Biomerica Inc 10-Q for FY2025 Q2
Biomerica Inc (BMRA)
About this 10-Q
Biomerica Inc filed this 10-Q on January 14, 2025, covering the quarter ended November 30, 2024 (FY2025 Q2).
Headline figures
Quarter ended November 30, 2024, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $1.64M
- up 4.4% from $1.57M a year earlier
- Net loss
- $950K
- compared with a net loss of $1.51M a year earlier
- Diluted EPS
- -$0.06
- compared with -$0.09 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
FOR
THE QUARTERLY PERIOD ENDED
Commission
File Number:
(Exact name of registrant as specified in its charter)
| (State
or other jurisdiction of incorporation of organization) |
(I.R.S.
Employer Identification No.) |
| (Address of principal executive offices) | (Zip Code) |
REGISTRANT’S TELEPHONE NUMBER:
Securities registered under Section 12(b) of the Exchange Act:
(Title of each class)
(Name of each exchange on which registered)
(Trading symbol)
Indicate by check whether the registrant (1) 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.
Indicate by check mark whether the registrant has submitted electronically, every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (paragraph 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).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,”, “accelerated filer,”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ | |
| Smaller
reporting company | ||
| Emerging
growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes ☐ No
The number of shares of the registrant’s common stock outstanding as of January 14, 2025, was .
BIOMERICA, INC.
INDEX
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BIOMERICA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
| November 30, 2024 | May 31, 2024 | |||||||
| Assets | ||||||||
| Current Assets: | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Accounts receivable, net | ||||||||
| Inventories, net | ||||||||
| Prepaid expenses and other | ||||||||
| Total current assets | ||||||||
| Property and equipment, net of accumulated depreciation and amortization of $ | ||||||||
| Right-of-use assets, net of accumulated amortization of $ | ||||||||
| Investments | ||||||||
| Intangible assets, net of accumulated amortization of $ | ||||||||
| Other assets | ||||||||
| Total Assets | $ | $ | ||||||
| Liabilities and Shareholders’ Equity | ||||||||
| Current Liabilities: | ||||||||
| Accounts payable and accrued expenses | $ | $ | ||||||
| Accrued compensation | ||||||||
| Advances from customers | ||||||||
| Lease liabilities, current portion | ||||||||
| Total current liabilities | ||||||||
| Lease liabilities, net of current portion | ||||||||
| Total Liabilities | ||||||||
| Commitments and contingencies (Note 6) | ||||||||
| Shareholders’ Equity: | ||||||||
| Preferred stock, Series A 5% convertible, $ par value, shares authorized, issued and outstanding as of November 30, 2024 and May 31, 2024 | ||||||||
| Preferred stock, undesignated, par value, shares authorized, issued and outstanding as of November 30, 2024 and May 31, 2024 | ||||||||
| Preferred stock value | ||||||||
| Common stock, $ par value, shares authorized, and issued and outstanding at November 30, 2024 and May 31, 2024, respectively | ||||||||
| Additional paid-in-capital | ||||||||
| Accumulated other comprehensive loss | ( | ( | ) | |||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Total Shareholders’ Equity | ||||||||
| Total Liabilities and Shareholders’ Equity | $ | $ | ||||||
The accompanying notes are an integral part of these statements.
| 1 |
BIOMERICA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
AND COMPREHENSIVE LOSS (UNAUDITED)
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| For the Three Months Ended November 30, | For the Six Months Ended November 30, | |||||||||||||||
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Net sales | $ | $ | $ | $ | ||||||||||||
| Cost of sales | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Gross profit | ||||||||||||||||
| Operating expenses: | ||||||||||||||||
| Selling, general and administrative | ||||||||||||||||
| Research and development | ||||||||||||||||
| Total operating expenses | ||||||||||||||||
| Loss from operations | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Other income: | ||||||||||||||||
| Interest and dividend income | ||||||||||||||||
| Total other income | ||||||||||||||||
| Loss before income taxes | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Benefit (provision) for income taxes | ( | ) | ( | ) | ||||||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
| Basic net loss per common share | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
| Diluted net loss per common share | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
| Weighted average number of common and common equivalent shares: | ||||||||||||||||
| Basic | ||||||||||||||||
| Diluted | ||||||||||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
| Other comprehensive income (loss), net of tax: | ||||||||||||||||
| Foreign currency translation | ( | ) | ( | ) | ||||||||||||
| Comprehensive loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
The accompanying notes are an integral part of these statements.
| 2 |
BIOMERICA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY (UNAUDITED)
For the Three and Six Months Ended November 30, 2023
| Shares | Amount | Capital | Loss | Deficit | Equity | |||||||||||||||||||
| Common Stock | Additional Paid-in | Accumulated Other Comprehensive | Accumulated | Total Stockholders’ | ||||||||||||||||||||
| Shares | Amount | Capital | Loss | Deficit | Equity | |||||||||||||||||||
| Balances at May 31, 2023 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
| Foreign currency translation | - | |||||||||||||||||||||||
| Share-based compensation | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balances at August 31, 2023 | ( | ) | ( | ) | ||||||||||||||||||||
| Foreign currency translation | - | |||||||||||||||||||||||
| Share-based compensation | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balances at November 30, 2023 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
For the Three and Six Months Ended November 30, 2024
| Common Stock | Additional Paid-in | Accumulated Other Comprehensive | Accumulated | Total Stockholders’ | ||||||||||||||||||||
| Shares | Amount | Capital | Loss | Deficit | Equity | |||||||||||||||||||
| Balances at May 31, 2024 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
| Foreign currency translation | - | ( | ) | ( | ) | |||||||||||||||||||
| Share-based compensation | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balances at August 31, 2024 | ( | ) | ( | ) | ||||||||||||||||||||
| Balance | ( | ) | ( | ) | ||||||||||||||||||||
| Foreign currency translation | - | ( | ) | ( | ) | |||||||||||||||||||
| Net proceeds from ATM | ||||||||||||||||||||||||
| Share-based compensation | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balances at November 30, 2024 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
| Balance | ( | ) | ( | ) | ||||||||||||||||||||
The accompanying notes are an integral part of these statements.
| 3 |
BIOMERICA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
| 2024 | 2023 | |||||||
| For the Six Months Ended November 30, | ||||||||
| 2024 | 2023 | |||||||
| Cash flows from operating activities: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Depreciation and amortization | ||||||||
| Provision for allowance for credit losses | ( | ) | ||||||
| Inventory reserve | ( | ) | ||||||
| Share-based compensation | ||||||||
| Amortization of right-of-use asset | ||||||||
| Changes in assets and liabilities: | ||||||||
| Accounts receivable | ( | ) | ( | ) | ||||
| Inventories | ||||||||
| Prepaid expenses and other | ( | ) | ||||||
| Other assets | ( | ) | ||||||
| Accounts payable and accrued expenses | ( | ) | ( | ) | ||||
| Accrued compensation | ( | ) | ( | ) | ||||
| Reduction in lease liabilities | ( | ) | ( | ) | ||||
| Net cash used in operating activities | ( | ) | ( | ) | ||||
| Cash flows from investing activities: | ||||||||
| Purchases of property and equipment | ( | ) | ||||||
| Expenditures related to intangibles | ( | ) | ( | ) | ||||
| Net cash used in investing activities | ( | ) | ( | ) | ||||
| Cash flows from financing activities: | ||||||||
| Gross proceeds from sale of common stock | ||||||||
| Costs from sale of common stock | ( | ) | ||||||
| Deferred offering costs | ||||||||
| Net cash provided by financing activities | ||||||||
| Effect of exchange rate changes on cash | ( | ) | ||||||
| Net decrease in cash and cash equivalents | ( | ) | ( | ) | ||||
| Cash and cash equivalents at beginning of year | ||||||||
| Cash and cash equivalents at end of period | $ | $ | ||||||
| Supplemental Disclosure of Cash Flow Information: | ||||||||
| Cash paid during the period for: | ||||||||
| Income taxes | $ | $ | ||||||
| Non-cash investing and financing activities: | ||||||||
| Stock Issuance Receivable | $ | $ | ||||||
The accompanying notes are an integral part of these statements.
| 4 |
BIOMERICA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1: BASIS OF PRESENTATION
Biomerica, Inc. and its subsidiaries (which includes wholly-owned subsidiaries, Biomerica de Mexico and BioEurope GmbH) is a global biomedical technology company that develops, patents, manufactures and markets advanced diagnostic and therapeutic products used at the point-of-care (physicians’ offices and over-the-counter through drugstores and online) and in hospital/clinical laboratories for detection and/or treatment of medical conditions and diseases. Our diagnostic test products utilize immunoassay technology to analyze blood, urine, nasal, or fecal material from patients in the diagnosis of various diseases, food intolerances and other medical complications, and to measure the level of specific hormones, antibodies, antigens, or other substances, which may exist in the human body in extremely small concentrations. Our other existing products are primarily focused on gastrointestinal diseases, food intolerances, and certain esoteric tests. Company’s products are designed to enhance the health and well-being of people, while reducing total healthcare costs.
Our primary focus is the research, development, commercialization and in certain cases regulatory approval, of patented, diagnostic-guided therapy (“DGT”) products to treat gastrointestinal diseases, such as irritable bowel syndrome (“IBS”), and other inflammatory diseases. These products are directed at chronic inflammatory illnesses that are widespread, common, and address very large markets. Our inFoods® IBS product uses a simple blood sample and is designed to identify patient-specific foods that, when removed from the diet, may alleviate IBS symptoms such as pain, bloating, diarrhea, and constipation. Instead of broad and difficult to manage dietary restrictions, the inFoods® IBS product works by identifying specific foods that may be causing an abnormally high immune response in the patient. A food identified as positive, which is causing an abnormal immune response in the patient, is simply removed from the diet to help alleviate IBS symptoms.
Our existing medical diagnostic products are sold worldwide primarily in two markets: a) clinical laboratories and b) point-of-care (physicians’ offices and over-the-counter). Most of our products are Conformite Europeenne (“CE”) marked and/or sold for diagnostic use where they are registered by each country’s regulatory agency. In addition, some products are cleared for sale in the United States by the FDA.
The unaudited condensed consolidated financial statements herein have been prepared by management pursuant to the rules and regulations of the United States Securities and Exchange Commission (“SEC”). The accompanying unaudited condensed consolidated financial statements have been prepared under the presumption that users of the interim financial information have either read or have access to the audited consolidated financial statements for the latest fiscal year ended May 31, 2024. Accordingly, certain information and note disclosures normally included in financial statements prepared in accordance with United States generally accepted accounting principles (“GAAP”) have been condensed or omitted pursuant to such rules and regulations. In the opinion of management, all adjustments considered necessary for a fair presentation have been included. Operating results for the three and six months ended November 30, 2024 are not necessarily indicative of the results that may be expected for the fiscal year ending May 31, 2025. For further information, refer to the audited consolidated financial statements and notes thereto for the fiscal year ended May 31, 2024 included in the Company’s Annual Report on Form 10-K filed with the SEC on August 28, 2024. Management has evaluated all subsequent events and transactions through the date of filing this report.
NOTE 2: SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The condensed consolidated financial statements include the accounts of Biomerica, Inc. as well as its German subsidiary (BioEurope GmbH) and Mexican subsidiary (Biomerica de Mexico). All significant intercompany accounts and transactions have been eliminated in consolidation.
ACCOUNTING ESTIMATES
In order to prepare our consolidated financial statements in conformity with GAAP, we must make a number of estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. Such estimates and assumptions affect the reported amounts of revenues and expenses during the reporting period. Our estimates are based on historical experience and various other assumptions that we believe to be reasonable under the circumstances. Different assumptions or conditions may cause actual results to differ materially from these estimates. We monitor significant estimates made during the preparation of our financial statements on an ongoing basis. We believe our estimates and assumptions are reasonable under the current conditions; however, actual results may differ from these estimates under different future conditions.
We believe that the estimates and assumptions that are most important to the portrayal of our financial condition and results of operations, in that they require subjective or complex judgments, form the basis for the accounting policies deemed to be most critical to us. These relate to revenue recognition, bad debts, inventory overhead application, inventory reserves, lease liabilities, right-of-use assets and share-based compensation. We believe estimates and assumptions related to these critical accounting policies are appropriate under the circumstances; however, should future events or occurrences result in unanticipated consequences, there could be a material impact on our future financial conditions or results of operations. We suggest that our significant accounting policies be read in conjunction with the Management’s Discussion and Analysis of Financial Condition and Results of Operations of this Quarterly Report on Form 10-Q.
| 5 |
MARKETS AND METHODS OF DISTRIBUTION
The majority of the Company’s revenues come from the sale of products it manufactures in the U.S. and Mexico, with certain raw materials sourced from the U.S. Asia and other regions. The Company’s diagnostic business serves a diverse customer base that includes both domestic and international distributors, as well as hospitals, clinical laboratories, medical research institutions, pharmaceutical companies, wholesalers, physicians’ offices, and direct sales to consumers from its website. A significant portion of the Company’s revenues are derived from international sales.
The Company employs a Director of Sales and Marketing for Europe and South America, based in Germany, who has over 20 years of experience in diagnostics and life sciences. This individual’s international business experience and multilingual capabilities have facilitated strong relationships across Europe, Eastern Europe, Middle East, Latin America, Canada, and the U.S. The Company expects continued growth through the addition of new distributors and product lines in these regions.
The Company markets its diagnostic products through distributors, advertising in medical and trade journals, trade show exhibitions, direct mailings, and through its internal sales team. The two primary markets the Company targets are clinical laboratories and patient point-of-care testing.
LIQUIDITY AND GOING CONCERN
The
Company has incurred net losses and negative cash flows from operations and has an accumulated deficit of approximately $
On
July 21, 2020, the Company filed with the Securities and Exchange Commission (“SEC”) a Form S-3 shelf registration statement
and base prospectus which was declared effective by the SEC on September 30, 2020. The 2020 Shelf Registration Statement registered common
shares that could be issued by the Company in a maximum aggregate amount of up to $
On
January 22, 2021, the Company filed a prospectus supplement to the base prospectus included in a registration statement filed with the
SEC on July 21, 2020, and declared effective by the SEC on September 30, 2020, for purposes of selling up to $
During
the year ended May 31, 2023, the Company sold shares of its common stock at prices ranging from $ to $ pursuant to the
2021 ATM Offering, which resulted in gross proceeds of approximately $
On
March 7, 2023, the Company sold shares of common stock in a firm commitment public offering at a gross sales price of $
per share, with net total proceeds, after deducting issuance fees and expenses of $
As
part of our financing plan, on September 28, 2023, we filed a new “shelf” registration statement on Form S-3 with the SEC,
to replace the expiring S-3 that was filed in July 2020, which was declared effective on September 29, 2023, allowing the Company to
issue up to $
The Company intends to use the net proceeds from any funds raised through the ATM offering for general corporate purposes, including, but not limited to, sales and marketing activities, clinical studies and product development, acquisitions of assets, businesses, companies, or securities, capital expenditures, and working capital needs.
During
the six months ended November 30, 2024, the Company sold shares of its common stock at prices ranging from $ to $ pursuant
to the May 2024 ATM Offering, which resulted in gross proceeds of approximately $
Management assesses whether the Company has sufficient liquidity to fund its costs for the next twelve months from each financial statement issuance date to determine if there is a substantial doubt about the Company’s ability to continue as a going concern. The Company’s ability to continue as a going concern over the next twelve months is influenced by several factors, including:
| ● | Our need and ability to generate additional revenue from international opportunities and sales within the US of existing products, and from our new product launches; | |
| ● | Our need to access the capital and debt markets to meet current obligations and fund operations; | |
| ● | Our capacity to manage operating expenses and maintain or increase gross margins as we grow; | |
| ● | Our ability to retain key employees and maintain critical operations with a substantially reduced workforce; and | |
| ● | Certain SEC regulations that limit the amount of capital the Company can raise through issuance of its equity. |
Management has analyzed the Company’s cash flow requirements through February 2026 and beyond. Based on this analysis, we believe our current cash and cash equivalents are insufficient to meet our operating cash requirements and strategic growth objectives for the next twelve months.
To address our capital needs and sustain operations beyond the next year, we are actively pursuing strategies to increase sales, reduce expenses, sell non-core assets, seek additional financing through debt or equity, and seek other strategic alternatives. While we are committed to these plans, there is no assurance that these efforts will be successful or sufficient to meet our capital requirements.
As part of our efforts to reduce costs, we are executing significant cost-cutting measures to extend our cash runway and work towards increasing revenues to cover overhead costs. These measures included a workforce reduction of nearly 15% in July 2024 and a substantial reduction in other operating expenses. Additionally, we have successfully raised $567,000 in net proceeds from the May 2024 ATM offering, providing additional liquidity to support our operations.
These factors raise substantial doubt about the Company’s ability to continue as a going concern. Our future viability depends on the successful execution of our strategic plans, securing additional financing, and achieving profitable operations.
The Company’s consolidated financial statements as of November 30, 2024 were prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities and commitments in the normal course of business.
| 6 |
CONCENTRATION OF CREDIT RISK
The Company maintains cash balances at certain financial institutions in excess of amounts insured by federal agencies. From time to time, the Company has uninsured balances. The Company does not believe it is exposed to any significant credit risks from the financial institution.
The Company provides credit in the normal course of business to customers throughout the U.S. and in foreign markets. The Company performs ongoing credit evaluations of its customers and requires accelerated prepayment in some circumstances.
Consolidated
net sales were approximately $
For
the three months ended November 30, 2024, the Company had four key customers who are located in the Middle East, Asia and Europe, which
accounted for
As
of November 30, 2024 and May 31, 2024, total gross receivables were approximately $
For
the three months ended November 30, 2024, the Company had two key vendors which accounted for
As
of November 30, 2024 and May 31, 2024, the Company had two key vendors which accounted for
CASH AND CASH EQUIVALENTS
Cash and cash equivalents consist of demand deposits and money market accounts with original maturities of less than three months.
ACCOUNTS RECEIVABLE
The Company extends unsecured credit to its customers as part of its standard business practices. International customers are typically required to prepay until a credit history with the Company is established, at which point credit levels are determined based on various criteria. Initial credit limits for distributors are approved by designated officers or managers, while any increases require authorization from upper-level management.
The
Company adopted Accounting Standards Update (“ASU”) No. 2016-13, Financial Instruments – Credit Losses (codified
as Accounting Standards Codification (“ASC”) 326) on June 1, 2023. ASC 326 adds to U.S. GAAP the current expected credit
loss (“CECL”) model, a measurement model based on expected losses rather than incurred losses. Prior to the adoption of ASC
326, the Company evaluated receivables on a quarterly basis and adjusted the allowance for accordingly. Balances over
Occasionally, certain long-standing customers who routinely place large orders will have unusually large receivable balances relative to the total gross receivables. Management monitors the payments for these large balances closely and very often requires payment of existing invoices before shipping new sales orders.
As
of November 30, 2024 and May 31, 2024, the Company has established a reserve of approximately $
| 7 |
PREPAID EXPENSES AND OTHER
The Company occasionally prepays for items such as inventory, insurance, and other items. These items are reported as prepaid expenses and other, until either the inventory is physically received, or the insurance and other items are expensed.
As
of November 30, 2024 and May 31, 2024, the prepaids expenses were approximately $
INVENTORIES, NET
The Company values inventory at the lower of cost (determined using a combination of specific lot identification and the first-in, first-out methods) or net realizable value. Management periodically reviews inventory for excess quantities and obsolescence. Management evaluates quantities on hand, physical condition, and technical functionality as these characteristics may be impacted by anticipated customer demand for current products and new product introductions. The reserve is adjusted based on such evaluation, with a corresponding provision included in cost of sales. Abnormal amounts of idle facility expenses, freight, handling costs and wasted material are recognized as current period charges and the allocation of fixed production overhead is based on the normal capacity of the production facilities.
Net inventories are approximately the following:
SCHEDULE OF NET INVENTORIES
| November 30, 2024 | May 31, 2024 | |||||||
| Raw materials | $ | $ | ||||||
| Work in progress | ||||||||
| Finished products | ||||||||
| Total gross inventory | ||||||||
| Inventory reserves | ( | ) | ( | ) | ||||
| Net inventory | $ | $ | ||||||
Reserves
for inventory obsolescence are recorded as necessary to reduce obsolete inventory to estimated net realizable value or to specifically
reserve for obsolete inventory. As of November 30, 2024, and May 31, 2024, inventory reserves were approximately $
PROPERTY AND EQUIPMENT, NET
Property and equipment are stated at cost. Expenditures for additions and major improvements are capitalized. Repairs and maintenance costs are charged to operations as incurred. When property and equipment are sold, retired, or otherwise disposed of, the related cost and accumulated depreciation or amortization are removed from the accounts, and gains or losses from sales, retirements and dispositions are credited or charged to income.
Depreciation
and amortization are provided over the estimated useful lives of the related assets, ranging from
INTANGIBLE ASSETS, NET
Intangible assets include trademarks, product rights, technology rights and patents, and are accounted for based on ASC 350 Intangibles – Goodwill and Other. In that regard, intangible assets that have indefinite useful lives are not amortized but are tested annually for impairment or more frequently if events or changes in circumstances indicate that the asset might be impaired.
Intangible
assets are being amortized using the straight-line method over the useful life, not to exceed
The
Company assesses the recoverability of these intangible assets by determining whether the amortization of the asset’s balance over
its remaining life can be recovered through projected undiscounted future cash flows. The Company uses a qualitative assessment to determine
whether there was any impairment. During the six months ended November 30, 2024 and 2023, there were
INVESTMENTS
The
Company has made investments in a privately held Polish distributor, which is primarily engaged in distributing medical products and
devices, including the distribution of the products sold by the Company. The Company invested approximately $
Equity holdings in nonmarketable unconsolidated entities in which the Company is not able to exercise significant influence (“Cost Method Holdings”) are accounted for at the Company’s initial cost, minus any impairment (if any), plus or minus changes resulting from observable price changes in orderly transactions for the identical or a similar holding or security of the same issuer. Dividends received are recorded as other income.
The Company assesses its equity holdings for impairment whenever events or changes in circumstances indicate that the carrying value of an equity holding may not be recoverable. Management reviewed the underlying net assets of the Company’s equity method holding as of November 30, 2024 and determined that the Company’s proportionate economic interest in the entity indicates that the equity holding was not impaired. There were no observable price changes in orderly transactions for identical or a similar holding or security of the Company’s Cost Method Holdings during the period ended November 30, 2024.
| 8 |
The Company follows the guidance of ASC 718, Share-based Compensation, which requires the use of the fair-value based method to determine compensation for all arrangements under which employees and others receive shares of stock or equity instruments (options). The fair value of each option award is estimated on the date of grant using the Black-Scholes option-pricing model that uses assumptions for expected volatility, expected dividends, expected forfeiture rate, expected term, and the risk-free interest rate. The Company has not paid dividends historically and does not expect to pay them in the foreseeable future. Expected volatilities are based on weighted averages of the historical volatility of the Company’s common stock estimated over the expected term of the options. The expected forfeiture rate is based on historical forfeitures experienced. The expected term of options granted is derived using the “simplified method” which computes expected term as the average of the sum of the vesting term plus the contract term as historically the Company had limited exercise activity surrounding its options. The risk-free rate is based on the U.S. Treasury yield curve in effect at the time of grant for the period of the expected term. The grant date fair value of the award is recognized under the straight-line attribution method.
During the three months ended November 30, 2024, the Company expensed approximately $ in share-based compensation, compared to $ for the same period in 2023. For the six months ended November 30, share-based compensation expenses were approximately $ in 2024 and $ in 2023.
SUMMARY OF OPTIONS ACTIVITY
| Option Shares | Weighted Average Exercise Price | |||||||
| Options Outstanding at May 31, 2024 | $ | |||||||
| Granted | ||||||||
| Cancelled or expired | ( | ) | ||||||
| Options Outstanding at November 30, 2024 | $ | |||||||
REVENUE RECOGNITION
The Company has various contracts with customers, and these contracts specify the recognition of revenue based on the nature of the transaction.
Revenues from product sales are recognized at the time the product is shipped, customarily FOB shipping point, which is when the transfer of control of goods has occurred and title passes. This applies to clinical lab products sold to domestic and international distributors, including hospitals, clinical laboratories, medical research institutions, medical schools, and pharmaceutical companies. OTC products are sold directly to e-commerce customers, and distributors, while physicians’ office products are sold to physicians and distributors. The Company does not allow returns except in cases of defective merchandise, and therefore, does not establish an allowance for returns. Additionally, the Company has contracts with customers that provide purchase discounts contingent on achieving specified sales volumes. These contracts are regularly evaluated, and the Company does not anticipate granting any discounts through the end of the contract period.
For diagnostic testing services sold directly to patients or physician offices that require processing by a third-party CLIA-certified lab, we recognize revenue once the lab has completed the test results.
For services related to contract manufacturing, revenue is recognized when the service has been performed. Services for some contract work are invoiced and recognized as the project progresses.
As
of November 30, 2024, the Company had approximately $
Disaggregation of revenue:
The following is a breakdown of revenues according to markets to which the products are sold:
SCHEDULE OF DISAGGREGATION REVENUE
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Three Months Ended November 30, | Six Months Ended November 30, | |||||||||||||||
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Clinical lab | $ | $ | $ | $ | ||||||||||||
| Over-the-counter | ||||||||||||||||
| Contract manufacturing | ||||||||||||||||
| Physician’s office | ||||||||||||||||
| Total | $ | $ | $ | $ | ||||||||||||
See Note 4 for additional information regarding geographic revenue concentrations.
SHIPPING AND HANDLING FEES
The Company includes shipping and handling fees billed to customers in net sales.
RESEARCH AND DEVELOPMENT
Research
and development costs are expensed as incurred. The Company expensed approximately $
INCOME TAXES
For
the three months ended November 30, 2024, the Company had an income tax expense of approximately $
The Company’s policy is to recognize any interest and penalties related to unrecognized tax benefits as a component of income tax expense. For the three and six months ended November 30, 2024, the Company had no accrued interest or penalties related to uncertain tax positions.
ADVERTISING COSTS
The
Company reports the cost of advertising as expense in the period in which those costs are incurred. Advertising costs were approximately
$
| 9 |
FOREIGN CURRENCY TRANSLATION
The subsidiary located in Mexico operates primarily using the Mexican peso. The subsidiary located in Germany operates primarily using the U.S. dollar, with an immaterial amount of transactions occurring using the Euro. Accordingly, assets and liabilities of these subsidiaries are translated using exchange rates in effect at the end of the period, and revenues and costs are translated using average exchange rates for the period. The resulting translation adjustments to assets and liabilities are presented as a separate component of accumulated other comprehensive loss. There are no foreign currency transactions that are included in the condensed consolidated statements of operations for the three and six months ended November 30, 2024 and 2023.
RIGHT-OF-USE ASSETS AND LEASE LIABILITY
In February 2016, the Financial Accounting Standards Board (“FASB”) issued an accounting standard update which requires lessees to recognize most leases on the balance sheet with a corresponding right-of-use asset. Right-of-use assets represent the Company’s right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at the lease commencement date based on the estimated present value of fixed lease payments over the lease term. Leases are classified as financing or operating which will drive the expense recognition pattern. The Company has elected to exclude short-term leases. The Company leases office space and copy machines, all of which are operating leases. Most leases include the option to renew and the exercise of the renewal options is at the Company’s sole discretion. Options to extend or terminate a lease are considered in the lease term to the extent that the option is reasonably certain of exercise. The leases do not include the options to purchase the leased property. The depreciable life of assets and leasehold improvements are limited by the expected lease term.
Basic loss per share is computed as net loss divided by the weighted average number of common shares outstanding for the period. Diluted loss per share reflects the potential dilution that could occur from common shares issuable through stock options, warrants and other convertible securities using the treasury stock method. The total amount of anti-dilutive stock options not included in the loss per share calculation on November 30, 2024 and 2023 was and , respectively.
RECENT ACCOUNTING PRONOUNCEMENTS
Recent ASU’s issued by the FASB and guidance issued by the SEC did not, or are not believed by the management to, have a material effect on the Company’s present or future consolidated financial statements.
In November 2023, the FASB issued ASU 2023-07, “Improvements to Reportable Segment Disclosures.” The ASU includes enhanced disclosure requirements, primarily related to significant segment expenses that are regularly provided to and used by the chief operating decision maker (“CODM”). The amendments are to be applied retrospectively to all prior periods presented in the financial statements. ASU 2023-07 is effective for fiscal years beginning after December 15, 2023, with early adoption permitted. We are currently evaluating the effect of adopting this pronouncement on our financial statements and disclosures.
In December 2023, the FASB issued ASU 2023-09, “Income Taxes (Topic 740): Improvements to Income Tax Disclosures”. The ASU includes enhanced disclosure requirements, primarily related to the rate reconciliation and income taxes paid information. The amendments are to be applied prospectively in the financial statements. ASU 2023-09 is effective for fiscal years beginning after December 15, 2024, with early adoption permitted. We are currently evaluating the effect of adopting this pronouncement on our financial statements and disclosures.
In November 2024, the FASB issued ASU 2024-03, “Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures (Subtopic 220-40)”. The ASU includes enhanced disclosure requirements, which mandates enhanced transparency in financial statements by requiring detailed disclosures of specific expenses like inventory purchases, employee compensation, depreciation, and intangible asset amortization. ASU 2024-03 are effective for annual reporting periods beginning after December 15, 2026, and interim reporting periods within annual reporting periods beginning after December 15, 2027. Early adoption is permitted. We are currently evaluating the effect of adopting this pronouncement on our financial statements and disclosures.
NOTE 3: SHAREHOLDERS’ EQUITY
On
September 28, 2023, the Company filed a “shelf” registration statement on Form S-3 with the SEC, which was declared effective
on September 29, 2023, allowing the Company to issue up to $
On
November 30, 2023, the Company did not have an open ATM offering in place. No shares of common stock or other equity securities of the
Company were sold under the shelf registration statement during the six months ended November 30, 2023. During the six months ended November
30, 2024, the Company sold shares of its common stock at prices ranging from $ to $ under its Form S-3 Registration
Statement and ATM Offering which resulted in gross proceeds of approximately $
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NOTE 4: GEOGRAPHIC INFORMATION
The
Company operates as
SCHEDULE OF GEOGRAPHIC INFORMATION
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
Three Months Ended November 30, | Six Months Ended November 30, | |||||||||||||||
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Revenues from sales to unaffiliated customers: | ||||||||||||||||
| Asia | $ | $ | $ | $ | ||||||||||||
| North America | ||||||||||||||||
| Europe | ||||||||||||||||
| Middle East | ||||||||||||||||
| South America | ||||||||||||||||
| Total | $ | $ | $ | $ | ||||||||||||
| Revenues | $ | $ | $ | $ | ||||||||||||
As
of November 30, 2024 and May 31, 2024, approximately $
As
of November 30, 2024 and May 31, 2024, approximately $
NOTE 5: LEASES
The Company leases facilities in Irvine, California and Mexicali, Mexico.
As
of November 30, 2024, the Company had approximately
In addition, the Company leases a small office in Lindau, Germany on a month-to-month basis, as headquarters for BioEurope GmbH, its Germany subsidiary.
For purposes of determining straight-line rent expense, the lease term is calculated from the date the Company first takes possession of the facility, including any periods of free rent and any renewal options periods that the Company is reasonably certain of exercising. The Company’s office and equipment leases generally have contractually specified minimum rent and annual rent increases are included in the measurement of the right-of-use asset and related lease liabilities. Additionally, under these lease arrangements, the Company may be required to pay directly, or reimburse the lessors, for some maintenance and operating costs. Such amounts are generally variable and therefore not included in the measurement of the right-of-use asset and related lease liabilities but are instead recognized as variable lease expense in the consolidated statements of operations and comprehensive loss when they are incurred.
The following table presents information on our operating leases for the three and six months ended November 30, 2024 and 2023:
SCHEDULE OF OPERATING LEASES
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Three Months Ended November 30, | Six Months Ended November 30, | |||||||||||||||
| 2024 | 2023 | 2024 | 2023 | |||||||||||||
| Operating lease cost | $ | $ | $ | |||||||||||||
| Variable lease cost | ||||||||||||||||
| Short-term lease cost | ||||||||||||||||
| Total lease cost | $ | $ | $ | $ | ||||||||||||
| 11 |
The approximate maturity of lease liabilities as of November 30, 2024 are as follows:
SCHEDULE OF FUTURE MINIMUM LEASE PAYMENTS
| Operating | ||||
| Year Ending November 30: | Leases | |||
| 2025 (excluding the six months ended November 30, 2024) | $ | |||
| 2026 | ||||
| Total minimum future lease payments | ||||
| Less: imputed interest | ||||
| Total operating lease liabilities | $ | |||
The following table summarizes the Company’s other supplemental lease information for the six months ended November 30, 2024 and 2023:
SCHEDULE OF OTHER SUPPLEMENTAL LEASE INFORMATION
| Six Months Ended November 30, | ||||||||
| 2024 | 2023 | |||||||
| Cash paid for operating lease liabilities | $ | $ | ||||||
| Weighted-average remaining lease term (years) | ||||||||
| Weighted-average discount rate | % | % | ||||||
The Company also has various insignificant leases for office equipment.
NOTE 6: COMMITMENTS AND CONTINGENCIES
LITIGATION
The Company is, from time to time, involved in legal proceedings, claims, and litigation arising in the ordinary course of business. While the amounts claimed may be substantial, the ultimate liability cannot presently be determined because of considerable uncertainties that exist. Therefore, it is possible the outcome of such legal proceedings, claims, and litigation could have a material effect on quarterly or annual operating results or cash flows when resolved in a future period. However, based on facts currently available, management believes such matters will not have a material adverse effect on the Company’s consolidated financial position, results of operations or cash flows.
There were no material legal proceedings pending as of November 30, 2024.
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis in conjunction with our unaudited condensed consolidated financial statements and the accompanying notes thereto included in Part I, Item 1 of this Report and the audited consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended May 31, 2024 (our 2024 Annual Report). This discussion and analysis contains forward-looking statements that are based on our management’s current beliefs and assumptions, which statements are subject to substantial risks and uncertainties. Our actual results may differ materially from those expressed or implied by these forward-looking statements as a result of many factors, including those discussed in “Risk Factors” included in Part I, Item 1A of our 2024 Annual Report.
We are a global biomedical technology company that develops, patents, manufactures and markets advanced diagnostic and therapeutic products. Our diagnostic test kits are used to analyze blood, urine, nasal or fecal material from patients in the diagnosis of various diseases, food intolerances and other medical complications. They can also be used to measure or detect the presence and levels of specific bacteria, hormones, antibodies, antigens and other substances, which may exist in the human body in extremely small concentrations. Our products are designed to enhance the health and well-being of people, while reducing total healthcare costs.
Our extensive range of medical diagnostic products is sold worldwide, primarily in two markets: clinical laboratories and point-of-care settings. Most of our products are Conformite Europeenne (“CE”) marked and/or registered with regulatory agencies in various countries for diagnostic use, with several also cleared by the FDA for sale in the United States.
Technological advances in medical diagnostics have enabled diagnostic tests to be performed not only in clinical laboratories but also at home and at the point-of-care in physicians’ offices. One of our key objectives has been to develop and market rapid diagnostic tests that are accurate, utilize easily obtained patient specimens, and are simple to perform without the need for complex instrumentation. Our home use (over-the-counter) and professional use (physicians’ office, clinics, etc.) rapid diagnostic test products help manage existing medical conditions and may save lives through early detection and diagnosis of specific diseases. Traditionally, such tests required the expertise of medical technologists and sophisticated equipment, with results often not available for days. We believe our rapid point-of-care tests, when properly used, can be as accurate as laboratory tests. Our products require limited to no instrumentation, deliver reliable results in minutes, and can be performed with confidence at home or in a physician’s office.
We invest resources in the research and development of new products designed to diagnose and, in some cases, treat several major medical diseases. These products are either internally developed or licensed from others. Our experienced and highly trained technical personnel, including Ph.D. holders and other scientists, are dedicated to developing new products and managing technology transfer activities. Our technical staff, many of whom have extensive experience from previous employment at large diagnostic manufacturing companies, bring a wealth of industry knowledge. Additionally, we rely on our Scientific Advisory Board, comprised of leading medical doctors and clinicians, to guide our clinical studies and product development efforts.
A key outcome from our research and development efforts is our patented diagnostic-guided therapy (“DGT”) product, developed on the inFoods® technology platform. This innovative technology is designed to treat gastrointestinal conditions such as irritable bowel syndrome (“IBS”) and other inflammatory diseases. The DGT product targets chronic inflammatory illnesses that are widespread and prevalent in large markets. We have launched the inFoods® IBS product, which leverages this patented technology.
The inFoods® IBS product utilizes a simple blood test to identify patient-specific foods that, when eliminated from the diet, may alleviate IBS symptoms such as pain, bloating, diarrhea, cramping, and constipation. Unlike broad and difficult-to-manage dietary restrictions, the inFoods® IBS product pinpoints a patient’s heightened immunoreactivity to specific foods known to frequently trigger IBS symptoms. By removing the foods identified as problematic, patients can achieve relief from their IBS symptoms.
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We launched our inFoods® product across numerous gastroenterology (“GI”) physician groups in various states and regions, including collaboration with one of the largest GI groups in the U.S. Feedback from GI specialty physicians have generally been positive, and we are actively expanding our network by onboarding additional physician practices. These GI practices are beginning to prescribe inFoods® IBS to their patients. Our dedicated sales team is deepening relationships within the GI segment and strategically targeting opportunities to introduce inFoods® to other medical specialties. By leveraging their expertise and building strong partnerships, our sales team is now working to engage with key physician groups outside the GI field such as integrated health practices and primary-care general practitioners. These efforts aim to broaden our market reach and enhance the overall adoption of inFoods® across various healthcare sectors and to capitalize on the distinct advantages of inFoods® for a strong foundation of meaningful growth in the future. We are also continuing to evaluate distribution, partnership and licensing opportunities with U.S. and multinational companies, which have the potential to significantly aid in the commercialization and accelerated growth of inFoods® products both domestically and internationally.
Beyond the inFoods® product line, the Company has achieved a significant milestone with the development of hp+detect™, a diagnostic test designed to detect Helicobacter pylori (“H. pylori”) bacteria in the gastrointestinal tract. H. pylori is a prevalent infection, affecting approximately 35% of the U.S. population and 45% of the population in Europe’s largest countries. This bacterium is the strongest known risk factor for gastric cancer, which remains one of the leading causes of cancer-related deaths worldwide.
The hp+detect™ test offers physicians and medical centers a reliable tool for diagnosing H. pylori infections and monitoring treatment efficacy. The test is marketed directly to laboratories, where patient samples are processed to provide timely and accurate diagnoses. To support the widespread adoption and distribution of hp+detect™, the Company is actively engaging with large reference laboratories, aiming to improve patient outcomes through early detection and effective treatment of H. pylori infections.
Due to the slower-than-expected launch of the Company’s key products, inFoods® IBS and hp+detect™, the Company has initiated significant cost-cutting measures to extend its cash runway and work towards increasing revenues to cover overhead costs. These measures include a workforce reduction of nearly 15% during this fiscal year, which incurred costs such as severance, impacting typical cost trends and margins. Additionally, we raised $567,000 in net proceeds from the ATM offering filed in May 2024, providing additional liquidity to support our operations. The Company is actively exploring strategic opportunities to enhance and create shareholder value.
RESULTS OF OPERATIONS
Three months ended November 30, 2024
Net Sales and Cost of Sales
The following is a breakdown of revenues according to markets to which the products are sold:
| Three Months Ended November 30, | Increase (Decrease) | |||||||||||||||
| 2024 | 2023 | $ | % | |||||||||||||
| Clinical lab | $ | 777,000 | $ | 992,000 | $ | (215,000 | ) | -22 | % | |||||||
| Over-the-counter | 596,000 | 443,000 | 153,000 | 35 | % | |||||||||||
| Contract manufacturing | 260,000 | 131,000 | 129,000 | 98 | % | |||||||||||
| Physician’s office | 3,000 | 1,000 | 2,000 | 200 | % | |||||||||||
| Total | $ | 1,636,000 | $ | 1,567,000 | $ | 69,000 | 4 | % | ||||||||
Consolidated net sales were approximately $1,636,000 for the three months ended November 30, 2024, as compared to $1,567,000 for the three months ended November 30, 2023, an increase of approximately $69,000, or 4%. This increase for the three months ended November 30, 2024, was primarily driven by higher sales of Aware® products in the Middle East market and increased contract manufacturing billings. However, these increases were partially offset by a decrease in clinic lab sales, which experienced volatility due to periodic and timing of orders.
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Consolidated cost of sales were approximately $1,199,000, or 73% of net sales, for the three months ended November 30, 2024, as compared to $1,242,000, or 79% of net sales, for the three months ended November 30, 2023, a decrease of approximately $43,000, or 3%. The decrease for the three months ended November 30, 2024, was primarily driven by the reduction in force (“RIF”) executed in July 2024, which helped to decrease labor costs for the quarter.
Operating Expenses
The following is a summary of operating expenses:
| Three Months Ended November 30, | ||||||||||||||||||||||||
| 2024 | 2023 | Increase (Decrease) | ||||||||||||||||||||||
| Operating Expense | As a % of Total Revenues | Operating Expense | As a % of Total Revenues | $ | % | |||||||||||||||||||
| Selling, General and Administrative Expenses | $ | 1,173,000 | 72 | % | $ | 1,521,000 | 97 | % | $ | (348,000 | ) | -23 | % | |||||||||||
| Research and Development | $ | 257,000 | 16 | % | $ | 412,000 | 26 | % | $ | (155,000 | ) | -38 | % | |||||||||||
Selling, General and Administrative Expenses
For the three months ended November 30, 2024, consolidated selling, general, and administrative expenses amounted to approximately $1,173,000, compared to $1,521,000 for the corresponding period in 2023, a decrease of $348,000 or 23%. This decrease was primarily due to the RIF implemented in July 2024, which helped to reduce payroll expenses by approximately $175,000. Additionally, the absence of a sales reserve for over-the-counter (“OTC”) products, which was recorded in the prior year due to retail market activity, contributed to a further $229,000 reduction. This reduction partially offset an increase in sales commissions of $73,000 attributable to enhanced sales activities in the Middle East.
Research and Development
For the three months ended November 30, 2024, consolidated research and development (“R&D”) expenses totalled approximately $257,000, representing a decrease of 38% from $412,000 in the same period of 2023. This $155,000 reduction was primarily driven by a $156,000 decline in R&D wages resulting from the RIF executed in July 2024.
Interest and Dividend Income
For the three months ended November 30, 2024, interest and dividend income totaled approximately $40,000, compared to $109,000 for the corresponding period in 2023, representing a decrease of $69,000, or 63%. This reduction was primarily attributable to lower market interest rates affecting our lower cash balances, which had decreased by November 30, 2024.
| 15 |
Six months ended November 30, 2024
Net Sales and Cost of Sales
The following is a breakdown of revenues according to markets to which the products are sold:
| Six Months Ended November 30, | Increase (Decrease) | |||||||||||||||
| 2024 | 2023 | $ | % | |||||||||||||
| Clinical lab | $ | 2,057,000 | $ | 2,283,000 | $ | (226,000 | ) | -10 | % | |||||||
| Over-the-counter | 782,000 | 745,000 | 37,000 | 5 | % | |||||||||||
| Contract manufacturing | 599,000 | 248,000 | 351,000 | 142 | % | |||||||||||
| Physician’s office | 6,000 | 5,000 | 1,000 | 20 | % | |||||||||||
| Total | $ | 3,444,000 | $ | 3,281,000 | $ | 163,000 | 5 | % | ||||||||
For the six months ended November 30, 2024, consolidated net sales reached approximately $3,444,000, compared to $3,281,000 for the same period in 2023, representing an increase of $163,000, or 5%. This increase for the six months ended November 30, 2024, was primarily driven by increased contract manufacturing billings. However, these increases were partially offset by a decrease in clinic lab sales, which experienced volatility due to periodic and infrequent orders.
For the six months ended November 30, 2024, consolidated cost of sales was approximately $2,720,000, or 79% of net sales, compared to $2,541,000, or 77% of net sales, for the same period in 2023. This represents an increase of $179,000, or 7%. A key driver of the cost increase was directly correlated with the growth in contract manufacturing sales. Additionally, direct labor costs were significantly impacted by the RIF executed in July 2024, which decreased labor costs and improved gross margins.
Operating Expenses
The following is a summary of operating expenses:
| Six Months Ended November 30, | ||||||||||||||||||||||||
| 2024 | 2023 | Increase (Decrease) | ||||||||||||||||||||||
| Operating Expense | As a % of Total Revenues | Operating Expense | As a % of Total Revenues | $ | % | |||||||||||||||||||
| Selling, General and Administrative Expenses | $ | 2,533,000 | 74 | % | $ | 2,696,000 | 82 | % | $ | (163,000 | ) | -6 | % | |||||||||||
| Research and Development | $ | 554,000 | 16 | % | $ | 883,000 | 27 | % | $ | (329,000 | ) | -37 | % | |||||||||||
| 16 |
Selling, General and Administrative Expenses
For the six months ended November 30, 2024, consolidated selling, general, and administrative expenses totaled approximately $2,533,000, compared to $2,696,000 for the same period in 2023. This represents a decrease of $163,000, or 6%. The decrease was primarily attributed to the absence of a sales reserve for OTC products that was present in the prior year, which contributed to a $229,000 reduction in expenses. However, this decrease was partially offset by an increase in sales commissions of $95,000, attributable to enhanced sales activities in the Middle East.
Research and Development
For the six months ended November 30, 2024, consolidated R&D expenses totaled approximately $554,000, representing a decrease of 37% from $883,000 in the same period of 2023. This $329,000 decrease was primarily driven by a $242,000 decline in R&D wages resulting from the RIF executed in July 2024. In line with the Company’s strategic initiatives for cost-cutting measures, several clinical trials were scaled back, resulting in decreased expenditures. Additionally, with the commercialization of inFoods® IBS, there has been a deliberate reduction in R&D allocations to this area, contributing to an overall decrease of $74,000 in related expenses.
Interest and Dividend Income
For the six months ended November 30, 2024, interest and dividend income totaled approximately $97,000, compared to $231,000 for the corresponding period in 2024, representing a decrease of $134,000, or 58%. This reduction was primarily attributable to lower market interest rates affecting our lower cash balances, which had decreased by November 30, 2024.
LIQUIDITY AND CAPITAL RESOURCES AND GOING CONCERN
The following are the principal sources of liquidity:
November 30, 2024 | May 31, 2024 | |||||||
| Cash and cash equivalents | $ | 2,372,000 | $ | 4,170,000 | ||||
| Working capital including cash and cash equivalents | $ | 4,069,000 | $ | 5,527,000 | ||||
As of November 30, 2024 and May 31, 2024, the Company had cash and cash equivalents of approximately $2,372,000 and $4,170,000, respectively. As of November 30, 2024 and May 31, 2024, the Company had working capital of approximately $4,069,000 and $5,527,000, respectively.
The Company’s ability to continue as a going concern over the next twelve months is influenced by several factors, including:
| ● | Our need and ability to generate additional revenue from international opportunities and our new product launches; | |
| ● | Our need to access the capital and debt markets to meet current obligations and fund operations; | |
| ● | Our capacity to manage operating expenses and maintain gross margins as we grow; | |
| ● | Our ability to retain key employees and maintain critical operations with a substantially reduced workforce; and | |
| ● | Certain SEC regulations that limit the amount of capital the Company can raise through issuance of its equity. |
Management has analyzed the Company’s cash flow requirements through February 2026 and beyond. Based on this analysis, we believe our current cash and cash equivalents are insufficient to meet our operating cash requirements and strategic growth objectives for the next twelve months.
To address our capital needs and sustain operations beyond the next year, we are actively pursuing strategies to increase sales, reduce expenses, sell non-core assets, seek additional financing through debt or equity, and seek other strategic alternatives. While we are committed to these plans, there is no assurance that these efforts will be successful or sufficient to meet our capital requirements.
As part of our efforts to reduce costs, we are executing significant cost-cutting measures to extend our cash runway and work towards increasing revenues to cover overhead costs. These measures included a workforce reduction of nearly 15% in July 2024 and a substantial reduction in other operating expenses.
As part of our financing plan, on September 28, 2023, we filed a new “shelf” registration statement on Form S-3 with the SEC, to replace the expiring S-3 that was filed in July 2020, which was declared effective on September 29, 2023, allowing us to issue up to $20,000,000 in common shares. Under this registration statement, shares of our common stock may be sold from time to time for up to three years from the filing date. On May 10, 2024, we filed a prospectus supplement with the SEC to facilitate the sale of up to $5,500,000 in common stock through at-the-market (“ATM”) offerings, as defined in Rule 415 under the Securities Act. As part of this transaction, we incurred $81,000 in deferred offering costs. The amount of capital that we can raise under the ATM offering is highly dependent upon the trading volume and the trading price of our stock. The average trading volume of our stock over the last three full calendar months is 886,303 shares per day and the high and low trading price of our stock during the same period of time was $0.48 and $0.26, respectively. If our stock continues to trade at low volumes and price, the amount of capital that we can raise under the ATM offering will be constrained.
We intend to use the net proceeds from the ATM offering for general corporate purposes, including, but not limited to, sales and marketing activities, clinical studies and product development, acquisitions of assets, businesses, companies, or securities, capital expenditures, and working capital needs.
During the six months ended November 30, 2024, the Company sold 1,515,348 shares of its common stock at prices ranging from $0.36 to $0.47 pursuant to the May 2024 ATM Offering, which resulted in gross proceeds of approximately $603,000 and net proceeds to the Company of $567,000, after deducting commissions for each sale and legal, accounting, and other fees related to offering in the amount of $36,000.
While we are committed to these plans, there is no assurance that these efforts will be successful or sufficient to meet our capital requirements.
These factors raise substantial doubt about our ability to continue as a going concern. Our future viability depends on the successful execution of our strategic plans, securing additional financing, and achieving profitable operations.
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Operating Activities
During the six months ended November 30, 2024, cash used in operating activities was approximately $2,135,000. The primary factors that contributed to this were a loss of approximately $2,266,000, an increase in accounts receivable of $387,000, and a decrease in accounts payable and accrued expenses of $290,000. These outflows were partially offset by a decrease in inventories of $585,000 and non-cash expenses of approximately $439,000.
During the six months ended November 30, 2023, cash used in operating activities was approximately $2,516,000. The primary factors that contributed to this was a loss of approximately $2,639,000, non-cash expenses of $294,000, primarily associated with depreciation and amortization, provision for credit losses, inventory reserves, share-based compensation, and amortization of right-of-use assets. This was partially offset by changes in asset and liability accounts of approximately $171,000.
Investing Activities
During the six months ended November 30, 2024, cash used in investing activities was approximately $33,000 in expenditures related to patents.
During the six months ended November 30, 2023, cash used in investing activities was approximately $27,000 for purchases of property and equipment and $48,000 for expenditures related to patents.
Financing Activities
During the six months ended November 30, 2024, cash provided by financing activities amounted to $380,000, primarily resulting from gross proceeds of $392,000 from the sale of common stock.
During the six months ended November 30, 2023, cash provided by financing activities was $0, with no net proceeds from the sale of common stock or from stock option exercises.
OFF BALANCE SHEET ARRANGEMENTS
There were no off-balance sheet arrangements as of November 30, 2024.
CRITICAL ACCOUNTING POLICIES
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires us to make a number of estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. Such estimates and assumptions affect the reported amounts of revenues and expenses during the reporting period. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. Actual results may differ materially from these estimates under different assumptions or conditions. We continue to monitor significant estimates made during the preparation of our financial statements. On an ongoing basis, we evaluate estimates and assumptions based upon historical experience and various other factors and circumstances. We believe our estimates and assumptions are reasonable under the current conditions; however, actual results may differ from these estimates under different future conditions.
We believe that the estimates and assumptions that are most important to the portrayal of our financial condition and results of operations, in that they require subjective or complex judgments, form the basis for the accounting policies deemed to be most critical to us. These relate to revenue recognition, bad debts, inventory overhead application, inventory reserves, lease liabilities and right-of-use assets. We believe estimates and assumptions related to these critical accounting policies are appropriate under the circumstances; however, should future events or occurrences result in unanticipated consequences, there could be a material impact on our future financial condition or results of operations. We suggest that our significant accounting policies be read in conjunction with this Management’s Discussion and Analysis of Financial Condition and Results of Operations. Please refer to Note 2 for information on Significant Accounting Policies. Our critical accounting policies are discussed in our Annual Report on Form 10-K for the fiscal year ended May 31, 2024 and there have been no changes to such policies during the current quarter.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and are not required to provide the information under this item.
ITEM 4. CONTROLS AND PROCEDURES
Our management evaluated the effectiveness of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act, as of the end of the period covered by this report. Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving its objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Our disclosure controls and procedures have been designed to provide reasonable assurance of achieving its objectives.
Based on their evaluation as of November 30, 2024, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) were effective at the “reasonable assurance” level to ensure that the information required to be disclosed by us in this Quarterly Report on Form 10-Q (our “Quarterly Report”) was (1) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and regulations; and (2) accumulated and communicated to the our management, including our Chief Executive Officer and Chief Financial Officer to allow timely decisions regarding required disclosure.
There have been no changes in our internal control over financial reporting during the quarter ended November 30, 2024 that have materially affected, or that is reasonably likely to materially affect, our internal control over financial reporting.
| 18 |
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time, we are involved in legal proceedings, claims, and litigation arising in the ordinary course of business, which may impact our financial results.
As of November 30, 2024, there were no pending legal proceedings. However, the outcome of any future legal matters, claims, or litigation could potentially have a material adverse effect on our quarterly or annual operating results or cash flows when resolved in subsequent periods. Nonetheless, based on current information, management believes these matters will not have a material adverse effect on our consolidated financial position, results of operations, or cash flows.
ITEM 1A. RISK FACTORS
An investment in our common stock involves risks. Before making an investment decision, you should carefully consider all the information within this Quarterly Report, including the information contained in Part I, Item 2, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as in our condensed consolidated financial statements and the related notes contained in Part I, Item 1 within this Quarterly Report. In addition, you should carefully consider the risks and uncertainties described in Part I, Item 1A, “Risk Factors,” of our 2024 Annual Report on Form 10-K, as well as in our other public filings with the SEC. If any of the identified risks are realized, our business, results of operations, financial condition, liquidity, and prospects could be materially and adversely affected. In that case, the trading price of our common stock may decline, and you could lose all or part of your investment. In addition, other risks of which we are currently unaware, or which we do not currently view as material, could have a material adverse effect on our business, results of operations, financial condition, and prospects.
During the three and six months ended November 30, 2024, there were no material changes to the risks and uncertainties described in Part I, Item 1A, “Risk Factors,” of our 2024 Annual Report on Form 10-K.
ITEM 5. OTHER INFORMATION
On January 13, 2025, the Company entered into an employment agreement with their Chief Executive Officer, Mr. Zack Irani, wherein if Mr. Irani is terminated by the Company without cause following a change in control, or if Mr. Irani voluntarily terminates his employment with the Company with cause following a change in control, then the Company will be required to pay Mr. Irani a severance payment equal to twelve months of base salary. The definition of “Change of control” and “cause” for each type of termination is found in the agreement, along with other material terms. This agreement is attached hereto as Exhibit 10.1.
On January 13, 2025, the Company entered into an employment agreement with their Executive Vice Chairman, Mr. Allen Barbieri, an executive officer of the corporation, wherein if Mr. Barbieri is terminated by the Company without cause following a change in control, or if Mr. Barbieri voluntarily terminates his employment with the Company with cause following a change in control, then the Company will be required to pay Mr. Barbieri a severance payment equal to twelve months of base salary. The definition of “Change of control” and “cause” for each type of termination is found in the agreement, along with other material terms. This agreement is attached hereto as Exhibit 10.2.
ITEM 6. EXHIBITS.
The following exhibits are filed or furnished as part of this quarterly report on Form 10-Q:
101 Interactive data files pursuant to Rule 405 Regulation S-T, as follows:
101.INS-XBRL Instance Document
101.SCH-XBRL Taxonomy Extension Schema Document
101.CAL-XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF–XBRL Taxonomy Extension Definition Linkbase Document
101.LAB-XBRL Taxonomy Extension Label Linkbase Document
101.PRE-XBRL Taxonomy Extension Presentation Linkbase Document
104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibits 101)
* Filed herein.
** Filed herewith.
| 19 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has fully caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| BIOMERICA, INC. | ||
| Date: January 14, 2025 | ||
| By: | /S/ Zackary S. Irani | |
| Zackary S. Irani | ||
| Chief Executive Officer | ||
| (Principal Executive Officer) | ||
| Date: January 14, 2025 | ||
| By: | /S/ Gary Lu | |
| Gary Lu | ||
| Chief Financial Officer | ||
| (Principal Financial Officer) |
| 20 |
Exhibit 10.1
BIOMERICA, INC.
Employment Agreement
This Employment Severance Agreement (the “Agreement”) is entered into by and between Biomerica, Inc., a California Corporation (the “Company”) and Zack Irani (“Employee”).
The parties agree that Employee’s employment with the Company is subject to and shall be governed by the following terms and conditions:
1. Duties and Scope of Employment.
a. Positions and Duties. Employee is currently serving as the Chief Executive Officer. Employee will continue to render such business and professional services in the performance of his duties, consistent with Employee’s position within the Company, as will reasonably be assigned to him by the Board of Directors. The period Employee is employed by the Company under this Agreement is referred to herein as the “Employment Term.”
b. Obligations. During the Employment Term, Employee will devote Employee’s full business efforts to the Company and will use all good faith efforts to discharge Employee’s obligations under this Agreement to the best of his/her ability.
c. No Conflicting Obligations. Employee represents and warrants to the Company that as of the Effective Date he has no obligation or commitment, whether contractual or otherwise, that are inconsistent with his obligations under this Agreement. In connection with this Agreement, Employee shall not use or disclose any trade secrets or other proprietary or confidential information in which he or any other person has any right, title or interest and his/her Employment will not infringe or violate the rights of any other person or entity. Employee represents and warrants to the Company that he/she has returned all property and confidential information belonging to any prior employer or client.
2. At-Will Employment. Employee and the Company agree that Employee’s employment with the Company is “at-will.” Employee and the Company acknowledge that this employment relationship may be terminated at any time, with or without reason or notice, at the option either of the Company’s Board of Directors (the “Board”) or Employee. This Agreement shall constitute the full and complete agreement between Employee and the Company on the “at-will” nature of Employee’s Employment, which may only be changed in an express written agreement signed by Employee and a duly authorized representative of the Board.
3. Compensation.
a. Base Salary. Employee’s annual salary is $150,000 per year (the “Base Salary”). The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices and will be subject to tax and other withholdings.
b. Employee Benefits. Employee will be eligible to participate in the benefit plans offered to other Company employees as such plans and policies may exist from time to time.
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -1- |
4. Employment Conditions. Employee’s continued employment with the Company is contingent upon the execution of Company’s Confidential Information and Invention Assignment Agreement, and other employment related agreements which Employee has previously signed (the “Other Agreements”). The Other Agreements are incorporated by reference herein. Following the termination of Employee’s employment for any reason, Employee’s obligations under the Other Agreements that are indicated to survive termination shall remain in force in accordance with their terms.
5. Restriction of Employee’s Activities. While employed by the Company, Employee shall not, directly or indirectly, engage in any activity which reasonably should be known by Employee to be competitive with any business activity engaged in by the Company.
6. Rights and Duties and Compensation Upon Termination.
a. At-Will Employment. Employee acknowledges that Employee’s employment with the Company is “at-will,” which means that either Employee or the Company can terminate the employment relationship at any time, for any reason, with or without cause or notice. Employee acknowledges that there is no agreement, express or implied, between Employee and the Company for any specific period of employment, nor for continuing long-term employment, and that nothing in this Agreement or any statements made to Employee while employed are intended to or actually do modify the at-will nature of Employee’s employment. Except as specifically provided below, Employee shall not be entitled to any further pay, salary, compensation or remuneration in the event that either Employee or the Company terminates the employment relationship for any reason, other than accrued but unpaid Base Salary and accrued but unused vacation to the date of the termination.
b. Separation Pay.
i. Termination by the Company for Cause. If the Company terminates Employee’s employment for “Cause” (defined below), Employee’s exclusive termination remuneration shall be all accrued but unpaid Base Salary and any accrued but unused PTO to the date of the termination. For purposes of this Section 7(b)(i), “Cause” shall mean: (1) Employee having committed any felony or other crime involving moral turpitude; (2) the use of narcotics or alcohol to an extent which impairs Employee’s performance or any such use while on the job; (3) malfeasance, insubordination, or gross negligence by Employee in the performance of duties; or (4) the violation by Employee of any material provision of this Agreement. The existence of cause shall be determined in the Company’s sole discretion.
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -2- |
ii. Termination by the Company without Cause. The Company or its successor may terminate Employee’s employment at any time, with or without prior notice, without cause, by delivering to Employee a notice of termination, and in such case, Employee shall be paid all accrued but unpaid Base Salary and any accrued but unused PTO to the date of the termination. If Employee is terminated by the Company without Cause, (as defined in Section 7(b)(i) above), including following a Change in Control, Employee will be eligible for severance pay. Severance pay will be equal to twelve months (1 year) of Employee’s base pay (the “Severance Payment”), provided that the Employee executes and does not revoke a standard and customary general release of claims against the Company and its affiliates, officers, directors, agents, and employees. For purposes of this section, if termination of employment by the Company without Cause occurs following a Change in Control, Employee agrees to remain with the Company for a transition period of up to 90 days with ongoing compensation, at the sole option of the Company, following which the Severance Payment shall be paid immediately. For all other instances of termination by Company without cause, payment shall occur within 30 days following termination. Further, for any termination of Employee by the Company without Cause following a Change in Control, all unvested stock options previously issued to Employee shall become immediately vested and exercisable. For purposes of this Agreement, “Change in Control” shall mean any of the following: (a) a merger or consolidation in which the Company is not the surviving entity; (b) a sale, transfer, or other disposition of all or substantially all of the assets of the Company; or (c) any transaction or series of transactions in which any person or entity becomes the beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the total voting power of all outstanding securities of the Company.
iii. Termination by Employee with Cause. If Employee terminates his employment with the Company with Cause, including a termination with Cause following a Change in Control, Employee will be eligible for a Severance Payment, again equal to twelve months of Employees base pay, provided that Employee executes and does not revoke a general release of claims against the Company and its affiliates, officers, directors, agents, and employees. For purposes of this section, if Employee terminates his employment with Cause Employee agrees to remain with the Company for a transition period of up to 90 days, at the sole option of the Company, following which the Severance Payment shall be paid immediately. Further, in the event of a termination of employment by Employee with Cause following a Change in Control, all unvested stock options previously issued to Employee shall become immediately vested and exercisable. For the purposes of this Section a termination by Employee with “Cause” shall include a termination by employee following, (a) any change in Employee’s title or his reporting structure into the Board; (b) any reduction in Employee’s base salary or benefits; (c) any material reassignment of duties or responsibilities that is inconsistent with Employee’s position or historic duties; (d) any Company required relocation of Employee’s principal place of work by more than 50 miles from the current location.
iv. Termination due to a liquidation, bankruptcy, or insolvency. In the event Employee’s employment with the company is terminated by the Company during or following a liquidation, bankruptcy, or insolvency of the Company, Employee agrees that Employee shall receive no separation pay other than payment of all accrued but unpaid Base Salary and accrued but unused PTO to the date of the termination.
c. Employee’s Responsibilities Upon Termination of Employment.
i. Upon termination of employment for any reason, Employee shall cooperate with the Company, as reasonably requested by the Company, to affect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by Employee.
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -3- |
ii. Employee shall, after termination of employment, upon reasonable notice, furnish such information and assistance to the Company as may reasonably be required by the Company in connection with any litigation in which it may become a party.
d. Assignment Clause. Any successor of the Company, whether by purchase, merger, reorganization, or otherwise, shall assume and be bound by all obligations under this Agreement, including but not limited to the severance provisions outlined in Section 7(b). This Agreement shall be binding upon and inure to the benefit of any such successor.
e. Termination due to a liquidation, bankruptcy, or insolvency. In the event Employee’s employment with the company is terminated by the Company during or following a liquidation, bankruptcy, or insolvency of the Company, Employee agrees that Employee shall receive no separation pay other than payment of any accrued but unpaid Base Salary and accrued but unused PTO to the date of the termination.
7. Assignment. This Agreement will be binding upon and inure to the benefit of (a) the heirs, executors, and legal representatives of Employee upon Employee’s death, and (b) any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger, or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. The Company may assign its rights under this Agreement to any entity that assumes the Company’s obligations hereunder in connection with any sale or transfer of all or a substantial portion of the Company’s assets to such entity. None of the rights of Employee to receive any form of compensation payable pursuant to this Agreement may be assigned or transferred except by will or the Laws of descent and distribution. Any other attempted assignment, transfer, conveyance, or other disposition of Employee’s right to compensation or other benefits will be null and void.
8. Notices. All notices, requests, demands, and other communications called for hereunder will be in writing and will be deemed given and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing: If to the Company: Attn: to its Chief Executive Officer. If to Employee: at the last residential address known by the Company.
9. Legal Advice and Expenses. Employee acknowledges that he/she has had the opportunity to discuss this matter with and obtain advice from his/her attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. The Company and Employee shall each be responsible for their own legal and/or tax advice and expenses incurred in negotiating the terms and conditions of this Agreement and understanding the effects of this Agreement.
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -4- |
10. Integration. This Agreement, together with the executed Confidentiality Agreement and any executed Arbitration Agreement represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements, whether written or oral. No alteration or modification of any of the provisions of this Agreement will be binding unless it is in writing and is signed by duly authorized representatives of the parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise or understanding that is not in this Agreement. Employee acknowledges that Employee is not subject to any contract, obligation or understanding (whether written or not), that would in any way restrict the performance of Employee’s duties as set forth in this Agreement.
11. Waiver of Breach. The waiver of a breach of any term or provision of this Agreement, which must be in writing, will not operate as or be construed to be a waiver of any other previous or subsequent breach of this Agreement.
12. Survival. The Confidentiality Agreement, any Arbitration Agreement, and the Company’s and Employee’s responsibilities under Section 7 will survive the termination of Employee’s Employment.
13. Headings. All captions and Section headings used in this Agreement are for reference only and do not form a part of this Agreement.
14. Tax Withholding. All payments made pursuant to this Agreement will be subject to applicable tax withholding. The Company shall have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs because of or attributable to this Agreement.
15. Choice of Law and Severability. This Agreement shall be interpreted in accordance with the laws of the State of California without giving effect to provisions governing the choice of law. If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any applicable jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the minimum extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision shall be stricken and the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is rendered illegal by any present or future statute, law, ordinance, rule or regulation (collectively, the “Law”) then that provision shall be curtailed or limited only to the minimum extent necessary to bring the provision into compliance with the Law. All the other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation.
16. In the event of any dispute or legal action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, including any expenses incurred in enforcing or defending this Agreement, whether or not the dispute or legal action proceeds to final judgment. In the event that the Employee prevails in any action brought to enforce his rights under this Agreement or to recover damages for breach of this Agreement, the Company shall reimburse the Employee for all legal fees and expenses incurred by the Employee in connection with such action.
17. Counterparts. This Agreement may be executed in counterparts, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned.
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -5- |
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by a duly authorized officer, as of the day and year written below.
| BIOMERICA, INC. | EMPLOYEE | |||
| By: | ||||
| Name: | Allen Barbieri | Name: | Zack Irani | |
| Title: | Vice Chairman/Secretary | |||
| Date: | Date: | |||
| Biomerica, Inc. - Employment Agreement | Confidential | |
| -6- |
Exhibit 10.2
BIOMERICA, INC.
Employment Agreement
This Employment Severance Agreement (the “Agreement”) is entered into by and between Biomerica, Inc., a California Corporation (the “Company”) and Allen Barbieri (“Employee”).
The parties agree that Employee’s employment with the Company is subject to and shall be governed by the following terms and conditions:
1. Duties and Scope of Employment.
a. Positions and Duties. Employee is currently serving as the Corporate Secretary and Executive Vice Chairman. Employee will continue to render such business and professional services in the performance of his duties, consistent with Employee’s position within the Company, as will reasonably be assigned to him by the Board of Directors. The period Employee is employed by the Company under this Agreement is referred to herein as the “Employment Term.”
b. Obligations. During the Employment Term, Employee will devote adequate time and efforts to the Company to fulfill his ongoing duties and will use all good faith efforts to discharge Employee’s obligations under this Agreement to the best of his/her ability. It is understood and acknowledged by Company that Employee is not a full time employee and as such is not precluded from engaging in outside business activities, so long as such business activities are not in direct competition with the business of the Company.
c. No Conflicting Obligations. Employee represents and warrants to the Company that as of the Effective Date he has no obligation or commitment, whether contractual or otherwise, that are inconsistent with his obligations under this Agreement. In connection with this Agreement, Employee shall not use or disclose any trade secrets or other proprietary or confidential information in which he or any other person has any right, title or interest and his/her Employment will not infringe or violate the rights of any other person or entity.
2. At-Will Employment. Employee and the Company agree that Employee’s employment with the Company is “at-will.” Employee and the Company acknowledge that this employment relationship may be terminated at any time, with or without reason or notice, at the option either of the Company’s Board of Directors (the “Board”) or Employee. This Agreement shall constitute the full and complete agreement between Employee and the Company on the “at-will” nature of Employee’s Employment, which may only be changed in an express written agreement signed by Employee and a duly authorized representative of the Board.
3. Compensation.
a. Base Salary. Employee’s annual salary is $90,000 per year (the “Base Salary”). The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices and will be subject to tax and other withholdings.
b. Employee Benefits. Employee will be eligible to participate in the benefit plans offered to other Company employees as such plans and policies may exist from time to time.
| Biomerica, Inc. - Employment Agreement | - 1- | Confidential |
4. Employment Conditions. Employee’s continued employment with the Company is contingent upon the execution of Company’s Confidential Information and Invention Assignment Agreement, and other employment related agreements which Employee has previously signed (the “Other Agreements”). The Other Agreements are incorporated by reference herein. Following the termination of Employee’s employment for any reason, Employee’s obligations under the Other Agreements that are indicated to survive termination shall remain in force in accordance with their terms.
5. Restriction of Employee’s Activities. While employed by the Company, Employee shall not, directly or indirectly, engage in any activity which reasonably is deemed to be competitive with the medical diagnostic business activities engaged in by the Company.
6. Rights and Duties Upon Termination.
a. At-Will Employment. Employee acknowledges that Employee’s employment with the Company is “at-will,” which means that either Employee or the Company can terminate the employment relationship at any time, for any reason, with or without cause or notice. Employee acknowledges that there is no agreement, express or implied, between Employee and the Company for any specific period of employment, nor for continuing long-term employment, and that nothing in this Agreement or any statements made to Employee while employed are intended to or actually do modify the at-will nature of Employee’s employment. Except as specifically provided below, Employee shall not be entitled to any further pay, salary, compensation or remuneration in the event that either Employee or the Company terminates the employment relationship for any reason, other than accrued but unpaid Base Salary and accrued but unused vacation to the date of the termination.
b. Separation Pay.
i. Termination by the Company for Cause. If the Company terminates Employee’s employment for “Cause” (defined below), Employee’s exclusive termination remuneration shall be all accrued but unpaid Base Salary and any accrued but unused PTO to the date of the termination. For purposes of this Section 7(b)(i), “Cause” shall mean: (1) Employee having committed any felony or other crime involving moral turpitude; (2) the use of narcotics or alcohol to an extent which impairs Employee’s performance or any such use while on the job; (3) malfeasance, insubordination, or gross negligence by Employee in the performance of duties; or (4) the violation by Employee of any material provision of this Agreement. The existence of cause shall be determined in the Company’s sole discretion.
ii. Termination by the Company without Cause. The Company or its successor may terminate Employee’s employment at any time, with or without prior notice, without cause, by delivering to Employee a notice of termination, and in such case, Employee shall be paid all accrued but unpaid Base Salary and any accrued but unused PTO to the date of the termination. If Employee is terminated by the Company without Cause, (as defined in Section 7(b)(i) above), including following a Change in Control, Employee will be eligible for severance pay. Severance pay will be equal to twelve months (1 year) of Employee’s base pay (the “Severance Payment”), provided that the Employee executes and does not revoke a standard and customary general release of claims against the Company and its affiliates, officers, directors, agents, and employees. For purposes of this section, if termination of employment by the Company without Cause occurs following a Change in Control, Employee agrees to remain with the Company for a transition period of up to 90 days with ongoing compensation, at the sole option of the Company, following which the Severance Payment shall be paid immediately. For all other instances of termination by Company without cause, payment shall occur within 30 days following termination. Further, for any termination of Employee by the Company without Cause following a Change in Control, all unvested stock options previously issued to Employee shall become immediately vested and exercisable. For purposes of this Agreement, “Change in Control” shall mean any of the following: (a) a merger or consolidation in which the Company is not the surviving entity; (b) a sale, transfer, or other disposition of all or substantially all of the assets of the Company; or (c) any transaction or series of transactions in which any person or entity becomes the beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the total voting power of all outstanding securities of the Company.
| Biomerica, Inc. - Employment Agreement | - 2- | Confidential |
iii. Termination by Employee with Cause. If Employee terminates his employment with the Company with Cause, including a termination with Cause following a Change in Control, Employee will be eligible for a Severance Payment, again equal to twelve months of Employees base pay, provided that Employee executes and does not revoke a general release of claims against the Company and its affiliates, officers, directors, agents, and employees. For purposes of this section, if Employee terminates his employment with Cause Employee agrees to remain with the Company for a transition period of up to 90 days, at the sole option of the Company, following which the Severance Payment shall be paid immediately. Further, in the event of a termination of employment by Employee with Cause following a Change in Control, all unvested stock options previously issued to Employee shall become immediately vested and exercisable. For the purposes of this Section a termination by Employee with “Cause” shall include a termination by employee following, (a) any change in Employee’s title or his reporting structure into the Board; (b) any reduction in Employee’s base salary or benefits; (c) any material reassignment of duties or responsibilities that is inconsistent with Employee’s position or historic duties; (d) any Company required relocation of Employee’s principal place of work by more than 50 miles from the current location.
c. Employee’s Responsibilities Upon Termination of Employment.
i. Upon termination of employment for any reason, Employee shall cooperate with the Company, as reasonably requested by the Company, to affect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by Employee.
ii. Employee shall, after termination of employment, upon reasonable notice, furnish such information and assistance to the Company as may reasonably be required by the Company in connection with any litigation in which it may become a party.
d. Assignment Clause Any successor of the Company, whether by purchase, merger, reorganization, or otherwise, shall assume and be bound by all obligations under this Agreement, including but not limited to the severance provisions outlined in Section 7(b). This Agreement shall be binding upon and inure to the benefit of any such successor.
e. Termination due to a liquidation, bankruptcy, or insolvency. In the event Employee’s employment with the company is terminated by the Company during or following a liquidation, bankruptcy, or insolvency of the Company, Employee agrees that Employee shall receive no separation pay other than payment of any accrued but unpaid Base Salary and accrued but unused PTO to the date of the termination.
| Biomerica, Inc. - Employment Agreement | - 3- | Confidential |
7. Assignment. This Agreement will be binding upon and inure to the benefit of (a) the heirs, executors, and legal representatives of Employee upon Employee’s death, and (b) any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger, or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. The Company may assign its rights under this Agreement to any entity that assumes the Company’s obligations hereunder in connection with any sale or transfer of all or a substantial portion of the Company’s assets to such entity. None of the rights of Employee to receive any form of compensation payable pursuant to this Agreement may be assigned or transferred except by will or the Laws of descent and distribution. Any other attempted assignment, transfer, conveyance, or other disposition of Employee’s right to compensation or other benefits will be null and void.
8. Notices. All notices, requests, demands, and other communications called for hereunder will be in writing and will be deemed given and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing: If to the Company: Attn: to its Chief Executive Officer. If to Employee: at the last residential address known by the Company.
9. Legal Advice and Expenses. Employee acknowledges that he/she has had the opportunity to discuss this matter with and obtain advice from his/her attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. The Company and Employee shall each be responsible for their own legal and/or tax advice and expenses incurred in negotiating the terms and conditions of this Agreement and understanding the effects of this Agreement.
10. Integration. This Agreement, together with the executed Confidentiality Agreement and any executed Arbitration Agreement represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements, whether written or oral. No alteration or modification of any of the provisions of this Agreement will be binding unless it is in writing and is signed by duly authorized representatives of the parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise or understanding that is not in this Agreement. Employee acknowledges that Employee is not subject to any contract, obligation or understanding (whether written or not), that would in any way restrict the performance of Employee’s duties as set forth in this Agreement.
| Biomerica, Inc. - Employment Agreement | - 4- | Confidential |
11. Waiver of Breach. The waiver of a breach of any term or provision of this Agreement, which must be in writing, will not operate as or be construed to be a waiver of any other previous or subsequent breach of this Agreement.
12. Survival. The Confidentiality Agreement, any Arbitration Agreement, and the Company’s and Employee’s responsibilities under Section 7 will survive the termination of Employee’s Employment.
13. Headings. All captions and Section headings used in this Agreement are for reference only and do not form a part of this Agreement.
14. Tax Withholding. All payments made pursuant to this Agreement will be subject to applicable tax withholding. The Company shall have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs because of or attributable to this Agreement.
15. Choice of Law and Severability. This Agreement shall be interpreted in accordance with the laws of the State of California without giving effect to provisions governing the choice of law. If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any applicable jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the minimum extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision shall be stricken and the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is rendered illegal by any present or future statute, law, ordinance, rule or regulation (collectively, the “Law”) then that provision shall be curtailed or limited only to the minimum extent necessary to bring the provision into compliance with the Law. All the other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation.
16. In the event of any dispute or legal action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, including any expenses incurred in enforcing or defending this Agreement, whether or not the dispute or legal action proceeds to final judgment. In the event that the Employee prevails in any action brought to enforce his rights under this Agreement or to recover damages for breach of this Agreement, the Company shall reimburse the Employee for all legal fees and expenses incurred by the Employee in connection with such action.
17. Counterparts. This Agreement may be executed in counterparts, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned.
| Biomerica, Inc. - Employment Agreement | - 5- | Confidential |
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by a duly authorized officer, as of the day and year written below.
| BIOMERICA, INC. | EMPLOYEE | |||
| By: | ||||
| Name: | Zack Irani | Name: | Allen Barbieri | |
Title: |
CEO | |||
| Date: | Date: | |||
| Biomerica, Inc. - Employment Agreement | - 6- | Confidential |
Exhibit 31.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Zackary S. Irani, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Biomerica, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of our internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or other persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: January 14, 2025 | |
| /s/ Zackary S. Irani | |
| Zackary S. Irani | |
| Chief Executive Officer | |
| (Principal Executive Officer) |
EXHIBIT 31.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Gary Lu, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Biomerica, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of our internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or other persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: January 14, 2025 | |
| /s/ Gary Lu | |
| Gary Lu | |
| Chief Financial Officer | |
| (Principal Financial Officer) |
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Biomerica, Inc. (the “Company”) on Form 10-Q for the period ended November 30, 2024, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Zackary Irani, Chief Executive Officer of the Company, certify, to the best of my knowledge, Pursuant to Exchange Act Rule 15d-14(b) and 18 U.S.C. Section 1350, as adopted Pursuant to Section 906 of the Sarbanes Oxley Act of 2002,
i. The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, and
ii. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Zackary S. Irani | |
| Zackary S. Irani | |
| Chief Executive Officer | |
| Date: January 14, 2025 |
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Biomerica, Inc. (the “Company”) on Form 10-Q for the period ended November 30, 2024, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Gary Lu, Chief Financial Officer of the Company, certify, to the best of my knowledge, Pursuant to Exchange Act Rule 15d-14(b) and 18 U.S.C. Section 1350, as adopted Pursuant to Section 906 of the Sarbanes Oxley Act of 2002,
i. The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, and
ii. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Gary Lu | |
| Gary Lu | |
| Chief Financial Officer | |
| Date: January 14, 2025 |