Attached files
file | filename |
---|---|
EX-32 - RESPONSE GENETICS INC | v166414_ex32.htm |
EX-31.2 - RESPONSE GENETICS INC | v166414_ex31-2.htm |
EX-10.1 - RESPONSE GENETICS INC | v166414_ex10-1.htm |
EX-31.1 - RESPONSE GENETICS INC | v166414_ex31-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-Q
(MARK
ONE)
|
||
x
|
QUARTERLY
REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the
quarterly period ended September 30, 2009
¨
|
TRANSITION
REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE
ACT
|
For
the transition period from ___________ to __________
Commission
file number: 001-33509
RESPONSE
GENETICS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
11-3525548
|
(State
or other jurisdiction of incorporation or
organization)
|
(I.R.S.
Employer Identification No.)
|
1640
Marengo St., 6th Floor, Los Angeles, California
|
90033
|
(Address
of principal executive offices)
|
(Zip
Code)
|
(323)
224-3900
(Registrant’s
telephone number, including area code)
Indicate
by check mark whether the Registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes x No ¨
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
definition of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large
Accelerated filer ¨
|
Accelerated
filer ¨
|
Non-accelerated
filer ¨
(do
not check if a smaller reporting company)
|
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
On
November 16, 2009, there were 15,297,183 shares of common stock, $.01 par
value per share, issued and outstanding.
Response
Genetics, Inc.
Form
10-Q
Table
of Contents
Page
|
|||||
Number
|
|||||
Part
I.
|
Financial
Information
|
||||
Item
1.
|
Financial
Statements
|
||||
Unaudited
Consolidated Balance Sheets — December 31, 2008 and September 30,
2009
|
1
|
||||
Unaudited
Consolidated Statements of Operations and Comprehensive Loss — Three and
nine months ended September 30, 2008 and 2009
|
2
|
||||
Unaudited
Consolidated Statements of Cash Flow — Three and nine months ended
September 30, 2008 and 2009
|
3
|
||||
Notes
to Unaudited Consolidated Financial Statements
|
4 -
24
|
||||
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operation
|
25
|
|||
Item
3.
|
Qualitative
and Quantitative Disclosures About Market Risk
|
36
|
|||
Item
4T.
|
Controls
and Procedures
|
36
|
|||
Part
II.
|
Other
Information
|
||||
Item
1.
|
Legal
Proceedings
|
36
|
|||
Item
2.
|
Unregistered
Sales of Equity Securities and Use of Proceeds
|
36
|
|||
Item
3.
|
Defaults
Upon Senior Securities
|
37
|
|||
Item
4.
|
Submission
of Matters to a Vote of Security Holders
|
37
|
|||
Item
5.
|
Other
Information
|
37
|
|||
Item
6.
|
Exhibits
|
37
|
|||
Signatures
|
37
|
||||
Exhibit
Index
|
|||||
EX-31.1
|
|||||
EX-31.2
|
|||||
EX-32
|
ii
RESPONSE
GENETICS, INC.
CONSOLIDATED
BALANCE SHEETS
December 31,
2008
|
September 30,
2009
|
|||||||
|
(Unaudited)
|
|||||||
ASSETS
|
||||||||
Current
assets
|
||||||||
Cash
and cash equivalents
|
$
|
9,545,000
|
$
|
9,299,183
|
||||
Accounts
receivable, net
|
2,119,496
|
1,704,362
|
||||||
Prepaid
expenses and other current assets
|
399,612
|
434,273
|
||||||
Total
current assets
|
12,064,108
|
11,437,818
|
||||||
Property
and equipment, net
|
1,414,842
|
1,300,840
|
||||||
Other
assets
|
69,103
|
69,102
|
||||||
Total
assets
|
$
|
13,548,053
|
$
|
12,807,760
|
||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
liabilities
|
||||||||
Accounts
payable
|
$
|
545,971
|
$
|
871,153
|
||||
Accrued
expenses
|
513,868
|
531,259
|
||||||
Accrued
royalties
|
526,712
|
555,641
|
||||||
Accrued
payroll and related liabilities
|
154,185
|
373,093
|
||||||
Deferred
revenue
|
2,580,498
|
2,123,590
|
||||||
Total
current liabilities
|
4,321,234
|
4,454,736
|
||||||
Deferred
revenue, net of current portion
|
2,355,948
|
2,277,709
|
||||||
Total
liabilities
|
6,677,182
|
6,732,445
|
||||||
Commitments
and contingencies (Note 6)
|
||||||||
Stockholders’
equity
|
||||||||
Common
stock, $0.01 par value; 50,000,000 shares authorized; 10,239,276 and
15,297,183 shares issued and outstanding at December 31, 2008 and
September 30, 2009, respectively
|
102,393
|
152,972
|
||||||
Additional
paid-in capital
|
36,805,932
|
43,542,320
|
||||||
Accumulated
deficit
|
(29,805,729
|
)
|
(37,423,960
|
)
|
||||
Accumulated
other comprehensive loss
|
(231,725
|
)
|
(196,017
|
)
|
||||
Total
stockholders’ equity
|
6,870,871
|
6,075,315
|
||||||
Total
liabilities and stockholders’ equity
|
$
|
13,548,053
|
$
|
12,807,760
|
The
accompanying notes are an integral part of these consolidated financial
statements.
1
RESPONSE
GENETICS, INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS (UNAUDITED)
Three Months
Ended September 30,
|
Nine Months
Ended September 30,
|
|||||||||||||||
|
2008
|
2009
|
2008
|
2009
|
||||||||||||
Net
revenue
|
$
|
1,957,030
|
$
|
2,259,523
|
$
|
5,683,409
|
$
|
5,694,988
|
||||||||
Operating
expenses:
|
||||||||||||||||
Cost
of revenue
|
1,025,383
|
1,175,615
|
2,849,482
|
3,646,358
|
||||||||||||
Selling
and marketing
|
-
|
934,946
|
-
|
2,759,108
|
||||||||||||
General
and administrative
|
2,101,864
|
1,305,247
|
5,580,186
|
4,453,204
|
||||||||||||
UK
operating expenses
|
688,794
|
21,645
|
1,939,828
|
465,910
|
||||||||||||
UK
redundancy costs
|
-
|
66,140
|
-
|
268,374
|
||||||||||||
Research
and development
|
410,469
|
726,696
|
1,719,013
|
1,734,223
|
||||||||||||
Total
operating expenses
|
4,226,510
|
4,230,289
|
12,088,509
|
13,327,177
|
||||||||||||
Operating
loss
|
(2,269,480
|
)
|
(1,970,766
|
)
|
(6,405,100
|
)
|
(7,632,189
|
)
|
||||||||
Other
income (expense):
|
||||||||||||||||
Interest
expense
|
(58
|
)
|
(2,360
|
)
|
(3,027
|
)
|
(8,199
|
)
|
||||||||
Interest
income
|
76,087
|
256
|
319,383
|
22,157
|
||||||||||||
Other
|
(2,266
|
)
|
-
|
(3,692
|
)
|
-
|
||||||||||
Net
loss
|
$
|
(2,195,717
|
)
|
$
|
(1,972,870
|
)
|
$
|
(6,092,436
|
)
|
$
|
(7,618,231
|
)
|
||||
Unrealized
gain on foreign currency translation
|
5,270
|
18,467
|
-
|
35,708
|
||||||||||||
Total
comprehensive loss
|
$
|
(2,190,447
|
)
|
$
|
(1,954,403
|
)
|
$
|
(6,092,436
|
)
|
$
|
(7,582,523
|
)
|
||||
Net
loss per share — basic and diluted
|
$
|
(0.21
|
)
|
$
|
(0.14
|
)
|
$
|
(0.60
|
)
|
$
|
(0.60
|
)
|
||||
Weighted-average
common shares — basic and diluted
|
10,239,276
|
14,599,182
|
10,239,276
|
12,594,995
|
The
accompanying notes are an integral part of these consolidated financial
statements.
2
RESPONSE
GENETICS, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS (UNAUDITED)
Nine Months
Ended September 30,
|
||||||||
|
2008
|
2009
|
||||||
Cash
flows from operating activities:
|
||||||||
Net
loss
|
$
|
(6,092,436
|
)
|
$
|
(7,618,231
|
)
|
||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Depreciation
and amortization
|
524,431
|
307,585
|
||||||
Share-based
compensation
|
1,186,033
|
725,066
|
||||||
Loss
(gain) on sale of property and equipment
|
1,427
|
(48,615
|
)
|
|||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
3,498,702
|
415,134
|
||||||
Prepaid
expenses and other current assets
|
(34,451
|
)
|
(28,405
|
)
|
||||
Other
assets
|
(42,749
|
)
|
-
|
|||||
Accounts
payable
|
476,132
|
324,325
|
||||||
Accrued
expenses
|
149,478
|
16,246
|
||||||
Accrued
royalties
|
210,886
|
28,929
|
||||||
Accrued
payroll and related liabilities
|
(276,373
|
)
|
218,908
|
|||||
Deferred
revenue
|
(3,584,115
|
)
|
(535,147
|
)
|
||||
Net
cash used in operating activities
|
(3,983,035
|
)
|
(6,194,205
|
)
|
||||
Cash
flows from investing activities:
|
||||||||
Purchase
of property and equipment
|
(683,213
|
)
|
(193,583
|
)
|
||||
Proceeds
from sale of property and equipment
|
-
|
48,615
|
||||||
Net
cash used in investing activities
|
(683,213
|
)
|
(144,968
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Proceeds
from issuance of common stock
|
-
|
5,975,279
|
||||||
Capital
contributions
|
-
|
86,622
|
||||||
Net
cash used in investing activities
|
-
|
6,061,901
|
||||||
Effect
of foreign exchange rates on cash and cash equivalents
|
(83,451
|
)
|
31,455
|
|||||
Net
decrease in cash and cash equivalents
|
(4,749,699
|
)
|
(245,817
|
)
|
||||
Cash
and cash equivalents:
|
||||||||
Beginning
of period
|
17,024,209
|
9,545,000
|
||||||
End
of period
|
$
|
12,274,510
|
$
|
9,299,183
|
||||
Cash
paid during the period for:
|
||||||||
Income
taxes
|
$
|
39,000
|
$
|
-
|
||||
Interest
|
$
|
3,027
|
$
|
8,199
|
The
accompanying notes are an integral part of these consolidated financial
statements.
3
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1.
Organization, Operations and Basis of Accounting
Response
Genetics, Inc. (the “Company”) was incorporated in the state of Delaware on
September 23, 1999 as Bio Type, Inc. for the purpose of providing unique
molecular profiling services of tumor tissue that has been formalin-fixed and
embedded in paraffin wax. In August 2000, the Company changed its name to
Response Genetics, Inc. In November 2006, the Company established
Response Genetics Ltd., a wholly owned subsidiary in Edinburgh, Scotland.
On February 9, 2009 we implemented a reduction of workforce (“reduction of
workforce”) pursuant to which we have closed our subsidiary in Edinburgh. See
Note 13“UK OPERATIONS”.
The
Company is a life science company engaged in the research, development,
marketing and sale of pharmacogenomic tests for use in the treatment of cancer.
Pharmacogenomics is the science of how an individual’s genetic makeup relates to
drug response. Tests based on pharmacogenomics facilitate the prediction of a
response to drug therapy or survival following surgery based on an individual’s
genetic makeup. In order to generate pharmacogenomic information from patient
specimens for these tests, the Company developed and patented enabling methods
for maximizing the extraction and analysis of nucleic acids and, therefore,
accessing the genetic information available from each patient sample. The
Company’s platforms include analysis of single biomarkers using the polymerase
chain reaction method as well as global gene interrogation using microarray
methods from paraffin or frozen tissue specimens. The Company primarily derives
its revenue by providing pharmacogenomic testing services to pharmaceutical
companies in the United States, Asia and Europe.
The
Company’s goal is to provide cancer patients and their physicians with a means
to make informed, individualized treatment decisions based on genetic analysis
of tumor tissues. The Company’s pharmacogenomic analysis of clinical trial
specimens for the pharmaceutical industry may provide data that will lead to a
better understanding of the molecular basis for response to specific drugs and,
therefore lead to individualized treatment.
The
accompanying unaudited consolidated financial statements have been prepared in
accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) for
interim financial information and with the instructions for Form 10-Q
promulgated by the Securities and Exchange Commission (the “SEC”). Accordingly,
they do not include all of the information and footnotes required by U.S. GAAP
for complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring adjustments) considered necessary for a fair
presentation have been included. The results of operations for interim periods
are not necessarily indicative of the results that may be expected for the
fiscal year. The financial statements should be read in conjunction with the
Company’s audited December 31, 2008 and 2007 consolidated financial statements
and accompanying notes included in the Company’s Form 10-K previously filed with
the SEC. In June 2009, the Financial Accounting Standards Board (“FASB”)
issued Statement of Financial Accounting Standards (“SFAS”) No. 168, The FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles (the “Codification”). This standard replaces SFAS No.
162, The Hierarchy of
Generally Accepted Accounting Principles, and establishes only two levels
of U.S. generally accepted accounting principles (“GAAP”), authoritative and
nonauthoritative. The FASB Accounting Standards Codification (“ASC”) will become
the source of authoritative, nongovernmental GAAP, except for rules and
interpretive releases of the SEC, which are sources of authoritative GAAP for
SEC registrants. All other nongrandfathered, non-SEC accounting literature not
included in the Codification will become nonauthoritative. This standard is
effective for financial statements for interim or annual reporting periods
ending after September 15, 2009. The adoption of the Codification changed
the Company’s references to GAAP accounting standards but did not impact the
Company’s results of operations, financial position or liquidity.
2.
Summary of Significant Accounting Policies
Basis
of Consolidation
The
consolidated financial statements include the accounts of Response Genetics,
Inc. and its wholly owned subsidiary, Response Genetics, Ltd., a Scottish
corporation, which was incorporated in November 2006. All significant
intercompany transactions and balances have been eliminated in
consolidation.
4
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Cash
and Cash Equivalents
The
Company considers all highly liquid investments with a maturity at date of
purchase of three months or less to be cash equivalents. The carrying value of
cash equivalents approximates fair value due to the short-term nature and
liquidity of these instruments. The Company’s cash equivalents are comprised of
cash on hand, deposits in banks and money market investments.
Accounts
Receivable
Clinical Accounts
Receivable
The
Company invoices its clients as specimens are processed and any other
contractual obligations are met. The Company’s contracts with clients typically
require payment within 45 days of the date of invoice. The Company maintains
allowances for doubtful accounts for estimated losses resulting from the
inability of its clients to make required payments. The Company specifically
analyzes accounts receivable and historical bad debts, client credit, current
economic trends and changes in client payment trends when evaluating the
adequacy of the allowance for doubtful accounts. Account balances are
charged-off against the allowance when it is probable the receivable will not be
recovered. To date, the Company’s clients have primarily been large
pharmaceutical companies. As a result, bad debts to date have been minimal.
There were no allowances for doubtful accounts recorded at December 31, 2008 and
September 30, 2009.
ResponseDX Accounts
Receivable
ResponseDX
accounts receivable related to Medicare billings is recorded at established
billing rates less an estimated billing adjustment, based on reporting models
utilizing historical cash collection percentages and updated for current
effective reimbursement factors from third party payers and patients. Management
performs ongoing evaluations of account receivable balances based on
management’s evaluation of historical experience and current industry trends.
Management believes that no allowance for doubtful accounts is currently needed.
Although the Company expects to collect amounts due, actual collections may
differ materially from estimated amounts.
ResponseDX
accounts receivable as of September 30, 2009, consisted of the
following:
September
30, 2009
|
||||
Gross
ResponseDX Medicare receivable
|
$
|
1,138,824
|
||
Less
contractual allowances
|
(737,501
|
)
|
||
Net
ResponseDX Medicare accounts receivable
|
$
|
401,323
|
Currently,
we recognize ResponseDX revenue from third party and private payors on a cash
basis until a collection history can be determined. Until we are reasonably
assured about a pattern of collections, we will continue to record revenues from
third party payors of ResponseDX on a cash basis.
5
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Property
and Equipment
Property
and equipment are carried at cost less accumulated depreciation and
amortization. Depreciation and amortization are calculated using an accelerated
method over the estimated useful lives of the assets. The Company has determined
the estimated useful lives of its property and equipment, as
follows:
Laboratory
equipment
|
5
to 7 years
|
|
Furniture
and Equipment
|
5
to 7 years
|
|
Leasehold
Improvements
|
Shorter
of the useful life or the lease
term
|
Maintenance
and repairs are charged to expense as incurred. The cost and accumulated
depreciation of assets sold or otherwise disposed of are removed from the
related accounts and the resulting gain or loss is reflected in the statements
of operations. During the year ended December 31, 2008 and the nine months ended
September 30, 2009, the Company has capitalized costs related to database
software development. The Company has not yet placed this database into service
and accordingly has not depreciated these software development costs. The
Company intends to place those database software costs into service and amortize
those costs beginning January 2010 in accordance with ASC 350.40, Internal-Use Software,
(formerly SOP 98-1) and the amortization period will be three years using the
straight line method.
Revenue
Recognition
Revenues
are derived from pharmacogenomic testing services provided to pharmaceutical
companies and are recognized on a contract specific basis pursuant to the terms
of the related agreements. Revenue is recognized in accordance with SEC Staff
Accounting Bulletin No. 104, Revenue Recognition, which
requires that four basic criteria must be met before revenue can be recognized:
(1) persuasive evidence of an arrangement exists; (2) delivery has occurred and
title and the risks and rewards of ownership have been transferred to the client
or services have been rendered; (3) the price is fixed or determinable; and (4)
collectibility is reasonably assured.
Revenues
are recorded on an accrual basis as the contractual obligations are completed
and as a set of assays is processed through the Company’s laboratory under a
specified contractual protocol. Certain contracts have minimum assay
requirements that, if not met, result in payments that are due upon the
completion of the designated period. In these cases, revenues are recognized
when the end of the specified contract period is reached.
On
occasion, the Company may enter into a contract that requires the client to
provide an advance payment for specimens that will be processed at a later date.
In these cases, the Company records this advance as deferred revenue and
recognizes the revenue as the specimens are processed or at the end of the
contract period, as appropriate.
We
recognize revenue from our ResponseDX tests invoiced to Medicare on an accrual
basis and revenue invoiced to third-party payers, including private payors, on a
cash basis. We have received our Medicare provider number which allows us to
invoice and collect from Medicare. Our invoicing to Medicare is primarily based
on amounts allowed by Medicare for the service provided as defined by Common
Procedural Terminology (CPT) codes. We recognize revenue from third party and
private payors currently on a cash basis until a collection history can be
determined. Until we are reasonably assured about a pattern of collections we
will continue to record revenues from third party payors of ResponseDX on a cash
basis.
6
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Cost
of Revenue
Cost of
revenue represents the cost of materials, direct labor, costs associated with
processing tissue specimens including pathological review, staining,
microdissection, paraffin extraction, reverse transcription polymerase chain
reaction, or (“RT-PCR”) and quality control analyses, license fees and delivery
charges necessary to render an individualized test result. Costs associated with
performing tests are recorded as the tests are processed.
Patent
License Fees
The
Company has licensed technology for the extraction of mRNA from formalin-fixed,
paraffin-embedded tumor specimens from the University of Southern California
(“USC”). Under the terms of the license agreement, the Company is required to
pay royalties to USC based on the revenue generated by use of this technology.
The Company maintains a non-exclusive license to use the polymerase chain
reaction (“PCR”), homogenous PCR, and reverse transcription PCR processes of
Roche Molecular Systems, Inc. (“Roche”). The Company pays Roche Molecular
Systems a royalty fee based on revenue that the Company generates through use of
this technology. The Company accrues for such royalties at the time revenue is
recognized. Such royalties are included in cost of revenue in the accompanying
statements of operations.
Research
and Development
The
Company expenses costs associated with research and development activities as
incurred. Research and development costs are allocated on a pro rata basis using
the number of research-only specimens that are processed by the Company versus
specimens that are processed and paid for by various third parties via contract.
Research and development costs include employee costs (salaries, payroll taxes,
benefits, and travel), equipment depreciation and warranties and maintenance,
laboratory supplies, primers and probes, reagents, patent costs and occupancy
costs.
Income
Taxes
Deferred
tax assets and liabilities are determined based on differences between the
financial reporting and tax basis of assets and liabilities and are measured
using the enacted tax rates and laws that will be in effect when the differences
are expected to reverse. Valuation allowances are established when necessary to
reduce deferred tax assets to the amount expected to be realized.
ASC 740,
Income Taxes, clarifies
the accounting for uncertainty in income taxes recognized in financial
statements and requires the impact of a tax position to be recognized in the
financial statements if that position is more likely than not of being sustained
by the taxing authority. At the date of adoption, and as of December 31, 2008
and September 30, 2009, the Company does not have a liability for unrecognized
tax benefits.
7
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Stock-Based
Compensation
The
Company accounts for stock-based compensation in accordance with ASC 718,
Stock Compensation
(formerly SFAS 123(R), Share- Based Payment) , which
requires the measurement and recognition of compensation expense for all
share-based payment awards based on estimated fair values.
Stock-based
compensation expense recognized in accordance with ASC 718 was $538,850 and
$221,514 for the three months ended September 30, 2008 and 2009, respectively,
and $1,186,033 and $725,066 for the nine months ended September 30, 2008 and
2009, respectively. The Company accounts for equity instruments issued to
non-employees in accordance with ASC 505, Equity, (formerly EITF
96-18). Under ASC 505, stock option awards issued are measured at fair value
using the Black-Scholes option-pricing model.
Management
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 materially from those estimates.
Management has identified revenue, stock-based compensation, the assessment of
the realizability of deferred income tax assets, and share-based compensation as
areas where significant estimates and assumptions have been made in preparing
the financial statements.
Long-lived
Assets
Long-lived
assets are reviewed for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable. The
Company evaluates potential impairment by comparing the carrying amount of the
asset with the estimated undiscounted future cash flows associated with the use
of the asset and its eventual disposition. Should the review indicate that the
asset is not recoverable, the Company’s carrying value of the asset would be
reduced to its estimated fair value, which is measured by future discounted cash
flows.
Foreign
Currency Translation
The
financial position and results of operations of the Company’s foreign operations
are determined using local currency as the functional currency. Assets and
liabilities of these operations are translated at the exchange rate in effect at
each period-end. Statement of operations amounts are translated at the average
rate of exchange prevailing during the period. Translation adjustments arising
from the use of differing exchange rates from period to period are included in
accumulated other comprehensive loss in stockholders’ equity. The
Company accounts for deferred revenue related to a specific contract as a
nonmonetary obligation using historical exchange rates.
8
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Comprehensive
Income (Loss)
Comprehensive
income (loss) encompasses the change in equity from transactions and other
events and circumstances from non-owner sources and the Company’s net income
(loss). The components of comprehensive loss and accumulated other comprehensive
loss comprise net loss and foreign currency translation adjustments as of
December 31, 2008 and September 30, 2009 and for the three and nine months ended
September 30, 2009 and 2008.
Fair
Value of Financial Instruments
Cash and
cash equivalents are stated at cost, which approximates fair market value.
Cash equivalents consist of money market accounts, with fair values estimated
based on quoted market prices. For additional information see NOTE 15 Fair Value
Measurements.
Reclassifications
Prior
year amounts in the consolidated financial statements have been reclassified to
conform to the current year presentation. Reclassified amounts for 2008 related
to UK operations had no impact on the company’s net losses.
9
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2.
Summary of Significant Accounting Policies - (continued)
Concentration
of Credit Risk and Clients and Limited Suppliers
Cash and
cash equivalents consist of financial instruments that potentially subject the
Company to concentrations of credit risk to the extent recorded on the balance
sheets. The Company maintains cash in United States financial institutions
within the insurance limits of the Federal Deposit Insurance Corporation as of
September 30, 2009. In addition, the Company has invested its excess cash in
money market instruments which are not insured under the Federal Deposit
Insurance Corporation but are insured under the Securities Industry Protection
Corporation. The Company had approximately $7,240,000 of cash in money market
instruments and has not incurred any losses on these cash balances as of
September 30, 2009. At September 30, 2009, approximately $258,000 of
cash was held outside of the United States and is uninsured.
Revenue sources that
account for greater than 10 percent of revenue are provided below.
Three Months
Ended September 30,
|
Nine Months
Ended September 30,
|
|||||||||||||||||||||||||||||||
2008
|
2009
|
2008
|
2009
|
|||||||||||||||||||||||||||||
Revenue
|
Percent
of Total
Revenue
|
Revenue
|
Percent
of Total
Revenue
|
Revenue
|
Percent
of Total
Revenue
|
Revenue
|
Percent
of Total
Revenue
|
|||||||||||||||||||||||||
Taiho
Pharmaceutical
|
$
|
356,300
|
18
|
%
|
$
|
260,700
|
12
|
%
|
$
|
1,183,575
|
21
|
%
|
$
|
581,050
|
10
|
%
|
||||||||||||||||
GlaxoSmithKline
|
$
|
393,233
|
20
|
%
|
$
|
77,225
|
*
|
|
$
|
1,024,531
|
18
|
%
|
$
|
92,525
|
*
|
|
||||||||||||||||
GlaxoSmithKline
Biologicals
|
$
|
1,070,160
|
55
|
%
|
$
|
781,707
|
35
|
%
|
$
|
3,108,309
|
55
|
%
|
$
|
2,357,234
|
41
|
%
|
||||||||||||||||
The
Foundation of Biomedical Research
|
$
|
74,175
|
*
|
|
$
|
180,400
|
*
|
$
|
165,625
|
*
|
$
|
669,750
|
12
|
%
|
*less
than 10%
Clients
that account for greater than 10 percent of accounts receivable are provided
below.
As of December 31, 2008
|
As of September 30, 2009
|
|||||||||||||||
Receivable
Balance
|
Percent of
Total
Receivables
|
Receivable
Balance
|
Percent of
Total
Receivables
|
|||||||||||||
Taiho Pharmaceutical
|
$
|
388,275
|
18
|
%
|
$
|
350,275
|
21
|
%
|
||||||||
GlaxoSmithKline
|
$
|
1,294,768
|
61
|
%
|
$
|
806,774
|
47
|
%
|
||||||||
Hitachi
Chemical
|
$
|
265,415
|
12
|
%
|
$
|
*
|
*
|
*less
than 10%
Many of
the supplies and reagents used in the Company’s testing process are procured
from a limited number of suppliers. Any supply interruption or an increase in
demand beyond the suppliers’ capabilities could have an adverse impact on the
Company’s business. Management believes it can identify alternative sources, if
necessary, but it is possible such sources may not be identified in sufficient
time to avoid an adverse impact on its business. Refer also to Notes 6 and 7 for
further discussion regarding these supply agreements.
10
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2. Summary of Significant Accounting
Policies - (continued)
Recent
Accounting Pronouncement
In April 2009, the Company
adopted a new accounting standard included in ASC 820, Fair Value Measurements and
Disclosures, (formerly the FASB issued Staff Position SFAS No. 107-1 and
Accounting Principles Board (“APB”) Opinion No. 28-1, Interim Disclosures about Fair Value
of Financial Instruments ). ASC 820 requires disclosure about fair value
of financial instruments in interim financial statements as well as in annual
financial statements. The new standard requires those disclosures in all interim
financial statements. The provisions of the new standard was
effective for interim reporting period ended June 30, 2009 and the application
of the provisions of the standard did not affect our results of operations or
financial condition.
In May
2009, the FASB issued new guidance for subsequent events. The new
guidance, which is part of ASC 855, Subsequent Events, (formerly
SFAS No. 165, Subsequent
Events) is intended to establish standards of accounting for and
disclosure of events that occur after the balance sheet date but before
financial statements are issued. See Note 16 for additional information.
The adoption of ASC 855 resulted in additional quarterly disclosures beginning
in the second quarter of 2009 but did not affect the results of operations or
financial condition..
In
June 2009, the FASB issued SFAS No. 166, Accounting for Transfers of
Financial Assets, now ASC 86-20 Sale of Financial Assets,
which has not yet been adopted into Codification. SFAS No. 166 removes the
concept of a qualifying special-purpose entity (QSPE) from SFAS No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishment of
Liabilities, and removes the exception from applying FIN 46(R). This statement
also clarifies the requirements for isolation and limitations on portions of
financial assets that are eligible for sale accounting. This statement is
effective for fiscal years beginning after November 15, 2009. As such, the
Company plans to adopt SFAS No. 166 effective January 1, 2010. The
adoption of this standard is not expected to have a material effect on the
Company’s results of operations or financial position.
In
June 2009, the FASB issued SFAS No. 167, Amendments to FASB
Interpretation No. 46(R), now ASC 810 Consolidation,Variable Interest
Entities, which has not yet been adopted into Codification. SFAS 167,
which amends FASB Interpretation No. 46 (revised December 2003),
Consolidation of Variable Interest Entities, (FIN 46(R)), prescribes a
qualitative model for identifying whether a company has a controlling financial
interest in a variable interest entity (VIE) and eliminates the quantitative
model prescribed by FIN 46(R). The new model identifies two primary
characteristics of a controlling financial interest: (1) provides a company
with the power to direct significant activities of the VIE, and
(2) obligates a company to absorb losses of and/or provides rights to
receive benefits from the VIE. SFAS No. 167 requires a company to reassess
on an ongoing basis whether it holds a controlling financial interest in a VIE.
A company that holds a controlling financial interest is deemed to be the
primary beneficiary of the VIE and is required to consolidate the VIE. This
statement is effective for fiscal years beginning after November 15,
2009. The adoption of this standard is not expected to have a
material effect on the Company’s results of operations or financial
position.
In
June 2009, the FASB issued SFAS No. 168, The FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles. This standard replaces SFAS No. 162, The Hierarchy of
Generally Accepted Accounting Principles , and establishes only two
levels of U.S. generally accepted accounting principles, authoritative and
nonauthoritative. The FASB Accounting Standards Codification will become the
source of authoritative, nongovernmental GAAP, except for rules and interpretive
releases of the SEC, which are sources of authoritative GAAP for SEC
registrants. All other nongrandfathered, non-SEC accounting literature not
included in the Codification will become nonauthoritative. This standard is
effective for financial statements for interim or annual reporting periods
ending after September 15, 2009. The adoption of the Codification changed
the Company’s references to GAAP accounting standards but did not impact the
Company’s results of operations, financial position or liquidity.
In June
2009, the FASB issued FASB Accounting Standards Update (“ASU”) 2009-01 “Topic
105 – Generally accepted Accounting Principles amendments based on the Statement
of Financial Accounting Standards No. 168 - The FASB Accounting Standards
Codification and the Hierarchy of Generally Accepted Accounting Principles.” ASU
2009-01 establishes the FASB Accounting Standards Codification as the single
source of authoritative nongovernmental U.S. generally accepted accounting
principles. The Company adopted ASU 2009-01 during the quarter ended September
30, 2009, and its application did not affect our results of operations or
financial condition.
In
June 2009, the FASB issued ASU No. 2009-02, “Omnibus Update —
Amendments to Various Topics for Technical Corrections” (ASU 2009-02). The FASB
issued ASU 2009-02 in order to make technical corrections to the Codification.
The Company adopted ASU 2009-02 during the quarter ended September 30, 2009, and
its application did not affect our results of operations or financial
condition.
In
August 2009, the FASB issued ASU No. 2009-03, “SEC Update — Amendments
to Various Topics Containing SEC Staff Accounting Bulletins” (ASU 2009-03). The
Codification includes certain SEC and SEC staff guidance in order to increase
usefulness of the Codification for public companies. The SEC guidance is
presented in separate sections and is limited to material on the basic financial
statements. ASU 2009-03 includes technical corrections to various topics
containing SEC Staff Accounting Bulletins to update cross-references to
Codification text. The Company adopted ASU 2009-03 during the quarter ended
September 30, 2009, and its application did not affect our results of operations
or financial condition.
In
August 2009, the FASB issued ASU No. 2009-05, “Fair Value Measurements
and Disclosures (Topic 820) — Measuring Liabilities at Fair Value” (ASU
2009-05). This ASU amends Subtopic 820-10, Fair Value Measurements and
Disclosures-Overall, for the fair value measurement of liabilities, and provides
clarification regarding required valuations techniques for circumstances in
which a quoted price in an active market for the identical liability is not
available. The Company adopted ASU 2009-05 during the quarter ended September
30, 2009, and its application did not affect our results of operations or
financial condition.
In
September 2009, the FASB issued ASU No. 2009-07, “Accounting for
Various Topics — Technical Corrections to SEC Paragraphs” (ASU 2009-07). This
ASU represents technical corrections to various topics containing SEC guidance
based on external comments received. The Company adopted ASU 2009-07 during the
quarter ended September 30, 2009, and its application did not affect our results
of operations or financial condition.
In August
2009, the FASB issued new guidance relating to the accounting for the fair value
measurement of liabilities. The new guidance, which is now part of ASC 820,
provides clarification that in certain circumstances in which a quoted price in
an active market for the identical liability is not available, a company is
required to measure fair value using one or more of the following valuation
techniques: the quoted price of the identical liability when traded as an asset,
the quoted prices for similar liabilities or similar liabilities when traded as
assets, or another valuation technique that is consistent with the principles of
fair value measurements. The new guidance clarifies that a company is not
required to include an adjustment for restrictions that prevent the transfer of
the liability and if an adjustment is applied to the quoted price used in a
valuation technique, the result is a Level 2 or 3 fair value measurement. The
new guidance is effective for interim and annual periods beginning after August
27, 2009. The adoption of this guidance is not expected to have a material
effect on the Company’s results of operations or financial
position.
11
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
3.
Property and Equipment
Property
and equipment consists of the following:
December 31,
2008
|
September 30,
2009
|
|||||||
Laboratory
equipment
|
$
|
2,198,036
|
$
|
2,311,350
|
||||
Furniture
and equipment
|
451,908
|
528,831
|
||||||
Leasehold
improvements
|
183,514
|
188,509
|
||||||
Software
development
|
377,321
|
371,872
|
||||||
Total
|
3,210,779
|
3,400,562
|
||||||
Less:
accumulated depreciation and amortization
|
(1,795,937
|
)
|
(2,099,722
|
)
|
||||
Total
property and equipment, net
|
$
|
1,414,842
|
$
|
1,300,840
|
Depreciation
expense for the three months ended September 30, 2008 and 2009 was $185,234 and
$86,970, respectively and for the nine months ended September 30, 2008 and 2009
was $524,431 and $307,585, respectively.
As a
result of the reduction of workforce management implemented on February 9, 2009,
management performed a recoverability test of the long-lived assets located at
the United Kingdom testing facility in accordance with ASC 360, Property, Plant and
Equipment, (formerly SFAS No. 144). Based on the
recoverability analysis performed, the Company recorded a non-cash charge for
the impairment of long-lived assets of $0.9 million as of December 31, 2008 to
write down the carrying value of the long-lived assets to their estimated fair
value of $0. The fair value was estimated based upon offers received from third
parties to purchase the long-lived assets.
12
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
4.
Prepaid Expenses and Other Current Assets
Prepaid
expenses and other current assets consist of the following:
December 31,
|
September 30,
|
|||||||
2008
|
2009
|
|||||||
Prepaid
insurance
|
$
|
146,084
|
$
|
105,761
|
||||
Prepaid
maintenance contracts
|
98,513
|
191,011
|
||||||
Other
|
155,015
|
137,501
|
||||||
|
$
|
399,612
|
$
|
434,273
|
5.
Loss Per Share
The
Company calculates net loss per share in accordance with ASC 260, Earnings Per Share, (formerly
SFAS No. 128). Under the provisions of ASC 260, basic net loss per share is
computed by dividing the net loss for the period by the weighted average number
of shares of common stock outstanding for the period. Diluted net loss per share
is computed by dividing the net loss by the weighted average number of shares of
common stock and dilutive common stock equivalents then outstanding. Common
stock equivalents consist of shares of common stock issuable upon the exercise of stock
options and warrants.
The
following table sets forth the computation for basic and diluted loss per
share:
Three Months
Ended September 30,
|
Nine Months
Ended September 30,
|
|||||||||||||||
2008
|
2009
|
2008
|
2009
|
|||||||||||||
Numerator:
|
||||||||||||||||
Net
loss
|
$
|
(2,195,717
|
)
|
$
|
(1,972,870
|
)
|
$
|
(6,092,436
|
)
|
$
|
(7,618,231
|
)
|
||||
Numerator
for basic loss per share
|
(2,195,717
|
)
|
(1,972,870
|
)
|
(6,092,436
|
)
|
$
|
(7,618,231
|
)
|
|||||||
Denominator:
|
||||||||||||||||
Denominator
for basic and diluted loss per
share — weighted-average common shares
|
10,239,276
|
14,599,182
|
10,239,276
|
12,594,995
|
||||||||||||
Basic
and diluted loss per share
|
$
|
(0.21
|
)
|
$
|
(0.14
|
)
|
$
|
(0.60
|
)
|
$
|
(0.60
|
)
|
Outstanding
stock options and warrants to purchase 1,762,990 shares and 2,056,490 shares for
the periods ended September 30, 2008 and 2009, respectively, were excluded from
the calculation of diluted loss per share as their effect would have been
antidilutive.
13
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
6.
Commitments and Contingencies
Operating
Leases
The
Company leases office and laboratory space under a noncancelable operating lease
that expires on January 31, 2010. The lease contains two two-year options
to extend the term of the lease and contains annual scheduled rate increases
tied to the Consumer Price Index for the Los Angeles/Long Beach California
metropolitan area. In March 2007, the Company entered into a noncancelable
operating lease, which expired in March 2009, for office and laboratory space in
Scotland. As a result of the reduction in workforce implemented by the Company
on February 9, 2009, the Company extended its lease in Scotland for one
additional month. For additional information see Note 13 UK Operations. The
Company also leases space at 103 South Carroll Street, Suite 2b, Fredrick,
Maryland 21701, for administrative purposes. This lease expires on August 31,
2010. Rent expense, included in cost of revenue, G&A, and
R&D, was $163,880 and $84,289 for the three months ended September 30, 2008
and 2009, respectively and was $481,043 and $330,913 for the nine months ended
September 30, 2008 and 2009, respectively.
Future
minimum lease payments by year and in the aggregate, under the Company’s
noncancelable operating leases, consist of the following at September 30,
2009:
Year Ending December 31,
|
||||
remainder
of 2009
|
$
|
108,942
|
||
2010
|
36,251
|
|||
Total
|
$
|
145,193
|
Agreements
with Suppliers
The
Company purchases certain lab supplies and reagents primarily from three
suppliers. Purchases from these companies accounted for approximately 85% and
82% of the Company’s reagent purchases for the period ended September 30, 2008
and 2009, respectively.
Guarantees
The Company enters into indemnification provisions under its agreements with
other counterparties in its ordinary course of business, typically with business
partners, clients and landlords. Under these provisions, the Company generally
indemnifies and holds harmless the indemnified party for losses suffered or
incurred by the indemnified party as a result of the Company's activities. These
indemnification provisions generally survive termination of the underlying
agreement. The Company reviews its exposure under these agreements no less than
annually, or more frequently when events indicate. The Company believes the
estimated fair value of these agreements is minimal as historically, no payments
have been made by the Company under these indemnification obligations.
Accordingly, the Company has no liabilities recorded for these agreements as of
September 30, 2009.
7.
License and Collaborative Agreements
License
Agreement with the University of Southern California (“USC”)
In April
2000, as amended in September 2002 and April 2005, the Company entered into a
license agreement with USC. Under this agreement, USC granted the Company a
worldwide, exclusive license with the right to sublicense, the patents for RGI-1
and related technology, for use in human and veterinary diagnostic laboratory
services, the sale of clinical diagnostic products, and the sale of research
products to the research community. USC retains the right under the agreement to
use the technology for research and educational purposes.
In
consideration for this license, the Company agreed to pay to USC royalties based
on a percentage of the revenues generated by the use of RGI-1 and related
technology. Royalty expense relating to this agreement amounted to
$17,525 and $58,361 for the three months ended September 30, 2008 and 2009,
respectively, and $58,105 and $135,369 for the nine months ended September 30,
2008, and 2009, respectively. Such expense is included in cost of
revenue in the accompanying statements of operations.
14
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
7.
License and Collaborative Agreements - (continued)
License
Agreement with Roche Molecular Systems (“Roche”)
In July
2001, the Company entered into a diagnostic services agreement with Roche to
provide the Company with access to Roche’s patented PCR technology. In November
2004, this agreement was replaced by a non-exclusive license to use Roche’s PCR,
homogenous PCR, and reverse transcription PCR processes. In consideration for
these rights, the Company is obligated to pay royalties to Roche, based on a
percentage of net sales of products or services that make use of the PCR
technology. Royalty expense relating to this agreement amounted to
$77,637 and $(84,058) for the quarter ended September 30, 2008 and 2009,
respectively, and $236,473 and $116,402 for the nine months ended September 30,
2008, and 2009, respectively. Such expense is included in cost of
revenue in the accompanying statements of operations.
In
November 2004, the Company entered into an agreement with Roche, pursuant to
which the Company is collaborating with Roche to produce commercially viable
assays used in the validation of genetic markers for pharmaceutical companies.
Specifically, the Company has licensed the rights to Roche to use the
pre-diagnostic assays the Company develops in the course of using its
RNA-extraction technologies to provide testing services to pharmaceutical
companies and to produce diagnostic kits that then can be sold commercially to
those pharmaceutical companies. Roche is required to pay the Company royalties
of a certain percentage of net sales of such diagnostic kits sold to
pharmaceutical companies. Through September 30, 2009, Roche has not been
required to pay any royalties to the Company pursuant to this
agreement.
Services
Agreement with Taiho Pharmaceutical Co., Ltd. (“Taiho”)
In July
of 2001, the Company entered into an agreement with Taiho pursuant to which it
will provide Taiho with molecular-based tumor analyses for use in guiding
chemotherapy treatment for cancer patients using the RGI-1 and for use in its
business developing and marketing pharmaceutical and diagnostic products for use
against cancer. Pursuant to the agreement, the Company appointed Taiho as the
exclusive purchaser in Japan of tests and testing services based upon the RGI-1
using gene expression for (i) any one or the combination of specified molecular
markers, (ii) the therapeutic use of specified compounds, or (iii) the diagnosis
or therapeutic treatment of specified precancerous and cancerous diseases. The
Company also granted Taiho the right to be a non-exclusive purchaser in Japan of
tests and testing services based upon the RGI-1 using gene expression, other
than those for which Taiho has exclusivity, for, (i) any one or combination of
molecular markers, (ii) the therapeutic use of any compound or biological
product against cancer, or (iii) the diagnosis or therapeutic treatment of
precancerous and cancerous diseases.
In
consideration for the testing services provided, Taiho paid an upfront payment
at the commencement of the agreement and is obligated to pay regular testing
fees, covering the specific services performed on a monthly basis.
Taiho is
obligated to purchase a minimum amount of testing services from the Company each
calendar quarter. Revenue recognized under this agreement was $356,300 and
$441,100 for the quarter ended September 30, 2008 and 2009, respectively, and
$1,183,575 and $1,244,800 for the nine months ended September 30, 2008, and
2009, respectively.
15
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
7.
License and Collaborative Agreements - (continued)
Services
Agreement with SmithKline Beecham Corporation (d.b.a. GlaxoSmithKline or
“GSK”)
In
January 2006, the Company entered into an agreement with GSK pursuant to which
the Company provides services in connection with profiling the expression of
various genes from a range of human cancers. Under the agreement, the Company
will provide GSK with testing services as described in individual protocols and
GSK will pay the Company for such services based on the pricing schedule
established for each particular protocol. GSK is obligated to make minimum
annual payments to the Company under the agreement and also was obligated to
make a non-refundable upfront payment to the Company, to be credited against
work undertaken pursuant to the agreement. In January 2006, the Company received
an upfront payment of $2,000,000. The contract also provides for minimum annual
assay testing requirements over a three year period ending January 2009. The
minimum amount of revenue to be recognized during the term, which expired in
January 2009, was $6,500,000. The timing of the recognition of these amounts is
dependent upon when GSK submits the specimens for testing. The Company
recognized $393,233 and $77,225 of revenue under this agreement during the
quarter ended September 30, 2008 and 2009, respectively, and $1,024,531 and
$92,525 for the nine months ended September 30, 2008, and 2009,
respectively.
In
December 2008, we amended and restated our master service agreement with GSK.
Pursuant to the amendment, the term of the GSK Agreement has been extended for a
two-year period, with the option for the parties to extend the GSK Agreement for
additional one-year periods, upon their mutual written agreement. In addition,
we will become a preferred provider to GSK and its affiliates of genetic testing
services on a fee-for-service basis and, in anticipation of the services to be
provided, GSK agreed to make a non-refundable upfront payment by December 31,
2008 of approximately $1,300,000 which was received on January 5, 2009 and
included as part of deferred revenue as of December 31, 2008 and September 30,
2009. The amount of deferred revenue for this agreement at September 30, 2009 is
$1,499,433.
Master
Laboratory Test Services Agreement with GlaxoSmithKline Biologicals (“GSK
Bio”)
In
December 2006, the Company entered into an agreement with GSK Bio pursuant to
which it will provide testing services, principally in relation to profiling the
expression of various genes from a range of human cancers. The Company will
conduct the testing services on tissue specimens provided by GSK Bio. The
agreement required that GSK Bio make an upfront payment of $2,620,000, which was
received by the Company in December 2006. The agreement further specifies that
GSK Bio will pay annual minimum payments in 2007, 2008 and 2009 and that the
upfront payment made in December 2006 will be credited against the annual
minimum payments in 2007 and 2008. The agreement also provides that any
differences between the annual minimum payments made in 2007, 2008 or 2009 and
the amounts due to the Company for testing services performed on specimens
submitted by GSK Bio during the three years ending December 31, 2009 be credited
towards services performed during the year ending December 31, 2010, the final
year of the agreement. The minimum amount of revenue to be recognized during the
term of this contract, which will expire in December 2010, is approximately
$7,300,000. If the Company ceases to provide services under the Amended and
Restated Agreement for any reason, the Company shall remit to GSK Bio payment of
the then remaining balance of the existing credit within sixty days of the date
on which the Company ceased to provide services to GSK Bio.
In
December 2007, the Company amended its agreement with GSK Bio
whereby GSK Bio would make the remaining minimum payments under the agreement in
one lump sum. This payment of approximately $2,722,000 was received in January
2008. The timing of the recognition of these amounts is dependent upon when GSK
submits the specimens for testing. The Company recognized $1,070,159 and
$781,707of revenue under this agreement during the quarters ended September 30,
2008 and 2009, respectively, and $3,108,309 and $2,357,234or the nine months
ended September 30, 2008, and 2009, respectively.
On
September 7, 2009, the Company amended and restated its master service agreement
with GSK Bio, the vaccine division of GlaxoSmithKline (the “Amended and Restated
Agreement”). Pursuant to the Amended and Restated Agreement, the
parties agreed that GSK Bio has accrued an aggregate credit under the terms of
the original agreement, which amount shall be allocated towards services
rendered to GSK Bio during the remaining term of the agreement as described
below.
For each
calendar quarter of 2009 and the first two quarters of 2010, €200,000 of the
existing credit shall apply to all services rendered to GSK Bio during such
calendar quarter. Pursuant to the Amended and Restated Agreement, GSK
Bio may now extend the term of the agreement for an additional one-year period
through December 31, 2011. In the event GSK Bio extends the term
through 2011, the then remaining balance of the existing credit shall be divided
into six equal quarterly amounts and apply to all services rendered to GSK Bio
in each of the last two quarters of 2010 and the four calendar quarters of
2011. If GSK Bio does not extend the term through 2011, the then
remaining balance of the existing credit will instead be divided into two equal
quarterly amounts and apply to all services rendered to GSK Bio in each of the
last two quarters of 2010. In all cases, GSK Bio shall remit payment
to the Company for all services rendered to GSK Bio in any such calendar quarter
that is in excess of the applicable credit amount. In the event the
amount of services rendered to GSK Bio in a calendar quarter does not exceed the
applicable credit amount, the existing credit for the following calendar quarter
shall be increased by such unused amount.
The
Amended and Restated Agreement further provides that the Company shall provide
additional services on a fee-for-service basis, upon GSK Bio’s written request,
relating to the bridging of assays/diagnostic tests to third parties that
develop, manufacture and sell the commercial diagnostic tests to be used with
certain of GSK Bio’s products. The amount of deferred revenue for this agreement
at September 30, 2009 is $2,883,456.
16
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
7.
License and Collaborative Agreements - (continued)
Collaboration
Agreement with Shanghai BioChip Company, Ltd. (“SBC”)
On March
5, 2007, the Company entered into a collaboration agreement with SBC pursuant to
which SBC will provide exclusive pharmacogenomic testing services to the
Company’s clients in China.
Pursuant
to the agreement, the Company has granted SBC an exclusive license in China to
provide services in China using the Company’s proprietary RNA extraction
technologies. Subject to consent from USC, the Company will grant SBC an
exclusive sublicense to patents licensed from USC for distribution of testing
services in China. In turn, SBC will perform RNA extraction from FFPE tissue
specimens exclusively for the Company during the term of the
agreement.
This
agreement has an initial term of five years, with an automatic renewal for an
additional three-year term unless either party gives 90 days notice in advance
of the renewal date of its intent not to renew. Pursuant to the agreement, SBC
will receive a percentage of the gross margin, as defined in the agreement,
collected from the Company’s clients in China as compensation for its testing
services performed. For the three and nine months ended September 30, 2008 and
2009, respectively no testing services were performed.
Collaboration
Agreement with Hitachi Chemical Co., Ltd.
On July
26, 2007, the Company entered into a collaboration agreement with Hitachi
Chemical Co., Ltd. (“Hitachi”), a leading diagnostics manufacturer in Japan (the
“Hitachi Agreement”). Under the terms of this agreement, Hitachi will begin
using the Company's proprietary and patented techniques to extract genetic
information from formalin-fixed paraffin-embedded (“FFPE”) tissue samples
collected in Southeast Asia, Australia and New Zealand. As part of this
collaboration agreement, the Company will provide Hitachi with the technical
information and assistance necessary to perform the testing services. Hitachi
also plans to introduce the Company to potential new testing services customers
in the region to expand the testing of FFPE clinical samples in Asia. The
Southeast Asian countries covered under this agreement include Japan, North
Korea, South Korea, Taiwan, Mongolia, Pakistan, Bangladesh, Sri Lanka, Nepal,
Singapore, Malaysia, Indonesia, Brunei, Thailand, Myanmar, Laos, Cambodia,
Vietnam and the Philippines (the “Territory”).
This
Agreement has an initial term expiring on March 31, 2010, with an automatic
renewal for one year at the end of the original period under the same terms and
conditions. Pursuant to the agreement, Hitachi will receive a percentage of the
revenue, as provided in the agreement, collected from the Company's clients in
the Territory, for its testing services performed which totaled $57,830 for the
third quarter and nine months ended September 30, 2008, and $334,824 and
$1,025,982 of expense for the third quarter and nine months ended September
30, 2009, respectively.
Hitachi
is responsible for expenses related to the cost of laboratory equipment and
modification to the laboratory facilities, as well as the cost of reagents. The
Company has provided to Hitachi required laboratory equipment which Hitachi has
agreed to pay the Company and is included as part of accounts receivable
totaling $248,799 at December 31, 2008. This amount was paid during
April 2009.
17
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
8.
Stock Option Plan
In March
2000, the Company adopted a Stock Option Plan (the “2000 Plan”) as approved by
its board of directors. Under the 2000 Plan, the Company may grant options to
acquire up to 1,600,000 shares of common stock. In connection with the adoption
of the 2006 Employee, Director and Consultant Stock Plan, as further discussed
below, the Company will grant no additional options under its 2000 Plan under
which options to purchase 190,000 shares remained outstanding as
of September 30, 2009. Although no more options may be granted under the
2000 Plan, the terms of the 2000 Plan continue to apply to all outstanding
options. The Company also granted options to purchase 16,000 shares of common
stock to two consultants which were granted under separate agreements outside of
the 2000 Plan.
On
October 26, 2006, the Board of Directors of the Company approved, and on May 1,
2007, reapproved, the adoption of the 2006 Employee, Director and Consultant
Stock Plan (the “2006 Stock Plan”). The stockholders approved the 2006 Stock
Plan on September 1, 2007. Under this plan, the Company may grant up to a
maximum of 2,160,000 options to purchase the Company’s common stock. As of
September 30, 2009, there were 409,510 options available to grant under the 2006
Stock Plan.
Employee
options vest according to the terms of the specific grant and expire 10 years
from the date of grant. Non-employee option grants to date vest typically over a
2 to 3 year period. The Company had 1,956,490 options outstanding at a weighted
average exercise price of $5.12 at September 30, 2009. There were 892,069
nonvested stock options with a weighted average grant date fair value of $3.48
outstanding at September 30, 2009.
The
Company estimated share-based compensation expense for the nine months
ended September 30, 2009 and 2008 using the Black-Scholes model with
the following weighted average assumptions:
|
Nine Months Ended
September 30,
2008
|
Nine Months Ended
September 30,
2009
|
||||||
Risk
free interest rate
|
3.54
– 5.03
|
%
|
3.01
|
%
|
||||
Expected
dividend yield
|
—
|
—
|
||||||
Expected
volatility
|
65.28
– 77.4
|
%
|
67.0
|
%
|
||||
Expected
term (in years)
|
7
|
6
|
||||||
Forfeiture
rate
|
5
|
%
|
5
|
%
|
The
following table summarizes the stock option activity for the nine months ended
September 30, 2009:
Number of
Shares
|
Weighted
Average
Exercise
Price
|
Remaining
Contractual
Life (Years)
|
Aggregate
Intrinsic
Value
|
|||||||||||||
Outstanding,
December 31, 2008
|
1,586,490 | $ | 6.24 | 7.98 | — | |||||||||||
Granted
(Unaudited)
|
477,000 | $ | 1.35 | |||||||||||||
Exercised
(Unaudited)
|
— | $ | — | |||||||||||||
Forfeited
(Unaudited)
|
(107,000 | ) | $ | 5.03 | ||||||||||||
Outstanding,
September 30, 2009 (Unaudited)
|
1,956,490 | $ | 5.12 | 7.78 | $ | 142,500 | ||||||||||
Exercisable,
September 30, 2009 (Unaudited)
|
1,064,421 | $ | 6. 49 | 6.84 | $ | 30,450 |
The weighted-average grant-date fair value of options granted during the three
months ended September 30, 2008 was $2.11. There were no options
granted or exercised during the three months ended September 30,
2009. The weighted-average grant-date fair value of options granted
during the nine months ended September 30, 2008 and 2009 was $2.15 and $0.84,
respectively. There were no options exercised during the three and
nine months ended September 30, 2008 and 2009.
As of
September 30, 2009, there was $1.9 million of total unrecognized compensation
cost related to nonvested share-based compensation arrangements granted under
the Plan. That cost is expected to be recognized over a
weighted-average period of 2.34 years.
18
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
8.
Stock Option Plan - (continued)
Information
about stock-based compensation included in the results of operations for the
three and nine months ended September 30, 2008 and 2009 are as
follows:
Three Months Ended September 30
|
Nine
Months Ended September,30
|
|||||||||||||||
|
2008
|
2009
|
2008
|
2009
|
||||||||||||
Cost
of revenue
|
$ | 78,216 | $ | 53,646 | $ | 223,511 | $ | 181,335 | ||||||||
General
and administrative
|
439,229 | 152,114 | 876,919 | 485,414 | ||||||||||||
Research
and development
|
21,405 | 15,754 | 85,603 | 58,317 | ||||||||||||
Totals
|
$ | 538,850 | $ | 221,514 | $ | 1,186,033 | $ | 725,066 |
9
. Common Stock Warrants
The
Company issues warrants to purchase common shares of the Company either as
compensation for services, or as additional incentive for investors who may
purchase common stock. The value of warrants issued for compensation is
accounted for as a non-cash expense to the Company at the fair value of the
warrants issued.
In June
2007, in conjunction with the initial public offering, the Company issued
100,000 warrants to purchase 100,000 shares of its common stock at an exercise
price of $7.70, for proceeds of $100, to the underwriters as part of the initial
public offering.
There
were no warrants granted during the three months and nine ended September
30, 2008 and 2009.
The
following table summarizes all common stock warrant activity during the three
months ended September 30, 2009:
Number of
Shares
|
Weighted
Average
Price
|
Remaining
Contractual
Life (years)
|
||||||||||
Outstanding,
December 31, 2008
|
100,000
|
$
|
7.70
|
3.50
|
||||||||
Outstanding,
September 30, 2009
|
100,000
|
$
|
7.70
|
2.75
|
||||||||
Exercisable,
September 30, 2009
|
100,000
|
$
|
7.70
|
2.75
|
19
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
10. Income
Taxes
Deferred
income taxes result from temporary differences between income tax and financial
reporting computed at the effective income tax rate. The Company has established
a valuation allowance against its net deferred tax assets due to the uncertainty
surrounding the realization of such assets. Management periodically evaluates
the recoverability of the deferred tax assets. At such time it is determined
that it is more likely than not that deferred tax assets are realizable, the
valuation allowance will be reduced.
We file
U.S. federal, U.S. state, and foreign tax returns. Our major tax jurisdictions
are U.S. federal and the State of California and are subject to tax examinations
for the years 2001 through 2008.
11.
Segment Information
The
Company operates in a single reporting segment, with operating facilities in the
United States and the United Kingdom. Our United Kingdom facility
ceased operations on April 30, 2009.
The
following enterprise wide disclosure was prepared on a basis consistent with the
preparation of the financial statements. The following tables contain certain
financial information by geographic area:
|
Three Months Ended September 30,
|
Nine Months Ended September 30,
|
||||||||||||||
|
2008
|
2009
|
2008
|
2009
|
||||||||||||
Revenue:
|
||||||||||||||||
United
States
|
$
|
456,395
|
$
|
1,036,716
|
$
|
1,225,899
|
$
|
2,086,954
|
||||||||
Europe
|
1,070,160
|
781,707
|
3,108,310
|
2,357,234
|
||||||||||||
Japan
|
430,475
|
441,100
|
1,349,200
|
1,250,800
|
||||||||||||
Totals
|
$
|
1,957,030
|
$
|
2,259,523
|
$
|
5,683,409
|
$
|
5,694,988
|
December
31,
2008
|
September
30,
2009
|
|||||||
Long-lived assets: Net | ||||||||
United
States
|
$
|
1,414,842
|
$
|
1,300,840
|
||||
$
|
1,414,842
|
$
|
1,300,840
|
20
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
12. Net
ResponseDX Revenue
Net
ResponseDX revenue for the three and nine months ended September 30, 2009 was
comprised of the following:
Three
|
Nine
|
|||||||
Months
|
Months
|
|||||||
Ended
|
Ended
|
|||||||
September
30,2009
|
September
30,2009
|
|||||||
Gross
patient service revenue
|
$
|
2,865,342
|
$
|
5,134,653
|
||||
Contractual
allowances
|
(1,950,693
|
)
|
(3,510,916
|
)
|
||||
Net
patient service revenue
|
$
|
914,649
|
$
|
1,623,737
|
ResponseDX
revenues recorded during the three and nine months ended September 30, 2008 were
$58,597. The Company began recording revenues for ResponseDX during
the third quarter ended September 30, 2008.
Cost-Containment
Measures
Both
government and private pay sources have instituted cost-containment measures
designed to limit payments made to providers of health care services, and there
can be no assurance that future measures designed to limit payments made to
providers will not adversely affect the Company.
Regulatory
Matters
Laws and
regulations governing Medicare programs are complex and subject to
interpretation. Compliance with such laws and regulations can be subject to
future governmental review and interpretation, as well as significant regulatory
action including fines, penalties and exclusions from certain governmental
programs. The Company believes that it is in compliance with all applicable laws
and regulations and is not aware of any pending or threatened investigations
involving allegations of potential wrongdoing.
A portion
of the Company’s revenues are derived from Medicare for which reimbursement
rates are subject to regulatory changes and government funding restrictions.
Although the Company is not aware of any significant future rate changes,
significant changes to the reimbursement rates could have a material effect on
the Company’s operations.
21
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
13. U.K. Operations
On
February 9, 2009, management implemented a reduction of workforce
(“Reduction of Workforce”) pursuant to which the Company has closed its United
Kingdom testing facility to consolidate services at its CLIA-certified
laboratory facilities in Los Angeles. In connection with the
Reduction of Workforce, the Company incurred expenses associated
with redundancy costs of approximately $268,000. These costs are
included in the Company’s statement of operations for the nine months ended
September 30, 2009. Additionally, management performed a recoverability
test of the long-lived assets located at the United Kingdom testing facility in
accordance with ASC 360, Property, Plant and
Equipment . Based on the recoverability analysis performed,
the Company recorded a non-cash charge for the impairment of long-lived assets
of $0.9 million as of December 31, 2008 to write down the carrying value of the
long-lived assets to their estimated fair value of $0. The fair value was
estimated based upon offers received from third parties to purchase the
long-lived assets. Our lease for our United Kingdom testing facility
expired on March 31, 2009. We extended the lease, pursuant to its terms, for an
additional month, in order to facilitate the winding down of our operations
in the United Kingdom. The Reduction of Workforce was substantially completed on
March 31, 2009. We undertook the Reduction of Workforce as part of a strategic
plan to increase operational efficiency in conjunction with the
consolidation of our services at our Los Angeles facilities and it
will not affect our genetic testing services or current partnership
agreements.
14.
Private Placement
On
February 27, 2009, the Company entered into a Purchase Agreement with certain
affiliates of Special Situations Funds for the private placement of 2,000,000
newly-issued shares of the Company's common stock at a per share price of $1.00.
The closing of the sale of the Shares occurred on March 2, 2009. The
aggregate offering price of the shares was $2 million and the Company received
the funds on March 2, 2009.
In
connection with the Special Situations Funds Private Placement, we also entered
into a Registration Rights Agreement, dated February 27, 2009, with the
Purchasers (the "Registration Rights Agreement") pursuant to which the Company
filed a registration statement with the Securities and Exchange Commission
("SEC") to register the 2,000,000 shares for resale, which registration
statement became effective on June 30, 2009.
On July
22, 2009, the Company entered into a Purchase Agreement with certain funds
managed by Lansdowne Partners Limited Partnership for the private placement
of 3,057,907 newly-issued shares of the Company's common stock at a per share
price of $1.30. The closing of the sale of the shares occurred on July 22,
2009. The aggregate offering price of the shares was approximately $4
million and the Company received the funds on July 23, 2009. In
connection with the acquisition of the shares, the Purchasers were granted
certain preemptive rights permitting them to maintain their percentage ownership
interests in connection with future issuances of the Company’s capital stock,
subject to various exceptions and limitations.
In
connection with the Lansdowne Private Placement, we also entered into a
Registration Rights Agreement, dated July 22, 2009, with the Purchasers (the
"Registration Rights Agreement") pursuant to which the Company filed a
registration statement with the SEC to register the 3,057,907 shares for resale,
which registration statement became effective on November 3,
2009. The Company also granted certain "piggyback" registration
rights to Lansdowne which are triggered if the Company proposes to file a
registration statement for its own account or the account of one or more
shareholders until the earlier of the sale of all of the shares or the shares
become eligible for sale under Rule 144(b)(1) without
restriction.
22
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
15. Fair Value
Measurements
On January
1, 2009, the Company adopted ASC 820 (formerly SFAS No. 157) which
defines fair value, establishes a framework for measuring fair value in
generally accepted accounting principles, and expands disclosures about fair
value measurements. ASC 820 does not require any new fair value measurements,
but provides guidance on how to measure fair value by providing a fair value
hierarchy used to classify the source of the information. In February 2008, the
FASB deferred the effective date of ASC 820 by one year for certain
non-financial assets and non-financial liabilities, except those that are
recognized or disclosed at fair value in the financial statements on a recurring
basis (at least annually). The Company adopted the provisions of ASC 820, except
as it applies to those nonfinancial assets and nonfinancial liabilities for
which the effective date has been delayed by one year. ASC 820 establishes a
three-level valuation hierarchy of valuation techniques that is based on
observable and unobservable inputs. Classification within the hierarchy is
determined based on the lowest level of input that is significant to the fair
value measurement. The first two inputs are considered observable and the last
unobservable, that may be used to measure fair value and include the
following:
Level 1
- Quoted prices in active markets for identical assets or
liabilities.
Level 2
- Inputs other than Level 1 that are observable, either directly or
indirectly, such as quoted prices for similar assets or liabilities; quoted
prices in markets that are not active; or other inputs that are observable or
can be corroborated by observable market data for substantially the full term of
the assets or liabilities.
Level 3
- Unobservable inputs that are supported by little or no market activity and
that are significant to the fair value of the assets or
liabilities.
As
of September 30, 2009, the Company held certain assets and liabilities that
are required to be measured at fair value on a recurring basis, including its
cash and cash equivalents. The fair value of these assets and liabilities was
determined using the following inputs in accordance with ASC 820
at September 30, 2009:
Fair Value Measurement as of September 30, 2009
|
||||||||||||||
Total
|
Level
1
|
Level
2
|
Level
3
|
|||||||||||
Description
|
$
|
$
|
$
|
$
|
||||||||||
Money
market accounts (1)
|
7,240,403
|
7,240,403
|
-
|
-
|
(1) Included
in cash and cash equivalents on the accompanying consolidated balance
sheet.
16.
Related Party Transactions
While
employed at USC, Kathleen Danenberg, president, chief executive officer and
director, developed and patented (United States Patent 6,248,535; Danenberg , et
al., Method For Isolation of RNA From Formalin-Fixed Paraffin-Embedded Tissue
Specimens) an extraction method that allowed reliable and consistent isolation
of RNA from FFPE suitable for RT-PCR. USC retains ownership of this patent but
has exclusively licensed this technology to the Company. In consideration for
this license, the Company is obligated to pay royalties to USC, as a percentage
of net sales of products or services using the technology, and to meet a certain
minimum in royalty payments. Pursuant to USC policy, the inventors of technology
owned by the University and then licensed for commercialization are paid a
portion of royalties received by the University from the licensed technology.
USC therefore pays a portion of royalties received from the Company to Ms.
Danenberg in recognition of her invention. Amounts paid to Ms. Danenberg
amounted to $29,993 and $5,465 for the nine months ended September 30, 2008 and
2009, respectively.
17.
Subsequent Event
The
Company has performed an evaluation of subsequent events through November 16,
2009, the date the Company filed these financial statements.
23
RESPONSE
GENETICS, INC.
NOTES
TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
18. Correction
of errors
In the
course of preparing the financial statements for the third quarter ended
September 30, 2009, management identified certain prior period
errors. The errors related to an overstatement of net revenues in the
amount $278,123. In accordance with the SEC’s Staff Accounting
Bulletin (“SAB”) No. 99, Materiality and SAB No. 108 Considering the Effects of
Prior Year Misstatements when Quantifying Misstatements in Current Year
Financial Statements, management evaluated the materiality of the errors from
qualitative and quantitative perspectives and concluded that the errors were not
material to any prior periods. The correction of the errors in the
current period is material to the third quarter financial statements but is not
anticipated to be material to the full fiscal year or the trend of financial
results. Accordingly, management has corrected the errors in the third
quarter of 2009. The impact of the adjustments to correct the errors to
the specific line items of the financial statements for the three months and
nine months ended September 30, 2009 was as follows:
Increase
|
||||
(Decrease)
|
||||
Statement
of operations:
|
||||
Net
revenue
|
$ | (278,123 | ) | |
Operating
loss
|
278,123 | |||
Net
loss
|
278,123 | |||
Net
loss per share – basic and diluted
|
0.02 | |||
Balance
Sheet:
|
||||
Deferred
revenue
|
$ | 278,123 | ||
Total
liabilities
|
278,123 | |||
Accumulated
deficit
|
(278,123 | ) |
24
Item
2: Managements Discussions and Analysis
Special
Note Regarding Forward Looking Statements
Certain
statements in this report constitute “forward-looking statements.” These
forward-looking statements involve known or unknown risks, uncertainties and
other factors that may cause the actual results, performance, or achievements of
Response Genetics, Inc. to be materially different from any future results,
performance or achievements expressed or implied by the forward-looking
statements. Specifically, the actions of competitors and customers and our
ability to execute our business plan, and our ability to increase revenues is
dependent upon our ability to continue to expand our current business and to
expand into new markets, general economic conditions, and other factors. You can
identify forward-looking statements by terminology such as “may,” “will,”
“should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “estimates,”
“predicts,” “potential,” “continues,” or the negative of these terms or other
comparable terminology. Although we believe that the expectations reflected in
the forward-looking statements are reasonable, we cannot guarantee future
results, levels of activity, performance or achievements. We undertake no
obligations to publicly update or review any forward-looking statements, whether
as a result of new information, future developments or otherwise.
The
following discussion of our financial condition and results of operation should
be read in conjunction with our unaudited financial statements and related notes
to the financial statements included elsewhere in this Quarterly Report on Form
10-Q as of September 30, 2009 and our audited financial statements for the year
ended December 31, 2008 included in our Annual Report on Form
10-K previously filed with the SEC. This discussion contains
forward-looking statements that relate to future events or our future financial
performance. These statements involve known and unknown risks, uncertainties and
other factors that may cause our actual results, levels of activity, performance
or achievements to be materially different from any future results, levels of
activity, performance or achievements expressed or implied by these forward
looking statements.
Overview
Response
Genetics, Inc. (the “Company”) was incorporated in the state of Delaware on
September 23, 1999 as Bio Type, Inc. for the purpose of providing unique
molecular profiling services of tumor tissue that has been formalin-fixed and
embedded in paraffin wax. In August 2000, we changed our name to Response
Genetics, Inc. In November 2006, we established Response Genetics Ltd.,
a wholly owned subsidiary in Edinburgh, Scotland. On February 9, 2009 we
implemented a reduction of workforce pursuant to which we closed our
subsidiary in Edinburgh. See "liquidity and capital resources" for additional
information.
Clinical
studies have shown that not all cancer chemotherapy works effectively in every
patient, and that a number of patients receive therapy that has no benefit to
them and may potentially even be harmful. Our goal is to provide cancer patients
and their physicians with a means to make informed, individualized treatment
decisions based on genetic analysis of tumor tissues. Our pharmacogenomic
analysis of clinical trial specimens for the pharmaceutical industry may provide
data that will lead to a better understanding of the molecular basis for
response to specific drugs and, therefore lead to individualized treatment. We
are focusing our efforts in the following areas:
·
|
Commercialization
of our ResponseDX ™ tests;
|
·
|
Developing
additional diagnostic tests for assessing the risk of cancer recurrence,
prediction of chemotherapy response and tumor classification in cancer
patients; and
|
·
|
Expanding
our pharmacogenomic testing services business into and creating a
standardized and integrated testing platform in the major markets of the
healthcare industry, including outside of the United
States.
|
Our
patented technologies enable us to reliably and consistently extract the nucleic
acids RNA and DNA from tumor specimens that are stored as formalin-fixed and
paraffin-embedded, or FFPE, specimens and thereby to analyze genetic information
contained in these tissues. This is significant because the majority of patients
diagnosed with cancer have a tumor biopsy sample stored in paraffin, while only
a small percentage of patients’ tumor specimens are frozen. Our technologies
also enable us to use the FFPE patient biopsies for the development of
diagnostic tests. To our knowledge, we were the first company to generate
clinically relevant information regarding the risks of recurrence of cancer or
chemotherapy response using approximately 30,000 genes available from microarray
profiling of FFPE specimens.
25
ResponseDX™
The
outcome of cancer chemotherapy is highly variable due to genetic differences
among patients. Some patients respond well with tumor shrinkage and increase in
life span. Other patients do not obtain benefit from the same therapy but may
still experience toxic side effects as well as delay in effective treatment and
psychological trauma.
At
present most chemotherapy regimens are administered without any pre-selection of
patients on the basis of their particular genetics. However recent development
of very sensitive molecular technologies has enabled researchers to identify and
measure genetic and biochemical factors in patients’ tissues that may predict
the probability of success or failure of many currently used anti-cancer agents.
In order to increase the chances of a better chemotherapy outcome for cancer
patients, we are developing genetic tests that will measure predictive factors
for tumor response in tumor tissue samples. We have begun offering tests for
non-small cell lung cancer (NSCLC) (ResponseDX: Lung Ô ) and colorectal
cancer (CRC) (ResponseDX: Colon Ô ) and gastric and
gastroesophageal (GE) cancer (ResponseDX: Gastric Ô ) patients’ tumor
tissue through our laboratory located in Los Angeles, California, which
is certified under the Clinical Laboratory Improvement Amendments of 1988
(CLIA), and we anticipate offering additional tests for ovarian, and pancreatic
cancer in the future. These tests are proprietary based tests which serve to
help oncologists make optional therapeutic decisions for cancer patients. The
results from our tests may help oncologists choose among chemotherapy regimens
to treat their cancer patients. On September 29, 2008, we announced an exclusive
agreement with NeoGenomics Laboratories (OTCBB: NGNM) whereby NeoGenomics will
offer our proprietary ResponseDx:Colon and ResponseDx: Lung tests nationwide.
Under the terms of the agreement NeoGenomics will be the national exclusive
clinical reference laboratory authorized to offer our proprietary tests through
NeoGenomics national sales force and our sales team. Currently, our recently
formed sales team has been expanded to 11 sales people located in the West
Coast, Midwest, and East Coast areas of the United States.
26
Diagnostic
Tests for Other Cancers
In
addition to ResponseDX: Lung, ResponseDX: Colon,and ResponseDX: Gastric,
we are developing and intend to commercialize tests for
other types of cancer that identify genetic profiles of tumors that are
more aggressive and recur rapidly after surgery. We also are identifying genetic
profiles of tumors that are more or less responsive to a particular
chemotherapy. Following the development of tests to predict the risk of
recurrence after surgery, we intend to develop tests to determine the most
active chemotherapy regimen for the individual patient at risk. Once developed
and after obtaining any necessary regulatory approvals, we intend to leverage
our relationships in the healthcare industry to market, sell or license these
tests as a means for physicians to determine the courses of cancer
treatment.
Expansion
of our pharmacogenomic testing services business
We have
started the expansion of our pharmacogenomic testing services business into
major markets of the healthcare industry outside of the United States. We have a
service laboratory in Japan, and are working to potentially establish a service
laboratory in China, through collaboration with some of our current clients in
the pharmaceutical industry. The pharmaceutical industry is in need of
standardized integrated worldwide analysis of clinical trial specimens. It is
important to the pharmaceutical industry and the regulatory agencies that the
same analytical methods are used for each clinical trial sample around the world
so that the data can be easily compared and used for global drug development.
Also, export of clinical trial specimens to the United States is restricted from
some areas of the world, such as China. Our goal is to offer an analysis of
patient specimens and generate consistent data based on integrated common
platforms and technology into the major markets of the healthcare industry
including outside of the United States.
There are
no assurances that we will be able to continue making our current ResponseDX
tests available, or make additional ResponseDX tests available; will be able to
develop and commercialize tests of other types of cancer; or will be able to
expand our pharmacogenomic testing service business.
We
anticipate that, over the next 12 months, a substantial portion of our capital
resources and efforts will be focused on research and development to expand
our series of diagnostic tests for cancer patients, to establish a laboratory
overseas in collaboration with certain of our current pharmaceutical clients,
sales and marketing activities related to our ResponseDX diagnostic tests, and
for other general corporate purposes.
Research
and development expenses represented 13% and 14 % of our total operating
expenses for the nine months ended September 30, 2009 and September 30, 2008,
respectively. Major components in research and development expenses for the nine
months ended September 30, 2009 included supplies and reagents for our research
activities, personnel costs, occupancy costs, equipment warranties and service,
patent fees, and sample procurement costs.
27
Critical
Accounting Policies and Significant Judgments and Estimates
This
discussion and analysis of our financial condition and results of operations is
based on our financial statements, which have been prepared in accordance with
U.S. generally accepted accounting principles. The preparation of these
financial statements requires management to make estimates and judgments that
affect the reported amounts of assets, liabilities and expenses and the
disclosure of contingent assets and liabilities at the date of the financial
statements, as well as revenues and expenses during the reporting periods. We
evaluate our estimates and judgments on an ongoing basis. We base our estimates
on historical experience and on various other factors we believe are reasonable
under the circumstances, the results of which form the basis for making
judgments about the carrying value of assets and liabilities that are not
readily apparent from other sources. Actual results could therefore differ
materially from those estimates under different assumptions or conditions. We
believe the following critical accounting policies reflect our more significant
estimates and assumptions used in the preparation of our financial
statements.
Revenue
Recognition
Revenues
are derived from services provided to pharmaceutical companies and from revenues
generated from our ResponseDX tests. Revenue is recognized in accordance with
SEC Staff Accounting Bulletin No. 104, Revenue Recognition, which requires that
four basic criteria must be met before revenue can be recognized: (1) persuasive
evidence that an arrangement exists; (2) delivery has occurred and title and the
risks and rewards of ownership have been transferred to the client or services
have been rendered; (3) the price is fixed or determinable; and (4)
collectability is reasonably assured.
Revenues
from pharmaceutical company contracts are recorded on an accrual basis as the
contractual obligations are completed and as a set of assays is processed
through our laboratory under a specified contractual protocol. Certain contracts
have minimum assay requirements that, if not met, result in payments that are
due upon the completion of the designated period. In these cases, revenues are
recognized when the end of the specified contract period is
reached.
On
occasion, we may enter into a contract that requires the client to provide an
advance payment for specimens that will be processed at a later date. In these
cases, we record this advance as deferred revenue and recognize the revenue as
the specimens are processed or at the end of the contract period, as
appropriate.
We
recognize a portion of product revenue from our ResponseDX tests invoiced to
Medicare on an accrual basis and to third-party payors, including private
payors on a cash basis. We have received our Medicare provider number which
allows us to invoice and collect from Medicare. Our invoicing to Medicare is
primarily based on amounts allowed by Medicare for the service provided as
defined by Common Procedural Terminology (CPT) codes. We recognize revenue from
third party and private payors currently on a cash basis until a collection
history can be determined. Until we are reasonably assured about a pattern of
collections we will continue to record revenues from third party payors of
ResponseDX on a cash basis. We continue to process samples for ResponseDX
testing services. Currently we are processing more samples for ResponseDX
testing services than revenue is being recorded. This is primarily due to timing
and recognition of revenue from third party payors until a collection history
can be established.
We are
subject to potentially significant variations in the timing of revenue
recognized from period to period due to a variety of factors including: (1) the
timing of when specimens are submitted to us for testing; and (2) the specific
terms, such as minimum assay requirements in any given period, advance payment
requirements, and terms of agreements, as set forth in each contract we have
with significant clients.
License
Fees
We have
licensed technology for the extraction of RNA and DNA from FFPE tumor specimens
from USC in exchange for royalty fees on revenue generated by use of this
technology. These royalties are calculated as a fixed percentage of revenue that
we generate from use of the technology licensed from USC. Total license fees due
under the royalty agreement to USC were $135,369 and $57,781 for the nine months
ended September 30, 2009 and September 30, 2008, respectively. We also maintain
a non-exclusive license to use Roche’s polymerase chain reaction (PCR),
homogenous PCR, and reverse transcription PCR processes. We pay Roche a fixed
percentage royalty fee for revenue that we generate through use of certain
applications of this technology. Royalties accrued under this agreement totaled
$116,402 and $236,473 for the nine months ended September 30, 2009 and September
30, 2008, respectively.
We are
subject to potentially significant variations in royalties recorded in any
period. While the amount paid is based on a fixed percentage from revenues of
specific tests pursuant to terms set forth in the agreements with USC and
Roche, the amount due is calculated based on the revenue we recognize using the
respective licensed technology. As discussed above, this revenue can vary from
period to period as it is dependent on the timing of the specimens submitted by
our clients for testing.
28
Accounts
Receivable
We
invoice our pharmaceutical clients as specimens are processed and any other
contractual obligations are met. Our contracts with pharmaceutical clients
typically require payment within 45 days of the date of invoice. We maintain
allowances for doubtful accounts for estimated losses resulting from the
inability of our clients to make required payments. We specifically analyze
accounts receivable and historical bad debts, client credit, current economic
trends and changes in client payment trends when evaluating the adequacy of the
allowance for doubtful accounts. Account balances are charged-off against the
allowance when it is probable the receivable will not be recovered. To date, our
clients have primarily been large pharmaceutical companies. As a result, bad
debts to date have been minimal.
We bill
Medicare and third-party payors for ResponseDX upon completion of the required
testing services. As such, we take assignment of benefits and the risk of
collection with Medicare and third-party payors. As we continue to generate
revenues from ResponseDX, we will monitor the collection history from third
party payors. Until we are reasonably assured about a pattern of collections, we
will continue to record revenues from third party payors of ResponseDX on a cash
basis.
While we
have not had credit losses in the past, we cannot guarantee that we
will continue to experience the same credit loss rates that we have in the past.
Measurement of such losses requires consideration of historical loss experience,
including the need to adjust for current conditions, and judgments about the
probable effects of relevant observable data, including present economic
conditions such as delinquency rates and financial health of specific customers.
We consider all available information in our assessments of the adequacy of the
reserves for uncollectible accounts.
Income
Taxes
We
estimate our tax liability through calculations we perform for the determination
of our current tax liability, together with assessing temporary differences
resulting from the different treatment of items for tax and accounting purposes.
These differences result in deferred tax assets and liabilities, which are
recorded in our balance sheets. Our management then assesses the likelihood that
deferred tax assets will be recovered in future periods through future operating
results. To the extent that we cannot conclude that it is more likely than not
that the benefit of such assets will be realized, we establish a valuation
allowance to adjust the net carrying value of such assets. The carrying value of
our net deferred tax assets assumes that we will be able to generate sufficient
future taxable income, based on management’s estimates and assumptions. These
estimates and assumptions take into consideration future taxable income and
ongoing feasible tax strategies in determining recoverability of such assets.
Our valuation allowance is subject to significant change based on management’s
estimates of future profitability and the ultimate realization of the deferred
tax assets.
Results
of Operations
Correction of Errors
In the
course of preparing the financial statements for the third quarter ended
September 30, 2009, management identified certain prior period
errors. The errors related to an overstatement of net revenues in the
amount $278,123. In accordance with the SEC’s Staff Accounting
Bulletin (“SAB”) No. 99, Materiality and SAB No. 108 Considering the Effects of
Prior Year Misstatements when Quantifying Misstatements in Current Year
Financial Statements, management evaluated the materiality of the errors from
qualitative and quantitative perspectives and concluded that the errors were not
material to any prior periods. The correction of the errors in the
current period is material to the third quarter financial statements but is not
anticipated to be material to the full fiscal year or the trend of financial
results. Accordingly, management has corrected the errors in the third
quarter of 2009.
Quarters
Ended September 30, 2009 and 2008
Revenues.
Revenues were $2,259,523 for the quarter ended September 30, 2009,
as compared to $1,957,030 for the comparable period in 2008, an increase of
$302,493 or 15%. This increase was generated primarily through growth in the
number of Response DX assays processed by our laboratory. Revenues from
ResponseDX were $914,650 for the quarter ended September 30, 2009 compared to
$58,597 in the third quarter of 2008. This increase in Response DX
related revenues was partially offset by a decrease in revenue related to our
pharmaceutical clients of $553,559 in the third quarter of 2009 as compared to
the third quarter of 2008. The decrease in our pharmaceutical client revenue was
generated primarily due to a delay in receipt of samples to be tested from our
pharmaceutical clients which we expect to receive later in 2009 and 2010. For
the quarter ended September 30, 2009, two of our clients, GSK and Taiho,
accounted for approximately 58% of our revenue, as compared to approximately 95%
of our revenue for the quarter ended September 30, 2008.
Cost of Revenues.
Cost of revenues for the quarter ended September 30, 2009 were
$1,175,615 as compared to $1,025,383 for the quarter ended September 30, 2008,
an increase of $150,232 or 14.7%. This increase is primarily related to an
increase of $276,994 in processing costs associated with our sample processing
relationship with Hitachi in Japan, offset by a reduction of $93,870 in
consulting expenses and $57,004 in lab supply and reagent costs.
Research and Development
Expenses . Research and development expenses were
$726,696 for the quarter ended September 30, 2009, as compared to $410,469 for
the same period in 2008, an increase of $316,227 or 77.0%. This increase
resulted primarily from an increase in personnel costs of $171,968, an increase
of $59,278 in lab supplies and reagents, and an increase of $69,638 in
consultation fees. We expect research and development expenses to increase as we
continue work to develop additional aspects of our technology and to study
diagnostic indicators for various forms of cancer.
29
General and Administrative
Expenses. General and administrative expenses totaled
$1,305,247 for the quarter ended September 30, 2009, as compared to $2,101,864
for the comparable period in 2008, a decrease of $796,617 or 38%. This decrease
resulted primarily from a reduction of $74,432 in staff salary and benefits
expenses, a decrease in stock option expense of $287,115, a reduction of
$106,585 in business consulting expenses, a $116,938 decrease in insurance
expenses, a $54,893 reduction in depreciation and amortization expenses. We
expect general and administrative expenses to increase as a result of the need
to hire additional administrative personnel due to higher legal, accounting,
compliance and related expenses associated with being a public company and to
support the growth of ResponseDX.
Sales and Marketing Expenses:
Historically, the Company has included sales and marketing expenses in the
general and administrative expense category. With the hiring of a
sales force to bring our ResponseDX assay to market the Company has
commenced with the quarter ended March 31, 2009 to report expenses associated
with our sales and marketing efforts separately. For the quarter
ended September 30, 2009 our sales and marketing expenses totaled
$934,946. These expenses primarily were comprised of $540,505 in
personnel costs, $83,668 for business meetings and travel related expenses, and
$202,702 in marketing costs such as press releases, promotional event costs and
marketing materials. We expect that sales and marketing costs will
continue to increase as we expand our sales and marketing activities in order to
gain clinical acceptance of our ResponseDX assays.
U.K. Operating Costs and
U.K. Impairment of Property and Equipment: In
December, 2008, we made the decision to increase the operational efficiency of
the Company by consolidating our UK operations with our US
operations. Based on this decision we implemented a reduction of
workforce pursuant to which we have closed our UK testing facility and
consolidated testing services in our laboratory facilities located in Los
Angeles. As a result of the implementation of the reduction of
workforce management performed a recoverability test of the long-lived
assets located at the United Kingdom testing facility. Based on the
recoverability analysis performed, the Company recorded a non-cash charge for
the impairment of long-lived assets of approximately $0.9 million as of December
31, 2008 to write down the carrying value of the long-lived assets to their
estimated fair value of $0. The fair value was estimated based upon offers
received from third parties to purchase the long-lived assets. The
operating costs related to our UK lab, which were previously included
in general and administrative expenses, were $21,645 for the quarter ended
September 30, 2009 compared to $688,794 for the same period in
2008. Additionally, in connection with the reduction of workforce we
incurred expenses related to redundancy costs of $66,140 in the quarter ended
September 30, 2009.
Interest Income:
Interest income was $256 for the quarter ended September 30, 2009,
compared with $76,087 for the same period in 2008. This $75,831 decrease was due
to lower average cash and cash equivalent balances and lower rates of return
during the period ending September 30, 2009.
Nine
Months Ended September 30, 2009 and 2008
Revenues:
Revenues were $5,694,988 for the nine month ended September 30,
2009, as compared to $5,683,409 for the comparable period in 2008, an increase
of $11,579 or 0%. This increase was attributable to a $1,623,737 in net revenue
associated with our new ResponseDX assays processed by our laboratory. This
increase was partially offset by a $1,553,561 decrease in revenues from
pharmaceutical clients. The decrease in our pharmaceutical client revenue was
generated primarily due to a delay in receipt of samples to be tested from our
pharmaceutical clients which we expect to receive later in 2009 and 2010.
For the nine months ended September 30, 2009, two of our clients, GSK and
Taiho, accounted for approximately 63% of our revenue, as compared to
approximately 97% of our revenue for the nine months ended September 30,
2008.
Cost of Revenues:
Cost of revenues for the nine month period ended September 30, 2009
were $3,646,358 as compared to $2,849,482 for the same period ended September
30, 2008, an increase of $796,876 or 28.0%. This increase is primarily related
to an increase of $968,152 associated with our sample processing relationship
with Hitachi in Japan. This increase was partially offset by a
$93,870 reduction in business consulting expenses, a $42,176 reduction in
employee stock option expenses and a $36,344 reduction in costs associated with
processing fluorescence in situ hybridization assays and
bioinformatics.
Research and Development
Expenses. Research and development expenses were $1,734,223
for the nine month period ended September 30, 2009, as compared to $1,719,013
for the same period in 2008, an increase of $15,210 or 0.1%. This increase
resulted primarily from an increase in personnel costs of $38,878, and an
increase in consultation fees of $135,764 offset by a decrease in royalties and
patent fees of $91,970, a reduction in employee stock option expense of 27,286
and a reduction in equipment related costs of $26,420. We expect research and
development expenses to increase as we continue work to develop additional
aspects of our technology and to study diagnostic indicators for various forms
of cancer.
30
General and Administrative
Expenses. General and administrative expenses totaled
$4,453,204for the nine month period ended September 30, 2009, as compared to
$5,580,186 for the comparable period in 2008, a decrease of $1,126,982 or 24.4%.
This decrease resulted primarily from a reduction of salary and benefits costs
of $225,923, a decrease in stock option expense of $391,505, a reduction of
$363,813 in business consulting fees, , a reduction of $145,811 in legal and
accounting fees. We expect general and administrative expenses to
increase as a result of the need to hire additional administrative personnel and
due to higher legal, accounting, compliance and related expenses associated with
being a public company and to support the growth of ResponseDX.
Sales and Marketing Expenses:
Historically, the Company has included sales and marketing expenses in the
general and administrative expense category. With the hiring of a
sales force to bring our ResponseDX assay to market the Company has
commenced with the quarter ended March 31, 2009 to report expenses associated
with our sales and marketing efforts separately. For the nine month
period ended September 30, 2009 our sales and marketing expenses totaled
$2,759,108. These expenses were primarily comprised of
$1,441,291 in personnel costs, $270,458 for business meetings and travel related
expenses, $545,784 in marketing costs such as press releases, promotional event
costs and marketing materials, and $251,771 in royalty and license
fees. We expect that sales and marketing costs will continue to
increase as we expand our sales and marketing activities in order to gain
clinical acceptance of our ResponseDX assays.
U.K. Operating Costs and
U.K. Impairment of Property and Equipment. In
December, 2008, we made the decision to increase the operational efficiency of
the Company by consolidating our UK operations with our US
operations. Based on this decision we implemented a reduction of
workforce pursuant to which we have closed our UK testing facility and
consolidated testing services in our laboratory facilities located in Los
Angeles. As a result of the implementation of the reduction of
workforce management performed a recoverability test of the long-lived
assets located at the United Kingdom testing facility. Based on the
recoverability analysis performed, the Company recorded a non-cash charge for
the impairment of long-lived assets of $0.9 million as of December 31, 2008 to
write down the carrying value of the long-lived assets to their estimated fair
value of $0. The fair value was estimated based upon offers received from third
parties to purchase the long-lived assets. The operating costs related to
our UK lab, which were previously included in general and administrative
expenses, were $465,910 for the nine month ended September 30, 2009 compared to
$1,939,828 for the same period in 2008. Additionally, in connection with
the reduction of workforce we incurred expenses related to redundancy costs of
$268,374 through the nine month period ended September 30, 2009.
Interest Income.
Interest income was $22,157 for the nine month period ended
September 30, 2009, compared with $319,383 for the same period in 2008. This
$297,226 decrease was due to lower average cash balances and lower rates of
return during the period ending September 30, 2009.
Income Taxes. As of
September 30, 2009 and 2008, a full valuation allowance has been recorded for
the deferred tax assets since we do not believe the recoverability of the
deferred income tax assets in the near future is more likely than
not.
31
Liquidity
and Capital Resources
We
incurred net losses of $7,618,231 and $6,092,436 during the nine months ended
September 30, 2009 and 2008, respectively. Since our inception in September
1999, we have incurred cumulative losses and as of September 30, 2009, we had an
accumulated deficit of $37,423,960. We have not yet achieved profitability and
anticipate that we will likely incur additional losses. We cannot
provide assurance as to when will achieve profitability. We expect that our cash
and cash equivalents will be used to fund our selling and marketing
activities primarily related to our ResponseDX tests, research and development,
and general corporate purposes. As a result, we will need to generate
significant revenues to achieve profitability. Until we can generate
and maintain sufficient revenues to finance our cash requirements, which we may
never do, we expect to finance additional cash needs primarily through public or
private equity offerings, strategic collaborations, and other financing
opportunities as they may arise. We do not know whether additional
funding will be available on acceptable terms, if at all. If we are
not able to secure additional funding when needed, we may have to delay, reduce
the scope of or eliminate selling and marketing activities or research and
development programs.
In
addition, we expect to use our capital to fund research and development and to
make capital expenditures to keep pace with the expansion of our research and
development programs and to scale up our commercial operations. The amount and
timing of actual expenditures may vary significantly depending upon a number of
factors, such as the progress of our product development, regulatory
requirements, commercialization efforts, and the amount of cash used by
operations. We expect that we will continue to generate revenue through our
pharmacogenomic testing services and through ResponseDX testing services
business provided to pharmaceutical clients and to the users of our ResponseDX
testing services which partially include oncologists, hospitals, and cancer care
centers. These revenues are not guaranteed and are not expected to
substantially offset the costs associated with our expansion
efforts.
Following
is a summary of recent events and the expected impact these events may or have
had on our liquidity and future realization of revenues.
Contract
amendments
On
December 26, 2008, we amended and restated our master service agreement with
GlaxoSmith Kline, Ltd. ("GSK"), a leading pharmaceutical manufacturer (the "GSK
Agreement"). Pursuant to the amendment, the term of the GSK Agreement has been
extended for a two-year period, with the option for the parties to extend the
GSK Agreement for additional one-year periods, upon their mutual written
agreement. In addition, we will become a preferred provider to GSK and its
affiliates of genetic testing services on a fee-for-service basis and, in
anticipation of the services to be provided, GSK agreed to make a non-refundable
upfront payment of approximately $1,300,000 which was received on January 5,
2009. This payment was classified as deferred revenue and will be used
for future work undertaken in the period beginning on January 1, 2009 and
ending on December 31, 2010. The amount of deferred revenue for this
agreement at September 30, 2009 is $1,499,433.
On
September 7, 2009, the Company amended and restated its master service agreement
with GlaxoSmithKline Biologicals (“GSK Bio”), the vaccine division of
GlaxoSmithKline (the “Amended and Restated Agreement”). Pursuant to
the Amended and Restated Agreement, the parties agreed that GSK Bio has accrued
an aggregate credit under the terms of the original agreement, which amount
shall be allocated towards services rendered to GSK Bio during the remaining
term of the agreement as described below.
For each
calendar quarter of 2009 and the first two quarters of 2010, €200,000 of the
existing credit shall apply to all services rendered to GSK Bio during such
calendar quarter. Pursuant to the Amended and Restated Agreement, GSK
Bio may now extend the term of the agreement for an additional one-year period
through December 31, 2011. In the event GSK Bio extends the term
through 2011, the then remaining balance of the existing credit shall be divided
into six equal quarterly amounts and apply to all services rendered to GSK Bio
in each of the last two quarters of 2010 and the four calendar quarters of
2011. If GSK Bio does not extend the term through 2011, the then
remaining balance of the existing credit will instead be divided into two equal
quarterly amounts and apply to all services rendered to GSK Bio in each of the
last two quarters of 2010. In all cases, GSK Bio shall remit payment
to the Company for all services rendered to GSK Bio in any such calendar quarter
that is in excess of the applicable credit amount. In the event the
amount of services rendered to GSK Bio in a calendar quarter does not exceed the
applicable credit amount, the existing credit for the following calendar quarter
shall be increased by such unused amount.
The
Amended and Restated Agreement further provides that the Company shall provide
additional services on a fee-for-service basis, upon GSK Bio’s written request,
relating to the bridging of assays/diagnostic tests to third parties that
develop, manufacture and sell the commercial diagnostic tests to be used with
certain of GSK Bio’s products. The amount of deferred revenue for this agreement
at September 30, 2009 is $2,883,456.
32
Private
placements
On
February 27, 2009, we entered into a Purchase Agreement with certain affiliates
of Special Situations Funds for the private placement of 2,000,000 newly-issued
shares of the Company's common stock at a per share price of $1.00. The closing
of the sale of the Shares occurred on Monday, March 2, 2009 and we received the
funds on the same date.
In
connection with the Special Situations Funds Private Placement, we also entered
into a Registration Rights Agreement, dated February 27, 2009, with the
Purchasers (the "Registration Rights Agreement") pursuant to which the Company
filed a registration statement with the Securities and Exchange Commission
("SEC") to register the 2,000,000 shares for resale, which registration
statement became effective on June 30, 2009.
On July
22, 2009, we entered into a Purchase Agreement with certain funds of Lansdowne
Partners Limited for the private placement of 3,057,907 newly-issued shares of
the Company's common stock at a per share price of $1.30. The closing of the
sale of the Shares occurred on July 23, 2009. The aggregate offering price of
the shares was approximately $4 million. In connection with the
acquisition of the Shares, the Purchasers were granted certain preemptive rights
permitting them to maintain their percentage ownership interests in connection
with future issuances of the Company’s capital stock, subject to various
exceptions and limitations. We received the funds on July 23, 2009.
In
connection with the Lansdowne Private Placement, we also entered into a
Registration Rights Agreement, dated July 22, 2009, with the Purchasers (the
"Registration Rights Agreement") pursuant to which the Company filed a
registration statement with the SEC to register the 3,057,907 shares for resale,
which registration statement became effective on November 3,
2009. The Company also granted certain "piggyback" registration
rights to Lansdowne which are triggered if the Company proposes to file a
registration statement for its own account or the account of one or more
shareholders until the earlier of the sale of all of the shares or the shares
become eligible for sale under Rule 144(b)(1) without
restriction.
UK
operations
On
February 9, 2009, management implemented a reduction of workforce
(“Reduction of Workforce”) pursuant to which the Company has closed its United
Kingdom testing facility to consolidate services at its CLIA-certified
laboratory facilities in Los Angeles. In connection with the
Reduction of Workforce, the Company incurred expenses associated
with redundancy costs of approximately $268,374 These costs are
included in the Company’s statement of operations for the nine months ended
September 30, 2009. Our lease for our United Kingdom testing facility
expired on March 31, 2009. We extended the lease, pursuant to its terms, for an
additional month, in order to facilitate the winding down of our operations
in the United Kingdom. The Reduction of Workforce was substantially completed on
March 31, 2009. We undertook the Reduction of Workforce as part of a strategic
plan to increase operational efficiency in conjunction with the
consolidation of our services at our Los Angeles facilities and it
will not affect our genetic testing services or current partnership
agreements.
33
Comparison
of nine months ended September 30, 2009 and 2008
As of
September 30, 2009, we had $9,299,183 in cash and cash equivalents, working
capital of $6,983,082 and an accumulated deficit of $37,423,960.
Cash
flows provided by operating activities
During
the nine months ended September 30, 2009, the Company generated negative cash
flows from operations of $6,194,205 compared to cash flows used in operations
activities of $3,983,035 from operations in the nine months ended September
30, 2008. The reasons for using more cash in operating activities was due mainly
to the increase in net loss of $1,525,795, and in combination,
a decrease in receivables, increases in accounts payable
and accrued expenses, an increase in accrued payroll and related
liabilities, and a decrease in deferred revenue.
The decrease
in accounts receivable, of $415,134, related mainly to an amendment entered into
the fourth quarter of 2008 to the contract with GSK. In this amendment GSK
agreed to make a non-refundable upfront payment of approximately $1,300,000
which was received on January 5, 2009. This payment may be credited
against future work undertaken in the period beginning January 1, 2009 and
ending on December 31, 2010.
The
decrease in deferred revenue related to a decrease in advance
billings to our customers, along with recognition of deferred revenue
totaling $535,147.
The
increase in accounts payable and accrued expenses primarily resulted from
increased sales and marketing and business development activities related to the
launch of ResponseDX.
The
change in accrued payroll and related liabilities is primarily due to an
increased number of employees at September 30, 2009.
Cash
flows used in investing activities
Net cash
used in investing activities was $144,968 for the quarter ended September 30,
2009 and $683,213 for the quarter ended September 30, 2008. This decrease was
attributable to reduced need for capital equipment purchases in our
laboratories.
Cash
flows used in financing activities
Cash
flows from financing activities for the nine months ended September 30,
2009 provided net cash of $6,061,901 related to the sale of common
stock. There were no financing activities undertaken in the nine
months ended September 30, 2008.
Off-Balance
Sheet Arrangements
We do not
have any off-balance sheet arrangements.
34
Recent
Accounting Pronouncements
In April
2009, the Company adopted a new accounting standard included in ASC 820, Fair Value Measurements and
Disclosures, (formerly the FASB issued Staff Position SFAS No. 107-1 and
Accounting Principles Board (“APB”) Opinion No. 28-1, Interim Disclosures about Fair Value
of Financial Instruments ). ASC 820 requires disclosure about fair value
of financial instruments in interim financial statements as well as in annual
financial statements. The new standard requires those disclosures in all interim
financial statements. The provisions of the new standard was
effective for interim reporting period ended June 30, 2009 and the application
of the provisions of the standard did not affect our results of operations or
financial condition.
In May
2009, the FASB issued new guidance for subsequent events. The new
guidance, which is part of ASC 855, Subsequent Events, (formerly
SFAS No. 165, Subsequent
Events) is intended to establish standards of accounting for and
disclosure of events that occur after the balance sheet date but before
financial statements are issued. See Note 16 for additional information.
The adoption of ASC 855 resulted in additional quarterly disclosures beginning
in the second quarter of 2009 but did not affect the results of operations or
financial condition..
In
June 2009, the FASB issued SFAS No. 166, Accounting for Transfers of
Financial Assets, now ASC 86-20 Sale of Financial Assets,
which has not yet been adopted into Codification. SFAS No. 166 removes the
concept of a qualifying special-purpose entity (QSPE) from SFAS No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishment of
Liabilities, and removes the exception from applying FIN 46(R). This statement
also clarifies the requirements for isolation and limitations on portions of
financial assets that are eligible for sale accounting. This statement is
effective for fiscal years beginning after November 15, 2009. As such, the
Company plans to adopt SFAS No. 166 effective January 1, 2010. The
adoption of this standard is not expected to have a material effect on the
Company’s results of operations or financial position.
In
June 2009, the FASB issued SFAS No. 167, Amendments to FASB
Interpretation No. 46(R), now ASC 810 Consolidation,Variable Interest
Entities, which has not yet been adopted into Codification. SFAS 167,
which amends FASB Interpretation No. 46 (revised December 2003),
Consolidation of Variable Interest Entities, (FIN 46(R)), prescribes a
qualitative model for identifying whether a company has a controlling financial
interest in a variable interest entity (VIE) and eliminates the quantitative
model prescribed by FIN 46(R). The new model identifies two primary
characteristics of a controlling financial interest: (1) provides a company
with the power to direct significant activities of the VIE, and
(2) obligates a company to absorb losses of and/or provides rights to
receive benefits from the VIE. SFAS No. 167 requires a company to reassess
on an ongoing basis whether it holds a controlling financial interest in a VIE.
A company that holds a controlling financial interest is deemed to be the
primary beneficiary of the VIE and is required to consolidate the VIE. This
statement is effective for fiscal years beginning after November 15,
2009. The adoption of this standard is not expected to have a
material effect on the Company’s results of operations or financial
position.
In
June 2009, the FASB issued SFAS No. 168, The FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles. This standard replaces SFAS No. 162, The Hierarchy of
Generally Accepted Accounting Principles , and establishes only two
levels of U.S. generally accepted accounting principles, authoritative and
nonauthoritative. The FASB Accounting Standards Codification will become the
source of authoritative, nongovernmental GAAP, except for rules and interpretive
releases of the SEC, which are sources of authoritative GAAP for SEC
registrants. All other nongrandfathered, non-SEC accounting literature not
included in the Codification will become nonauthoritative. This standard is
effective for financial statements for interim or annual reporting periods
ending after September 15, 2009. The adoption of the Codification changed
the Company’s references to GAAP accounting standards but did not impact the
Company’s results of operations, financial position or liquidity.
In June
2009, the FASB issued FASB Accounting Standards Update (“ASU”) 2009-01 “Topic
105 – Generally accepted Accounting Principles amendments based on the Statement
of Financial Accounting Standards No. 168 - The FASB Accounting Standards
Codification and the Hierarchy of Generally Accepted Accounting Principles.” ASU
2009-01 establishes the FASB Accounting Standards Codification as the single
source of authoritative nongovernmental U.S. generally accepted accounting
principles. The Company adopted ASU 2009-01 during the quarter ended September
30, 2009, and its application did not affect our results of operations or
financial condition.
In
June 2009, the FASB issued ASU No. 2009-02, “Omnibus Update —
Amendments to Various Topics for Technical Corrections” (ASU 2009-02). The FASB
issued ASU 2009-02 in order to make technical corrections to the Codification.
The Company adopted ASU 2009-02 during the quarter ended September 30, 2009, and
its application did not affect our results of operations or financial
condition.
In
August 2009, the FASB issued ASU No. 2009-03, “SEC Update — Amendments
to Various Topics Containing SEC Staff Accounting Bulletins” (ASU 2009-03). The
Codification includes certain SEC and SEC staff guidance in order to increase
usefulness of the Codification for public companies. The SEC guidance is
presented in separate sections and is limited to material on the basic financial
statements. ASU 2009-03 includes technical corrections to various topics
containing SEC Staff Accounting Bulletins to update cross-references to
Codification text. The Company adopted ASU 2009-03 during the quarter ended
September 30, 2009, and its application did not affect our results of operations
or financial condition.
In
August 2009, the FASB issued ASU No. 2009-05, “Fair Value Measurements
and Disclosures (Topic 820) — Measuring Liabilities at Fair Value” (ASU
2009-05). This ASU amends Subtopic 820-10, Fair Value Measurements and
Disclosures-Overall, for the fair value measurement of liabilities, and provides
clarification regarding required valuations techniques for circumstances in
which a quoted price in an active market for the identical liability is not
available. The Company adopted ASU 2009-05 during the quarter ended September
30, 2009, and its application did not affect our results of operations or
financial condition.
In
September 2009, the FASB issued ASU No. 2009-07, “Accounting for
Various Topics — Technical Corrections to SEC Paragraphs” (ASU 2009-07). This
ASU represents technical corrections to various topics containing SEC guidance
based on external comments received. The Company adopted ASU 2009-07 during the
quarter ended September 30, 2009, and its application did not affect our results
of operations or financial condition.
In August
2009, the FASB issued new guidance relating to the accounting for the fair value
measurement of liabilities. The new guidance, which is now part of ASC 820,
provides clarification that in certain circumstances in which a quoted price in
an active market for the identical liability is not available, a company is
required to measure fair value using one or more of the following valuation
techniques: the quoted price of the identical liability when traded as an asset,
the quoted prices for similar liabilities or similar liabilities when traded as
assets, or another valuation technique that is consistent with the principles of
fair value measurements. The new guidance clarifies that a company is not
required to include an adjustment for restrictions that prevent the transfer of
the liability and if an adjustment is applied to the quoted price used in a
valuation technique, the result is a Level 2 or 3 fair value measurement. The
new guidance is effective for interim and annual periods beginning after August
27, 2009. The adoption of this guidance is not expected to have a material
effect on the Company’s results of operations or financial
position.
35
ITEM
3. Qualitative and Quantitative Disclosures about Market Risk.
Not
applicable as we are a smaller reporting company.
ITEM
4T. Controls and Procedures.
Our
principal executive officer and principal financial officer, after evaluating
the effectiveness of our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended)
as of the end of the period covered by this Quarterly Report on Form 10-Q, have
concluded that, based on such evaluation, our disclosure controls and procedures
were adequate and effective. In designing and evaluating our disclosure controls
and procedures, our management recognized that any controls and procedures, no
matter how well designed and operated, can provide only reasonable assurance of
achieving the desired control objectives, and our management necessarily was
required to apply its judgment in evaluating the cost-benefit relationship of
possible controls and procedures.
There
were no changes in our internal control over financial reporting during the
quarter ended September 30, 2009 that have materially
affected, or are reasonably likely to materially affect, our internal controls
over financial reporting.
PART
II. OTHER INFORMATION
ITEM
1. Legal Proceedings.
None.
ITEM
1A. Risk Factors
Not
applicable as we are a smaller reporting company.
ITEM
2. Unregistered Sales of Equity Securities and Use of Proceeds.
On
July 22, 2009, the Company entered into a Purchase Agreement with certain
funds managed by Lansdowne Partners Limited Partnership for the private
placement of 3,057,907 newly-issued shares of the Company's common stock at a
per share price of $1.30. The closing of the sale of the shares occurred on July
22, 2009. The aggregate offering price of the shares was
approximately $4 million and the Company received the funds on July 23,
2009. In connection with the acquisition of the shares, the
Purchasers were granted certain preemptive rights permitting them to maintain
their percentage ownership interests in connection with future issuances of the
Company’s capital stock, subject to various exceptions and
limitations.
In
connection with the Lansdowne Private Placement, we also entered into a
Registration Rights Agreement, dated July 22, 2009, with the Purchasers (the
"Registration Rights Agreement") pursuant to which the Company filed a
registration statement with the SEC to register the 3,057,907 shares for resale,
which registration statement became effective on November 3,
2009. The Company also granted certain "piggyback" registration
rights to Lansdowne which are triggered if the Company proposes to file a
registration statement for its own account or the account of one or more
shareholders until the earlier of the sale of all of the shares or the shares
become eligible for sale under Rule 144(b)(1) without
restriction.
36
ITEM
3. Defaults Upon Senior Securities.
None.
ITEM
4. Submission of Matters to a Vote of Security Holders.
None.
ITEM
5. Other Information.
None.
ITEM 6. Exhibits.
10.1
|
Amended
and Restated Master Agreement for the supply of Laboratory Test Services
by and between GlaxoSmithKline Biologicals and the Company, dated as of
September 7, 2009.
|
31.1
|
Certification
of Principal Executive Officer Pursuant to Section 302.
|
31.2
|
Certification
of Principal Financial Officer Pursuant to Section 302.
|
32
|
Section
906 certification of periodic financial report by Chief Executive Officer
and Chief Financial Officer.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
RESPONSE
GENETICS, INC.
|
||
DATE:
November 16, 2009
|
By:
|
/s/ Kathleen Danenberg
|
Kathleen
Danenberg
|
||
President
and Chief Executive Officer (Principal Executive
Officer)
|
||
DATE:
November 16, 2009
|
By:
|
/s/ Thomas Stankovich
|
Thomas
Stankovich
|
||
Chief
Financial Officer (Principal Financial
Officer)
|
37