ITEM 1. BUSINESS
General Development of Business
Gamma Pharmaceuticals Inc. was incorporated in the State of Delaware on February 10, 1993 as Emerging Gamma Corporation for the purpose of seeking business opportunities, including acquisitions that the Board of Directors, in its discretion, believed to be good opportunities. In 2002, after a tender offer, a new Board of Directors succeeded the original Board, but maintained the same goal of seeking out new business opportunities. The pursuit of this goal led to the acquisition of the Transferred Technology pursuant to the Technology Transfer Agreement on April 7, 2006 and new business described below. Following the effectiveness of the Technology Transfer Agreement, the name of the Company was changed from Emerging Gamma Corporation to Sunburst Pharmaceuticals, Inc. and, on July 14, 2006, was changed again to Gamma Pharmaceuticals, Inc.
Technology Transfer Agreement
On April 7, 2006, we entered into a Technology Transfer Agreement (the "Technology Transfer Agreement") with Mr. Peter Cunningham, Mr. Joseph Cunningham and Mr. Hao Zhang, our current officers and directors ("Assignors" or " Management"), pursuant to which we obtained all copyrights, trademarks, and know-how (collectively, "Transferred Technology") to a portfolio of vitamin and nutriceutical products and personal care products. The Transferred Technology is based on proprietary formulation technology, and we believe such technology represents improved versions of branded products currently being marketed by other companies. Assignors have developed a proprietary-marketing platform for (i) the Greater China (Peoples Republic of China [China], Hong Kong and Republic of China [Taiwan]) healthcare, vitamins and nutriceutical markets, over-the-counter ("OTC") pharmaceutical markets, and personal care markets and (ii) the United States vitamins and nutriceutical markets, OTC pharmaceutical markets, and personal care markets. We believe that the products, technologies and marketing platform will enable us to pursue a specialized business model for succeeding in these Greater China and United States markets.
Under the Technology Transfer Agreement, we acquired all copyrights, trademarks, trade secrets and know-how for a product line of 10 vitamins and nutriceuticals, and a product line of personal care products including IceDrops, an alcohol based hand sanitizer (collectively "New Products"). The products have been formulated to be in compliance with prevailing regulations of the appropriate government regulatory agencies in China, Taiwan, Hong Kong and the U.S. Final submission of labeling and product performance claims, to the same regulatory agencies, is pending. We intend to take the necessary steps to market the products in these jurisdictions and will undertake manufacturing through qualified third party sources. In all of these major markets, Management has experience marketing and selling similar products.
As per the agreement, we have an up-scale suite of consumer products including:
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Hand Sanitizer Lotion, water free
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Hand Sanitizer Lotion with Aloe, water free
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Supplement multivitamins, 4 fruit flavors (for children)
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Supplement Calcium, 4 fruit flavors
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Supplement Vitamin C, orange flavor
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Adjunctive supplement Immune booster
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Adjunctive supplement energy booster
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Adjunctive supplement for improved cognition
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Adjunctive supplement for reducing the side effects of chemotherapy
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Adjunctive supplement for symptoms of type II diabetes and pre-diabetes
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Adjunctive supplement for the symptoms of menopause
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Adjunctive supplement for stress reduction
Copyright protection is secured for all of the New Products' formulations except for the adjunctive supplement for the symptoms of menopause, for which an application for copyright is being submitted and awaiting receipt of a copyright registration number.
In August 2006, we completed negotiations with Jugular Inc., a brand management company, for a contract to license the Jugular brand name, logo and other graphic applications for a range of the energy products. The 5-year term of the contract includes exclusive worldwide rights to the brand, proprietary ownership of any improvements and an obligation for Jugular to provide support and resources to co-enable cross-brand promotional activities and resource activities at favorable market rates to the Company.
During May 2008, the Company amended its articles in increased its authorized capital from 500,000 shares of $0.001 preferred stock to 2,000,000 shares of $0.001 preferred stock and from 20,000,000 shares of $0.001 common stock to 100,000,000 shares of $0.001 common stock.
Our Business
We are a marketing and product formulation company selling our own branded products through wholesalers and direct to retailers both in the US and internationally. We are headquartered in Las Vegas, Nevada with a wholly-owned subsidiary company in Hong Kong and a Representative Office in Beijing the Peoples Republic of China (“PRC”). We have created, registered and branded innovative product lines of nutritional supplements, personal care products and Over-the-Counter (OTC) pharmaceuticals. Currently, our products are produced by third party manufactures and distributed in North America and Greater China. Our initial success is based on adapting our proprietary “Gel Delivery Technology®” for selected wellness products.
Through the Technology Transfer Agreement we acquired a new line of consumer goods in the vitamin and nutriceutical sector focused mainly on the greater China healthcare, vitamins and nutriceutical goods, OTC pharmaceutical, and personal care product markets and in the United States vitamins and nutriceuticals and personal care product markets. Our Management is experienced operating in the greater China and US markets and has a marketing platform and proprietary technologies that we believe will provide us with a specialized business model for use in developing a greater China consumer goods and OTC pharmaceutical business.
Products
We have developed and are continuing to expand our product lines in vitamins and nutriceuticals, personal care and OTC pharmaceutical products suitable for both the Greater China market and the United States market. All of our formulations are or will be copyright protected and we have undertaken the process to seek US patent protection on certain product application patents. We formulate and market unique digestible product forms including gel strips, gel liquids and gel solid forms. The products we intend to sell will be tailored to the targeted market segments by age group, purchasing power, lifestyle, medical condition or therapeutic objective. The product mix will then be segmented again by package size so as to meet price points in major retail channels such as convenience stores (small pack), pharmacy and supermarket (standard pack), and hypermarkets (large pack).
We shipped our first products in the three month period ended December 31, 2007. Sales have been made to a major national retail account for a product utilizing our proprietary Gel Technology, in a gumdrop product form. We have signed Agreements with wholesalers and with retail outlets for our branded products and have put in place a national network of product brokers in the United States. During fiscal year ending March 31, 2009, we began selling our branded products in China for distribution to retails stores in four major Chinese cities. We view this aspect of our business as critical to our future growth and expect the size and frequency of shipment to increase.
We have had ongoing and substantive discussions with several other large retailers in the United States and in China. Certain government organizations have expressed a strong desire to purchase our suite of energy products. We market our products under four Master Brands and also manufacture House Brands for major retail accounts. Our four brands include the following:
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BrilliantChoice™
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Savvy™
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Jugular Energy Products™
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House Brands
We market unique product forms including gel strips and gummy gels and crystal gels with each Master Brand targeting a defined consumer profile. For example, our BrilliantChoice™ brand consists of mainly children’s health supplements but is targeted to complement the mother, whom we have defined as the “multi-mom”, and the person mainly responsible for the buying of children’s supplements - “Mom you’ve made a brilliant choice.” Our tagline "Go for the Jugular" is used for our Jugular Energy Products™ which are targeted towards the youth oriented market including action sports and has resonated with several other sub markets which we intend to exploit.
Our products formulation, pack sizes and other product characteristics are gaining acceptance amongst our targeted consumers. We conducted a product survey in May 2007 with over 800 prospective purchasers of our products. The study demonstrated a 90% acceptance rate amongst survey participants for product form, taste and texture with nearly all participants expressing a willingness to buy the products.
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A large part of our initial product line of nutritional supplements, personal care products and OTC pharmaceutical products is based on proprietary uses of plant-based Gel technology to create innovative products. Products based on our “Gel Delivery Technology” offer, management believes, a highly desirable innovation over the typical tablets and capsules to which consumers have grown accustomed. The Gel products are the latest product forms consumers desire in the healthcare and supplement industries. Our Gel Delivery Technology will be a significant part of our marketing strategy, complete with an easily identified logo across product categories and lines to create consistent product message. Our products and Gel Delivery Technology have evolved through years of formulation and the global marketing experience of our Management.
Intellectual Property
Our performance and ability to compete depends to a significant degree on our proprietary knowledge. We rely or intend to rely on a combination of patent, copyright and trade secret laws, non-disclosure agreements and other contractual provisions to establish, maintain and protect our proprietary rights.
On April 7, 2006, we entered into a Technology Transfer Agreement pursuant to which we have obtained all copyrights, trademarks, and know-how to a portfolio of vitamin and nutriceutical products and personal care products. This Transferred Technology is based on proprietary formulation technology that we believe represents improved versions of certain current branded products now being marketed by other companies.
In August of 2006 we undertook an independent intangible asset valuation by BCC Capital Partners of Irvine, California. The purpose of the independent asset valuation was to satisfy our audit requirement with respect to FASB Statement 141 and 142. BCC was engaged specifically to estimate the fair value of the intangible assets transferred as a result of our April 7, 2006 Technology Transfer Agreement. BCC affirmed our intangible asset valuation at the time of the transaction for an aggregate $5.95 million.
Since that time, we have undertaken a concentrated effort to add to our intellectual property portfolio including in-licensing of the Jugular brand, on-going development of several new products and new product forms, and development of dossiers to support product patent applications.
On August 30, 2006, we successfully completed negotiations with Jugular Inc., a brand management company, for a contract to license the Jugular brand name, logo and other graphic applications for a range of the energy products. The 5-year term of the contract includes exclusive worldwide rights to the brand, proprietary ownership of any improvements and an obligation for Jugular to provide support and resources to co-enable cross-brand promotional activities and resource activities at favorable market rates to the Company.
On July 2, 2007, we amended our license agreement with Jugular, Inc. to expand the scope of product lines. Additionally, on August 29, 2007, we amended the license agreement to increase the term to 15 years with an automatic renewal for 5 year terms if we meet the minimum sales requirements.
On February 14, 2008, we entered into a letter agreement to acknowledge certain facts as they pertain to the License Agreement and amendments (collectively the “Agreement”) with Jugular. Pursuant to the letter agreement we agreed that the Payments of the Annual Gaurantee portion of the Agreement will be made on a quarterly basis and the payment amounts (listed in the letter agreement) will be made to Jugular regardless as to wheather or not the sales (listed in the Agreement) have been achieved.
We filed one patent application for liquid gells and gel strips and we are currently in the process of preparing applications for US patant protection for certain other product applications and evaluating certain other products and certain additional manufacturing methods for US patent protection.
On May 4, 2007, we purchased intellectual property from Peter Cunningham, an officer and director of the Company for $17,000. Additionally, Mr. Cunningham will be eligible to participate in any additional management compensation structure. We view the intellectual property as a core component of certain pending patent application.
Manufacturing
At this time, we intend to contract to manufacture our products with leading supply manufacturers in mainly North America and may consider qualified manufactures in greater China. We believe that this is a lower-risk strategy and will preserve capital investment particularly during the next 12-18 month period. We believe that there is a surplus of manufacturing capacity for our products in China and in the United States and as such, pricing pressure may result in manufacturers allowing for price concessions, providing us additional support for managing our gross margins. We will aim to diversify our manufacturing where possible so not to become overly dependent on any one manufacturing group. Our Management has worked with several manufacturing groups in the past and we believe the relationship with these groups will help us to quickly organize our manufacturing resources.
Raw materials
The principal raw materials required in our operations are vitamins, minerals, herbs, confectionary base and packaging components. We purchase the majority of our vitamins, minerals and herbs from raw material manufacturers and distributors in North America and Asia. We believe that there are adequate sources of supply for all of our principal raw materials. We also believe that our strong relationships with our suppliers will yield improved quality, pricing and overall service to our customers. Although there can be no assurance that our sources of supply for our principal raw materials will be adequate in all circumstances, in the event that such sources are not adequate, we believe that alternate sources can be developed in a timely and cost-effective manner.
Distribution
We are focusing our distribution channels and networks in an attempt to focus our sales network coverage in the United States and in all major provinces and cities of Asia, including Greater China. We believe these distribution networks will enable us to introduce our new products into target markets more effectively. We use exclusive and non-exclusive third party distributors for specific products and specific distribution territories.
We are seeking to hire regional sales representatives and embed certain specialists with our distribution partners on a full time equivalent basis. We also plan to use commission-based sales specialists. Although there can be no assurance of our success, our objective is to expand into approximately 10,000 retail outlets in Asia and the United States over the next 18 months. By diversifying our distribution base we will not have to rely on any single group for the bulk of our sales.
Marketing and Promotions
The Company has developed a series of innovative marketing and brand promotional programs designed to stimulate end purchaser demand and to support our wholesale and retail partners. The Company views the effective use of its marketing programs as a key value driver when presenting our brands and products to wholesalers and retailers alike. In effect, the Company is not just sell innovative product forms and noteworthy brands but also the Company’s ability to drive consumer demand to named retail outlets using the Company’s marketing and promotional activities. The Company uses a variety of promotional techniques including product sampling to drive the consumer's initial purchase but then relies on other activities to reinforce the purchase decision and to encourage additional product purchases.
Competition
The market for vitamins and nutritional supplement products is highly competitive. Competition is based primarily on price, quality and assortment of products, customer service, marketing support, and availability of new products. We believe that we are well positioned to compete in the fast-developing North American and Greater China vitamin and nutraceutical market with a potentially strong brand identity, diverse product portfolio, research and development capabilities, established sales and marketing know-how and favorable cost structure. We believe that competition and leadership in our industry are based on managerial and technological expertise, and the ability to identify and exploit commercially viable products.
Our direct competition consists primarily of publicly and privately owned companies, which tend to be highly fragmented in terms of both geographical market coverage and product categories. We also compete with companies that may have broader product lines and/or larger sales volumes. Our products will also compete with nationally advertised brand name products. Most of the national brand companies have resources greater than our resources.
There are numerous companies in the vitamin and nutritional supplement industry selling products to retailers, including mass merchandisers, drug store chains, independent drug stores, supermarkets and health food stores. Many companies within the industry are privately held. Therefore, we are unable to precisely assess the size of all of our competitors or where we rank in comparison to such privately held competitors with respect to sales to retailers.
Industry Overview
China
China is one of the world's major producers of ingredients for pharmaceuticals, herbal supplements, nutritional supplements and personal care products. According to a recent ISI Emerging Markets report, the pharmaceutical industry in China was approximately $27.7 billion in 2005 and China is forecast to become the world’s fifth largest pharmaceutical market by 2010.
Due in part to the relaxation of trade barriers following China's accession to the World Trade Organization ("WTO") in January 2002, we believe China will become one of the world's largest pharmaceutical markets by the middle of the twenty-first century. As a result, we believe the Chinese market presents a significant opportunity for both domestic and foreign drug manufacturers. With the Chinese accession to the WTO, the Chinese pharmaceutical industry is gearing up to face the new patent regime that is required by WTO regulation, and the Chinese government has begun to reduce its average tariff on pharmaceuticals. China has also agreed that foreign companies will be allowed to import most products, including pharmaceuticals, into any part of China.
Foreign companies are expected to benefit from China’s WTO accession in four significant areas. First, they will be able to acquire a larger share of the Chinese market. Second, they may be able to gain increased control over their distribution networks and may not have to rely on the complex and sometimes costly Chinese supply network. Third, open competition will give foreign drug companies a better chance of having their products included on China's provincial and municipal lists of drugs that are subject to state reimbursement. Finally, the intellectual property rights of foreign drug companies will be accorded enhanced protection. However, given China's past performance in adhering to international agreements, there can be no assurance that any or all of these benefits will be achieved.
The development of the retail drugstore sector in China since the most recent round of healthcare reforms began in 1998 has been rapid. Chain drugstores soon followed; since the promulgation of Chain Drugstores Regulations in 1998, more than 260 companies have been approved by the State Drug Administration ("SDA") as chain drugstores. Of the roughly 120,000 Chinese retail pharmacies as of December 2002, 260 were chain drugstore enterprises that managed in the aggregate 5,096 retail outlets. According to recent industry figures, there is an average of 26 retail drugstores for each chain; and the largest chain had a total of 231 interregional retail outlets. As of December 2002, the largest retail sales of a chain drugstore in China amounted to RMB300.0 million, or US$36.59 million.
United States
In the United States, Lifestyle of Health & Sustainability (“LOHAS”) marketplace is the fastest growing market in the nutritional supplement category, and according to research reports from the LOHAS Market Review, the U.S. LOHAS market grew by approximately 1% new joiners and 10% new spending per year to reach $355 billion in 2004. The Natural Marketing Institute for the American Botanical Council reports that the LOHAS market now includes more than 14% of the population in the U.S., or conservatively 40 million persons. The Hartman Group, a market research company, classifies certain vitamins, nutriceuticals and OTC pharmaceutical products as "wellness products." They report that nearly $66 billion was spent on wellness products in 2004. At that level of spending, the wellness products category accounts for approximately 25% of the spending amongst the LOHAS consumer category.
Government Regulation
China
Our principal sales market initially will be in the People's Republic of China. For certain products we will be subject to China's (OTC) Pharmaceutical Administrative Law, which governs the licensing, manufacturing, marketing and distribution of pharmaceutical products in China and sets penalties for violations of the law. We will also be subject to China's Food Sanitation Law, which provides the food sanitation standards to be followed by manufacturers and distributors. Our products are subject to registration as foods with the Food and Drug Administration ("FDA") and their equivalent organizations in all countries. In China, the equivalent organization is the SFDA (State Food & Drug Administration). We currently use a representative office located in Beijing PRC to represent our commercial activities in the PRC and to direct contracting to our US headquarters through our Hong Kong subsidiary, Gamma Pharmaceuticals (HK) Ltd. For such an organization arrangement we will be subject to the foreign company provisions of the Company Law of China, which governs the conduct of representative offices and their appointed representatives. Additionally, we will also be subject in varying degrees to regulations and the permit system administered by the Chinese government.
United States
The formulation, manufacturing, packaging, labeling, advertising, distribution and sale of our products are subject to regulation by federal agencies, including the FDA, the Federal Trade Commission, or FTC, the Postal Service, the Consumer Product Safety Commission, the Department of Agriculture, the Environmental Protection Agency, and also by various agencies of the states and localities in which our products are sold. In particular, the FDA, pursuant to the Federal Food, Drug, and Cosmetic Act, or FDCA, regulates the formulation, manufacturing, packaging, labeling, distribution and sale of dietary supplements, including vitamins, minerals and herbs, and of over-the-counter, or OTC, drugs, while the FTC regulates the advertising of these products, and the Postal Service regulates advertising claims with respect to such products sold by mail order.
Federal agencies, primarily the FDA and FTC, have a variety of procedures and enforcement remedies available to them, including the following:
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initiating investigations,
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issuing warning letters and cease and desist orders,
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requiring corrective labeling or advertising,
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requiring consumer redress, such as requiring that a company offer to repurchase products previously sold to consumers,
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seeking injunctive relief or product seizures,
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imposing civil penalties, or
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commencing civil procedures or criminal prosecution.
In addition, certain state agencies have similar authority. These federal and state agencies have in the past used these remedies in regulating participants in the dietary supplements industry, including the imposition by federal agencies of civil penalties in the millions of dollars against industry participants. We cannot assure you that the regulatory environment in which we operate will not change or that such regulatory environment, or any specific action taken against us, will not result in a material adverse effect on our operations. In addition, increased sales of, and publicity about, dietary supplements may result in increased regulatory scrutiny of the dietary supplements industry.
The Dietary Supplement Health and Education Act, or DSHEA, was enacted in 1994, amending the Federal Food, Drug, and Cosmetic Act, or FFD&CA. We believe the DSHEA is generally favorable to consumers and to the dietary supplement industry. DSHEA establishes a statutory class of "dietary supplements," which includes vitamins, minerals, herbs, amino acids, and other dietary ingredients for human use to supplement the diet. Dietary ingredients on the market as of October 15, 1994 do not require the submission by the manufacturer or distributor to the FDA of evidence of a history of use or other evidence of safety establishing that the ingredient will reasonably be expected to be safe, but a dietary ingredient that was not on the market as of October 15, 1994 may need to be the subject of such a submission to FDA at least 75 days before marketing. Among other things, the DSHEA prevents the FDA from regulating dietary ingredients in dietary supplements as "food additives" and allows the use of statements of nutritional support on product labels. The FDA has issued proposed and final regulations in this area and indicates that further guidance and regulations are forthcoming. We cannot assure you that the FDA will accept the evidence of safety for any new dietary ingredient that we may decide to use and the FDA's refusal to accept such evidence could result in regulation of such dietary ingredients as food additives, requiring FDA pre-approval based on newly conducted, costly safety testing. In addition, while the DSHEA authorizes the use of statements of nutritional support or "structure/function claims in the labels and labeling of dietary supplements, the FDA is required to be notified of such statements. We cannot assure you that the FDA will not consider particular labeling statements used by us to be drug claims rather than acceptable statements of nutritional support, thereby necessitating approval of a costly new drug application, or re-labeling to delete such statements. We do believe, however, that we substantially comply with the regulations promulgated under DSHEA with regard to labels and labeling of our dietary supplements.
In November 1998, the FTC announced new advertising guidelines specifically for the dietary supplement industry, entitled "Dietary Supplements: An Advertising Guide for Industry." These guidelines reiterate many of the policies the FTC has previously announced over the years, including requirements for substantiation of claims made in advertising about dietary supplements. We make every effort to ensure we are in compliance with FTC advertising standards.
The FFD&CA also authorizes the FDA to promulgate good manufacturing practices, or GMP, standards for dietary supplements, which require special quality controls for the manufacture, packaging, storage, and distribution of supplements. The final version of FDA's GMP regulation has not been published. We believe however, that we will be in substantial compliance with the regulations once they are issued. We contractually require that any independent third party manufacturers doing business with us comply with all existing, or to be promulgated, regulations. The FFD&CA further authorizes the FDA to promulgate regulations governing the labeling of dietary supplements, including claims for supplements pursuant to recommendations made by the Presidential Commission on Dietary Supplement Labels. These rules, which were issued on or after September 23, 1997, entail specific requirements relative to the labeling of our dietary supplements. The rules also require additional record keeping and claim substantiation, reformulation, or discontinuance of certain products, which would be a material expense to us.
We cannot predict the nature of any future laws, regulations, interpretations, or applications, nor can we determine what effect such additional regulation, when and if it occurs, would have on our business in the future. Such additional regulation could require, however, any of the following:
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the reformulation of certain products to meet new standards,
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the recall or discontinuance of certain products,
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additional record keeping,
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expanded documentation of the properties of certain products,
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revised, expanded or different labeling, or
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additional scientific substantiation.
Employees
We have six full-time employees and utilize a varying number of contracted consultant and professional service organizations to fulfill certain functional undertakings and to support the development and commercialization of our various product lines. We intend to hire additional full time employees to fill specific functions in our organization as our operations expand. We will also hire part-time or independent contractors in connection with certain projects in Greater China and the United States. We expect to have full-time-equivalent employees working directly for our distributors, manufacturers, and advertising and public relations agencies. We will vary employment as product demand dictates.
Consulting Agreements
CEOcast, Inc. On June 2, 2008, we entered into a Consulting Agreement with CEOcast, Inc., wherein CEOcast agreed to provide the Company with investor relations services. We agreed to pay CEOcast $6,000 for first month’s payment and 150,000 shares of restricted common stock (issued on July 14, 2008). In addition, we agreed to pay CEOcast $6,000 on or before the 2nd day of each of July and August and commencing on September 2, 2008, we will pay CEOcast $9,000 per month for September, October and November. The term of the agreement was for six (6) months terminating on December 2, 2008. As of March 31, 2009, the Company owes CEOcast $33,000 in compensation.
Black Cat Consulting, Inc. On July 1, 2008, we entered into a Consulting Agreement with Black Cat Consulting, Inc., wherein Black Cat agreed to provide the Company with strategic and financial consulting services. We agreed to compensate Black Cat 150,499 shares of our restricted common stock (issued on July 14, 2008). The term of the agreement was for six (6) months terminating on January 1, 2009.
Affiliated Business Services, Inc. On September 10, 2008, we entered into a Consulting Agreement with Affiliated Services, Inc., wherein Affiliated Business agreed to provide the Company with management consultant and senior advisor services on a non-exclusive basis. The term of the agreement is for one (1) year commencing on September 10, 2008 and shall continue on a month-to-month basis until terminated by either party with a notice of thirty days. We agreed to compensate the Consultant as follows: 1) a fee of 10 percent (10%) of any direct introduction which leads to an equity related investment; 2) a fee of five percent (5%) of any funds raised in cashless warrants in the same terms as those negotiated and agreed to by the Company and the Investor for any funds raised for the Company by an investor directly introduced by Consultant; 3) a fee of two percent (2%) of the aggregate consideration paid in a transaction and capped at $500,000 for any merger or acquisition directly introduced by Consultant; 4) a fee of five percent (5%), paid in arrears, of the total value of any contracts brought to the Company by Consultant for a period of not more than one year; and 5) a fee of three percent (3%) for any debt financing arranged by a direct introduced party.
HNO Management LLC. On October 1, 2008, we entered into a Consulting Agreement with HNO Management LLC, wherein HNO agreed to provide investor relations services to the Company for a term of six (6) months commencing on October 1, 2008. We agreed to compensate the HNO with $25,000 due upon execution of the agreement, 50,000 shares of free trading common stock due ten (10) days from the signing of the agreement and 200,000 shares of common stock due ten (10) days from the signing of the agreement. On October 30, 2008, the Company and HNO mutually terminated the agreement and we compensated the consultant $0 in cash and 24,000 shares of common stock (19,000 shares issued on October 24, 2008 and 5,000 shares issued on November 11, 2008).
New Castle Consulting, LLC. On November 3, 2008, we entered into a consulting agreement with New Castle Consulting for investor relations services for a period of six months commencing on November 3, 2008 and terminating on May 3, 2009. We agreed to issue 250,000 shares of common stock to New Castle Consulting as a commencement bonus which will vest at 42,000 shares per month beginning May 1, 2009 and will be 100% vested by October 1, 2009. The shares were issued on November 11, 2008.
Sandy Lang/Marty Goldrod. On January 21, 2009, we entered into an investor relations and representation agreement with Sandy Lang/Marty Goldrod (the “Consultant”), wherein the Consultant agreed to provide investor relations services to the Company for a period of thirty days with an automatic renewal of additional forty-five day periods up to one year. We agreed to compensate the Consultant with 1,000,000 shares of our restricted common stock which by mutual agreement was later reduced to 500,000 shares which were issued on February 27, 2009.
Allen Campbell. On January 2, 2009, we entered into an Agreement regarding Compensation for Consulting Services with Allen Campbell. Mr. Campbell provided the Company with consulting services since June 30, 2008 and has not been compensated for his services. We agreed to issue 200,000 shares of our restricted common stock to compensate Mr. Campbell for his past service. The 200,000 shares were issued to Mr. Campbell on February 27, 2009.
First National Partners, LLC. On March 20, 2009, we entered into an agreement with First National Partners, LLC (“FNP”), wherein the FNP agreed to provide the Company with services in securing a loan. FNP will advise the Company about the structuring of our financing request. FNP shall perform its best efforts in originating and processing a loan application. FNP will present the project to its direct lending affiliates for the purpose of the Company receiving funding for our project. We agreed to pay a processing fee of $2,000 to FNP. Additionally, upon funding we agreed to pay FNP a fee based upon the total funding amount.
Marketing Support Agreement
On October 11, 2007, we entered into a Marketing Support Agreement with Innovative Health Solutions, Inc. (the “Consultants”), wherein the Consultants agreed to provide the Company with services sufficient to achieve our target sales by selling certain of our products within the Territory (which includes all military connected installations and activities including all U.S. military ports and ships at sea). Pursuant to the agreement we agreed to pay the Consultants: (1) 5% commission payable on collection of receivables from the buyers in the Territory, payable quarterly; (2) 1% commission (finders fee) payable on collection of receivables from referred buyers in the Territory for a period of no more than 6 months from the start of sales to the referred buyers; and (3) 1% commission payable upon achievement of the sales forecast for each quarter, payable quarterly. The 1% finders fee may be replaced with 100,000 shares of common stock (100,000 shares were issued to the Consultants on April 9, 2008 and were registered on Form S-8 filed with the SEC on June 16, 2008). Additionally, the Consultants have the option of receiving payment of the 5% commission and the 1% performance bonus in cash or as shares or as a combination of cash and shares up to the value of 5% plus 1% of quarterly sales value. The term of the agreement is for 2 years, beginning on October 11, 2007 and terminating on October 10, 2010.
Advisory Agreements
On May 30, 2007, we entered into an Advisory Agreement with Ezra Cummings, wherein Mr. Cummings agreed to be a member of the Company’s Corporate Advisory Board. Pursuant to the agreement we agreed to issue 20,000 shares of our common stock and an option to purchase 20,000 shares of our common stock to Mr. Cummings as compensation for his services. The 20,000 shares of common stock were issued to Mr. Cummings on April 9, 2008 and were registered on Form S-8 filed with the SEC on June 16, 2008. As of September 30, 2008, the 20,000 options have not been granted to Mr. Cummings. The term of the agreement began on May 30, 2007 and terminated on May 29, 2009.
On June 30, 2008, the Company entered into a professional advisory agreement with John Cunningham for the period commencing on June 30, 2008 and concluding on September 15, 2008. We agreed to compensate Mr. John Cunningham with a performance bonus of 20,000 shares of common stock (issued on October 24, 2008) and $5,000 a month.
On November 19, 2008, we entered into a professional advisory agreement with Sherman Lazrus, wherein Mr. Lazrus agreed to introduce the Company to new financing sources that directly fund transactions including debt, equity, and equity related. Upon completion of a funding from a directly introduced source, the Company has agreed to pay no more than 5% of the gross proceeds. For introductions to other financial intermediary and successful closing of funding, the Company shall pay a one-time finders’ fee of 2% in cash. If the consultant assists the Company with securing an equity line of credit, then the Company will pay the consultant a one-time fee equal to 1.30% in cash and 1.30% in shares of common stock. The term of the agreement was for one year from the date of November 19, 2008. As of December 31, 2008, the agreement was mutually terminated by both parties.
On April 6, 2009, we entered into a Non Exclusive Corporate Advisory Agreement with Atlanta Capital Partners, LLC (“ACP”), wherein we engaged ACP as our Strategic Corporate Advisor. In the event ACP is involved in advising, introducing and/or consulting to the Company on any financing accepted by the Company, we will compensate ACP as follows: 1) a bonus consulting fee equal to 4% of any non-subordinated debt financing; 2) a bonus consulting fee equal to 10% of any subordinated debt financing; and 3) a $500 an hour consulting fee will be paid to ACP if an equity financing or any other type of financing that is handled by a broker/dealer and where ACP assists in the coordination of such activity. The term of the agreement will last until the Company provides ACP a written notification of termination of the agreement.
Finder Agreement
On May 7, 2008, we entered into a Finder Agreement with Knute Alger, wherein Mr. Alger agreed to introduce the Company to certain financing sources known to or identified by Mr. Alger relating to a potential financing (“transaction”) involving the Company. If we close on a Transaction wherein Mr. Alger identified the source of financing, we will pay Mr. Alger, upon closing of the Transaction, 20,000 shares of our restricted common stock per $100,000 raised. The agreement may be terminated at any time by either party. During the three months ended June 30, 2008, Mr. Alger earned 10,000 shares of our common stock. The 10,000 shares were issued to Mr. Alger on July 14, 2008.
On October 15, 2008, we entered into a Finder Agreement with Cody Camarote, wherein Mr. Camarote agreed to introduce the Company to certain financing sources known to or identified by Mr. Camarote relating to potential financing (“transaction”) involving the Company. If we close on a transaction wherein Mr. Camarote identified the source of financing, we will pay Mr. Camarote, upon closing of the transaction, 8% cash fee and 10,000 shares of our restricted common stock per $100,000 raised through a direct equity investment and a 2% cash fee if an introduction results in the successful closing of a transaction. The agreement may be terminated at any time by either party. In the fourth quarter ended March 31, 2009, Mr. Camarote assisted the Company in raising $25,000.
Marketing Support Agreement
On April 1, 2008, we entered into a Marketing Support Agreement with Gary Reeves, wherein Mr. Reeves agreed to provide the Company with services to achieve our target sales by selling certain of our products within the Territory (territory to be agreed between the parties from time to time). Pursuant to the agreement we agreed to pay Mr. Reeves: (1) 5% commission payable on collection of receivables from the buyers in the Territory, payable quarterly; (2) 1% commission (finder fee) payable on collection of receivables from referred buyers in the Territory for a period of no more than 6 months from the start of sales to the referred buyers; and (3) 1% commission payable upon achievement of the sales forecast for each quarter, payable quarterly. The 1% finder fee may be replaced with 100,000 shares of common stock (issued to Mr. Reeves on April 9, 2008 and were registered on Form S-8 filed with the SEC on June 16, 2008). We will pay Mr. Reeves on a limited basis as follows: (a) not to exceed $4,000 monthly, (b) monthly payments will be made until commission structure on the incremental net sales generates a payment to Mr. Reeves of $4,000 in a period first day of month until last day of month, and (c) As incremental net sales generate commission higher than zero but not yet achieving $4,000, compensation will be paid using the formula $4,000 less commission earned and or attributable to a month defined as a period first day of month until last day of month = compensation due and payable. Additionally, Mr. Reeves has the option of receiving payment of the 5% commission and the 1% performance bonus in cash or as shares or as a combination of cash and shares up to the value of 5% plus 1% of quarterly sales value. The term of the agreement is for 2 years, beginning on April 1, 2008 and terminating on March 30, 2010.
Consignment Agreements
On December 1, 2008, we entered into an inventory consignment agreement with Bridgeland Trading Ltd., wherein Gamma hereby grants to Bridgeland, upon and subject to the terms and conditions of the agreement, an exclusive license under the rights to develop, manufacture, market, distribute and sell, and have manufactured, marketed, distributed and sold, certain products. Pursuant to the agreement Gamma and Bridgeland desire that Bridgeland sell the consigned merchandise pursuant to a consignment arrangement, the terms of which are set forth in the agreement. The consignment payment shall be equal to 10% of Bridgeland’s net sales of consigned merchandise, plus such additional amount, if any, as may be necessary for Bridgeland to pay the minimum consignment payment.
In connection with the consignment agreement mentioned above between Gamma and Bridgeland, on December 1, 2008, Bridgeland entered into an inventory consignment agreement with Parco Sino-Can Science Technology Inc. Bridgeland is engaged in the supply of pharmaceutical products as a result of its inventory consignment agreement with Gamma (mentioned above) and wishes to provide Parco with rights to package, promote, sell and distribute certain of its products in the Territory on a Consignment basis. Parco is in the business of packaging, marketing and distributing a number of products, for companies doing business in China and elsewhere, including pharmaceutical products. Pursuant to the agreement, Parco will market and sell certain of Bridgeland's products as consigned to Bridgeland pursuant to the terms and conditions of the Gamma Agreement, on a consignment basis, the “Consigned Merchandise,” which includes, but is not limited to various pharmaceutical products including but not limited to Multi-Flavored Gumdrops, Swirl Gummy Bears, Multi-Flavored gummy Bears, and Orange Gumdrops. The consignment payment shall be equal to 10% of Parco’s net sales of consigned merchandise, plus such additional amount, if any, as may be necessary for Parco to pay the minimum consignment payment.
AVAILABLE INFORMATION
We file annual, quarterly and special reports and other information with the SEC that can be inspected and copied at the public reference facility maintained by the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549-0405. Information regarding the public reference facilities may be obtained from the SEC by telephoning 1-800-SEC-0330. The Company's filings are also available through the SEC's Electronic Data Gathering Analysis and Retrieval System which is publicly available through the SEC's website (www.sec.gov). Copies of such materials may also be obtained by mail from the public reference section of the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549-0405 at prescribed rates.
ITEM 1A.
ITEM 1A. RISK FACTORS
Our business, financial condition and operating results could be adversely affected by any of the following factors, in which case the value of our equity securities could decline, and investors could lose part or all of their investment. The risks and uncertainties described below are not the only ones that the Company faces. Additional risks and uncertainties not presently known to management, or that management currently thinks are immaterial, may also impair future business operations.
RISKS RELATING TO OUR COMPANY.
We are required to make accounting estimates and judgments in preparing our consolidated financial statements.
In preparing our consolidated financial statements in accordance with accounting principles generally accepted in the United States, we make certain estimates and assumptions that affect the accounting for and recognition of assets, liabilities, revenues and expenses. These estimates and assumptions must be made because certain information that is used in the preparation of our consolidated financial statements is dependent on future events, or cannot be calculated with a high degree of precision from data available. In some cases, these estimates are particularly difficult to determine and we must exercise significant judgment. The estimates and the assumptions having the greatest amount of uncertainty, subjectivity and complexity are related to our accounting for bad debts, returns and allowances, warranty and repair costs, derivatives, and asset impairments. Actual results could differ materially from the estimates and assumptions that we use, which could have a material adverse effect on our financial condition and results of operations.
Our auditor’s report reflects the fact that without realization of additional capital, it would be unlikely for us to continue as a going concern.
As a result of our deficiency in working capital at March 31, 2009, our auditors have included a paragraph in their report regarding substantial doubt about our ability to continue as a going concern. Our plans in this regard are to seek additional funding through future equity private placements, with traditional financing firms and/or with an industry partner, or debt facilities.
Our limited operating history makes it difficult to evaluate our future prospects and results of operations.
We have a limited operating history. We were established in 1993, for the purpose of seeking out business opportunities, including acquisitions that the Board of Directors, in its discretion, believes to be good opportunities. Pursuant to the Technology Transfer Agreement and the Employment Agreements with our management the Company is poised to begin operations in the field of OTC pharmaceuticals, vitamins, and supplements. We will be heavily dependent on the skills, talents, and abilities of our management to successfully implement our business plan. The marketing and sale of vitamins, nutriceuticals, OTC pharmaceutical and personal care products is highly risky and speculative. Our current cash balance will not be adequate for us to continue our operations for this fiscal year; and, in order to compete in this new business opportunity an additional cash infusion will be required and without such additional cash infusion we will very rapidly deplete our current cash reserve. In such event, we may be forced to cease operations and investors' shares would become worthless.
Accordingly, you should consider our future prospects in light of the risks and uncertainties experienced by early stage companies in evolving markets such as the growing market for vitamins and nutriceuticals in Greater China and the United States. Some of these risks and uncertainties relate to our ability to:
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offer products to attract and retain a larger customer base;
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attract additional customers and increased spending per customer;
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increase awareness of our brands and continue to develop customer loyalty;
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respond to competitive market conditions;
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respond to changes in our regulatory environment;
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manage risks associated with intellectual property rights;
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maintain effective control of our costs and expenses;
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raise sufficient capital to sustain and expand our business;
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attract, retain and motivate qualified personnel; and
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upgrade our technology to support additional research and development of new products.
If we are unsuccessful in addressing any of these risks and uncertainties, our business may be materially and adversely affected.
We will need additional capital to fund our operations, and we may not be able to obtain sufficient capital and may be forced to limit the scope of our operations.
As of March 31, 2009, we had $116,669 in cash. Our management plans to raise additional equity capital to begin executing our business plan, but there can be no assurance that we will be able to raise such funds. Even if we are able to raise additional capital to begin to execute our business plan, as we continue to implement our plan to expand into additional markets, we will experience increased capital needs and we will not have enough capital to fund our future operations without additional capital investments. Our capital needs will depend on numerous factors, including (1) our profitability; (2) the release of competitive products by our competition; (3) the level of our investment in research and development; and (4) the amount of our capital expenditures. We cannot assure you that we will be able to obtain capital in the future to meet our needs.
If we cannot obtain initial or additional funding, we may be required to:
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limit our marketing efforts; and
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decrease or eliminate capital expenditures.
Such reductions could materially adversely affect our business and our ability to compete.
Even if we do find a source of initial and additional capital, we may not be able to negotiate terms and conditions for receiving the additional capital that are acceptable to us. Any future capital investments could dilute or otherwise materially and adversely affect the holdings or rights of our existing stockholders. In addition, new equity or convertible debt securities issued by us to obtain financing could have rights, preferences and privileges senior to our common stock. We cannot give you any assurance that any additional financing will be available to us, or if available, will be on terms favorable to us.
We need to manage growth in operations to maximize our potential growth and achieve our expected revenues.
In order to maximize potential growth in our current and potential markets, we believe that we must expand our marketing operations. To fund our anticipated expansion, we need an increased amount of working capital. This expansion will place a significant strain on our management and our operational, accounting, and information systems. We expect that we will need to continue to improve our financial controls, operating procedures, and management information systems. We will also need to effectively train, motivate, and manage our employees. Our failure to manage our growth could disrupt our operations and ultimately prevent us from generating the revenues we expect.
If we are not able to implement our strategies in achieving our business objectives, our business operations and financial performance may be adversely affected.
Our business plan is based on circumstances currently prevailing and the bases and assumptions that certain circumstances will or will not occur, as well as the inherent risks and uncertainties involved in various stages of development. However, there is no assurance that we will be successful in implementing our strategies or that our strategies, even if implemented, will lead to the successful achievement of our objectives. If we are not able to successfully implement our strategies, our business operations and financial performance may be adversely affected.
We may have difficulty defending our intellectual property rights from infringement.
We regard our service marks, trademarks, copyrights, trade secrets, pending patent applications and similar intellectual property as critical to our success. We will rely on trademark, copyright, patent and trade secret law, as well as confidentiality and license agreements with our employees, customers, partners and others to protect our proprietary rights. We have registered a trademark in the United States and will seek to utilize our US trademark approval in all markets of interest including the People's Republic of China. No assurance can be given that our copyrights, trademarks or other intellectual property will not be challenged, invalidated, infringed or circumvented, or that our intellectual property rights will provide competitive advantage to us. There can be no assurance that we will be able to obtain a license from a third-party technology that we may need to conduct our business or that such technology can be licensed at a reasonable cost.
We intend to sell our products mainly in China, the United States and other significant territories in the greater China area including Hong Kong, Macau, Taiwan, (Greater China) and South Korea. Asia including Greater China will remain our primary market for the foreseeable future. We are looking at other markets, but we do not have immediate plans to market our products into any other countries or regions. Other than the United States, China and Hong Kong we have not applied for any trademark or patent protection in any other countries but intend to do so in the near future. Therefore, the measures we take to protect our proprietary rights may be inadequate and we cannot give you any assurance that our competitors will not independently develop formulations and processes that are substantially equivalent or superior to our own or copy our products.
Intense competition from existing and new entities may adversely affect our revenues and profitability.
We compete with other companies, many of whom are developing or can be expected to develop products similar to ours. Our market is a large market with many competitors. Many of our competitors are more established than we are, and have significantly greater financial, technical, marketing and other resources than we presently possess. Some of our competitors have greater name recognition and a larger customer base. These competitors may be able to respond more quickly to new or changing opportunities and customer requirements and may be able to undertake more extensive promotional activities, offer more attractive terms to customers, and adopt more aggressive pricing policies. We intend to brand our products and create brand awareness for our brands so that we can successfully compete with our competitors. We cannot assure you that we will be able to compete effectively with current or future competitors or that the competitive pressures we face will not harm our business.
The products and the processes we use could expose us to substantial liability.
We face an inherent business risk of exposure to product liability claims in the event that the use of our technologies or products is alleged to have resulted in adverse side effects. Side effects or marketing or manufacturing problems pertaining to any of our products could result in product liability claims or adverse publicity. These risks will exist for those products in clinical development and with respect to those products that have received regulatory approval for commercial sale. We plan to carry insurance policies which are customary for enterprises in our industry. We do not expect any special restrictions or exceptions attached to this coverage other than fraudulent or criminal conducts on part of the claimant.
Our failure to comply with current or future governmental regulations could adversely affect our business.
The formulation, manufacturing, packaging, labeling, advertising, distribution, and sale of nutriceuticals, such as those sold by us, are subject to regulation by a number of federal, state and local agencies, principally, the FDA, and the FTC, as well as foreign agencies in areas where we may operate. Among other matters, this regulation is concerned with product safety and claims made with respect to a product's ability to provide health-related benefits. These agencies have a variety of procedures and enforcement remedies available to them, including the following:
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initiating investigations;
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issuing warning letters and cease and desist orders;
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requiring corrective labeling or advertising;
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requiring consumer redress, such as requiring that a company offer to repurchase products previously sold to consumers;
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seeking injunctive relief or product seizures; and
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imposing civil penalties or commencing criminal prosecution.
Federal and state agencies have in the past used these remedies in regulating participants in the nutriceuticals industry, including the imposition by federal agencies of civil penalties in the millions of dollars against a few industry participants. In addition, publicity related to nutriceuticals may result in increased regulatory scrutiny of the nutriceuticals industry.
Our failure to comply with applicable laws could subject us to severe legal sanctions, which could have a material adverse effect on our business and results of operations. The regulatory environment in which we operate could change and such regulatory environment, or any specific action taken against us, could result in a material adverse effect on our business and operations. A state could interpret claims presumptively valid under federal law as illegal under that state's regulations, and future FDA regulations or FTC decisions could restrict the permissible scope of such claims. Any such proceedings or investigations or any future proceedings or investigations could have a material adverse effect on our business or operations.
We depend on our key management personnel and the loss of their services could adversely affect our business.
We will place substantial reliance upon the efforts and abilities of our executive officers: Peter Cunningham, our Chief Executive Officer; Joseph Cunningham, our Chief Financial Officer; and Hao Zhang, our Chief Marketing Officer. The loss of the services of any of our executive officers could have a material adverse effect on our business, operations, revenues or prospects. We do not maintain key man life insurance on the lives of these individuals.
We may never pay any dividends to our stockholders.
Our board of directors does not intend to distribute dividends in the near future. The declaration, payment and amount of any future dividends will be made at the discretion of the board of directors, and will depend upon, among other things, the results of our operations, cash flows and financial condition, operating and capital requirements, and other factors as the board of directors considers relevant. There is no assurance that future dividends will be paid, and if dividends are paid, there is no assurance with respect to the amount of any such dividend.
Our future success will depend on our ability to anticipate and respond in a timely manner to changing consumer demands.
Our future success will depend on our products’ appeal to a broad range of consumers whose preferences cannot be predicted with certainty and are subject to change. If our products do not meet consumer demands, our sales may decline. In addition, our growth depends upon our ability to develop new products through product line extensions and product modifications, which involve numerous risks. We may not be able to accurately identify consumer preferences and translate our knowledge into customer-accepted products or successfully integrate these products with our existing product platform or operations. We may also experience increased expenses incurred in connection with product development, marketing and advertising that are not subsequently supported by a sufficient level of sales, which would negatively affect our margins. Furthermore, product development may divert management’s attention from other business concerns, which could cause sales of our existing products to suffer. We cannot assure you that newly developed products will contribute favorably to our operating results.
If our products fail to perform properly, our business could suffer with increased costs and reduced income.
Our products may fail to meet consumer expectations. Failure of our products to meet expectations could:
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damage our reputation;
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decrease sales;
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incur costs related to returns;
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delay market acceptance of our products;
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result in unpaid accounts receivable; and
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divert our resources to reformulation or alternative products.
International unrest or foreign currency fluctuations could adversely affect the Company’s results.
There are a number of risks arising from the Company's international business, including:
- foreign currencies it receives for sales outside the U.S. could be subject to unfavorable exchange rates with the U.S. dollar and reduce the amount of revenue that the Company recognizes;
- the possibility that unfriendly nations or groups could boycott its products;
- general economic and political conditions in the markets in which it operate;
- potential increased costs associated with overlapping tax structures;
- more limited protection for intellectual property rights in some countries;
- unexpected changes in regulatory requirements;
- the difficulties of compliance with a wide variety of foreign laws and regulations;
- longer accounts receivable cycles in certain foreign countries; and
- import and export licensing requirements.
A significant portion of the Company's business is conducted in currencies other than the U.S. dollar, which is its reporting currency. The Company recognizes foreign currency gains or losses arising from its operations in the period incurred. As a result, currency fluctuations between the U.S. dollar and the currencies in which the Company does business have caused, and will continue to cause, foreign currency transaction gains and losses. The Company cannot predict the effects of exchange rate fluctuations upon our future operating results because of the number of currencies involved, the variability of currency exposures, and the potential volatility of currency exchange rates. The Company engages in limited foreign exchange hedging transactions to mitigate the impact of this volatility on its operations, but its strategies are short-term in nature and may not adequately protect its operating results from the full effects of exchange rate fluctuations.
RISKS RELATING TO THE PEOPLE'S REPUBLIC OF CHINA
There could be changes in government regulations towards the pharmaceutical, health supplement and food industries that may adversely affect our business.
The import, manufacture and sale of food products, supplements, and personal care products in the PRC is heavily regulated by many state, provincial and local authorities. These regulations significantly increase the difficulty and costs involved in obtaining and maintaining regulatory approvals for marketing new and existing products. Our future growth and profitability will depend to a large extent on our ability to obtain regulatory approvals.
The State Food and Drug Administration of China recently implemented new guidelines for licensing of food and supplement products. All manufacturers, importers and marketers are subject to business license approval and achievement of quality standards for consumer protection as outlined in the regulations.
Moreover, the laws and regulations regarding acquisitions of any of food, personal care, supplement or pharmaceutical industries in the PRC may also change and may significantly impact our ability to grow through acquisitions.
There are risks associated with the Chinese economy that is in transition from a command economy to a market economy.
A substantial amount of our business will be located in the PRC, and much of our revenue will likely be sourced from the PRC. Accordingly, our results of operations and financial position are subject to a significant degree to economic, political and legal developments in the PRC, including the following risks:
Economic, political and social conditions and government policies in China could have a material adverse effect on our business, financial condition and results of operations.
The economy of China differs from the economies of most developed countries in many respects, including, but not limited to:
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structure
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capital re-investment
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government involvement
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allocation of resources
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level of development
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control of foreign exchange
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growth rate
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rate of inflation
The economy of China has been transitioning from a planned economy to a more market-oriented economy. Although in recent years the PRC government has implemented measures emphasizing the utilization of market forces for economic reform, a substantial portion of productive assets in China is still owned by the PRC government. In addition, the PRC government continues to play a significant role in regulating industries by imposing industrial policies. It also exercises significant control over Chinese economic growth through allocation of resources, controlling payment of foreign currency-denominated obligations, setting monetary policy and providing preferential treatment to particular industries or companies.
Policies and other measures taken by the PRC government to regulate the economy could have a significant negative impact on economic conditions in China, with a resulting negative impact on our business. For example, our financial condition and results of operations may be materially and adversely affected by:
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new laws and regulations and the interpretation of those laws and regulations;
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the introduction of measures to control inflation or stimulate growth;
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changes in the rate or method of taxation;
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the imposition of additional restrictions on currency conversion and remittances abroad; or
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any actions which limit our ability to develop, produce, import or sell our products in China, or to finance and operate our business in China.
Further movements in exchange rates may have a material adverse effect on our financial condition and results of operations.
We expect that the majority of our China sales will be denominated in Renminbi and our domestic sales will be denominated primarily in U.S. dollars. In addition, we expect to incur a portion of our cost of sales in Euros, U.S. dollars, Australian Dollars and Canadian Dollars in the course of our purchase of imported production equipment and raw materials. Since 1994, the conversion of the Renminbi into foreign currencies has been based on rates set by the People's Bank of China, and the exchange rate for the conversion of the Renminbi to U.S. dollars had generally been stable. However, starting from July 21, 2005, the PRC government moved the Renminbi to a managed floating exchange rate regime based on market supply and demand with reference to a basket of currencies. As a result, the Renminbi is no longer directly pegged to the U.S. dollar. The exchange rate of the U.S. dollar against the Renminbi was adjusted from approximately RMB8.28 per U.S. dollar on July 20, 2005 to RMB6.83 per U.S. dollar on November 22, 2008. The exchange rate may become volatile, the Renminbi may be revalued further against the U.S. dollar or other currencies or the Renminbi may be permitted to enter into a full or limited free float, which may result in an appreciation or depreciation in the value of the Renminbi against the U.S. dollar or other currencies, any of which could have a material adverse effect on our financial condition and results of operations.
Governmental control of currency conversion may affect the value of your investment.
The PRC government imposes controls on the convertibility of Renminbi into foreign currencies and, in certain cases, the remittance of currency outside of China. We expect to receive the majority of our revenues in Renminbi. Shortages in the availability of foreign currency may restrict our ability to remit sufficient foreign currency to pay dividends or other payments to us, or otherwise satisfy its foreign currency denominated obligations. Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest payments and expenditures from trade-related transactions, can be made in foreign currencies without prior approval from the PRC State Administration of Foreign Exchange by complying with certain procedural requirements. However, approval from appropriate government authorities is required in those cases in which Renminbi is to be converted into foreign currency and remitted out of China to pay capital expenses, such as the repayment of bank loans denominated in foreign currencies. The PRC government may also at is discretion restrict access in the future to foreign currencies for current account transactions. If the foreign exchange control system prevents us from obtaining sufficient foreign currency to satisfy our currency demands, we may not be able to pay dividends in foreign currencies to our stockholders.
We will be subject to restrictions on making payments from China.
We are incorporated in the State of Delaware and at present do not have any assets or conduct any business operations, but our plan is for our initial business to be conducted in China. As a result, we will rely on payments or dividends from our China cash flow to fund our corporate overhead and regulatory obligations. The PRC government also imposes controls on the conversion of Renminibi into foreign currencies and the remittance of currencies out of China. We may experience difficulties in completing the administrative procedures necessary to obtain and remit foreign currency. If we are unable to receive all of the revenues from our operations through contractual or dividend arrangements, we may be unable to pay dividends on our shares of common stock.
Uncertainties with respect to the PRC legal system could adversely affect us.
We conduct our business in China primarily through a representative office in the PRC. A representative office in China is limited in its commercial activities. We use our representative office for marketing and sales administration for sales conducted between China and our parent company or designate. Our operations in China will be governed by PRC laws and regulations. We are generally subject to laws and regulations applicable to foreign investments in China. The PRC legal system is based on written statutes. Prior court decisions may be cited for reference but have limited precedential value.
Since 1979, PRC legislation and regulations have significantly enhanced the protections afforded to various forms of foreign investments in China. However, China has not developed a fully-integrated legal system and recently-enacted laws and regulations may not sufficiently cover all aspects of economic activities in China. In particular, because these laws and regulations are relatively new, and because of the limited volume of published decisions and their nonbinding nature, the interpretation and enforcement of these laws and regulations involve uncertainties. In addition, the PRC legal system is based in part on government policies and internal rules (some of which are not published on a timely basis or at all) that may have a retroactive effect. As a result, we may not be aware of our violation of these policies and rules until sometime after the violation. In addition, any litigation in China may be protracted and result in substantial costs and diversion of resources and management attention.
It may be difficult to effect service of process upon us or our directors or senior management who live in the PRC or to enforce any judgments obtained from non-PRC courts.
Initially, the majority of our operations will be conducted within the PRC. In addition, one of our Directors and executive officers resides in China. You may experience difficulties in effecting service of process upon us, our Director or our senior management as it may not be possible to effect such service of process inside China. In addition, we are advised that China does not have treaties with the United States and many other countries providing for reciprocal recognition and enforcement of court judgments. Therefore, recognition and enforcement in China of judgments of a court in the United States or certain other jurisdictions may be difficult or impossible.
RISKS RELATING TO OUR STOCK
Our Certificate of incorporation authorizes the issuance of shares of preferred stock, the rights, preferences, designations and limitations of which may be set by the board of directors.
Our certificate of incorporation has authorized issuance of up to 2,000,000 shares of preferred stock ("Preferred Stock") in the discretion of its board of directors. Any undesignated shares of Preferred Stock may be issued by our board of directors; no further stockholder action is required. If issued, the rights, preferences, designations and limitations of such Preferred Stock would be set by the board of directors and could operate to the disadvantage of the outstanding common stock. Such terms could include, among others, preferences as to dividends and distributions on liquidation, or could be used to prevent possible corporate takeovers.
Because our common stock is deemed a low-priced “Penny” stock, an investment in our common stock should be considered high risk and subject to marketability restrictions.
Since our common stock is a penny stock, as defined in Rule 3a51-1 under the Securities Exchange Act, it will be more difficult for investors to liquidate their investment even if and when a market develops for the common stock. Until the trading price of the common stock rises above $5.00 per share, if ever, trading in the common stock is subject to the penny stock rules of the Securities Exchange Act specified in rules 15g-1 through 15g-10. Those rules require broker-dealers, before effecting transactions in any penny stock, to:
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Deliver to the customer, and obtain a written receipt for, a disclosure document;
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Disclose certain price information about the stock;
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Disclose the amount of compensation received by the broker-dealer or any associated person of the broker-dealer;
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Send monthly statements to customers with market and price information about the penny stock; and
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In some circumstances, approve the purchaser’s account under certain standards and deliver written statements to the customer with information specified in the rules.
Consequently, the penny stock rules may restrict the ability or willingness of broker-dealers to sell the common stock and may affect the ability of holders to sell their common stock in the secondary market and the price at which such holders can sell any such securities. These additional procedures could also limit our ability to raise additional capital in the future.
FINRA sales practice requirements may also limit a stockholder's ability to buy and sell our stock.
In addition to the “penny stock” rules described above, FINRA has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer's financial status, tax status, investment objectives and other information. Under interpretations of these rules, the FINRA believes that there is a high probability that speculative low priced securities will not be suitable for at least some customers. The FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our common stock, which may limit your ability to buy and sell our stock and have an adverse effect on the market for our shares.
If we fail to remain current on our reporting requirements, we could be removed from the OTC Bulletin Board, which would limit the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market.
Companies trading on the OTC Bulletin Board, such as us, generally must be reporting issuers under Section 12 of the Securities Exchange Act of 1934, as amended, and must be current in their reports under Section 13, in order to maintain price quotation privileges on the OTC Bulletin Board. More specifically, FINRA has enacted Rule 6530, which determines eligibility of issuers quoted on the OTC Bulletin Board by requiring an issuer to be current in its filings with the Commission. Pursuant to Rule 6530(e), if we file our reports late with the Commission three times in a two-year period or our securities are removed from the OTC Bulletin Board for failure to timely file twice in a two-year period, then we will be ineligible for quotation on the OTC Bulletin Board. As a result, the market liquidity for our securities could be severely adversely affected by limiting the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market. As of the date of this filing, we have two late filings reported by FINRA.
Our internal controls may be inadequate, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. As defined in Exchange Act Rule 13a-15(f), internal control over financial reporting is a process designed by, or under the supervision of, the principal executive and principal financial officer and effected by the board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of Gamma; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of Gamma are being made only in accordance with authorizations of management and directors of Gamma, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of Gamma's assets that could have a material effect on the financial statements.
We have a limited number of personnel that are required to perform various roles and duties as well as be responsible for monitoring and ensuring compliance with our internal control procedures. As a result, our internal controls may be inadequate or ineffective, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public. Investors relying upon this misinformation may make an uninformed investment decision.
ITEM 2.
ITEM 2. PROPERTIES
Our principal office of record is located at 7477 W. Lake Mead Blvd., Las Vegas, Nevada 89128. We pay a resident agent fee of approximately $400 for this office. We currently maintain our corporate office at 2569 E. Washburn Rd., North Las Vegas, NV 89081, for which we have executed a 12 month lease on an office suite that is approximately 4,000 square feet for which we pay rent of $3,200 per month. Our registered office for our Hong Kong subsidiary is located at 3705 Bank of America Tower, 12 Harcourt Road, Central, Hong Kong. Our annual rent for this office is $1,500. Our Beijing Representative Office, Gamma Pharmaceuticals (HK) Ltd. Representative office is located at Suite 909, Everlasting Plaza, 39 Anding Road Beijing, 100029, P.R.C. and we pay $2,000 monthly. As our business develops we plan to move to larger space as merited.
ITEM 3.
ITEM 3. LEGAL PROCEEDINGS
From time to time, we may become involved in various lawsuits and legal proceedings, which arise in the ordinary course of business. However, litigation is subject to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm our business. We are not presently a party to any material litigation, nor to the knowledge of management is any litigation threatened against us.
ITEM 4.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5.
ITEM 5.
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
(a) Market Information
Our Common Stock is traded in the over-the-counter securities market through the Financial Industry Regulatory Authority ("FINRA") Automated Quotation Bulletin Board System, under the symbol “GMPM”. We have been eligible to participate in the OTC Bulletin Board since December 24, 2007. The following table sets forth the quarterly high and low bid prices for our Common Stock during our last fiscal year, as reported by a Quarterly Trade and Quote Summary Report of the OTC Bulletin Board. The quotations reflect inter-dealer prices, without retail mark-up, markdown or commission, and may not necessarily represent actual transactions.
(b) Holders of Common Stock
As of July 13, 2009, we had approximately 413 stockholders of record of the 27,020,876 shares outstanding.
(c) Dividends
We intend to follow a policy of retaining earnings, if any, to finance the growth of the business and do not anticipate paying any cash dividends in the foreseeable future. The declaration and payment of future dividends on our Common Stock will be at the sole discretion of the Board of Directors and will depend on our profitability and financial condition, capital requirements, statutory and contractual restrictions, future prospects and other factors deemed relevant.
(d) Securities Authorized for Issuance under Equity Compensation Plans
2006 Long Term Incentive Plan
The following description applies to the 2006 Long Term Incentive Plan which we adopted on April 21, 2006; to date no options have been granted under this plan.
We have reserved for issuance an aggregate of 2,500,000 shares of common stock under our 2006 Long Term Incentive Plan. This plan is intended to encourage directors, officers, employees and consultants to acquire ownership of common stock. The opportunity so provided is intended to foster in participants a strong incentive to put forth maximum effort for our continued success and growth, to aid in retaining individuals who put forth such efforts, and to assist in attracting the best available individuals to the Company in the future.
Officers (including officers who are members of the board of directors), directors (other than members of the stock option committee to be established to administer the stock option plan) and other employees and consultants and its subsidiaries (if established) will be eligible to receive options under the stock option plan. The committee will administer the stock option plan and will determine those persons to whom options will be granted, the number of options to be granted, the provisions applicable to each grant and the time periods during which the options may be exercised. No options may be granted more than ten years after the date of the adoption of the stock option plan.
Non-qualified stock options will be granted by the committee with an option price equal to the fair market value of the shares of common stock to which the non-qualified stock option relates on the date of grant. The committee may, in its discretion, determine to price the non-qualified option at a different price. In no event may the option price with respect to an incentive stock option granted under the stock option plan be less than the fair market value of such common stock to which the incentive stock option relates on the date the incentive stock option is granted.
Each option granted under the stock option plan will be exercisable for a term of not more than ten years after the date of grant. Certain other restrictions will apply in connection with this plan when some awards may be exercised. In the event of a change of control (as defined in the stock option plan), the date on which all options outstanding under the stock option plan may first be exercised will be accelerated. Generally, all options terminate 90 days after a change of control.
Recent Sales of Unregistered Securities
On February 3, 2009, we issued 399,688 shares of our common stock to Stoecklein Law Group and 337,500 shares of our common stock to TKM Accounting for services rendered to the Company. The shares issued were registered in a Registration Statement on Form S-8 filed on January 30, 2009.
On February 27, 2009, we issued a total of 2,389,955 shares of our common stock to the following:
We believe that the issuances of the shares were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933 by virtue of Section 4(2). The recipients of the shares were afforded an opportunity for effective access to files and records of the Company that contained the relevant information needed to make their investment decision, including the Company’s financial statements and 34 Act reports. We reasonably believe that the recipients, immediately prior to issuing the shares, had such knowledge and experience in our financial and business matters that they were capable of evaluating the merits and risks of their investment. The recipients had the opportunity to speak with our president and directors on several occasions prior to their investment decision.
On May 28, 2009, we issued a total of 1,449,099 shares of our common stock to the following:
We believe that the issuances of the shares were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933 by virtue of Section 4(2). The recipients of the shares were afforded an opportunity for effective access to files and records of the Company that contained the relevant information needed to make their investment decision, including the Company’s financial statements and 34 Act reports. We reasonably believe that the recipients, immediately prior to issuing the shares, had such knowledge and experience in our financial and business matters that they were capable of evaluating the merits and risks of their investment. The recipients had the opportunity to speak with our president and directors on several occasions prior to their investment decision.
On May 28, 2009, we issued a total of 1,940,000 shares of our restricted common stock to 6 accredited investors (for a total purchase price of $194,000, all of which was paid in cash) who purchased the shares before the year ended March 31, 2009. We believe that the issuances of the shares were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933 by virtue of Section 4(2). The recipients of the shares were afforded an opportunity for effective access to files and records of the Company that contained the relevant information needed to make their investment decision, including the Company’s financial statements and 34 Act reports. We reasonably believe that the recipients, immediately prior to issuing the shares, had such knowledge and experience in our financial and business matters that they were capable of evaluating the merits and risks of their investment. The recipients had the opportunity to speak with our president and directors on several occasions prior to their investment decision.
On May 28, 2009, we issued a total of 1,100,000 shares of our restricted common stock to 2 accredited investors (for a total purchase price of $110,000, all of which was paid in cash) who purchased the shares after the year ended March 31, 2009. We believe that the issuances of the shares were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933 by virtue of Section 4(2). The recipients of the shares were afforded an opportunity for effective access to files and records of the Company that contained the relevant information needed to make their investment decision, including the Company’s financial statements and 34 Act reports. We reasonably believe that the recipients, immediately prior to issuing the shares, had such knowledge and experience in our financial and business matters that they were capable of evaluating the merits and risks of their investment. The recipients had the opportunity to speak with our president and directors on several occasions prior to their investment decision.
Series A Preferred Stock
On March 31, 2009, we issued a total of 7,462 shares of $0.001 Series A Preferred Stock to our officers in exchange for cancellation of $895,553 of accrued executive compensation. The evaluation use is $0.12 per share as of the above date. Each preferred share represents 1,000 shares of common stock for voting purposes.
Issuer Purchases of Equity Securities
We did not repurchase any equity securities during the fourth quarter ended March 31, 2009.
ITEM 6.
ITEM 6. SELECTED FINANCIAL DATA
Not applicable.
ITEM 7.
ITEM 7.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and related notes included elsewhere in this annual report. References in the following discussion and throughout this quarterly report to “we”, “our”, “us”, “Gamma”, “the Company”, and similar terms refer to Gamma Pharmaceuticals Inc. and its wholly owned subsidiary Gamma Pharmaceuticals (HK) Ltd. unless otherwise expressly stated or the context otherwise requires.
OVERVIEW AND OUTLOOK
We are a marketing and product formulation company selling our own branded products through wholesalers and direct to retailers both in the US and internationally. Our core focus is the marketing and sale of vitamins and nutriceuticals, OTC pharmaceutical products and personal care products in Greater China and the United States. We sell our branded nutritional supplements under the trademarks Brilliant Choice™ children’s nutritional supplements featuring the call to action - “Mom you’ve made a brilliant choice for you children’s nutrition,” SAVVY™ adult nutritional supplements featuring the call to action “Be SAVVY Stay Healthhy,” and Jugular Energy Products™ and high performance supplements featuring the call to action “Go for the Jugular™.” Our customer focus is on selling products in the Lifestyle of Health & Sustainability ("LOHAS") marketplace and in the Energy Supplement Market. We developed a series of innovative marketing programs to support our product sales and retail partners. We have successfully sought and will continue to seek financing opportunities to fund our development and to support our marketing programs and the commercialization of our product lines
We have copyrights, trademarks, trade secrets and knowhow for product lines of vitamins and nutriceuticals, energy products and personal care products spread across 3 major brands. The products have been formulated to be in compliance with prevailing regulations of the appropriate government regulatory agencies in China, Taiwan, Hong Kong and the U.S. Final submission of labeling and product performance claims, to the same regulatory agencies, has been made for certain products and is pending for certain other products. We intend to take the necessary steps to market the products in these jurisdictions and will undertake manufacturing through qualified third party sources. In all of these major markets, our management has experience in marketing and selling similar products.
A large part of our initial product line of nutritional supplements, personal care products and OTC pharmaceutical products is based on proprietary uses of plant-based Gel technology to create innovative products. Products based on our “Gel Delivery Technology” offer, management believes, a highly desirable innovation over the typical tablets and capsules to which consumers have grown accustomed. We believe that Gel based products are the latest product forms consumers are seeking in the healthcare and supplement industries. Our Gel Delivery Technology will be a significant part of our marketing strategy.
We have a license agreement with Jugular, Inc., an established brand development and management company. Jugular granted us the exclusive right to use the Licensor Marks (all Trademarks for the mark JUGULAR owned by Jugular, Inc.) on or in association with certain products as well as on packaging, promotional, and advertising material.
In the period ended December 31, 2007, we shipped our first products to test several commercial and operational capabilities and systems, and to demonstrate the consumer preference for products made utilizing Gamma’s Gel Delivery Technology, versus well established technologies in the market. Sales have been made to a major national retail account for a product utilizing Gamma's proprietary Gel Technology, in a gumdrop product form. All tests were successful. We undertook timely order processing, efficient and effective manufacturing processes, billing and collection processes and financial reporting processes and product recall processes. During the period ended September 30, 2007, we launched our Product Distributor / Broker Management Program. Agreements have been signed that establish Gamma's national network of product brokers and distributors in the United States. The consumer acceptance of the Gamma Gel Delivery Technology has been overwhelmingly positive. Gamma is in the process now of taking orders for own brands of products manufactured utilizing the Gamma Gel Delivery Technology both in the US and internationally.
In the second quarter ended September 30, 2008, we were advised by the major national retail chain account with whom we launched the test product as a private label brand for the national retail chain, that the FTC found them to be in violation of certain regulations because of their choice of graphic elements on the packaging were in violation of certain regulations of the Federal Trade Commission. In the private label contract with the national retail chain, Gamma was required to use the graphic elements provided by the national retail chain. Gamma’s management recommended graphics we knew to be compliant with the FTC regulations. The national retail chain rejected Gamma’s proposed packaging graphics. The experience confirms the maturity of Gamma’s management and processes, and confirmed it is in Gamma’s best interest to pursue commercialization of its own brands retaining greater control of the product packaging, claims and marketing.
On December 24, 2007, our common stock began trading on the Financial Industry Regulatory Authority's (FINRA) Over-the-Counter Bulletin Board under the symbol GMPM.OB.
We have incurred losses since inception. For the year ended March 31, 2009, we had a net loss of $3,906,424 as compared to a net loss of $3,795,571 for the year ended March 31, 2008. Our ability to proceed with our plan of operation has continuously been a function of our ability to increase revenues and raise sufficient capital to continue our operations.
Recent Developments
On June 17, 2008, we executed a Securities Purchase Agreement with Kenridge Holdings LLC (“Kenridge”). Pursuant to the Securities Purchase Agreement, Kenridge agreed to purchase 1,333,333 shares of our restricted common stock for a total purchase price of $1,000,000 or $0.75 per share. In connection with the Securities Purchase Agreement, we agreed to issue Kenridge 1,333,333 series “A” warrants exercisable at $0.75 per share; 1,333,333 series “B” warrants exercisable at $1.00 per share; and 1,333,333 series “C” warrants exercisable at $1.25 per share. The warrants have a five year exercise right. In the quarter ended September 30, 2008, we received $600,000 from Kenridge in exchange for 799,999 shares of the 1,333,333 shares of our restricted common stock, 799,999 series “A” warrants (of the 1,666,666 series “A”), 799,999 series “B” warrants (of the 1,666,666 series “B”) and 799,999 series “C” warrants (of the series “C”). Of the 799,999 shares, 666,666 shares were issued on July 14, 2008 and the remaining 133,333 shares remain unissued as of the date of this filing. As of the date of this filing, Kenridge owes the Company the remaining $400,000. The Company continues to pursue Kenridge for the remaining balance of $400,000 on its investment obligation to the Company. The Company is currently evaluating its legal options and continues to maintain a dialogue with Kenridge towards resolving this matter
On May 15, 2008, we issued a press release announcing that we have commenced our export program with China.
On May 19, 2008, we issued a press release announcing that the Western United States Agricultural Trade Association has approved the Company for up to $300,000 in annual reimbursement for eligible marketing and promotional activities in China.
On June 10, 2008, we issued a press release announcing that we started national distribution of our Brilliant Choice® and Savvy® brands.
On June 13, 2008, we issued a press release announcing that our Brilliant Choice® and Savvy® brands have been selected for distribution by DPI Midwest, a distributor of nutritional products.
On July 16, 2008, we issued a press release announcing that we will exhibit our nutritional supplements at the 8th Annual Fashion Baby Maternal Infant-Children Products Expo in China from July 17-19th in Shanghai, China.
On August 14, 2008, we amended our articles of incorporation increasing our authorized capital from 20,000,000 shares of $0.001 par value common stock to 100,000,000 shares of $0.001 par value common stock and from 500,000 shares of $0.001 par value preferred stock to 2,000,000 shares of $0.001 par value common stock.
On September 3, 2008, we issued a press release announcing that the Company’s China-based operation has received its Certificate of Hygience from the Customs Office in the People’s Republic of China. The Certificate of Hygiene is a requirement for any imported food grade product, and will allow the Company to sell product in the country.
On September 25, 2008, we issued a press release announcing the signing of contracts with three distribution companies in China.
On November 17, 2008, we issued a press release announcing the launch of our annual private label program for 2008-2009. Our 2008-2009 program is a continuation and expansion of our 2007 rollout of a gum drop based immune booster with a national retail pharmacy chain.
On December 18, 2008, we issued a press release announcing the receipt of purchase orders for our Jugular® brand energy products by a large convenience store chain in Nevada.
On March 27, 2009, we issued a press release to announce the receipt of purchase orders for our Jugular® brand Energy Products from Texas Liquid Energy Distributing Co. of San Antonio, Texas.
On June 4, 2009, we issued a press release to announce we have been issued Purchase Orders from pharmacy and supermarket chains in the American Southwest.
On June 9, 2009, we issued a press release announcing the receipt of purchase orders from Liberty USA, Inc., a distributor in Pennsylvania, Ohio and West Virginia.
On June 15, 2009, we issued a press release announce an agreement with Mr. Checkout, a national network of distributors for coverage in selected territories.
On June 23, 2009, we issued a press release announcing an agreement with 360 Distribution, a distributor in Texas.
Our Strengths
We believe we have the following competitive strengths that could enable us to capitalize on the large, fragmented and growing market for our Gel based products:
·
Fully integrated platform for sustainable growth
·
Diverse product categories that provide operating flexibility
·
Recognizable brand names that can be leveraged for additional growth
·
Geographic diversity to mitigate market risk concentration
·
Demonstrated ability to identify and commercialize opportunities
·
Experience and results oriented management team
·
Retail account presents with major US retail pharmacy chain.
Results of Operations
The following table summarizes selected items from the statement of operations for the fiscal year ended March 31, 2009 compared to March 31, 2008.
SALES AND COST OF GOODS SOLD:
Sales
Our sales for the fiscal year ended March 31, 2009 were $56,141 compared to $197,840 sales during the same period in 2007. In 2009 our sales decreased by 72%. The decrease in our sales is a result of the decrease in the amount of orders we have from one of our major customers. The sales to date are influenced significantly by our customer’s citation by the Federal Trade Commission for certain acts that are 100% independent of Gamma, but did affect their performance and their decisions to implement certain corrections so to be in compliance.
Cost of goods sold / Gross profit percentage of sales
Our cost of goods sold decreased 79% during the fiscal year ended March 31, 2009 compared to the same period in 2008. The decrease in our cost of goods sold is a result of a decrease in sales relative to the cost to produce our products. Gross profit margins increased from the prior fiscal year because the Company has begun to commercialize its product line and manufacturing products to meet demand. Additionally, the packaging materials and costs have decreased since the Company outsourced those services to China.
EXPENSES:
Consulting Expenses
Our consulting expenses have decreased from 2008 for the fiscal year ended March 31, 2009, respectively. The decrease in consulting expenses was the result of decline in revenue and our current financial position. Due to limited cash resources, we temporarily scaled back the use of consultants.
Executive Compensation
Executive compensation is comprised of cash and stock based compensation. For the fiscal year ended March 31, 2009, executive compensation increased by 12% from the same period a year ago. The increase in our executive compensation in the year ended March 31, 2009 is a result of the variable compensation pool awards and an increase in the base salaries of the executives by 5%.
General and Administrative Expenses
General and administrative expenses for the year ended March 31, 2009 increased by 120% from the year ended March 31, 2008, respectively. The increase in expenses was the result of increase in use of independent contractors for marketing support services, product development and investor relations.
Loss from Operations
The loss from operations for the fiscal year ended March 31, 2009 was $3,818,130, versus a loss from operations of $3,757,870 for the year ended March 31, 2008, a change in loss from operations of 2%. The increase in the loss from operations in the year ended March 31, 2009 resulted from the increase in executive compensation and amortization expense from the intangible assets.
Interest Income and Interest Expense
Interest income decreased by 66% in the fiscal year ended March 31, 2009. The decrease of interest income was as a result of greater use of non-interest bearing accounts and lower account balances.
Foreign Currency Transaction Gain (Loss)
During the fiscal year ended March 31, 2009, the Company commenced product sales in China. There was a foreign currency transaction gain of $121 and $0 for the years ended March 31, 2009 and 2008, respectively.
Net (Loss)
Our net loss for the fiscal year ended March 31, 2009 was $3,906,424, an increase of $110,853, or 3%, from $3,795,571 for the year ended March 31, 2008. We continue to have a net loss and believe the loss will be reduced and profitability will be attained in future quarters as the sales of our products increase.
Operation Plan
We are a marketing and product formulation company selling our own branded products through wholesalers and direct to retailers both in the US and internationally. Our core focus is the marketing and sale of vitamins and nutriceuticals, OTC pharmaceutical products and personal care products in Greater China and the United States. We sell our branded nutritional supplements under the trademarks Brilliant Choice™ children’s nutritional supplements featuring the call to action - “Mom you’ve made a brilliant choice for you children’s nutrition,” SAVVY™ adult nutritional supplements featuring the call to action “Be SAVVY Stay Healthhy,” and Jugular Energy Products™ and high performance supplements featuring the call to action “Go for the Jugular™.” Our customer focus is on selling products in the Lifestyle of Health & Sustainability ("LOHAS") marketplace and in the Energy Supplement Market. We developed a series of innovative marketing programs to support our product sales and retail partners. We have successfully sought and will continue to seek financing opportunities to fund our development and to support our marketing programs and the commercialization of our product lines
We first began selling our branded product in China and today we are taking orders for US sales and additional orders internationally.
During the quarter ended December 31, 2007, we completed the development of certain product lines and began shipping products to a major U.S. based retail chain account.
In the second quarter ended September 30, 2008, we were advised by the major national retail chain account with whom we launched the test product as a private label brand for the national retail chain, that the FTC found them to be in violation of certain regulations because of their choice of graphic elements on the packaging were in violation of certain regulations of the Federal Trade Commission. In the private label contract with the national retail chain, Gamma was required to use the graphic elements provided by the national retail chain. Gamma’s management recommended graphics we knew to be compliant with the FTC regulations. The national retail chain rejected Gamma’s proposed packaging graphics. The experience confirms the maturity of Gamma’s management and processes, and confirmed it is in Gamma’s best interest to pursue commercialization of its own brands retaining greater control of the product packaging, claims and marketing.
Our Growth Strategy
Our strategy has been focused initially on developing, marketing and selling products in the LOHAS marketplace and in the Energy Supplement Market in greater China and the United States. LOHAS is a term popularized by the Natural Marketing Institute for the American Botanical Council as well as others industry opinion leaders. The LOHAS market is an identifiable consumer category. In the LOHAS category, there are found high growth sub-segments of selected vitamins and nutriceuticals, over-the-counter ("OTC") pharmaceutical products, and personal care products. We believe that these categories of the LOHAS market are fast developing, in both Greater China and the United States. We further believe that the Greater China market offers the fastest path to grow revenues and achieve profitability in this business.
In China, the economy has grown between 8% and 10% in each year of this decade and the Chinese economy has been in the least affected major economy during the current global economic slowdown will. According to the Frost & Sullivan, total expenditures on pharmaceuticals products in China are expected to reach $125 billion in 2011. IMS Health estimates that China will become the second largest pharmaceuticals market in the world by 2020. Expenditures on health supplements for health maintenance and disease prevention were estimated to have been approximately $9.10bn in 2006 and are expected to double to approximately $13.4bn by 2010 according to a report entitled, The Health Food / Dietary Supplements Market in China, published by the Commercial Services Unit of the US Embassy, Beijing. In the United States, LOHAS is the fastest growing market in the nutritional supplement category, and according to research reports from The National Marketing Institute, 68 million Americans are LOHAS consumers. Consumer spending by LOHAS consumers was estimated to have been $118bn on personal health products in 2005. According to the LOHAS Market Review, the U.S. LOHAS market grew by approximately 1% new joiners and 10% new spending per year. At that level of spending, the wellness products category accounts for approximately 25% of the spending amongst the LOHAS consumer category.
The Energy Supplement Market is largely defined by the Energy Beverage category. The Energy Beverage category is, by most measures, the fastest growing beverage category in North America and overseas. This category is led by Red Bull with North American sales of nearly $272 million according to Energy Drink Buyer Guide and a 50% market share in the North American market according to a recent article in Business Week Magazine. Our strategy is to use our Jugular Energy Products (“Go for the Jugular”) to side-step head-to-head competition in the beverage market but to use our Gel technology to stretch the category definition to include Energy Strips, Energy Gels and other energy related products that complement the fast growing Energy Beverage category. We believe that, in part, the high growth of the Energy Beverage category is driven by health and wellness trends that complement the LOHAS consumer category.
On July 14, 2008, we amended our license agreement with Jugular, Inc. The purpose of the amendment is to clarify ambiguities which were created through the various amendments. The July 14, 2008 amendment is intended to supersede and replace the previous Licensor/Licensee Agreement, the Amended License Agreement, and the Second Amendment to License Agreement. Jugular granted us the exclusive right to use the Licensor Marks (all Trademarks for the mark JUGULAR owned by Jugular, Inc.) on or in association with certain products as well as on packaging, promotional, and advertising material. The initial term of the agreement shall extend from the effective date of August 5, 2007 until the expiration date of August 5, 2021. The intitial term shall automatically renew for a subsequent 5 year period, if certain requirements are met, as set forth in the agreement.
We are aiming to become a technology and formulation leader in the wellness products category of the fast growing LOHAS market. Our management team has experience with formulation, production and commercialization for medicated confectionary supplement products and personal care products. We have proprietary formulations for vitamin and nutritional supplements, and have developed formulations for adjunctive therapies for type II diabetes, symptoms of menopause, cognition, stress reduction, and relief from selected side effects of chemotherapies. Also, we intend to become a major competitor in personal care products.
Our management team has decades of experience in the personal care, OTC pharmaceutical and prescription pharmaceutical industries worldwide and, in particular, in Asia. Our product offerings take advantage of the following market place characteristics:
·
High incidence and high growth of targeted medical conditions and lifestyle objectives;
·
Identifiable market segments for our products and known consumer purchasing patterns by targeted customers;
·
High growth markets in Asia including Greater China and in the United States;
·
Low cost manufacturing or repacking mainly from China but also located in the United States;
·
Multi-tiered price points for product and market differentiation; and
·
Branded consumer product preferences.
We believe the combination of the above marketplace characteristics, combined with our management expertise and products, will enable our business model to achieve long term sustained profitability.
We developed our corporate infrastructure as a marketing and sales organization. We will not initially seek to acquire manufacturing in China or the United States but will instead look to leverage our management's contacts and expertise to outsource manufacturing to a third party original equipment manufacturer ("OEM"). We believe this will provide us with an advantage in cost of goods sold manufacturing margins and improve our return on assets. We may, in the future, look to acquire or partner more closely with a single manufacturer for certain products or for product distribution. Our objective is to utilize our management's marketing and sales abilities and resources to generate revenue and establish a market presence in key product categories that can be expanded as we develop local capacity in Asia. Our aim is to establish a known and recognized product brands that, we believe, will attract attention from local suppliers and retailers who will seek to carry our product offerings.
Our corporate organization today is comprised of a US based headquarters in Las Vegas, Nevada, a wholly owned subsidiary in Hong Kong (Gamma Pharmaceuticals (HK) Ltd) and a Representative office in Beijing, The Peoples Republic of China (Gamma Pharmaceuticals (HK) Limited Beijing Representative Office). We plan to use a variety of contract and third party resources in China and will undertake all invoicing and most administration for their services from our Hong Kong subsidiary.
Liquidity and Capital Resources
The following table summarizes total current assets, total current liabilities and working capital at March 31, 2009 and March 31, 2008.
Liquidity is a measure of a company’s ability to meet potential cash requirements. We have historically met our capital requirements through the issuance of stock and by borrowings. In the future we anticipate we will be able to provide the necessary liquidity we need by the revenues generated from the sales of our products, however, if we do not generate sufficient sales revenues we will continue to finance our operations through equity and/or debt financings with traditional financial or industry “partners.”
As of March 31, 2009, we continued to use equity sales and debt financing to provide the capital we need to run our business. In the future we need to generate sufficient revenues from product sales in order to eliminate or reduce the need to sell additional stock or obtain additional loans. In the first quarter in 2008, we successfully raised $400,000 by way of a private placement. In the three month period ended December 31, 2008, we raised $50,000 and subsequently raised $25,000. There can be no assurance we will be successful in raising the necessary funds to execute our business plan.
On June 17, 2008, we executed a Securities Purchase Agreement with Kenridge Holdings LLC (“Kenridge”). Pursuant to the Securities Purchase Agreement, Kenridge agreed to purchase 1,333,333 shares of our restricted common stock for a total purchase price of $1,000,000 or $0.75 per shares. In connection with the Securities Purchase Agreement, we agreed to issue Kenridge 1,333,333 series “A” warrants exercisable at $0.75 per share; 1,333,333 series “B” warrants exercisable at $1.00 per share; and 1,333,333 series “C” warrants exercisable at $1.25 per share. During the second quarter ended September 30, 2008, we received $600,000 from Kenridge in exchange for 799,999 shares of the 1,333,333 shares of our restricted common stock, 799,999 series “A” warrants (of the 1,666,666 series “A”), 799,999 series “B” warrants (of the 1,666,666 series “B”) and 799,999 series “C” warrants (of the series “C”). As of the date of this filing 666,666 of the shares have been issued and 133,333 of the shares remain unissued. As of the date of this filing, Kenridge owes the Company the remaining $400,000. The Company continues to pursue Kenridge for the remaining balance of $400,000 on its investment obligation to the Company. The Company is currently evaluating its legal options and continues to maintain a dialogue with Kenridge towards resolving this matter
On April 6, 2009, we executed a promissory note with Rubicon Financial Insurance Services for the principal amount of $21,000. Pursuant to the promissory note, we agreed to prepay the principal amount as follows; a) $4,000 by April 6, 2009; b) $4,250 by May 4, 2009; c) $4,250 by June 1, 2009; d) $4,250 by July 6, 2009; and $4,250 by August 2, 2009. As of the date of this filing we paid $8,000 toward the loan.
Satisfaction of our cash obligations for the next 12 months.
As of March 31, 2009, our cash balance was $116,669. Our plan for satisfying our cash requirements for the next twelve months is through additional sales of our common stock, third party financing, and/or traditional bank financing. In the three months ended September 30, 2008, we received $600,000 from Kenridge pursuant to our agreement dated June 17, 2008. As of the date of this filing, we have not received the remaining $400,000 from Kenridge pursuant to our agreement. The Company is pursuing Kenridge for the remaining balance of $400,000 on its investment obligation to the Company. We anticipate sales-generated income during that same period of time, but do not anticipate generating sufficient amounts of revenues to meet our working capital requirements. Consequently, we intend to make appropriate plans to insure sources of additional capital in the future to fund growth and expansion through additional equity or debt financing or credit facilities.
Since inception, we have financed cash flow requirements through debt financing and the issuance of common stock for cash and services. As we continue to expand operational activities, we may continue to experience net negative cash flows from operations, pending receipt of revenues from product sales, and will be required to obtain additional financing to fund operations through common stock offerings and debt borrowings, giving consideration to loans and working diligently to move sales ahead to the extent necessary to provide working capital.
We anticipate incurring operating losses over the majority of the next twelve months. Our lack of operating history makes predictions of future operating results difficult to ascertain. Our prospects must be considered in light of the risks, expenses and difficulties frequently encountered by companies in their early stage of development, particularly companies in new and rapidly evolving technology markets. Such risks include, but are not limited to, an evolving and unpredictable business model and the management of growth. To address these risks we must, among other things, implement and successfully execute our business and marketing strategy, continue to develop and upgrade technology and products, respond to competitive developments, and continue to attract, retain and motivate qualified personnel. There can be no assurance that we will be successful in addressing such risks, and the failure to do so can have a material adverse effect on our business prospects, financial condition and results of operations.
As a result of our cash requirements and our lack of revenues, we anticipate continuing to issue stock in exchange for loans and/or equity financing, which may have a substantial dilutive impact on our existing stockholders.
Going Concern
The consolidated financial statements included in this filing have been prepared in conformity with generally accepted accounting principles that contemplate the continuance of Gamma as a going concern. Gamma may not have a sufficient amount of cash required to pay all of the costs associated with operating, production and marketing of products. Management intends to use borrowings and security sales to mitigate the effects of cash flow deficits, however no assurance can be given that debt or equity financing, if and when required, will be available. The financial statements do not include any adjustments relating to the recoverability and classification of recorded assets and classification of liabilities that might be necessary should Gamma be unable to continue existence.
Summary of product research and development that we will perform for the term of our plan.
We do not anticipate performing any significant product research and development under our plan of operation until such time as we can raise adequate working capital to sustain our operations. To date, all research and development work has been undertaken in-house, by management, with input from outside consultants. Management’s experience with research and development enable the Company to reasonably control most associated research and development expenses.
Expected purchase or sale of any significant equipment.
We do not anticipate the purchase or sale of any significant equipment, as such items are not required by us at this time or anticipated to be needed in the next twelve months.
Significant changes in the number of employees.
We currently have 3 full time employees in China and the United States. We intend to hire additional full time employees to fill specific functions in our organization as product sales commence and our operations expand. We will also hire part-time or independent contractors in connection with certain projects in Greater China and the United States. We expect to have full-time-equivalent employees working directly for our distributors, manufacturers, and advertising and public relations agencies. We will vary employment as product demand dictates. We have planned to expand our full time employment over the next 12 months to meet our existing or anticipated operational needs.
Critical Accounting Policies
Intangible Assets
Financial Accounting Standards Board (“FASB”) Statement No. 142, Goodwill and Other Intangible Assets ("FAS 142") requires that goodwill and intangible assets with indefinite useful lives no longer be amortized, but instead tested for impairment at least annually in accordance with the provisions of FAS 142. This standard also requires that intangible assets with definite useful lives be amortized over their respective estimated useful lives to their estimated residual values, and reviewed for impairment. As of June 30, 2008, the Company believes there is no impairment of its intangible assets.
The Company's intangible assets consist of the costs of filing various trademarks. The trademarks are recorded at cost. The Company determined that the trademarks have an estimated useful life of 10 - 15 years and will be reviewed annually for impairment. Amortization will be recorded over the estimated useful life of the assets using the straight-line method for financial statement purposes. The Company will commence amortization once the economic benefits of the assets begin to be consumed and they plan to record amortization once production begins and the related revenues are recorded.
The Company acquired intangible assets from an officer of the Company during April 2006 and May 2007. During the year ended March 31, 2008, the Company has commenced production on products and they have started amortization effective October 2007. The amortization of the intangible assets is based on an estimated useful life of 10 years.
Revenue Recognition
The Company recognized revenue from product sales once all of the following criteria for revenue recognition have been met: pervasive evidence that an agreement exists; the services have been rendered; the fee is fixed and determinable and not subject to refund or adjustment; and collection of the amount due is reasonable assured. The Company will primarily derive its revenues from the sales of its vitamins, nutriceutical products and personal care products.
The Company has products that are in China that are sold on a consignment basis. Once the products are shipped to a customer they will have 30 days to return product and the Company grants the customer an additional 30 days to pay for the product. Because of the return policy the Company will defer the recognition of revenue until end of the 30 day return policy.
Stock Based Compensation
The Company adopted Statement of Financial Accounting Standards (SFAS) No. 123R (revised 2004), “Share-Based Payment,” requiring the Company to recognize expense related to the fair value of its employee stock option awards. SFAS-123R eliminates accounting for share-based compensation transactions using the intrinsic value method prescribed in Accounting Principles Board Opinion No. 25 (APB-25), “Accounting for Stock Issued to Employees”, and requires instead that such transactions be accounted for using a fair-value-based method. The Company recognizes the cost of all share-based awards on a graded vesting basis over the vesting period of the award.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.
ITEM 7A.
ITEM 7A.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 8.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Financial Statements and Financial Statement Schedules appearing on page through of this Form 10-K.
ITEM 9.
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
We have had no disagreements with our independent auditors on accounting or financial disclosures.
ITEM 9A(T).
ITEM 9A(T). CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our Chief Executive Officer and Chief Financial Officer, Peter Cunningham and Joseph Cunningham, have evaluated the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended) as of the end of the period covered by this Report. Based on that evaluation, Messrs. Cunningham concluded that our disclosure controls and procedures are effective in timely alerting them to material information relating to us (including our consolidated subsidiaries) required to be included in our periodic SEC filings.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a- l5(f) under the Exchange Act) and for assessing the effectiveness of our internal control over financial reporting. Our internal control system is designed to provide reasonable assurance to our management and board of directors regarding the preparation and fair presentation of published financial statements in accordance with United States’ generally accepted accounting principles.
Our internal control over financial reporting is supported by written policies and procedures that pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and that our receipts and expenditures are being made only in accordance with authorizations of our management and our board of directors; and provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.
Our management assessed the effectiveness of our internal control over financial reporting as of March 31, 2008 using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control - Integrated Framework. Management’s assessment included an evaluation of the design of our internal control over financial reporting and testing of the operational effectiveness of our internal control over financial reporting. Based on this assessment, our management concluded that, as of March 31, 2009, our internal control over financial reporting were ineffective.
Because of its inherent limitations, a system of internal control over financial reporting can provide only reasonable assurance and may not prevent or detect misstatements or fraud. In addition, projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions and that the degree of compliance with the policies or procedures may deteriorate.
This annual report does not include an attestation report of the Company’s registered public accounting firm, L.L. Bradford & Company, LLC, regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this annual report.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting that occurred during our most recent fiscal quarter that have materially affected, or reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B.
ITEM 9B. OTHER INFORMATION
None.
PART III
ITEM 10.
ITEM 10.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The members of our board of directors serve for one year terms and are elected at the next annual meeting of stockholders, or until their successors have been elected. The officers serve at the pleasure of the board of directors. Officers are appointed to serve until the meeting of the Board of Directors following the next annual meeting of stockholders and until their successors have been elected and qualified.
Information as to our current directors and executive officers is as follows:
Duties, Responsibilities and Experience
Mr. Peter Cunningham, is the Chief Executive Officer, President, Secretary and has been the Chairman of Gamma's Board of Directors since April 2006. Mr. Peter Cunningham is a Senior Executive with extensive experience in the international pharmaceutical industry. Mr. Cunningham has worked for approximately 10 years in the pharmaceutical industry and an additional 10 years consulting to the pharmaceutical industry, with some of the best known companies in the pharmaceutical industry, including Glaxo Smith Kline, Bristol Myers Squibb, Baxter, Becton Dickinson, Novartis & Roche, and most recently, AXM. Mr. Cunningham's consulting practice was established as a joint venture with Coopers & Lybrand (PriceWaterhouse Coopers). Products Mr. Cunningham has launched, developed or marketed worldwide generate more than US$ 800 million in sales annually. Mr. Peter Cunningham has an MBA from George Washington University and an undergraduate degree in Sociology from the State University of New York. Mr. Peter Cunningham is the brother of Joseph Cunningham, a Director and our Chief Financial Officer.
Mr. Joseph Cunningham, is the Chief Financial Officer, Treasurer and has been a Director of Gamma since April 2006. Mr. Joseph Cunningham is has expertise in financial management, corporate control, banking, fund raising, strategic planning and business start-up. Mr. Cunningham is a trained economist and former think-tank practitioner. He is also an Investment Banker and has originated and executed more than US$ 5.0 billion in deals in Asia, from his former offices in Singapore and London. Mr. Cunningham has an international MBA from the Thunderbird School of International Management, and an undergraduate degree in Economic and Business Administration from Northeastern University, Boston Massachusetts. Mr. Joseph Cunningham is the brother of Peter Cunningham, our Chairman and our Chief Executive Officer.
Mr. Hao Zhang, is the Chief Marketing Officer and has been a Director of Gamma since April 2006. Mr. Zhang is a senior executive with significant experience and success in the pharmaceutical and personal care products industries. Mr. Zhang has worked for approximately 10 years in consulting, with some of the best-known companies in the World, including Pfizer, Roche, Johnson & Johnson, GE, GSK, and Bayer. The products he worked on generate approximately US$ 200 million/in sales annually in China. In 2004, the Ogilvy Group acquired his consulting firm in Beijing ZZAD. Mr. Zhang has a PHD in electrical engineering from the University of British Columbia.
When the accompanying proxy is properly executed and returned, the shares it represents will be voted in accordance with the directions indicated thereon or, if no direction is indicated, the shares will be voted in favor of the election of the three nominees identified above. Gamma expects each nominee to be able to serve if elected, but if any nominee notifies Gamma before this meeting that he is unable to do so, then the proxies will be voted for the remainder of those nominated and, as designated by the Directors, may be voted (i) for a substitute nominee or nominees, or (ii) to elect such lesser number to constitute the whole Board as equals the number of nominees who are able to serve.
Indemnification
Section 145 of the Delaware General Corporation Law provides for the indemnification of officers, directors and other corporate agents under certain circumstances for liabilities (including reimbursement for expenses incurred). Article 5 of our Bylaws provides for indemnification of our directors, officers, employees and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. We also plan to obtain director’s and officer’s liability insurance if available at reasonable prices, but as of the date of this filing we have not obtained a policy.
The extent to which the indemnification provisions of the Delaware General Corporation Law and our certificate of incorporation and bylaws provide indemnification to officers and directors for violations of the federal securities laws has not been settled by court precedent. We understand that, in the position of the Securities and Exchange Commission, such indemnification is against public policy and is unenforceable.
Involvement in Certain Legal Proceedings
No Executive Officer or Director of the Corporation has been the subject of any Order, Judgment, or Decree of any Court of competent jurisdiction, or any regulatory agency permanently or temporarily enjoining, barring, suspending or otherwise limiting him from acting as an investment advisor, underwriter, broker or dealer in the securities industry, or as an affiliated person, director or employee of an investment company, bank, savings and loan association, or insurance company or from engaging in or continuing any conduct or practice in connection with any such activity or in connection with the purchase or sale of any securities.
No Executive Officer or Director of the Corporation has been convicted in any criminal proceeding (excluding traffic violations) or is the subject of a criminal proceeding which is currently pending.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires executive officers and directors, and persons who beneficially own more than ten percent of an issuer's common stock, which has been registered under Section 12 of the Exchange Act, to file initial reports of ownership and reports of changes in ownership with the SEC.
As a company with securities registered under Section 12(g) of the Exchange Act, our executive officers and directors, and persons who beneficially own more than ten percent of our common stock are required to file Section 16(a) reports.
Code of Ethics
On September 1, 2006, we adopted a Code of Ethics for Directors and a Code of Ethics for the Chairman, Chief Executive Officer, and Senior Financial Officers. Copies of the Code of Ethics for Directors and Code of Ethics for the Chairman, Chief Executive Officer, and Senior Financial Officers were attached as Exhibits A and B to the proxy filed with the SEC on February 13, 2007.
Corporate Governance
Nominating Committee
We do not have a Nominating Committee or Nominating Committee Charter. Our board of directors perform some of the functions associated with a Nominating Committee. Our board of directors intends to establish such a committee in the near future.
Director Nomination Procedures
Generally, nominees for Directors are identified and suggested by the members of the Board or management using their business networks. The Board has not retained any executive search firms or other third parties to identify or evaluate director candidates in the past and does not intend to in the near future. In selecting a nominee for director, the Board or management considers the following criteria:
1.
whether the nominee has the personal attributes for successful service on the Board, such as demonstrated character and integrity; experience at a strategy/policy setting level; managerial experience dealing with complex problems; an ability to work effectively with others; and sufficient time to devote to the affairs of the Company;
2.
whether the nominee has been the chief executive officer or senior executive of a public company or a leader of a similar organization, including industry groups, universities or governmental organizations;
3.
whether the nominee, by virtue of particular experience, technical expertise or specialized skills or contacts relevant to the Company’s current or future business, will add specific value as a Board member; and
4.
whether there are any other factors related to the ability and willingness of a new nominee to serve, or an existing Board member to continue his service.
The Board or management has not established any specific minimum qualifications that a candidate for director must meet in order to be recommended for Board membership. Rather the Board or management will evaluate the mix of skills and experience that the candidate offers, consider how a given candidate meets the Board’s current expectations with respect to each such criterion and make a determination regarding whether a candidate should be recommended to the stockholders for election as a director. During 2008, the Company received no recommendation for Directors from its stockholders.
The Company will consider for inclusion in its nominations of new Board of Director nominees proposed by stockholders who have held at least 1% of the outstanding voting securities of the Company for at least one year. Board candidates referred by such stockholders will be considered on the same basis as Board candidates referred from other sources. Any stockholder who wishes to recommend for the Company’s consideration a prospective nominee to serve on the Board of Directors may do so by giving the candidate’s name and qualifications in writing to the Company’s Secretary at the following address: 2225 Angelfire Street, Las Vegas, Nevada 89128.
There were no material changes in fiscal 2008 to the procedures by which the Company’s stockholder’s may recommend nominees to the Company’s Board of Directors.
Audit Committee
The Company has a separately-designed standing Audit Committee of its Board of Directors. The Audit Committee currently consists of two members.
The Audit Committee is responsible for, among other things:
·
Quarterly and annual consolidated financial statements and financial information filed with the SEC;
·
System of internal controls;
·
Financial accounting principles and policies;
·
Internal and external audit processes; and
·
Regulatory compliance programs.
The committee meets periodically to consider the adequacy of our internal controls and financial reporting process. It also discusses these matters with our independent auditors and with appropriate financial personnel employed by the Company. The committee reviews our financial statements and discusses them with management and our independent auditors before those financial statements are filed with the SEC. The Audit Committee held 1 meeting in fiscal 2009.
The committee has the sole authority to retain and dismiss our independent auditors and periodically reviews their performance and independence from management. The independent auditors have unrestricted access and report directly to the committee.
ITEM 11.
ITEM 11. EXECUTIVE COMPENSATION
Overview of Compensation Program
The Compensation Committee has responsibility for establishing, implementing and continually monitoring adherence with Gamma’s compensation philosophy. The Compensation Committee works with management to ensure that the total compensation paid to the Executives is fair, reasonable and competitive.
Executive Compensation Philosophy
Our compensation program was designed to attract, motivate and retain the highly talented individuals needed to drive business success. The program reflects the following principles:
•
Compensation should be related to performance. To that end, our compensation program reinforces our business and financial objectives. Employees compensation varies based on company and individual performance. Employees will receive greater or reduced incentive awards depending on whether, and to what extent we meet our financial goals. Individual compensation will also vary based on the person’s performance, contribution and overall value to the business.
•
Gamma employees should think like Gamma stockholders. The best way to encourage our employees to act in the best interest of Gamma is through an equity stake in the Company.
•
Our compensation plan should balance our short and long term financial objectives and reward individual and company performance.
•
Our compensation should be competitive. When we determine compensation levels for executive officers, we review compensation survey data from independent sources to ensure that our total compensation program is competitive. Companies selected for the survey are those with whom we compete for executive talent.
Components of our Compensation Plan
The components of our executive compensation program are: base salary and long term incentives.
Base Salary: We target base salaries for senior management at levels that are comparable to similar positions at companies with whom we compare for compensation purposes. We conduct surveys periodically to ensure that our salaries are competitive. We believe that compensation above competitive levels should come primarily from the variable portion of the compensation package. The committee reviews and approves all executive officer salary adjustments and recommended by the CEO. The committee also reviews the performance of the CEO and establishes his/her base salary.
Long Term Incentives; Stock Option: We believe that making employees think like owners is a key objective for our compensation program and that retaining our senior management team is essential to our success. Our 2006 Long Term Incentive Plan adopted by the Board of Directors on April 21, 2006 addresses those goals.
SUMMARY COMPENSATION TABLE
The following table sets forth the cash compensation of the Company’s executive officers during the last two fiscal years of the Company. The remuneration described in the table does not include the cost of the Company of benefits furnished to the named executive officers, including premiums for health insurance and other benefits provided to such individuals that are extended in connection with the conduct of the Company’s business.
(1)
Management agreed to accrue or partially accrue the salaries in 2007 until the Company raised sufficient capital or generate sufficient revenue through operations to make such payments.
(2)
Peter Cunningham received a stock bonus of 28,125 shares of common stock valued at $38,250.
(3)
Peter Cunningham received $150,000 in cash pursuant to the Variable Compensation Plan.
(4)
Joseph Cunningham received a stock bonus of 14,062 shares of common stock valued at $19,124.32.
(5)
Joseph Cunningham received $75,000 in cash pursuant to the Variable Compensation Plan.
(6)
Hao Zhang received a stock bonus of 14,062 shares of common stock valued at $19,124.32.
(7)
Haw Zhang received $75,000 in cash pursuant to the Variable Compensation Plan.
(8)
On March 31, 2009, we issued 3,040 Shares of Series A Preferred Stock to Peter Cunningham in exchange for cancellation of $364,854 of accrued executive compensation.
(9)
On March 31, 2009, we issued 2,191 Shares of Series A Preferred Stock to Joseph Cunningham in exchange for cancellation of $262,948 of accrued executive compensation.
(10)
On March 31, 2009, we issued 2,231 Shares of Series A Preferred Stock to Hao Zhang in exchange for cancellation of $267,750 of accrued executive compensation.
Employment Agreements
Peter Cunningham. On August 31, 2007, we executed an Employment Agreement with Peter Cunningham, wherein Mr. Peter Cunningham agreed to serve as the Company's Chief Executive Officer. The term of the agreement commenced on August 31, 2007 and will terminate on August 31, 2012; provided that the term shall automatically renew for successive five-year periods unless either party notifies the other in writing at least 60 days prior to the otherwise scheduled expiration of the agreement that such term of employment shall not so renew. We agreed to pay Mr. Peter Cunningham a base salary of $160,000 annually (payable in semi-monthly installments). Mr. Peter Cunningham's base salary shall be increased each April 1 during the term of employment in an amount at least equal to the percentage increase in the Consumer Price Index - All Urban Areas ("CPI") issued by the U.S. Department of Labor, Bureau of Labor Statistics, for the preceding calendar year. In addition to Mr. Peter Cunningham's base salary we agreed to pay him variable compensation for each quarter of each year during the term of employment in amounts determined in accordance with the terms and provisions of the Compensation Pool Plan (described below). Additionally, Mr. Peter Cunningham will be entitled to participate in any stock option program, stock compensation program and employee benefit plans.
Joseph Cunningham. On August 31, 2007, we executed an Employment Agreement with Joseph Cunningham, wherein Mr. Joseph Cunningham agreed to serve as the Company's Chief Financial Officer. The term of the agreement commenced on August 31, 2007 and will terminate on August 31, 2012; provided that the term shall automatically renew for successive five-year periods unless either party notifies the other in writing at least 60 days prior to the otherwise scheduled expiration of the agreement that such term of employment shall not so renew. We agreed to pay Mr. Joseph Cunningham a base salary of $150,000 annually (payable in semi-monthly installments). Mr. Joseph Cunningham's base salary shall be increased each April 1 during the term of employment in an amount at least equal to the percentage increase in the Consumer Price Index - All Urban Areas ("CPI") issued by the U.S. Department of Labor, Bureau of Labor Statistics, for the preceding calendar year. In addition to Mr. Joseph Cunningham's base salary we agreed to pay him variable compensation for each quarter of each year during the term of employment in amounts determined in accordance with the terms and provisions of the Compensation Pool Plan (described below). Additionally, Mr. Joseph Cunningham will be entitled to participate in any stock option program, stock compensation program and employee benefit plans.
Hao Zhang. On August 31, 2007, we executed an Employment Agreement with Hao Zhang, wherein Mr. Zhang agreed to serve as the Company's Chief Marketing Officer. The term of the agreement commenced on August 31, 2007 and will terminate on August 31, 2012; provided that the term shall automatically renew for successive five-year periods unless either party notifies the other in writing at least 60 days prior to the otherwise scheduled expiration of the agreement that such term of employment shall not so renew. We agreed to pay Mr. Zhang a base salary of $150,000 annually (payable in semi-monthly installments). Mr. Zhang's base salary shall be increased each April 1 during the term of employment in an amount at least equal to the percentage increase in the Consumer Price Index - All Urban Areas ("CPI") issued by the U.S. Department of Labor, Bureau of Labor Statistics, for the preceding calendar year. In addition to Mr. Zhang's base salary we agreed to pay him variable compensation for each quarter of each year during the term of employment in amounts determined in accordance with the terms and provisions of the Compensation Pool Plan (described below). Additionally, Mr. Zhang's will be entitled to participate in any stock option program, stock compensation program and employee benefit plans.
Executive Variable Compensation Pool Plan
On August 30, 2007, we established an Executive Variable Compensation Pool Plan ("Plan"). The Plan will be administered by the Chief Executive Officer, Peter Cunningham. Currently, the employees eligible to participate in the Plan are Peter Cunningham, Chief Executive Officer, Joseph Cunningham, Chief Financial Officer, and Hao Zhang, Chief Marketing Officer (collectively "Participants") and will eligible to participate for as long as they remain employees of the Company. In addition, the CEO may from time to time, in his sole discretion, designate additional Employees as eligible to participate in the Plan for a particular fiscal quarter. If a Participate is promoted or demoted during a particular fiscal quarter, the CEO may, in his sole discretion, elect to adjust the Participant's award percentage for such fiscal quarter. Beginning with the fiscal quarter ended on September 30, 2007, a Participant's unvested variable compensation pool award for each fiscal quarter, if any, shall be calculated by multiplying the variable compensation pool for such fiscal quarter, if any by his award percentage for such fiscal quarter. The eligible employees shall receive at a minimum 15% each of the Participant's unvested variable compensation pool award for each fiscal quarter. The maximum award amounts vary per quarter and in some quarters are based on a percentage of net revenue. At the end of each quarter the CEO will determine the amount of the award and whether it will be paid in cash or shares of common stock. If a change in control occurs during a fiscal quarter, the variable compensation pool applicable to the Participants for such fiscal quarter and each subsequent fiscal quarter during which one or more of the Participants remains a Participant shall not be less than two percent (2%) of the net revenue for the applicable fiscal quarter.
ITEM 12.
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table presents information, to the best of our knowledge, about the beneficial ownership of our common stock on July 13, 2009 relating to the beneficial ownership of our common stock by those persons known to beneficially own more than 5% of our capital stock and by our directors and executive officers. The percentage of beneficial ownership for the following table is based on 27,020,876 shares of common stock outstanding.
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and does not necessarily indicate beneficial ownership for any other purpose. Under these rules, beneficial ownership includes those shares of common stock over which the stockholder has sole or shared voting or investment power. It also includes shares of common stock that the stockholder has a right to acquire within 60 days after July 13, 2009 pursuant to options, warrants, conversion privileges or other right. The percentage ownership of the outstanding common stock, however, is based on the assumption, expressly required by the rules of the Securities and Exchange Commission, that only the person or entity whose ownership is being reported has converted options or warrants into shares of our common stock.
Security Ownership of Management
Name of Beneficial Owner (1)
Number
of Shares
Percent
Beneficially
Owned (2)
Peter Cunningham, CEO and Chairman
Angelfire Street
Las Vegas, NV 89128
5,309,659 (3)
20%
Joseph Cunningham, CFO and Director
Pheasant Lane
North Oaks, MN 55127
3,197,477 (4)
12%
Hao Zhang, Chief Marketing Officer and Director
S-052 16th Building
3rd District, An huaxili
Chaoyang District
Beijing, PR China
1,993,346 (5)
7%
All Directors & Officers as a Group
10,500,482
39%
(1)
As used in this table, “beneficial ownership” means the sole or shared power to vote, or to direct the voting of, a security, or the sole or shared investment power with respect to Common Stock (i.e., the power to dispose of, or to direct the disposition of, a security).
(2)
Rounded to the nearest whole percentage.
(3)
The 5,309,659 shares include 560,000 shares gifted by Mr. Peter Cunningham to his wife and children.
(4)
The 3,197,477 shares include 417,000 shares gifted by Mr. Joseph Cunningham to his wife and children.
(5)
The 1,993,346 shares include 400,000 shares gifted by Mr. Hao Zhang to his wife.
ITEM 13.
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
On August 30, 2007, we established an executive variable compensation pool plan. The maximum award amounts vary per quarter and in some quarters are based on a percentage of net revenue. The plan is administered by our Chief Executive Officer (CEO). At the end of each quarter the CEO will determine the amount of the award and whether it will be paid in cash or shares of common stock.
During the quarter ended September 30, 2007, the maximum amount that can be awarded was $312,500. The CEO declared an award of $273,437 to be paid in shares of common stock to the executives. The difference of $39,063 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2008, we issued 364,582 shares of common stock valued at $273,437.
During the quarter ended December 31, 2007, the maximum amount that can be awarded was $312,500. The CEO declared an award of $84,375 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $153,125 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2008, we issued 112,500 shares of common stock valued at $84,375.
During the quarter ended March 31, 2008, the maximum amount that can be awarded was $312,500. The CEO declared an award of $112,502 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $124,998 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2008, the shares have not been issued and the cash was not paid and are recorded as accrued executive compensation.
On August 31, 2007, we executed a five year employment agreement with Peter Cunningham for the position of Chief Executive Officer. Mr. Cunningham will receive an annual salary of $160,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan.
On August 31, 2007, we executed a five year employment agreement with Joseph Cunningham for the position of Chief Financial Officer. Mr. Cunningham will receive an annual salary of $150,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan.
On August 31, 2007, we executed a five year employment agreement with Hao Zhang for the position of Chief Marketing Officer. Mr. Zhang will receive an annual salary of $150,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan.
During the quarter ended March 31, 2009, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $9,000 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $228,500 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the shares have not been issued and are recorded as accrued executive compensation.
As of March 31, 2009 and 2008, the Company owed a total of $25,916 and $492,156, respectively, to the officers of the Company for accrued salaries.
As of March 31, 2009 and 2008, the Company had accounts payable due to related parties totaling $78,398 and $450, respectively.
Director Independence
The Board of Directors have not made the determination if any of its Directors are considered independent directors in accordance with the director independence standards of the American Stock Exchange; however, each Director is also an Officer, therefore, as of the date of this filing, each director should be considered as non-independent.
ITEM 14.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
(1) AUDIT FEES
The aggregate fees billed for professional services rendered by LL Bradford & Company, LLC, for the audit of our annual financial statements and review of the financial statements included in our Form 10-Q or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for fiscal years ended March 31, 2009 and March 31, 2008 were $25,000 and $38,600, respectively.
(2) AUDIT-RELATED FEES
The aggregate fees billed by LL Bradford & Company, LLC for professional services rendered for audit related for fiscal years ended March 31, 2009 and March 31, 2008 were $-0- and $-0-.
(3) TAX FEES
There were $750 and $1,500 fees billed by LL Bradford & Company, LLC for professional services to be rendered for tax fees for fiscal years ended March 31, 2009 and March 31, 2008.
(4) ALL OTHER FEES
There were no other fees to be billed by LL Bradford & Company, LLC for the fiscal years ended March 31, 2009 and 2008 other than the fees described above.
(5) AUDIT COMMITTEE POLICIES AND PROCEDURES
The Audit Committee has established a policy regarding pre-approval of all audit and permissible non-audit services provided by the independent auditor. Each year, the Audit Committee approves the terms on which the independent auditor is engaged for the ensuing fiscal year. On at least a quarterly basis, the Committee reviews and, if appropriate, pre-approves services to be performed by the independent auditor, reviews a report summarizing fiscal year-to-date services provided by the independent auditor, and reviews an updated projection of the fiscal year’s estimated fees. The Audit Committee, as permitted by its pre-approval policy, from time to time delegates the approval of certain permitted services or classes of services to a member of the Committee. The Committee then reviews the delegate’s approval decisions on a quarterly basis.
(6) If greater than 50 percent, disclose the percentage of hours expended on the principal accountant's engagement to audit the registrant's financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant's full-time, permanent employees.
Not applicable.
ITEM 15.
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a)
Exhibits
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
GAMMA PHARMACEUTICALS INC.
By: /S/ Peter Cunningham
Peter Cunningham, President
Date: July 14, 2009
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/S/ Peter Cunningham
CEO and Chairman
July 14, 2009
Peter Cunningham
/S/ Joseph Cunningham
Chief Financial Officer,
July 14, 2009
Joseph Cunningham
Secretary and Director
/S/ Hao Zhang
Chief Marketing Officer
July 14, 2009
Hao Zhang
And Director
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Gamma Pharmaceuticals, Inc.
Las Vegas, Nevada
We have audited the accompanying consolidated balance sheets of Gamma Pharmaceuticals, Inc. as of March 31, 2009 and 2008, and the related consolidated statements of operations, stockholders’ equity, and cash flows for the years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Gamma Pharmaceuticals, Inc. as of March 31, 2009 and 2008, and the results of its activities and cash flows for the years then ended in conformity with accounting principles generally accepted in the United States.
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3 to the financial statements, the Company’s current liabilities exceed current assets and has incurred significant losses during the development stage, all of which raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regards to these matters are also described in Note 3. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/S/ L.L. Bradford & Company, LLC
L.L. Bradford & Company, LLC
July 14,
Las Vegas, Nevada
Gamma Pharmaceuticals, Inc.
Consolidated Balance Sheets
The accompanying notes are an integral part of these consolidated financial statements.
Gamma Pharmaceuticals, Inc.
Consolidated Statements of Operations
The accompanying notes are an integral part of these consolidated financial statements.
Gamma Pharmaceuticals, Inc.
Consolidated Statement of Stockholders’ Equity
The accompanying notes are an integral part of these consolidated financial statements.
Gamma Pharmaceuticals, Inc.
Consolidated Statements of Cash Flows
The accompanying notes are an integral part of these consolidated financial statements.
Gamma Pharmaceuticals, Inc.
Notes to Consolidated Financial Statements
Note 1: Organization and Description of Business
Organization
Emerging Gamma Corporation (the "Company") was incorporated under the laws of the State of Delaware on February 10, 1993. On April 25, 2006, the Company amended its articles of incorporation and changed its name to Sunburst Pharmaceuticals, Inc. On July 11, 2006, the Company amended its articles of incorporation and changed its name to Gamma Pharmaceuticals, Inc.
On October 17, 2006, the Company acquired 100% of Gamma Pharmaceuticals (HK) Limited (“Gamma HK”). Gamma HK was a recently formed corporation with no operations.
On December 8, 2006 our Hong Kong subsidiary company, Gamma Pharmaceuticals (HK) Ltd., established Gamma Pharmaceuticals (HK) Limited Beijing Representative Office, in Beijing China. The Representative Office will represent Gamma Pharmaceuticals (HK) Ltd., interests in China. All invoicing and commercial arrangements for China will be contracted through our Hong Kong subsidiary company.
Description of Business
Our business is focused on the formulation, marketing and sale of vitamins and nutriceuticals, OTC pharmaceutical products and personal care products in Greater China and the United States.
Note 2: Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Gamma Pharmaceuticals, Inc. (US corporation), and its wholly-owned subsidiary Gamma HK. All significant inter-company balances and transactions have been eliminated. Gamma Pharmaceuticals, Inc. (US Corporation) and Gamma HK will be collectively referred herein to as the “Company”.
Reclassifications
Certain reclassifications have been made to the prior years’ financial statements to conform to the current year presentation. These reclassifications had no effect on previously reported results of operations or retained earnings.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates.
Fair Value of Financial Instruments
The Company has financial instruments whereby the fair value of the financial instruments could be different than that recorded on a historical basis in the accompanying balance sheets. The Company's financial instruments consist of cash and payables. The carrying amounts of the Company's financial instruments approximate their fair values as of March 31, 2009 and 2008 due to their short-term nature.
Cash and Equivalents
Cash and cash equivalents consist primarily of cash on deposit, certificates of deposit, money market accounts, and investment grade commercial paper that are readily convertible into cash and purchased with original maturities of three months or less.
Inventory
Inventories are stated at the lower of cost (first-in, first-out basis) or market (net realizable value).
Fixed Assets
Property and equipment are recorded at cost. Expenditures for major additions and improvements are capitalized and minor replacements, maintenance, and repairs are charged to expense as incurred. When property and equipment are retired or otherwise disposed of, the cost and accumulated depreciation are removed from the accounts and any resulting gain or loss is included in the results of operations for the respective period. Depreciation is provided over the estimated useful lives of the related assets using the straight-line method for financial statement purposes. The Company uses other depreciation methods (generally accelerated) for tax purposes where appropriate. The estimated useful lives for significant property and equipment categories are as follows:
Computer equipment 3 years
Equipment 3 years
Furniture and fixtures 7 years
The Company reviews the carrying value of property, plant and equipment for impairment whenever events and circumstances indicate that the carrying value of an asset may not be recoverable from the estimated future cash flows expected to result from its use and eventual disposition. In cases where undiscounted expected future cash flows are less than the carrying value, an impairment loss is recognized equal to an amount by which the carrying value exceeds the fair value of assets. The factors considered by management in performing this assessment include current operating results, trends and prospects, the manner in which the property is used, and the effects of obsolescence, demand, competition and other economic factors. Based on this assessment there was no impairment as March 31, 2009 and 2008.
Website
The Company capitalizes the costs associated with the development of the Company’s website pursuant to Statement of Position 98-1 and Emerging Issues Task Force 00-20. Other costs related to the maintenance of the website are expensed as incurred. Amortization is provided over the estimated useful lives of 3 years using the straight-line method for financial statement purposes. The Company will commence amortization once the economic benefits of the assets begin to be consumed and they plan to record amortization once the website is completed and is fully operational.
Intangible Assets
Financial Accounting Standards Board (“FASB”) Statement No. 142, Goodwill and Other Intangible Assets ("FAS 142") requires that goodwill and intangible assets with indefinite useful lives no longer be amortized, but instead tested for impairment at least annually in accordance with the provisions of FAS 142. This standard also requires that intangible assets with definite useful lives be amortized over their respective estimated useful lives to their estimated residual values, and reviewed for impairment. As of March 31, 2009 and 2008, the Company believes there is no impairment of its intangible assets.
The Company's intangible assets consist of the costs of filing and acquiring various trademarks. The trademarks are recorded at cost. The Company determined that the trademarks have an estimated useful life of 10 - 15 years and will be reviewed annually for impairment. Amortization will recorded over the estimated useful life of the assets using the straight-line method for financial statement purposes. The Company will commence amortization once the economic benefits of the assets begin to be consumed and they plan to record amortization once production begins and the related revenues are recorded.
The Company acquired intangible assets from an officer of the Company during April 2006 and May 2007. During the year ended March 31, 2008, the Company has commenced production on products and they have started amortization effective October 2007.
Revenue Recognition
The Company recognized revenue from product sales once all of the following criteria for revenue recognition have been met: pervasive evidence that an agreement exists; the services have been rendered; the fee is fixed and determinable and not subject to refund or adjustment; and collection of the amount due is reasonable assured. The Company will primarily derive its revenues from the sales of its vitamins, nutriceutical products and personal care products.
The Company has products that are in China that are sold on a consignment basis. Once the products are shipped to a customer they will have 30 days to return product and the Company grants the customer an additional 30 days to pay for the product. Because of the return policy the Company will defer the recognition of revenue until end of the 30 day return policy.
Concentrations
In 2009, three customers accounted for 100% of sales and one customer for 100% of accounts receivable. During the year ended March 31, 2009, 56% of sales were in the US and 44% of sales in China. In 2008, one customer accounted for 100% of sales and 100% of accounts receivable. During the year ended March 31, 2008, 100% of sales were in the US.
Research and Development
Research and development costs are expensed as incurred. The costs of materials and equipment that will be acquired or constructed for research and development activities, and have alternative future uses, both in research and development, marketing or sales, will be classified as property and equipment and depreciated over their estimated useful lives. To date research and development costs include the development of various vitamins, nutriceutical products and personal care products.
Stock Based Compensation
The Company adopted Statement of Financial Accounting Standards (SFAS) No. 123R (revised 2004), “Share-Based Payment,” requiring the Company to recognize expense related to the fair value of its employee stock option awards. SFAS-123R eliminates accounting for share-based compensation transactions using the intrinsic value method prescribed in Accounting Principles Board Opinion No. 25 (APB-25), “Accounting for Stock Issued to Employees”, and requires instead that such transactions be accounted for using a fair-value-based method. The Company recognizes the cost of all share-based awards on a graded vesting basis over the vesting period of the award.
Income Taxes
The Company accounts for income taxes in accordance with FASB Statement No. 109 "Accounting for Income Taxes." SFAS No. 109 requires the Company to provide a net deferred tax asset/liability equal to the expected future tax benefit/expense of temporary reporting differences between book and tax accounting methods and any available operating loss or tax credit carry forwards.
Loss per Common Share
The Company presents basic loss per share (“EPS”) and diluted EPS on the face of consolidated statements of operations. Basic EPS is computed by dividing reported earnings by the weighted average shares outstanding. Diluted EPS is computed by adding to the weighted average shares the dilutive effect if stock options and warrants were exercised into common stock. For the years ended March 31, 2009 and 2008, the denominator in the diluted EPS computation is the same as the denominator for basic EPS due to the anti-dilutive effect of the warrants and stock options on the Company’s net loss.
Foreign Currency Adjustments
The U.S. dollar is the functional currency of the Company’s consolidated financial statements. All foreign currency asset and liability amounts are remeasured into U.S. dollars at end-of-period exchange rates, except for inventories, prepaid expenses, and fixed assets, which are remeasured at historical rates. Exchange gains and loss arising from remeasurement of foreign currency denominated monetary assets and liabilities are included in income in the period in which they occur.
Fiscal Year End
The Company’s fiscal year end is March 31.
Recent Accounting Pronouncements
In March 2008, the FASB issued SFAS No. 161, "Disclosures about Derivative Instruments and Hedging Activities", an amendment of SFAS No. 133. SFAS 161 applies to all derivative instruments and non-derivative instruments that are designated and qualify as hedging instruments pursuant to paragraphs 37 and 42 of SFAS 133 and related hedged items accounted for under SFAS 133. SFAS 161 requires entities to provide greater transparency through additional disclosures about how and why an entity uses derivative instruments, how derivative instruments and related hedged items are accounted for under SFAS 133 and its related interpretations, and how derivative instruments and related hedged items affect an entity's financial position, results of operations, and cash flows. SFAS 161 is effective as of the beginning of an entity's first fiscal year that begins after November 15, 2008. The Company does not expect the adoption of SFAS 161 will have a material impact on its financial condition or results of operation.
In May 2008, the FASB issued SFAS No. 162, “The Hierarchy of Generally Accepted Accounting Principles.” SFAS 162 will provide framework for selecting accounting principles to be used in preparing financial statements that are presented in conformity with U.S. generally accepted accounting principles (GAAP) for nongovernmental entities. SFAS 162 will be effective 60 days following the Securities and Exchange Commission’s approval of the Public Company Accounting Oversight Board (PCAOB) amendments to AU Section 411. The Company does not expect the adoption of SFAS 162 will have a material impact on its financial condition or results of operation.
In April 2008, the FASB issued Staff Position FAS 142-3, “Determination of the Useful Life of Intangible Assets” (“FSP FAS 142-3”) which amends the factors an entity should consider in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under FAS No. 142, “Goodwill and Other Intangible Assets” (“FAS No. 142”). FSP FAS 142-3 applies to intangible assets that are acquired individually or with a group of assets and intangible assets acquired in both business combinations and asset acquisitions. It removes a provision under FAS No. 142, requiring an entity to consider whether a contractual renewal or extension clause can be accomplished without substantial cost or material modifications of the existing terms and conditions associated with the asset. Instead, FSP FAS 142-3 requires that an entity consider its own experience in renewing similar arrangements. An entity would consider market participant assumptions regarding renewal if no such relevant experience exists. FSP FAS 142-3 is effective for year ends beginning after December 15, 2008 with early adoption prohibited. The Company does not expect the adoption of FSP FAS 142-3 will have a material impact on its financial condition or results of operation.
Recent Accounting Pronouncements (Continued)
In May 2008, the FASB issued SFAS No. 163, “Accounting for Financial Guarantee Insurance Contracts - an interpretation of FASB Statement No. 60.” SFAS 163 requires that an insurance enterprise recognize a claim liability prior to an event of default (insured event) when there is evidence that credit deterioration has occurred in an insured financial obligation. This Statement also clarifies how Statement 60 applies to financial guarantee insurance contracts, including the recognition and measurement to be used to account for premium revenue and claim liabilities. Those clarifications will increase comparability in financial reporting of financial guarantee insurance contracts by insurance enterprises. This Statement requires expanded disclosures about financial guarantee insurance contracts. The accounting and disclosure requirements of the Statement will improve the quality of information provided to users of financial statements. SFAS 163 will be effective for financial statements issued for fiscal years beginning after December 15, 2008. The Company does not expect the adoption of SFAS 163 will have a material impact on its financial condition or results of operation.
In June 2008, the FASB issued FSP No. EITF 03-6-1, “Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities” (“FSP EITF 03-6-1”). FSP EITF 03-6-1 concludes that unvested share-based payment awards that contain rights to receive non-forfeitable dividends or dividend equivalents are participating securities, and thus, should be included in the two-class method of computing earnings per share (“EPS”). FSP EITF 03-6-1 is effective for fiscal years beginning after December 15, 2008, and interim periods within those years. Early application of EITF 03-6-1 is prohibited. It also requires that all prior-period EPS data be adjusted retrospectively. The Company does not expect the adoption of EITF 03-6-1 will have a material impact on its financial condition or results of operation.
In September 2008, the FASB issued exposure drafts that eliminate qualifying special purpose entities from the guidance of SFAS No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities,” and FASB Interpretation 46 (revised December 2003), “Consolidation of Variable Interest Entities − an interpretation of ARB No. 51,” as well as other modifications. While the proposed revised pronouncements have not been finalized and the proposals are subject to further public comment, the Company anticipates the changes will not have a significant impact on the Company’s financial statements. The changes would be effective March 1, 2010, on a prospective basis.
In October 2008, the FASB issued FSP No. FAS 157-3, “Determining the Fair Value of a Financial Asset When the Market for That Asset is Not Active,” (“FSP FAS 157-3”), which clarifies application of SFAS 157 in a market that is not active. FSP FAS 157-3 was effective upon issuance, including prior periods for which financial statements have not been issued. The adoption of FSP FAS 157-3 had no impact on the Company’s results of operations, financial condition or cash flows.
In December 2008, the FASB issued FSP No. FAS 140-4 and FIN 46(R)-8, “Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities.” This disclosure-only FSP improves the transparency of transfers of financial assets and an enterprise’s involvement with variable interest entities, including qualifying special-purpose entities. This FSP is effective for the first reporting period (interim or annual) ending after December 15, 2008, with earlier application encouraged. The Company adopted this FSP effective January 1, 2009. The adoption of the FSP had no impact on the Company’s results of operations, financial condition or cash flows.
Recent Accounting Pronouncements (Continued)
In December 2008, the FASB issued FSP No. FAS 132(R)-1, “Employers’ Disclosures about Postretirement Benefit Plan Assets” (“FSP FAS 132(R)-1”). FSP FAS 132(R)-1 requires additional fair value disclosures about employers’ pension and postretirement benefit plan assets consistent with guidance contained in SFAS 157. Specifically, employers will be required to disclose information about how investment allocation decisions are made, the fair value of each major category of plan assets and information about the inputs and valuation techniques used to develop the fair value measurements of plan assets. This FSP is effective for fiscal years ending after December 15, 2009. The Company does not expect the adoption of FSP FAS 132(R)-1 will have a material impact on its financial condition or results of operation.
In April 2009, the FASB issued FSP No. FAS 157-4, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly” (“FSP FAS 157-4”). FSP FAS 157-4 provides guidance on estimating fair value when market activity has decreased and on identifying transactions that are not orderly. Additionally, entities are required to disclose in interim and annual periods the inputs and valuation techniques used to measure fair value. This FSP is effective for interim and annual periods ending after June 15, 2009. The Company does not expect the adoption of FSP FAS 157-4 will have a material impact on its financial condition or results of operation.
Note 3: Going Concern
The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company has incurred a net loss of $3,906,424 for the year ended March 31, 2009, with an accumulated loss of approximately $10,311,200. The Company’s current liabilities exceed its current assets by $668,986 as of March 31, 2009.
These conditions give rise to substantial doubt about the Company’s ability to continue as a going concern. These financial statements do not include adjustments relating to the recoverability and classification of reported asset amounts or the amount and classification of liabilities that might be necessary should the Company be unable to continue as a going concern. The Company’s continuation as a going concern is dependent upon its ability to obtain additional financing or sale of its common stock as may be required and ultimately to attain profitability.
Management’s plan, in this regard, is to raise financing of approximately $7,000,000 through a combination of equity and debt financing. Management believes this amount will be sufficient to finance the continuing development for the next twelve months. However, there is no assurance that the Company will be successful in raising such financing.
Note 4: Inventory
Inventories consisted of the following as of March 31, 2009 and 2008:
March 31,
March 31,
Finished goods
$ 111,961
$ 7,325
Work-in-process
17,266
91,800
Raw materials
13,006
29,006
Total
$ 142,233
$ 128,131
Note 5: Prepaid Expenses
As of March 31, 2009 and 2008, the Company had $0 and $37,773 in prepaid expenses, respectively. The prepaid expenses relate to insurance and a license agreement for a trade name.
Note 6: Fixed Assets
Fixed assets consisted of the following as of March 31, 2009 and 2008:
March 31,
March 31,
Computer equipment
$ 13,567
$ 11,514
Equipment
12,825
12,825
Furniture and fixtures
1,087
1,087
Accumulated depreciation
(15,955)
(7,246)
$ 11,524
$ 18,180
During the years ended March 31, 2009 and 2008, the Company recorded depreciation expense of $9,740 and $6,787, respectively.
Note 7: Intangible Assets
On April 7, 2006, the Company entered into a Technology Transfer Agreement (the "Technology Transfer Agreement") pursuant to which, the Company has obtained all copyrights, trademarks, and know-how (collectively "Transferred Technology") to a portfolio of vitamin and nutriceutical products and personal care products. The transferred technology is based on propriety formulation technology, and the Company believes that such technology represents improved versions of branded products currently being marketed by other companies. The Company issued 9,045,900 shares of common stock under the Technology Transfer Agreement is recorded at the estimated fair value of the Transferred Technology totaling $5,951,250 and is included as an intangible asset on the balance sheet at March 31, 2009.
On May 4, 2007, the Company purchased intellectual property from an officer and director of the Company for cash of $17,000 and would be eligible to participate in any additional management compensation structure. The value was based on the historical costs incurred by the officer and director of the Company. The Company views the intellectual property as a core component of its pending patent application.
On August 5, 2006, the Company executed a license agreement with Jugular, Inc. for the use of their trade name through December 31, 2010 on two product lines in exchange for $31,400. On July 2, 2007, the Company amended its license agreement with Jugular, Inc. to expand the scope of product lines. Additionally, on August 29, 2007, the Company amended the license agreement and increased the term to 15 years with an automatic renewal for 5 year terms if the Company meets the minimum sales requirements. As part of the amendments to the license agreement, the Company agreed to issue a total of 110,000 shares of common stock, 17,000 warrants and $15,000 to be paid in cash. The warrants shall be exercisable at any time until August 29, 2012 at a price of $1.00 per share. As of March 31, 2008, the Company issued the shares of common stock, warrants and paid the cash of $15,000. The Company is obligated to pay minimum guaranteed quarterly payments totaling $1,598,306 over a period of four years. The present value of the total payments is $1,217,799 and the Company has capitalized this cost. The Company has imputed interest at approximately 10% per annum and will amortize the interest over the four year period. During the year ended March 31, 2009, the Company recorded interest expense totaling $85,998 and paid $76,283 in guaranteed payments to Jugular, Inc. As of March 31, 2009, the Company is in default and has accrued interest of $2,919 for the late charges on the annual guarantee payments and is renegotiating its agreement with Jugular, Inc. The total value of the amendment to the license agreement is $1,323,985.
During the years ended March 31, 2009 and 2008, the Company recorded amortization expense of $596,825 and $298,413, respectively.
Note 8: Notes Payable
On February 1, 2009, the Company executed a promissory note for $3,000 with an unrelated third party. The loan bears 0% interest and is due on September 30, 2009.
Note 9: Equity
Effective May 15, 2006, the Company declared a stock dividend of 18 shares for each share of its common stock which has the effect of a 19 for one stock split, resulting in 10,071,000 shares of common stock issued and outstanding. The stock split has been reflected in the accompanying financial statements by retroactively restating all shares and per share amounts.
During May 2008, the Company authorized its amendment to the articles of incorporation and increased its authorized capital from 500,000 shares of $0.001 preferred stock to 2,000,000 shares of $0.001 preferred stock and from 20,000,000 shares of $0.001 common stock to 100,000,000 shares of $0.001 common stock.
Series A Preferred Stock
On March 31, 2009, the Company designated their preferred stock to 8% Series A Convertible Preferred Stock. The holders of the preferred stock will be entitled to receive a dividend at a rate of 8% per annum. The dividends will be cumulative and shall be paid quarterly at the option and discretion of the Company either in cash or shares of the Company’s common stock at a price of $0.12 per share. Each 1 share of preferred stock shall be convertible into 1,000 shares of common stock at the option of the holder.
On March 31, 2009, the Company issued a total of 7,462 shares of $0.001 preferred stock to its officers for satisfaction of $895,553 of accrued executive compensation. (See Note 12).
Common Stock
The Company raised funds via private placement (the “August 2006 Private Placement”). Each unit consists of one share of common stock, one Series A warrant, one Series B warrant and one Series C warrant and is sold at $0.75 per unit. The warrants were sold in three series and expire in 5 years. The Series A warrants are exercisable for cash at an exercise price of $0.75 per share. The Series B warrants are exercisable for cash at an exercise price of $1.00 per share. The Series C warrants are exercisable for cash at an exercise price of $1.25 per share. The warrants vest immediately upon issuance. The exercise prices of the warrants are subject to adjustment in certain circumstances, including downward adjustment upon issuance by the Company of common stock at a per share price less than the exercise price of the warrants. The Company anticipates using these proceeds to commence implementation of the Company’s growth strategy and for general working capital purposes.
The Company has agreed to file a registration statement with the SEC, within 180 days following the final Closing of the August 2006 Private Placement, using its best efforts, a registration statement on Form S-1 (or such other form as applicable) registering the resale of the shares of Common Stock and the shares of Common Stock issuable upon the exercise of the Investor Warrants. In addition, the Company has agreed, to the best of its abilities, to keep such registration statement current and effective. At present, the shares and warrants are not registered and the Company can settle in unregistered shares and warrants. The Company is not obligated under any restrictions related to this effort.
The offer and sale of the shares of common stock, the warrants and the shares of common stock underlying the warrants were not registered under the Securities Act, in reliance upon the exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended, as transactions not involving any public offering.
This offering was formally closed on June 30, 2008.
During the year ended March 31, 2008, the Company issued a total of 1,408,532 shares of common stock to various individuals and entities for services rendered. The shares were valued at the fair market value of the stock at $1,582,085. Of the total, $225,000 is considered prepaid stock compensation since it is for future services. The Company will amortize the prepaid stock compensation over the service period of the agreement.
During the year ended March 31, 2008, the Company sold a total of 2,131,451 shares of our common stock and 6,394,353 common stock purchase warrants to various accredited investors in a private placement. The terms of the private placement are the same as the August 2006 Private Placement (see above). The gross proceeds from the sale were $1,572,475 for the common stock and up to $6,394,353 should all of the warrants be exercised for cash. During the year ended March 31, 2008, the Company adjusted its stock payable account by $165,499 to account for the shares issued during this year for cash that was received in the prior year. As of March 31, 2008, the Company had a stock payable for $95,001 for a total of 126,667 shares of common stock.
On May 9, 2007, the Company issued 8,540 common stock purchase warrants and $25,620 in cash to an entity as a commission related to the recent sales of equity. The Series A warrants are exercisable for cash for a period of 5 years at an exercise price of $0.75 per share and vest immediately. The warrants and cash are considered offering costs and were netted against the proceeds and recorded in additional paid in capital.
During the year ended March 31, 2008, the Company issued 110,000 shares of common stock to Jugular, Inc. for the amendment of a license agreement (See Note 7). The shares were valued at the fair market value of the stock at $82,500. Additionally, the Company issued 14,000 common stock purchase warrants to Jugular which was valued at $8,686. The Series B warrants are exercisable for cash for a period of 5 years at an exercise price of $1.00 per share and vest immediately.
During the year ended March 31, 2008, the Company issued a total of 477,082 shares of common stock to three individuals who are officers and directors of the Company. The shares were valued at the fair market value of the stock at $357,811. The shares are from an award that was declared for the quarters ended September 30, 2007 and December 31, 2007 from the executive variable compensation pool plan.
On December 12, 2007, the Company issued 250,000 shares of common stock to a charitable organization, which is managed by a former officer of the Company, as a charitable donation. The shares were valued at the fair market value of the stock at $187,500.
During the year ended March 31, 2009, the Company issued a total of 3,705,183 shares of common stock to various individuals and entities for services rendered. The shares were valued at the fair market value of the stock at $902,860. Of the total, $283,750 is considered prepaid stock compensation since it is for future services and $34,999 is considered stock payable because the shares were unissued as of March 31, 2009. The Company will amortize the prepaid stock compensation over the service period of the agreement. During the year ended March 31, 2009, the Company recorded $349,583 for the amortization of the prepaid stock compensation.
During the year ended March 31, 2009, the Company sold a total of 1,301,666 shares of our common stock and 1,434,999 common stock purchase warrants to various accredited investors in a private placement. The terms of the private placement are the same as the August 2006 Private Placement (see above). The gross proceeds from the sale were $820,000 for the common stock and up to $4,304,997 should all of the warrants be exercised for cash.
During the year ended March 31, 2009, the Company sold a total of 326,667 shares of our common stock to various accredited investors in a private placement. The gross proceeds from the sale were $120,000.
As of March 31, 2009, the Company had a stock payable for $318,000 for a total of 2,463,333 shares of common stock.
During the year ended March 31, 2009, the Company issued a total of 108,029 shares of our common stock to Jugular, Inc. for payment of the notes payable for the minimum annual guarantee payments. The shares were valued at $22,111 based on the fair value of the common stock on the date of grant.
During the year ended March 31, 2009, the Company issued a total of 337,410 shares of common stock to three individuals who are officers and directors of the Company. The shares were valued at the fair market value of the stock at $446,585. The shares are from a bonus declared in July 2008 and awards that were declared for the quarters ended March 31, 2008, June 30, 2008, September 30, 2008, and December 31, 2008 from the executive variable compensation pool plan.
Note 10: Stock Warrants
The following is a summary of the status of all of the Company’s stock warrants as of March 31, 2009 and changes during the years ended on that date:
The following tables summarize information about stock warrants outstanding and exercisable at March 31, 2009:
Note 11: Agreements
On April 1, 2008, the Company entered into a marketing support agreement with an unrelated third party for a period of two years. The individual will receive commissions of 1% based on collection of receivables for a period of six months from the start of a referred buyer and 1% upon achievement of the sales forecast for each quarter. The individual will receive a 5% commission on collection of receivables from buyers in their territory. The total commissions are not to exceed $4,000 per month. During the year ended March 31, 2008, the Company has issued a total of 100,000 shares of common stock to this individual and has recorded the value of $225,000 as prepaid stock compensation. During the year ended March 31, 2009, the Company recorded consulting expense of $112,500 due to the amortization of the prepaid compensation and $57,480 of consulting expense which was due in cash.
On May 7, 2008, the Company entered into a finder agreement with an individual for equity financing. For each $100,000 this individual raises, he will receive 20,000 shares of common stock. During the three months ended September 30, 2008, he raised a total of $50,000 for the Company and earned 10,000 shares of common stock valued at $16,000. As of September 30, 2008, the shares have been issued.
On June 2, 2008, the Company entered into a consulting agreement with an entity for a six month term. The consultant will receive a monthly payment of $6,000 for the first three months and $9,000 for the last three months of the agreement. Additionally, the consultant will receive 150,000 shares of common stock valued at $256,500. The shares were valued at the fair market value of the stock. During the year ended March 31, 2009, the Company recorded consulting expense of $45,000 for the cash portion and $256,500 for the equity portion of the agreement. As of December 31, 2008, the shares have been issued.
On October 1, 2008, the Company executed a consulting agreement for investor relations services with an entity for a period of six months. The Company agreed to pay the consultant $25,000 in cash and 250,000 shares of common stock. On October 30, 2008, the Company and the consultant mutually terminated this agreement and the Company compensated the consultant $0 in cash and 24,000 shares of common stock. The shares were issued on October 24, 2008 and November 11, 2008.
On October 15, 2008, the Company entered into a finder agreement with an individual, wherein he agreed to introduce the Company to certain financing sources known to or identified by him relating to potential financing (“transaction”) involving the Company. If the Company closed on a transaction wherein this individual identified the source of financing, we agreed to pay him, upon closing of the transaction, 8% cash fee and 10,000 shares of our restricted common stock per $100,000 raised through a direct equity investment and a 2% cash fee if an introduction results in the successful closing of a transaction. The agreement may be terminated at any time by either party. Subsequent to December 31, 2008, this individual assisted the Company in raising $25,000.
On November 3, 2008, the Company executed a consulting agreement for investor relations services with an entity for a period of six months. The Company has agreed to issue 250,000 shares of common stock which will vest at 42,000 shares per month beginning May 1, 2009 and will be 100% vested by October 1, 2009. The shares were issued on November 11, 2008.
On November 19, 2008, the Company entered into a professional advisory agreement with a consultant for a period of one year. Upon completion of a funding from a directly introduced source, the Company has agreed to pay no more than 5% of the gross proceeds. For introductions to other financial intermediary and successful closing of funding, the Company shall pay a one-time finders’ fee of 2% in cash. If the consultant assists the Company with securing an equity line of credit, then the Company will pay the consultant a one-time fee equal to 1.30% in cash and 1.30% in shares of common stock. As of December 31, 2008, the agreement was mutually terminated by both parties.
On December 1, 2008, the Company entered into an inventory consignment agreement with Bridgeland Trading Ltd., wherein the Company granted to Bridgeland, upon and subject to the terms and conditions of the agreement, an exclusive license under the rights to develop, manufacture, market, distribute and sell, and have manufactured, marketed, distributed and sold, certain products. Pursuant to the agreement the Company and Bridgeland desire that Bridgeland sell the consigned merchandise pursuant to a consignment arrangement, the terms of which are set forth in the agreement. The consignment payment shall be equal to 10% of Bridgeland’s net sales of consigned merchandise, plus such additional amount, if any, as may be necessary for Bridgeland to pay the minimum consignment payment.
In connection with the consignment agreement mentioned above between the Company and Bridgeland, on December 1, 2008, Bridgeland entered into an inventory consignment agreement with Parco Sino-Can Science Technology Inc. Parco is a corporation that is owned and controlled by an officer, director and shareholder of the Company. Bridgeland is engaged in the supply of pharmaceutical products as a result of its inventory consignment agreement with the Company and wishes to provide Parco with rights to package, promote, sell and distribute certain of its products in the Territory on a Consignment basis. Parco is in the business of packaging, marketing and distributing a number of products, for companies doing business in China and elsewhere, including pharmaceutical products. Pursuant to the agreement, Parco will market and sell certain of Bridgeland's products as consigned to Bridgeland pursuant to the terms and conditions of the Company’s agreement, on a consignment basis, the “Consigned Merchandise,” which includes, but is not limited to various pharmaceutical products including but not limited to Multi-Flavored Gumdrops, Swirl Gummy Bears, Multi-Flavored gummy Bears, and Orange Gumdrops. The consignment payment shall be equal to 10% of Parco’s net sales of consigned merchandise, plus such additional amount, if any, as may be necessary for Parco to pay the minimum consignment payment.
Note 12: Related Party Transactions
On August 30, 2007, the Company established an executive variable compensation pool plan. The maximum award amounts vary per quarter and in some quarters are based on a percentage of net revenue. The plan is administered by the Chief Executive Officer (CEO). At the end of each quarter the CEO will determine the amount of the award and whether it will be paid in cash or shares of common stock.
During the quarter ended September 30, 2007, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $273,437 to be paid in shares of common stock to the executives. The difference of $39,063 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2008, the Company issued 364,582 shares of common stock valued at $273,437.
During the quarter ended December 31, 2007, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $84,375 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $153,125 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2008, the Company issued 112,500 shares of common stock valued at $84,375.
During the quarter ended March 31, 2008, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $112,502 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $124,998 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the Company issued 56,251 shares of common stock valued at $112,502.
During the quarter ended June 30, 2008, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $156,375 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $81,125 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the Company issued 112,455 shares of common stock valued at $112,502.
During the quarter ended September 30, 2008, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $156,375 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $81,125 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the Company issued 112,455 shares of common stock valued at $101,210. As of March 31, 2009, there are 45 shares have not been issued and is recorded as accrued executive compensation.
During the quarter ended December 31, 2008, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $16,875 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $220,625 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the shares have not been issued and are recorded as accrued executive compensation.
During the quarter ended March 31, 2009, the maximum amount that can be awarded was $312,500. The CEO has declared an award of $9,000 to be paid in shares of common stock and $75,000 in cash to the executives. The difference of $228,500 will be rolled over to the variable compensation pool plan for the next quarter. As of March 31, 2009, the shares have not been issued and are recorded as accrued executive compensation.
On August 31, 2007, the Company executed a five year employment agreement with Peter Cunningham for the position of Chief Executive Officer. Mr. Cunningham will receive an annual salary of $160,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan. On September 1, 2008, Mr. Cunningham received a raise due to cost of living adjustment and his annual salary was increased to $168,000.
On August 31, 2007, the Company executed a five year employment agreement with Joseph Cunningham for the position of Chief Financial Officer. Mr. Cunningham will receive an annual salary of $150,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan. On September 1, 2008, Mr. Cunningham received a raise due to cost of living adjustment and his annual salary was increased to $159,000.
On August 31, 2007, the Company executed a five year employment agreement with Hao Zhang for the position of Chief Marketing Officer. Mr. Zhang will receive an annual salary of $150,000 per year and is eligible to participate in the Company’s executive variable compensation pool plan. On September 1, 2008, Mr. Cunningham received a raise due to cost of living adjustment and his annual salary was increased to $159,000.
On March 31, 2009, the Company issued a total of 7,462 shares of $0.001 preferred stock to its officers for satisfaction of $895,553 of accrued executive compensation. (See Note 9).
As of March 31, 2009 and 2008, the Company owed a total of $25,916 and $492,156, respectively, to the officers of the Company for accrued salaries.
As of March 31, 2009 and 2008, the Company had accounts payable due to related parties totaling $78,398 and $450, respectively.
Note 13: Subsequent Events
On April 6, 2009, the Company executed a promissory note for $21,000 with an unrelated third party. The loan bears 0% interest and is due on August 3, 2009. The first monthly payment was $4,000 and was due in April 2009. The remaining monthly payments are $4,250.
On May 28, 2009, the Company issued a total of 1,116,454 shares for services rendered. The shares valued using the fair value of the common stock totaling $112,550.
On May 28, 2009, the Company issued a total of 1,840,000 shares for cash received during the year ended March 31, 2008.
On May 28, 2009, the Company issued a total of 1,200,000 shares for cash received during April and May 2009 and issued 500,000 warrants with an exercise price of $0.25 for a three year period.
On May 28, 2009, the Company issued a total of 225,045 shares for satisfaction of accrued executive compensation of $25,916.
On May 28, 2009, the Company issued 93,600 shares for satisfaction the current portion of notes payable related to the Jugular minimum annual guarantee payments of $26,208.