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Emmaus Life Sciences, Inc. - Quarter Report: 2015 December (Form 10-Q)

 

 

   

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

(Mark One)

 

x          Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the quarterly period ended December 31, 2015

 

¨          Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the transition period from __________________ to ______________________.

 

Commission file number 001-35527

 

MYnd Analytics, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware   87-0419387
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)

 

 

  

26522 La Alameda, Suite 290

Mission Viejo, California 92691

(Address of principal executive offices) (Zip Code)

 

(949) 420-4400

(Registrant’s telephone number, including area code)

 

(Former name, former address, former fiscal year, if changed since last report)

 

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 Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). 

  Yes x No ¨

  

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

 

Large accelerated filer ¨ Accelerated filer ¨
       
Non-accelerated filer ¨   (Do not check if 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

 

As of February 16, 2016, the issuer had 102,717,409 shares of common stock, par value $0.001 per share, issued and outstanding.

 

 

 

 

 

MYnd Analytics, Inc.

 

INDEX

 

      Page
       
PART I FINANCIAL INFORMATION   2
       
Item 1. Financial Statements   2
       
  Unaudited Condensed Consolidated Statements of Operations for the three months ended December 31, 2015 and 2014   2
       
  Condensed Consolidated Balance Sheets as of December 31, 2015 (unaudited) and September 30, 2015   3
       
  Unaudited Condensed Consolidated Statements of Cash Flows for the three months ended December 31, 2015 and 2014   4
       
  Unaudited Condensed Consolidated Statements of Stockholders’ Deficit for the three months ended December 31, 2015   5
       
  Notes to Unaudited Condensed Consolidated Financial Statements   6
       
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations   25
       
Item 3. Quantitative and Qualitative Disclosures About Market Risk   39
       
Item 4. Controls and Procedures   39
       
PART II OTHER INFORMATION   40
       
Item 1. Legal Proceedings   40
       
Item 1A. Risk Factors   40
       
Item 2. Unregistered Sales of Equity Security and Use of Proceeds   40
       
Item 6. Exhibits   40

 

 1 

 

 

PART I

FINANCIAL INFORMATION

 

Item 1.       Financial Statements

 

MYND ANALYTICS, INC.

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

 

   For the three months ended
December 31,
 
   2015   2014 
REVENUES          
Neurometric Services  $24,700   $22,700 
           
OPERATING EXPENSES          
Cost of neurometric service revenues   1,200    1,100 
Research   22,700    23,800 
Product development   123,400    245,500 
Sales and marketing   123,200    89,700 
General and administrative   377,100    441,800 
           
Total operating expenses   647,600    801,900 
           
OPERATING LOSS   (622,900)   (779,200)
           
OTHER INCOME (EXPENSE)          
Interest expense, net   (700)   (800)
Financing expenses   (499,500)   (50,600)
Loss on extinguishment of debt   (2,337,400)   - 
Gain (loss) on derivative liabilities   11,300    (39,900)
Total other income (expense)   (2,826,300)   (91,300)
LOSS BEFORE PROVISION FOR INCOME TAXES   (3,449,200)   (870,500)
Provision for income taxes   300    3,200 
LOSS FROM CONTINUING OPERATIONS   (3,449,500)   (873,700)
Loss from discontinued operations   (1,800)   (900)
NET LOSS  $(3,451,300)  $(874,600)
BASIC AND DILUTED NET LOSS PER SHARE          
From continuing operations  $(0.03)  $(0.01)
From discontinued operations   (0.00)   (0.00)
Combined Net Loss  $(0.03)  $(0.01)
           
WEIGHTED AVERAGE SHARES OUTSTANDING:          
Basic and diluted   102,417,409    101,667,409 

  

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.

 

 2 

 

 

MYND ANALYTICS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS  

 

   Unaudited
as at
December 31,
   Audited
as at
September 30,
 
   2015   2015 
ASSETS          
CURRENT ASSETS:          
Cash  $823,800   $432,100 
Accounts receivable (net of allowance for doubtful accounts of $1,200 and $1,200 as of December 31, 2015, and September 30, 2015, respectively)   3,800    11,800 
Prepaid insurance   23,900    57,400 
Prepaid other assets   55,300    46,900 
Total current assets   906,800    548,200 
Furniture and equipment, net   800    1,700 
Other assets   16,700    17,200 
TOTAL ASSETS  $924,300   $567,100 
           
 LIABILITIES AND STOCKHOLDERS’ DEFICIT CURRENT LIABILITIES:          
Accounts payable (including $10,000 and $10,000 to related parties as of December 31, 2015, and September 30, 2015, respectively)  $817,100   $852,000 
Accrued liabilities   129,200    156,300 
Accrued compensation   384,600    418,500 
Accrued compensation – related parties   265,800    226,100 
Deferred revenue - grant funds   45,900    45,900 
Current portion of capital lease   1,600    2,400 
Total current liabilities   1,644,200    1,701,200 
           
LONG-TERM LIABILITIES          
Secured convertible debt – related parties (net of discounts $322,100 and $209,900 as of December 31, 2015 and September 30, 2015, respectively)   3,127,900    2,240,100 
Secured convertible debt - other (net of discounts $0 and $28,900 as of December 31, 2015, and September 30, 2015, respectively)   550,000    525,700 
Accrued interest   142,500    103,600 
Derivative liability   2,112,900    833,000 
Total long-term liabilities   5,933,300    3,702,400 
TOTAL LIABILITIES   7,577,500    5,403,600 
STOCKHOLDERS’ DEFICIT:          
Common stock, $0.001 par value; authorized 500,000,000 shares and issued and outstanding 102,417,409 shares and 102,417,409 shares as of December 31, 2015 and September 30, 2015, respectively   102,400    102,400 
Additional paid-in capital   59,288,600    57,654,000 
Accumulated deficit   (66,044,200)   (62,592,900)
Total stockholders’ deficit   (6,653,200)   (4,836,500)
TOTAL LIABILITIES AND STOCKHOLDERS’ DEFICIT  $924,300   $567,100 

 

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.

   

 3 

 

 

MYND ANALYTICS, INC.

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

   For the three months ended
December 31,
 
   2015   2014 
OPERATING ACTIVITIES:          
Net loss  $(3,451,300)  $(874,600)
Adjustments to reconcile net loss to net cash used in operating activities:          
Net loss from discontinued operations   1,800    900 
Depreciation and amortization   1,400    2,200 
Loss (Gain) on derivative liability valuation   (11,300)   39,900 
Valuation of warrants – investor relations   -    21,600 
Stock based compensation   39,900    62,500 
Loss on extinguishment of debt   2,337,400    - 
Financing expenses   499,500    50,600 
Changes in operating assets and liabilities:          
Accounts receivable   8,000    300 
Prepaids and other   25,100    31,600 
Accounts payable and accrued liabilities   (63,800)   (128,600)
Deferred compensation   5,800    (100)
Net cash used in operating activities   (607,500)   (793,700)
FINANCING ACTIVITIES:          
Repayment of a capital lease   (800)   (1,200)
Net proceeds from issuance of secured convertible debt   1,000,000    - 
Net cash provided by (used in) financing activities   999,200    (1,200)
NET INCREASE (DECREASE) IN CASH   391,700    (794,900)
CASH- BEGINNING OF THE QUARTER   432,100    1,240,600 
CASH- END OF THE QUARTER  $823,800   $445,700 
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:          
Cash paid during the period for:          
Interest  $800   $900 
Income taxes  $300   $3,200 

 

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.

 

 4 

 

 

MYND ANALYTICS, INC.

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ DEFICIT

FOR THE THREE MONTHS ENDED DECEMBER 31, 2015

 

   Common Stock   Additional 
Paid-in
   Accumulated     
   Shares   Amount   Capital   Deficit   Total 
Balance at September 30, 2015 (Audited)   102,417,409   $102,400   $57,654,000   $(62,592,900)  $(4,836,500)
Stock-based compensation           39,900        39,900 
Extension Warrants issued to note holders           1,196,000        1,196,000 
Note Warrants issued to note holders           398,700        398,700 
Net loss               (3,451,300)   (3,451,300)
Balance at December 31, 2015   102,417,409   $102,400   $59,288,600   $(66,044,200)  $(6,653,200)

 

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.

 

 5 

 

 

MYND ANALYTICS, INC.

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

1.NATURE OF OPERATIONS

 

At our annual meeting of stockholders held on October 28, 2015, our stockholders approved a proposal to change the Company’s name to MYnd Analytics, Inc. from CNS Response, Inc. The Company’s charter was officially amended on November 2, 2015.

MYnd Analytics, Inc. (“MYnd,” “CNS,” “we,” “us,” “our,” or the “Company”), formerly known as CNS Response Inc., was incorporated in Delaware on March 20, 1987, under the name Age Research, Inc.  Prior to January 16, 2007, the Company (then called Strativation, Inc.) was a “shell company” with nominal assets and our sole business was to identify, evaluate and investigate various companies to acquire or with which to merge.  On January 16, 2007, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with CNS Response, Inc., a California corporation formed on January 11, 2000 (“CNS California”), and CNS Merger Corporation, a California corporation and the Company’s wholly-owned subsidiary (“MergerCo”) pursuant to which the Company agreed to acquire CNS California in a merger transaction wherein MergerCo would merge with and into CNS California, with CNS California being the surviving corporation (the “Merger”). On March 7, 2007, the Merger closed, CNS California became a wholly-owned subsidiary of the Company, and on the same date the corporate name was changed from Strativation, Inc. to CNS Response, Inc. At the annual meeting held on October 28, 2015, stockholders approved a change in our name from CNS Response, Inc. to MYnd Analytics, Inc. On November 2, 2015, the Company filed an amendment to its Articles of Incorporation which, among other things, effected the name change to MYnd Analytics, Inc.

 

The Company is a cloud-based predictive analytics company that provides objective clinical decision support to mental healthcare providers for the treatment of behavioral disorders, including depression, anxiety, bipolar disorder and post-traumatic stress disorder (“PTSD”). The Company uses its proprietary neurometric platform, PEER Online, to generate Psychiatric EEG Evaluation Registry (“PEER”) Reports to predict the likelihood of response by an individual to certain medications for the treatment of behavioral disorders. Management intends to conduct a clinical trial focused on Southern California (the “SoCal Trial”) using substantially the same protocol as had been previously been approved by the Walter Reed Institutional Review Board (the "Walter Reed IRB") during our 2013-2014 reimbursed clinical trial at Walter Reed National Military Medical Center (“Walter Reed”) and Fort Belvoir Community Hospital (“Fort Belvoir”) (collectively, the “Walter Reed PEER Trial”), which employed our neurometric platform to provide PEER Reports to military psychiatrists treating patients primarily for depression with various comorbidities, including PTSD and mild traumatic brain injury (“mTBI). Our management believes the SoCal Trial will provide additional information to demonstrate the clinical and economic utility of our neurometric platform. We are also focusing our marketing efforts on Southern California to boost our commercialization of the PEER Online platform and its PEER Reports.

 

The Company acquired the Neuro-Therapy Clinic, Inc. (“NTC”) on January 15, 2008, to provide behavioral health care services.  NTC’s operations were discontinued effective September 30, 2012. See Note 3. Discontinued Operations.

 

Going Concern Uncertainty

 

The accompanying unaudited condensed consolidated financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), which contemplate continuation of the Company as a going concern. The Company has a limited operating history and its operations are subject to certain challenges, expenses, difficulties, delays, complications, risks and uncertainties frequently encountered in the operation of a business with a limited operating history. These risks include the ability to obtain adequate financing on a timely basis, if at all, the failure to develop or supply technology or services to meet the demands of the marketplace, the failure to attract and retain qualified personnel, competition within the industry, government regulation and the general strength of regional and national economies.

 

The Company’s continued operating losses and limited capital raise substantial doubt about its ability to continue as a going concern. The Company has limited cash resources for its operations and will need to raise additional funds to meet its obligations as they become due. As of December 31, 2015, we had an accumulated deficit of $66,044,200. For the three months ended December 31, 2015 and 2014, we had net losses from operations of $622,900 and $779,200 respectively. Net cash used in operating activities for the three months ended December 31, 2015 and 2014, were $607,500 and $793,700 respectively.

 

 6 

 

 

To date, the Company has financed its cash requirements primarily from debt and equity financings.  The Company will need to raise additional funds immediately to continue its operations and needs to raise substantial additional funds before the Company can increase demand for its PEER Online services. Until it can generate a sufficient amount of revenues to finance its cash requirements, which it may never do, the Company must continue to finance future cash needs primarily through public or private equity offerings, debt financings, borrowings or strategic collaborations. The Company’s liquidity and capital requirements depend on several factors, including the rate of market acceptance of its services, the future profitability of the Company, the rate of growth of the Company’s business and other factors described elsewhere in this Quarterly Report on Form 10-Q.  The Company continues to explore additional sources of capital, but there is substantial doubt as to whether any financing arrangement will be available in amounts and on terms acceptable to the Company to permit it to continue operations. The accompanying unaudited condensed consolidated financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.

  

Between September 22, 2014, and December 28, 2015, the Company issued secured convertible debt in the aggregate principal amount of $4,000,000. During the 2015 fiscal year ended September 30, 2015, the aggregate gross proceeds to the Company were $1,350,000 from the debt offering. Additionally, for the three months ended December 31, 2015, the Company issued secured convertible debt in the aggregate principal amount of $1,000,000. 

  

2.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Basis of Presentation

 

The accompanying unaudited condensed consolidated financial statements of the Company have been prepared pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) and are in accordance with accounting principles generally accepted in the United States of America.

 

Basis of Consolidation

 

The unaudited condensed consolidated financial statements include the accounts of the Company, an inactive parent company, and its wholly owned subsidiaries CNS California and NTC, which is accounted for as a discontinued operation (Refer to Note 3. Discontinued Operations Transaction). All significant intercompany transactions have been eliminated on consolidation.

 

Use of Estimates

 

The preparation of the unaudited condensed consolidated financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expense, and related disclosure of contingent assets and liabilities. On an ongoing basis, the Company evaluates its estimates, including those related to revenue recognition, doubtful accounts, intangible assets, income taxes, valuation of equity instruments, accrued liabilities, contingencies and litigation. The Company bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ materially from these estimates.

 

Cash

 

The Company deposits its cash with major financial institutions and may at times exceed the federally insured limit of $250,000.  At December 31, 2015 cash exceeds the federally insured limit by $573,800.  The Company believes that the risk of loss is minimal. To date, the Company has not experienced any losses related to cash deposits with financial institutions.

 

 7 

 

 

Derivative Liabilities

 

The Company evaluates all of its agreements to determine if such instruments have derivatives or contain features that qualify as embedded derivatives. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported in the consolidated statements of operations. For stock-based derivative financial instruments, the Company uses a weighted average Black-Scholes option pricing model to value the derivative instruments at inception and on subsequent valuation dates. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is evaluated at the end of each reporting period. Derivative instrument liabilities are classified in the balance sheet as current or non-current based on whether or not net-cash settlement of the derivative instrument could be required within 12 months of the balance sheet date. As of December 31, 2015, the Company’s only derivative financial instruments were a series of convertible notes having embedded derivative liabilities based on the conversion price of the note relative to the market price of a share of Common Stock on the valuation date. See Notes 4 & 5. 

 

Fair Value of Financial Instruments

 

ASC 825-10 defines financial instruments and requires disclosure of the fair value of financial instruments held by the Company. The Company considers the carrying amount of cash, accounts receivable, other receivables, accounts payable and accrued liabilities, to approximate their fair values because of the short period of time between the origination of such instruments and their expected realization.

 

The Company also analyzes all financial instruments with features of both liabilities and equity under ASC 480-10, ASC 815-10 and ASC 815-40.

 

The Company adopted ASC 820-10 on January 1, 2008. ASC 820-10 defines fair value, establishes a three-level valuation hierarchy for disclosures of fair value measurement and enhances disclosure requirements for fair value measures. The three levels are defined as follows:

 

·Level 1 inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets;
·Level 2 inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the assets or liability, either directly or indirectly, for substantially the full term of the financial instruments; and
·Level 3 inputs to the valuation methodology are unobservable and significant to the fair value.

 

The Company used Level 3 inputs for its valuation methodology for the conversion option liability in determining the fair value using the Black-Scholes option-pricing model with the following assumption inputs:

 

   December 31, 2015   September 30, 2015 
Annual dividend yield   -    - 
Expected life (years)   2.0    0.5 
Risk-free interest rate   1.06%   0.08%
Expected volatility   221.58%   48%

 

   Carrying Value   Fair Value Measurements at 
   As of   December 31, 2015 
   December 31,   Using Fair Value Hierarchy 
   2015   Level 1   Level 2   Level 3 
Liabilities                    
Embedded derivative liabilities   2,112,900    -    -    2,112,900 
Total  $2,112,900   $-   $-   $2,112,900 

 

 8 

 

 

   Carrying Value   Fair Value Measurements at 
   As of   September 30, 2015 
   September 30,   Using Fair Value Hierarchy 
   2015   Level 1   Level 2   Level 3 
Liabilities                    
Embedded derivative liabilities   833,000    -    -    833,000 
Total  $833,000   $-   $-   $833,000 

 

For a roll-forward analysis of embedded derivative liabilities refer to Note 5. Derivative Liabilities

 

At December 31, 2015 and September 30, 2015, the Company had derivative liabilities of $2,112,900 and $833,000 respectively. For the three months ending Decembers 31, 2015 and 2014, the Company had a gain on the fair valuation of derivative liabilities of $11,300 and a $39,900 loss on fair valuation of derivative liabilities respectively.  As of December 31, 2015, the Company did not identify any other assets or liabilities that are required to be presented on the balance sheet at fair value in accordance with ASC 825-10.

 

Accounts Receivable

 

The Company estimates the collectability of customer receivables on an ongoing basis by reviewing past-due invoices and assessing the current creditworthiness of each customer.  Allowances are provided for specific receivables deemed to be at risk for collection which as of December 31, 2015 and September 30, 2015 were $1,200 and $1,200 respectively.

 

Furniture and Equipment

 

Furniture and Equipment, which are recorded at cost, consist of office furniture, equipment and purchased intellectual property which are depreciated, or amortized in the case of the intellectual property, over their estimated useful life on a straight-line basis.  The useful life of these assets is estimated to be between three and ten years.  Depreciation and amortization for the three months ended December 31, 2015 and 2014 was $1,400 and $2,200 respectively.  Accumulated depreciation and amortization at December 31, 2015 and September 30, 2015 was $84,000 and $82,600, respectively.

   

Long-Lived Assets

 

As required by ASC 350-30 (formerly SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets), the Company reviews the carrying value of its long-lived assets whenever events or changes in circumstances indicate that the historical cost-carrying value of an asset may no longer be appropriate. The Company assesses recoverability of the carrying value of the asset by estimating the future net cash flows expected to result from the asset, including eventual disposition. If the future net cash flows are less than the carrying value of the asset, an impairment loss is recorded equal to the difference between the asset’s carrying value and fair value. No impairment loss was recorded for the three months ended December 31, 2015 and 2014.

  

Accounts Payable

 

Accounts payable consists of trade payables of which $483,900 and $462,800 are for legal services at December 31, 2015 and 2014 respectively.

 

Deferred Revenue

 

Deferred revenue represents revenue collected but not earned as of December 31, 2015. This represents a philanthropic grant for the payment of PEER Reports ordered for a clinical trial, which are otherwise not paid for by the military. These deferred revenue grant funds as of December 31, 2015 and 2014 are $45,900 for both periods.

 

Revenues

 

The Company recognizes revenue on services, being the delivery of PEER Reports to medical providers, in accordance with the Financial Accounting Standards Board (“FASB”) ASC No. 605, “Revenue Recognition.”  In all cases, revenue is recognized when we have persuasive evidence of an arrangement, a determinable fee, when collection is considered to be reasonable assured and the services are delivered.

 

 9 

 

 

Research and Development Expenses

 

The Company charges all research and development expenses to operations as incurred.

 

Advertising Expenses

 

The Company charges all advertising expenses to operations as incurred. For the three months ended December 31, 2015 and 2014 advertising expenses were $40,200 and $18,200 respectively.

 

Stock-Based Compensation

 

The Company has adopted ASC 718-20 and related interpretations which establish the accounting for equity instruments exchanged for employee services. Under ASC 718-20, share-based compensation cost to option grantee, being employees and directors, and is measured at the grant date based on the calculated fair value of the award (see Note 5 for further discussion on valuations). The expense is recognized over the option grantees’ requisite service period, generally the vesting period of the award.

 

Income Taxes

 

The Company accounts for income taxes under the asset and liability method.  Deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases.  Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which the temporary differences are expected to be recovered or settled.  The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.  Valuation allowances are recorded, when necessary, to reduce deferred tax assets to the amount expected to be realized.

 

As a result of the implementation of certain provisions of ASC 740, Income Taxes, which clarifies the accounting and disclosure for uncertainty in tax positions, as defined. ASC 740 seeks to reduce the diversity in practice associated with certain aspects of the recognition and measurement related to accounting for income taxes.  The Company adopted the provisions of ASC 740 and have analyzed filing positions in each of the federal and state jurisdictions where required to file income tax returns, as well as all open tax years in these jurisdictions.  We have identified the U.S. Federal and California as our "major" tax jurisdictions.  Generally, we remain subject to Internal Revenue Service examination of our 2010 through 2014 U.S. federal income tax returns, and remain subject to California Franchise Tax Board examination of our 2010 through 2014 California Franchise Tax Returns.  However, we have certain tax attribute carryforwards which will remain subject to review and adjustment by the relevant tax authorities until the statute of limitations closes with respect to the year in which such attributes are utilized.

 

We believe that our income tax filing positions and deductions will be sustained on audit and do not anticipate any adjustments that will result in a material change to our financial position.  Therefore, no reserves for uncertain income tax positions have been recorded pursuant to ASC 740.  In addition, we did not record a cumulative effect adjustment related to the adoption of ASC 740.  Our policy for recording interest and penalties associated with income-based tax audits is to record such items as a component of income taxes.

  

Comprehensive Income (Loss)

 

ASC 220-10 requires disclosure of all components of comprehensive income (loss) on an annual and interim basis.  Comprehensive income (loss) is defined as the change in equity of a business enterprise during a period from transactions and other events and circumstances from non-owner sources.  The Company’s comprehensive income (loss) is the same as its reported net income (loss) for the three months ended December 31, 2015 and 2014.

 

 10 

 

 

Earnings (Loss) per Share

  

Basic earnings (loss) per share are computed by dividing income (loss) available to common stockholders by the weighted average common shares outstanding during the period. Diluted earnings (loss) per share takes into account the potential dilution that could occur if securities or other contracts to issue Common Stock were exercised and converted into Common Stock.

  

Recent Accounting Pronouncements

 

Apart from the below-mentioned recent accounting pronouncements, there are no new accounting pronouncements that are currently applicable to the Company.

 

In April 2015, the FASB issued Accounting Standards Update (“ASU”) No. 2015-03 is to simplify presentation of debt issuance costs, the amendments in this Update would require that debt issuance costs be presented in the balance sheet as a direct deduction from the carrying amount of debt liability, consistent with debt discounts or premiums. The recognition and measurement guidance for debt issuance costs would not be affected by the amendments in this Update. The amendments in this ASU are effective for public business entities for fiscal years, and for interim periods within those fiscal years, beginning after December 15, 2015. Early adoption is permitted, including adoption in an interim period. The Company does not expect the adoption of the standard update to have a material impact on its consolidated financial position or results of operations. 

 

3.DISCONTINUED OPERATIONS

 

On September 30, 2012 the Company discontinued its Clinical Services Operation at its wholly-owned subsidiary, NTC, because the operation had persistent losses which could no longer be supported by the Company. Furthermore, the Company chose to focus its limited cash resources to conduct its clinical trial.

 

Summary Financial Data of Discontinued Operations:

 

Revenues, income before income taxes and net loss of NTC which are included in discontinued operations are as follows:

 

   Three Months Ended
December 31,
 
   2015   2014 
Neuro-Therapy Clinic          
Revenues  $   $ 
Expenses   1,800    900 
Operating gain (loss) before taxes  $(1,800)  $(900)
Taxes        
Net gain (loss)  $(1,800)  $(900)

 

The assets and liabilities of NTC are as follows:

 

   (Unaudited)
December 31,
   September 30, 
   2015   2015 
ASSETS:          
Assets of discontinued operations  $   $ 
           
LIABILITIES:          
Accrued liabilities   127,400    129,000 
Liabilities of discontinued operations  $127,400   $129,000 

 

 11 

 

 

4.CONVERTIBLE DEBT AND EQUITY FINANCINGS

 

Between September 22, 2014, and July 20, 2015, the Company entered into a Note Purchase Agreement (the “Original Note Purchase Agreement”) in connection with a bridge financing, with nine accredited investors, including lead investor RSJ Private Equity investiční fond s proměnným základním kapitálem (“RSJ PE”). Pursuant to the Original Note Purchase Agreement, the Company issued fifteen secured convertible promissory notes (each, a “September 2014 Note”) in the aggregate principal amount of $2.29 million. Of this amount, RSJ PE purchased a September 2014 Note for $750,000. The September 2014 Notes were also purchased by the following affiliates of the Company or entities under their control: RSJ PE, of which Michal Votruba is a director, purchased a September 2014 Note for $750,000, the Company’s director, John Pappajohn, purchased three September 2014 Notes for $400,000; the Follman Family Trust of which Robert Follman, a director of the Company, is a trustee, purchased a September 2014 Note for $100,000; The Tierney Family Trust, which is a greater than 5% stockholder of the Company, purchased five September 2014 Notes for $540,000, of which Thomas Tierney, a former director and Chairman of the Board of the Company, is a trustee; and Oman Ventures, of which Mark Oman, a greater than 5% stockholder of the Company, is the President, purchased a September 2014 Note for $200,000.  Michal Votruba joined our Board on July 30, 2015

 

The Original Note Purchase Agreement provided for the issuance and sale of September 2014 Notes in the aggregate principal amount of up to $2.5 million, in one or more closings to occur over a six-month period beginning September 22, 2014. The Original Note Purchase Agreement also provided that the Company and the holders of the September 2014 Notes enter into a registration rights agreement covering the registration of the resale of the shares of the Common Stock underlying the September 2014 Notes.

 

On April 14, 2015, the Company entered into Amendment No. 1 to the Original Note Purchase Agreement with the majority of the noteholders in principal, dated as of April 14, 2015 (“Amendment No. 1”), pursuant to which: (i) the aggregate principal amount of notes provided for issuance was increased by $0.5 million to a total of $3.0 million, and (ii) the period to raise the $3.0 million was extended to September 30, 2015. The Company subsequently amended and restated the Original Note Purchase Agreement solely to update for the changes made pursuant to Amendment No. 1 (such amended and restated agreement, together with the Original Note Purchase Agreement, the “Note Purchase Agreement”).

 

On September 14, 2015, the Company entered into an Omnibus Amendment (the “Omnibus Amendment”) to the Note Purchase Agreement and the notes purchased and sold pursuant thereto, with the majority of the noteholders to fix the conversion price of all notes at $0.05 per share (as adjusted for stock splits, stock dividends, combinations or the like affecting the Common Stock) (the “Fixed Conversion Price”) (i) automatically, in the event of a qualified financing of not less than $5 million, or (ii) voluntary, within 15 days prior to the maturity date of the note. The Omnibus Amendment also amended the form of note attached to the Note Purchase Agreement to reflect the Fixed Conversion Price.

 

Subsequently thereto, on September 14, 15 and 24, 2015, the Company entered into a Note Purchase Agreement, as amended by the Omnibus Amendment, with each of six accredited investors, in connection with a bridge financing. Pursuant to these Note Purchase Agreements, the Company issued an aggregate principal amount of $710,000 of secured convertible promissory notes (collectively, the “September 2015 Notes,” and together with the September 2014 Notes all other notes purchased and sold pursuant to the Note Purchase Agreement, the “Notes”), which amount also represents the gross proceeds to the Company from the September 2015 Notes. Four of the six September 2015 Notes were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) Dr. Robin Smith, Chairman of the Board of Directors of the Company, purchased a Note for $60,000; (ii) the Follman Family Trust purchased a Note for $150,000; (iii) John Pappajohn purchased a Note for $100,000 and (iv) RSJ PE, purchased a Note for $350,000.

 

  Through December 23, 2015, and prior to further amendments to the Notes, all of the Notes were scheduled to mature on March 21, 2016, (subject to earlier conversion or prepayment), and earned interest at a rate of 5% per annum with interest payable at maturity. The Notes could not be prepaid without the prior written consent of the holder of such Note. The Notes were secured by a security interest in the Company’s intellectual property, as detailed in a security agreement. Upon a change of control of the Company, the holder of a Note had the option to have the Note repaid with a premium equal to 50% of the outstanding principal.

 

 12 

 

 

On December 23, 2015, the Company entered into a Second Amended and Restated Note and Warrant Purchase Agreement (which further amended and restated the Note Purchase Agreement, as modified by the Omnibus Amendment) (the "Second Amended Note & Warrant Agreement") with each of 16 accredited investors, pursuant to which (i) the aggregate principal amount of Notes available for issuance was increased from $3.0 million to up to $6.0 million, (ii) the maturity date of the Notes outstanding prior to such amendment was extended from March 21, 2016 to December 31, 2017; (iii) the time during which Notes may be issued was extended and (iv) certain warrants were issued to holders of both previously issued and Notes issued under the Second Amended Note & Warrant Agreement.

 

Pursuant to the Second Amended Note & Warrant Agreement, on December 23 and December 28, 2015, the Company issued to the two purchasers thereof (i) an aggregate principal amount of $1,000,000 of secured convertible promissory notes (each, a "December 2015 Note"), which amount also represents the gross proceeds to the Company from the December 2015 Notes, and (ii) a warrant to each holder of December 2015 Notes to purchase the Company's Common Stock, in an amount equal to 100% of the shares underlying their December 2015 Note (each, a "Note Warrant"). Each Note Warrant is exercisable, in whole or in part, during the period beginning on the date of its issuance, and ending on the earlier of (i) December 31, 2020 and (ii) the date that is forty-five (45) days following the date on which the daily closing price of shares of the Company's Common Stock quoted on the OTCQB Venture Marketplace (or other bulletin board or exchange on which the Company's Common Stock is traded or listed) exceeds $0.25 for at least ten (10) consecutive trading days. In connection therewith, the Company will promptly notify the Note Warrant holders in the event that the daily closing price of the Company's shares of Common Stock so exceeds $0.25 for at least ten (10) consecutive trading days. Both December 2015 Notes and Note Warrants were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) on December 23, 2015, John Pappajohn, a member of the board of directors of the Company, purchased a December 2015 Note for $250,000 and was issued a Note Warrant to purchase 5,000,000 shares of Common Stock; and (ii) on December 28, 2015, RSJ PE, of which, Michal Votruba, a member of the board of directors of the Company, is the Director for Life Sciences for the RSJ/Gradus Fund, purchased a December 2015 Note for $750,000 and was issued a Note Warrant to purchase 15,000,000 shares of Common Stock.

 

The table below provides additional detail regarding the Notes as of December 2015 with respect to the carrying value and discount on the Balance Sheet.

 

      As of December 31, 2015 
Note Type and Investor  Due Date  Balance   Discount   Carrying
Value
 
Senior Secured 5% Notes Convertible at $0.05
(the “Notes”)
     ($)   ($)   ($) 
                
RSJ Private Equity  12/31/2017  $1,850,000   $(241,900)  $1,608,100 
10 Accredited Investors  12/31/2017   550,000    -    550,000 
Robin L. Smith  12/31/2017   60,000    -    60,000 
John Pappajohn  12/31/2017   550,000    (80,200)   469,800 
Tierney Family Trust  12/31/2017   540,000    -    540,000 
Oman Ventures  12/31/2017   200,000    -    200,000 
Follman Family Trust  12/31/2017   250,000    -    250,000 
Total Secured Convertible Promissory Notes     $4,000,000   $(322,100)  $3,677,900 

 

Also on December 23, 2015, in consideration for the agreement to extend the maturity date of the Notes, the Company issued to holders of all Notes outstanding prior to the date of the Second Amended Note & Warrant Agreement, warrants to purchase an aggregate of 60,000,000 shares of Common Stock (the "Extension Warrants", together with the Note Warrants, the "Warrants"). All Warrants have identical terms. Each such holder was issued an Extension Warrant to purchase Common Stock in an amount equal to 100% of the shares underlying each such holder's previously outstanding Notes. For additional detail refer to the warrant section of Note 6. Stockholders’ Deficit.

 

Pursuant to the Second Amended and Restated Note and Warrant Agreement, all Notes: (i) mature on December 31, 2017 (subject to earlier conversion or prepayment), (ii) earn interest at a rate of 5% per annum with interest payable at maturity, and (iii) are convertible into shares of Common Stock (a) automatically upon the closing of a qualified offering of no less than $5 million, at a conversion price of $0.05 per share or (b) voluntarily, within 15 days prior to maturity, at a conversion price of $0.05 per share. No Note may be prepaid without the prior written consent of the holder of such Note. The Notes are secured by a security interest in the Company's intellectual property, as detailed in the amended and restated security agreement. Upon a change of control of the Company (as described in the Notes), the holder of a Note will have the option to have the Note repaid with a premium equal to 50% of the outstanding principal.

 

 13 

 

 

5.DERIVATIVE LIABILITIES

 

At September 30, 2015 the Notes totaled $3.0 million and the derivative liability value was determined to be $833,000. For the fiscal year ended September 30, 2015, gains on derivatives liabilities totaled $162,800.

On December 23, 2015, the Company entered into the Second Amended Note & Warrant Agreement, with each of 16 accredited investors, pursuant to which (i) the aggregate principal amount of Notes available for issuance was increased from $3.0 million to up to $6.0 million, (ii) the maturity date of currently outstanding Notes was extended from March 21, 2016 to December 31, 2017; (iii) the time during which Notes may be issued was extended and (iv) certain warrants were issued to holders of both previously issued and newly issued Notes. Consequently, the existing notes totaling $3 million, plus $121,900 of accrued interest thereon, for an aggregate total debt of $3,121,900 was revalued on December 23, 2015, and on the prior trading day, December 22, 2015, to determine the impact on derivative valuation. On December 22, 2015, the derivative liability of the aggregate debt was determined to be $60,200, which resulted in a write down of $772,800 from the derivative liability balance of $833,000 at September 30, 2015, which resulted in a Gain on Derivative Liabilities of $772,800.

On December 23, 2015, all the Notes were revalued with the maturity date extended to December 31, 2017. The derivative liability value was determined to be $1,022,400 and the offset was booked to other income as a Loss on Extinguishment of Debt, adjustment amount of $962,300.

 

Pursuant to the Second Amended Note & Warrant Agreement, on December 23 and December 28, 2015, the Company issued to the two purchasers of December 2015 Notes in the aggregate principal amount of $1,000,000 of secured convertible promissory notes. Consequently, on December 31, 2015, notes in the aggregate principal amount of $4 million were revalued, and the derivative liability value was determined to be $2,112,900; the offset was booked to other income as a Loss on Derivative Liability of $761,500.

 

The Black-Scholes option-pricing model assumption inputs for all the valuation dates are in the table below:

 

   September
30, 2015
   December
22, 2015
   December
23, 2015
   December 
28, 2015
   December 
31, 2015
 
Annual dividend yield                    
Expected life (years)   0.2    0.25    2.0    2.0    2.0 
Risk-free interest rate   0.08%   0.21%   1.01%   1.05%   1.06%
Expected volatility   47.83%   140.31%   220.46%   222.35%   221.58%

 

The net changes in the derivative valuation are summarized in the table below:

 

Fair Value of Embedded Derivative Liabilities of:  Valuation Date  Valuation   Net Adjustments 
$3M of convertible debt (balance at the beginning of the period)  September 30, 2015  $833,000   $833,000 
$3M of convertible debt prior to amendment  December 22, 2015   60,200    (772,800)
$3M of convertible debt as amended  December 23, 2015   1,022,400    962,300 
$250,000 convertible note issued  December 23, 2015   81,900    81,900 
$750,000 convertible note issued  December 28, 2015   247,000    247,000 
$4M of convertible debt (balance at the end of the period)  December 31, 2015  $2,112,900    761,500 
Fair Value of Embedded Derivative Liabilities          $2,112,900 

 

The gain and (loss) on the accounting for derivative liabilities for the three months ended December 31, 2015 is summarized in the table below:

 

 14 

 

 

·    Gain on embedded derivative liabilities of $3M of convertible debt valued on December 22, 2015  $772,800 
·    The loss on embedded derivative liabilities on $4M of convertible debt valued on December 31, 2015   (761,500)
Net gain on derivative liabilities for the three months ended December 31 2015  $11,300 

 

The gain and (loss) on the accounting for Extinguishment of Debt for the three months ended December 31, 2015 is summarized in the table below:

 

·    The extinguishment of the conversion discount on $3M of convertible debt on December 22, 2015  $(179,100)
·    Changes in fair value of embedded derivative liabilities on the amended $3M of convertible debt at December 23. 2015   (962,300)
·    Valuation of Extension Warrants issued to Noteholders on December 23, 2015 (1)   (1,196,000)
Net loss on Extinguishment of Debt for the three months ended December 31 2015  $(2,337,400)

 

(1) For Details Refer to the Warrant Section of Note 6. Stockholders’ Deficit

 

The net changes in Derivative Liabilities for transactions which were booked to other income resulted in a net gain on derivative liabilities of $11,300 for the three months ended December 31, 2015. The three months ended December 31, 2014, we had a net loss on derivative liabilities of $39,900.

 

The net changes in Extinguishment of Debt for transactions which were booked to other income resulted in a net loss on extinguishment of debt of $2,337,400 for the three months ended December 31, 2015. For the same period in 2014 we had no similar expenses.

 

As of December 31, 2015 and September 30, 2015 we had derivative liabilities of $2,112,900 and $833,000 respectively.

 

6.STOCKHOLDERS’ DEFICIT

 

Common and Preferred Stock

  

At the Company’s annual stockholders meeting held on October 28, 2015, stockholders approved to amend the Company’s Articles of Incorporation to increase the number of shares of Common Stock authorized for issuance from 180,000,000 to 500,000,000 shares.

 

As of December 31, 2015, the Company is authorized to issue 515,000,000 shares of stock, of which 500,000,000 are Common Stock; the remaining 15,000,000 shares, with a par value of $0.001 per shares are blank-check preferred stock which the Board is expressly authorized to issue without stockholder approval, for one or more series of preferred stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, the voting powers, if any, of the shares of such series, and the preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. The powers, preferences and relative, participating, optional and other special rights of each series of preferred stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.

 

As of December 31, 2015, 102,417,409 shares of Common Stock were issued and outstanding. No shares of preferred stock were issued or outstanding.

 

On August 20, 2015, the Board approved an award of 750,000 shares of the Company's restricted Common Stock to Dr. Smith in connection with her appointment as Chairman of the Company's Board. These shares, which are fully vested, were valued at $0.055 per share, the closing price of the shares on the day of grant, and were valued in aggregate at $41,250. The issuance of the shares was processed on October 30, 2015.

 

 15 

 

 

Stock-Option Plans

 

On August 3, 2006, CNS California adopted the CNS California 2006 Stock Incentive Plan (the “2006 Plan”). The 2006 Plan provides for the issuance of awards in the form of restricted shares, stock options (which may constitute incentive stock options (ISO) or non-statutory stock options (NSO), stock appreciation rights and stock unit grants to eligible employees, directors and consultants and is administered by the Board. A total of 667,667 shares of stock were ultimately reserved for issuance under the 2006 Plan. As of December 31, 2014, 70,825 options were exercised and there were 501,924 options and 6,132 restricted shares outstanding under the amended 2006 Plan leaving 87,786 shares which will not be issued as the 2006 Plan has been frozen. The outstanding options have exercise prices to purchase shares of Common Stock ranging from $3.60 to $32.70.

 

On March 22, 2012, our Board approved the MYnd Analytics, Inc. 2012 Omnibus Incentive Compensation Plan (the “2012 Plan”), reserved 333,334 shares of stock for issuance and on December 10, 2012, the Board approved the amendment of the 2012 Plan to increase the shares authorized for issuance from 333,334 shares to 5,500,000 shares. On March 26, 2013, the Board further approved the amendment of the 2012 Plan to increase the shares authorized for issuance from 5,500,000 shares to 15,000,000 shares. The 2012 Plan, as amended, was approved by our stockholders at the 2013 annual meeting held on May 23, 2013.

 

On January 8, 2015, the Board granted an option to purchase 250,000 shares of its Common Stock pursuant to the 2012 Plan, at an exercise price of $0.25 per share to a consultant. The option vesting is contingent upon the achievement of agreed upon goals.

 

On August 20, 2015, August 20, 2015, the Board approved an award of options to purchase 250,000 shares of the Company’s common stock for each of the Company's directors, for an aggregate grant of 1,750,000 options. The options are exercisable at a price per share of $0.055, the closing price of the Company's common stock on the date of grant, and will vest pro-rata over 36 months.

 

 As of December 31, 2015, under the amended 2006 Plan, 70,825 options had been exercised and 501,924 options and 6,132 restricted shares were outstanding leaving 87,786 shares which will never be issued as the 2006 Plan is frozen. Under the 2012 Plan as amended, options to purchase 13,728,087 shares of Common Stock and 750,000 restricted shares remain outstanding. No options have been exercised under the 2012 Plan and 521,913 shares remain available for issuance.

 

Stock-based compensation expenses are generally recognized over the employees’ or service provider’s requisite service period, generally the vesting period of the award. Stock-based compensation expense included in the accompanying statements of operations for the three months ended December 31, 2015 and 2014 is as follows:   

 

   For the three months ended
December 31,
 
   2015   2014 
Research   10,400    10,400 
Product Development   9,200    18,500 
Sales and marketing   9,100    9,900 
General and administrative   11,200    23,700 
Total  $39,900   $62,500 

 

Total unrecognized compensation as of December 31, 2015 amounted to $176,432.

 

A summary of stock option activity is as follows: 

 

   Number of 
Shares
   Weighted
Average 
Exercise 
Price
 
Outstanding at September 30, 2015   14,230,011   $0.75 
Granted   -      
Exercised   -    - 
Forfeited   -      
Outstanding at December 31, 2015   14,230,011   $0.75 

 

 16 

 

 

Following is a summary of the status of options outstanding at December 31, 2015:

 

 Exercise
Price ($)
   Number
of Shares
   Expiration
Date
  Weighted Average
Exercise Price ($)
 
             
$0.055    1,750,000   08/2025  $0.055 
 0.04718    8,795,308   12/2022 – 01/2023   0.04718 
 0.25    2,715,109   03/2023 – 01/2025   0.25 
 0.26    425,000   07/2024   0.26 
 3.00    42,670   03/2022   3.00 
 3.60    28,648   08/2016   3.60 
 3.96    32,928   08/2016   3.96 
 9.00    4,525   11/2016   9.00 
 12.00    28,535   03/2019 – 07/2020   12.00 
 14.10    10,000   03/2021   14.10 
 15.30    1,373   09/2018   15.30 
 16.50    262,441   03/2020   16.50 
 17.70    953   08/2016   17.70 
 24.00    4,667   12/2017   24.00 
 26.70    32,297   09/2017   26.70 
 28.80    11,767   04/2018   28.80 
$32.70    83,790   08/2017  $32.70 
 Total    14,230,011   Average  $0.75 

 

Warrants to Purchase Common Stock

 

 The warrant activity for the period starting October 1, 2013, through December 31, 2015, is described as follows:

 

   Number of 
Shares
   Weighted
Average 
Exercise Price
 
Outstanding at September 30, 2015   781,524   $0.53 
Granted   80,000,000    0.05 
Exercised   -    - 
Expired   (16,668)   1.00 
Outstanding at December 31, 2015   80,764,856   $0.054 

 

Following is a summary of the status of warrants outstanding at December 31, 2015:

 

Exercise
Price
   Number
of Shares
   Expiration
Date
  Weighted Average
Exercise Price
 
             
$0.04718    38,152   03/2018  $0.04718 
 0.05    20,000,000(1)  12/31/2020   0.05 
 0.05    60,000,000(2)  12/31/2020   0.05 
 0.25    332,200   04/2016 – 07/2017   0.25 
 0.275    324,000   06/2018 – 03/2019   0.275 
 1.00    50,502   10/2015 – 01/2017   1.00 
 7.50    3,334   05/2016   7.50 
$9.00    16,668   07/2017   9.00 
 Total    80,764,856      $0.054 

 

 17 

 

 

(1) On December 23, 2015, the Company entered into a Second Amended Note and Warrant Purchase Agreement pursuant to which on December 23 and December 28, 2015, the Company issued December 2015 Notes to the two purchasers for an aggregate principal amount of $1,000,000 and issued a Note Warrant to each holder of December 2015 Notes to purchase the Company's Common Stock, in an amount equal to 100% of the shares underlying their December 2015 Note. Each Note Warrant is exercisable, in whole or in part, during the period beginning on the date of its issuance, and ending on the earlier of (i) December 31, 2020 and (ii) the date that is forty-five (45) days following the date on which the daily closing price of shares of the Company's Common Stock quoted on the OTCQB Venture Marketplace (or other bulletin board or exchange on which the Company's Common Stock is traded or listed) exceeds $0.25 for at least ten (10) consecutive trading days. In connection therewith, the Company will promptly notify the Note Warrant holders in the event that the daily closing price of the Company's shares of Common Stock so exceeds $0.25 for at least ten (10) consecutive trading days. Both December 2015 Notes and Note Warrants were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) on December 23, 2015, John Pappajohn, a member of the board of directors of the Company, purchased a December 2015 Note for $250,000 and was issued a Note Warrant to purchase 5,000,000 shares of Common Stock; and (ii) on December 28, 2015, RSJ PE, of which, Michal Votruba, a member of the board of directors of the Company, is the Director for Life Sciences for the RSJ/Gradus Fund, purchased a December 2015 Note for $750,000 and was issued a Note Warrant to purchase 15,000,000 shares of Common Stock.

 

(2) On December 23, 2015, in consideration for the agreement to extend the maturity date of the Notes, the Company issued to holders of all Notes outstanding prior to the date of the Second Amended Note & Warrant Agreement, Extension Warrants to purchase an aggregate of 60,000,000 shares of Common Stock. Each such holder was issued an Extension Warrant to purchase Common Stock in an amount equal to 100% of the shares underlying each such holder's previously outstanding Notes. 11 million Extension Warrants were issued to 10 accredited investors and 49 million Extension Warrants were issued to Directors and Affiliates; for further detail refer to Note 7. Related Party Transactions.

 

On December 23, 2015, we valued the Extension Warrants to purchase 60 million shares of Common Stock using the Black-Scholes model and determined their value to be $1,196,000, which was booked as an Extinguishment of Debt expense.

 

The Black-Scholes option-pricing model assumption inputs for December 23, 2015, valuation were as follows:

 

    December 23, 2015 
Annual dividend yield    
Expected life (years)   5.00 
Risk-free interest rate   1.74%
Expected volatility   272.56%

 

At December 31, 2015, there were warrants outstanding to purchase 80,764,856 shares of the Company’s Common Stock. The exercise prices of the outstanding warrants range from $0.04718 to $9.00 with a weighted average exercise price of $0.54. The warrants expire at various times starting 2016 through 2020.

 

7.RELATED PARTY TRANSACTIONS

 

Termination of Governance Agreements

 

On March 28, 2015, the Company entered into a separate termination agreement with each of Equity Dynamics and SAIL, in each case to immediately terminate the respective November 28, 2012 governance agreement (collectively, the “Governance Agreements”) that the Company had entered into with each of Equity Dynamics and SAIL (collectively, the “Termination Agreements”). Equity Dynamics is an entity owned by John Pappajohn, a director of the Company, and SAIL is one of the Company’s principal stockholders of which former director, Walter Schindler, was the managing partner. Pursuant to the Governance Agreements, the Company had agreed, subject to providing required notice to stockholders, to appoint four individuals nominated by Equity Dynamics and three individuals nominated by SAIL to the Company’s Board of Directors, and to create vacancies for that purpose, if necessary. In addition, at each meeting of stockholders of the Company at which directors were nominated and elected, the Company had agreed to nominate for election the four designees of Equity Dynamics and the three designees of SAIL, and further had agreed to take all necessary action to support such election, and to oppose any challenges to such designees. The Governance Agreements also restricted the Company’s ability to increase the number of directors to more than seven without the consent of Equity Dynamics and SAIL. Pursuant to the Termination Agreements, the Governance Agreements were terminated in their entirety as of March 28, 2015, and are of no further force or effect.

 

 18 

 

 

Note Purchase Agreement, Notes and Omnibus Amendment and Second Amendment Note & Warrant Agreement

 

Between September 22, 2014, and July 20, 2015, the Company entered into a the Original Note Purchase Agreement in connection with a bridge financing, with nine accredited investors, including lead investor RSJ PE. Pursuant to the Original Note Purchase Agreement, the Company issued fifteen September 2014 Note in the aggregate principal amount of $2.27 million. Of this amount, RSJ PE purchased a September 2014 Note for $750,000. The September 2014 Notes were also purchased by the following affiliates of the Company or entities under their control: RSJ PE, of which Michal Votruba is a director, which purchased a September 2014 Note for $750,000; the Company’s director, John Pappajohn, purchased three September 2014 Notes for $400,000; the Follman Family Trust of which Robert Follman, a director of the Company, is a trustee, purchased a September 2014 Note for $100,000; The Tierney Family Trust, which is a greater than 5% stockholder of the Company, purchased four September 2014 Notes for $540,000, of which Thomas Tierney, a former director and Chairman of the Board of the Company, is a trustee; and Oman Ventures, of which Mark Oman, a greater than 5% stockholder of the Company, is the President, purchased a September 2014 Note for $200,000.  Michal Votruba joined our Board on July 30, 2015.

 

For details of the Original Note Purchase Agreement, Amendment No.1 on April 14, 2015, the Omnibus Amendment on September 14, 2015 and subsequent Second Amended Note & Warrant Agreement on December 23, 2015 please refer to Note 4. Convertible Debt and Equity Financing.

 

On September 14, 2015, the Company entered into an Omnibus Amendment and subsequently thereto, on September 14, 15 and 24, 2015, the Company entered into a Note Purchase Agreement, as amended by the Omnibus Amendment, with each of six accredited investors, in connection with a bridge financing. Pursuant to these Note Purchase Agreements, the Company issued an aggregate principal amount of $710,000 of secured convertible September 2015 Notes, which amount also represents the gross proceeds to the Company from the September 2015 Notes. Four of the six September 2015 Notes were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) Dr. Robin Smith, Chairman of the Board of Directors of the Company, purchased a Note for $60,000; (ii) the Follman Family Trust, of which, Robert Follman, a director of the Company, is a trustee, purchased a Note for $150,000; (iii) John Pappajohn, a director of the Company, purchased a Note for $100,000 and (iv) RSJ PE, purchased a Note for $350,000.

 

On December 23, 2015, the Company entered into a Second Amended Note & Warrant Agreement pursuant to which, on December 23 and December 28, 2015, the Company issued to the two purchasers thereof, who are both affiliates of the Company, (i) an aggregate principal amount of $1,000,000 of December 2015 Notes, which amount also represents the gross proceeds to the Company from the December 2015 Notes, and (ii) a Note Warrant issued to each holder of December 2015 Notes to purchase the Company's Common Stock, in an amount equal to 100% of the shares underlying their December 2015 Note and is exercisable at $0.05 per share. The affiliates who purchased the December 2015 Notes were as follows: (i) John Pappajohn, a director of the Company, purchased a Note for $250,000 and was issued a Note Warrant to purchase 5,000,000 shares of Common Stock and (ii) RSJ PE, who purchased a Note for $750,000 and was issued a Note Warrant to purchase 15,000,000 shares of Common Stock.

 

Each Note Warrant is exercisable, in whole or in part, during the period beginning on the date of its issuance, and ending on the earlier of (i) December 31, 2020 and (ii) the date that is forty-five (45) days following the date on which the daily closing price of shares of the Company's Common Stock quoted on the OTCQB Venture Marketplace (or other bulletin board or exchange on which the Company's Common Stock is traded or listed) exceeds $0.25 for at least ten (10) consecutive trading days. In connection therewith, the Company will promptly notify the Note Warrant holders in the event that the daily closing price of the Company's shares of Common Stock so exceeds $0.25 for at least ten (10) consecutive trading days.

Also on December 23, 2015, in consideration for the agreement to extend the maturity date of the Notes, the Company issued to holders of all Notes outstanding prior to the date of the Second Amended Note & Warrant Agreement, Extension Warrants to purchase an aggregate of 60,000,000 shares of Common Stock. Each such holder was issued an Extension Warrant to purchase Common Stock in an amount equal to 100% of the shares underlying each such holder's previously outstanding Notes. Extension warrants were issued to affiliates as follows:

 

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5-Year Extension Warrants with an non-cashless exercise price of
$0.05
  Secured Convertible
Promissory Notes
   Warrants to purchase
Shares of Common
Stock
 
         
RSJ Private Equity   1,850,000    22,000,000 
Robin L. Smith   60,000    1,200,000 
John Pappajohn   550,000    6,000,000 
Tierney Family Trust   540,000    10,800,000 
Oman Ventures   200,000    4,000,000 
Follman Family Trust   250,000    5,000,000 
Total Secured Convertible Promissory Notes   3,450,000    49,000,000 

 

Director and Officer Indemnification Agreement

 

On December 7, 2015, the Company entered into indemnification agreements with each of its Directors and Executive Officers. The agreements provide for, among other things: the indemnification of these Directors and Officers by the Company to the fullest extent permitted by the laws of the State of Delaware; the advancement to such persons by the Company of certain expenses; related procedures and presumptions of entitlement; and other related matters.

 

Transactions with John Pappajohn, Director

 

On September 22, 2014, March 18, 2015, June 2, 2015 and September 15, 2015, Mr. Pappajohn purchased four Notes for $200,000, $100,000, $100,000 and $100,000 respectively. Pursuant to the Omnibus Amendment, the Notes are convertible into shares of Common Stock at $0.055 per share: (i) automatically upon the closing of a qualified offering of not less than $5 million or (ii) voluntarily within 15 days prior to maturity. 

 

On September 6, 2015, Mr. Pappajohn irrevocably assigned $200,000 in principal of his September 2014 Notes to four outside parties in the amount of $50,000 each.

 

On September 15, 2015, Mr. Pappajohn purchased a September 2015 Note for $100,000. The September 2015 Notes are convertible into share of Common Stock (i) automatically, in the event of a qualified financing of not less than $5 million, or (ii) voluntary, within 15 days prior to the maturity date of the note. The Omnibus Amendment also amended the form of note attached to the Note Purchase Agreement to reflect the Fixed Conversion Price, such that the conversion price of all notes will be $0.05 per share (as adjusted for stock splits, stock dividends, combinations or the like affecting the Common Stock).

 

On December 23, 2015, Mr. Pappajohn purchased a December 2015 Note for $250,000 pursuant to the abovementioned Second Amended Note & Warrant Purchase Agreement. Additionally, in connection with the Second Amended and Restated Note & Warrant Purchase Agreement, Mr. Pappajohn was issued Warrants to purchase an aggregate of 11,000,000 shares of Common Stock at $0.05 per share, consisting of a Note Warrant to purchase 5,000,000 shares of Common Stock, and an Extension Warrant to purchase 6,000,000 shares of Common Stock.

 

Transactions with Robert J. Follman, Director

 

On October 19, 2012, an October 2012 Note in the aggregate principal amount of $200,000 was issued in exchange for cash to the Trust of Robert J. Follman and Carole A. Follman, dated August 14, 1979 (the “Follman Trust”), an accredited investor, of which Robert J. Follman is a trustee. As of February 25, 2013, Mr. Follman was elected as a Director of the Company. On June 14, 2013, the Follman Trust converted their October 2012 Note and interest thereon into 4,491,310 shares of Common Stock at a conversion price $0.04718 per share.

 

The Follman Trust made multiple additional investments pursuant to a series of subscription agreements all of which were the result of private placements of unregistered stock at $0.25 per share. All individual transactions were in tranches of $100,000 for the purchase of 400,000 shares and the Company received gross cash proceeds of $100,000 on each occasion. These transactions occurred on the following dates: August 16 and September 11 of 2013 and January 17, February 14 and July 8 of 2014. In aggregate the Follman Trust has purchased 2,000,000 shares at $0.25 per share for $500,000 gross cash proceeds to the Company.

 

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On March 17, 2015 and September 15, 2015, the Follman Trust purchased Notes for $100,000 and $150,000, respectively. Pursuant to the Omnibus Amendment, these Notes are convertible into shares of Common Stock at $0.05 per share: (i) automatically, upon the closing of a qualified offering of not less than $5 million or (ii) voluntarily, within 15 days prior to maturity.

 

Additionally, on December 23, 2015, in connection with the Second Amended and Restated Note & Warrant Purchase Agreement, the Follman Trust was issued an Extension Warrant to purchase 5,000,000 shares of Common Stock at $0.05 per share.

 

Transaction with Robin L. Smith, Chairman

 

On September 14, 2015, Dr. Smith, our Chairman of the Board of Directors, purchased a Note for $60,000. Pursuant to the Omnibus Amendment, such Notes are convertible into shares of Common Stock at $0.05 per share: (i) automatically, upon the closing of a qualified offering of not less than $5 million, or (ii) voluntarily, within 15 days prior to maturity.

 

Additionally, on December 23, 2015, in connection with the Second Amended and Restated Note & Warrant Purchase Agreement, Dr. Smith was issued an Extension Warrant to purchase 1,200,000 shares of Common Stock at $0.05 per share.

 

Transactions with George Carpenter, President and Chief Executive Officer

 

On September 25, 2013, the Board approved a consulting agreement effective May 1, 2013, for marketing services provided by Decision Calculus Associates, an entity operated by Mr. Carpenter’s spouse, Jill Carpenter. For the period from May 1, 2013 through to February 28, 2015, we have paid $210,000 to Decision Calculus Associates and have an accounts payable balance of a further $10,000. For the period from March through July of 2015, DCA was not engaged by the Company. Effective August 2015 DCA has been re-engaged and paid at $10,000 per month.

  

Transactions with the SAIL Capital Partners and SAIL Holdings

 

Mr. Schindler served as a Director between November 29, 2012 and June 11, 2015, and was the Managing Partner of SAIL Capital Partners, which was a greater than 5% stockholder of the Company, and is the general partner of all the SAIL entities except for SAIL Holding, LLC which is controlled directly by Mr. Schindler.

 

On January 5, 2015, the Company entered into a three-month long consulting engagement with Dr. Eric Warner, Managing Partner, Europe, Middle East & Africa, SAIL Capital Partners Ltd. The objectives of the engagement include the establishment of a revenue-generating licensing agreement in the United Kingdom (U.K.) and initiation a pilot study of our PEER Online technology. Dr. Warner has been paid $10,000 per month for a total of $30,000. On January 8, 2015, the Board granted Dr. Warner an option to purchase 250,000 shares of Common Stock with an exercise price of $0.25 per share; the option vesting is conditioned on the execution of a licensing agreement and a PEER Online pilot study. The fair value of the option, which was determined using the Black-Scholes model, was $28,300 and was expensed over the term of the engagement.

 

Transactions with Tierney Family Trust, Greater than 5% Stockholder

 

Mr. Tierney, who resigned from the Board on May 22, 2015, had served on the Board since February 2013, and had served as Chairman of the Board since March 2013. Mr. Tierney is a trustee of the Thomas T. and Elizabeth C. Tierney Family Trust (the “Tierney Family Trust”), which is a greater than 5% stockholder.

  

On September 22, 2014, January 8, 2015, March 17, 2015, June 3, 2015 and July 3, 2015 the Tierney Family Trust purchased five Notes for $200,000, $100,000, $115,000, $100,000 and $25,000, respectively, for an aggregate total of $540,000. Pursuant to the Omnibus Amendment, all such Notes are convertible into shares of Common Stock at $0.05 per share: (i) automatically, upon the closing of a qualified offering of not less than $5 million, or (ii) voluntarily, within 15 days prior to maturity.

 

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Additionally, on December 23, 2015, in connection with the Second Amended and Restated Note & Warrant Purchase Agreement, the Tierney Family Trust was issued an Extension Warrant to purchase 10,800,000 shares of Common Stock at $0.05 per share.

 

Transactions with Mark and Jill Oman, Greater than 5% Stockholder

 

On September 22, 2014, Oman Ventures LLC, of which Mr. Oman, a greater than 5% stockholder is the President, purchased a Note for $200,000. Pursuant to the Omnibus Amendment, such Notes are convertible into shares of Common Stock at $0.05 per share: (i) automatically, upon the closing of a qualified offering of not less than $5 million, or (ii) voluntarily, within 15 days prior to maturity.

 

Additionally, on December 23, 2015, in connection with the Second Amended and Restated Note & Warrant Purchase Agreement, Oman Ventures LLC was issued an Extension Warrant to purchase 4,000,000 shares of Common Stock at $0.05 per share.

 

Transactions with RSJ PE

 

Michal Votruba joined our Board on July 30, 2015. Mr. Votruba is a director of RSJ PE, which acted as the lead investor in the private placement financing of September 2014 Notes.

 

On September 26, 2014, and September 24, 2015, investor RSJ PE purchased a two Notes for $750,000 and $350,000 respectively. Pursuant to the Omnibus Amendment, such Notes are convertible into shares of Common Stock at $0.05 per share: (i) automatically, upon the closing of a qualified offering of not less than $5 million, or (ii) voluntarily, within 15 days prior to maturity.

 

On December 28, 2015, RSJ PE purchased a December 2015 Note for $750,000 pursuant to the abovementioned Second Amended Note & Warrant Purchase Agreement. Additionally, in connection with the Second Amended Note & Warrant Purchase Agreement, RSJ PE was issued Warrants to purchase an aggregate of 37,000,000 shares of Common Stock at $0.05 per share, consisting of a Note Warrant to purchase 15,000,000 shares of Common Stock and an Extension Warrant to purchase 22,000,000 shares of Common Stock.

 

8.LOSS PER SHARE

 

In accordance with ASC 260-10 (formerly SFAS 128, “Computation of Earnings Per Share”), basic net income (loss) per share is computed by dividing the net income (loss) to common stockholders for the period by the weighted average number of common shares outstanding during the period. Diluted net income (loss) per share is computed by dividing the net income (loss) for the period by the weighted average number of common and dilutive common equivalent shares outstanding during the period.  For the three months ended December 31, 2015 and 2014, the Company has excluded all common equivalent shares from the calculation of diluted net loss per share as such securities are anti-dilutive.

 

A summary of the net income (loss) and shares used to compute net income (loss) per share for the three months ended December 31, 2015 and 2014 is as follows: 

 

   Three months ended
December 31,
 
   2015   2014 
Net Loss for computation of basic and diluted net loss per share:          
From continuing operations  $(3,449,500)  $(873,700)
From discontinued operations   (1,800)   (900)
Net loss  $(3,451,300)  $(874,600)
Basic and Diluted net loss per share:          
From continuing operations  $(0.03)  $(0.01)
From discontinued operations   (0.00)   (0.00)
Basic net loss per share  $(0.03)  $(0.01)
           
Basic and Diluted weighted average shares outstanding   102,417,409    101,667,409 
           
The weighted average of anti-dilutive common equivalent shares not included in the computation of dilutive net loss per share:          
Convertible debt   63,196,467    1,650,000 
Warrants   6,856,792    939,404 
Options   14,230,011    12,417,499 

 

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9.COMMITMENTS AND CONTINGENT LIABILITIES

 

Litigation

 

From time to time, the Company may be involved in litigation relating to claims arising out of the Company’s operations in the ordinary course of business. Other than as set forth below, the Company is not currently party to any legal proceedings, the adverse outcome of which, in the Company’s management’s opinion, individually or in the aggregate, would have a material adverse effect on the Company’s results of operations or financial position.

 

Since June 2009, the Company has been involved in litigation against Leonard J. Brandt, a stockholder, former Director and the Company’s former Chief Executive Officer (“Brandt”) in the Delaware Chancery Court, the Supreme Court of the State of Delaware, the United States District Court for the Central District of California and the Superior Court for the State of California, Orange County. Other than current actions described below, the Company has prevailed in all actions or the matters have been dismissed.

 

On April 11, 2011, Brandt and his family business partnership Brandt Ventures, GP, filed an action in the Superior Court for the State of California, Orange County against the Company, one of its stockholders, SAIL Venture Partner, LP, and Mr. David Jones, a former member of the Board, alleging breach of a promissory note agreement entered into by Brandt Ventures, GP and the Company and alleging that Mr. Brandt was wrongfully terminated as Chief Executive Officer in April, 2009.  The Company was served with a summons and complaint in the action on July 19, 2011.

 

On November 1, 2011, Mr. Brandt and Brandt Ventures filed an amended complaint amending their claims and adding new claims against the same parties. On March 12, 2012, the court sustained demurrers to certain of the counts against each defendant. On March 22, 2012, the plaintiffs filed a second amended complaint modifying certain of their claims, but did not add new claims. On February 6, 2013, the plaintiffs moved for leave to amend the second amended complaint and file a third amended complaint. On March 6, 2013, the Court granted leave to amend, but awarded fees and costs for the defendants to again make dispositive motions. The third amended complaint adds a claim for breach of the promissory note and seeks to foreclose on the collateral securing the note obligation.  In addition, Mr. Brandt is seeking approximately $170,000 of severance and compensatory and punitive damages in connection with his termination.  In interrogatory responses served on January 26, 2013, Mr. Brandt for the first time identified that he seeks damages in connection with his termination exceeding $9,000,000.  Mr. Brandt has proffered no credible evidence to support damages in this amount, and the Company believes this claim for damages is without merit.  The plaintiffs also seek rescission of a $250,000 loan made by Brandt Ventures, GP to the Company which was converted into Common Stock in accordance with its terms and restitution of the loan amount.

 

A trial date had originally been set for May 2014. However, plaintiffs’ counsel requested a continuance until August 2014, to which the Company agreed.  On June 18, 2014, at plaintiffs’ counsel’s request, the Company entered into a Standstill and Tolling Agreement, whereby the parties agreed to seek a stay of the litigation and plaintiffs agreed to provide the Company with an executed dismissal of all the claims without prejudice, with the ability to re-file the third amended complaint, without change, on or before June 18, 2015.  The Company had the right to file the executed stipulation of dismissal if the Court lifted the stay.  On May 7, 2015, the parties agreed to continue the Standstill and Tolling Agreement for another year, until June, 2016, on the same terms. On May 12, 2015, the Court agreed to stay the case for another six months.  On November 4, 2015 the Court lifted the stay, and set the case for trial on March 7, 2016.  On February 3, 2016, the Company filed the executed stipulation of dismissal, thereby ending the current action in Orange County. As noted, Mr. Brandt can start a new action and re-file the third amended complaint, without change, on or before June 18, 2016.  The Company continues to believe that Mr. Brandt's allegations set forth in the third amended complaint, like the prior complaints, are without merit. The Company has not accrued any amounts related to this matter. The just-dismissed action was captioned Leonard J. Brandt and Brandt Ventures, GP v. CNS Response, Inc., Sail Venture Partners and David Jones, case no. 30-2011-00465655-CU-WT-CJC.

 

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 The Company has expended substantial resources to pursue the defense of legal proceedings initiated by Mr. Brandt.  The Company does not know whether Mr. Brandt will institute additional claims against the Company and the defense of any such claims could involve the expenditure of additional resources by the Company.

 

Lease Commitments

 

The Company has its current Headquarters and Neurometric Services business premises located at 85 Enterprise, Aliso Viejo, California 92656 since February 2010.  On February 6, 2014, we signed a 24 month extension to our lease for our current location. The lease period commenced on February 1, 2014 and terminates on January 31, 2016. The rent for months one through 13 is $4,349 per month; the months of February 2014 and January 2015 are abated; the rent for months 14 through 24 is $4,523 per month.

 

The Company incurred rent expense from continuing operations of $12,200 and $12,200 for the three months ended December 31, 2015 and 2014, respectively.

 

On April 24, 2013, we entered into a financial lease to acquire additional EEG equipment costing $8,900.  The term of the lease is 36 months ending May 2016 with a monthly payment of $325. As of December 31, 2015 the remaining lease obligation is $1,600 all of which is due in fiscal year 2016.

 

   Payments due by period         
Contractual Obligations  Total   Less
than 1
year
   1 to 3 years   3 to 5 years   More
than 5
years
 
                     
Operating Lease Obligations  $-   $-   $-    -    - 
Capital Lease Obligations   1,600    1,600    -    -    - 
Total  $1,600   $1,600   $-    -    - 

 

10.SUBSEQUENT EVENTS

 

Events subsequent to December 31, 2015 have been evaluated through the date these financial statements were issued, to determine whether they should be disclosed to keep the financial statements from being misleading. The following events have occurred since December 31, 2015.

 

On January 15, 2016, the company engaged Dian Griesel International (DGI) for a 12 month long consulting agreement to provide public and investor relations services. The fee for the services is $5,000 per month, plus out-of-pocket expenses. As an origination fee for the agreement, the Board of Directors approved the issuance of 300,000 shares of common stock to Ms. Griesel on January 15, 2016.

 

The Company relocated its new Headquarters and Neurometric Services business to 26522 La Alameda, Suite 290, Mission Viejo, CA 92691; the new premises are 2,290 sqft in size. We signed a 24 month lease for our new location on January 22, 2016. The lease period commenced on February 1, 2016 and terminates on January 31, 2018. The rent for the first four months is $2,290 per month, which is abated by 50%; for months 5 through 12 the rent increases to $4,580 per month and for the final 12 months the rent will increase by 5% to $4,809 per month.

 

On February 2, 2016, we signed a 23.5 month lease for 1,092 sqft of office space to house our EEG testing center. The premises are located at 25201 Paseo De Alicia, Laguna Hills, CA 92653. The lease period commenced on February 15, 2016 and terminates on January 31, 2018. The rent for first half month of February will be prorate at $928.20; for the next 11 months the rent is $1,856 per month, and for the remaining twelve months the rent will increase by 3% to $1,911 per month. The landlord will abate the rent for March 2016.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following discussion and analysis of our financial condition and results of operation should be read in conjunction with our unaudited condensed consolidated financial statements as of, and for, the three months ended December 31, 2015 and 2014, and our Annual Report on Form 10-K for the year ended September 30, 2015, filed with the U.S. Securities and Exchange Commission on January 5, 2016.

 

Forward-Looking Statements

 

This discussion summarizes the significant factors affecting the unaudited condensed consolidated operating results, financial condition and liquidity and cash flows of MYnd Analytics, Inc. (“we,” “us,” “our,” or the “Company”) for the three months ended December 31, 2015 and 2014. Except for historical information, the matters discussed in this management’s discussion and analysis or plan of operation and elsewhere in this Quarterly Report on Form 10-Q are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that include information relating to future events, future financial performance, strategies, expectations, competitive environment, regulation and availability of resources. These forward-looking statements include, without limitation, statements regarding: proposed new products or services; our statements concerning litigation or other matters; statements concerning projections, predictions, expectations, estimates or forecasts for our business, financial and operating results and future economic performance; statements of management’s goals and objectives; trends affecting our financial condition, results of operations or future prospects; our financing plans or growth strategies; and other similar expressions concerning matters that are not historical facts. Words such as “may,” “will,” “should,” “could,” “would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes” and “estimates,” and similar expressions, as well as statements in future tense, identify forward-looking statements.

 

Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be accurate indications of the times, or by which, that performance or those results will be achieved. Forward-looking statements are based on information available at the time they are made and/or management’s good faith belief as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could cause these differences include, but are not limited to:

 

·our inability to raise additional funds to support operations and capital expenditures;
·our inability to achieve greater and broader market acceptance of our products and services in existing and new market segments;
·our inability to successfully compete against existing and future competitors;
·our inability to manage and maintain the growth of our business;
·our inability to protect our intellectual property rights; and
·other factors discussed under the headings “Risk Factors” and “Business” in our Annual Report on Form 10-K for the year ended September 30, 2015 and this Quarterly Report on Form 10-Q.

 

Forward-looking statements speak only as of the date they are made. You should not put undue reliance on any forward-looking statements. We assume no obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting forward-looking information, except to the extent required by applicable securities laws. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.

 

Overview

 

We are a clinical decision support company with a patented commercial neurometric platform to predict drug response for treatment of brain disorders, including depression, anxiety, bipolar disorder and post-traumatic stress disorder (“PTSD”).  We will be conducting clinical trials focused on military personnel and their family members who are suffering from depression, PTSD and mild traumatic brain injury (“mTBI”) in order to support clinical decisions in the treatment of depression and related disorders.  We are also planning to commercialize our Psychiatric Electroencephalographic Evaluation Registry (“PEER”) Report by using social media advertising to individual consumers suffering from depression, anxiety, PTSD and other behavioral disorders.

 

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Working Capital

 

We are unable to pay all our obligations as they become due and we are in arrears on paying certain of our creditors.  If we are not able to raise additional funds within the next several months, and we cannot find additional sources of funds and/or reach accommodations with certain of our creditors, we will likely be required to cease our operations.

 

Since our inception, we have never been profitable and we have generated significant net losses. As of December 31, 2015, we had an accumulated deficit of approximately $66.0 million; and as of December 31, 2014, our accumulated deficit was approximately $60.1 million. We incurred operating losses of $0.65 million and $0.80 million for the quarters ended December 31, 2015 and 2014, respectively, and incurred net losses of $3.35 million and $0.87 million for those respective periods. Large, non-cash, accounting transactions significantly impacted the net losses for the 2015 and 2014 quarters in question, including:

 

·For the quarter ended December 31, 2015, our net loss was exacerbated by non-cash charges totaling approximately $2.83 million as a result of accounting for the extinguishment of debt, non-cash interest and derivative liability transactions. These non-cash charges are primarily the result of amendments to the terms of our convertible notes payable along with the issuance of warrants.

 

·For the quarter ended December 31, 2014 our non-cash expenses were approximately $91,000.

 

Assuming we are able to continue our operations, we expect our net losses to continue for at least the next eighteen months to two years. We anticipate that a substantial portion of any capital resources and efforts would be focused on conducting our proposed clinical trials, followed by the scale-up of our commercial organization, further research, product development and other general corporate purposes, including the payment of legal fees incurred as a result of our litigation. We anticipate that future research and development projects would be funded by grants or third-party sponsorship, along with funding by the Company.

 

As of December 31, 2015, our current liabilities of approximately $1.64 million exceeded our current assets of approximately $0.91 million by approximately $0.73 million.  During fiscal year 2015 we raised $1.35 million in the private placement of secured debt convertible at $0.05 per share. During fiscal year 2014 we were successful in raising a net $3.34 million of which $1.69 million was in the private placement of equity at $0.25 per share of Common Stock and $1.65 million was in the private placement of secured convertible debt at $0.05 per share.

On December 23, 2015, the Company entered into a second amended and restated note and warrant purchase agreement with each of 16 accredited investors, pursuant to which (i) the aggregate principal amount of notes available for issuance was increased from $3.0 million to up to $6.0 million, (ii) the maturity date of currently outstanding notes was extended from March 21, 2016 to December 31, 2017; (iii) the time during which notes may be issued was extended and (iv) certain warrants were issued to holders of both previously issued and newly issued notes.

 

Pursuant to the second amended note and warrant agreement, on December 23 and December 28, 2015, the Company issued to the two purchasers thereof (i) an aggregate principal amount of $1,000,000 of secured convertible promissory notes, which amount also represents the gross proceeds to the Company therefrom, and (ii) a warrant to each such purchaser holder to purchase the Company's Common Stock, in an amount equal to 100% of the shares underlying such purchased notes. For details of the second amended note and warrant agreement financing see "Private Placement Transactions" below.

 

We will need additional funding to conduct additional clinical trials and to conduct a marketing campaign to significantly increase the demand for our PEER Online services. We are actively exploring additional sources of capital. However, we cannot offer assurances that additional funding will be available on acceptable terms, or at all. Even if we were to raise additional funds, any additional equity funding may result in significant dilution to existing stockholders, and, if we incur additional debt financing, a substantial additional portion of our operating cash flow may be dedicated to the payment of principal and interest on such indebtedness, thus limiting the funds available for our business activities. If adequate funds are not available, it will likely force us to cease operations or would otherwise have a material adverse effect on our business, financial condition and/or results of operations.

 

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Private Placement Transactions

 

Between September 22, 2014, and July 20, 2015, the Company entered into a Note Purchase Agreement (the “Original Note Purchase Agreement”) in connection with a bridge financing, with nine accredited investors, including lead investor RSJ Private Equity investiční fond s proměnným základním kapitálem (“RSJ PE”). Pursuant to the Original Note Purchase Agreement, the Company issued fifteen secured convertible promissory notes (each, a “September 2014 Note”) in the aggregate principal amount of $2.27 million. The September 2014 Notes were also purchased by the following affiliates of the Company or entities under their control: RSJ PE, of which Michal Votruba is a director, which purchased a September 2014 Note for $750,000; the Company’s director, John Pappajohn, who purchased three September 2014 Notes for $400,000; the Follman Family Trust, which purchased a September 2014 Note for $100,000; The Tierney Family Trust, which is a greater than 5% stockholder of the Company, which purchased five September 2014 Notes for $540,000; and Oman Ventures, of which Mark Oman, a greater than 5% stockholder of the Company, is the President, which purchased a September 2014 Note for $200,000. Michal Votruba joined our Board on July 30, 2015.

 

The Original Note Purchase Agreement provided for the issuance and sale of September 2014 Notes in the aggregate principal amount of up to $2.5 million, in one or more closings to occur over a six-month period beginning September 22, 2014. The Original Note Purchase Agreement also provided that the Company and the holders of the September 2014 Notes enter into a registration rights agreement covering the registration of the resale of the shares of the Common Stock underlying the September 2014 Notes.

 

On April 14, 2015, the Company entered into Amendment No. 1 to the Original Note Purchase Agreement with the majority of the noteholders in principal, dated as of April 14, 2015 (“Amendment No. 1”), pursuant to which: (i) the aggregate principal amount of notes provided for issuance was increased by $0.5 million to a total of $3.0 million, and (ii) the period to raise the $3.0 million was extended to September 30, 2015. The Company subsequently amended and restated the Original Note Purchase Agreement solely to update for the changes made pursuant to Amendment No. 1 (such amended and restated agreement, together with the Original Note Purchase Agreement, the “Note Purchase Agreement”).

 

On September 14, 2015, the Company entered into an Omnibus Amendment (the “Omnibus Amendment”) to the Note Purchase Agreement and the notes purchased and sold pursuant thereto, with the majority of the noteholders to fix the conversion price of all notes at $0.05 per share (as adjusted for stock splits, stock dividends, combinations or the like affecting the Common Stock) (the “Fixed Conversion Price”) (i) automatically, in the event of a qualified financing of not less than $5 million, or (ii) voluntary, within 15 days prior to the maturity date of the note. The Omnibus Amendment also amended the form of note attached to the Note Purchase Agreement to reflect the Fixed Conversion Price.

 

Subsequently thereto, on September 14, 15 and 24, 2015, the Company entered into a Note Purchase Agreement, as amended by the Omnibus Amendment, with each of six accredited investors, in connection with a bridge financing. Pursuant to these Note Purchase Agreements, the Company issued an aggregate principal amount of $710,000 of secured convertible promissory notes (collectively, the “September 2015 Notes,” and together with the September 2014 Notes all other notes that may be purchased and sold, from time to time in the future, pursuant to the Note Purchase Agreement, and any further amendments or modifications thereto, the “Notes”), which amount also represents the gross proceeds to the Company from the September 2015 Notes. Four of the six September 2015 Notes were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) Dr. Robin Smith, Chairman of the Board of Directors of the Company, purchased a Note for $60,000; (ii) the Follman Family Trust purchased a Note for $150,000; (iii) John Pappajohn purchased a Note for $100,000 and (iv) RSJ PE purchased a Note for $350,000.

 

On December 23, 2015, the Company entered into a Second Amended Note & Warrant Agreement (which further amended the Note Purchase Agreement, as modified by the Omnibus Amendment) (the "Second Amended Note & Warrant Agreement"), with each of 16 accredited investors, pursuant to which (i) the aggregate principal amount of Notes available for issuance was increased from $3.0 million to up to $6.0 million, (ii) the maturity date of currently outstanding Notes was extended from March 21, 2016 to December 31, 2017; (iii) the time during which Notes may be issued was extended and (iv) certain warrants were issued to holders of both previously issued and newly issued Notes.

 

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Pursuant to the Second Amended Note & Warrant Agreement, on December 23 and December 28, 2015, the Company issued to the two purchasers thereof (i) an aggregate principal amount of $1,000,000 of Notes (the "December 2015 Notes"), which amount also represents the gross proceeds to the Company from the December 2015 Notes, and (ii) a Note Warrant to each holder of December 2015 Notes to purchase the Company's Common Stock, in an amount equal to 100% of the shares underlying their December 2015 Note (each, a "Note Warrant"). Each Note Warrant is exercisable, in whole or in part, during the period beginning on the date of its issuance, and ending on the earlier of (i) December 31, 2020 and (ii) the date that is forty-five (45) days following the date on which the daily closing price of shares of the Company's Common Stock quoted on the OTCQB Venture Marketplace (or other bulletin board or exchange on which the Company's Common Stock is traded or listed) exceeds $0.25 for at least ten (10) consecutive trading days. In connection therewith, the Company will promptly notify the Note Warrant holders in the event that the daily closing price of the Company's shares of Common Stock so exceeds $0.25 for at least ten (10) consecutive trading days. Both December 2015 Notes and Note Warrants were purchased by affiliates of the Company, or an entity under such affiliate’s control, as follows: (i) on December 23, 2015, John Pappajohn, a member of the board of directors of the Company, purchased a December 2015 Note for $250,000 and was issued a Note Warrant to purchase 5,000,000 shares of Common Stock; and (ii) on December 28, 2015, RSJ PE, of which, Michal Votruba, a member of the board of directors of the Company, is the Director for Life Sciences for the RSJ/Gradus Fund, purchased a December 2015 Note for $750,000 and was issued a Note Warrant to purchase 15,000,000 shares of Common Stock.

 

Also on December 23, 2015, in consideration for the agreement to extend the maturity date of the Notes, the Company issued to holders of all Notes outstanding prior to the date of the Second Amended Note & Warrant Agreement, warrants to purchase an aggregate of 60,000,000 shares of Common Stock (the "Extension Warrants", together with the Note Warrants, the "Warrants"). All Warrants have identical terms. Each such holder was issued an Extension Warrant to purchase Common Stock in an amount equal to 100% of the shares underlying each such holder's previously outstanding Notes. Accordingly, Extension Warrants to purchase a total of 60,000,000 shares of Common Stock were issued, consisting of (i) Extension Warrants to purchase 11,000,000 shares of Common Stock issued to 10 accredited investors, and (ii) Extension Warrants to purchase 49,000,000 shares of Common Stock issued to Directors and Affiliates. For further details regarding these transactions, refer to Note 7. Related Party Transactions of the Unaudited Condensed Consolidated Financial Statements.

 

Pursuant to the Second Amended Note & Warrant Agreement, all Notes: (i) mature on December 31, 2017 (subject to earlier conversion or prepayment), (ii) earn interest at a rate of 5% per annum with interest payable at maturity, and (iii) are convertible into shares of Common Stock (A) automatically upon the closing of a qualified offering of no less than $5 million, at a conversion price of $0.05 per share or (B) voluntarily, within 15 days prior to maturity, at a conversion price of $0.05 per share. No Note may be prepaid without the prior written consent of the holder of such Note. The Notes are secured by a security interest in the Company's intellectual property. Upon a change of control of the Company, the holder of a Note will have the option to have the Note repaid with a premium equal to 50% of the outstanding principal.

 

Capitalization

 

At our annual meeting of stockholders held on October 28, 2015, our stockholders approved a proposal to amend the Company’s Certificate of Incorporation in order to increase the number of shares of Common Stock authorized for issuance under our Charter from 180,000,000 to 500,000,000. The table below summaries our capitalization as of February 15, 2016:

 

   Shares 
Shares of Common Stock Authorized   500,000,000 
Shares of Preferred stock Authorized (none issued and outstanding)   15,000,000 
Total Authorized Shares   515,000,000 
      
Shares of Common Stock Issued and Outstanding   102,717,409 
Common Stock issuable upon the exercise of outstanding stock options   14,230,011(1)
Common Stock issuable upon the exercise of outstanding warrants   80,764,856(1)
Common Stock reserved for conversion of $4M Secured Convertible Notes at $0.05 per share   80,000,000(2)
      
Total securities outstanding and reserved for issuance at February 15, 2016   277,712,276(2)

 

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(1) For more detail on exercise prices and expiration dates of the options and warrants please refer to the Stock Option Plans and Warrants to Purchase Common Stock sections of Note 6. Stockholders’ Deficit of the Unaudited Condensed Consolidated Financial Statements

(2)Does not include stock issued on the conversion of interest earned at 5% per annum on the Secured Convertible Notes

 

At our annual meeting of stockholders held on October 28, 2015, our stockholders also approved an amendment to amend the Company’s Charter for the purposes of effecting a reverse stock split of our Common Stock at a later time and at any time until the next meeting of the Company’s stockholders which are entitled to vote on such actions, by a ratio of not less than 1-for-10 and not more than 1-for-200, and to authorize the Board of Directors to determine, at its discretion, the timing of the amendment and the specific ratio of the reverse stock split. There has been no such stock split as of the date of this filing.

 

Recent Developments

 

Canadian Forces/NATO

 

The Company has been meeting over a period of two years with Canadian Military mental health leaders for purposes of conducting clinical trials for our PEER technology. From these discussions, we have identified with the Canadian Military two potential Canadian study sites to support a clinical trial using a protocol for PEER substantially similar to the one we used for the Walter Reed PEER Trial. This study protocol has been reviewed and approved by the Research Ethics Board of The Royal, University of Ottawa Institute of Mental Health Research, which is equivalent to an internal review board at the university. We are advised by the Canadian Military that the Canadian Military's funding for the study has been secured and we expect to begin the study within the next three to six months.

 

Marketing Initiatives

 

We conducted a marketing campaign throughout the month of October 2015 which resulted in a 10 fold increase in leads at 6% of our prior cost when compared to our prior marketing initiative. These leads have been referred to psychiatrists and other practitioners who use our PEER Online Technology. To date, the adoption of PEER Reports continues to be minimal, and the Company has generated no significant revenue from PEER Reports.

 

Our management believes that by investing in marketing automation we may be able to increase yield and reduce the time from a potential user’s awareness of our technology to their ultimate order of a PEER Report. We intend to focus on targeted social media advertising purchases in the Southern California region to build regional demand, for purpose of referring EEG testing to the Company’s MYnd Analytics Center, scheduled to open shortly. Initially, we expect that The MYnd Analytics Center will offer two benefits to consumers and prescribers: 1) It will allow for easy scheduling and EEG administration in a central location, and 2) will provide a consistent high quality experience for all, while reducing physician workload.

 

We also intend to partner with key opinion leaders to drive visibility with the goal of prompting consumer, provider and military adoption. For example, George Carpenter, our Chief Executive Officer, was a panelist on the November 2015 Brain Futures Forum moderated by Tom Insel, Director of the National Institute of Mental Health, and is scheduled to participate in a similar expert panel at the March 2016 National Council for Behavioral Health.

 

Commercial Adoption Plan

 

As a result of the responses to our October 2015 marketing initiative, and due to the lead time required to conduct research with the military, the Company intends to commence a commercial study focused on our local Southern California market. With several military bases and a high concentration of veterans in the region, we believe we are well positioned to recruit enrollees into our Southern California Clinical Study (the “SoCal Study”). This project will be led by a prominent mental health researcher, Dan V. Iosifescu, MD, Director of the Mood and Anxiety Disorders Program and Associate Professor of Psychiatry and Neuroscience at the Icahn School of Medicine at Mount Sinai, New York. The study protocol is substantially similar to that used for the Walter Reed PEER Trial with similar endpoints. The study protocol has been reviewed and approved by the Western Institutional Review Board (“WIRB”). We anticipate enrolling 468 subjects into the study and tracking each of them for twelve weeks. We also anticipate performing an interim review when approximately 50% of the enrolled subjects have been treated. We estimate that this project will take between 18 and 24 months to complete and will cost approximately $1.5 million. We currently do not have the funds necessary to complete this study, and will need to raise additional funds within the requisite period of time to successfully complete the study.

 

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As we are recruiting for the SoCal Study, we also will seek to generate media coverage and demand from regular patients. If we are able to secure sufficient additional financing, and our SoCal Study is successful, we intend to expand our direct-to-consumer marketing to have a presence in the top 10 metro areas in the United States. We also intend to develop a consumer-facing mobile app (web/ iOS/ Android), which when ultimately introduced will seek to automate patient-reported outcomes and support patient engagement. If we are successful in increasing patient reported outcomes, we expect to be able to expand the PEER Online database, with the goal of improving its predictive accuracy.

 

Payer Reimbursement

 

We have been focused on invoicing payers to get reimbursement for EEG recordings, the conversion of analog EEG to a digital Quantitative EEG (QEEG), and ultimately, processing and delivering a PEER Report. To date, we still have limited experience with payer reimbursement and have only been successful in obtaining reimbursement for a few EEG recordings and QEEG conversions from certain payer organizations. Allowed reimbursement for the EEG and QEEG has averaged approximately $250 and $300 respectively, over the last 12 months. The PEER Report, which does not have a separate billing code yet, has not been reimbursed to date and we currently bill each patient $400 for this procedure.

 

United Healthcare issued an “emerging technology” approval for PEER Online in 2011, with guidance that PEER technology was one clinical study away from full reimbursement approval. We anticipate, but cannot guarantee, that the SoCal Study will satisfy United Healthcare’s requirement for an additional study, thereby permitting the potential for full reimbursement for PEER Reports. However, even if our SoCal study is successful, there is no guarantee that it will satisfy United Healthcare’s requirement for an additional study, or even if it does, that United Healthcare will approve full reimbursement for PEER Reports, if at all. If our efforts are successful, we believe that payers could receive substantial benefit by encouraging the use of PEER Online, as they could benefit from a savings on medical expenses for patients who are successfully treated for their behavioral disorders.

 

One of the key elements in obtaining payer reimbursement is to become a registered CMS (Medicare/ Medicaid) provider. We have applied to become an accredited provider to CMS as an independent diagnostic testing facility, although our efforts may not be successful. Even if our application to become a registered CMS provider is approved, there is no guarantee that PEER Reports will be reimbursed.

 

Financial Operations Overview

 

Critical Accounting Policies and Significant Judgments and Estimates

 

This management’s discussion and analysis of financial condition and results of operations is based on our unaudited condensed consolidated financial statements, which have been prepared in accordance with U.S. GAAP. The preparation of these unaudited condensed consolidated 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.

 

Our significant accounting policies are described in Note 2 to our unaudited condensed consolidated financial statements included elsewhere in this report. We believe the following critical accounting policies reflect our more significant estimates and assumptions used in the preparation of our unaudited condensed consolidated financial statements.

 

Discontinued Operation

 

Due to our cessation of our Clinical Services operation as described in Note 3 to our unaudited condensed consolidated financial statements, we have segregated the revenues and expenses associated with the Clinical Services and accounted for them as discontinued operations.

 

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Revenue Recognition

 

We have generated limited revenues since our inception. Revenues for our Neurometric Service product are recognized when a PEER Report is delivered to a Client-Physician.

 

Stock-based Compensation Expense

 

Stock-based compensation expense, which is a non-cash charge, results from stock option grants. Compensation cost is measured at the grant date based on the calculated fair value of the award. We recognize stock-based compensation expense on a straight-line basis over the vesting period of the underlying option. The amount of stock-based compensation expense expected to be amortized in future periods may decrease if unvested options are subsequently cancelled or may increase if future option grants are made.

 

Long-Lived Assets and Intangible Assets

 

Property and equipment and intangible assets are reviewed for impairment whenever events or changes in circumstances indicate the carrying value of the assets may not be recoverable. If the Company determines that the carrying value of the asset is not recoverable, a permanent impairment charge is recorded for the amount by which the carrying value of the long-lived or intangible asset exceeds its fair value. Intangible assets with finite lives are amortized on a straight-line basis over their useful lives of ten years.

 

Derivative accounting for convertible debt and warrants

 

The Company evaluates all of its agreements to determine if such instruments have derivatives or contain features that qualify as embedded derivatives. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported in the consolidated statements of operations. For stock-based derivative financial instruments, the Company uses a weighted average Black-Scholes option pricing model to value the derivative instruments at inception and on subsequent valuation dates. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is evaluated at the end of each reporting period. Derivative instrument liabilities are classified in the balance sheet as current or non-current based on whether or not net-cash settlement of the derivative instrument could be required within 12 months of the balance sheet date. As of September 30, 2015, the Company’s only derivative financial instruments were a series of convertible notes having a beneficial conversion feature based on the conversion price of the note relative to the market price of a share of Common Stock on the valuation date. See Notes 4 & 5.

 

Results of Operations for the three months ended December 31, 2015 and 2014

 

Our operations consist solely of our Neurometric Services business which is focused on the delivery of PEER Reports that enable psychiatrists and other physicians/prescribers to make more informed, patient-specific decisions when treating individual patients for behavioral (psychiatric and/or addictive) disorders based on the patient’s own physiology.

 

The following table presents consolidated statement of operations data for each of the periods indicated as a percentage of revenues.

 

   Three months ended 
   December 31, 
   2015   2014 
         
Revenues   100%   100%
Cost of revenues   4    5 
Gross profit   96    95 
Research   92    105 
Product development   500    1,082 
Sales and marketing   499    395 
General and administrative expenses   1,527    1,946 
Operating loss   (2,522)   (3,433)
Other income (expense), net   (11,444)   (416)
Net expense before Discontinued Operations   (13,966)   (3,849)
Loss from Discontinued Operations   (7)   (4)
Net loss   (13,973)%   (3,853)%

 

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Revenues

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Neurometric Service Revenues  $24,700   $22,700    9%

 

The number of third party paid PEER Reports delivered as part of our Neurometric Services business increased to 58 for the three months ended December 31, 2015, up from 54 for the same period in the prior year. The change was due to social media advertising. Our standard price per PEER Report is $400 for our commercial patients plus the fee for Company recorded EEGs and any ancillary services. The average revenue was $410 per PEER Report for the quarter ended December 31, 2015. The total numbers of free PEER Reports processed were 5 and 1 for the quarters ended December 31, 2015 and 2014 respectively. These free PEER Reports are used for training, database-enhancement and compassionate-use purposes.

 

Cost of Revenues

  

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Cost of revenues               
Neurometric Services  $1,200   $1,100    9%

 

The cost of Neurometric Services revenues consisting of payroll costs (including stock-based compensation) and consulting costs, which were as follows:

  

   Three months ended 
   December 31, 
Key Expense Categories  2015   2014   Change 
(1)      Consulting fees   1,200    1,100    100 
Total Costs of Revenues  $1,200   $1,100   $100 

 

Consulting costs associated with the processing of second generation PEER Reports are between $10 and $60 per report. We expect the cost of revenues to decrease as a percentage of revenues as we improve our operating efficiency and increase the automation of certain processes.

 

Comparing the three months ended December 31, 2015 with the corresponding period in 2014:

 

(1)  Consulting fees increased slightly for the quarter ended December 31, 2015 as we processed more EEGs with in-house resources.

 

Research

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Research               
Neurometric Services  $22,700   $23,800    (5)%

 

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Research expenses consist of payroll costs (including stock-based compensation), consulting fees and other miscellaneous costs which were as follows:

 

   Three months ended 
   December 31, 
Key Expense Categories  2015   2014   Change 
(1)      Salary and benefit costs  $10,400   $10,400   $- 
(2)      Consulting fees   10,000    10,000    - 
(3)      Other miscellaneous costs   2,300    3,400    (1,100)
Total Research  $22,700   $23,800   $(1,100)

 

Comparing the three months ended December 31, 2015 with the corresponding period in 2014:

 

(1)Salary and benefit costs, which are solely comprised of stock-based compensation stayed the consistent for the 2015 and 2014 periods; and

 

(2)Consulting costs remained the same for both periods as we have a consulting agreement with Dr. Schiller for the medical monitoring of the clinical trials, the training of clinical trial investigators and new PEER Online users. Additionally Dr. Schiller is also advising the Company on clinical trial design and product development; and

 

(3)Other miscellaneous costs for 2015 and 2014 periods were substantially similar.

 

Product Development

  

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Product Development               
Neurometric Services  $123,400   $245,500    (50)%

 

Product Development expenses consist of payroll costs (including stock-based compensation), consulting fees, system development costs, travel and miscellaneous costs which were as follows:

 

   Three months ended 
   December 31, 
Key Expense Categories  2015   2014   Change 
(1)     Salaries and benefit costs  $106,100   $118,500   $(12,400)
(2)     Consulting fees   3,000    101,500    (98,500)
(3)     System development costs   4,400    19,000    (14,600)
(4)     Other miscellaneous costs   9,900    6,500    3,400 
Total Product Development  $123,400   $245,500   $(122,100)

 

Comparing the three months ended December 31, 2015 with the corresponding period in 2014:

 

(1)Salaries and benefits decreased by a net $12,500 in the quarter ended December 31, 2015; approximately half of this decrease, $6,600, related to stock compensation which became fully amortized during this three month period; the balance $5,900 was largely related to a vacation expense adjustment; and

(2)Consulting fees decreased by $98,500 for the quarter ended December 31, 2015, due to the Walter Reed Trial being on hold. Consequently, we reduced the expenditure on our Clinical Research Organization and released clinical trial coordinators who were contracted through the Henry Jackson Foundation to work on the trial; and

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(3)System development and maintenance costs decreased in the quarter ended December 31, 2015, due to the stage in the development cycle and to conserve cash; in 2014 system development and maintenance costs were elevated due to further development of our Salesforce.com based applications including the development of a patient referral portal to handle incoming inquiries, the development of a system dashboard and the migration of our data to a more robust and secure hosting service operated by Microsoft; and

(4)Other miscellaneous expenses increased marginally by $3,400 in the quarter ended December 31, 2015, due to renewal of the FDA Medical device user fee.

 

Sales and Marketing

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Sales and Marketing               
Neurometric Services  $123,200   $89,700    37%

 

Sales and marketing expenses associated with our Neurometric Services business consist primarily of payroll and benefit costs, including stock-based compensation, advertising and marketing, consulting fees and miscellaneous expenses. The reason for the change in these expenses is discussed below.

 

   Three months ended 
   December 31, 
Key Expense Categories  2015   2014   Change 
(1)    Salaries and benefit costs  $35,200   $37,000   $(1,800)
(2)    Consulting fees   33,100    30,000    3,100 
(3)    Advertising and marketing costs   48,400    20,700    27,700 
(4)    Other miscellaneous costs   6,500    2,000    4,500 
Total Sales and marketing  $123,200   $89,700   $33,500 

 

Comparing the three months ended December 31, 2015 with the corresponding period in 2014:

 

(1)Salaries and benefits for the quarter ended December 31, 2015, decreased by $1,800 as some stock compensation had become fully amortized;

(2)Consulting fees for the quarter ended December 31, 2015, increased by $3,100 as we engaged a consulting firm to assist with the configuration of patient-lead automation technology. The balance of the expenditure is associated with our engagement of Decision Calculus Associates (“DCA”) to lead our marketing efforts. The DCA fees have remained consistent for the 2015 and 2014 periods;

 

(3)Advertising and marketing expenses increased for the quarter ended December 31, 2015, by $27,700; of this increase approximately $22,000 was due to social media advertising focused on the Southern California market which has resulted in an increase in lead generation. The balance of the increase was a payment to a media consultant for the placement of a public relations opportunity on the Fox News program “Varney & Company”. For the quarter ended December 31, 2014, expenditures we had hired a public relations firm and an advertising agency to advise and assist in raising the awareness of our technology.

(4)Miscellaneous expenditures increased for the quarter ended December 31, 2015, by approximately $4,500 as we subscribed for a lead-automation application to assist with the efficient handling of leads generated by our social media advertising campaign. For the quarter ended December 31, 2014, expenses were largely related to travel to attend a conference.

 

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General and administrative

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
General and administrative               
Neurometric Services  $377,100   $441,800    (15)%

 

General and administrative expenses for our Neurometric Services business are largely comprised of payroll and benefit costs, including stock-based compensation, legal fees, other professional and consulting fees, patent costs, general administrative and occupancy costs, dues and subscriptions, conference, travel and miscellaneous costs. The reason for the change in these expenses is discussed below.

  

   Three months ended 
   December 31, 
Key Expense Categories  2015   2014   Change 
(1)     Salaries and benefit costs  $175,600   $179,800   $(4,200)
(2)     Legal fees   38,100    52,800    (14,700)
(3)     Other professional and consulting fees   50,000    50,000    - 
(4)     Patent costs   7,000    27,800    (20,800)
(5)     Marketing and investor relations costs   3,900    45,400    (41,500)
(6)     Conference and travel costs   17,500    14,800    2,700 
(7)     Dues & subscriptions fees   23,500    18,300    5,200 
(8)     General administrative and occupancy costs   61,500    52,900    8,600 
Total General and administrative costs  $377,100   $441,800   $(64,700)

 

Comparing the three months ended December 31, 2015 with the corresponding period in 2014:

 

(1)Salaries and benefit expenses decreased by $4,200 for the quarter ended December 31, 2015; this was primarily due to a net $9,000 reduction in stock compensation as stock options became fully vested; this decrease in expenditure was offset by a minor increase in payroll taxes. Payroll expenditures for the two periods remained unchanged.

(2)Legal fees showed a net decrease of $14,700 for the quarter ended December 31, 2015, which was primarily due to the reduction in legal fees associated with our lobbying efforts which decreased by $18,000. This was partially offset by a minor increase in legal fees associated with our fund raising activities.

(3)Other professional and consulting fees remained unchanged for the 2015 and 2014 periods;

(4)Patent costs decreased by $20,800 due to the timing and volume of patent applications and maintenance costs;

(5)Marketing and investor relations costs decreased by $41,500 for the quarter ended December 31, 2015, as we did not engage an investor relations firm. For the quarter ended December 31, 2014, costs primarily included $22,500 for the engagement RedChip Companies, Inc. and $21,600 which was the fair value of the warrants given to RedChip for their investor relations services.

(6)Conference and travel costs increased by $2,700 for the 2015 as management traveled to New York for the Annual Stockholders Meeting;

 

(7)Dues and subscription cost increased by $5,200 for 2015 period due to transfer agent costs for the Annual Stockholders Meeting; and

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(8)General administrative and occupancy expenses increased by $8,600 in the quarter ended December 31, 2015, largely due to printing costs associated with the annual meeting and a slight increase in insurance.

 

Other Expense

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Other Expense               
Neurometric Services expense, net  $(2,826,300)  $(91,300)   3094.6%

 

For the three months ended December 31, 2015 and 2014 net non-operating Other Income (Expense) for Neurometric Services, and the primary reason for the change in these expenses for the periods, were as follows:

 

·For the quarter ended December 31, 2015, we incurred non-cash interest charges totaling $499,500 of which $38,900 was accrued interest on our convertible promissory notes at 5% per annum; the balance of $460,600 was comprised of warrant discount amortization and warrant and note conversion derivative liability charges; only $700 was for actual net interest paid in cash during the period. For the quarter ended December 31, 2014, we incurred non-cash interest charges totaling $50,600 of which $20,700 was accrued interest on our convertible promissory notes at 5% per annum; the balance was comprised of $29,900 of beneficial conversion discount amortization on convertible promissory notes; only $800 was for actual net interest paid in cash during the period.

 

·Under ASC 815, all derivative instruments are required to be measured periodically at fair value and the resultant change in fair value of non-hedging derivative instruments are to be recognized in current earnings. For the quarter ended December 31, 2015, we revalued our derivative liabilities for the beneficial conversion feature of the convertible promissory notes which resulted in a net non-cash gain on derivative liabilities of $11,300. For the quarter ended December 31, 2014, we revalued our derivative liabilities for the promissory note beneficial conversion feature which resulted in a non-cash loss on derivative liabilities of $39,900.

·For the quarter ended December 31, 2015, we incurred a non-cash loss of $2,337,400 as a result of the accounting for the extinguishment of debt. The debt extinguishment accounting was precipitated by the changes in the fair value of existing notes pursuant to the Amended Note & Warrant Purchase Agreement which extended the maturity date of the existing Notes and provided 100% warrant coverage of the shares underlying the Notes.  No similar transaction occurred in the quarter ended December 31, 2014.

 

Net Loss from Continuing Operations

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Neurometric Services net loss  $(3,449,500)  $(873,700)   295%

 

The net loss for our Neurometric Services business of $3.4 million for the three months ended December 31, 2015, compared to the approximately $0.9 loss in the prior year is primarily due to the large non-cash accounting charges in our Other Income (Expense) expense category described above.

 

The Company’s operating loss of $0.6 million for the three months ended December 31, 2015, is a reduction of $0.2 million from the $0.8 million loss in the prior year. This is due to substantial reductions in costs across all cost centers. These reductions were due in part to the Walter Reed Trial being put on hold as well as continuing efforts to reduce expenditures across the board.

  

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Net loss from Discontinued Operations:

 

   Three months ended   Percent 
   December 31,   Change 
   2015   2014     
Clinical Services net loss   (1,800)   (900)   100%

 

Our discontinued Clinical Services had a net loss for the three months ended December 31, 2015, due to records storage costs.

 

Liquidity and Capital Resources

 

Since our inception, we have incurred significant losses.  As of December 31, 2015, we had an accumulated deficit of approximately $66.0 million; at December 31, 2014, our accumulated deficit was approximately $60.1 million.  We have not yet achieved profitability and anticipate that we will continue to incur net losses for the foreseeable future. Our management expects that with our proposed clinical trials, sales and marketing and general and administrative costs, our expenditures will continue to grow and, as a result, we will need to generate significant product revenues to achieve profitability. We may never achieve profitability.

 

As of December 31, 2015, we had $823,800 in cash and cash equivalents and a working capital deficit of approximately $0.74 million. This is compared to our cash position of $22,700 in cash and cash equivalents as of December 31, 2014, and a working capital deficit of $1.05 million. The decrease in our working capital deficit is primarily due to our increased cash on hand and the reclassification of our derivative liabilities as long-term liabilities.

 

The Company has been funded through multiple rounds of private placements primarily from members of our Board of Directors or their affiliates. For details please refer to Item 2. Private Placement Transactions and Notes 4 and 7 to the Unaudited Condensed Consolidated Financial Statements.

 

Since September 22, 2014, we have raised $4 million of Secured Convertible Notes. These Notes are automatically convertible upon an equity offering of $5 million or more, or can be voluntarily converted at the option of the Noteholder 15 days before the maturity date of December 31, 2017. We do not now have, and, unless the notes are automatically or voluntarily converted, are not likely to have on the maturity date thereof, the cash necessary to repay the Notes when they become due.  If we are unable to repay the Notes when due, the holders could pursue any remedies available to them, which could result in a complete foreclosure on their security interest in the assets of the Company.

 

Operating Capital and Capital Expenditure Requirements

 

Our continued operating losses and limited capital raise substantial doubt about our ability to continue as a going concern. We have limited ability to meet our current obligations as they become due and we are in arrears with certain of our creditors.  Because of our substantial indebtedness, we are insolvent and need to raise additional funds and restructure our debt in order to continue our operations. Our financial statements include an opinion of our auditors that our continued operating losses and limited capital raise substantial doubt about our ability to continue as an ongoing concern.

 

We need additional funds to conduct our SoCal clinical trial and to continue our operations and will need substantial additional funds before we can implement our initiatives to increase demand for our PEER Online services. We are continuing to explore additional sources of capital; however, we do not know whether additional funding will be available on acceptable terms, or at all, especially given the economic conditions that currently prevail. Furthermore, any additional equity funding may result in significant dilution to existing stockholders and, if we incur debt financing, a substantial portion of our operating cash flow may be dedicated to the repayment of principal and interest on such indebtedness, thus limiting funds available for our business activities.

 

We expect to continue to incur operating losses in the future. We anticipate that our cash on hand and cash generated through our operations will not be sufficient to fund our operations beyond the next few months. If adequate funds are not available, it would have a material adverse effect on our business, financial condition and/or results of operations, and could cause us to have to cease operations.

 

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The amount of capital we will need to conduct our operations and the time at which we will require such capital may vary significantly depending upon a number of factors, such as:

 

·the amount and timing of costs we incur in connection with our clinical trials and product development activities, including enhancements to our PEER Online database and costs we incur to further validate the efficacy of our technology;
·the amount and timing of costs we incur in connection with the expansion of our commercial operations, including our selling and marketing efforts;
·whether we incur additional consulting and legal fees in our efforts to conducting a Non-Significant Risk study under an FDA requirements which will enable us to obtain a 510(k) clearance from the FDA; and
·if we expand our business by acquiring or investing in complimentary businesses.

 

Sources of Liquidity

 

Since our inception, substantially all of our operations have been financed from equity and debt financings. From June, 2010, through to November, 2012, we raised $9.6 million through five rounds of private placements of convertible secured notes with 34 accredited investors. All the aforementioned notes were converted, along with the interest thereon, by September 30, 2013. Of these notes, $5.6 million, or 58% in principal amount, were purchased by directors, officers and affiliates of the Company.

 

Since February, 2013, through July 2014 we raised $4.8 million through the private placement of equity at $0.25 per share of Common Stock. Of these equity offerings $2.1 million, or 44%, were purchased by directors, officers and affiliates of the Company.

 

Between September 2014, and December 2015 we raised $4.0 million through the private placement of secured convertible debt with an exercise price of $0.05 per share of Common Stock and the issuance of 100% warrant coverage on the common stock underlying the secured convertible debt exercisable at $0.05 per share. Of this funding $3.5 million, or 87%, was provided by directors and affiliates of the Company.

 

For details of these financings please See Note 4 and Note 7 of the Notes to the Unaudited Condensed Consolidated Financial Statements.

 

Cash Flows

 

Net cash used in operating activities was $607,500 for the quarter ended December 31, 2015, compared to $793,700 for the same period in 2014.  Of the net $179,000 reduction in cash used for operations between the two periods: $58,000 was due to the change in accounts payable as we paid down some accrued legal fees in December 2015; the balance, approximately $12,000 was largely due to reductions in operational and clinical trial expenditures during the quarter ended December 31, 2015.

 

The Company had no investing activities during both quarters ended December 31, 2015 and 2014.

 

Financing activities for the quarter ended December 31, 2015, consisted of $1 million in cash proceeds received from private placements pursuant to the Second Amended Note & Warrant Purchase Agreement with two of our affiliated investors as follows: $250,000 from John Pappajohn, a director, and $750,000 from RSJ PE, of which Michal Votruba, a director, is a director.

 

Cash used in discontinued operations for the quarter ended December 31, 2015, was $3,400, which was for the payout of NTC’s accrued payroll liabilities and the cost of medical record storage. For the same period ended December 31, 2014, the net cash used was $10,500 which was for the same purposes as the quarter ended December 31, 2015.

 

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Income Taxes

 

Current and non-current deferred taxes have been recorded on a net basis in the accompanying balance sheet. As of September 30, 2015, the Company had Federal net operating loss carryforwards of approximately $32.8 million and State net operating loss carryforwards of approximately $55.6 million. Both the Federal and State net operating loss carryforwards will begin to expire in 2035. Our ability to utilize net operating loss carryforwards may be limited in the event that a change in ownership, as defined in the Internal Revenue Code, occurs in the future. The Company has placed a valuation allowance against the deferred tax assets in excess of deferred tax liabilities due to the uncertainty surrounding the realization of such excess tax assets. Management periodically evaluates the recoverability of the deferred tax assets and the level of the valuation allowance. At such time as it is determined that it is more likely than not that the deferred tax assets are realizable, the valuation allowance will be reduced accordingly.

  

Off-Balance Sheet Arrangements

 

We have no off-balance sheet arrangements or financing activities with special purpose entities.

 

Item 3.         Quantitative and Qualitative Disclosures about Market Risk.

 

Not applicable.

 

Item 4.        Controls and Procedures.

 

Disclosure Controls and Procedures

 

Our management, including our principal executive officer (PEO) and principal financial officer (PFO), conducted an evaluation of the effectiveness of our disclosure controls and procedures, as defined by paragraph (e) of Exchange Act Rule 13a-15, as of December 31, 2015, the end of the period covered by this report.  Based on this evaluation, our PEO and PFO concluded that our disclosure controls and procedures were effective as of December 31, 2015.

 

A “material weakness” is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

 

A “significant deficiency” is a deficiency, or combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of our financial reporting.

 

To the knowledge of our management, including our PEO and PFO, there were none of the aforementioned deficiencies leading to a misstatement of our results of operations for the three months ended December 31, 2015, or statement of financial position as of December 31, 2015.

 

Changes in Internal Control Over Financial Reporting

 

During the quarterly period ending December 31, 2015, there were no changes in our internal controls over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

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PART II

OTHER INFORMATION

 

Item 1.        Legal Proceedings

 

Please see Note 9 of our Notes to Unaudited Condensed Consolidated Financial Statements for a description of our litigation with Leonard Brandt, which disclosure is incorporated herein by reference.

 

Item 1A.        Risk Factors

 

There have been no material changes to the risk factors included in the Risk Factors section in our Annual Report on Form 10-K for the year ended September 30, 2015.

 

Item 2.           Unregistered Sales of Equity Securities and Use of Proceeds

 

Private Placement Transactions

 

From September 22, 2014, through December 28, 2015, the Company entered into the Note Purchase and Warrant Purchase Agreements in connection with a bridge financing, with 16 accredited investors. Pursuant to the Second Amended Note & Warrant Purchase Agreement, the Company issued 27 secured convertible promissory notes and warrants in the aggregate principal amount of $4.0 million.

 

Refer to Note 4. Convertible Debt and Equity Financings and Note 7. Related Party Transactions of our Unaudited Condensed Consolidated Financial Statements for details of the abovementioned transaction, which detail is incorporated herein by reference to such notes.

 

The issuance of the securities described above was not registered under the Securities Act.  No general solicitation or advertising was used in connection with the issuance.  In making the issuance to accredited investors without registration under the Securities Act, the Company relied upon the exemption from registration contained in Section 4(a)(2) of the Securities Act and/or Regulation D thereunder.

 

Item 6.            Exhibits

 

The following exhibits are filed as part of this report or incorporated by reference herein:

 

Exhibit

Number

  Exhibit Title
10.27   Form of Second Amended and Restated Note and Warrant Purchase Agreement.
10.28   Form of Amended and Restated Secured Convertible Promissory Note.
10.29   Form of Warrant.
10.30   Form of Amended and Restated Security Agreement.
10.31   Form of Amended and Restated Registration Rights Agreement.
31.1   Certification of Principal Executive Officer pursuant to Securities Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002.
31.2   Certification of Principal Financial Officer pursuant to Securities Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002.
32.1   Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002.
101.INS   XBRL Instance Document
101.SCH   XBRL Taxonomy Extension Schema
101.CAL   XBRL Taxonomy Extension Calculation Linkbase
101.DEF   XBRL Taxonomy Extension Definition Linkbase
101.LAB   XBRL Taxonomy Extension Label Linkbase
101.PRE   XBRL Taxonomy Extension Presentation Linkbase

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  MYnd Analytics, Inc.
   
Date: February 16, 2016   /s/ George Carpenter
  By: George Carpenter
  Its: Chief Executive Officer (Principal Executive Officer)
     
    /s/ Paul Buck
  By: Paul Buck
  Its: Chief Financial Officer (Principal Financial Officer)

 

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