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EX-32.2 - CERTIFICATION - DAIS ANALYTIC CORPdais_ex322.htm
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EX-31.2 - CERTIFICATION - DAIS ANALYTIC CORPdais_ex312.htm
EX-31.1 - CERTIFICATION - DAIS ANALYTIC CORPdais_ex311.htm


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
FORM 10-K/A
 
 
(Mark One)
x
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the Fiscal Year Ended December 31, 2010
 
¨
TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT 1934
 
For the transition period from ________to__________
 
Commission file number: 000-53554
 
DAIS ANALYTIC CORPORATION
(Exact name of registrant as specified in its charter)
 
New York
 
14-1760865
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification No.)
 
 
 
11552 Prosperous Drive
Odessa, Florida
 
33556
(Address of Principal Executive Offices)
 
(Zip Code)
 
Registrant’s telephone number, including area code: (727) 375-8484
 
Securities registered pursuant to Section 12(b) of the Act:
None
 
Securities registered pursuant to Section 12 (g) of the Act:
Common Stock, par value $0.01 per share
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ¨    No  x
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ¨    No  x
 
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 has submitted electronically and posted on its corporate web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405) during the preceding 12 months.    Yes  ¨    No  ¨
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  ¨
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
Large accelerated filer
¨
Accelerated filer
¨
Non-accelerated filer
¨  
Smaller reporting company
x
(Do not check if a smaller reporting company)      
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act):    Yes  ¨    No  x
 
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant was approximately $5,665,810 as of the last business day of the registrant’s most recently completed second fiscal quarter, based upon the closing sale price on the OTC:BB reported for such date. Shares of common stock held by each officer and director and by each person who owns 10% or more of the outstanding common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
 
As of March 29, 2011, the Registrant had 33,580,928 outstanding shares of its common stock, $0.01 par value.
 
Documents incorporated by reference: none
 
Explanatory Note:  The Company is filing this amendment to include a revised audit opinion that states that the 2009 financial statements have been restated for the correction of a misstatement, see Footnote 12.
 


 
 

 
DAIS ANALYTIC CORPORATION
FORM 10-K
TABLE OF CONTENTS
 
         
PART II
       
         
ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
    3  
           
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES     4  
           
SIGNATURES
    5  
         
FINANCIAL STATEMENTS
    6  
 
ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
 
Our financial statements and the related notes begin on Page 6, which are included in this Annual Report on Form 10-K/A.
 
 
 
 
 
PART IV
 
ITEM 15.
EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
 
     
No.
  
Exhibit
   
31.1
  
Certification of Chief Executive Officer pursuant to section 302 of the Sarbanes-Oxley Act of 2002
   
31.2
  
Certification of Chief Financial Officer pursuant to section 302 of the Sarbanes-Oxley Act of 2002
   
32.1
  
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
   
32.2
  
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
 
 
SIGNATURES
 
In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
DAIS ANALYTIC CORPORATION
 
       
Dated: June 14, 2011
By:
/S/ TIMOTHY N. TANGREDI
 
   
Timothy N. Tangredi
Chairman of the Board
Chief Executive Officer and Director
(Principal Executive Officer)
 
       
Dated: June 14, 2011
By:
/S/ JUDITH C. NORSTRUD
 
   
Judith C. Norstrud
Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
 
 
         
Signatures
  Title  
Date
         
/S/ TIMOTHY N. TANGREDI
     
June 14, 2011
Timothy N. Tangredi
  Chairman of the Board, Chief Executive Officer and Director    
         
/S/ ROBERT W. SCHWARTZ
  Director  
June 14, 2011
Robert W. Schwartz
       
         
/S/ RAYMOND KAZYAKA SR.
  Director  
June 14, 2011
Raymond Kazyaka Sr.
       


Financial Statements
 
Dais Analytic Corporation
 
Years Ended December 31, 2010 and 2009
Report of Independent Registered Public Accounting Firm
 
 
 
 
 
 
 
 
 
 

 
 
         
  
 
  
         
Financial Statements:
  
     
  
 
7
  
  
 
8
  
  
 
9
  
  
 
10
  
  
 
11
  
 


 
Board of Directors and Stockholders
Dais Analytic Corporation
Odessa, Florida
 
We have audited the accompanying balance sheets of Dais Analytic Corporation (“the Company”) as of December 31, 2010 and 2009, and the related statements of operations, stockholders’ deficit, and cash flows for the years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
 
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal controls over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
 
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Dais Analytic Corporation as of December 31, 2010 and 2009, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States.
 
As more fully discussed in Note 12, the Company has restated the accompanying financial statements as of and for the year ended December 31, 2009 to correct errors in accounting for certain common stock warrants.
 
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2, the Company has incurred significant losses since inception and has a working capital deficit and stockholders’ deficit of $2,861,448 and $6,722,092 at December 31, 2010. These factors raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also discussed in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
 
 
Cross, Fernandez & Riley LLP
Orlando, Florida March 31, 2011
 

 
                 
 
  
December 31,
 
 
  
2010
   
2009
 
 
  
     
Restated
 
Assets
  
             
Current assets:
  
             
Cash and cash equivalents
  
$
304,656
  
 
$
1,085,628
  
Accounts receivable
  
 
828,632
  
   
187,434
  
Other receivables
  
 
59,526
  
   
—  
  
Inventory
  
 
294,069
  
   
149,986
  
Prepaid expenses and other current assets
  
 
258,136
  
   
103,571
  
 
  
             
     
Total current assets
  
 
1,745,019
  
   
1,526,619
  
 
  
             
     
Property and equipment, net
  
 
147,911
  
   
19,383
  
 
  
             
     
Other assets:
  
             
Deposits
  
 
3,280
  
   
2,280
  
Patents, net of accumulated amortization of $112,240 and $107,319 at December 31, 2010 and 2009, respectively
  
 
74,363
  
   
72,464
  
 
  
             
Total other assets
  
 
77,643
  
   
74,744
  
 
  
             
 
  
$
1,970,573
  
 
$
1,620,746
  
 
  
             
     
Liabilities and Stockholders’ Deficit
  
             
Current liabilities:
  
             
Accounts payable, including related party payables of $151,440 and $150,740 at December 31, 2010 and 2009, respectively
  
$
620,196
  
 
$
385,955
  
Accrued compensation and related benefits
  
 
1,426,022
  
   
1,314,356
  
Accrued expenses, other
  
 
241,861
  
   
223,597
  
Current portion of deferred revenue
  
 
647,804
  
   
292,457
  
Current portion of notes payable
  
 
50,000
  
   
150,000
  
Current portion of notes payable, related party
  
 
1,620,624
  
   
1,425,624
  
 
  
             
     
Total current liabilities
  
 
4,606,507
  
   
3,791,989
  
     
Long-term liabilities:
  
             
Long-term portion of notes payable, related party
  
 
—  
  
   
300,000
  
Warrant liability
  
 
3,958,318
  
   
4,577,119
  
Deferred revenue, net of current portion
  
 
127,840
  
   
207,696
  
 
  
             
     
Total long-term liabilities
  
 
4,086,158
  
   
5,084,815
  
 
  
             
     
Stockholders’ deficit:
  
             
Preferred stock; $0.01 par value; 10,000,000 shares authorized; 0 shares issued and outstanding
  
 
—  
  
   
—  
  
Common stock; $0.01 par value; 200,000,000 shares authorized; 33,563,428 and 29,352,930 shares issued and 33,306,215 and 29,095,717 shares outstanding at December 31, 2010 and 2009, respectively
  
 
335,635
  
   
293,530
  
Capital in excess of par value
  
 
29,852,347
  
   
27,926,893
  
Accumulated deficit
  
 
(35,637,962
)
   
(34,204,369
)
 
  
             
 
  
 
(5,449,980
)
   
(5,983,946
)
Treasury stock at cost, 257,213 shares
  
 
(1,272,112
)
   
(1,272,112
)
 
  
             
Total stockholders’ deficit
  
 
(6,722,092
)
   
(7,256,058
)
 
  
             
 
  
$
1,970,573
  
 
$
1,620,746
  
 
The accompanying notes are an integral part of the financial statements

 
 
                 
 
  
Year Ended December 31,
 
 
  
2010
   
2009
 
 
  
     
Restated
 
Revenue:
  
             
Sales
  
$
3,260,468
  
 
$
1,447,071
  
License fees
  
 
82,000
  
   
84,144
  
 
  
             
 
  
 
3,342,468
  
   
1,531,215
  
 
  
             
Cost of goods sold
  
 
2,290,041
  
   
1,071,098
  
 
  
             
Gross profit
  
 
1,052,427
  
   
460,117
  
Expenses:
  
             
Research and development expenses, net of government grant proceeds of $99,732 and $0
  
 
238,182
  
   
6,600
  
Selling, general and administrative
  
 
2,693,092
  
   
3,217,992
  
 
  
 
2,931,274
  
   
3,224,592
  
 
  
             
Loss from operations
  
 
(1,878,847
)
   
(2,764,475
)
Other expense (income):
  
             
Other (income)
  
 
(36,003
   
—  
  
Change in fair value of warrant liability
  
 
(618,801
   
3,731,694
  
Interest expense
  
 
209,550
  
   
621,574
  
Interest income
  
 
—  
  
   
(667
)
 
  
             
 
  
 
(445,254
)
   
4,352,601
  
 
  
             
     
Net loss
  
$
(1,433,593
)
 
$
(7,117,076
)
 
  
             
     
Net loss per common share, basic and diluted
  
$
(0.05
)
 
$
(0.36
)
 
  
             
     
Weighted average number of common shares, basic and diluted
  
 
29,985,632
  
   
19,960,150
  
 
The accompanying notes are an integral part of the financial statements.

 
 
 
  
Common Stock
 
  
Capital in
Excess of
   
Accumulated
   
Prepaid
Services
Paid for
with
Common
   
Treasury
   
Total
Stockholders’
 
 
  
Shares
 
  
Amount
 
  
Par Value
   
Deficit
   
Stock
   
Stock
   
Deficit
 
Balance, December 31, 2008
  
 
12,162,398
  
  
 
121,624
  
  
 
25,253,196
  
   
(28,776,769
)
   
(23,375
)
   
(1,272,112
)
   
(4,697,436
)
Issuance of common stock for conversion of notes payable and related accrued interest
  
 
13,553,822
  
  
 
135,538
  
  
 
2,576,062
  
   
—  
  
   
—  
  
   
—  
  
   
2,711,600
  
Issuance of common stock and warrant for services
  
 
344,692
  
  
 
3,448
  
  
 
105,029
  
   
—  
  
   
23,375
  
   
—  
  
   
131,852
  
Stock-based compensation expense
  
 
—  
  
  
 
—  
  
  
 
1,504,669
  
   
—  
  
   
—  
  
   
—  
  
   
1,504,669
  
Issuance of warrants for debt conversion
  
 
—  
  
  
 
—  
  
  
 
413,008
  
   
—  
  
   
—  
  
   
—  
  
   
413,008
  
Issuance of common stock and warrants for cash
  
 
2,490,385
  
  
 
24,904
  
  
 
613,596
  
   
—  
  
   
—  
  
   
—  
  
   
638,500
  
Cumulative effect of change in accounting principle for warrant classification
  
 
—  
  
  
 
—  
  
  
 
(3,623,448
   
1,689,476
  
   
—  
  
   
—  
  
   
(1,933,972
Exercise of warrants and options
  
 
801,633
  
  
 
8,016
  
  
 
1,084,781
  
   
—  
  
   
—  
  
   
—  
  
   
1,092,797
  
Net loss, restated
  
 
—  
  
  
 
—  
  
  
 
—  
  
   
(7,117,076
)
   
—  
  
   
—  
  
   
(7,117,076
)
 
  
     
  
     
  
                                     
Balance, December 31, 2009, restated
  
 
29,352,930
  
  
$
293,530
  
  
$
27,926,893
  
 
$
(34,204,369
)
 
$
—  
  
 
$
(1,272,112
)
 
$
(7,256,058
)
Issuance of common stock and warrants for services
  
 
888,692
  
  
 
8,887
  
  
 
503,993
  
   
—  
  
   
—  
  
   
—  
  
   
512,880
  
Issuance of common stock for conversion of notes payable
  
 
1,000,384
  
  
 
10,004
  
  
 
190,073
  
   
—  
  
   
—  
  
   
—  
  
   
200,077
  
Stock based compensation
  
 
—  
  
  
 
—  
  
  
 
651,032
  
   
—  
  
   
—  
  
   
—  
  
   
651,032
  
Issuance of common stock in exchange for debt settlement
  
 
2,321,422
  
  
 
23,214
  
  
 
580,356
  
   
—  
  
   
—  
  
   
—  
  
   
603,570
  
Net loss
  
 
—  
  
  
 
—  
  
  
 
—  
  
   
(1,433,593
   
—  
  
   
—  
  
   
(1,433,593
 
  
     
  
     
  
                                     
Balance, December 31, 2010
  
 
33,563,428
  
  
$
335,635
  
  
$
29,852,347
  
 
$
(35,637,962
 
$
—  
  
 
$
(1,272,112
 
$
(6,722,092
 
The accompanying notes are an integral part of the financial statements.
 
 
  
Years Ended December 31,
 
 
  
2010
   
2009
 
 
  
     
(restated)
 
Operating activities
  
             
Net loss
  
$
(1,433,593
)
 
$
(7,117,076
)
 
  
             
Adjustments to reconcile net loss to net cash used by operating activities:
  
             
Depreciation and amortization
  
 
15,276
  
   
19,826
  
Amortization of deferred loan costs
  
 
—  
  
   
1,004
  
Amortization of discount on convertible notes
  
 
—  
  
   
144
  
Amortization of the beneficial conversion feature on convertible notes
  
 
—  
  
   
29,992
  
Issuance of common stock, stock options and stock warrants for services and amortization of common stock issued for services
  
 
287,035
  
   
110,316
  
Stock based compensation expense
  
 
651,034
  
   
1,504,669
  
Issuance of common stock warrants to induce conversion of notes payable
  
 
—  
  
   
413,008
  
Change in fair value of warrant liability
  
 
(618,801
   
3,731,694
  
(Increase) decrease in:
  
             
Accounts receivable
  
 
(641,198
)
   
1,536
  
Other receivables
  
 
(59,526
)
   
—  
  
Inventory
  
 
(144,083
)
   
(2,858
)
Prepaid expenses and other current assets
  
 
(4,984
)
   
(50,853
)
Increase (decrease) in:
  
             
Accounts payable and accrued expenses
  
 
380,835
  
   
251,014
  
Accrued compensation and related benefits
  
 
111,666
  
   
166,967
  
Deferred revenue
  
 
275,491
  
   
122,239
  
 
  
             
Net cash used by operating activities
  
 
(1,180,848
)
   
(818,378
)
 
  
             
Investing activities
  
             
Increase in patent costs
  
 
(6,819
)
   
(39,265
Purchase of property and equipment
  
 
(113,305
)
   
(1,346
)
 
  
             
Net cash used by investing activities
  
 
(120,124
   
(40,611
 
  
             
Financing activities
  
             
Proceeds from issuance of notes payable, related party
  
 
620,000
  
   
1,565,000
  
Payments on notes payable, related party
  
 
(100,000
)
   
(290,000
)
Proceeds from advance from related party
  
 
—  
  
   
222,900
  
Repayments of advance from related party
  
 
—  
  
   
(222,900
)
Issuance of common stock and exercise of warrants for cash
  
 
—  
  
   
642,750
  
 
  
             
Net cash provided by financing activities
  
 
520,000
  
   
1,917,750
  
 
  
             
Net (decrease) increase in cash and cash equivalents
  
 
(780,972
)
   
1,058,761
  
     
Cash and cash equivalents, beginning of period
  
 
1,085,628
  
   
26,867
  
 
  
             
Cash and cash equivalents, end of period
  
$
304,656
  
 
$
1,085,628
  
Cash paid during the year for interest
  
$
—  
  
 
$
42,651
  
 
The accompanying notes are an integral part of the financial statements.


Dais Analytic Corporation
Statements of Cash Flows
 
Supplemental disclosures of cash flow information
and noncash investing and financing activities:
 
During the years ended December 31, 2010 and 2009, the Company issued 1,000,384 and 13,553,822 shares of common stock in conversion of $175,000 and $2,350,000 of notes payable and $25,077 and $361,600 of accrued interest, respectively.
 
During the year ended December 31, 2010, two note holders elected to apply all of the proceeds due and payable under their notes, including all accrued interest, to purchase 2,321,422 shares of the Company’s Common Stock at a purchase price of $0.26 per share resulting in an aggregate purchase price of $603,570.
 
During the years ended December 31, 2010 and 2009, the Company issued 888,692 and 344,692 shares of common stock and warrants for services valued at $512,880 and $110,316, respectively.
 
The cumulative effect for the change in accounting principle related to warrant classification resulted in an increase of $1,689,476 to retained earnings and a $3,623,448 decrease to capital in excess of par value at January 1, 2009. Additionally, the exercise of certain warrants during the year ended December 31, 2009 resulted in the reclassification of $1,088,547 from warranty liability to capital in excess of par value.
 
The accompanying notes are an integral part of the financial statements.
 

 
1. Background Information
 
Dais Analytic Corporation (the “Company”), a New York corporation, has developed and is commercializing applications using its nano-structure polymer technology. The first commercial product is an energy recovery ventilator (“ERV”) (cores and systems) for use in commercial Heating, Ventilating, and Air Conditioning (HVAC) applications. In addition to direct sales, the Company licenses its nano-structured polymer technology to strategic partners in the aforementioned application and is in various stages of development with regard to other applications employing its base technologies. The Company was incorporated in April of 1993 with its corporate headquarters located in Odessa, Florida.
 
The Company is dependent on third parties to manufacture the key components needed for our nano-structured based materials and value added products made with these materials. Accordingly, a supplier’s failure to supply components in a timely manner, or to supply components that meet our quality, quantity and cost requirements or our technical specifications, or the inability to obtain alternative sources of these components on a timely basis or on terms acceptable to us, would create delays in production of our products or increase our unit costs of production. Certain of the components contain proprietary products of our suppliers, or the processes used by our suppliers to manufacture these components are proprietary. If we are required to replace any of our suppliers, while we should be able to obtain comparable components from alternative suppliers at comparable costs, this would create a delay in production.
 
For the years ended December 31, 2010 and 2009, seven five customers accounted for approximately 61% (seven customers represented the following percentages of sales 13%, 13%, 9%, 7%, 7%, 6% and 6%) and 66% (five customers represented the following percentages of sales 27%, 16%, 12%, 7% and 4%) of the Company’s total revenue, respectively. At December 31, 2010 and 2009 amounts due from these customers was approximately 61% and 25% of total accounts receivable, respectively.
 
2. Going Concern
 
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. For the year ended December 31, 2010, the Company incurred a net loss of $1,433,593 and has incurred significant losses since inception. As of December 31, 2010, the Company has an accumulated deficit of $35,673,962, negative working capital of $2,861,488 and a stockholders’ deficit of $6,722,092. The Company used $1,180,848 and $818,378 of cash from operations during 2010 and 2009, respectively, which was funded by proceeds from debt and equity financings. There is no assurance that such financing will be available in the future. In view of these matters, there is substantial doubt that the Company will continue as a going concern. The Company is currently pursuing the following sources of short and long-term working capital:
 
 
1.
We are currently holding preliminary discussions with parties who are interested in licensing, purchasing the rights to, or establishing a joint venture to commercialize certain applications of our technology.
 
 
2.
We are seeking growth capital from certain strategic and/or government (grant) related sources. In addition to said capital, these sources may, pursuant to any agreements that may be developed in conjunction with such funding, assist in the product definition and design, roll-out, and channel penetration of our products. As part of this step we will attempt to take advantage of key programs associated with the recently enacted American Recovery and Reinvestment Act of 2009.
 
The Company’s ability to continue as a going concern is highly dependent on our ability to obtain additional sources of cash flow sufficient to fund our working capital requirements. However, there can be no assurance that the Company will be successful in its efforts to secure such cash flow. Any failure by us to timely procure additional
 financing or investment adequate to fund our ongoing operations, including planned product development initiatives and commercialization efforts, will have material adverse consequences on our financial condition, results of operations and cash flows.
 
The financial statements of the Company do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts and classifications of liabilities that might be necessary should the Company be unable to continue as a going concern.
 
 
3. Significant Accounting Policies
 
The significant accounting policies followed are:
 
Use of estimates - The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
 
Cash and cash equivalents - All cash, other than held in escrow, is maintained with a major financial institution in the United States. Deposits with this bank may exceed the amount of insurance provided on such deposits. Temporary cash investments with an original maturity of three months or less are considered to be cash equivalents.
 
Accounts receivable - Accounts receivable consist primarily of receivables from the sale of our ERV products. The Company regularly reviews accounts receivable for any bad debts based on an analysis of the Company’s collection experience, customer credit worthiness, and current economic trends. At December 31, 2010, the days sales outstanding was 93, as compared to 47 at December 31, 2009. The increase in the number of days to collect our receivables is primarily a result of the downturn in the economy and additional approval and certifications that our products had to pass (for a small number of customers) prior to payment being made. Based on management’s review of accounts receivable, no allowance for doubtful accounts is considered necessary at December 31, 2010 and 2009.
 
Inventory - Inventory consists of raw materials and work-in-process and is stated at the lower of cost, determined by first-in, first-out method, or market. Market is determined based on the net realizable value, with appropriate consideration given to obsolescence, excessive levels, deterioration and other factors. At December 31, 2010 and 2009, the Company had $11,869 and $2,160 of in-process inventory, respectively. A reserve is recorded for any inventory deemed excessive or obsolete. No reserve is considered necessary at December 31, 2010 and 2009.
 
Property and equipment - Property and equipment are recorded at cost. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets ranging from 5 to 7 years. Depreciation expense was approximately $10,400 and $8,900 for the years ended December 31, 2010 and 2009, respectively. Gains and losses upon disposition are reflected in the statement of operations in the period of disposition. Maintenance and repair expenditures are charged to expense as incurred.
 
Intangible assets - Identified intangible assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. The Company’s existing intangible assets consist solely of patents. Patents are amortized over their estimated useful or economic lives of 15 years. Patent amortization expense was approximately $4,900 and $10,100 for the years ended December 31, 2010 and 2009, respectively. Total patent amortization expense for the next five years is estimated to be approximately $15,000 per year.
 
Long-lived assets - Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the book value of the asset may not be recoverable. The Company periodically evaluates whether events and circumstances have occurred that indicate possible impairment. When impairment indicators exist, the Company uses market quotes, if available or an estimate of the future undiscounted net cash flows of the related asset or asset group over the remaining life in measuring whether or not the asset values are recoverable. There have been no significant impairments of long-lived assets during the two-year period ended December 31, 2010.
 
 
Research and development expenses, and grant proceeds - Expenditures for research, development, and engineering of products are expensed as incurred. For the years ended December 31, 2010 and 2009, the Company incurred research and development costs of approximately $337,900 and $6,600, respectively. The Company accounts for proceeds received from government grants for research as a reduction in research and development costs. For the year ended December 31, 2010, the Company recorded approximately $99,000 in grant proceeds against research and development expenses on the statement of operations. No such grant proceeds were recognized for the year ended December 31, 2009.
 
Stock issuance costs - Stock issuance costs are recorded as a reduction of the related proceeds through a charge to stockholders’ equity.
 
Common stock - The Company records common stock issuances when all of the legal requirements for the issuance of such common stock have been satisfied.
 
Revenue recognition - Generally, the Company recognizes revenue for its products upon shipment to customers, provided no significant obligations remain and collection is probable. This policy applies to all of our customers, including Genertec America (a distribution agreement) and CAST Systems Control Technology Co. (an agreement for the purchase of specific goods).
 
Our ConsERV product typically carries a warranty of two years for all parts contained therein with the exception of the energy recovery ventilator core which typically carries a 10 year warranty. The warranty includes replacement of defective parts. The Company has recorded an accrual of approximately $11,500 for future warranty expenses at December 31, 2010.
 
Revenue derived from the sale of licenses is deferred and recognized as revenue on a straight-line basis over the life of the license, or until the license arrangement is terminated. The Company recognized revenue of approximately $82,000 and $84,000 from license agreements for the years ended December 31, 2010 and 2009, respectively.
 
Government Grants - Grants are recognized when there is reasonable assurance that the grant will be received and that any conditions associated with the grant will be met. When grants are received related to Property and Equipment, the Company reduces the basis of the assets on the Statement of Financial Position, resulting in lower depreciation expense over the life of the associated asset. Grants received related to expenses are reflected as a reduction of the associated expense in the period in which the expense is incurred.
 
Stock based compensation - The Company recognizes all share-based payments to employees, including grants of employee stock options, as compensation expense in the financial statements based on their fair values. That expense will be recognized over the period during which an employee is required to provide services in exchange for the award, known as the requisite service period (usually the vesting period).
 
 
The value of each grant is estimated at the grant date using the Black-Scholes option model with the following assumptions for options granted during the years ended December 31, 2010 and 2009:
 
 
Years Ended December 31,
 
 
2010
 
2009
 
     
Dividend rate
    0 %     0 %
     
Risk free interest rate
    1.96% – 3.68 %     1.65% – 3.49 %
     
Expected term
 
5 – 6.5 years
   
5 – 10 years
 
     
Expected volatility
    97% – 112 %     92% – 106 %
 
The basis for the above assumptions are as follows: the dividend rate is based upon the Company’s history of dividends; the risk-free interest rate for periods within the expected term of the option is based on the U.S. Treasury yield curve in effect at the time of grant; the expected term was calculated based on the Company’s historical pattern of options granted and the period of time they are expected to be outstanding; and expected volatility was calculated by review of a peer company’s historical activity.
 
Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. Based on historical experience of forfeitures, the Company estimated forfeitures at 0% for each of the years ended December 31, 2010 and 2009.
 
Non-employee stock-based compensation - The Company’s accounting policy for equity instruments issued to consultants and vendors in exchange for goods and services follows the provisions of EITF 96-18, “Accounting for Equity Instruments That are Issued to Other Than Employees for Acquiring , or in Conjunction with Selling Goods or Services,” now ASC 505 and EITF 00-18 “Accounting Recognition for Certain Transactions Involving Equity Instruments Granted to Other Than Employees,” now ASC 505. The measurement date for the fair value of the equity instruments issued is determined at the earlier of (i) the date at which a commitment for performance by the consultant or vendor is reached or (ii) the date at which the consultant or vendor’s performance is complete. In the case of equity instruments issued to consultants, the fair value of the equity instrument is recognized over the term of the consulting agreement. Stock-based compensation related to non-employees is accounted for based on the fair value of the related stock or options or the fair value of the services, whichever is more readily determinable in accordance with ASC 718.
 
The fair value of warrants issued in 2010 and 2009 was calculated using the Black-Scholes model with the following assumptions: Expected life in years: 5-10 years and 5-10 years, respectively; Estimated volatility 96% - 100% and 80% - 114%, respectively; Risk-free interest rate: 2.38% - 2.57% and 2.64% - 3.98%, respectively; Dividend yield: 0%.
 
Financial instruments - In September 2006, the Financial Accounting Standards Board (FASB) introduced a framework for measuring fair value and expanded required disclosure about fair value measurements of assets and liabilities. The Company adopted the standard for those financial assets and liabilities as of the beginning of the 2008 fiscal year and the impact of adoption was not significant. FASB Accounting Standards Codification (ASC) 820 “Fair Value Measurements and Disclosures” (ASC 820) which defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy that distinguishes between (1) market participant assumptions developed based on market data obtained from independent sources (observable inputs) and (2) an entity’s own assumptions about market participant assumptions developed based on the best information available in the circumstances (unobservable inputs). The fair value hierarchy consists of three broad levels, which gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). The three levels of the fair value hierarchy are described below:
 
 
 
 
Level 1 - Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities.
 
 
 
Level 2 - Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, including quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; inputs other than quoted prices that are observable for the asset or liability (e.g., interest rates); and inputs that are derived principally from or corroborated by observable market data by correlation or other means.
 
 
 
Level 3 - Inputs that are both significant to the fair value measurement and unobservable.
 
Fair value estimates discussed herein are based upon certain market assumptions and pertinent information available to management as of December 31, 2010. The Company uses the market approach to measure fair value for its Level 1 financial assets and liabilities, which include cash equivalents of $10,150 at December 31, 2010. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets and liabilities.
 
The respective carrying value of certain on-balance sheet financial instruments approximated their fair values due to the short-term nature of these instruments. These financial instruments include cash, accounts receivable, other receivables, accounts payable, accrued compensation and accrued expenses. The fair value of the Company’s notes payable is estimated based on current rates that would be available for debt of similar terms which is not significantly different from its stated value.
 
The Company’s financial liabilities measured at fair value consisted of the following as of December 31, 2010 and were valued as discussed in Note 12:
 
 
  
Fair Value Measurements at December 31, 2010
 
 
  
Total carrying
value
 
  
Quoted prices in
active markets
(Level 1)
 
  
Significant other
observable
inputs
(Level 2)
 
  
Significant
unobservable
inputs
(Level 3)
 
Warrant liability
  
 
3,958,318
  
  
 
—  
  
  
 
—  
  
  
 
3,958,318
  
 
A reconciliation of the beginning and ending fair values of financial instruments valued using significant unobservable inputs (Level 3) is presented as follows:
 
         
 
  
Warrant Liability
 
Balance at December 31, 2009
  
$
4,577,119
  
Changes in fair value
  
 
(618,801
)
 
  
     
Balance at December 31, 2010
  
$
3,958,318
  
 
  
     
 
 
Income taxes - Income taxes are provided for the tax effects of transactions reported in the financial statements and consist of taxes currently due plus deferred taxes resulting from temporary differences. Such temporary differences result from differences in the carrying value of assets and liabilities for tax and financial reporting purposes. The deferred tax assets and liabilities represent the future tax consequences of those differences, which will either be taxable or deductible when the assets and liabilities are recovered or settled. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized.
 
The Company identifies and evaluates uncertain tax positions, if any, and recognizes the impact of uncertain tax positions for which there is a less than more-likely-than-not probability of the position being upheld when reviewed by the relevant taxing authority. Such positions are deemed to be unrecognized tax benefits and a corresponding liability is established on the balance sheet. The Company has not recognized a liability for uncertain tax positions. If there were an unrecognized tax benefit, the Company would recognize interest accrued related to unrecognized tax benefits in interest expense and penalties in operating expenses. The Company’s remaining open tax years subject to examination by the Internal Revenue Service include the years ended December 31, 2007 through 2009.
 
Loss per share - Basic and diluted earnings per share are computed based on the weighted-average common shares and common share equivalents outstanding during the period. Common share equivalents consist of stock options, warrants and convertible notes payable. Common share equivalents of 39,026,278 and 30,003,977 were excluded from the computation of diluted earnings per share for the years ended December 31, 2010 and 2009, respectively, because their effect is anti-dilutive.
 
Derivative Financial Instruments - The Company does not use derivative instruments to hedge exposure to cash flow, market or foreign currency risk. Terms of convertible promissory note instruments are reviewed to determine whether or not they contain embedded derivative instruments that are required under ASC 815 “Derivative and Hedging” (ASC 815) to be accounted for separately from the host contract, and recorded on the balance sheet at fair value. The fair value of derivative liabilities, if any, is required to be revalued at each reporting date, with corresponding changes in fair value recorded in current period operating results.
 
Freestanding warrants issued by the Company in connection with the issuance or sale of debt and equity instruments are considered to be derivative instruments and are evaluated and accounted for in accordance with the provisions of ASC 815. Pursuant to ASC 815, an evaluation of specifically identified conditions is made to determine whether fair value of warrants issued is required to be classified as equity or as a derivative liability.
 
Recent accounting pronouncements
 
Recent accounting pronouncements issued by FASB (including EITF), the AICPA and the SEC did not or are not believed by management to have a material impact on the Company’s present or future financial statements.
 
 
4. Property and Equipment
 
Property and equipment consist of the following:
 
 
  
December 31,
 
 
  
2010
 
  
2009
 
Furniture and fixtures
  
$
38,764
  
  
$
33,530
  
Computer equipment
  
 
64,305
  
  
 
57,344
  
Demonstration equipment
  
 
104,871
  
  
 
—  
  
Office and lab equipment
  
 
216,248
  
  
 
194,429
  
 
  
     
  
     
 
  
 
424,188
  
  
 
285,303
  
Less accumulated depreciation
  
 
276,277
  
  
 
265,920
  
 
  
     
  
     
 
  
$
147,911
  
  
$
19,383
  
 
5. Prepaid Expenses and Other Current Assets
 
Prepaid expenses and other current assets consist of the following:
 
 
  
December 31,
 
 
  
2010
 
  
2009
 
Prepaid expenses
  
$
31,070
  
  
$
50,335
  
Prepaid insurance
  
 
29,948
  
  
 
31,699
  
Prepaid services paid for with common stock
  
 
172,118
  
  
 
21,537
  
Prepaid loan costs
  
 
25,000
  
  
 
—  
  
 
  
     
  
     
 
  
$
258,136
  
  
$
103,571
  
 
 
6. Accrued Expenses, Other
 
Accrued expenses, other consist of the following:
 
 
  
December 31,
 
 
  
2010
 
  
2009
 
Accrued expenses, other
  
$
39,850
  
  
$
127,768
  
Accrued registration rights penalty
  
 
5,000
  
  
 
41,000
  
Accrued interest
  
 
14,676
  
  
 
28,127
  
Accrued interest, related party
  
 
157,683
  
  
 
13,502
  
Accrued warranty costs
  
 
11,452
  
  
 
—  
  
Contractual obligation
  
 
13,200
  
  
 
13,200
  
 
  
     
  
     
 
  
$
241,861
  
  
$
223,597
  
 
7. Notes Payable
 
Notes payable consist of the following:
 
 
  
December 31,
 
 
  
2010
 
  
2009
 
Convertible notes payable; interest at 9%; $50,000 currently in default; collateralized by the Company’s patents and patent applications
  
$
50,000
  
  
$
150,000
  
Convertible notes payable, related party; interest at 9%; collateralized by the Company’s patents and patent applications
  
 
—  
  
  
 
175,000
  
Note payable, related party; 7% interest; unsecured; settled during 2010
  
 
—  
  
  
 
300,000
  
Note payable, related party; interest at 10% per annum; due April 30, 2011
  
 
1,000,000
  
  
 
1,000,000
  
Note payable, related party; 10% interest; unsecured; due April 30, 2011
  
 
620,000
  
  
 
250,000
  
Note payable; related party
  
 
624
  
  
 
624
  
 
  
     
  
     
 
  
 
1,670,624
  
  
 
1,875,624
  
Less amounts currently due
  
 
1,670,624
  
  
 
1,575,624
  
 
  
     
  
     
Long-term portion
  
$
—  
  
  
$
300,000
  
 
 
Convertible Notes
 
During December 2007 and January 2008, the Company issued convertible promissory notes (the “Convertible Notes”) and warrants to purchase common stock in exchange for proceeds totaling $2,950,000. The Convertible Notes bear interest at nine percent per annum and have stated maturity dates from December 2008 to January 2009. The Convertible Notes are repayable in cash or convertible into shares of the Company’s stock at a rate of one share per $0.20 of outstanding principal and interest. Warrants to purchase 14,750,000 shares of the Company’s common stock accompanying the Convertible Notes are, subject to certain limitations, exercisable at $0.25 per share, vest immediately, and expire between December 2012 and January 2013. Due to certain adjustments that may be made to the terms of the warrants issued in December 2007, January 2008 and August 2008, if the Company issues or sell shares below the exercise price, the warrants have been classified as a liability as opposed to equity in accordance with the Derivatives and Hedging Topic of the FASB ASC 815-10-15 as it was determined that these warrants were not indexed to the Company’s stock. As a result, the fair market value of these warrants was remeasured on January 1, 2009 and marked to market at each subsequent financial reporting period. The Company has restated their 2009 Financial Statements to reflect this adjustment, see Note 12.
 
The Convertible Notes contain an embedded conversion feature. The Company accounted for this conversion feature and the detachable warrants by allocating the proceeds from issuance of the convertible notes to the beneficial conversion feature and the warrants based on their relative fair values.
 
To recognize the fair value of the warrants, the Company discounted the notes and increased additional paid in capital. The fair value of the beneficial conversion feature of $1,383,437 and discount of $1,566,563 related to the warrants were amortized over the term of the Convertible Notes. For the years ended December 31, 2010 and 2009, the Company recognized interest expense from the amortization of the beneficial conversion feature and discount of $0 and $30,136, respectively.
 
During the year ended December 31, 2009 eighteen holders converted their Convertible Notes, having an aggregate principal balance of $2,350,000 plus accrued interest of $361,600, into 13,553,822 shares of common stock. Some of the holders converted during periods in which we were offering an additional warrant as an inducement to convert. In accordance with said offers we issued additional warrants to purchase 1,665,000 shares of common
 stock, exercisable immediately at $0.25 per share and valued at $126,367, and 575,000 warrants, exercisable immediately at $0.75 per share valued at $286,641 which was recorded as interest expense during the twelve months ended December 31, 2009.
 
The value of each of the above groups of warrants was estimated using the Black-Scholes option model with the following assumptions for each of the exercise prices:
 
 
Exercise Prices
 
 
$0.25 per share
 
$0.75 per share
 
     
Fair value of underlying stock on date of award
$
0.09 – $0.19
  
$
0.51 – $1.49
  
     
Dividend rate
 
0%
  
 
0%
  
     
Risk free interest rate
 
1.65% – 2.58%
  
 
2.20% – 2.49%
  
     
Expected term
 
5 years
  
 
5 years
  
     
Expected volatility
 
92% – 94%
  
 
95% – 96%
  
 
 
The warrants to purchase 1,665,000 shares of common stock as compared to the warrants to purchase 575,000 shares of common stock resulted in a lower fair value due to the lower fair value of the underlying common stock on the date of the award.
 
The warrants were issued as follows:
 
February 2009
  
 
124,875
  
March 2009
  
 
999,000
  
April 2009
  
 
416,250
  
August 2009
  
 
124,875
  
 
  
 
1,665,000
  
   
September 2009
  
 
162,500
  
October 2009
  
 
412,500
  
 
  
 
575,000
  
 
During 2009, four investors holding Convertible Notes with an aggregate outstanding principal balance of approximately $450,000 at December 31, 2008 notified the Company that they were asserting their rights to receive payment of the principal and interest pursuant to the terms of the Convertible Notes. In June of 2009, three of these investors, holding an aggregate principal note balance of $250,000, entered into a confession of judgment with the Company. Under that agreement, the three investors had the right, should the Company fail to pay all principal and interest due pursuant to their Convertible Notes on or before September 11, 2009, to file the confession of judgment with the court and seek to secure a judgment against the Company in the amount of all principal and interest due under their Convertible Notes together with the reasonable cost and expense of collection. All interest and principal related to the three Convertible Notes, $289,803 in the aggregate, was paid in full by the Company on or before September 11, 2009. In July 2009, the fourth investor, holding a Convertible Note in the principal amount of $200,000, agreed to extend said note to September 2009. In November 2009, this investor and the Company modified the Convertible note to extend the maturity date of said note to July 2010, pay the principal amount due in eight monthly installments commencing December of 2009, end the accrual of interest as of November 20, 2009 and convert the $34,861 in interest due under the Convertible Note as of November 20, 2009 into 170,137 shares of Company’s common stock. During the year ended December 31, 2010 the remaining principal balance of said loan of $175,000 was extinguished in full by the Company through cash payments of $100,000 and the conversion of $75,000 into 375,000 shares of common stock based on a per share conversion rate of $0.20. As of December 31, 2010 the outstanding principal balance of said loan was $0.
 
On November 4, 2010, an investor elected to convert his 9% secured convertible note of $100,000 principal and the related accrued interest $25,077 into 625,384 shares of Company’s Common Stock. Said investor also received an additional five-year warrant to purchase up to 62,538 shares of Common Stock, at an exercise price of $0.75 per share in consideration for converting his 9% secured convertible note.
 
As of December 31, 2010, $50,000 of principal on the Convertible Notes was outstanding, in default and due and payable in full. On March 23, 2011 this note was paid in full by Company.
 
 
Other Notes
 
In July 2009 we secured a loan of $300,000 from an investor and issued the lender an unsecured promissory note for the principal amount on December 8, 2009. Pursuant to the terms of the note, we are to pay the note holder simple interest at the rate seven percent per annum commencing on July 17, 2009 with all interest and principal due there under payable in cash on or before January 16, 2011. If an event of default were to occur the interest rate would increase to ten percent for the duration of the event. Should we not cure the default within 60 days of receiving notice the note holder may, at his option, declare all interest accrued and unpaid and principal outstanding immediately due and payable. On December 30, 2010, the investor elected to apply all of the proceeds due and payable under the Note, including all accrued interest, to the purchase of the Company’s Common Stock. Pursuant to this transaction, the investor subscribed for and received 1,268,472 shares of Common Stock at a purchase price of $0.26 per share resulting in an aggregate purchase price of $329,803. The number of shares issued was based upon the $0.26 fair value of the Company’s common stock on the settlement date.
 
In December 2009, we secured a loan in the principal amount of $1,000,000 from an investor. Pursuant to the terms of the note, we are to pay the holder simple interest at the rate of ten percent per annum commencing on the date of issuance with all interest and principal due and payable in cash on or before June 17, 2010 the note’s maturity date was extended to April 30, 2011. On March 22, 2011, the Company entered into a Securities Amendment and Exchange Agreement and an Amended and Restated Convertible Promissory Note (“2011 Convertible Note”, collectively “Exchange Agreements”) with the this investor. Pursuant to the terms and subject to the conditions set forth in the Exchange Agreements, the Company and the Investor amended and restated the $1,000,000 unsecured promissory note issued by the Company to Investor on or about December 17, 2009 (“Original Note”) to, among other things, extend the term to March 22, 2012. Interest in the amount of 10% per annum, commencing on December 17, 2009 and calculated on a 365 day year, and the principal amount of $1,000,000 will be paid on March 22, 2012. Subject to the terms and conditions of the 2011 Convertible Note, including limitations on conversion, the outstanding principal and interest under the 2011 Convertible Note will automatically convert into shares of the Company’s common stock at the then-effective conversion price upon the closing of a qualified firm commitment underwritten public offering or may be voluntarily converted by the investor at anytime during the term. The initial conversion price is $0.26 per share. Any principal or interest which is not converted will be repaid by the Company at the earlier of a qualified offering, (as defined in the 2011 Convertible Note which is filed as an exhibit to the Form 8K filed with the Securities and Exchange Commission on March 28, 2011), or March 22, 2012. Pursuant to and during the term of the 2011 Convertible Note, the Company will not issue or allow to exist any obligation for borrowed money, except for subordinate indebtedness in payment and priority, trade payables incurred in the ordinary course of business, purchase money secured indebtedness for equipment or inventory, unsecured and subordinate, or unsecured and subordinate working capital guarantees provided by, the Export Import Bank of the United States (the “EXIM Bank”), and indebtedness evidenced by the promissory note dated February 19, 2010 issued to RBC Capital Markets- Custodian of Leonard Samuels IRA (as amended) in the principal amount of $620,000.
 
The Company secured loans from two investors in the principal amounts of $250,000 and $620,000. The loan amounts were received by the Company on December 31, 2009 and February 18, 2010, respectively, and the Company issued the lenders unsecured promissory notes with respect to said loans on February 19, 2010. Pursuant to the terms of the notes, the Company is to pay the holders simple interest at the rate ten percent per annum commencing on the date of issuance with all interest and principal due and payable in cash on or before June 30, 2010 and August 10, 2010. After receipt of proceeds on the foregoing loans, we may not incur more than $500,000 in debt without the holders’ prior approval and said additional debt may not be senior to these promissory notes without holder’s permission. During the term of the notes, each note holder has the right to participate, by investing additional funds the total amount of which may not exceed the outstanding balance of the holder’s note, in any subsequent financings undertaken by Company. Any such participation shall be upon the same terms as provided for in the subsequent financing. If an event of default were to occur and said default is not cured within the allotted period, the holders may declare all principal and accrued and unpaid interest due and payable without presentment, demand, protest or notice. Further, in addition to all remedies available under law, each holder may in the event of a default opt to convert the principal and interest outstanding under its note into any debt or equity security which Company issued after the date of its note and prior to the date of full payment of its note in accordance with the same terms as the subsequent financing.
 
 
On December 27, 2010, one of the investors elected to apply all of the proceeds due and payable under the $250,000 Note, including all accrued interest, to the purchase of our common stock. Pursuant to this transaction, the investors subscribed for and received 1,052,950 shares of common stock at a purchase price of $0.26 per share resulting in an aggregate purchase price of $273,767 (the principal amount and related accrued interest under the note). The number of shares issued was based upon the $0.26 fair value of the Company’s common stock on the settlement date.
 
The $620,000 note’s maturity date was extended to April 30, 2011.
 
Accrued interest on the notes was $157,683 and $13,502 at December 31, 2010 and 2009, respectively.
 
8. Related Party Transactions
 
Timothy Tangredi, the Company’s Chief Executive Officer and Chairman, is a founder and a member of the Board of Directors of Aegis Biosciences, LLS (“Aegis”). Aegis, created in 1995, is a licensee of the Company’s nano-structured intellectual property and materials in the biomedical and healthcare fields. Mr. Tangredi spends approximately one to two days per month on Aegis business and is compensated by Aegis for his time and contribution(s). We granted Aegis two exclusive, world-wide licenses, the first in 1995 and the second in 2005. Pursuant to these licenses, Aegis has the right to use and sell products containing our polymer technologies in biomedical and healthcare applications. The first license was entered into in 1995 has been amended twice. In 2005, we agreed to accept $150,000 as payment in full of all royalties and no further license revenue will be forthcoming. The second license allows Aegis the use of our intellectual property in the field of healthcare. A one-time payment of $50,000 was made under this license in 2005. In addition, under the second license Aegis is to make royalty payments of 1.5% of the net sales price it receives with respect to any personal hygiene product, surgical drape or clothing products (the latter when employed in medical and animal related fields) and license revenue it receives should Aegis grant a sublicense to a third party. To date Aegis has sold no such products nor has it received any licensing fees requiring a royalty payment be made to us. All obligations for such payments will end on the earlier of June 2, 2015 or upon the aggregate of all sums paid to us by Aegis under the agreement reaching $1 million. The term of each respective license runs for the duration of the patented technology.
 
The Company rents a building that is owned by two stockholders of the Company, one of which is the Chief Executive Officer. Rent expense for this building is $3,800 per month. The Company recognized rent expense of approximately $49,000 in each of years ended December 31, 2010 and 2009. At December 31, 2010 and 2009, $151,440 and $150,740, respectively, were included in accounts payable for amounts owed to these stockholders for rent.
 
The Company also has accrued compensation due to the Chief Executive Officer and one other employee for deferred salaries earned and unpaid as of December 31, 2010 and 2009 of $1,415,606 and $1,314,356, respectively.
 
On May 21, 2009, to evidence a loan, the Company issued its Chief Executive Officer a promissory note in the principal amount of $51,900. The note is unsecured and bears a simple interest rate of 9% per annum. The principal amount plus all accrued interest is to be paid in full to the holder no later than July 31, 2009. This note was paid in full prior to maturity.
 
On June 10, 2009, to evidence a loan, the Company issued a promissory note in the principal amount of $10,000 to Ethos Business Ventures, an entity in which the Company’s Chief Executive Officer holds a controlling financial position. The note is unsecured and bears a simple interest rate of 9% per annum. The principal amount plus all interest accrued is to be paid in full to the holder no later than July 31, 2009. This note was paid in full prior to July 31, 2009.
 
 
On September 11, 2009, to evidence a loan, Company issued its Chief Executive Officer a promissory note in the principal amount of $124,000. The note is unsecured and bears a simple interest rate of 9% per annum. The principal amount plus all accrued interest is to be paid in full to the holder no later than October 15, 2009. This note was paid in full prior to October 15, 2009.
 
On September 11, 2009, to evidence a loan, the Company issued a promissory note in the principal amount of $37,000 to Ethos Business Ventures, an entity in which its Chief Executive Officer holds a position. The note is unsecured and bears a simple interest rate of 9% per annum. The principal amount plus all interest accrued is to be paid in full to the holder no later than October 15, 2009. This note was paid in full prior to October 15, 2009.
 
9. Authorized Shares
 
During the year ended December 31, 2009, the Company’s board of directors approved proposals to amend the Articles of Incorporation to increase the number of authorized shares of common stock from 100,000,000 to 200,000,000, respectively.
 
10. Preferred Stock
 
The Company’s Board of Directors has authorized 10,000,000 million shares of preferred stock with a par value of $0.01 to be issued in series with terms and conditions to be determined by the Board of Directors. The Company has designated 400,000 shares of Series A convertible preferred stock; 1,000,000 shares of Series B convertible preferred stock; 500,000 shares of Series C convertible preferred stock; and 1,100,000 shares of Series D convertible preferred stock. The Series A through D convertible preferred stock rank senior to the common stock as to dividends and liquidation. Each share of Series A through D convertible preferred stock is convertible into one share of common stock, except in specified circumstances as defined by the Company’s Certificate of Incorporation, and is automatically converted into common stock upon the occurrence of an initial public offering that meets certain criteria. No dividend or distribution may be paid on any shares of the Company’s common stock unless an equivalent dividend or distribution is paid on the Series A through D convertible preferred stock.
 
11. Stock Options and Warrants
 
In June 2000 and November 2009, our Board of Directors adopted, and our shareholders approved, the 2000 Plan and 2009 Plan, respectively (together the “Plans”). The Plans provide for the granting of options to qualified employees of the Company, independent contractors, consultants, directors and other individuals. As of December 31, 2009, the Company’s Board of Directors approved and made available 15,000,000 shares of common stock to be issued pursuant to the 2009 Plan. The Plans permit grants of options to purchase common shares authorized and approved by the Company’s Board of Directors.
 
The average fair value of options granted at market during 2010 and 2009 was $0.25 and $0.31 per option, respectively. The total intrinsic value of options exercised during the years ended December 31, 2010 and 2009 was $0 and $3,250, respectively.
 
 
The following summarizes the information relating to outstanding stock options activity with employees during 2010 and 2009:
 
 
  
Common
Shares
   
Weighted Average
Exercise Price
 
  
Weighted Average
Remaining
Contractual Term
(in years)
 
  
Aggregate
Intrinsic
Value
 
Outstanding at December 31, 2008
  
 
8,606,556
  
 
$
0.26
  
  
 
7.58
  
  
$
38,294
  
Granted
  
 
4,190,058
  
 
$
0.21
  
  
     
  
     
Exercised
  
 
(25,000
 
$
0.17
  
  
     
  
$
3,250
  
Forfeited or expired
  
 
(472,732
)
 
$
0.58
  
  
     
  
     
 
  
             
  
     
  
     
Outstanding at December 31, 2009
  
 
12,298,882
  
 
$
0.26
  
  
 
7.64
  
  
$
1,052,839
  
Granted
  
 
2,970,000
  
 
$
0.30
  
  
     
  
     
Forfeited or expired
  
 
(371,125
 
$
0.32
  
  
     
  
     
 
  
             
  
     
  
     
Outstanding at December 31, 2010
  
 
14,897,757
  
 
$
0.25
  
  
 
7.19
  
  
$
946,754
  
 
  
             
  
     
  
     
Exercisable at December 31, 2010
  
 
13,834,563
  
 
$
0.25
  
  
 
7.02
  
  
$
940,594
  
 
  
             
  
     
  
     
Exercisable at December 31, 2009
  
 
11,951,021
  
 
$
0.24
  
  
 
7.61
  
  
$
1,034,594
  
 
Stock compensation expense was approximately $651,000 for the year ended December 31, 2010 and $1,580,000 for the year ended December 31, 2009, including approximately $75,000 that was accrued for warrants issued subsequent to year end. The total fair value of shares vested during the years ended December 31, 2010 and 2009 was approximately $556,000 and $1,549,000, respectively.

As of December 31, 2010, there was approximately $222,000 of unrecognized employee stock-based compensation expense related to non vested stock options, of which $129,000, $81,000 and $12,000 is expected to be recognized for the years ended December 31, 2011, 2012 and 2013, respectively.
 
 
The following table represents our non vested share-based payment activity with employees for the year ended December 31, 2010 and 2009:
 
 
  
Number of
Options
   
Weighted
Average
Grant Date
Fair Value
 
Nonvested options - December 31, 2008
  
 
1,276,563
  
 
$
0.37
  
Granted
  
 
4,190,058
  
 
$
0.31
  
Forfeited
  
 
(30,334
)
 
$
0.17
  
Vested
  
 
(5,088,426
)
 
$
0.30
  
 
  
             
Nonvested options - December 31, 2009
  
 
347,861
  
 
$
0.27
  
Granted
  
 
2,970,000
  
 
$
0.25
  
Vested
  
 
(2,244,663
 
$
0.25
  
Forfeited
  
 
(10,004
 
$
0.28
  
 
  
             
     
Nonvested options - December 31, 2010
  
 
1,063,194
  
 
$
0.25
  
 
Warrants
 
At December 31, 2010, the Company had outstanding warrants to purchase the Company’s common stock which were issued in connection with multiple financing arrangements and consulting agreements. Information relating to these warrants is summarized as follows:
 
 
Warrants
  
Remaining
Number Outstanding
 
  
Weighted Average
Remaining Life
(Years)
 
  
Weighted Average
Exercise Price
 
Warrants-Daily Financing
  
 
197,055
  
  
 
.98
  
  
$
0.55
  
Warrants-Additional Financing
  
 
428,637
  
  
 
1.70
  
  
$
0.40
  
Warrants-Robb Trust Note
  
 
50,000
  
  
 
1.42
  
  
$
0.55
  
Warrants-Financing
  
 
14,750,000
  
  
 
1.99
  
  
$
0.25
  
Warrants-Placement Agent Warrants
  
 
793,641
  
  
 
2.26
  
  
$
0.25
  
Warrants-Tangredi
  
 
3,000,000
  
  
 
2.25
  
  
$
0.36
  
Warrants-Ehrenberg
  
 
250,000
  
  
 
2.59
  
  
$
0.30
  
Warrants-Consulting Agreement
  
 
825,000
  
  
 
3.77
  
  
$
0.31
  
Warrants-Note Conversions
  
 
2,302,538
  
  
 
3.42
  
  
$
0.39
  
Warrants-Stock Purchases 2009
  
 
758,270
  
  
 
3.40
  
  
$
0.34
  
Warrants-Mandelbaum
  
 
50,000
  
  
 
3.33
  
  
$
0.19
  
Warrants-Services
  
 
400,000
  
  
 
4.06
  
  
$
0.50
  
 
  
     
  
     
  
     
Total
  
 
23,805,141
  
  
     
  
     
 
 
Common Stock Issued For Services
 
The Company entered into a consulting agreement in September of 2008. In October of 2009, the agreement was amended to extend the term for nine months. Company is to issue the consultant 10,000 shares of common stock in
 each of said nine months for total shares of 90,000, with no award of stock for January and February 2010. For the year ended December 31, 2010, the Company has issued 106,000 shares of common stock and recorded $44,050 as consulting expense on its statement of operations.
 
The Company entered into an agreement for consulting services in April 2010. The term of the agreement is for twelve months and calls for the Company to issue the consultant 100,000 shares of common stock upon execution of the agreement and an additional 100,000 shares of common stock after six months of service. The agreement also calls for a monthly cash payment of $6,000 for the first six months and $7,500 per month for the remainder of the agreement. The Company has fair valued the initial 100,000 shares of common stock at $53,000 and the additional 100,000 shares of common stock at $36,000 and is expensing the fair value of those shares over life of the agreement. For the year ended December 31, 2010, the Company has recorded $68,000 as consulting expense on its statement of operations and included $21,000 as prepaid expenses in the balance sheet.
 
The Company issued 207,692 shares of common stock during the year ended December 31, 2010 valued at $64,384 for legal services to be provided from January 1, 2010 through December 31, 2010. For the year ended December 31, 2010, the Company has recorded $64,384 as legal expense in its statement of operations.
 
On November 4, 2010, the Company entered into an agreement for legal services in exchange for 375,000 shares of Common Stock valued at $150,000. For the year ended December 31, 2010, the Company has recorded $150,000 as prepaid expenses in the accompanying balance sheet.
 
 
12. Derivative Financial Instruments
 
In September 2008, the FASB ratified the consensus reached on EITF Issue No. 07-5, Determining Whether an Instrument (or an Embedded Feature) is Indexed to an Entity’s Own Stock (“EITF 07-5”) (codified as ASC 815-40-15-5). This EITF provides guidance for determining whether an equity-linked financial instrument (or embedded feature) is indexed to an entity’s own stock. The EITF applies to any freestanding financial instrument or embedded feature that has all the characteristics of a derivative under ASC 815-10-15-13 through 15-130, Accounting for Derivative Instruments and Hedging Activities, for purposes of determining whether that instrument or embedded feature qualifies for the first part of the scope exception. The EITF also applies to any freestanding financial instrument that is potentially settled in an entity’s own stock, regardless of whether the instrument has all the characteristics of a derivative under ASC 815-10-13 through 15-130, for purposes of determining whether the instrument is within the scope of EITF No. 00-19 Accounting for Derivative Financial Instruments Indexed to, and Potentially Settled in, a Company’s Own Stock (“EITF 00-19”) (codified as ASC subtopic 815-40). EITF No. 07-5 was effective beginning the first quarter of fiscal 2009.
 
Due to certain adjustments that may be made to the exercise price of the warrants issued in December 2007, January 2008 and August 2008, if the Company issues or sell shares of its common stock at a price which is less than the then current warrant exercise price, these warrants have been classified as a liability as opposed to equity in accordance with the Derivatives and Hedging Topic of the FASB ASC 815-10-15 as it was determined that these warrants were not indexed to the Company’s stock. As a result, the fair market value of these warrants was remeasured on January 1, 2009 and marked to market at each subsequent financial reporting period. The change in fair value of the warrants is recorded in the statement of operations and is estimated using the Black-Scholes option-pricing model with the following assumptions:
 
 
  
For the Years Ended December 31,
 
 
  
2010
 
  
2009
 
Exercise price
  
$
0.25    
  
  
$
0.25    
  
Market value of stock at end of period
  
$
0.29    
  
  
$
0.30    
  
Expected dividend rate
  
 
N/A    
  
  
 
N/A    
  
Expected volatility
  
 
158% – 165%
  
  
 
112% – 117%
  
Risk-free interest rate
  
 
0.61% – 0.82%
  
  
 
1.70% – 2.20%
  
Expected life in years
  
 
2.00 – 2.58    
  
  
 
3.00 – 3.58    
  
Shares underlying warrants outstanding classified as liabilities
  
 
15,543,641    
  
  
 
15,543,641    
  
 
All warrants issued by the Company other than the above noted warrants are classified as equity.
 
During the fourth quarter of the year ended December 31, 2010, the Company applied the guidance of Accounting Standards Codification 815-40 (ASC 815-40) and recorded a $618,801 gain on the fair value of the warrant liability for the year then ended. The warrants had been issued in December 2007, January 2008 and August 2008, in connection with convertible promissory notes as described in Note 7 and were originally accounted for as an equity instrument. Upon further review of the warrants, it was determined that these warrants were not indexed to the Company’s stock and therefore required derivative accounting treatment. Accordingly, the Company has restated its financial statements for the year ended December 31, 2009 provided herein to reflect the proper accounting treatment. If the Company would have recorded these warrants as a derivative liability upon initial adoption of ASC 815-40, the Company would have recorded the following amounts in the accompanying balance sheet and income statement:
 
 
 
  
Total Liabilities
As previously
Reported
 
  
Change
 
  
Total Liabilities
As Restated
 
  
Stockholders’ Deficit
As previously
Reported
   
Change
   
Stockholders’ Deficit
As Restated
 
             
March 31, 2009
  
$
4,599,317
  
  
$
2,080,830
  
  
$
6,680,147
  
  
$
(4,246,075
 
$
(2,080,830
 
$
(6,326,905
June 30, 2009
  
$
4,565,431
  
  
$
2,425,223
  
  
$
6,990,654
  
  
$
(3,982,146
 
$
(2,425,223
 
$
(6,407,369
September 30, 2009
  
$
3,968,231
  
  
$
10,774,888
  
  
$
14,743,119
  
  
$
(3,158,106
 
$
(10,774,888
 
$
(13,932,994
December 31, 2009
  
$
4,299,685
  
  
$
4,577,119
  
  
$
8,876,8045
  
  
$
(2,678,939
 
$
(4,577,1119
 
$
(7,256,058
March 31, 2010
  
$
5,117,253
  
  
$
6,085,147
  
  
$
11,202,400
  
  
$
(3,058,161
 
$
(6,085,147
 
$
(9,143,308
June 30, 2010
  
$
5,165,059
  
  
$
4,250,053
  
  
$
9,415,112
  
  
$
(3,094,998
 
$
(4,250,053
 
$
(7,345,051
September 30, 2010
  
$
5,147,657
  
  
$
4,861,284
  
  
$
10,008,941
  
  
$
(3,428,140
 
$
(4,861,284
 
$
(8,289,424
 
   
Other Inc
(Exp)
As previously
Reported
   
Change
   
Other Inc (Exp)
As Restated
   
Net Loss
As previously
Reported
   
Change
   
Net (Loss) Income
As Restated
   
EPS
As previously
Reported
   
EPS
As Restated
 
                 
For the Three Months Ended:
                                                               
March 31, 2009
 
$
(156,161
 
$
(146,858
 
$
(303,019
 
$
(648,786
 
$
(146,858
 
$
(795,644
 
$
(0.05
 
$
(0.06
June 30, 2009
 
$
(95,353
 
$
(344,392
 
$
(439,745
 
$
(344,000
 
$
(344,392
 
$
(688,392
 
$
(0.04
 
$
(0.04
September 30, 2009
 
$
(203,771
 
$
(9,438,212
 
$
(9,641,983
 
$
(436,927
 
$
(9,438,212
 
$
(9,875,139
 
$
(0.06
 
$
(0.50
For the Year Ended December 31, 2009
 
$
(620,907
 
$
(3,731,694
 
$
(4,352,601
 
$
(3,385,382
 
$
(3,731,694
 
$
(7,117,076
 
$
(0.17
 
$
(0.36
For the Three Months Ended:
                                                               
March 31, 2010
 
$
(46,504
 
$
(1,508,027
 
$
(1,554,531
 
$
(520,038
 
$
(1,508,027
 
$
(2,028,065
 
$
(0.02
 
$
(0.07
June 30, 2010
 
$
(55,233
 
$
1,835,094
  
 
$
1,779,861
  
 
$
(624,681
 
$
1,835,094
  
 
$
1,210,413
  
 
$
(0.02
 
$
0.04
  
September 30, 2010
 
$
(55,933
 
$
(611,231
 
$
(667,164
 
$
(555,692
 
$
(611,231
 
$
(1,166,923
 
$
(0.02
 
$
(0.04
 
 
13. Deferred Revenue
 
The Company entered into a licensing agreement during the year ended December 31, 2003 and received an initial fee of $770,000. This fee is deferred and recognized on a straight-line basis over the life of the license agreement of 10 years. In addition, the Company received royalties of $100,000 in each of the first three years of the agreement. The Company recognized revenue of approximately $77,000 for this agreement during each of the years ended December 31, 2010 and 2009.
 
The Company entered into a licensing agreement with a biomedical entity during the year ended December 31, 2005 and received an initial license fee of $50,000. This fee is deferred and recognized on a straight-line basis over the life of the license agreement of 7 years. The Company recognized revenue of approximately $5,000 for this agreement during each of the years ended December 31, 2010 and 2009.
 
14. Commitments and Contingencies
 
The Company has employment agreements with some of its key employees and executives. These agreements provide for minimum levels of compensation during current and future years. In addition, these agreements call for grants of stock options and for payments upon termination of the agreements.
 
The Company entered into an agreement with the holders of the Convertible Notes to file a registration statement within 45 days of the first Note conversion and to have the registration statement declared effective within 150 days. The Company will incur penalties and damages of up to approximately $236,000 if it does not file and keep the registration statement effective pursuant to the terms of this agreement. As of December 31, 2010, the Company has recorded a liability of $5,000 in accrued expenses related to this agreement on its balance sheet.
 
On September 17, 2010, the U.S. Department of Energy approved a grant of up to $681,322 to the Company for the funding of a project to scale up, in size and field trial, a novel dehumidification system similar to the Company’s NanoAir prototype, that is operated by directly manipulating water vapor using a selectively permeable membrane made of a nano-structure solid polymer. The grant is conditioned upon the Company contributing $171,500 of the proposed total project cost of $852,822. The Company will receive the grant amount in phases upon the meeting of certain milestones. As of December 31, 2010, the Company has incurred $79,786 in expenses and recognized the same amount as revenue related to this grant award.
 
In December 2010, Pasco County Florida approved a grant of $254,500 to the Company for the funding of the NanoAir product into commercialization. The grant from Pasco County requires us to pay the county 2% of the gross sales of products using a certain unique pump assembly for 5 years or for a total of $1,000,000 whichever comes first. As of December 31, 2010, the Company has incurred $19,946 in expenses and recognized the same amount as revenue related to this grant award.
 
The Company is not currently a party to any pending legal proceedings. In the ordinary course of business the Company may become a party to various legal proceedings generally involving contractual matters, infringement actions, product liability claims and other matters.
 
 
15. Income Taxes
 
There is no current or deferred income tax expense or benefit for the years ended December 31, 2010 and 2009.
 
The provision for income taxes is different from that which would be obtained by applying the statutory federal income tax rate to income before income taxes. The items causing this difference are as follows:
 
 
  
Year ended December 31,
 
 
  
2010
   
2009
 
Tax benefit at U.S. statutory rate
  
$
(487,000
)
 
$
(2,420,000
)
State income tax benefit, net of federal benefit
  
 
(52,000
)
   
(258,000
)
Effect of non-deductible expenses
  
 
1,000
  
   
1,000
  
Employee stock-based compensation
  
 
221,000
  
   
536,000
  
Change in warrant valuation
  
 
(210,000
   
1,269,000
  
Other adjustments
  
 
154,000
  
   
994,000
  
Change in valuation allowance
  
 
373,000
  
   
(132,000
)
 
  
             
 
  
$
—  
  
 
$
—  
  
 
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities are as follows:
 
<
 
  
December 31,
 
 
  
2010
   
2009
 
Deferred tax assets (liabilities), current:
  
             
Bonus payable
  
$
108,300
  
 
$
108,300
  
Accrued deferred compensation payable
  
 
428,300
  
   
386,300
  
Stock warrant consideration and other
  
 
84,000
  
   
49,100
  
Deferred license revenue
  
 
30,900
  
   
32,400
  
Valuation allowance
  
 
(651,500
)
   
(576,100
)
 
  
$
—  
  
 
$
—  
  
 
  
             
Deferred tax assets (liabilities), noncurrent:
  
             
Deferred license revenue
  
$
48,100
  
 
$
77,400
  
Depreciation
  
 
3,400
  
   
3,400