UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest event reported): May 16, 2006
Applied DNA Sciences, Inc
(Exact Name of Registrant as Specified in Charter)
Nevada 002-90539 59-2262718
(State or Other (Commission File Number) (IRS Employer
Jurisdiction Identification No.)
of Incorporation)
25 Health Sciences Drive, Suite 113
Stony Brook, New York 11790
(Address of Principal Executive Offices) (Zip Code)
631-444-6861
(Registrant's telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2 below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 4.02 Non-Reliance on Previously Issued Financial Statements or a
Related Audit Report or Completed Interim Review.
On January 28, 2005 and February 11, 2005, Applied DNA Sciences, Inc. (the
"Company" or "we" or "us") closed on a private placement of its securities in
which it sold $7,371,000 in aggregate principal amount of 10% secured
convertible promissory notes (the "Notes") and warrants to purchase 14,742,000
shares of its common stock (the "Warrants").
On May 16, 2006, our Board of Directors concluded that its previously
issued financial statements as of and for (i) the fiscal year ended September
30, 2005, and (ii) the three month periods ended March 31, 2005, June 30, 2005
and December 31, 2005, should no longer be relied upon as a result of the
Company having erroneously recorded the Warrants, and the common stock issued
upon the conversion of all of the Notes in February, 2005, as "permanent
equity."
Accordingly, we will restate our financial statements as of and for the
fiscal year ended September 30, 2005, and as of and for the quarters ended March
31, 2005 and June 30, 2005, by disclosing the effect of these errors in an
amended Form 10-KSB for the fiscal year ended September 30, 2005. We will
restate our financial statements for the quarter ended December 31, 2005 by
disclosing the effect of these errors in an amended Form 10-QSB for the three
month period ended December 31, 2005.
These errors were discovered in connection with comments raised by the
Securities and Exchange Commission (the "SEC") in their review and comment on
the Registration Statement on Form SB-2, as amended, that we filed with the SEC
on February 15, 2005 (the "Registration Statement") pursuant to the Registration
Rights Agreement (the "Registration Rights Agreement") by and between the
Company and VC Arjent Ltd., on behalf of the holders of the Registrable
Securities (as defined in such agreement), in connection with our private
placement in January and February, 2005 described above. These comments related
to the Company's accounting for the Warrants and the common stock issued upon
conversion of the Notes (pursuant to their terms, the Notes automatically
converted into shares of our common stock upon the filing of the Registration
Statement) considering the rights provided by the Registration Rights Agreement
to the holders of these securities. Pursuant to the terms of the Registration
Rights Agreement, if the Registration Statement was not declared effective on or
before June 15, 2005, we are obligated to pay liquidated damages in the amount
of 3.5% of the face amount of the Notes per month until the Registration
Statement is declared effective. The Registration Statement has not been
declared effective by the SEC, and we have been obligated to pay the liquidated
damages set forth in the Registration Rights Agreement. The Registration Rights
Agreement provides that, at our option, these liquidated damages can be paid in
cash or restricted shares of our common stock. We paid liquidated damages in the
form of restricted shares of our common stock for the period from June 15, 2005
to December 15, 2005. Based on the closing market prices of $0.66, $0.58, $0.70,
$0.49, $0.32 and $0.20 for our common stock on July 15, 2005, August 15, 2005,
September 15, 2005, October 17, 2005, November 15, 2005 and December 15, 2005,
respectively, we issued a total of 3,807,375 shares of common stock in
liquidated damages from August, 2005 to January, 2006.
The Emerging Issues Task Force ("EITF") is currently reviewing the
accounting for securities with such liquidated damages provisions as stated in
EITF 05-04, "The Effect of a Liquidated Damages Clause on a Freestanding
Financial Instrument Subject to EITF 00-19." There are currently several views
as to how to account for this type of transaction and the EITF has not yet
reached a consensus. For instance, one could conclude that taken together, EITF
00-19, "Accounting for Derivative Financial Instruments Indexed To, and
Potentially Settled in the Company's Own Stock," and EITF 05-04 provide that
because the maximum potential liquidated damages for the failure to have the
Registration Statement declared effective by June 15, 2005 is greater than the
difference between the fair value of registered and unregistered shares of our
common stock, the value of our common stock issued upon conversion of the
Notes should be classified as temporary, rather than permanent equity.
Similarly, one could conclude that given the terms of the Warrants, under EITF
00-19 the fair value of the Warrants should be recorded as a liability, with an
offsetting reduction to shareholders' equity, rather than permanent equity. This
warrant liability would initially be measured at fair value using the
Black-Scholes option pricing model, and then re-valued at each reporting date,
with changes in the fair value reported as non-cash charges or credits to
earnings.
The SEC announced its preferred interpretation of the accounting for
common stock and warrants with registration rights under EITF 00-19 on December
1, 2005 in the Current Accounting and Disclosures Issues in the Division of
Corporation Finance. The SEC concluded that for agreements containing
registration rights where significant liquidated damages could be required to be
paid to the holder of the instrument in the event the issuer fails to obtain or
maintain the effectiveness of a registration statement for a preset time period,
the common stock subject to such liquidated damages does not meet the tests
required for shareholders' equity classification, and accordingly must be
treated as temporary equity, or reflected between liabilities and shareholders'
equity in the balance sheet until the requirements for treatment as permanent
equity are satisfied. In analyzing instruments under EITF 00-19, the SEC
concluded that the likelihood or probability of the Company's failure to have
the Registration Statement declared effective is not a factor.
Historically, we classified the Warrants and the common stock issued
upon conversion of the Notes as shareholders' equity, as we believed these
securities met the requirements necessary to record them as shareholders'
equity. After further review in accordance with the SEC's recent preferred
interpretation of EITF 00-19 as it relates to the Warrants and the common stock
issued upon conversion of the Notes, we have concluded that our financial
statements for the fiscal year ended September 30, 2005, and interim periods
ended March 31, 2005, June 30, 2005, and December 31, 2005, will be restated.
The restatement will include the reclassification of the common stock issued
upon conversion of the Notes from shareholders' equity to temporary equity, and
the reclassification of the liability for the fair value of the Warrants from
shareholders' equity and to warrant liability as of the date they were issued.
We are still completing our analysis of the effects of the change in the
accounting for the Warrants and have not quantified the change in the results of
operations for the period ended March 31, 2005 that will be included in the
earnings statements to be reflected in the Form 10-QSB for the interim period
ended March 31, 2006. Accordingly, we are not yet providing a reasonable
estimate of the change in previously reported results.
Our Board of Directors discussed this matter with the Company's independent
public accounting firm who agreed that the Company's annual and quarterly
financial statements could not be relied upon and needed to be restated as
described above.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Applied DNA Sciences, Inc.
(Registrant)
By: /s/ James Hayward
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James Hayward
Chief Executive Officer
Date: May 16, 2006