Annual report pursuant to Section 13 and 15(d)

Restatement of Financial Statements

v3.22.2
Restatement of Financial Statements
12 Months Ended
Dec. 31, 2021
Restatement of Financial Statements  
Restatement of Financial Statements

2. Restatement of Financial Statements

Based on management’s evaluation, management and the Audit Committee, in consultation with the Company’s financial and legal advisors, the Company have concluded that restatement of its previously issued financial statements as of and for the years ended December 31, 2021 and 2020 is necessary to correct certain misstatements in accounting. As a result, the Company is amending its Annual Report on Form 10-K/A, originally filed with the SEC on April 15, 2022, for each of the two years ended December 31, 2021 and 2020. Specifically, the restatement is necessary to correct misstatements related to the Company’s accounting for its acquisitions including related contingent consideration, valuation of goodwill and in-process R&D, subsequent assessment of goodwill and intangible assets for impairment, and the corresponding effects on net income (loss) and stockholders’ equity.  The restatement also impacts the unaudited quarterly periods for the three months ended March 31, 2021, and the three months and year to date periods ended June 30, 2021 and September 30, 2021.  Refer to Note 17.  See below for the adjustments related to each of the three prior acquisitions.

In connection with the Company’s acquisition of Panoptes Pharma Ges.m.b.H (“Panoptes”) in December 2020, shares of the Company’s common stock that were held back at closing and that will be issued on the 18-month anniversary of the acquisition, subject to deduction for any indemnification claims, post-closing adjustments and other specified matters (the “Holdback Shares”), were originally accounted for as contingent consideration and recorded as a liability of $1.353 million. Upon further evaluation, the Company determined that the Holdback Shares should not have been accounted for as contingent consideration and instead recorded as equity as the shares are issuable due to the passage of time. Additionally, upon acquisition, the Company classified an assumed loan payable within contingent consideration that should have been classified as a current liability of $0.212 million.  The Company is correcting these misstatements as of December 18, 2020, the acquisition date resulting in an increase in additional paid-in capital of $1.500 million, an increase in goodwill of $0.147 million, and a decrease in contingent consideration of $1.353 million. The Company will be required to pay the former shareholders of Panoptes cash earnout payments in the event developmental milestones are achieved. Due to the effects of a re-evaluation of the probability of success and discount rate for the in-process research and development (“IPR&D”) assets acquired, the Company is recording a reduction in the estimated fair value of the contingent consideration for the year ended December 31, 2021, in the amount of $0.474 million. The fair value of the contingent consideration is re-assessed at each respective balance sheet date with a corresponding adjustment to earnings until the contingency is resolved.

In connection with the Company’s acquisition of Jade Therapeutics, Inc. (“Jade”) in March 2016, the Company is required to pay the former shareholders of Jade a cash earnout payment in the event any product developed by Jade prior to its acquisition, or derivative of such product, subsequently receives FDA approval. However, since a determination, which was made effective in the fourth quarter of fiscal 2020, the Company’s KIO-201 product candidate is now being developed as a drug rather than a device, and the expected development time for KIO-201 has been extended. As a result of that extended timeline, the Company is recording a reduction in the estimated fair value of the contingent consideration for KIO-201 as of December 31, 2020. This reduction in estimated probability weighted fair value resulted in a change in the carrying value of the liability and correspondingly to the change in fair value of contingent consideration as of and for each of the years ended December 31, 2021 and 2020 in the amount of $0.100 million and $1.230 million respectively. The fair value of the contingent consideration is re-assessed at each respective balance sheet date with the corresponding adjustment to earnings until the contingency is resolved. In addition, the Company is re-establishing the fair value of IPR&D for KIO-201 in the amount of $3.912 million by reversing the impairment originally recorded.

In connection with the Company’s acquisition of Bayon Therapeutics, Inc. (“Bayon”) in October 2021, the Company determined that the estimated fair value of in-process R&D initially recorded was misstated due to an error in utilizing outdated probability of success rates and discount rates.  To correct the misstatement, the Company reevaluated the fair value assigned to the in-process R&D at the acquisition date and updated the probability of success as it relates to cash earnout payments in the event developmental milestones are achieved, updated the discount rate, and adjusted the expected future income. This resulted in an increase to the in-process R&D of $0.302 million and deferred tax liability of $0.076 million and a reduction to goodwill of $0.607 million, and contingent consideration of $0.381 million.

After reflecting the corrections above, the Company reperformed its impairment analysis of indefinite-lived intangible assets and goodwill.  Goodwill was determined to be fully impaired and since goodwill is evaluated at the reporting unit level, this resulted in the impairment of the goodwill recently acquired in the acquisition of Bayon of $0.407 million.

Within the restated consolidated financial statements, the Company has also corrected immaterial errors related to the classification of the change in fair value of contingent consideration and gain on disposal of a foreign entity from other income to operating income within the accompanying consolidated statement of operations and comprehensive loss for the years ended December 31, 2021 and 2020.

In summary, the Company’s intangible assets including in-process R&D, goodwill, and contingent consideration from the above acquisitions have all been corrected as of the respective date of the acquisitions and then subsequently to reflect any updated information and estimates that become available in each of the subsequent periods.  In addition, the Company’s annual assessment of goodwill and intangible asset impairment were also updated to reflect these corrections for the years ended December 31, 2021 and 2020.

The related footnotes have also been updated for the restatements. The following tables summarize the effect of the restatement on each financial statement line items as of the dates, and for the period, indicated:

Balance sheet as of December 31, 2020

    

As of December 31, 2020

As Previously

2020 Restatement

Balance Sheet

    

Reported

    

Adjustment

    

As Restated

Total Current Assets

$

1,726,221

$

1,726,221

Property and Equipment, Net

 

30,566

 

 

30,566

Restricted cash

 

45,000

 

 

45,000

Goodwill

 

3,484,607

$

146,605

 

3,631,212

Intangible Assets and In-process R&D, Net

 

9,730,164

 

 

9,730,164

Operating Leases Assets with Right-of-Use

 

83,928

 

 

83,928

Other Assets

 

57,073

 

 

57,073

Total assets

 

$

15,157,559

 

146,605

 

$

15,304,164

Liabilities and stockholders’ equity

 

  

 

  

 

  

Total current liabilities

 

$

1,772,327

 

212,281

 

$

1,984,608

Contingent Consideration

 

5,342,950

 

(2,795,876)

 

2,547,074

Deferred Tax Liability

 

728,926

 

 

728,926

Paycheck Protection Program Loan

 

278,190

 

 

278,190

Non-current Operating Lease Liabilities

 

35,625

 

 

35,625

Total Non-Current Liabilities

 

6,385,691

 

(2,795,876)

 

3,589,815

Total liabilities

 

8,158,018

(2,583,595)

 

5,574,423

Stockholders’ equity

 

  

 

  

 

  

Preferred Stock, $0.01 par value

 

41

 

 

41

Common Stock, $0.01 par value

 

55,564

 

 

55,564

Additional paid-in-capital

 

115,283,572

 

1,500,030

 

116,783,602

Accumulated deficit

 

(108,338,834)

 

1,230,170

 

(107,108,664)

Accumulated Other Comprehensive Income

 

(802)

 

 

(802)

Total stockholders’ equity

 

6,999,541

 

2,730,200

 

9,729,741

Total liabilities and stockholders’ equity

 

$

15,157,559

$

146,605

 

$

15,304,164

Statement of Operations and Comprehensive Income for the year ended December 31, 2020

    

For the year ended December 31, 2020

As Previously

2020 Restatement

Statement of Operations and Comprehensive Loss

    

Reported

    

Adjustment

    

As restated

Collaboration Revenue

 

$

12,059

 

$

12,059

Research and Development

 

3,566,045

 

3,566,045

General and Administrative

 

4,658,769

 

4,658,769

Change in Fair Value of Contingent Consideration

 

$

(1,230,170)

 

(1,230,170)

Gain on Disposal of Foreign Entity

 

(113,717)

 

(113,717)

Total Operating Expenses

 

8,224,814

 

(1,343,887)

 

6,880,927

Operating Loss before Other Income

 

(8,212,755)

 

1,343,887

 

(6,868,868)

Other Income, net:

 

  

 

  

 

  

Gain on Disposal of Foreign Entity

 

113,717

 

(113,717)

 

Interest Income

 

23,339

 

 

23,339

Interest Expense

 

(4,186)

 

 

(4,186)

Total other (expense) income

 

132,870

 

(113,717)

 

19,153

Loss before Income Tax Benefit (Expense)

 

(8,079,885)

 

1,230,170

 

(6,849,715)

Income Tax Benefit (Expense)

 

(12,055)

 

 

(12,055)

Net loss

 

$

(8,091,940)

 

$

1,230,170

 

$

(6,861,770)

Weighted Average Shares Outstanding - Basic and Diluted

 

4,576,058

15,433

 

4,591,491

Basic and Diluted net loss per share

$

(1.77)

$

(1.49)

Other comprehensive loss:

Net loss

(8,091,940)

$

1,230,170

(6,861,770)

Dissolution of Foreign Entity

(113,717)

(113,717)

Foreign Currency Translate Adjustments

(26,550)

(26,550)

Comprehensive loss

 

$

(8,232,207)

$

1,230,170

 

$

(7,002,037)

Stockholders’ Equity as of December 31, 2020

    

As of December 31, 2020

As Previously

2020 Restatement

Stockholders’ equity

    

Reported

    

Adjustment

    

As restated

Preferred Stock, $0.01 par value

 

$

41

 

 

$

41

Common Stock, $0.01 par value

 

55,564

 

 

55,564

Additional paid-in-capital

 

115,283,572

 

$

1,500,030

 

116,783,602

Accumulated deficit

 

(108,338,834)

 

1,230,170

 

(107,108,664)

Accumulated Other Comprehensive Income

 

(802)

 

 

(802)

Total stockholders’ equity

 

$

6,999,541

 

$

2,730,200

 

$

9,729,741

Statement of Cash flows for the year ended December 31, 2020

    

For the year ended December 31, 2020

As Previously

2020 Restatement

Statement of Cash Flows

    

Reported

    

Adjustment

    

As restated

Operating Activities

Net loss

 

$

(8,091,940)

 

$

1,230,170

 

$

(6,861,770)

Adjustments to Reconcile Net Loss to Net Cash Used in Operating Activities:

Depreciation and Amortization of Intangible Assets

 

33,399

 

 

33,399

Reduction of Right-of-Use Assets

 

166,822

 

 

166,822

Stock-Based Compensation

 

723,856

 

 

723,856

Change in Fair Value of Contingent Consideration

 

 

(1,230,170)

 

(1,230,170)

Expiration of a Prepaid Agreement

 

159,848

 

 

159,848

Deferred Taxes

 

12,055

 

 

12,055

Changes in Operating Assets and Liabilities, Net of Effects of Business Acquired:

 

  

 

 

  

Prepaid Expenses and Other Current Assets

 

(146,971)

 

 

(146,971)

Refundable Tax Credit Receivable

 

(18,957)

 

 

(18,957)

Other Assets

 

18,916

 

 

18,916

Accounts Payable

 

136,697

 

 

136,697

Lease Liabilities

 

(166,822)

 

 

(166,822)

Accrued Expenses

 

(144,072)

 

 

(144,072)

Net cash used in operating activities

 

(7,317,169)

 

 

(7,317,169)

Net cash used in investing activities

 

(244,438)

 

 

(244,438)

Net cash provided by financing activities

 

4,997,503

 

 

4,997,503

Effects of Exchange Rate Changes on Cash

 

(26,931)

 

 

(26,931)

Net Cash Increase or decrease

 

(2,591,035)

 

 

(2,591,035)

Cash, Including Restricted Cash, Beginning of Year

 

3,821,712

 

 

3,821,712

Cash, Including Restricted Cash, End of Year

 

$

1,230,677

 

 

$

1,230,677

Balance Sheet as of December 31, 2021

    

As of December 31, 2021

 

As Previously

2020 Restatement

2021 Restatement

 

Balance Sheet

    

Reported

    

Adjustment

    

Adjustment

    

As Restated

    

Total Current Assets

 

$

8,990,770

 

 

 

$

8,990,770

Property and Equipment, Net

 

73,999

 

 

 

73,999

Restricted cash

 

45,000

 

 

 

45,000

Goodwill

 

 

$

146,605

 

$

(146,605)

 

Intangible Assets and In-process R&D, Net

 

8,695,850

 

 

2,072,314

 

10,768,164

Operating Leases Assets with Right-of-Use

 

209,411

 

 

 

209,411

Other Assets

 

42,964

 

 

 

42,964

Total assets

 

$

18,057,994

 

$

146,605

 

$

1,925,709

 

$

20,130,308

Liabilities and stockholders’ equity

 

  

 

  

 

  

 

  

Total current liabilities

 

1,609,608

 

 

 

1,609,608

Contingent Consideration

 

6,518,770

 

(2,583,595)

 

(886,220)

 

3,048,955

Deferred Tax Liability

 

614,436

 

 

187,695

 

802,131

Non-current Operating Lease Liabilities

 

90,566

 

 

 

90,566

Total Non-Current Liabilities

 

7,223,772

 

(2,795,876)

 

(698,525)

 

3,941,652

Total liabilities

 

8,833,380

 

(2,583,595)

 

(698,525)

 

5,551,260

Stockholders’ equity

 

  

 

  

 

  

 

  

Preferred Stock, $0.01 par value

 

 

 

 

Common Stock, $0.01 par value

 

126,640

 

 

 

126,640

Additional paid-in-capital

 

133,918,158

 

1,500,030

 

 

135,418,188

Accumulated deficit

 

(124,733,753)

 

1,230,170

 

2,624,234

 

(120,879,349)

Accumulated Other Comprehensive Income

 

(86,431)

 

 

 

(86,431)

Total stockholders’ equity

 

9,224,614

 

2,730,200

 

2,624,234

 

14,579,048

Total liabilities and stockholders’ equity

 

$

18,057,994

 

$

146,605

 

$

1,925,709

 

$

20,130,308

Statement of Operations and Comprehensive Loss for the year ended December 31, 2021

    

For the year ended December 31, 2021

As Previously

2021 Restatement

Statement of Operations and Comprehensive Loss

    

Reported

    

Adjustment

    

As restated

Research and Development

 

$

5,350,264

 

 

$

5,350,264

General and Administrative

 

5,323,649

 

 

5,323,649

Goodwill Impairment

 

4,498,234

 

$

(460,423)

 

4,037,811

Intangible Asset Impairment

 

1,770,314

 

(1,770,314)

 

Change in Fair Value of Contingent Consideration

(475,956)

(475,956)

Total Operating Expenses

 

16,942,461

 

(2,706,693)

 

14,235,768

Operating Loss before Other Income

 

(16,942,461)

 

2,706,693

 

(14,235,768)

Other income, net:

 

  

 

  

 

  

Gain on Forgiveness of Loan

 

278,190

 

 

278,190

Change in Fair Value of Contingent Consideration

 

(29,719)

 

29,719

 

Interest Expense

(6,851)

(6,851)

Interest Income

 

1,141

 

 

1,141

Total other income

 

242,761

 

29,719

 

272,480

Loss before Income Tax Benefit (Expense)

 

(16,699,700)

 

2,736,412

 

(13,963,288)

Income Tax Benefit (Expense)

 

304,781

 

(112,178)

 

192,603

Net loss

 

$

(16,394,919)

 

$

2,624,234

 

$

(13,770,685)

Weighted Average Shares Outstanding - Basic and Diluted

 

9,240,500

 

403,461

 

9,643,961

Basic and Diluted net loss per share

 

$

(1.77)

 

 

$

(1.43)

Other comprehensive loss:

Net loss

(16,394,919)

$

2,624,234

(13,770,685)

Foreign Currency Translate Adjustments

(85,629)

(85,629)

Comprehensive loss

$

(16,480,548)

$

2,624,234

$

(13,856,314)

Stockholders’ Equity as of December 31, 2021

    

As of December 31, 2021

2020

2021

As Previously

Restatement

Restatement

Stockholders’ equity

    

Reported

    

Adjustment

    

Adjustment

    

As restated

Preferred Stock, $0.01 par value

 

 

 

 

Common Stock, $0.01 par value

 

$

126,640

 

 

 

$

126,640

Additional paid-in-capital

 

133,918,158

 

$

1,500,030

 

 

135,418,188

Accumulated deficit

 

(124,733,753)

 

1,230,170

 

$

2,624,234

 

(120,879,349)

Accumulated Other Comprehensive Income

 

(86,431)

 

 

 

(86,431)

Total stockholders’ equity

 

$

9,224,614

 

$

2,730,200

 

$

2,624,234

 

$

14,579,048

Statement of Cash Flows for the year ended December 31, 2021

    

For the year ended December 31, 2021

As Previously

2021 Restatement

Statement of Cash Flows

    

Reported

    

Adjustment

    

As restated

Operating Activities

Net loss

 

$

(16,394,919)

 

$

2,624,234

 

$

(13,770,685)

Adjustments to Reconcile Net Loss to Net Cash Used in Operating Activities:

Depreciation and Amortization of Intangible Assets

 

45,296

 

 

45,296

Reduction of Right-of-Use Assets

 

181,977

 

 

181,977

Stock-Based Compensation

 

842,475

 

 

842,475

Contingent Consideration

 

(212,281)

 

(293,394)

 

(505,675)

Deferred Taxes

 

(304,782)

 

112,179

 

(192,603)

Paycheck Protection Program Loan Forgiveness

 

(278,190)

 

 

(278,190)

Goodwill Impairment Loss

 

4,498,234

 

(460,423)

 

4,037,811

Intangible Asset Impairment Loss

 

1,770,314

 

(1,770,314)

 

Changes in Operating Assets and Liabilities, Net of Effects of Business Acquired:

 

  

 

 

  

Prepaid Expenses and Other Current Assets

 

(156,951)

 

 

(156,951)

Refundable Tax Credit Receivable

 

(441,196)

 

 

(441,196)

Other Assets

 

14,111

 

 

14,111

Accounts Payable

 

(310,665)

 

 

(310,665)

Lease Liabilities

 

(181,977)

 

 

(181,977)

Accrued Expenses

 

40,882

 

 

40,882

Net cash used in operating activities

 

(10,887,672)

 

212,282

 

(10,675,390)

Net cash used in investing activities

 

(157,020)

 

 

(157,020)

Financing Activities

Proceeds stock offerings

18,750,016

18,750,016

Stock Issuance costs

(1,004,809)

(1,004,809)

Exercise Warrants

50,001

50,001

Repayment of Loan Payable

(212,282)

(212,282)

Net cash provided by financing activities

 

17,795,208

 

(212,282)

 

17,582,926

Effects of Exchange Rate Changes on Cash

 

(81,503)

 

 

(81,503)

Net Cash Increase or decrease

 

6,669,013

 

 

6,669,013

Cash, Including Restricted Cash, Beginning of Year

 

1,230,677

 

 

1,230,677

Cash, Including Restricted Cash, End of Year

 

$

7,899,690

 

 

$

7,899,690