.S. and foreign governments, in addition to private industry or
individuals requiring confirmation of the presence or absence of substances.
We are currently reaching potential customers and partners through our website,
participating in industry events (such as trade shows and public meetings),
distributing product information through targeted mailings and direct sales
activities which include demonstrations of product application. We also
anticipate reaching prospective customers via strategic relationships and
traditional advertising. CDEX has to date not entered into any formal or
definitive strategic marketing or distribution agreements for any of our
products. Planned advertising activities include trade and industry magazines
and doctor managed clinical trials where researchers are likely to publish
articles discussing the results of the trials.
We anticipate focusing on domestic markets before expanding internationally via
strategic marketing and manufacturing partnerships. We anticipate partnerships
based either on geographic boundaries or by products depending on the partner's
market specialty and market presence. We have received unsolicited contacts by
prospective partners from the Middle East, Europe, Taiwan, Vietnam, Korea,
Malaysia and China based on information on www.cdex-inc.com. These contacts were
primarily interested in explosive and drug detection, and the technology's
potential use in the electronic manufacturing industry. These contacts may never
result in revenue
23
for, or relationships that will benefit, CDEX. CDEX has not applied for licenses
or permits to do business in any foreign country, nor for any certification of
its products.
PRODUCTS FOR IDENTIFICATION OF SUBSTANCES OF CONCERN
CDEX has developed technologies to deliver detection products - either as a
stand-alone system or as an element in a multi-technology system. CDEX allows
for retention of investment costs of deployed screening systems by both
retro-fitting existing systems to incorporate CDEX technology, or enhancing
screening methodology by including stand-alone CDEX detection devices. This
defense-in-depth approach offers a dual or multi-technology detection system
that should improve flow rates and detection rates, and provide "clear"
confirmation easier and even more definitive.
CDEX believes a partnership strategy will help gain faster market acceptance by
working closely with large, established vendors in the market instead of
directly competing against them. CDEX is in discussions with several such
potential partners although we have not yet entered into any formal agreement.
Application of our products as sensors that easily integrate with existing
systems will also potentially remove barriers to market entry and capitalize on
an industry trend to utilize multiple sources of data/intelligence from which to
build an overall threat assessment.
We have spent considerable time meeting with branches of the U.S. Government to
identify areas of application of our chemical detection technology. We have
determined, based on past experience of our employees and consultants who have
done work for the federal government, and the advice of professional services,
that one of the most cost efficient ways to market developmental technologies is
through identifying those branches of the government that have development money
available to fund private sector efforts. We plan to continue marketing to the
U.S. Government for technology development revenue by co- partnerships with
major integration firms and individually.
Our marketing efforts have captured a level of interest with certain branches of
the U.S. Government which have resulted in two contracts:
In May of 2002, CDEX was awarded a seven-month testing sub-contract with a total
value up to $75,940 for performance of initial field experiments and data
gathering, in arid and temperate climates, using an early stage production model
of a landmine detection system, and the related expenses and materials to
perform such contract.
On May 8, 2003, we entered into an agreement with the United States Department
of Defense. Under Phase I of the agreement, we performed a study of the
feasibility of the CDEX technologies to support identification of
chemical/biological agents. We have substantially completed this phase of the
agreement. Whether we proceed to Phase 2 of the agreement is entirely at the
option of the Defense Department and depends upon its internal allocation of
funds and whether it decides to focus its resources in this area. If the Defense
Department elects to proceed to Phase 2, it would involve the design and
building of prototypes. The total consideration payable to CDEX under the
agreement is slightly less than $991,409, $196,483 being allocated for Phase 1
and $794,926 for Phase 2. To date, we have received $192,415 for Phase 1, with
the final $4,068 invoice approved for payment by the Department of Defense.
Revenues from these contracts have comprised substantially all of our revenues
during the year ended October 31, 2003. The loss of one or both of these
customers would have resulted in a reduction of our revenues during that period.
However, as indicated above, we intend to direct our future marketing efforts
toward selling or licensing products based upon our technologies in addition to
these types of development contracts.
VALIDATION PRODUCTS FOR ANTI-COUNTERFEITING, BRAND PROTECTION AND QUALITY
ASSURANCE
Marketing activities have generated a number of prospective partnerships in the
healthcare industry, both for field-testing with major medical institutions, and
for product distribution by existing vendors to some of the largest hospital
chains in the United States. Such positive response reinforces our primary
business vision of marketing end units as well as utilizing partners to
penetrate existing healthcare markets with CDEX technology.
We also plan on developing and marketing products to defend high-end consumer
products where reputation and product distinction are critical components to
driving sales revenue (e.g. high price distilled spirits and cosmetics). We have
received positive feedback from the demonstrations conducted for large
distillers and regional taxing authorities.
24
We will continue to explore new markets and applications for our existing and
developing technologies as a critical part of identifying partners and
opportunities for revenue generation.
INTELLECTUAL PROPERTY RIGHTS
We rely on non-disclosure agreements, patent, trade secret and copyright laws to
protect the intellectual property that we have and plan to develop, but such
laws may provide insufficient protection. Moreover, other companies may develop
products that are similar or superior to CDEX's or may copy or otherwise obtain
and use our proprietary information without authorization. In addition, certain
of our know-how and proprietary technology may not be patentable. Policing
unauthorized use of CDEX's proprietary and other intellectual property rights
could entail significant expense and could be difficult or impossible. In
addition, third parties may bring claims of copyright or trademark infringement
against CDEX or claim that certain of our processes or features violate a
patent, that we have misappropriated their technology or formats or otherwise
infringed upon their proprietary rights. Any claims of infringement, with or
without merit, could be time consuming to defend, result in costly litigation,
divert management attention, and/or require CDEX to enter into costly royalty or
licensing arrangements to prevent further infringement, any of which could cause
a decrease in our profits.
We currently have the following patent applications pending:
1. "System and Method for Adapting a Software Control In an Operating
Environment," Application No. 10/268,678;
2. "Methods and Apparatus for Molecular Species Detection, Inspection and
Classification Using Ultraviolet Fluorescence," Application No. 10/717,921;
3. " System and Methods For the Detection and Identification of Chemical
Substances," Application No. 10/784,889; and
4. "Improved Method and Apparatus for Molecular Species Detection, Inspection
and Classification Using Ultraviolet Fluorescence," Application No. 60/485,116
(This application is currently provisional and must be converted to a formal
application before a patent can be granted).
We have also filed corresponding international application for items 1 - 3, and
will file the other applications on schedule.
Our competitive position also depends upon unpatented trade secrets. Trade
secrets are difficult to protect. Our competitors may independently develop
proprietary information and techniques that are substantially equivalent to ours
or otherwise gain access to our trade secrets, such as through unauthorized or
inadvertent disclosure of our trade secrets.
ASSET PURCHASE AGREEMENT
To acquire the chemical detection technologies that assist in supporting our
products, we entered into an Asset Purchase Agreement, effective as of August 4,
2001, with Loch Harris, Inc., a Nevada corporation, and Chem Tech, Inc., a
subsidiary of Loch, jointly and severally, as the selling party. (In this
discussion, we refer to both companies collectively as "Loch.") Pursuant to the
Asset Purchase Agreement, among other things, CDEX acquired the intellectual
property rights to Loch's chemical detection technologies and technical
processes in exchange for shares of CDEX's common stock. The chemical detection
technology is being applied to CDEX's detection products for identification of
substances of concern and our validation products for anti-counterfeiting, brand
protection and
25
quality assurance products. The Purchase Agreement included assets related to
the prior development work being conducted, including tools and research
equipment, laboratory and engineering equipment and materials, and certain
office equipment. Other assets covered in the Asset Purchase Agreement included
intellectual property rights to other technologies for which CDEX has yet to
pursue product development and markets, including nanometrology. (Nano-metrology
is the measurement of displacements at the nanometer level via a small laser
diode, optics and electronics.) Applications include the semiconductor industry
for measuring wafers during manufacturing, and very small mirror displacements
required for astronomy). Since purchasing the chemical detection technologies,
CDEX scientists and engineers have developed them into a number of areas,
including process improvements, refinements in optics and energy sources,
software design and engineering.
The Asset Purchase Agreement was amended as of March 1, 2002 by an Agreement
Regarding Assumption of Liability pursuant to which, among other things, we
assumed certain obligations of Loch and released Loch from certain obligations
under the Asset Purchase Agreement and, in consideration thereof, Loch
transferred back to CDEX 200,000 of the CDEX shares held by Loch. These
obligations included certain out of pocket expenses and professional fees and
expenses for legal and accounting services. As a result of the amendment, the
net consideration paid by CDEX under the Asset Purchase Agreement for the
purchased assets was 13,865,000 shares of our common stock after giving effect
to a subsequent 1 for 5 reverse split of such common stock.
The Asset Purchase Agreement required that 1,665,000 of such shares be
delivered, at the direction of Loch, to certain persons and entities in
discharge of certain loans and other obligations of Loch so as to release all
liens and other claims of rights encumbering the assets purchased. Distributees
of these shares included Mark E. Baker, who received 500,000 shares, and Coto,
LLC, as designee of Rodney A. Boone, who received 320,000 shares. Both of
Messrs. Boone and Baker were principals of Loch. Simultaneously with the closing
under the Asset Purchase Agreement, CDEX also entered into now terminated
Service Agreements with each of Messrs. Boone and Baker pursuant to which we
engaged them to assist in the transition of the purchased assets from Loch to
CDEX. As compensation under these agreements, Baker received 100,000 shares, and
Boone 150,000 shares, of CDEX common stock. Both agreements have now been
terminated.
All shares issued to Loch under the Asset Purchase Agreement were issued as
"restricted shares." The Asset Purchase Agreement required that Loch distribute
9,600,000 of these shares to its shareholders as soon as practical. Loch
completed this distribution in October 2003 upon the order of the District Court
in Travis County, Texas in settlement of a litigation brought by Loch's
shareholders against its officers and directors. Approximately 37,000 Loch
shareholders are entitled to receive CDEX shares under the settlement.
Shareholders of Loch Harris at the time of distribution included Malcolm Philips
and Timothy Shriver, two of our executive officers, as well as Dr. Wade Poteet,
our significant employee. The settlement order also required Loch to distribute
additional CDEX shares it received from the asset sale, and shares issued to
Messrs. Boone and Baker were also ordered surrendered to Loch's treasury and,
eventually, distributed as well. Most of these additional shares were
transferred to third parties (primarily attorneys and other professsionals) for
services in connection with the litigation. All of the shares distributed
pursuant to the order are subject to the exemption provided by Section 3(a)(10)
of the Securities Act of 1933, as amended. Accordingly, these shares are now
freely tradable.
GOVERNMENT REGULATION
The products developed may be subject to various governmental regulations and
controls, including that associated with security products in airports, handling
of explosive materials and related to x-ray energy. The storage and handling of
certain explosive material is subject to licensure. With regard to handling such
explosive material, we retain the services of a licensed contractor to
transport/store explosive material for testing. Following such testing, the
contractor returns the explosive material to a licensed storage facility. It is
possible that government agencies may develop additional regulations that impact
our initial and future products.
The U.S. Food and Drug Administration (FDA) has jurisdiction to regulate
computer products and software as medical devices if they are intended for use
in the diagnosis, cure, mitigation, treatment or prevention of disease. We have
preliminarily determined that our initial products are not medical devices.
However, further investigation or a change in FDA policy could subject us to
regulation. Noncompliance with applicable FDA requirements can result in such
things as fines, injunctions, and suspension of production.
Except as specifically mentioned above, we are not currently aware of any other
federal, state or local laws that would have a significant adverse impact on
development and distribution of our initial products. However, various federal,
state or local agencies may propose new legislation pertaining to the use of
potentially dangerous materials, to the discharge of materials into the
environment, to the manufacturing or marketing of chemical validation products
(or designation of one or more of our chemical validation products as medical
devices) and/or otherwise potentially relating to the our business which may
require us to allocate a portion of our operating budget to ensure full
compliance with such regulations.
26
LEGAL PROCEEDINGS
CDEX is not currently involved in any legal proceedings nor do we have knowledge
of any threatened litigation.
PROPERTIES
CDEX has subleased laboratory space from Dynamic Management Resolutions which
leases from Butterfield Center Limited Partnership at 4565 South Palo Verde,
Suite 213, Tucson, AZ. The terms of this sublease are approximately $.80 per
square foot per month ($1,350 per month) on a yearly basis. This facility
consists of 1,800 square feet. Effective May 1, 2004, we moved to a larger
facility in the same office complex, offering more lab space and offices. Our
address at the new facility is 4555 South Palo Verde, Suite 125. The cost will
remain the same as our current rent until October 2004 at which time we expect a
modest increase.
Most of our administrative offices are located in Rockville, Maryland where we
lease facilities from Source Office Suites. The terms of our lease agreement for
these facilities are $175 per month for conference room use for meetings in the
Washington DC area, phone answering services and certain mail services. The
facility provides space on an as needed basis on a month-to-month agreement.
CDEX anticipates opening an east coast facility to house certain technical
development functions as well as administrative offices. These activities will
mostly be related to supporting deployed systems and modifying existing systems
for later versions.
EMPLOYEES
We employ a full-time staff of eleven employees and one consultant, and a
part-time staff of one lab technician and one accountant. We also retain part
time or as-needed consultants at any given time to provide expertise in the
areas of medicine, marketing, fundraising, explosives, pharmaceuticals and
administration. Of our full-time employees, three are executives, two are in
marketing, and the rest perform research and development activities. Our
full-time consultant serves as a Software Engineer. In addition to these core
personnel, we hire additional consultants from time to time. We believe our
employees and consultants appreciate the start-up nature of our business, and
have contractually agreed to accept a combination of stock and cash as
compensation as long as needed by CDEX. (See Executive Compensation appearing
elsewhere in this prospectus). Our employees currently are not represented by a
collective bargaining agreement, and we believe that our relations with our
employees and consultants are good.
27
MANAGEMENT
The following table sets forth information regarding our executive officers and
directors:
NAME AGE POSITION
- ---- --- --------
Malcolm H. Philips Jr 58 CEO/President/Chairman of the Board of
Directors
Timothy Shriver 53 Sr. Vice President of Technical Operations
Michael Mergenthaler 39 Vice President of Business Operations
(Principal Accounting and Financial Officer)
George Dials 58 Director
Dr. BD Liaw 66 Director
The following is a summary of the business experience of each of our executive
officers and directors:
Malcolm Philips has been our Chief Executive Officer, President and Chairman
since CDEX's inception in July 2001. In the three months prior to his joining
CDEX, Mr. Philips was employed by Dynamic Management Resolutions LLC, a Delaware
limited liability company providing consulting services where, as a consultant,
he served as Chief Operating Officer and President of CDEX, Inc., a Delaware
corporation. CDEX (Delaware) was formed to purchase technology from Loch Harris,
Inc. (which technology is now owned by us). CDEX (Delaware) was dissolved after
it became apparent that it would be unable to purchase the technology. From 1978
to February 2001, Mr. Philips practiced law with the same group of attorneys
although with various firms. In September 1990, through a merger of several law
firms, he became a partner in Winston & Strawn, one of the largest law firms in
the United States, where, until February 2001, he was, among other things, a
strategic advisor to senior executives of major corporations. In addition to his
J.D. from Georgetown University Law School (1978), Mr. Philips has a B.S. Degree
with a focus in engineering from US Military Academy located at West Point
(1967) and a Master of Engineering Degree from Iowa State University (1971).
Timothy Shriver has served as our Senior Vice President of Technical Operations
since July 2001. From 1999 until 2001 Mr. Shriver provided outside consulting
services to Ontario Hydro-Generation and CAMOCO, a large uranium mining and
processing company. Mr. Shriver's consulting focused on overall business
practices with particular emphasis on the implementation of quality assurance
programs and evaluation of management capabilities and practices. From 1997 to
1999, Mr. Shriver served as Director of Performance Assurance for Ontario
Hydro-Generation (OPG), where he developed and managed the implementation of the
overall Quality Program at OPG's three CANDU sites and OPG auxiliary sites
supporting the Nuclear Program (at that time, the largest in North America). His
activities also included responsibility for the development and implementation
of an integrated Corrective Action Program, a performance based Audit and
Assessment program and the development of a process oriented Quality Assurance
Manual including the establishment and maintenance of the required interface
with the federal regulator to obtain approval. Between OPG and CDEX, Mr. Shriver
consulted for other utilities' quality assurance programs.
Michael Mergenthaler has served as our Vice President of Technical Business
Operations since December 2002. From July 2001 to December 2002, he served as
our Director of Business Development. Mr. Mergenthaler has a background in the
telecommunications industry, with experience in hard-wire, wireless and
satellite networks. From December 1999 to February 2001, Mr. Mergenthaler served
as Director of Planning and Scheduling for CAIS Internet, where, using third
party contractors, he managed deployment of high-speed internet Local Area
Networks (LANS) to the hospitality industry and multi-family dwellings. CAIS
Internet deployed LANS in hotels and apartment complexes to allow broadband
internet access to CAIS's high-speed network via its web portal, earning revenue
through access charges as well as advertisements. From June 1997 to December
1999, Mr. Mergenthaler was Manager, Business Operations for Orbcomm Global where
he managed fielding/deployment of a back office billing and provisioning system
to partners/licensees of a global satellite network provider. Licensees ranged
from start-up companies to the largest telecommunications companies in the
world. Mr. Mergenthaler is related through marriage to Mr. Philips.
Mr. Dials has been a director of CDEX since July 2001. Mr. Dials is currently
the Chief Operating Officer of Waste
28
Control Specialists, a chemical waste repository. From July 2002 until May 2003,
Mr. Dials was President and CEO of LES, LLC a company seeking a license to build
a nuclear fuel enrichment facility. From February 2001 to June 2002, Mr. Dials
served as Senior Vice President of Consulting Services for Science and
Engineering Associates responsible for its Consulting Services line of business,
where he provided executive level direction in corporate mergers and
acquisitions in the consulting area. Mr. Dials managed the engineering, and
scientific studies of Yucca Mountain as a potential geologic repository for
spent nuclear fuel and high-level radioactive waste. Responsibilities include
scheduling and cost performance, technical and administrative performance,
strategic operations plan development, and resource allocation for a $250
million project. Mr. Dials received a B.S. in Engineering in 1967 from West
Point and Masters Degrees in Political Science and Nuclear Engineering from the
Massachusetts Institute of Technology. He served in the U.S. Army for 10 years,
and was awarded the Silver Star and Bronze Star for Valor.
Dr. Liaw has served as a director of CDEX since October 2001. Since January
2003, he has also served as Managing Director - Energy Services for Dynamic
Resolutions LLC, performing consulting services to international utilities in
Asia. Dynamic Resolutions is not affiliated with CDEX. Mr. Liaw and Mr. Philips
are sole members in Dynamic Resolutions LLC. From July 1995 to October 2002, he
served as an Advisor and from September 1996 to March 2001, as an Executive
Director, to Taiwan Power Co., an electrical utility. Dr. Liaw served for over
20 years at the U.S. Nuclear Regulatory Commission and its predecessor agency,
the Atomic Energy Commission. His work related to the high-level nuclear waste
repository and low-level waste projects. In 1986 and 1987, he was invited by
China and Taiwan, respectively, to visit Mainland China and Taiwan to assist in
establishing their nuclear safety regulatory programs. In 1985 thru 1990, Dr.
Liaw managed the NRC's regulatory oversight of the Tennessee Valley Authority's
(TVA) nuclear program, and was instrumental in bring TVA's nuclear program back
to full regulatory compliance. Dr. Liaw represented the NRC in many meetings,
conferences and symposiums in the United States and around the world on a wide
range of issues. In 1994, Dr. Liaw accepted an invitation from the government of
Taiwan to visit and help resolve some legislators' concerns regarding energy
issues facing the country. Subsequently in 1995, Dr. Liaw accepted a request to
return to Taiwan as an advisor to the Ministry of Economic Affairs. Dr. Liaw
also served in a number of positions over the past six years, including as an
advisor to the Industrial Technology Research Institute.
SIGNIFICANT EMPLOYEE
In addition to our executive officers and directors, Dr. Wade Poteet is a
significant employee of CDEX. The following sets forth certain information
regarding Dr. Poteet's background and experience:
Dr. Poteet received his Ph. D. in 1970 in Experimental Solid State Physics from
Virginia Polytechnic Institute (VPI) (Thesis topic: Nuclear Quadrupole Resonance
in Superconductors). His M.S. in Physics is also from VPI, in 1968 (Thesis
topic: Nuclear Magnetic Resonance in Superconductors). He has focused his
research in the area of advanced instrumentation in optics, electro-optics and
detection technology.
For the past 30 years, Dr. Poteet has held Senior Management positions in small
entrepreneurial engineering firms. He has served as our Principal Scientist
since July 2001. From July 2001 until January 2003, Dr. Poteet was a member, and
served as Principal Scientist, of Dynamic Management Resolutions LLC, providing
scientific, management and engineering services. DYNAMIC MANAGEMENT RESOLUTIONS
WAS A CONSULTING COMPANY WHICH PROVIDED TECHNICAL AND MANAGEMENT SERVICES ON A
CONTRACT BASIS TO CDEX AND CDEX DELAWARE. From May 1999 to July 2001, Dr. Poteet
served as President/Principal Scientist for CP Systems, Inc. where he directed
contract research in remote sensing in the x-ray and ultraviolet regions,
including landmine, anti-terrorist and drug detection programs, and provided
research and development for nanometrology technologies. Nanometrology measures
displacements at the nanometer level via a small laser diode, optics and
electronics. Applications include the semiconductor industry for measuring
wafers during manufacturing, and very small mirror displacements required for
astronomy. Dr. Poteet's role as Vice President for CP Systems was making
corporate decisions regarding new business opportunities to pursue, proposal and
contract priorities, contract negotiation (both business and science aspects),
and program management for contract fulfillment, including schedule reporting
budget tracking.
From 1971 to May 1999, Dr. Poteet served as Vice President/Principal Scientist
for System Specialists, Inc., where he directed all research and development,
including NASA airborne projects and advanced instruments for commercial and
government programs. These programs include SDIO (Brilliant Eyes, "IRX"), Air
Force Focal Plane Array programs, and programs involving commercial infrared
cameras. Dr. Poteet designed and constructed a color Schlieren
proof-of-principle experiment for use in microgravity fluid flow research. The
system was successfully flown aboard the NASA KC-135 low gravity simulation
aircraft and is now in Phase 2 instrument
29
development. Dr. Poteet designed, developed, and constructed ultralow-noise
preamplifiers with cooled electronics for a family of infrared detectors and
focal plane arrays. He also provided design services to commercial firms for
re-imaging optics in the visible and infrared regions, including cryogenic
design and analysis and complete system evaluation. From May 1999 to July 2001,
Dr. Poteet's served as Vice President for CP Systems, where tasks included
corporate decision making on new business opportunities to pursue, proposal and
contract priorities, contract negotiation (both business and science aspects),
and program management for contract fulfillment, including schedule reporting
budget tracking.
Dr. Poteet's role as Vice President for CP System Specialists included corporate
decision making on new business opportunities, proposal and contract priorities,
contract negotiation (both business and science aspects), and program management
for contract fulfillment, including schedule reporting budget tracking.
Dr. Poteet, together with Malcolm Philips, Tim Shriver and Michael Mergenthaler,
are full time resources to CDEX. Dr. Poteet's role is one of research and to
associate the results of that research into potential applications and products;
Mr. Philips oversees all of our operations; Mr. Shriver is responsible for all
development of technologies and products; Mr. Mergenthaler focuses on
distribution of those products.
30
EXECUTIVE COMPENSATION
COMPENSATION OF EXECUTIVE OFFICERS
The following table sets forth information regarding the remuneration of our
executive officers:
==============================================================================================================================
LONG TERM COMPENSATION
- ------------------------------------------------------------------------------------------------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
- ------------------------------------------------------------------------------------------------------------------------------
RESTRICTED
NAME AND PRINCIPAL CASH OTHER ANNUAL STOCK ALL OTHER
POSITION YEAR SALARY(1) BONUS COMPENSATION AWARDS COMPENSATION
- ------------------------------------------------------------------------------------------------------------------------------
Malcolm Philips, 2003 $96,000 -- $206,046 (2) -- --
CEO, Chairman of the
Board of 2002 $67,500 100,000 $259,500 -- --
Directors(1) Class B
2001 $0 -- $100,000 690,000
shares of --
common stock
- ------------------------------------------------------------------------------------------------------------------------------
Timothy D. Shriver, 2003 $96,000 -- $155,789 (3) -- --
Sr. VP Technical
Operations -- --
2002 $75,000 60,000 $167,497
Class A;
40,000
Class B
2001 $0 -- $83,332 210,000 --
shares of
common stock
- ------------------------------------------------------------------------------------------------------------------------------
Michael Mergenthaler 2003 $96,000 -- $128,161 (4) -- --
VP Business Operations --
2002 $75,000 50,000 $138,480 --
Class A;
25,000
Class B
2001 $22,500 -- $52,460 120,000 --
shares of
common stock
- ------------------------------------------------------------------------------------------------------------------------------
(1) Prior to January 1, 2002, Messrs. Philips, Shriver and Mergenthaler worked
for CDEX on a consulting basis through Dynamic Management Resolutions LLC
pursuant to consulting agreements which were on substantially similar terms to
those of their current employment agreements. Pursuant to the terms of their
Executive Services Agreements and based upon CDEX's financial condition, Messrs.
Philips, Shriver and Mergenthaler have each foregone all or a portion of his
stated salary, and is paid instead in the form of cash and shares of common
stock. All share amounts are subject to a vesting schedule with a risk of
forfeiture in the event the employee does not remain with CDEX for the required
amount of time.
(2) Mr. Philips' unpaid cash compensation from inception until October 31, 2003
totaled $565,546, for which he received a total of 826,687 shares of Class A
Common stock.
(3) Mr. Shriver's unpaid cash compensation from inception until October 31, 2003
totaled $406,618, for which he received a total of 586,962 shares of Class A
Common stock.
(4) Mr. Mergenthaler's unpaid cash compensation from inception until October 31,
2003 totaled $319,101, for which he received a total of 480,845 shares of Class
A Common stock
31
REMUNERATION OF KEY EMPLOYEES WHO ARE HIGHLY COMPENSATED
In addition to our executive officers and directors, we have one employee whose
contribution is uniquely important to our business and is highly compensated.
Dr. Wade Poteet is compensated in the following amounts:
===========================================================================================================================
LONG TERM COMPENSATION
- ------------------------------------------------------------------------------------------------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
- ------------------------------------------------------------------------------------------------------------------------------
RESTRICTED
NAME AND PRINCIPAL OTHER ANNUAL STOCK ALL OTHER
POSITION YEAR SALARY(1) BONUS COMPENSATION AWARDS COMPENSATION
- ------------------------------------------------------------------------------------------------------------------------------
Dr. Wade Poteet 2003 $96,000 -- $123,705(2) -- --
2002 $75,000 40,000 $170,540 -- --
Class A
20,000 140,000 --
2001 $22,500 Class B $81,370 shares of
-- common stock
- ------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to the terms of his Employment Agreement and based upon CDEX's
financial condition Dr. Poteet has foregone all or a portion of his stated
salary, and instead is compensated in the form of cash and in shares of common
stock. All share amounts are subject to a vesting schedule with a risk of
forfeiture in the event the employee does not remain with CDEX for the required
amount of time.
(2) Dr. Poteet's unpaid cash compensation from inception until October 31, 2003
totaled $375,615, for which he received a total of 546,388 shares of Class A
Common stock.
STOCK INCENTIVE PLANS
2002 STOCK INCENTIVE PLAN
On May 27, 2002, our board of directors adopted the 2002 Stock Incentive Plan,
under which stock options and restricted stock may be granted to such of our
officers, directors, employees or other persons providing services to CDEX as
our board of directors, or a committee designated by them for this purpose,
selects. The plan was approved by our stockholders on July 1, 2002.
Stock options granted under the plan may be nonqualified stock options or
incentive stock options, as provided in the plan. Incentive stock options are to
be issued in accordance with Section 422 of the Internal Revenue Code of 1986,
as amended. As such, they may only be issued to employees of CDEX or any
subsidiary of CDEX, and must have an exercise price of no less than 110% of fair
market value of the common stock on the date of the grant. The aggregate fair
market value of the underlying shares cannot exceed $100,000 during any calendar
year. Also, incentive stock options must expire no later than five years from
the date of grant. Non-incentive options are not subject to the restrictions
contained in Section 422, except that pursuant to the plan, such options cannot
be exercisable at less than 85% of fair market value and must expire no later
than ten years from the date of grant. The options are non-transferable and may
not be assigned except that non-incentive options may, in certain cases be
assigned to family members of the grantee. Upon termination of the employment
(other than for cause) of a grantee of options under this plan, the grantee
shall have 60 days following such termination, or one year if such termination
results from the grantee's death or disability (as defined in the plan), to
exercise the vested portion of any option. Holders of options under the plan
have no voting or other rights of shareholders except and to the extent that
they exercise their options and are issued the underlying shares. Options under
the plan may be exercised by the issuance of a promissory note from the grantee,
or on a cashless basis by the grantee surrendering a portion of the shares
issuable thereunder, as payment of the exercise price in lieu of cash.
Restricted stock granted under this plan may be issued subject to any
restrictions set by our board of directors in its
32
discretion except that the vesting restrictions for restricted stock granted to
individuals who are not officers, directors or consultants of CDEX shall lapse
no less rapidly than the rate of 20% per year for each of the first five years
from the grant date. Generally, unless otherwise provided by the board of
directors with respect to a particular grant of restricted stock, holders of
restricted stock have the right to vote and receive dividends on their shares,
including shares not yet vested. Also, unless otherwise so provided, any
unvested shares are deemed forfeited by the grantee upon termination of such
grantee's service with CDEX.
During the year ended October 31, 2003, we issued 2,920,649 shares of
restricted common stock under this plan, to certain of our officers, directors
and employees, which is subject to forfeiture in accordance with the vesting
schedules set forth in the granting agreements. No options are currently
outstanding under this plan. Shares issued pursuant to the plan, whether
underlying options or as restricted stock, generally may not be sold or
transferred without the grantee first offering CDEX a right of first refusal to
purchase the shares sought to be sold.
2003 STOCK INCENTIVE PLAN
On July 1, 2003, our shareholders adopted the 2003 Stock Incentive Plan, which
has substantially the same terms as the 2002 Stock Incentive Plan. We have
reserved 7,000,000 shares in the aggregate for issuance under both the 2002 and
2003 plans.
We have issued restricted stock under this plan to certain of our officers,
directors and employees which is subject to forfeiture in accordance with the
vesting schedules set forth in the granting agreements. During the year ended
October 31, 2003, we issued 2,666,752 shares of restricted common stock under
this plan. No options are currently outstanding under this plan.
EMPLOYMENT AGREEMENTS
Effective January 1, 2002, we entered into employment agreements with each of
our executive officers. The agreements with Malcolm Philips, Michael
Mergenthaler and Timothy Shriver all continue for an indefinite period unless
terminated by CDEX for "cause," or by the employee for "good reason" (as such
terms are defined in the agreements), or upon two weeks prior written notice by
either party to the other. The agreements provide for salaries based on annual
amounts of $300,000 for Mr. Philips, $210,000 for Mr. Mergenthaler and $250,000
for Mr. Shriver, which are subject to review on an annual basis. The salary
shall be payable in equal monthly installments, unless otherwise required by
applicable state law and based on CDEX's economic posture could be paid in cash
and/or stock, at CDEX's option. Each agreement provides for a minimum monthly
cash payment to the employee of $7,500 for Messrs. Shriver and Mergenthaler and
$3,000 for Philips. CDEX has availed itself of this option for the past three
fiscal years as reflected under "Compensation of Executive Officers." Each of
these agreements provides for the forfeiture of restricted stock granted to the
employee in the event of the employee's termination before the stock is fully
vested. Under the agreements, each employee is entitled to a severance package
in the event of termination by CDEX other than for "cause" or by the employee
for "good reason." In each case, "good reason" includes a change in management
of CDEX.
All of these employment agreements were amended on January 1, 2003 to (a)
increase the intended minimum monthly cash payment to the employee to $8,000,
(b) permit CDEX to pay the entire salary in common stock if paying cash is not
in the best interest of the Company and (c) adjust the severance provisions to
reflect that (i) if termination occurred before January 1, 2004, payment of an
amount equal to three years of the then current annual salary and CDEX common
stock equal to three times the amount of initial stock grant provided to the
employee when he started his employment; (ii) if termination occurs after
January 1, 2004 but before January 1, 2005, payment of an amount equal to two
years of the then current annual salary and CDEX common stock equal to two times
the amount of initial stock granted to the employee; or (iii) if termination
occurs on or after January 1, 2005 but before January 1, 2006, payment of an
amount equal to the then current annual salary and CDEX common stock equal to
the amount of initial stock granted employee.
Effective January 1, 2003, we entered into an Employment Agreement with Dr. Wade
Poteet. Except for Dr. Poteet's compensation, this agreement provides for
substantially the same general terms and conditions as the employment agreements
set forth above with an annual base salary of $210,000. The agreement is
generally consistent with the agreements of all employees, providing a
compensation package of cash and stock, along with an initial stock grant with
forfeiture
33
provisions should the employee resign from CDEX prior to a certain date.
SELLING SHAREHOLDERS
The following list of selling shareholders includes (1) the number of shares of
common stock currently owned by each selling shareholder, (2) the number and
percentage of shares being offered for resale hereby by each selling
shareholder, and (3) the number and percentage of shares of common stock to be
held by each selling shareholder after the completion of this offering. The
registration of the shares does not necessarily mean that the selling
shareholders will sell all or any of the shares.
- ------------------------------------------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED PRIOR NUMBER OF SHARES BENEFICIALLY OWNED
NAME TO OFFERING SHARES OFFERED AFTER OFFERING
- ------------------------------------------------------------------------------------------------------------------------------
NUMBER PERCENT NUMBER PERCENT
- ------------------------------------------------------------------------------------------------------------------------------
Shawn Aquiar 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Aspen Creek Farms, LLC 200,000 * 200,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
David Audsley 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Robert Creighton 10,000 * 10,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Dependable Ranch Lenders LLC(2) 330,770 1.47% 330,770 0 --
- ------------------------------------------------------------------------------------------------------------------------------
DICUT Inc. 30,000 * 30,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Irene Dobbs 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Peter Dobbs 74,000 * 50,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Louis A. Domin Living Trust 50,000 * 50,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
John C. Fisher 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Steve Frankiewicz 78,155 * 78,155 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Bruce Gourlay and Linda H. Mackey 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Dawn Guimond 180,000 * 180,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Travis Hoffman 15,000 * 15,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Randell Jeter 10,000 * 10,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Thelma Johnson 185,246 * 185,246 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Bruce Kison 35,000 * 35,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Jeff Kosanke 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
William R. Lindner 33,334 * 33,334 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Ben Lowell(1) 20,000 * 20,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Doug Lowell 1,000 * 1,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Jeff Lowell 16,667 * 16,667 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Peter R. Mania 65,000 * 45,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Kelly Morgan 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Motta Family Revocable
Living Trust 50,000 * 50,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Motta Investment Co. Ltd. 250,000 1.1% 250,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Scott Newby 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Gary M . Pleggenkuhle 40,000 * 40,000 0 --
34
- ------------------------------------------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED PRIOR NUMBER OF SHARES BENEFICIALLY OWNED
NAME TO OFFERING SHARES OFFERED AFTER OFFERING
- ------------------------------------------------------------------------------------------------------------------------------
NUMBER PERCENT NUMBER PERCENT
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
William Prain 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Patrick Purgatorio 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Renka, Inc. 400,000 1.7% 400,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Amista Salcido 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Brandi Shriver 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Timothy Shriver Jr 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Van L. Shumway, Jr. 16,667 * 16,667 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Christopher Sintetos 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Gregory K. Smith(2) 35,000 * 35,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Mari Stassi 77,000 * 77,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
John W. Steele 25,000 * 25,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Brytan Stevens(3) 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Charlene Stevens 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Charles Stevens 40,000 * 40,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Charlotte Stevens(3) 5,000 * 5,000 0 --
- ------------------------------------------------------------------------------------------------------------------------------
Robert Stewart 106,667 * 106,667 0 --
- ------------------------------------------------------------------------------------------------------------------------------
*Less than one percent.
(1) Includes 10,000 shares held jointly with Mr. Lowell's wife, Maxine Lowell.
(2) Gregory K. Smith controls Dependable Ranch Lenders.
(3) Charlotte Stevens is the mother of Brytan Stevens.
35
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL HOLDERS AND MANAGEMENT
The following table sets forth the stock ownership of: (i) each person known by
us, as of the date of this prospectus, to be the beneficial owner of five
percent (5%) or more of our common stock, (ii) each executive officer and
director, individually, and (iii) our executive officers and directors as a
group. Each person has sole voting and investment power with respect to the
shares shown, unless otherwise indicated.
- --------------------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF AMOUNT OF BENEFICIAL PERCENT
BENEFICIAL OWNER (1) POSITION TITLE OF CLASS OWNERSHIP OF CLASS
- --------------------------------------------------------------------------------------------------------------------------------
Malcolm H. Philips Director; Executive Officer Class A Common 1,860,069(2)(4) 7.8%
Class B Common 100,000(5) 46.0%
- --------------------------------------------------------------------------------------------------------------------------------
George Dials Director Class A Common 95,000(3)(4) 0.41%
Class B Common
- --------------------------------------------------------------------------------------------------------------------------------
Dr. BD Liaw Director Class A Common 90,000(3)(4) 0.38%
Class B Common
- --------------------------------------------------------------------------------------------------------------------------------
Timothy Shriver Executive Officer Class A Common 1,086,145(4) 4.57%
Class B Common 40,000(5) 18.2%
- --------------------------------------------------------------------------------------------------------------------------------
Michael Mergenthaler Executive Officer Class A Common 829,882(4) 3.55%
Class B Common 25,000(5) 11.4%
- --------------------------------------------------------------------------------------------------------------------------------
Dr. Wade Poteet Significant Employee Class A Common 892,627(4) 3.78%
Class B Common 20,000(5) 9.1%
- --------------------------------------------------------------------------------------------------------------------------------
Shares of all executives, Class A Common 4,771,951(3) 20.4%
significant employees and
directors as a group (6 persons) Class B Common 185,000(5) 84.1%
- --------------------------------------------------------------------------------------------------------------------------------
(1) The address for each of the listed persons is c/o CDEX Inc., 1700 Rockville
Pike, Suite 400, Rockville, Maryland 20852.
(2) FGW, LLC, as designee of Mr. Malcolm Philips Jr., was provided 690,000
shares under the terms of Mr. Philip's Executive Services Agreement with CDEX
pursuant to which, among other things, Mr. Philips serves as our President,
Chairman of the Board and CEO. FGW, LLC is a Delaware limited liability company
of which Mr. Philips is the sole member.
(3) Each of Mr. George Dials and Dr. BD Liaw, as a director, was provided shares
of common stock under the terms of such director's Services Agreement with CDEX
as well as a stock bonus in 2002.
(4) Share amounts for Messrs. Philips, Shriver and Poteet include 57,860, 16,556
and 7,356 shares of common stock, respectively, which they (alone or together
with their respective affiliates) have a right to acquire in exchange for shares
of Loch Harris, Inc. as part of a settlement agreement. The stock initially
granted to each of the above-named directors, executive officers and key
employee are subject to a vesting schedule and become fully vested on the
following dates: Mr. Philips, Mr. Shriver, Mr. Mergenthaler and Mr. Poteet
- --July 24, 2004; Mr. Dials--August 2, 2005; Dr. Liaw--September 30, 2005. Upon
termination of employment/provision of service, CDEX has the option to purchase
any vested shares of the employee/service provider at fair market value. CDEX
has the option to require that any nonvested shares at termination be forfeited.
By virtue of their share ownership, these individuals, acting as a group,
currently control the election of our board of directors and other affairs of
CDEX.
(5) Until December 11, 2006, holders of shares of Class B Common Stock are
entitled to elect a majority of the members of CDEX's board of directors, while
the holders of the Class A Common Stock have the right to elect the
36
remainder of the directors. Thereafter, holders of Class A and Class B shares
will be entitled to one vote per share on any matter submitted to holders of
common stock.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Our common stock has traded, to a limited extent, on the over-the-counter
gray market beginning May 21, 2004 under the symbol "CEXI.PK." The high and low
bid prices of our common stock to date in this market were $2.75 and $0.01.
Trading in our shares in this market has occurred without any instigation or
involvement of our management, and we do not encourage or sanction it. We did
not choose the symbol under which these shares are traded nor do we intend to
keep this symbol going forward. Prior to the date of this prospectus, CDEX was
not a reporting company, and virtually no public information regarding our
business, operations or financial condition was available other than preliminary
versions of this prospectus and our registration statement of which this
prospectus forms a part. The shares traded in this gray market are not being
offered by CDEX or pursuant to any disclosure provided by us.
37
DESCRIPTION OF SECURITIES
Pursuant to CDEX's Articles of Incorporation, as amended, we are authorized to
issue 33,500,000 shares of Class A Common Stock, par value $0.005 per share,
500,000 shares of Class B Common Stock, par value $0.005 per share and 6,000,000
shares of Preferred Stock, par value $0.005 per share. Below is a description of
CDEX's outstanding shares of Class A Common Stock shares of which are being
offered in this prospectus.
CLASS A COMMON STOCK
Each holder of our Class A Common Stock is entitled to one vote for each share
held of record on all matters including the election of directors. However,
until December 11, 2006, the holders of shares of Class B Common Stock are, as a
class, entitled to vote to elect a majority of our directors. Currently, our
executive officers hold a majority of the Class B common share. Until that time,
holders of shares of Class A Common Stock are, as a class, entitled to vote to
elect the remainder of our directors. Following that, holders of Class A Common
Stock and Class B Common Stock shall be entitled to one vote per share on the
election of directors. Holders of our Class A Common Stock have no preemptive,
subscription, conversion, or redemption rights. Upon liquidation, dissolution or
winding-up, the holders of Class A Common Stock are entitled to receive our net
assets pro rata subject to the rights and preferences of any other shareholder,
including preferred shareholders. Each holder of Class A Common Stock is
entitled to receive ratably any dividends declared by our board of directors out
of funds legally available for the payment of dividends. We have not paid any
dividends on our Common Stock and do not contemplate doing so in the foreseeable
future. We anticipate that any earnings generated from operations will be used
to finance our growth. As of May 25, 2004, there were 1252 record holders of
Class A Common Stock and 24,296,534 shares of Class A Common Stock outstanding.
TRANSFER AGENT
The Nevada Agency and Trust Company, 50 Liberty Street, Suite 880, Reno Nevada
89501, acts as CDEX's transfer agent and registrar.
PLAN OF DISTRIBUTION
Shareholders selling under this prospectus must offer or sell our common stock
at a fixed price of $0.75 per share until such time as our shares are traded on
the OTC Bulletin Board or other specified market. This price is based solely
upon the terms of recent issuances of our securities, in negotiated
transactions, and does not reflect the book value or any other specific
valuation of our common stock. Once traded on a market or securities exchange
the offering price of our common stock will be determined by market factors.
Upon listing of our common stock on the OTC Bulletin Board, shareholders selling
under this prospectus may, from time to time, sell any or all of their shares of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling shareholders may use any one or more of the
following methods when selling shares:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the applicable
exchange;
- privately negotiated transactions;
- short sales;
- broker-dealers may agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended, if available, rather than under this
prospectus.
38
The selling shareholders may also engage in short sales against the box, puts
and calls and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades. The
selling shareholders may pledge their shares to their brokers under the margin
provisions of customer agreements. If a selling shareholder defaults on a margin
loan, the broker may, from time to time, offer and sell the pledged shares.
Broker-dealers engaged by the selling shareholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling shareholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling shareholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
We are required to pay all fees and expenses incident to the registration of the
shares being registered herein, including any fees and disbursements of counsel
to the selling shareholders, which we estimate to be approximately $260,000 in
the aggregate. We have agreed to indemnify certain of the selling shareholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
EXPERTS
Aronson & Company, independent auditors, have audited our financial statements
as of and for the years ended October 31, 2003 and 2002 as set forth in their
report and included in this prospectus. The financial statements are included in
reliance on such reports given upon the authority of Aronson & Company as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered hereby and
certain other legal matters in connection therewith have been passed upon for us
by Bondy & Schloss LLP, New York, New York.
CERTAIN TRANSACTIONS
We currently lease space from and have purchased consulting and other supplies
and services from Dynamic Management Resolutions, LLC. Services included
engineering, scientific research, project management and administrative
services, as well as direct expenses. Each of our executive officers were
members of Dynamic Management Resolutions LLC prior to becoming employees of
CDEX, as well as CDEX's Principle Scientist, Director of Projects and Principle
Engineer. CDEX paid Dynamic $653,752 and $106,846 in fees for these services
rendered during the years ended October 31, 2002 and 2003, respectively, and a
total of $973,060 for the period from CDEX's inception through October 31, 2003.
Fees were based on hourly rates of $140 per hour for services of Dr. Wade
Poteet, Principal Scientist; $110 per hour for a Director of Projects; and $110
per hour for a Principle Engineer. These fees have been recorded as compensation
expense in our financial statements, and the agreements under which they were
performed have been converted to employment agreements with the executive
officers. Dynamic Resolutions LLC has since been dissolved.
The spouse of the Chief Executive Officer purchased two $20,000, one $15,000 and
one $100,000 convertible note of CDEX, each paying interest at 9%. The $20,000
notes were redeemed at face value for cash in August 2002, and the $15,000 note
was redeemed at face value for cash in September 2003, while the $100,000 was
redeemed at face value for cash in April 2004.
39
WHERE YOU CAN FIND MORE INFORMATION
CDEX has filed with the Securities and Exchange Commission the Registration
Statement on Form SB-2 under the Securities Act, with respect to the shares of
CDEX common stock offered hereby. This document does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto, to which reference is hereby made. Statements made in this
document as to the contents of any contract, agreement or other document
referred to herein are not necessarily complete. The Registration Statement and
the exhibits thereto filed by CDEX with the Commission may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. Copies of such information can be
obtained by mail from the Public Reference Branch of the Securities and Exchange
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission maintains a website that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the Commission's website is
http://www.sec.gov. CDEX is required to comply with the reporting requirements
of the Exchange Act and to file with the Commission reports, proxy statements
and other information as required by the Exchange Act. Additionally, CDEX is
required to provide annual reports containing audited financial statements to
its stockholders in connection with its annual meetings of stockholders. These
reports, proxy statements and other information will be available to be
inspected and copied at the public reference facilities of the Commission or
obtained by mail or over the Internet from the Commission, as described above.
40
CDEX, Inc.
(A Development Stage Company)
Unaudited Financial Statements
For the three and six months ended April 30, 2004 and 2003
CDEX, Inc.
(A Development Stage Company)
Balance Sheet as of April 30, 2004
(unaudited)
Assets
Current assets
Cash and cash equivalents $ 1,076,248
Accounts receivable 4,069
------------
Total current assets 1,080,317
Property and equipment
Laboratory and computer equipment 597,262
Furniture and fixtures 1,666
Building improvements 1,265
------------
Total property and equipment 600,193
Less: Accumulated depreciation (346,152)
------------
Net property and equipment 254,040
Other assets 1,399
------------
Total Assets $ 1,335,756
============
Liabilities and Stockholders' Equity (Deficit)
Current Liabilities
Accounts payable and accrued expenses $ 241,060
Deferred compensation 27,677
------------
Total Current Liabilties 268,738
Long Term Liabilities
Convertible debt 1,132,000
Discount on convertible notes (628,020)
------------
Total Long Term Liabilities 503,980
Total Liabilities 772,718
Stockholders' Equity
Preferred Stock - $.005 par value per share, 6,000,000
shares authorized and none outstanding -
Class A common stock - $.005 par value per share, 33,500,000
shares authorized and 23,902,533 outstanding 119,515
Class B common stock - $.005 par value per share, 500,000
shares authorized and 220,000 outstanding 1,100
Additional paid in capital 11,642,602
Deferred stock compensation (597,764)
Deficit accumulated during development stage (10,602,415)
------------
Total Stockholders' Equity 563,038
------------
Total Liabilities and Stockholders' Equity $ 1,335,756
------------
CDEX, Inc.
(A Development Stage Company)
Statements of Operations
(unaudited)
Three Months Ended Six Months Ended July 6, 2001
April 30 April 30 (inception) to
2003 2004 2003 2004 April 30, 2004
------------ ------------ ------------ ------------ --------------
Revenue $ - $ 4,069 $ - $ 4,069 $ 271,985
Cost of Revenue - - - - 178,831
Gross Profit - 4,069 - 4,069 93,154
Operating Expenses
Development costs 237,627 425,900 393,449 691,706 1,795,070
General and administrative expenses 120,223 314,853 224,105 515,221 1,612,881
Non-cash stock compensation 638,187 484,951 1,377,416 1,019,635 7,080,181
------------ ------------ ------------ ------------ ------------
Total Operating Expenses 996,037 1,225,705 1,994,970 2,226,563 10,488,132
Loss From Operations (996,037) (1,221,636) (1,994,970) (2,222,494) (10,394,978)
Other Income (Expense)
Interest income - - - 70 2,294
Related party interest expense - - - - (3,463)
Interest expense - (206,224) - (206,238) (206,268)
------------ ------------ ------------ ------------ ------------
Total Other Income (Expense) - (206,224) - (206,168) (207,437)
Net Loss $ (996,037) $ (1,427,859) $ (1,994,970) $ (2,428,661) $(10,602,415)
============ ============ ============ ============ ============
Basic and diluted net loss
per common share: $ (0.05) $ (0.06) $ (0.11) $ (0.10) $ (0.58)
Basic and diluted weighted average
common shares oustanding 19,101,830 23,805,866 18,155,495 23,665,442 18,256,485
CDEX, Inc.
(A Development Stage Company)
Statement of Changes in Stockholders' Equity
(unaudited)
Shares Shares
Class of Class Class A
A Common B Common Dollar Amount Common Class B
Date Stock Stock per share Stock Common Stock
---------------------------------------------------------------------------
Balance, October 31, 2003 23,175,505 220,000 115,878 $ 1,100
Payment for common stock subscribed
Sale of common stock for cash 12/8/03 33,334 1.50 167
Sale of common stock for cash 12/19/03 33,334 1.50 167
Sale of common stock for cash 12/19/03 16,667 1.50 83
Common stock forfeited by employee 12/22/03 (14,308) - (71)
Common stock issued pursuant to consulting agreement 12/22/03 150,000 1.41 750
Sale of common stock for cash 1/28/04 20,000 1.25 100
Shares issued for deferred compensation 1/28/04 100,000 1.41 500
Common stock issued pursuant to consulting agreement 3/11/04 20,000 0.75 100
Warrant issued in connection with convertible debt 3/30/04
Warrant issued in connection with convertible debt 4/1/04
Warrant issued in connection with convertible debt 4/1/04
Conversion of debentures into common stock 4/2/04 33,334 0.75 167
Warrant issued in connection with convertible debt 4/2/04
Warrant issued in connection with convertible debt 4/12/04
Conversion of debentures into common stock 4/14/04 48,000 0.75 240
Conversion of debentures into common stock 4/14/04 53,333 0.75 267
Conversion of debentures into common stock 4/15/04 233,334 0.75 1,167
Warrant issued in connection with convertible debt 4/15/04
Warrant issued in connection with convertible debt 4/22/04
Warrant issued in connection with convertible debt 4/22/04
Warrant issued in connection with convertible debt 4/28/04
Remeasurement of compensation expense
Amortization of deferred compensation expense
Net loss
- -------------------------------------------------------------------------------------------------------------------------------
Balance, April 30, 2004 23,902,533 220,000 $ 119,515 $ 1,100
- -------------------------------------------------------------------------------------------------------------------------------
Deficit
Accumulated
During the
Additional Paid- Deferred Development Subscription
in Capital Compendation Stage Receivable Total
-----------------------------------------------------------------
Balance, October 31, 2003 $ 10,039,805 $ (1,243,138) $ (8,173,753) $ (2,500) $ 737,392
Payment for common stock subscribed 2,500 2,500
Sale of common stock for cash 12/8/03 49,834 50,001
Sale of common stock for cash 12/19/03 49,833 50,000
Sale of common stock for cash 12/19/03 24,917 25,000
Common stock forfeited by employee 12/22/03 (18,598) 18,669 -
Common stock issued pursuant to consulting agreement 12/22/03 210,750 (211,500) -
Sale of common stock for cash 1/28/04 24,900 25,000
Shares issued for deferred compensation 1/28/04 140,500 (141,000) -
Common stock issued pursuant to consulting agreement 3/11/04 14,900 (15,000) -
Warrant issued in connection with convertible debt 3/30/04 59,200 59,200
Warrant issued in connection with convertible debt 4/1/04 14,867 14,867
Warrant issued in connection with convertible debt 4/1/04 23,893 23,893
Conversion of debentures into common stock 4/2/04 24,833 25,000
Warrant issued in connection with convertible debt 4/2/04 444,000 444,000
Warrant issued in connection with convertible debt 4/12/04 21,312 21,312
Conversion of debentures into common stock 4/14/04 35,760 36,000
Conversion of debentures into common stock 4/14/04 39,733 40,000
Conversion of debentures into common stock 4/15/04 173,833 175,000
Warrant issued in connection with convertible debt 4/15/04 103,600 103,600
Warrant issued in connection with convertible debt 4/22/04 11,840 11,840
Warrant issued in connection with convertible debt 4/22/04 7,136 7,136
Warrant issued in connection with convertible debt 4/28/04 148,001 148,001
Remeasurement of compensation expense (2,247) 2,247 -
Amortization of deferred compensation expense 991,958 991,958
Net loss (2,428,661) (2,428,661)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance, April 30, 2004 $ 11,642,602 $ (597,764) $(10,602,415) $ - $ 563,038
- -----------------------------------------------------------------------------------------------------------------------------------
CDEX, Inc.
(A Development Stage Company)
Statements of Cash Flows
(unaudited)
Six Months Ended July 6, 2001
April 30 (inception) to
2003 2004 April 30, 2004
------------- ------------ --------------
Cash Flows from Operating Activities
Net loss $ (1,994,970) $ (2,428,661) $(10,602,414)
Adjustments to reconcile net loss to cash used by
operating activities
Depreciation 42,490 85,974 254,366
Stock compensation 1,377,416 1,019,635 7,080,181
Warrant interest - 205,829 205,829
Changes in operating assets and liabilities -
Accounts receivable (1,910) 85,808 (4,129)
Prepaid expenses - 1,617 0
Other assets - - (2,655)
Accounts payable and accrued expenses (12,507) 223,239 192,376
------------- ------------ --------------
Net cash used by operating activities (589,481) (806,558) (2,876,445)
Cash Flows from Investing Activities
Cash provided by transfer of assets from Loch Harris, Inc. - - 73,000
Purchase of property and equipment (84,039) (20,618) (142,308)
------------- ------------ --------------
Net cash used by investing activities (84,039) (20,618) (69,308)
Cash Flows from Financing Activies
Proceeds from sale of common stock 625,000 253,501 2,434,001
Proceeds from convertible notes payable - 1,307,000 1,588,000
Proceeds from related party convertible notes payable - - 55,000
Repayment of related party convertible notes payable - - (55,000)
------------- ------------ --------------
Net cash provided by financing activies 625,000 1,560,501 4,022,001
Net Increase (Decrease) in Cash (48,520) 733,325 1,076,248
Cash and cash equivalents, beginning of the period 280,432 342,923 -
------------- ------------ --------------
Cash and cash equivalents, end of the period $ 231,912 $ 1,076,248 $ 1,076,248
============ ============ ============
Supplemental Cash Flow Information
Actual cash payments for interest $ - $ 471 $ 3,965
CDEX, Inc.
(A Development Stage Company)
Statements of Cash Flows
(unaudited)
Six Months Ended July 6, 2001
April 30 (inception) to
2003 2004 April 30, 2004
------------ ------------ --------------
Cash Flows from Operating Activities
Net loss $ (1,994,970) $ (2,428,661) $(10,602,414)
Adjustments to reconcile net loss to cash used by
operating activities
Depreciation 42,490 85,974 254,366
Stock compensation 1,377,416 1,019,635 7,080,181
Warrant interest - 205,829 205,829
Changes in operating assets and liabilities -
Accounts receivable (1,910) 85,808 (4,129)
Prepaid expenses - 1,617 0
Other assets - - (2,655)
Accounts payable and accrued expenses (12,507) 223,239 192,376
------------ ------------ ------------
Net cash used by operating activities (589,481) (806,558) (2,876,445)
Cash Flows from Investing Activities
Cash provided by transfer of assets from Loch Harris, Inc. - - 73,000
Purchase of property and equipment (84,039) (20,618) (142,308)
------------ ------------ ------------
Net cash used by investing activities (84,039) (20,618) (69,308)
Cash Flows from Financing Activies
Proceeds from sale of common stock 625,000 253,501 2,434,001
Proceeds from convertible notes payable - 1,307,000 1,588,000
Proceeds from related party convertible notes payable - - 55,000
Repayment of related party convertible notes payable - - (55,000)
------------ ------------ ------------
Net cash provided by financing activies 625,000 1,560,501 4,022,001
Net Increase (Decrease) in Cash (48,520) 733,325 1,076,248
Cash and cash equivalents, beginning of the period 280,432 342,923 -
------------ ------------ ------------
Cash and cash equivalents, end of the period $ 231,912 $ 1,076,248 $ 1,076,248
============ ============ ============
Supplemental Cash Flow Information
Actual cash payments for interest $ - $ 471 $ 3,965
Six Months Ended July 6, 2001
April 30 (inception) to
2003 2004 April 30, 2004
------------ ----------- -------------
Non-cash financing transactions:
Common stock subscribed
Stock subscription receivable $ - $ 2,500 $ 5,000
------------ ----------- -----------
Common stock - (13) (26)
Additional paid-in capital - (2,487) (4,974)
Net cash - - -
Conversion of notes payable into common stock
Notes payable - 563,000 844,000
Common stock - (559,247) (559,920)
Additional paid-in capital - (3,753) (284,080)
------------ ----------- -----------
Net cash - - -
Stock compensation
Deferred stock compensation 1,986,292 1,352,933 8,656,617
Additional paid-in capital (1,967,513) (1,349,296) (8,615,503)
Common stock (18,779) (3,637) (41,114)
------------ ----------- -----------
Net cash - - -
Asset transfer:
Assets transferred:
Cash - - 73,000
Other receivables - - 7,000
Property and equipment - - 457,882
Accumulated depreciation and amortization - - (91,783)
------------ ----------- -----------
Total assets transferred - - 446,099
Liabilities assumed:
Accounts payable - - (57,000)
Net assets transferred (liabilities assumed) - - 389,099
Common stock issued for asset transfer
Common stock - - (68,325)
Additional paid-in capital - - (320,774)
------------ ----------- -----------
Net cash $ - $ - $ -
------------ ----------- -----------
CDEX, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE UNAUDITED FINANCIAL STATEMENTS
APRIL 30, 2004
1. General
The financial statements included herein have been prepared, without audit,
pursuant to the regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with accounting principles generally accepted in the
United States have been condensed or omitted pursuant to such rules and
regulations. These consolidated financial statements should be read in
conjunction with the audited financial statements and notes thereto contained in
CDEX Inc.'s Audited Financial Statements for the year ended October 31, 2003.
In the opinion of CDEX Inc.'s management, the accompanying unaudited financial
statements contain all adjustments (which consist only of normal recurring
adjustments) necessary to present fairly the financial position as of April 30,
2004, results of operations for the three and six month periods ended April 30,
2004 and April 30, 2003, and cash flows for the six month periods ended April
30, 2004 and April 30, 2003. Interim results are not necessarily indicative of
results for an entire year.
2. Basis of Presentation
USE OF ACCOUNTING ESTIMATES: The preparation of financial statements in
conformity with accounting principles generally accepted in the United States
requires 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.
RESEARCH AND DEVELOPMENT: Total research and development costs include labor for
employees and contractors, rent, professional services, materials, lab equipment
and disposals. These costs are expensed on the accompanying Statement of
Operations as development costs.
3. Stock Based Compensation
The Company has provided restricted stock grants to employees and consultants as
the principal element of their compensation. The Company determines compensation
expense as the fair value, at the measurement date, of the service received or
the common stock issued, whichever is more readily determinable. In the case of
employees, the measurement date is the date of grant. In the case of outside
consultants, the measurement date is the date at which their performance is
complete. This total cost is first reflected as deferred compensation in
stockholders' equity (deficit) and then amortized to compensation expense on a
straight-line basis over the period during which the services are performed.
When the fair value of the common stock is used and the measurement date is not
the date of grant, the total cost is remeasured at the end of each accounting
reporting period based on the fair market value on that date, and the
amortization is adjusted.
In the case of the consulting agreements issued at the Company's inception, the
fair value of the common stock, which was awarded in advance of performance of
the services, was used to value the compensation cost. The fair value was
determined to be $2.50 per share based on the stock price implicit in
convertible notes sold to an unaffiliated purchaser. The Company issued
additional consulting agreements during 2003 which were also accounted for using
the fair value of the common stock to value the compensation cost. The
compensation cost is remeasured at the fair value as of the end of each
reporting period and the deferred compensation account is adjusted.
The Company has also utilized employment and consulting agreements which combine
cash and stock elements of compensation, where a fixed dollar value of stock is
awarded to settle noncash compensation. In this case, compensation cost is
determined based on the fair value of the services, which is the more reliably
determined measure. The Company has awarded some of the common shares in advance
of when the service is performed. These amounts are shown as deferred
compensation in the accompanying balance sheet. The Company has also paid
performance bonuses in common stock.
The Company granted 270,000 Class A shares of common stock to employees and
consultants during the six-months ended April 30, 2004. The Company granted
340,000 Class A shares of common stock and 220,000 Class B shares of common
stock to employees and consultants during the six-months ended April 30, 2003.
The fair value per share of common stock was $1.41 for 250,000 shares in the
three-months ended January 31, 2004, $0.75 for 20,000 shares in the three months
ended April 30, 2004, and $.50 during the six-months ended April 30, 2003. The
fair value was determined using a weighted average value of the proceeds per
share received from sales of common stock to unaffiliated purchasers during the
three-month period.
Total compensation expense related to stock awards for employees and consultants
was $484,951 and $638,187 for the three-months ended April 30, 2004 and 2003,
respectively, and $1,019,635 and $1,377,416 for the six-months ended April 30,
2004 and 2003, respectively. Upon termination, the Company has the option to
purchase any vested shares from the employees at fair market value. Shares
granted to employees and consultants generally vest over periods of 8 months to
3 years.
4. Equity Transactions
The Company issued 438,335 shares of Class A common stock since April 30, 2004:
Number of
Transaction Date Shares Transaction Type Proceeds
- ----------------- ------------- -------------------- ------------------
May 1, 2004 5,000 Compensation $ -
May 5, 2004 333,334 Debenture conversion -
May 10, 2004 39,000 Debenture conversion -
May 10, 2004 6,667 Debenture conversion -
May 15, 2004 10,000 Debenture conversion -
June 1, 2004 16,000 Debenture conversion -
June 1, 2004 33,334 Debenture conversion -
------------- -----------------
Totals 438,335 $ -
============= =================
The Company sold the following common stock equivalents in the form of
investment units containing convertible notes and warrants since October 31,
2003. The notes bear interest at 10%. The features of these securities are as
follows:
Class A Warrant
shares if Conversion Exercise Warrant Class A shares
Date of Sale Proceeds converted Deadline Price Expiration if exercised
- -------------------- ------------- ---------------- ------------------ ----------- --------------- ----------------
March 30, 2004 $ 100,000 133,334 September 30, 2004 $0.75 March 30, 2005 133,334
April 1, 2004 25,000 converted $0.75 April 6, 2005 33,333
April 1, 2004 40,000 converted $0.75 April 8, 2005 53,333
April 2, 2004 750,000 1,000,000 April 2, 2005 $0.75 April 2, 2005 1,000,000
April 12, 2004 36,000 converted $0.75 April 12, 2005 48,000
April 22, 2004 25,000 converted $0.75 April 22, 2005 33,334
April 22, 2004 12,000 converted $0.75 April 22, 2005 16,000
April 28, 2004 250,000 converted $0.75 April 28, 2005 333,334
April 15, 2004 175,000 converted $0.75 April 15, 2005 233,334
May 10, 2004 27,000 converted $0.75 May 10, 2005 39,000
May 10, 2004 5,000 converted $0.75 May 10, 2005 6,667
May 15, 2004 7,500 converted $0.75 May 15, 2005 10,000
--------------- --------------
Totals $ 1,452,500 1,939,669
=============== ==============
CDEX INC.
AUDITED FINANCIAL STATEMENTS
YEARS ENDED OCTOBER 31, 2003 AND 2002
[ARONSON & COMPANY LOGO]
www.aronsoncompany.com
CDEX INC.
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
PAGE
INDEPENDENT AUDITOR'S REPORT F-1
AUDITED FINANCIAL STATEMENTS
Balance Sheets F2 - F3
Statements of Operations F4
Statements of Stockholders' Equity (Deficit) F5 - F9
Statements of Cash Flows F10 - F11
Notes to Financial Statements F12 - F21
INDEPENDENT AUDITOR'S REPORT
Board of Directors
CDEX INC.
Rockville, Maryland
We have audited the accompanying Balance Sheets of CDEX INC. (a Development
Stage Company) as of October 31, 2002 and 2003, and the related Statements of
Operations, Stockholders' Equity (Deficit) and Cash Flows for the period July 6,
2001 (inception) to October 31, 2003 and the years ended October 31, 2002 and
2003. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of CDEX INC. as of October 31,
2002 and 2003, and the results of its operations and its cash flows for the
period from July 6, 2001 (inception) to October 31, 2003 and the years ended
October 31, 2002 and 2003 in conformity with accounting principles generally
accepted in the United States of America.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 8 to the
financial statements, the Company incurred a net loss of approximately
$8,174,000 during the period July 6, 2001 (inception) through October 31, 2003,
has insufficient working capital to sustain its operations over the next year
and has no committed borrowing arrangements. These conditions raise substantial
doubt about its ability to continue as a going concern. Management's plans
regarding those matters also are described in Note 8. These financial statements
do not include any adjustments that might result from the outcome of this
uncertainty.
/s/ Aronson & Company
Rockville, Maryland
December 31, 2003
(except with respect to the matter discussed
in Note 10, as to which the date is May 15, 2004)
- F-1 -
CDEX INC.
(A Development Stage Company)
Balance Sheets
================================================================================
OCTOBER 31, 2002 2003
- ------------------------------------------------------------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 280,432 $ 342,923
Accounts receivable -- 89,937
Prepaid expenses and other 12,765 1,617
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL CURRENT ASSETS 293,197 434,477
- ------------------------------------------------------------------------------------------------------------------------------------
PROPERTY AND EQUIPMENT, AT COST
Laboratory and computer equipment 478,730 576,644
Furniture and fixtures 947 1,666
Building Improvements 1,047 1,265
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL PROPERTY AND EQUIPMENT 480,724 579,575
Less: Accumulated depreciation (175,196) (260,178)
- ------------------------------------------------------------------------------------------------------------------------------------
NET PROPERTY AND EQUIPMENT 305,528 319,397
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER ASSETS
Other assets 1,399 2,655
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL OTHER ASSETS 1,399 2,655
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 600,124 $ 756,529
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-2 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
================================================================================
2002 2003
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 102,060 $ 19,137
Accrued compensation 1,406,930 --
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES 1,508,990 19,137
- ------------------------------------------------------------------------------------------------------------------------------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY (DEFICIT)
Preferred stock - $.005 par value per share, 6,000,000
shares authorized and none outstanding -- --
Class A common stock - $.005 par value per share, 33,500,000
shares authorized and 16,068,437 and 23,175,505 shares issued and
outstanding as of October 31, 2002 and 2003, respectively 80,342 115,878
Class B common stock - $.005 par value per share, 500,000
shares authorized and 220,000 shares issued and outstanding -- 1,100
Additional paid in capital 5,613,810 10,039,805
Deferred stock compensation (2,143,185) (1,243,138)
Deficit accumulated during the development stage (4,459,833) (8,173,753)
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL (908,866) 739,892
Less: Stock subscription receivable -- (2,500)
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL STOCKHOLDERS' EQUITY (DEFICIT) (908,866) 737,392
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) $ 600,124 $ 756,529
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-3 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
================================================================================
July 6, 2001
Year Ended October 31, (Inception) to
2002 2003 October 31, 2003
- ------------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT CONTRACT REVENUE $ 75,952 $ 191,964 $ 267,916
COST OF REVENUE 52,130 126,701 178,831
- ------------------------------------------------------------------------------------------------------------------------------------
GROSS MARGIN 23,822 65,263 89,085
OPERATING EXPENSES
Development costs 2,556,431 2,557,055 5,345,745
General and administrative expenses 913,565 1,222,271 2,915,824
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL OPERATING EXPENSES 3,469,996 3,779,326 8,261,569
- ------------------------------------------------------------------------------------------------------------------------------------
LOSS FROM OPERATIONS (3,446,174) (3,714,063) (8,172,484)
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER INCOME (EXPENSE)
Interest income 1,806 418 2,224
Related party interest expense (3,215) (249) (3,463)
Interest expense (4) (26) (30)
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL (1,413) 143 (1,269)
- ------------------------------------------------------------------------------------------------------------------------------------
LOSS BEFORE BENEFIT FROM INCOME TAXES (3,447,587) (3,713,920) (8,173,753)
BENEFIT FROM INCOME TAXES -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
NET LOSS $ (3,447,587) $ (3,713,920) $ (8,173,753)
====================================================================================================================================
BASIC AND DILUTED NET LOSS PER COMMON SHARE:
- ------------------------------------------------------------------------------------------------------------------------------------
Basic and diluted net loss per common share $ (0.22) $ (0.19) $ (0.48)
- ------------------------------------------------------------------------------------------------------------------------------------
Basic and diluted weighted average common
shares used to compute net loss per share 15,880,794 19,730,922 17,033,668
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-4 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
================================================================================
Shares of Shares of
Class A Class B Dollar Class A
Common Common Amount Common
Date Stock Stock per Share Stock
====================================================================================================================================
BALANCE, JULY 6, 2001 (INCEPTION) -- -- $ -- $ --
Common stock issued to Loch Harris, Inc. as a deposit
related to the transfer of assets into the Company July 23, 2001 2,600,000 -- 0.03 13,000
Common stock issued pursuant to consulting
agreements for services July 24, 2001 1,440,000 -- 2.50 7,200
Common stock issued pursuant to consulting
agreements for services August 3, 2001 371,000 -- 2.50 1,855
Common stock issued to Loch Harris, Inc. related
to the transfer of assets into the Company August 4, 2001 11,265,000 -- 0.03 56,325
Common stock issued pursuant to consulting
agreements for services September 19, 2001 60,000 -- 2.50 300
Common stock issued pursuant to consulting
agreements for services October 1, 2001 35,000 -- 2.50 175
Common stock issued pursuant to consulting
agreements for services October 15, 2001 2,000 -- 2.50 10
Amortization of deferred compensation expense -- -- -- --
NET LOSS -- -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2001 15,773,000 $ 78,865
====================================================================================================================================
Deficit
Accumulated
Class B Additional During the Stock
Common Paid in Deferred Development Subscription
Stock Capital Compensation Stage Receivable Total
====================================================================================================================================
BALANCE, JULY 6, 2001 (INCEPTION) $-- $ -- $ -- $ -- $-- $ --
Common stock issued to Loch Harris, Inc. as a deposit
related to the transfer of assets into the Company -- 67,819 -- -- -- 80,819
Common stock issued pursuant to consulting
agreements for services -- 3,592,800 (3,600,000) -- -- --
Common stock issued pursuant to consulting
agreements for services -- 925,645 (927,500) -- -- --
Common stock issued to Loch Harris, Inc. related
to the transfer of assets into the Company -- 308,955 -- -- -- 365,280
Common stock issued pursuant to consulting
agreements for services -- 149,700 (150,000) -- -- --
Common stock issued pursuant to consulting
agreements for services -- 87,325 (87,500) -- -- --
Common stock issued pursuant to consulting
agreements for services -- 4,990 (5,000) -- -- --
Amortization of deferred compensation expense -- -- 449,201 -- -- 449,201
NET LOSS -- -- -- (1,012,246) -- (1,012,246)
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2001 $-- $5,137,234 $(4,320,799) $(1,012,246) $-- $ (116,946)
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-5 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
================================================================================
Shares of Shares of
Class A Class B Dollar Class A
Common Common Amount Common
Date Stock Stock per Share Stock
- ------------------------------------------------------------------------------------------------------------------------------------
Conversion of note payable into common stock November 21, 2001 50,000 -- $ 2.50 $ 250
Conversion of note payable into common stock December 19, 2001 58,000 -- 2.00 290
Conversion of note payable into common stock February 25, 2002 26,667 -- 1.50 133
Stock received due to adjustment to transfer agreement March 1, 2002 (200,000) -- 0.29 (1,000)
Sale of common stock for cash March 12, 2002 10,000 -- 2.50 50
Sale of common stock for cash April 12, 2002 25,000 -- 2.00 125
Sale of common stock for cash May 23, 2002 65,000 -- 2.00 325
Sale of common stock for cash May 23, 2002 50,000 -- 2.00 250
Sale of common stock for cash June 18, 2002 50,000 -- 2.00 250
Sale of common stock for cash June 28, 2002 50,000 -- 2.00 250
Sale of common stock for cash July 15, 2002 30,000 -- 2.50 150
Sale of common stock for cash August 23, 2002 30,770 -- 3.25 154
Sale of common stock for cash October 2, 2002 50,000 -- 2.00 250
Remeasurement of compensation expense -- -- -- --
Amortization of deferred compensation expense -- -- -- --
NET LOSS -- -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2002 16,068,437 $ 80,342
====================================================================================================================================
Deficit
Accumulated
Class B Additional During the Stock
Common Paid in Deferred Development Subscription
Stock Capital Compensation Stage Receivable Total
====================================================================================================================================
Conversion of note payable into common stock $-- $ 124,750 $ -- -- -- $ 125,000
Conversion of note payable into common stock -- 115,710 -- -- -- 116,000
Conversion of note payable into common stock -- 39,867 -- -- -- 40,000
Stock received due to adjustment to transfer agreement -- (56,000) -- -- -- (57,000)
Sale of common stock for cash -- 24,950 -- -- -- 25,000
Sale of common stock for cash -- 49,875 -- -- -- 50,000
Sale of common stock for cash -- 129,675 -- -- -- 130,000
Sale of common stock for cash -- 99,750 -- -- -- 100,000
Sale of common stock for cash -- 99,750 -- -- -- 100,000
Sale of common stock for cash -- 99,750 -- -- -- 100,000
Sale of common stock for cash -- 74,850 -- -- -- 75,000
Sale of common stock for cash -- 99,846 -- -- -- 100,000
Sale of common stock for cash -- 99,750 -- -- -- 100,000
Remeasurement of compensation expense -- (525,947) 525,947 -- -- --
Amortization of deferred compensation expense -- -- 1,651,667 -- -- 1,651,667
NET LOSS -- -- -- (3,447,587) -- (3,447,587)
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2002 $-- $ 5,613,810 $(2,143,185) $ (4,459,833) $-- $ (908,866)
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-6 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
================================================================================
Shares of Shares of
Class A Class B Dollar Class A
Common Common Amount Common
Date Stock Stock per Share Stock
====================================================================================================================================
Sale of common stock for cash November 26, 2002 100,000 -- $ 0.50 $ 500
Sale of common stock for cash December 5, 2002 150,000 -- 0.50 750
Sale of common stock for cash December 9, 2002 50,000 -- 0.50 250
Sale of common stock for cash December 10, 2002 50,000 -- 0.50 250
Common stock issued for settlement of accrued compensation December 11, 2002 58,155 -- 0.75 291
Common stock issued for settlement of accrued compensation December 11, 2002 1,718,228 -- 0.75 8,591
Common stock issued pursuant to consulting agreements December 30, 2002 5,000 -- 0.81 25
Common stock awarded to employees and consultants December 30, 2002 155,000 -- 0.82 775
Common stock awarded to employees and consultants December 30, 2002 160,000 -- 0.82 800
Common stock awarded to employees and consultants December 30, 2002 -- 220,000 0.81 --
Sale of common stock for cash January 7, 2003 80,000 -- 0.50 400
Sale of common stock for cash January 15, 2003 150,000 -- 0.50 750
Common stock awarded to employees and consultants January 20, 2003 20,000 -- 0.82 100
Common stock forfeited by employee February 17, 2003 (30,000) -- (2.62) (150)
Sale of common stock for cash March 20, 2003 200,000 -- 1.00 1,000
Common stock issued for settlement of accrued compensation March 31, 2003 534,266 -- 0.75 2,672
Sale of common stock for cash April 21, 2003 35,000 -- 1.00 175
Sale of common stock for cash April 21, 2003 50,000 -- 1.00 250
Sale of common stock for cash April 30, 2003 50,000 -- 1.00 250
Common stock awarded to employees and consultants May 1, 2003 40,000 -- 0.82 200
Common stock awarded to employees and consultants May 26, 2003 25,000 -- 0.82 125
Deficit
Accumulated
Class B Additional During the Stock
Common Paid in Deferred Development Subscription
Stock Capital Compensation Stage Receivable Total
====================================================================================================================================
Sale of common stock for cash $ -- $ 49,500 $ -- $-- $-- $ 50,000
Sale of common stock for cash -- 74,250 -- -- -- 75,000
Sale of common stock for cash -- 24,750 -- -- -- 25,000
Sale of common stock for cash -- 24,750 -- -- -- 25,000
Common stock issued for settlement of accrued compensation -- 43,325 -- -- -- 43,616
Common stock issued for settlement of accrued compensation -- 1,281,080 -- -- -- 1,289,671
Common stock issued pursuant to consulting agreements -- 4,025 (4,050) -- -- --
Common stock awarded to employees and consultants -- 125,550 -- -- -- 126,325
Common stock awarded to employees and consultants -- 129,600 -- -- -- 130,400
Common stock awarded to employees and consultants 1,100 177,100 -- -- -- 178,200
Sale of common stock for cash -- 39,600 -- -- -- 40,000
Sale of common stock for cash -- 74,250 -- -- -- 75,000
Common stock awarded to employees and consultants -- 16,200 -- -- -- 16,300
Common stock forfeited by employee -- (78,334) 78,484 -- -- --
Sale of common stock for cash -- 199,000 -- -- -- 200,000
Common stock issued for settlement of accrued compensation -- 398,030 -- -- -- 400,702
Sale of common stock for cash -- 34,825 -- -- -- 35,000
Sale of common stock for cash -- 49,750 -- -- -- 50,000
Sale of common stock for cash -- 49,750 -- -- -- 50,000
Common stock awarded to employees and consultants -- 32,400 -- -- -- 32,600
Common stock awarded to employees and consultants -- 20,250 -- -- -- 20,375
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-7 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
================================================================================
Shares of Shares of
Class A Class B Dollar Class A
Common Common Amount Common
Date Stock Stock per Share Stock
====================================================================================================================================
Common stock issued pursuant to consulting agreements June 15, 2003 5,000 -- $ 0.81 $ 25
Sale of common stock for cash June 19, 2003 27,000 -- 1.00 135
Common stock issued pursuant to consulting agreements June 20, 2003 5,000 -- 0.81 25
Common stock issued pursuant to consulting agreements June 20, 2003 5,000 -- 0.81 25
Common stock issued for settlement of accrued compensation July 1, 2003 492,693 -- 0.50 2,463
Sale of common stock for cash July 15, 2003 15,000 -- 1.00 75
Sale of common stock for cash July 17, 2003 25,000 -- 1.00 125
Sale of common stock for cash July 24, 2003 25,000 -- 1.00 125
Sale of common stock for cash July 28, 2003 25,000 -- 1.00 125
Sale of common stock for cash July 31, 2003 400,000 -- 0.85 2,000
Sale of common stock for cash August 6, 2003 10,000 -- 1.00 50
Sale of common stock for cash August 6, 2003 25,000 -- 1.00 125
Sale of common stock for cash August 6, 2003 45,000 -- 1.00 225
Sale of common stock for cash August 8, 2003 10,000 -- 1.00 50
Sale of common stock for cash August 19, 2003 25,000 -- 1.00 125
Sale of common stock for cash August 25, 2003 25,000 -- 1.00 125
Sale of common stock for cash September 2, 2003 5,000 -- 1.00 25
Sale of common stock for cash September 2, 2003 5,000 -- 1.00 25
Sale of common stock for cash September 2, 2003 40,000 -- 1.00 200
Sale of common stock for cash September 2, 2003 5,000 -- 1.00 25
Sale of common stock for cash September 2, 2003 25,000 -- 1.00 125
Sale of common stock for cash September 2, 2003 5,000 -- 1.00 25
Sale of common stock for cash September 15, 2003 5,000 -- 1.00 25
Sale of common stock for cash September 15, 2003 1,000 -- 1.00 5
Common stock issued for settlement of accrued compensation September 20, 2003 1,936,783 -- 0.50 9,684
Deficit
Accumulated
Class B Additional During the Stock
Common Paid in Deferred Development Subscription
Stock Capital Compensation Stage Receivable Total
====================================================================================================================================
Common stock issued pursuant to consulting agreements $-- $ 4,025 $ (4,050) $-- $-- $ --
Sale of common stock for cash -- 26,865 -- -- -- 27,000
Common stock issued pursuant to consulting agreements -- 4,025 (4,050) -- -- --
Common stock issued pursuant to consulting agreements -- 4,025 (4,050) -- -- --
Common stock issued for settlement of accrued compensation -- 244,132 -- -- -- 246,595
Sale of common stock for cash -- 14,925 -- -- -- 15,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 338,000 -- -- -- 340,000
Sale of common stock for cash -- 9,950 -- -- -- 10,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 44,775 -- -- -- 45,000
Sale of common stock for cash -- 9,950 -- -- -- 10,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 4,975 -- -- -- 5,000
Sale of common stock for cash -- 4,975 -- -- -- 5,000
Sale of common stock for cash -- 39,800 -- -- -- 40,000
Sale of common stock for cash -- 4,975 -- -- -- 5,000
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Sale of common stock for cash -- 4,975 -- -- -- 5,000
Sale of common stock for cash -- 4,975 -- -- -- 5,000
Sale of common stock for cash -- 995 -- -- -- 1,000
Common stock issued for settlement of accrued compensation -- 958,706 (671,488) -- -- 296,902
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-8 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
================================================================================
Shares of Shares of
Class A Class B Dollar Class A
Common Common Amount Common
Date Stock Stock per Share Stock
====================================================================================================================================
Common stock issued pursuant to consulting agreements October 1, 2003 35,000 -- $1.00 $ 175
Common stock issued pursuant to consulting agreements October 1, 2003 40,000 -- 0.81 200
Common stock issued pursuant to consulting agreements October 1, 2003 45,000 -- 0.81 225
Sale of common stock for cash October 9, 2003 25,000 -- 1.00 125
Common stock issued pursuant to consulting agreements October 25, 2003 25,000 -- 0.81 125
Sale of common stock for cash October 27, 2003 15,000 -- 1.50 75
Sale of common stock for cash October 29, 2003 6,667 -- 1.50 33
Sale of common stock for cash October 30, 2003 5,000 -- 1.00 25
Common stock issued pursuant to consulting agreements October 31, 2003 10,000 -- 0.81 50
Sale of common stock for cash October 31, 2003 25,000 -- 1.00 125
Common stock issued for settlement of accrued compensation October 31, 2003 82,276 -- 0.50 412
Remeasurement of compensation expense -- -- --
Amortization of deferred compensation expense -- -- --
NET LOSS -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2003 23,175,505 220,000 $115,878
====================================================================================================================================
Deficit
Accumulated
Class B Additional During the Stock
Common Paid in Deferred Development Subscription
Stock Capital Compensation Stage Receivable Total
====================================================================================================================================
Common stock issued pursuant to consulting agreements $ -- $ 28,175 $ (28,350) $ -- $ -- $ --
Common stock issued pursuant to consulting agreements -- 32,200 (32,400) -- -- --
Common stock issued pursuant to consulting agreements -- 36,225 (36,450) -- -- --
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Common stock issued pursuant to consulting agreements -- 20,125 (20,250) -- -- --
Sale of common stock for cash -- 22,425 -- -- -- 22,500
Sale of common stock for cash -- 9,967 -- -- -- 10,000
Sale of common stock for cash -- 7,475 -- -- (2,500) 5,000
Common stock issued pursuant to consulting agreements -- 8,050 (8,100) -- -- --
Sale of common stock for cash -- 24,875 -- -- -- 25,000
Common stock issued for settlement of accrued compensation -- 40,727 (15,162) -- -- 25,977
Remeasurement of compensation expense -- (497,948) 497,948 -- -- --
Amortization of deferred compensation expense -- -- 1,152,015 -- -- 1,152,015
NET LOSS -- -- -- (3,713,920) -- (3,713,920)
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE, OCTOBER 31, 2003 $1,100 $10,039,805 $(1,243,138) $(8,173,753) $(2,500) $ 737,392
====================================================================================================================================
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-9 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
================================================================================
July 6, 2001
Year Ended October 31, (Inception) to
2002 2003 October 31, 2003
====================================================================================================================================
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $(3,447,587) $(3,713,920) $(8,173,753)
ADJUSTMENTS TO RECONCILE NET LOSS
TO NET CASH USED BY OPERATING ACTIVITIES
Depreciation 66,968 84,982 168,392
Stock compensation 2,669,655 2,552,748 6,060,546
CHANGE IN ASSETS AND LIABILITIES NET OF --
ASSETS TRANSFERRED FROM LOCH HARRIS, INC. --
(INCREASE) DECREASE IN --
Accounts receivable -- (89,937) (89,937)
Prepaid expenses (5,265) 11,148 (1,617)
Other assets (1,399) (1,256) (2,655)
DECREASE IN --
Accounts payable (41,232) (82,924) (30,863)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH USED BY OPERATING ACTIVITIES (758,860) (1,239,159) (2,069,887)
- ------------------------------------------------------------------------------------------------------------------------------------
CASH FLOWS PROVIDED BY INVESTING ACTIVITIES
Cash provided from transfer of assets from Loch Harris, Inc. -- -- 73,000
Purchases of property and equipment (21,160) (98,851) (121,690)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH USED BY INVESTING ACTIVITIES (21,160) (98,851) (48,690)
- ------------------------------------------------------------------------------------------------------------------------------------
CASH FLOWS PROVIDED BY FINANCING ACTIVITIES
Proceeds from the sale of common stock 780,000 1,400,500 2,180,500
Proceeds from convertible notes payable 281,000 -- 281,000
Proceeds from related party convertible notes payable 20,000 15,000 55,000
Repayment of related party convertible notes payable (40,000) (15,000) (55,000)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 1,041,000 1,400,500 2,461,500
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE IN CASH 260,980 62,490 342,923
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 19,453 280,433 --
- ------------------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 280,433 $ 342,923 $ 342,923
- ------------------------------------------------------------------------------------------------------------------------------------
Supplemental cash flow information
Actual cash payments for interest: $ 3,219 $ 275 $ 3,494
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-10 -
CDEX INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
================================================================================
July 6, 2001
Year Ended October 31, (Inception) to
2002 2003 October 31, 2003
====================================================================================================================================
NON-CASH FINANCING TRANSACTIONS:
Common stock subscribed
Stock subscription receivable $ 2,500 $ 2,500
Common stock (13) (13)
Additional paid-in capital (2,487) (2,487)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Conversion of notes payable into common stock
Notes payable 281,000 281,000
Common stock (673) (673)
Additional paid-in capital (280,327) (280,327)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Stock compensation
Deferred stock compensation (525,947) 3,059,631 7,303,684
Additional paid in capital 525,947 (3,031,694) (7,266,207)
Common stock (27,937) (37,477)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
ASSET TRANSFER
Assets transferred:
Cash 73,000
Other receivables 7,000
Property and equipment 457,882
Accumulated depreciation and amortization (91,783)
- ------------------------------------------------------------------------------------------------------------------------------------
446,099
LIABILITIES ASSUMED:
Accounts payable (57,000) (57,000)
- ------------------------------------------------------------------------------------------------------------------------------------
NET ASSETS TRANSFERRED (LIABILITIES ASSUMED) (57,000) 389,099
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK ISSUED FOR ASSET TRANSFER
Common stock 1,000 (68,325)
Additional paid-in capital 56,000 (320,774)
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH $ -- $ --
- ------------------------------------------------------------------------------------------------------------------------------------
The accompanying Notes to Financial Statements are an integral part
of these financial statements.
- F-11 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
1. ORGANIZATION BASIS OF PRESENTATION: CDEX Inc. (the Company),
AND SIGNIFICANT incorporated under the laws of the State of Nevada on
ACCOUNTING July 6, 2001 (inception), began operations in July
POLICIES 2001 by acquiring the assets listed below along with
chemical detection technology, nanometrology,
technical processes and intellectual property rights
from Loch Harris, Inc. in exchange for 13,865,000
shares of Class A common stock. The transaction is
considered a reorganization of affiliated entities
and hence the assets acquired are valued at the
historical cost of the transferor. As the intangible
assets had no historical cost basis on the books of
the transferor, they are carried at a zero cost value
on the Company's books. Tangible assets acquired
were:
Cash $ 73,000
Other receivables 7,000
Property and equipment, net 366,099
On March 1, 2002, 200,000 shares issued as described
above were returned to the Company in exchange for
its payment of $57,000 of liabilities of the
transferor related to legal and professional services
performed.
DEVELOPMENT STAGE COMPANY: From inception, the
Company has devoted substantially all of its efforts
to establishing a new business in chemical detection
technology and has not yet developed or sold any
products. The assets acquired from the transferor
have not provided any product sales for any entity.
All revenue has been in connection with development
contracts to complete testing and research.
STOCK-BASED COMPENSATION: The Company follows SFAS
No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION. In
accounting for stock options, as permitted by SFAS
No. 123, the Company will account for stock-based
compensation to employees in accordance with
Accounting Principles Board (APB) Opinion No. 25
ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES, and
accordingly recognize compensation expense for fixed
stock option grants only when the exercise price is
less than the fair value of the shares on the date of
the grant. No options have been issued. Accordingly,
no pro-forma information is provided for employee
stock option grants as if the fair value based method
defined in SFAS No. 123 had been applied.
REVENUE RECOGNITION: Development contract revenue
represents fees earned in connection with two
development contracts that were awarded to the
Company to complete initial testing and research on a
time and material basis. Revenue from these contracts
was recognized as the testing and research was
performed at contractually agreed upon billing rates.
- F-12 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
1. ORGANIZATION YEAR END: The Company previously had a year end of
AND SIGNIFICANT March 31. The Company elected to change that year end
ACCOUNTING to October 31 and has presented its financial
POLICIES statements on a full year basis for the years ended
(CONTINUED) October 31, 2002 and 2003.
COMMON STOCK: All Class A common stock amounts have
been adjusted to reflect the 1 for 5 reverse stock
split declared by the board of directors on December
11, 2002.
CASH AND CASH EQUIVALENTS: The Company maintains cash
balances that may exceed Federally insured limits.
The Company does not believe that this results in any
significant credit risk. The Company considers all
highly liquid investments with original maturities of
90 days or less to be cash equivalents.
USE OF ACCOUNTING ESTIMATES: The preparation of
financial statements in conformity with generally
accepted accounting principles requires 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.
ACCOUNTS RECEIVABLE: The face amount of accounts
receivable is reduced by an allowance for doubtful
accounts. The allowance for doubtful accounts
reflects the best estimate of probable losses
determined principally on the basis of historical
experience and specific allowances for known troubled
accounts. All accounts or portions thereof that are
deemed to be uncollectible or require an excessive
collection cost are written off to the allowance for
doubtful accounts.
PROPERTY AND EQUIPMENT: Property and equipment are
stated at historical cost and are depreciated using
the straight-line method over the estimated useful
lives of the related assets, ranging from five to
seven years. Depreciation expense was $66,968,
$84,982, and $168,392 for the years ended October 31,
2002 and 2003, and for the period from inception to
October 31, 2003, respectively.
- F-13 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
1. ORGANIZATION INCOME TAXES: The Company files its income tax
AND SIGNIFICANT returns on the cash basis of accounting, whereby
ACCOUNTING revenue is recognized when received and expenses are
POLICIES deducted when paid. To the extent that items of
(CONTINUED) income or expense are recognized in different periods
for income tax and financial reporting purposes,
deferred income taxes are provided to give effect to
these temporary differences. Deferred tax assets and
liabilities are recognized for the future tax
consequences attributable to differences between the
financial statement carrying amounts of assets and
liabilities and their respective tax bases. Deferred
tax assets and liabilities are measured by applying
presently enacted statutory tax rates, which are
applicable to the future years in which deferred tax
assets or liabilities are expected to be settled or
realized, to the differences between the financial
statement carrying amounts and the tax bases of
existing assets and liabilities. The effect of a
change in tax rates on deferred tax assets and
liabilities is recognized in operations in the period
that the tax rate is enacted.
As the Company has not yet achieved profitable
operations, no tax benefit has been reflected in the
statement of operations and a valuation allowance has
been established reducing the net carrying value of
the deferred tax asset to zero.
ADVERTISING COSTS: The cost of advertising is
expensed as incurred. Advertising expense was $9,873,
$28,483, and $38,481 for the years ended October 31,
2002 and 2003, and for the period from inception to
October 31, 2003, respectively.
RESEARCH AND DEVELOPMENT: Total research and
development costs include labor for employees and
contractors, rent, professional services, materials,
lab equipment and disposals. These costs are expensed
on the accompanying Statements of Operations as
development costs.
FAIR VALUE OF FINANCIAL INSTRUMENTS: The carrying
amounts of items reflected in current assets and
current liabilities approximate their fair value due
to the short-term nature of their underlying terms.
RISKS, UNCERTAINTIES AND CONCENTRATIONS: Financial
instruments that potentially subject the Company to
significant concentration of credit risk consist
primarily of cash equivalents and accounts
receivable. In addition, at times the Company's cash
balances exceed federally insured amounts
All revenue was earned under two development
contracts. Accounts receivable represents a portion
of the revenue outstanding on these contracts. The
Company provides for estimated credit losses at the
time of revenue recognition.
- F-14 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
1. ORGANIZATION NET LOSS PER COMMON SHARE: Basic net loss per share
AND SIGNIFICANT was determined by dividing net loss by the weighted
ACCOUNTING average number of common shares outstanding during
POLICIES each year. The effect of common stock equivalents is
(CONTINUED) not considered as it would be anti-dilutive.
2. RELATED PARTY The Company currently leases space from (see Note 7)
TRANSACTIONS and has purchased consulting and other supplies and
services from Dynamic Management Resolutions, LLC
(DMR). The owners of DMR are the executive officers
and key employees and consultants of the Company.
Total expenses of the Company related to services
provided by DMR were $653,752, $106,846, and $973,060
for the years ended October 31, 2002 and 2003,
respectively, and from the period July 6, 2001
(inception) to October 31, 2003.
The spouse of the Chief Executive Officer purchased
two $20,000 convertible notes of the Company, and one
$15,000 convertible note, paying interest at 9%.
Total interest expense paid to this related party was
$3,215, $249, and $3,464 for the years ended October
31, 2002 and 2003 and the period July 6, 2001
(inception) to October 31, 2003, respectively. The
$20,000 notes were redeemed at par value for cash in
August, 2002, and the $15,000 note was redeemed at
par value for cash in September, 2003.
3. NEW In May 2003, the Financial Accounting Standards Board
ACCOUNTING issued Statement No. 150, "Accounting for Certain
STANDARDS Financial Instruments with Characteristics of both
Liabilities and Equity". This statement affects the
classification, measurement and disclosure
requirements of certain freestanding financial
instruments, including mandatorily redeemable shares.
SFAS No. 150 is effective for all financial
instruments entered into or modified after May 31,
2003. This pronouncement is not expected to have a
material impact on the Company's financial position
or results of operations.
- F-15 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
4. INCOME TAXES The benefit from income taxes reflected in the
accompanying financial statements, all of which is
deferred, varies from the amounts which would have
been computed using statutory rates as follows
(000's):
Year Ended October 31,
---------------------------------- Inception to
2002 2003 October 31,
2003
===========================================================================================
Federal income taxes at the maximum $ 1,172 $ 1,263 $ 2,779
statutory rate
State income taxes, net of Federal
tax effect 160 173 531
Difference in valuation of stock
based compensation (561) (496) (1,209)
Increase in valuation allowance (771) (940) (2,101)
-------------------------------------------------------------------------------------------
BENEFIT FROM INCOME TAXES $ -- $ -- $ --
===========================================================================================
Deferred income taxes were as follows:
As of October 31,
----------------------------------
2002 2003
===========================================================================================
Prepaid expenses deducted for income tax reporting $ 5,000 $ 1,000
purposes, but not for financial statement reporting
purposes
Accounts payable and accrued expenses deducted for
financial statement reporting purposes, but not for
income tax reporting purposes (798,000) (1,229,000)
Net operating loss carryforward (368,000) (873,000)
-------------------------------------------------------------------------------------------
Deferred tax asset $ (1,161,000) $ (2,101,000)
Valuation allowance $ 1,161,000 $ 2,101,000
-------------------------------------------------------------------------------------------
TOTAL $ -- $ --
===========================================================================================
For income tax purposes, the Company has a net
operating loss carryforward of approximately
$1,500,000 at March 31, 2003 (the Company's latest
tax reporting year end) that, subject to applicable
limitations, may be applied against future taxable
income. If not utilized, the net operating loss
carryforward will expire between March 31, 2022 and
March 31, 2023.
- F-16 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
5. STOCK BASED All stock based compensation is recorded at fair
COMPENSATION value. The Company has provided restricted stock
FOR SERVICES grants to employees and consultants as the principal
element of their compensation. The Company determines
compensation expense as the fair value, at the
measurement date, of the service received or the
common stock issued, whichever is more reliably
determinable. Fair value is determined using the
following policies:
o In the case of the consulting agreements
issued at the Company's inception, the fair
value of the common stock, which was awarded
in advance of the performance of the
services, was used to value the compensation
cost. The fair value was determined to be
$2.50 per share based on the stock price
implicit in convertible notes sold to an
unaffiliated purchaser.
o For consulting agreements issued in 2003,
the fair value was determined using the
weighted average value of the proceeds per
share received from sales of common stock to
unaffiliated purchasers during that year.
o The Company has also utilized employment and
consulting agreements which combine cash and
stock elements of compensation, where a
fixed dollar value of stock is awarded to
settle noncash compensation. In this case,
compensation cost is determined based on the
fair value of the services, which is the
more reliably determined measure.
In the case of employees, the measurement date is the
date of grant. In the case of outside consultants,
the measurement date is the date at which their
performance is complete. This total cost is first
reflected as deferred compensation in stockholders'
equity (deficit) and then amortized to compensation
expense on a straight-line basis over the period over
which the services are performed. When the fair value
of the common stock is used and the measurement date
is not the date of grant, the total cost is
remeasured at the end of each reporting period based
on the fair market value on that date, and the
amortization is adjusted. The Company issued
additional consulting agreements in 2003 which were
also accounted for using the fair value of the common
stock to value the compensation cost. The
compensation cost is remeasured at the fair value as
of the end of each reporting period and the deferred
compensation account is adjusted.
The Company has awarded some of the common shares in
advance of when the service is performed. These
amounts are shown as deferred compensation in the
accompanying balance sheet. The Company has also paid
performance bonuses in common stock.
- F-17 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
5. STOCK BASED The Company granted 5,587,401 (5,367,401 Class A
COMPENSATION shares and 220,000 Class B shares), and 7,495,401
FOR SERVICES (7,275,401 Class A shares and 220,000 Class B shares)
(CONTINUED) shares of common stock to employees and consultants
during the year ended October 31, 2003, and during
the period from July 6, 2001 (inception) to October
31, 2003.
The fair value per share of common stock was $2.50,
$2.15, and $.81, as of October 31, 2001, 2002 and
2003.
The Company has two separate stock plans--the 2002
and 2003 Stock Incentive Plans. Both plans provide
for the issuance of stock options and stock grants.
The 2002 Plan permits the issue of up to 3,250,000
shares (2,920,649 shares with a fair value of
$2,255,489 have been issued during the year ended
October 31, 2003) through June 30, 2008. The 2003
Plan permits the issue of up to 7,000,000 shares
(after subtracting any shares issued under the 2002
Plan) through June 30, 2013. (2,666,752 shares with a
fair value of $1,388,076 have been issued under this
plan during the year ended October 31, 2003). The
2003 Plan also provides for specific numbers of
shares to be awarded upon the achievement of defined
scientific and sales-related milestones. No options
to acquire shares have been issued under either plan.
Restricted stock activity under the Plan is as
follows:
Balance November 1, 2002 --
Granted 5,587,401
Forfeited --
---------------
Balance October 31, 2003 5,587,401
---------------
Vesting and related compensation is as follows:
Compensation
Vesting Shares Expense
----------------------------------------------------------------------------------------
Through October 31, 2003 -- $ 2,400,427
Year ending October 31, 2004 5,587,401 1,192,234
Year ending October 31, 2005 -- 50,904
----------------------------------------------------------------------------------------
5,587,401 $ 3,643,565
========================================================================================
- F-18 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
5. STOCK BASED Total compensation expense related to stock awards
COMPENSATION for employees and consultants was $2,669,655,
FOR SERVICES $2,552,748, and $6,060,546 for the years ended
(CONTINUED) October 31, 2002 and 2003, and for the period July 6,
2001 (inception) to October 31, 2003. Upon
termination, the Company has the option to purchase
any vested shares from the employees at fair market
value. Shares granted to employees and consultants
generally vest over periods of 8 months to 3 years.
At October 31, 2002, accrued compensation related to
these agreements of $1,406,930 is included in the
accompanying Balance Sheet as accrued compensation.
6. STOCKHOLDERS' On December 11, 2002, the Board of Directors
EQUITY authorized a 1 for 5 reverse stock split of Class A
Common Stock. All share amounts have been adjusted to
reflect the split retroactively. The holders of
shares of Class B Common Stock shall, as a class, be
entitled to vote to elect a majority of the members
of the Company's Board of Directors through December
11, 2006. Holders of shares of Class A Common Stock
shall, as a class, be entitled to vote to elect the
remainder of the members of the Company's Board of
Directors through December 11, 2006. Following that,
holders of Class A Common Stock and Class B Common
Stock shall be entitled to one vote per share on
matters relating to the election of the Company's
Board of Directors. Holders of Class A Common Stock
and Class B Common Stock shall be entitled to one
vote per share on all other matters to be voted upon
by the stockholders of the Company.
During the period from inception through October 31,
2003, the Company entered into six convertible
promissory notes. During the period, a holder of
three notes exercised the options to convert the
notes into Class A common stock. The other three
notes were held by a related party (see Note 2) and
were redeemed for cash. A summary of the notes that
were converted is as follows:
NOTE DATE DATE CONVERTED AMOUNT OF NOTE SHARES PRICE PER SHARE
------------------------------------------------------------------------------------
November 2001 November 21, 2001 $ 125,000 50,000 $2.50
December 2001 December 19, 2001 116,000 58,000 2.00
February 2002 February 25, 2002 40,000 26,667 1.50
------------------------------------------------------------------------------------
TOTALS $ 281,000 134,667 $2.09
------------------------------------------------------------------------------------
7. LEASES The Company is obligated under a month-to-month
lease, as lessee, for office space in Maryland. The
lease provides for monthly rent of $175. Total rent
expense was $2,100, $2,100, and $4,200 for the years
ended October 31, 2002 and 2003 and the period July
6, 2001 (inception) to October 31, 2003.
- F-19 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
7. LEASES
(CONTINUED) The Company leases office and laboratory space under
a sublease from Dynamic Management Resolutions, LLC
(see Note 2) expiring July 31, 2004. The lease
provides for monthly rent of $1,350. Total rent
expense was $16,585, $17,873, and $39,922 for the
years ended October 31, 2002 and 2003, and the period
July 6, 2001 (inception) to October 31, 2003.
The future minimum lease payments required under
operating leases that have an initial noncancelable
lease term as of October 31, 2003 are as follows:
Year Ending
October 31, Amount
-----------------------------------------------------
2004 $ 12,150
-----------------------------------------------------
8. FINANCIAL
CONDITION The Company has incurred losses since its inception
of approximately $8,174,000 and has had no product
sales since its inception. As explained in Note 1,
the Company has been in the development stage since
its inception, which has included product
development, raising capital, and putting in place a
management team.
The Company plans to raise cash to fund its
operations and pay its outstanding obligations from
credit facilities or the sale of its securities in
the future. In addition, the Company intends to
continue its policy of paying significant portions of
compensation with its common stock. Nonetheless,
there can be no guarantee that the Company will be
able to raise cash or maintain its current workforce
through any of these plans.
The Company's ability to continue as a going concern
and meet its obligations as they come due is
dependent upon its ability to raise sufficient cash
as discussed above. The existing cash balance will
fund approximately 3 months of operations if no
additional cash is raised. The Company anticipates it
will require at least $2,500,000 to $4,000,000 over
the next twelve months to complete the research,
development (including the cost of components
necessary to commence production) and other steps
needed to achieve commercially viable product sales.
The Company also anticipates it will need to maintain
the current workforce to achieve commercially viable
sales levels. There can be no guarantee that these
needs will be met or that sufficient cash will be
raised to permit operations to continue. Should the
Company be unable to raise sufficient cash to
continue operations at a level necessary to achieve
commercially viable sales levels, the liquidation
value of the Company's noncurrent assets may be
substantially less than the balances reflected in the
financial statements and the Company may be unable to
pay its creditors.
- F-20 -
CDEX INC.
NOTES TO FINANCIAL STATEMENTS
================================================================================
9. COMMITMENTS The Company has entered into employment agreements
with its four senior employees. The contracts provide
for $384,000 of cash compensation and $586,000 in
additional compensation payable in cash and/or stock
annually. The contracts also provide severance
payments if termination occurs before January 1,
2006. Maximum termination payments would be
$1,940,000 and 11,600,000 shares of common stock if
termination occurs in 2004 and $970,000 and 5,800,000
shares of common stock if termination occurs in 2005.
10. SUBSEQUENT
EVENT The Company has raised approximately $1,600,000
through the sale of shares of Class A common stock
and investment units containing convertible notes and
warrants since October 31, 2003, as described the
Company's financial statements as of April 30, 2004.
- F-21 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nevada corporation law provides that:
1. a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful;
2. a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper; and
3. to the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter therein, the corporation
shall indemnify him against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense.
We may make any discretionary indemnification only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances.
The determination must be made:
- - by our stockholders;
- - by our board of directors by majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding; - if a majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding so orders, by independent legal counsel in a written opinion; - if a
quorum consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion; or - by court order.
Our Articles of Incorporation provide for indemnification of agents of the
Company through bylaw provisions, agreements with such agents or other persons,
vote of stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted under, and subject only to
the limits imposed by, Nevada law. Our Articles of Incorporation further provide
that we may purchase and maintain insurance against any liability asserted
against an indemnified party.
However, insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the
II-1
"Securities Act"), may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimated expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered. CDEX will pay all expenses in connection with this offering.
Securities and Exchange Commission Registration Fee $ 243.95
Printing, Filing and Engraving Expenses 15,000.00
Accounting Fees and Expenses 95,000.00
Legal Fees and Expenses 125,000.00
Blue Sky Qualification Fees and Expenses 20,000.00
Miscellaneous 1,000.05
TOTAL 256,243.95
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
NOTE: ON DECEMBER 11, 2002, CDEX EFFECTED A 1-FOR-5 REVERSE SPLIT OF ITS COMMON
STOCK. SHARE AMOUNTS SET FORTH BELOW FOR SECURITIES ISSUED PRIOR TO THAT DATE
HAVE BEEN ADJUSTED TO REFLECT THIS REVERSE STOCK SPLIT. EXCEPT AS OTHERWISE
INDICATED, ALL SHARES ISSUED WERE OF THE COMPANY'S CLASS A COMMON STOCK.
On July 23, 2001, the Company issued 2,600,000 shares of common stock as an
earnest money deposit under an Asset Purchase Agreement with Loch Harris
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"). Such shares were valued at $.03 per share based on Loch
Harris's book value of assets and were intended to be distributed to the
shareholders of Loch Harris upon their registration.
On July 24, 2001 the Company issued FGW LLC, as designee of Malcolm H. Philips,
690,000 shares and Timothy D. Shriver, 210,000 shares of common stock for
services as executives of the Company at $2.50 per share (the valuation being
based on the nearest transaction with a non-affiliate in accordance with GAPP).
These shares were issued as part of overall compensation for services under the
Executive Services Agreement pursuant to Rule 701 under the Securities Act.
On July 24, 2001, the Company entered into a Consultant Services Agreement with
Dynamic Management Resolutions, a Delaware LLC and certain consultants pursuant
to which the Company engaged the consultants to perform certain consulting
services, including engineering, scientific research, project management and
administrative services, and as compensation agreed to issue the following
shares of common stock to the named parties, at $2.50 per share (the valuation
being based on the nearest transaction with a non-affiliate in accordance with
GAPP) pursuant to Rule 701 under the Securities Act:
II-2
PARTY NO. OF SHARES ISSUED
----- --------------------
Dynamic Resolutions 40,000
Dr. Wade Poteet 140,000
Michael Mergenthaler 120,000
Larry Spiers 120,000
Harold Cauthen 120,000
Pursuant to each of the Services Agreement made by the Company with George Dials
on August 3, 2001 and the Services Agreement made by the Company with Dr. BD
Liaw on October 1, 2001, the Company agreed to issue 35,000 shares to such
individual for said individual's services on the Company's Board of Directors,
valued on $2.50 per share based on the nearest transaction with a non-affiliate
in accordance with GAPP, pursuant to Rule 701 under the Securities Act.
During the period August, 2001--October, 2001 the Company issued an aggregate of
148,000 shares of its common stock to certain individuals, pursuant to Rule 701
under the Securities Act, as compensation for performance of certain part-time
services such as web services provided by Randy Jeter, financial services
provided by Thelma Johnson and general administrative work by Elizabeth Birk,
explosive logistics and transporting by D. Audsley, marketing by Frank Jackovac
and Steve Frankiewicz,, and business and technical support during the transfer
of the technology from Loch Harris by Garrett and Ruckel for the Company, valued
at $2.50 per share, based on the nearest transaction with a non-affiliate in
accordance with GAPP as follows:
PARTY NO. OF SHARES ISSUED
----- --------------------
Thelma Johnson 15,000
Bruce Ruckel 15,000
Jay Garrett 15,000
Randy Jeter 15,000
Elizabeth Birk 6,000
Frank Jackovac 20,000
D. Audsley 2,000
Steve Frankiewicz 60,000
On August 3, 2001 the Company agreed to issue to Boone and Baker 150,000 and
100,000 shares, respectively, of its common stock, pursuant to Rule 701 under
the Securities Act, for consulting services related to finance and marketing
under Service Agreements valued at $2.50 per share based on the nearest
transaction with a non-affiliate in accordance with GAPP.
On August 4, 2001, at the closing of the Purchase Agreement, the Company issued
pursuant thereto and in exchange for assets purchased, the balance of 9,600,000
shares of common stock to Loch (reflecting the balance due on the
12,200,000-share purchase price, 2,600,000 shares of which were issued on July
23 as reflected above), and an additional 1,665,000 shares of common stock on
behalf of Loch to discharge certain loans and other obligations to the following
persons and entities:
PARTY NO. OF SHARES ISSUED
----- --------------------
Baker 500,000
Boone (as Coto LLC) 320,000
Coldwater Capital 780,000
Frank Jakovac 65,000
200,000 of such shares were subsequently returned to the Company pursuant to an
amendment to the agreement under which the assets were purchased. Such shares
were issued pursuant to Section 4(2) of the Securities Act.
In each of the foregoing transactions, neither the Company nor any person acting
on its behalf sold the securities by any form of general solicitation or general
advertising. The Company exercised reasonable care to assure that no
II-3
purchaser of a security was an "underwriter" within the meaning of section 2(11)
of the Securities Act and placed a restrictive legend on the sold securities.
The Company gave each purchaser the opportunity to ask questions and receive
answers concerning the terms and conditions of the offering and to obtain any
additional information which the Company possessed or could acquire without
unreasonable effort or expense.
The Company issued its 9% Convertible Promissory Notes to Ms. Kitty Philips on
October 5 and November 14, 2001, each in the amount of $20,000, and on July 8,
2003, in the amount of $15,000. These notes were issued in reliance on Section
4(2) of the Securities Act and have been paid in full.
The following equity securities of the Company were issued and/or sold during
the period November, 2001 to November 31, 2003, without registration, under the
private offering safe-harbor provision of Rule 506 of Regulation D for
transactions not involving any public offering under the meaning of Section 4(2)
of the Securities Act:
In the period from November 2001 until February 2002, the Company issued three
Promissory Notes to Robert Stewart in an aggregate original principal amount of
$281,000, which notes were convertible into an aggregate of 134,667 shares of
common stock of the Company. Mr. Stewart has converted all three of such notes
into shares of Company common stock.
On March 12, 2002 the Company sold 10,000 shares of its common stock to Robert
Creighton for $25,000.
In April, 2002 the Company sold 25,000 shares of its common stock to William
Prain for $50,000.
On May 23, 2002, the Company sold 65,000 shares of its common stock to Dawn M.
Guimond for $130,000.
On May 23, 2002, the Company sold 50,000 shares of its common stock to Motta
Investment Co., LTD for $100,000.
In June 2002, the Company sold 50,000 shares of its common stock to each of
Motta Family Revocable Living Trust and Dawn Guimond at a price of $2.00 per
share.
On July 15, 2002, the Company sold 1,200 shares of its common stock to DICUT
Inc. at a price of $2.50 per share.
On August 23, 2002, the Company sold 30,770 shares of its common stock to
Dependable Ranch Lenders LLC at a price of $3.25 per share.
On October 2, 2002, the Company sold 50,000 shares of its common stock to Motta
Investment Co. Ltd. at a price of $2.00 per share.
In November 2002 through January 2003, the Company sold 580,000 shares of its
common stock to the following investors at a price of $0.50 per share:
Dependable Ranch Lenders LLC 300,000
Robert Stewart 80,000
Motta Investment Co. Ltd. 100,000
Dawn Guimond 50,000
Mari Stassi 50,000
In each of the foregoing transactions, neither the Company nor any person acting
on its behalf sold the securities by any form of general solicitation or general
advertising.
The Company issued the following securities pursuant to Rule 701 under the
Securities Act:
On December 11, 2002, the Company issued 1,075,900 shares of its common stock to
the following employees and consultants as compensation for engineering,
scientific research, project management, marketing and distribution, and
executive services rendered in 2001 valued at $0.75 per share:
II-4
Harold Cauthen 99,840
Tim Shriver 201,587
Thelma Johnson 202,013
Wade Poteet 292,000
Larry Spiers 172,453
Malcolm H. Philips 50,687
Michael Mergenthaler 57,320
These shares are subject to a risk of forfeiture in the event that an employee
leaves the Company.
On December 11, 2002, the Company issued 700,483 shares of its common stock to
the following employees and consultants as compensation for engineering,
scientific research, project management, marketing and distribution, and
executive services rendered in 2002 valued at $0.75 per share:
Harold Cauthen 62,467
Tim Shriver 106,664
Thelma Johnson 42,283
Wade Poteet 122,308
Larry Spiers 63,273
Malcolm H. Philips 165,333
Michael Mergenthaler 80,000
Steven Frankiewicz 58,155
These shares are subject to a risk of forfeiture by the employee in the event
that the employee leaves the Company.
On December 30, 2002, the Company issued 220,000 shares of its Class B common
stock to the following employees as compensation for services rendered valued at
$0.81 per share:
Harold Cauthen 15,000
Tim Shriver 40,000
Wade Poteet 20,000
Malcolm H. Philips 100,000
Michael Mergenthaler 25,000
Larry Spiers 20,000
These shares are subject to a risk of forfeiture by the employee in the event
that the employee leaves the Company.
On December 30, 2002, the Company issued 320,000 shares of its common stock to
the following employees and consultants as compensation for engineering,
scientific research, project management, marketing and distribution, and
executive services rendered valued at $0.82 per share:
Harold Cauthen 30,000
Tim Shriver 60,000
Wade Poteet 40,000
Michael Mergenthaler 50,000
Larry Spiers 45,000
Steve Frankiewicz 20,000
Chung Sing Orr 10,000
Thelma Johnson 10,000
George E. Dials 15,000
II-5
Dr. Boen Dar Liaw 15,000
David Audsley 5,000
Brandi Shriver 5,000
Timothy Shriver Jr. 5,000
These shares are subject to a risk of forfeiture by the employee in the event
that the employee leaves the Company.
In January 2003, the Company issued 20,000 shares of its common stock to Larry
Marsteller as compensation for technical development services rendered valued at
$0.82 per share. This stock has certain forfeiture provisions based on
performance milestones as well as risk of loss if employee leaves the Company.
In May 2003, the Company issued 25,000 shares of its common stock to Joseph S.
Dellinger and 40,000 shares of its common stock to Larry Marsteller as
compensation for marketing and technical development services rendered valued at
$0.82 per share. These shares are subject to a risk of forfeiture by the
employee in the event that the employee leaves the Company.
In June 2003, the Company issued 5,000 shares of its common stock to each of
Amista Salcido, Jeff Kosanke and Kelly Morgan as compensation for servicing on
CDEX's Medical Advisory Board services rendered valued at $0.81 per share. These
shares are subject to a risk of forfeiture by the employee in the event that the
employee leaves the Company.
On September 20, 2003, the Company issued 1,936,783 shares of its common stock
to the following employees as compensation for engineering, scientific research,
project management, marketing and distribution, and executive services rendered
valued at $0.50 per share:
Larry Marsteller 209,600
Malcolm H. Philips 411,138
Tim Shriver 310,369
Michael Mergenthaler 259,984
Wade Poteet 229,754
Harold Cauthen 159,215
Larry Spiers 229,754
Chung Sing Orr 38,292
Joseph S. Dellinger 88,677
These shares are subject to a risk of forfeiture by the employee in the event
that the employee leaves the Company.
On October 1, 2003, the Company issued 120,000 shares of its common stock to the
following consultants as compensation for services rendered valued at $0.81 per
share:
BD Liaw 40,000 George E. Dials 45,000 for services rendered as Members of CDEX's
Board of Directors; Greg Smith 35,000 for financial consulting services.
These shares are subject to a risk of forfeiture by the consultant in the event
that the consultant leaves the Company.
On October 25, 2003 the Company issued 25,000 shares of its common stock to
Peter S. Dobbs for financial consulting services rendered valued at $0.81 per
share.
On October 31, 2003 the Company issued 10,000 shares of its common stock to
Randall Jeter for web page development services rendered valued at $0.81 per
share.
II-6
On October 31, 2003 the Company issued 82,267 shares of its common stock to
Thelma Johnson for financial services rendered valued at $0.50 per share.
In December 2003, the Company sold 33,334 shares of its common stock to each of
John L. Theobald and William R. Linder and 16,667 shares of its common stock to
Van L. Shumway Jr. all for services rendered valued at $1.50 per share.
On March 1, 2004, the Company issued 100,000 shares of common stock to William
Blair as compensation for marketing and product management services rendered and
20,000 shares of common stock to Dr. Darvie Fenison for consulting services
rendered.
The following securities were issued pursuant to the exemption provided by Rule
506 under Section 4(2) of the Securities Act in private offerings to accredited
investors (or their donees) only each of whom acknowledged having had the
opportunity to ask questions of and receive answers from representatives of the
Company concerning the terms and conditions of the offering, and to obtain any
additional information or documents relative to the Company, its business and an
investment, as said purchaser deemed necessary.
From March through October 2003, the Company issued an aggregate of 738,000
shares of its common stock to the following investors at a price of $1.00 per
share:
Aspen Creek Farms 200,000
Domin Living Trust 50,000
Motta Investment Co. 50,000
Pete Maina 45,000
Bruce Kison 35,000
Mari Stassi 27,000
Gary Pleggenkuhle 25,000
Dawn M. Guimond 15,000
Ben Lowell 10,000
Jeff Lowell 10,000
Bruce Gourlay and
Linda H. Mackey 25,000
Irene J. Dobbs 25,000
John William Steele 25,000
John C Fisher 25,000
Charlie Stevens 40,000
Charlotte Stevens 5,000
Patrick Purgatorio 25,000
Shawn Aquiar 5,000
Charleen Stevens 5,000
Brytan Stevens 5,000
Ben and Maxine Lowell 5,000
Douglas Lowell 1,000
Peter S Dobbs 25,000
Christopher Sintetos 25,000
Scott Newby 25,000
Ben and Maxine Lowell 5,000
On July 31, 2003, the Company issued 400,000 shares of its common stock to Renka
Inc. at a price of $0.85 per share.
On October 27 and 29, 2003 the Company sold 21,667 shares of its common stock,
15,000 to Gary Pleggenkuhl and 6,667 to Jeff Lowell at a price of $1.50 per
share.
II-7
In January 2004, the Company sold 20,000 shares of its common stock to Peter R.
Mania at a price of $1.25 per share.
In each of the foregoing transactions, neither the Company nor any person acting
on its behalf sold the securities by any form of general solicitation or general
advertising.
No commissions or fees were paid in connection with any of these sales.
ITEM 27. EXHIBITS
3.1 Amended and Restates Articles of Incorporation of the Company filed
January 2, 2004, together with Certificate of Designation of Rights,
Preferences and Privileges*
3.2 By-Laws of the Company adopted July 6, 2001*
4.1 Specimen certificate for shares of Company common stock
4.2 2002 Stock Incentive Plan*
4.3 2003 Stock Incentive Plan*
4.4 Form of Securities Purchase Agreement
4.5 Form of Subscription Agreement
5.1 Opinion of Counsel re: Legality of Shares*
10.1 Business Identity Program Agreement by and between the Company and
Source Office Suites, dated as of October 17, 2001
10.2 Lease Agreement by and between the Company and Butterfield Center
Limited Partnership (assigned from Dynamic Management Resources), as
amended on March 4, 2004*
10.3 Assigned Consultant Services Agreement for Dr. Wade Poteet Restated as
Employment Agreement dated January 1, 2003 and amendments*
10.4 Assigned Consultant Services Agreement for Malcolm Philips Restated as
Employment Agreement dated January 1, 2002 and amendments*
10.5 Assigned Consultant Services Agreement for Timothy Shriver Restated as
Employment Agreement dated January 1, 2002 and amendments*
10.6 G. Dials Services Agreement dated August 3, 2001
10.7 Dr. BD Liaw Services Agreement dated October 1, 2001
10.8 Assigned Consultant Services Agreement for Michael Mergenthaler
Restated as Employment Agreement dated January 1, 2002
10.9 Agreement by and between the Company and the Department of the Navy*
10.10 Form of Non-Disclosure Agreement between the Company and each
significant employee
10.11 Master Engineering Services Agreement by and between the Company and
Systems 2000, Inc.
10.12 Master Engineering Services Agreement by and between the Company and
Catalina Tool & Mold*
10.13 Form of Employment Agreement
10.14 Asset Purchase Agreement, dated as of August 4, 2001, by and between
the Company and Loch Harris, Inc.
23.1 Consent of Independent auditors
24 Power of Attorney (contained on signature page)
* Previously filed.
II-8
ITEM 28. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Sections 10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) Include any additional or changed material information on the plan of
distribution;
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the small business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the small business
issuer will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-9
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form SB-2 and authorized this registration
statement to be signed on our behalf by the undersigned, on June 21, 2004.
CDEX INC.
By: /s/ MALCOLM H. PHILIPS
----------------------
Name: Malcolm H. Philips
Title: CEO/President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates stated.
NAME TITLE DATE
- ---- ----- ----
/s/ Malcolm H. Philips CEO/President/Chairman of the Board of Directors June 21, 2004
- ------------------------ Malcolm H. Philips Jr.
* Sr. Vice President of Technical Operations June 21, 2004
- ------------------------
Timothy Shriver
/s/ Michael Mergenthaler Vice President of Business Operations June 21, 2004
- ------------------------ (Principal Accounting and Financial Officer)
Michael Mergenthaler
/s/ George Dials Director June 21, 2004
- ------------------------
George Dials
/s/ Dr. BD Liaw Director June 21, 2004
- ------------------------
Dr. BD Liaw
*By: /s/ Malcolm H. Philips Jr.
--------------------------------------------
Malcolm H. Philips, as Attorney-in-Fact
II-10