UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

 

WASHINGTON, D.C. 20549

 

FORM 10-K/A
(Amendment No. 3)

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2011

 

OR

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Commission file number: 333-155299

 

BIODRAIN MEDICAL, INC.
(Exact name of registrant as specified in its charter)

Minnesota	33-1007393
(State or other jurisdiction of	(I.R.S. Employer
incorporation or organization)	Identification No.)

 

2915 Commers Drive, Suite 900
Eagan, Minnesota	55121
(Address of principal executive offices)	(Zip Code)

 

Registrant’s telephone number, including area code: (651) 389-4800

 

Securities registered pursuant to Section 12(b) of the Act: None.

Securities registered pursuant to Section 12(g) of the Act:

 

Title of each class		Name of each exchange on which registered
Common Stock, One Cent ($0.01) Par Value Per Share		None

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes x No ¨

 

Indicate by check mark whether the issuer (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨

  

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ¨	Accelerated filer ¨
Non-accelerated filer ¨	Smaller reporting company x

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x

 

As of June 30, 2011, no market price existed for the voting and non-voting common equity held by non-affiliates of the registrant. There were 103,052,673 shares of the registrant’s common stock outstanding as of December 13, 2012.

  

DOCUMENTS INCORPORATED BY REFERENCE

 

None.

 

 

EXPLANATORY NOTE

 

 

On April 16, 2012, we filed our Annual Report on Form 10-K for the year ended December 31, 2011 (the “Original Filing”), with the Securities and Exchange Commission (the “SEC”). This Amendment No. 3 (this “Amendment”) on Form 10-K/A, which amends and restates Item 9A (Controls and Procedures) is being filed to provide revised disclosure in that Item. Except for the foregoing amended and restated information, this Amendment does not amend, update or change any other information presented in the Original Filing.

 

In addition, as required by Rule 12b-15 of the Securities Exchange Act of 1934, this Form 10-K/A contains new certifications by our principal executive officer and principal financial and accounting officer, filed as an exhibit hereto.

 

 

INDEX TO FORM 10-K/A

 

		Page Number
	PART II
Item 9A	Controls and Procedures	5
	PART IV
Item 15	Exhibits and Financial Statement Schedules	8
	SIGNATURES

 

 PART II

 

ITEM 9A. CONTROLS AND PROCEDURES.

 

Disclosure Controls

 

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized, and reported within the timelines specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can only provide reasonable assurance of achieving the desired control objectives, and in reaching a reasonable level of assurance, management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

 

Our Chief Executive Officer/Chief Financial Officer evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covering this report. Based on this evaluation, our Chief Executive Officer/Chief Financial Officer concluded that, as of December 31, 2011, our disclosure controls and procedures were not effective.

 

Management’s Report on Internal Control Over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in the rules promulgated under the Securities Exchange Act of 1934. Under the supervision and with the participation of our management, including our Chief Executive Officer/Chief Financial Officer, we have conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in “Internal Control-Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management has concluded that the Company’s internal control over financial reporting was not effective as of December 31, 2011 as a result of the material weakness in the accounting and disclosure for stock options and warrants as described below.

 

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis by our internal controls. In connection with our assessment of our internal control over financial reporting as required under Section 404 of the Sarbanes-Oxley Act of 2002, we identified the following material weakness in our internal control structure over financial reporting as of December 31, 2011:

 

In the 4th quarter of 2011, there was an improper gap in maintaining issuance of stock options and warrants discovered in account reconciliations at December 31, 2011. In particular there was a large adjustment converting equity value into compensation expense. These audit adjustments did materially affect our financial position and results of operations for the year ended December 31, 2011.

 

Remediation of Material Weakness in Internal Control Structure over Financial Reporting

 

We are in the process of implementing remediation efforts with respect to our control environment and the material weakness noted above as follows:

 

We plan over the next quarter, to implement corrections to ensure that stock option and warrants are effectively recorded, filed, maintained and reconciled and reviewed for any discrepancies to avoid misstatements of our financial position or results of operations.

 

 

Item 15. Exhibits and Financial Statement Schedules

 

Exhibits. See “Exhibit Index to Form 10-K” immediately following the signature page of this Amendment.

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

	BIODRAIN MEDICAL, INC.
Date: December 14, 2012	By:	/s/ Joshua Kornberg
		Joshua Kornberg President and Chief Executive Officer

 

 

EXHIBIT INDEX

BIODRAIN MEDICAL, INC.

FORM 10-K/A

 

Exhibit   Number		Description
3.1		Articles of Incorporation, as amended
3.2		Bylaws, as amended (7)
10.1		Employment Agreement between the Registrant and Kevin R. Davidson, dated October 4, 2006 (1)**
10.2		Confidential Separation Agreement and Release between the registrant and Lawrence W. Gadbaw, dated August 13, 2008 (1)**
10.3		Stock Option Agreement between the registrant and Kevin R. Davidson, dated June 5, 2008 (1)**
10.4		Director Stock Option Agreement between the registrant and Thomas McGoldrick, dated August 22, 2006 (1)**
10.5		Director Stock Option Agreement between the registrant and Andrew P. Reding, dated November 11, 2006 (1)**
10.6		Consulting Agreement between the registrant and Marshall C. Ryan and Mid-State Stainless, Inc., dated June 2008 (1)
10.7		Patent Assignment by Marshall C. Ryan in favor of the registrant, dated June 18, 2008 (1)
10.8		Convertible Debenture between the registrant and Kevin R. Davidson, dated February 2, 2007 (1)
10.9		Convertible Debenture between the registrant and Peter L. Morawetz, dated February 2, 2007 (1)
10.10		Convertible Debenture between the registrant and Andrew P. Reding, dated February 2, 2007 (1)
10.11		Convertible Debenture between the registrant and Thomas McGoldrick, dated January 30, 2007 (1)
10.12		Convertible Debenture between the registrant and Andcor Companies, Inc., dated September 29, 2006 (1)
10.13		Convertible Debenture between the registrant and Carl Moore, dated March 1, 2007 (1)
10.14		Convertible Debenture between the registrant and Roy Moore, dated March 1, 2007 (1)

 

10.15		Form of Subscription Agreement (1)
10.16		Form of Registration Rights Agreement (1)
10.17		Form of Escrow Agreement (1)
10.18		Form of Warrant (1)
10.19		2008 Equity Incentive Plan (1)**
10.20		Office Lease Agreement between the registrant and Roseville Properties Management Company, as agent for Lexington Business Park, LLC (1)
10.21		Employment Agreement between the registrant and David Dauwalter, dated August 11, 2008 (2)**
10.22		Amendment No. 1 to Employment Agreement between the registrant and David Dauwalter, dated September 11, 2008 (2)**
10.23		Consulting Agreement by and between the registrant and Andcor Companies, Inc., dated September 15, 2008 (2)
10.25		Independent Contractor Agreement between Belimed, Inc. and the registrant, dated February 2, 2009 (3)
10.26		Supply Agreement between Oculus Innovative Sciences, Inc., and the registrant, dated February 20, 2009 (4)
10.27		Agreement between the registrant and Peter Morawetz, dated May 15, 2009 (5)
10.28		Amendment No. 1 to BioDrain Medical, Inc. 2008 Equity Incentive Plan (6)**
10.29		Convertible Note Purchase Agreement between the Company and SOK Partners, LLC dated March 28, 2012, including the form of Convertible Promissory Grid Note (8)
10.30		Amended and Restated Note Purchase Agreement between the Company and Dr. Samuel Herschkowitz dated as of December 20, 2011, including the form of Convertible Promissory Note (issued in the amount of $240,000) (8)

 

  

14.1***		Code of ethics
23.1		Consent of Independent Registered Public Accounting Firm (9)
31.1*		Certification of principal executive officer required by Rule 13a-14(a)

 

31.2*

Certification of principal financial officer required by Rule 13a-14(a)

 

32.1*

Section 1350 Certification

 

*Filed herewith.

**Compensatory Plan or arrangement required to be filed pursuant to Item 15(b) of Form 10-K.

*** Previously filed with Form 10-K filed on April 16, 2012.

 

(1)

Filed on November 12, 2008 as an exhibit to our Registration Statement on Form S-1 and incorporated herein by reference.

 

(2)

Filed on January 12, 2009 as an exhibit to Amendment No. 1 to our Registration Statement on Form S-1and incorporated herein by reference.

 

(3)

Filed on April 6, 2009 as an exhibit to our Amendment No. 3 to our Registration Statement on Form S-1and incorporated herein by reference.

 

(4)

Filed on July 1, 2009 as an exhibit to our Amendment No. 5 to our Registration Statement on Form S-1and incorporated herein by reference.

 

(5)

Filed on August 12, 2009 as an exhibit to Amendment No. 7 to our Registration Statement on Form S-1and incorporated herein by reference.

 

(6)

Filed on June 15, 2011 as an exhibit to our Current Report on Form 8-K and incorporated herein by reference.

 

(7)

Filed on November 23, 2011 as an exhibit to Amendment No. 1 to our Quarterly Report on Form 10-Q and incorporated herein by reference.

 

	(8)	Filed on April 3, 2012 as an exhibit to our Current report on Form 8-K and incorporated herein by reference.
	(9)	Filed April 16, 2012 as an exhibit to our Annual Report on Form 10-K and incorporated herein by reference.

 

(10)

Filed May 2, 2012 as an exhibit to our Annual Report on Form 10-K/A and incorporated herein by reference.