Cogentix Medical, Inc.
COGENTIX MEDICAL INC /DE/ (Form: 10-Q, Received: 11/13/2017 17:05:37)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-Q

(Mark One)
Quarterly Report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 2017
Transition Report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934
For the Transition Period from ______ to _______.

Commission File No. 000-20970

COGENTIX MEDICAL, INC.
(Exact name of registrant as specified in its Charter)
 
Delaware
 
13-3430173
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
 
5420 Feltl Road
Minnetonka, Minnesota, 55343
(Address of principal executive offices)

(952) 426-6140
(Registrant’s telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  YES ☒  NO ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  YES ☒   NO ☐
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
 
Large Accelerated Filer  
Accelerated Filer ☐
Non-Accelerated Filer ☐
Smaller Reporting Company ☒
Emerging Growth Company ☐
   
(Do not check if a smaller reporting company)
   
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extend transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act)
YES ☐  NO ☒
 
As of November 6, 2017 the registrant had 60,905,666 shares of common stock outstanding.
 


Table of Contents
INDEX

COGENTIX MEDICAL, INC. AND SUBSIDIARIES

PART I. FINANCIAL INFORMATION
 
   
Item 1.
Financial Statements
 
     
 
5
     
 
7
     
 
8
     
 
9
     
 
10
     
 
11
     
Item 2.
20
     
Item 3.
25
     
Item 4.
26
   
PART II. OTHER INFORMATION
 
   
Item 1.
26
     
Item 1A.
26
     
Item 2.
26
     
Item 3.
26
     
Item 4.
26
     
Item 5.
26
     
Item 6.
27
     
 
28
     
 
Certification by the PEO pursuant to Section 302
29
     
 
Certification by the PFO pursuant to Section 302
30
     
 
Certification by the PEO pursuant to Section 906
31
     
 
Certification by the PFO pursuant to Section 906
32
 
As used in this report, the terms “Cogentix”, “Cogentix Medical”, the “Company”, “we”, “us”, “our” and similar references refer to Cogentix Medical, Inc. and our consolidated subsidiaries, and the term “common stock” refers to our common stock, par value $0.01 per share.

This report contains the following trademarks, trade names and service marks of ours: PrimeSight TM , Vision-Sciences®, EndoSheath®, Slide-On®, EndoWipe®, The Vision System®,Urgent®PC, Macroplastique®, VOX®, PTQ® and Uroplasty®.  This report also contains trademarks, trade names and   service marks that are owned by other persons or entities.

FORWARD-LOOKING STATEMENTS

This quarterly report on Form 10-Q contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended.  Statements contained in this report that refer to our estimated or anticipated future results, including estimated synergies, or other non-historical facts are forward-looking statements that reflect our current perspective of existing trends and information as of the date of this report.  Forward-looking statements generally will be accompanied by words such as “anticipate,” “believe,” “plan,” “could,” “should,” “estimate,” “expect,” “forecast,” “outlook,” “guidance,” “intend,” “may,” “might,” “will,” “possible,” “potential,” “predict,” “project,” or other similar words, phrases or expressions.  These forward-looking statements are based on current expectations about future events affecting us and are subject to uncertainties and factors relating to our operations and business environment, all of which are difficult to predict and many of which are beyond our control and could cause our actual results to differ materially from those matters expressed or implied by our forward-looking statements.  Forward-looking statements (including oral representations) are only predictions or statements of current plans and can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties.

When relying on forward-looking statements to make decisions with respect to the Company, our investors and others should carefully consider the foregoing factors and other uncertainties and potential events and read our filings with the SEC, including our annual report on Form 10K for the year ended December 31, 2016, for a discussion on these and other risks and uncertainties.  These filings are available at www.sec.gov.   We do not undertake any obligation to update or revise any forward-looking statement, except as may be required by law.  We qualify all forward-looking statements by these cautionary statements.

·
we may obtain additional financing, which may not be available on favorable terms at the time it is needed and which could reduce our operational and strategic flexibility;
·
we may attempt to acquire new products or technologies, and if we are unable to successfully complete these acquisitions or to integrate acquired businesses, products, technologies or employees, we may fail to realize expected benefit or harm our existing business;
·
the use and acceptance of our products depends heavily upon the availability of third-party reimbursement for the procedures in which its products are used;
·
we cannot predict how quickly or how broadly the market will accept our products;
·
that we are subject to changing federal and state regulations that could increase the cost of doing business or impose requirements with which we cannot comply;
·
changes in regulatory policy, particularly at the FDA, might adversely affect our operations;
·
if we are not able to attract, retain and motivate our sales force and expand our distribution channels, our sales and revenues will suffer;
·
the size and resources of our competitors may render it difficult for us to successfully compete in the marketplace;
·
we are primarily dependent on sales from a limited number of product lines and our business would suffer if sales of any of these product lines decline;
·
we could be subject to fines and penalties, or required to temporarily or permanently cease offering products, if we fail to comply with the extensive regulations applicable to the sale and manufacture of medical products;
·
our distributors may not obtain regulatory approvals in a timely basis, or at all;
·
we may not have the resources to successfully market our products, which would adversely affect our business and results of operations;
·
if we cannot attract and retain our key personnel and management team, we may not be able to manage and operate successfully, and we may not be able to meet our strategic objectives;
·
if third parties claim that we infringe upon their intellectual property rights, we may incur liabilities and costs and may have to redesign or discontinue selling the affected product;
 
·
if we are unable to adequately protect our intellectual property rights, we may not be able to compete effectively;
·
product liability claims could adversely affect our business and results of operations;
·
security breaches and other disruptions could compromise our information and expose us to liability, which would cause our business and reputation to suffer;
·
the loss or interruption of materials from any of our key suppliers could delay the manufacture of our products, which would limit our ability to generate sales and revenues;
·
if we are not able to maintain sufficient quality controls, regulatory approvals of our products by the European Union, Canada, the FDA or other relevant authorities could be delayed or denied and our sales and revenues will suffer;
·
if we are not able to acquire or license other products, our business and future growth prospects could suffer;
·
our business strategy relies on assumptions about the market for our products, which, if incorrect, would adversely affect our business prospects and profitability;
·
we derive a significant portion of our sales and revenues from outside of the U.S. and we are subject to the risks of international operations;
·
failure to comply with the U.S. Foreign Corrupt Practices Act could subject us to, among other things, penalties and legal expenses that could harm our reputation and have a material adverse effect on our business, financial condition and operating results;
·
our stock is thinly traded and you may find it difficult to sell your investment in our stock at quoted prices;
·
our stock price may fluctuate and be volatile;
·
future sales of our common stock in the public market could lower our share price;
·
we are exempt from certain corporate governance requirements due to our status as a "controlled company" within the meaning of the Nasdaq rules, including certain rules related to board independence;
·
our corporate documents contain provisions that could discourage, delay or prevent a change in control of the company; and
·
we do not intend to declare dividends on our stock in the foreseeable future.
 
PART I. FINANCIAL INFORMATION
 

 
ITEM 1.
FINANCIAL STATEMENTS

COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)

   
September 30, 2017
   
December 31, 2016
 
             
Assets
           
Current assets:
           
Cash and cash equivalents
 
$
15,375,756
   
$
9,369,624
 
Short-term investments
   
10,656,566
     
13,573,057
 
Accounts receivable, net
   
7,178,811
     
6,770,838
 
Inventories
   
7,375,504
     
7,235,043
 
Other
   
987,982
     
571,527
 
Total current assets
   
41,574,619
     
37,520,089
 
                 
Property, plant, and equipment, net
   
2,466,344
     
2,115,316
 
Goodwill
   
19,150,849
     
18,749,888
 
Other intangible assets, net
   
7,969,736
     
9,482,578
 
Long-term investments
   
719,417
     
5,344,004
 
Equity method investment
   
2,000,000
     
-
 
Deferred tax assets and other
   
160,716
     
163,427
 
Total assets
 
$
74,041,681
   
$
73,375,302
 

See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
 
   
September 30, 2017
   
December 31, 2016
 
             
Liabilities and Shareholders’ Equity
           
             
Current liabilities:
           
Accounts payable
 
$
2,051,979
   
$
2,689,035
 
Income taxes payable
   
249,690
     
113,191
 
Note payable
   
198,174
     
-
 
Accrued liabilities:
               
Compensation
   
3,889,783
     
4,670,640
 
Deferred revenue
   
759,786
     
597,524
 
Accrued legal fees
   
56,241
     
34,667
 
Accrued foreign and domestic sales tax/VAT
   
476,355
     
327,992
 
Accrued employee expenses
   
92,134
     
88,557
 
Accrued vendor payables
   
826,614
     
190,000
 
Other
   
358,434
     
197,056
 
Total current liabilities
   
8,959,190
     
8,908,662
 
                 
Accrued pension liability
   
244,940
     
308,918
 
Deferred rent
   
600,092
     
639,019
 
Note payable – long term
   
289,387
     
-
 
Other
   
329,549
     
278,780
 
                 
Total liabilities
   
10,423,158
     
10,135,379
 
                 
Shareholders’ equity:
               
Preferred stock, $0.01 par value; 5,000,000 shares authorized; none issued or outstanding at September 30, 2017 and December 31, 2016, respectively
   
-
     
-
 
Common stock $0.01 par value; 100,000,000 shares authorized , 60,907,834 and 60,436,548 shares issued and outstanding at September 30, 2017 and December 31, 2016, respectively
   
609,080
     
604,367
 
Additional paid-in capital
   
145,660,671
     
144,430,382
 
Accumulated deficit
   
(82,068,028
)
   
(81,005,654
)
Accumulated other comprehensive loss
   
(583,200
)
   
(789,172
)
 
               
Total shareholders’ equity
   
63,618,523
     
63,239,923
 
                 
Total liabilities and shareholders’ equity
 
$
74,041,681
   
$
73,375,302
 

See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
 
   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2017
   
2016
   
2017
   
2016
 
                         
                         
Net sales
 
$
13,765,065
   
$
13,407,611
   
$
40,779,414
   
$
38,618,826
 
Cost of goods sold
   
4,370,408
     
4,369,574
     
13,522,655
     
12,257,933
 
                                 
Gross profit
   
9,394,657
     
9,038,037
     
27,256,759
     
26,360,893
 
                                 
Operating expenses
                               
General and administrative
   
2,055,763
     
1,558,090
     
6,250,246
     
5,087,871
 
Research and development
   
1,234,468
     
1,218,669
     
3,556,977
     
3,255,603
 
Selling and marketing
   
5,697,552
     
5,203,477
     
16,699,590
     
16,272,678
 
One-time costs
   
-
     
(53,887
)
   
-
     
2,257,654
 
Amortization of intangible assets
   
601,604
     
590,858
     
1,780,803
     
1,772,574
 
     
9,589,387
     
8,517,207
     
28,287,616
     
28,646,380
 
                                 
Operating income (loss)
   
(194,730
)
   
520,830
     
(1,030,857
)
   
(2,285,487
)
                                 
Other income (expense)
                               
Interest income (expense)
   
56,745
     
(380,679
)
   
164,678
     
(1,146,941
)
Other income
   
1,001
     
-
     
7,365
     
-
 
Foreign currency exchange gain (loss)
   
3,020
     
(14,905
)
   
49,213
     
(40,311
)
     
60,766
     
(395,584
)
   
221,256
     
(1,187,252
)
                                 
Income (loss) before income taxes
   
(133,964
)
   
125,246
     
(809,601
)
   
(3,472,739
)
                                 
Income tax expense
   
26,125
     
18,932
     
141,276
     
52,122
 
                                 
Net income (loss)
 
$
(160,089
)
 
$
106,314
   
$
(950,877
)
 
$
(3,524,861
)
                                 
Basic net income (loss) per common share
 
$
0.00
   
$
0.00
   
$
(0.02
)
 
$
(0.14
)
Diluted net income (loss) per common share
 
$
0.00
   
$
0.00
   
$
(0.02
)
 
$
(0.14
)
                                 
Weighted average common shares outstanding:
                               
Basic
   
60,126,357
     
25,633,172
     
59,888,906
     
25,509,584
 
Diluted
   
60,126,357
     
25,748,844
     
59,888,906
     
25,509,584
 

See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(Unaudited)
 
   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2017
   
2016
   
2017
   
2016
 
                         
Net income (loss)
 
$
(160,089
)
 
$
106,314
   
$
(950,877
)
 
$
(3,524,861
)
Other comprehensive income (loss), net of tax:
                               
Foreign currency translation adjustments
   
68,184
     
(4,458
)
   
198,956
     
(29,080
)
Unrealized gain on available-for-sale investments
   
9,163
     
-
     
17,023
     
-
 
Pension adjustments
   
(4,398
)
   
(41
)
   
(10,007
)
   
3,876
 
Total other comprehensive income (loss), net of tax
   
72,949
     
(4,499
)
   
205,972
     
(25,204
)
Comprehensive income (loss)
 
$
(87,140
)
 
$
101,815
   
$
(744,905
)
 
$
(3,550,065
)

See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS’ EQUITY

Nine Months Ended September 30, 2017
(Unaudited)
 
   
Common Stock
   
Additional
Paid-in
   
Accumulated
   
Accumulated
Other
Comprehensive
   
Total
Shareholders'
 
   
Shares
   
Amount
   
Capital
   
Deficit
   
Income (Loss)
   
Equity
 
                                     
Balance at December 31, 2016
   
60,436,548
   
$
604,367
   
$
144,430,382
   
$
(81,005,654
)
 
$
(789,172
)
 
$
63,239,923
 
                                                 
Share-based compensation and vesting of restricted stock
   
474,336
     
4,743
     
1,126,739
     
-
     
-
     
1,131,482
 
                                                 
Proceeds from exercise of stock options, net of shares exchanged
   
(3,050
)
   
(30
)
   
(7,947
)
   
-
     
-
     
(7,977
)
                                                 
Adoption of ASU 2016-09
   
-
     
-
     
111,497
     
(111,497
)
   
-
     
-
 
                                                 
Comprehensive loss
   
-
     
-
     
-
     
(950,877
)
   
205,972
     
(744,905
)
                                                 
Balance at September 30, 2017
   
60,907,834
   
$
609,080
   
$
145,660,671
   
$
(82,068,028
)
 
$
(583,200
)
 
$
63,618,523
 
 
See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
  (Unaudited)

   
Nine Months Ended
September 30,
 
   
2017
   
2016
 
Cash flows from operating activities:
           
Net loss
 
$
(950,877
)
 
$
(3,524,861
)
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
               
Depreciation and amortization
   
2,336,095
     
2,364,673
 
Share-based compensation expense
   
1,131,482
     
440,000
 
Amortization of premium on available-for-sale securities
   
95,727
     
-
 
Deferred rent
   
(23,840
)
   
6,836
 
Amortization of discount on related party debt
   
-
     
836,288
 
Proceeds from restricted stock exchanged for taxes
   
(17,690
)
   
(57,343
)
Other
   
8,003
     
(59,048
)
Changes in operating assets and liabilities:
               
Accounts receivable, net
   
270,965
     
1,399,070
 
Inventories
   
57,344
     
(1,637,619
)
Other current assets
   
(154,906
)
   
265,395
 
Accounts payable
   
(898,771
)
   
394,573
 
Interest payable
   
-
     
261,505
 
Accrued compensation
   
(1,035,278
)
   
1,796,568
 
Accrued liabilities, other
   
657,950
     
213,387
 
Accrued pension liability
   
(99,389
)
   
(45,463
)
Deferred revenue
   
250,174
     
220,789
 
Net cash provided by operating activities
   
1,626,989
     
2,874,750
 
                 
Cash flows from investing activities:
               
Proceeds from maturity of available-for-sale securities
   
9,900,000
     
-
 
Purchases of available-for-sale securities
   
(2,438,322
)
   
-
 
Purchase of equity method investment
   
(2,000,000
)
   
-
 
Purchases of property, plant and equipment
   
(680,416
)
   
(232,331
)
Acquisition of business, net of cash acquired
   
(196,560
)
   
-
 
Net cash provided by (used in) investing activities
   
4,584,702
     
(232,331
)
                 
Cash flows from financing activities:
               
Borrowings from line of credit
   
3,033,385
     
2,646,500
 
Repayments of line of credit
   
(3,033,385
)
   
(2,646,500
)
Payments of note payable
   
(7,354
)
   
-
 
Payments of secured borrowings
   
(180,755
)
   
-
 
Financing costs
   
-
     
(375,839
)
Proceeds from exercise of stock options
   
9,713
     
-
 
Net cash used in financing activities
   
(178,396
)
   
(375,839
)
                 
Effect of exchange rates on cash and cash equivalents
   
(27,163
)
   
(4,949
)
                 
Net increase in cash and cash equivalents
   
6,006,132
     
2,261,631
 
                 
Cash and cash equivalents at beginning of period
   
9,369,624
     
1,976,594
 
                 
Cash and cash equivalents at end of period
 
$
15,375,756
   
$
4,238,225
 
                 
Supplemental disclosure of cash flow information:
               
Cash paid during the period for income tax
 
$
152,941
   
$
35,424
 
Cash paid during the period for interest
 
$
13,741
   
$
47,754
 
Non-cash financing activities:
               
Note payable issued in conjunction with acquisition of business
 
$
617.740
     
-
 
Deferred financing costs in AP/Accruals
   
-
   
$
975,061
 
 
See accompanying notes to the Condensed Consolidated Financial Statements.
 
COGENTIX MEDICAL, INC. AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

Note 1. Summary of Significant Accounting Policies

Basis of Presentation

Cogentix Medical, Inc. (the “Company”) is a global medical device company headquartered in Minnetonka, Minnesota, with additional operations in New York, Massachusetts, The Netherlands and the United Kingdom.  We design, develop, manufacture and market a robust line of high performance fiberoptic and video endoscopy products under the PrimeSight TM brand that are used across multiple surgical specialties in diagnostic and treatment procedures, with our focus being on the urology market.  We also offer the Urgent ® PC Neuromodulation System, a device that delivers percutaneous tibial nerve stimulation (“PTNS”), for the office-based treatment of overactive bladder (“OAB”).  OAB is a chronic condition that affects approximately 40 million adults in the U.S.  The symptoms include urinary urgency, frequency and urge incontinence.  We also offer Macroplastique ® Implants, an injectable urethral bulking agent for the treatment of adult female stress urinary incontinence that is primarily due to intrinsic sphincter deficiency.  Outside the U.S., we market additional bulking agents: PTQ ® for the treatment if fecal incontinence and VOX ® for vocal cord augmentation.
 
We have prepared our Condensed Consolidated Financial Statements included in this quarterly report on Form 10-Q, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”).  Certain information and footnote disclosures normally included in the consolidated financial statements prepared in accordance with accounting principles generally accepted in the United States of America, or GAAP, have been condensed or omitted, pursuant to such rules and regulations, although we believe that our disclosures are adequate to make the information not misleading.  The consolidated results of operations for any interim period are not necessarily indicative of results for a full fiscal year.  These Condensed Consolidated Financial Statements, presented herein, should be read in conjunction with the audited consolidated financial statements and related notes included in our annual report on Form 10-K for the year ended December 31, 2016.

The Condensed Consolidated Financial Statements presented herein as of September 30, 2017 and for the three and nine month periods ended September 30, 2017 and 2016, reflect, in the opinion of management, all material adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of the consolidated financial condition, results of operations and cash flows for the interim periods.

We have identified certain accounting policies that we consider particularly important for the portrayal of our results of operations and financial condition and which may require the application of a higher level of judgment by our management, and as a result are subject to an inherent level of uncertainty.  These are characterized as “critical accounting policies” and address revenue recognition, accounts receivable, valuation of inventory, foreign currency translation/transactions, the determination of recoverability of long-lived and intangible assets, share-based compensation, defined benefit pension plans and income taxes, each of which is described in our annual report on Form 10-K for the year ended December 31, 2016.  Based upon our review, we have determined that these policies remain our most critical accounting policies for the nine months ended September 30, 2017. We have adopted two additional policies during 2017.  The first policy is for the adoption of Accounting Standards Update (“ASU”) 2016-09, “ Improvements to Employee Share-Based Payment Accounting .”  Under the new ASU we no longer account for forfeitures of restricted stock awards and stock options throughout the vesting period and instead account for them in the period in which they occur.  We also recognize certain tax benefits or tax shortfalls upon a restricted-stock award vesting or stock option exercise relative to the deferred tax asset position established in the provision for income taxes line of the consolidated statements of operations instead of within the consolidated statement of shareholders’ equity.  The second policy is for the adoption of Accounting Standards Codification (“ASC”) 323, “ Investments – Equity Method and Joint Ventures.” This ASC establishes accounting guidelines for an equity investment in which the Company has the ability to exercise significant influence, but does not have a controlling interest.  In this situation, the equity method should be applied to an investment.  Significant influence is generally considered to exist when the Company has an ownership interest in the voting stock of an entity between 20% and 50%, and other factors, such as representation on the Board of Directors, are considered in determining whether the equity method of accounting is appropriate.  We adopted this policy for our equity investment in Vensica Medical, as described in Note 12 to the financial statements.

Note 2 . New Accounting Pronouncements

Recently Adopted Accounting Pronouncements

In March 2016, the Financial Accounting Standards Board (“FASB”) issued ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting.” This ASU simplifies several aspects of the accounting for employee share-based payment transactions, including the accounting for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification in the statement of cash flows. This new standard is effective for annual periods beginning after December 15, 2016, and interim periods within that reporting period.  We adopted this standard as of January 1, 2017. The adoption did not have a material impact on our consolidated financial statements.  Under the new ASU we no longer account for forfeitures of restricted stock awards and stock options throughout the vesting period and instead account for them in the period in which they occur.  We also recognize certain tax benefits or tax shortfalls upon a restricted-stock award vesting or stock option exercise relative to the deferred tax asset position established in the provision for income taxes line of the consolidated statements of operations instead of within the consolidated statement of shareholders’ equity.
 
In August 2016, the FASB issued ASU No. 2016-15, “Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments.”  This ASU is in response to diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows and provides guidance on eight specific cash flow classification issues.  It will be effective for reporting periods beginning after December 15, 2017, and interim periods within that reporting period.  Early adoption is permitted, including adoption in an interim period.  The Company adopted this standard as of January 1, 2017.  The adoption did not have a material impact on our consolidated financial statements.

Recently Issued Accounting Pronouncements Not Yet Adopted
 
In May 2017, the Financial Accounting Standards Board (“FASB”) issued ASU 2017-09, “Compensation – Stock Compensation: Scope of Modification Accounting.”  This ASU is intended to provide guidance about which changes to the terms or conditions on a share-based payment award require an entity to apply modification accounting.   This new standard is effective for annual periods beginning after December 15, 2017, and interim periods within that reporting period.  The Company does not expect these amendments to have a material effect on its consolidated financial statements.
 
In March 2017, the FASB issued ASU 2017-08, “Receivables - Nonrefundable Fees and Other Costs: Premium Amortization on Purchased Callable Debt Securities” related to the amortization period for certain purchased callable debt securities held at a premium. The amendments shorten the amortization period for the premium to the earliest call date. The amendment is effective for interim and annual periods beginning after December 15, 2018. The Company does not expect these amendments to have a material effect on its consolidated financial statements.
 
In January 2017, the FASB, issued ASU No. 2017-04, “Intangibles - Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment” which simplifies the accounting for goodwill impairment by eliminating Step 2 of the current goodwill impairment test.  Goodwill impairment will now be the amount by which the reporting unit’s carrying value exceeds its fair value, limited to the carrying value of the goodwill. The standard is effective for us beginning January 1, 2020. Early adoption is permitted for any impairment tests performed after January 1, 2017. The new guidance is not expected to have a material impact on our results of operations and financial position.

In February 2016, the FASB issued ASU 2016-2, “Leases”, under which lessees will recognize most leases on-balance sheet. This will generally increase reported assets and liabilities. For public entities, this ASU is effective for annual and interim periods in fiscal years beginning after December 15, 2018. ASU 2016-2 mandates a modified retrospective transition method for all entities. While the Company is still evaluating the timing and impact of the adoption of this guidance on its consolidated financial statements, it anticipates that the adoption could result in an increase in the assets and liabilities recorded on its consolidated balance sheet.

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers (Topic 606)”, as amended by ASU 2015-14, “Deferral of Effective Date”, which requires an entity to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. ASU 2014-09 sets forth a new revenue recognition model that requires identifying the contract, identifying the performance obligations, determining the transaction price, allocating the transaction price to performance obligations and recognizing the revenue upon satisfaction of performance obligations. For public entities, this ASU is effective for annual reporting periods beginning after December 15, 2017 including interim reporting periods within that reporting period. The provisions can be adopted either retrospectively to each prior reporting period presented or as a cumulative-effect adjustment as of the date of adoption. We plan to adopt this ASU effective January 1, 2018 using the cumulative-effect adjustment method.  The Company has completed the assessment of this ASU on each of our revenue streams and, based on our review of contracts, we believe the impact on our consolidated financial statements will be immaterial.  For each of our products, revenue will still be recognized when title passes to the customer, generally upon shipment.  Revenue for service repairs of equipment will continue to be recognized after service has been completed, and service contract revenue will be recognized ratably over the term of the contract.  We are still evaluating the impact of the new revenue recognition standard on our disclosures due to the new qualitative and quantitative requirements under the standard.
 
Note 3.  Business Combination

The Company, through its wholly owned subsidiary, Uroplasty LTD, acquired 100% of the issued share capital in Genesis Medical Holdings LTD (“Genesis”) and its subsidiaries effective July 25, 2017 (the “Genesis Acquisition”).

The Genesis Acquisition has been accounted for in accordance with Accounting Standards Codification (ASC) Topic 805, "Business Combinations".   The terms of the Genesis Acquisition include an upfront payment equal to the estimated fair market value of the tangible net assets, approximately $280,000.  The terms also include a purchase price for the ongoing business of approximately $556,000, payable at the rate of 5% of Genesis revenue on a monthly basis.  In addition, if Genesis achieves revenue of approximately $4.7 million for the twelve months ended March 31, 2019, the Company will pay an additional amount of approximately $134,000. We have determined the likelihood of paying the $134,000 as probable.  The note payable and the contingent consideration have been discounted to a net present value equal to approximately $618,000.  All conversions between British Pounds and U.S. Dollars were computed using the July 25, 2017 exchange rate of $1.34 per £1.
 
Under the acquisition method of accounting, the total purchase price was allocated to the net tangible and intangible assets of Genesis based on their fair values at the effective date of the Acquisition. The preliminary allocation is approximately as follows:

Cash and cash equivalents
 
$
83,891
 
Accounts receivable
   
860,734
 
Inventory
   
186,193
 
Tangible fixed assets
   
172,241
 
Customer relationships
   
268,000
 
Goodwill
   
398,190
 
Total assets acquired
 
$
1,969,249
 
         
Accounts payable
 
$
1,032,589
 
Deferred tax liability
   
50,920
 
Total liabilities assumed
 
$
1,083,509
 
         
Total Purchase Price
 
$
885,740
 

Cash paid to Genesis, net of cash acquired of $84,000, totaled approximately $197,000.  The remaining purchase price was financed via a note payableand contingent consideration as described above.

Legal costs directly related to the acquisition of approximately $40,000 and approximately $50,000 have been charged directly to operations and are included in general and administrative expense in our Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2017.

The goodwill of $398,190 resulting from the acquisition is the excess if the purchase price over the fair value of the net assets acquired.  The goodwill primarily reflects the value of enhancing our market opportunity and growth potential in the U.K.   None of the goodwill recognized is deductible for income tax purposes as it was a stock acquisition and as such, no deferred taxes have been recorded to goodwill.

The allocation of the purchase price to the net assets acquired and liabilities assumed resulted in the recognition of the following identifiable intangible asset:

   
Amount
   
Weighted Average Life-Years
 
Customer relationships
 
$
268,000
     
3
 
 
Note 4.   Goodwill and Other Intangible Assets

Goodwill

There was no change in the goodwill balance as of September 30, 2017 as compared to December 31, 2016 other than the addition of approximately $400,000 related to the Genesis Acquisition as described in Note 3.

Other Intangible Assets

Other intangible assets consisted of approximately the following at September 30, 2017 and December 31, 2016:

   
September 30, 2017
   
December 31, 2016
 
   
Gross
Carrying
Amount
   
Accumulated
Amortization
   
Remaining
Useful Life
   
Gross
Carrying
Amount
   
Accumulated
Amortization
   
Remaining
Useful Life
 
Developed technology
 
$
6,200,000
   
$
2,214,000
     
4.50
   
$
6,200,000
   
$
1,550,000
     
5.25
 
Patents
   
5,653,000
     
5,631,000
     
7.50
     
5,653,000
     
5,616,000
     
8.25
 
Trademarks and trade names
   
190,000
     
82,000
     
7.50
     
190,000
     
74,000
     
8.25
 
Customer relationships
   
7,538,000
     
3,684,000
     
2.52
     
7,270,000
     
2,590,000
     
3.25
 
   
$
19,581,000
   
$
11,611,000
           
$
19,313,000
   
$
9,830,000
         
Accumulated amortization
   
11,611,000
                     
9,830,000
                 
                                                 
Net book value of amortizable intangible assets
 
$
7,970,000
             
3.47
   
$
9,483,000
             
4.23
 

For the nine months ended September 30, 2017 and 2016, amortization of intangible assets charged to operations was approximately $1,781,000 and $1,773,000, respectively.

Estimated amortization expense for all intangible assets as of September 30, 2017 is approximately as follows:

October 1, 2017 through December 31, 2017
 
$
609,000
 
2018
   
2,437,000
 
2019
   
2,430,000
 
2020
   
1,307,000
 
2021
   
894,000
 
Thereafter
   
293,000
 
Total
 
$
7,970,000
 

Note 5. Fair Value Measurements

Estimates of fair value for financial assets and liabilities are based on the framework established in the accounting guidance for fair value measurements.  The framework defines fair value, provides guidance for measuring fair value and requires certain disclosures.  The framework prioritizes a fair value hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.  The following three broad levels of inputs may be used to measure fair value under the fair value hierarchy:

·
Level 1: Observable inputs such as quoted prices (unadjusted) in active markets for identical assets or liabilities.

·
Level 2: Inputs other than quoted prices that are observable for the asset or liability, either directly or indirectly.  These include quoted prices for similar assets or liabilities in active markets and quoted prices for identical or similar assets or liabilities in markets that are not active.

·
Level 3: Significant unobservable inputs that cannot be corroborated by observable market data and reflect the use of significant management judgment.  These values are generally determined using pricing models for which the assumptions utilize management's estimates of market participant assumptions.

If the inputs used to measure the financial assets and liabilities fall within more than one of the different levels described above, the categorization is based on the lowest level input that is significant to the fair value measurement of the instrument.
 
The following table shows our cash and available-for-sale securities’ adjusted cost, gross unrealized gains, gross unrealized losses and fair value by significant investment category recorded as cash and cash equivalents or short- or long-term investments as of September 30, 2017:

   
September 30, 2017
 
   
Adjusted Cost
   
Unrealized
Gains
   
Unrealized
Losses
   
Fair
Value
   
Cash and Cash
Equivalents
   
Short-Term
 Investments
   
Long-Term
Investments
 
                                           
Cash
 
$
4,005,930
   
$
-
   
$
-
   
$
4,005,930
   
$
4,005,930
   
$
-
   
$
-
 
                                                         
Level 1:
                                                       
Money market funds
   
11,369,826
     
-
     
-
     
11,369,826
     
11,369,826
     
-
     
-
 
Subtotal
   
11,369,826
     
-
     
-
     
11,369,826
     
11,369,826
     
-
     
-
 
                                                         
Level 2:
                                                       
Certificates of deposit
   
2,160,000
     
-
     
(826
)
   
2,159,175
     
-
     
1,439,758
     
719,417
 
Commercial paper
   
1,194,342
     
114
     
-
     
1,194,456
     
-
     
1,194,456
     
-
 
Corporate notes/bonds
   
6,025,967
     
-
     
(1,715
)
   
6,024,252
     
-
     
6,024,252
     
-
 
U.S. government agencies
   
2,000,000
     
-
     
(1,900
)
   
1,998,100
     
-
     
1,998,100
     
-
 
Subtotal
   
11,380,309
     
-
     
(4,441
)
   
11,375,983
     
-
     
10,656,566
     
719,417
 
                                                         
Total
 
$
26,756,065
   
$
114
   
$
(4,441
)
 
$
26,751,739
   
$
15,375,756
   
$
10,656,566
   
$
719,417
 

We consider all cash on-hand and highly liquid investments with original maturities of three months or less when purchased to be cash equivalents.  We classify marketable securities having original maturities of more than three months when purchased and remaining maturities of one year or less as short-term investments and marketable securities with remaining maturities of more than one year as long-term investments.  We further classify marketable securities as available-for-sale.  We have not designated any of our marketable securities as trading securities or as held to maturity. We may sell any of our marketable securities prior to their stated maturities for strategic reason including, but not limited to, anticipation of credit deterioration and duration management. The long-term securities have a contractual term that ranges from November 2018 to December 2018.

We consider the declines in market value of our marketable securities investment portfolio to be temporary in nature.  We typically invest in highly-rated securities, and our investment policy generally limits the amount of credit exposure to any one issuer.

Cash and cash equivalents of approximately $15.4 million and $9.4 million at September 30, 2017 and December 31, 2016, respectively, include highly liquid money market funds and debt securities with original maturities of three months or less totaling approximately $11.4 million and $5.6 million at September 30, 2017 and December 31, 2016 respectively.  Money market funds present negligible risk of changes in value due to changes in interest rates, and their cost approximates their fair market value.  We maintain cash in bank accounts, which, at times, may exceed federally insured limits.  We have not experienced any losses in such accounts.  Cash and cash equivalents held in foreign bank accounts totaled approximately $864,000 and approximately $507,000 at September 30, 2017 and December 31, 2016, respectively.

In connection with the Genesis Acquisition discussed in Note 3, we are required to make a payment of approximately $134,000 if certain revenue targets are achieved by Genesis for the twelve months ended March 31, 2019.   The fair value of the contingent liability recognized upon acquisition, and classified as other non-current liability, was approximately $123,000, and was estimated by discounting to present value the probability-weighted contingent payments expected to be made. Assumptions used in this calculation included the discount rate and various probability factors. This liability is considered to be a Level 3 financial liability that is re-measured each reporting period.

We have estimated the fair value of the contingent consideration based on the probability of achieving the specified revenue thresholds at 100%. A significant increase (decrease) in our estimates of achieving the relevant targets could materially increase (decrease) the fair value of the contingent consideration liability.

Note 6. Line of Credit

We have a loan agreement with Venture Bank, a Minnesota banking corporation, providing us with a $7.0 million secured revolving credit facility (the “Facility”), subject to eligible accounts receivable and inventory, and secured by substantially all our assets.  The Facility was amended in March 2017.  Under the amended Facility, the Facility will expire on September 18, 2018.
 
Under the Facility, we may borrow the lesser of: (a) the sum of (i) eighty percent (80%) of the value of eligible accounts receivable; and (ii) forty percent (40%) of the value of eligible inventory capped at $2.5 million; or (b) $7 million.  As of September 30, 2017, based on eligible receivables and inventory, our total available borrowing base was approximately $6,250,000.  We did not have any borrowings under the facility as of September 30, 2017.

Loans under the Facility bear interest at a rate per annum equal to the Wall Street Journal Prime Rate plus 1.25%, provided that in no case will the interest charged be less than 5.25%.  In the event that there is an event of default under the Facility, the interest rate will be increased by 6.0% for the entire period that an event of default exists.  In addition, the Borrowers will pay a non-usage fee of 0.15% based on the average unused and available portion of the Facility on a monthly basis.

Genesis has a Factoring Agreement with Lloyds Bank in the United Kingdom.  Pursuant to the terms of the Factoring Agreement, Genesis may offer for sale, and Lloyd’s Bank may purchase, certain accounts receivable of Genesis. The Factoring Agreement was last amended on March 6, 2017.  The maximum amount that can be factored at any given period is approximately $470,000.  As of September 30, 2017, the factoring balance was approximately $64,000.

Note 7. Inventories

Inventories are stated at the lower of cost (first-in, first-out method) or market (net realizable value).  We value at lower of cost or market the slow moving and obsolete inventories based upon current and expected future product sales and the expected impact of product transitions or modifications.  Inventories consist of approximately the following:

   
September 30, 2017
   
December 31, 2016
 
             
Raw materials
 
$
4,437,000
   
$
4,483,000
 
Work-in-process
   
180,000
     
462,000
 
Finished goods
   
2,758,000
     
2,290,000
 
                 
Total inventory
 
$
7,375,000
   
$
7,235,000
 

Note 8. Net Income (Loss) per Common Share

We calculate basic net income (loss) per common share amounts by dividing net income (loss) by the weighted-average common shares outstanding.  For calculating diluted net income (loss) per common share amounts, we add additional shares to the weighted-average common shares outstanding for the assumed exercise of stock options and vesting of restricted shares, if dilutive.  The following table sets forth the computation of our basic and diluted net income (loss) per share:

   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2017
   
2016
   
2017
   
2016
 
Net income (loss)
 
$
(160,089
)
 
$
106,314
   
$
(950,877
)
 
$
(3,524,861
)
                                 
Weighted average shares outstanding - basic
   
60,126,357
     
25,633,172
     
59,888,906
     
25,509,584
 
Dilutive impact of common stock equivalents outstanding
   
-
     
115,672
     
-
     
-
 
Weighted Averages shares used to compute diluted net income (loss) per share
   
60,126,357
     
25,748,844
     
59,888,906
     
25,509,584
 
                                 
Net income (loss) per share – basic
 
$
0.00
   
$
0.00
   
$
(0.02
)
 
$
(0.14
)
Net income (loss) per share – diluted
 
$
0.00
   
$
0.00
   
$
(0.02
)
 
$
(0.14
)
 
The following common stock equivalents are excluded from our EPS calculations because they are antidilutive:

   
Three Months Ended September 30,
   
Nine Months Ended September 30,
 
   
2017
   
2016
   
2017
   
2016
 
Restricted stock
   
774,647
     
305,432
     
774,647
     
899,333
 
Common stock options
   
2,618,768
     
1,549,905
     
2,618,769
     
1,699,905
 
Common stock warrants
   
-
     
376,123
     
-
     
376,123
 
     
3,393,415
     
2,231,460
     
3,393,415
     
2,975,361
 
 
Note 9. Shareholders’ Equity

Share-based compensation.  On September 30, 2017, the Company had one active plan, the Cogentix Medical 2015 Omnibus Incentive Plan, for share-based compensation grants (“the 2015 Plan”). Under the 2015 Plan, if we have a change in control (as defined in the 2015 Plan) and the Company is not the surviving entity, all outstanding grants, including those subject to vesting or other performance targets, fully vest immediately if they are not assumed or replaced with equivalent grants.  If the Company is the surviving entity, there is no accelerated vesting of equity grants solely upon a change in control.  In 2016, the Company experienced a change in control for which it was the surviving entity.  Outstanding grants will vest if a participant’s employment or other service with the Company is terminated, without cause or by the participant for good reason, within two years of the November 3, 2016 change in control.  Under the 2015 Plan, we reserved 2,500,000 shares of our common stock for share-based grants and 64,223 shares remain available for grant on September 30, 2017.

We grant options at the discretion of our directors.  We grant option awards with an exercise price equal to the closing market price of our stock at the date of the grant.  We have options outstanding to purchase 2,618,768 shares of common stock granted under the 2015 Plan or predecessor companies’ plans.  Options generally expire over a period ranging from seven to ten years from date of grant and vest at varying rates ranging up to three years.  The options granted under the 2015 Plan generally provide for the exercise of options during a limited period following termination of employment, death or disability.

We determined the fair value of our option awards using the Black-Scholes option pricing model.  We used the following weighted-average assumptions to value the options granted during the nine months ended September 30:

   
2017
 
       
Expected life in years
   
3.00
 
Risk-free interest rate
   
1.45
%
Expected volatility
   
66.89
%
Expected dividend yield
   
0
%
Weighted-average grant date fair value
 
$
0.74
 

The expected life for options granted represents the period of time we expect options to be outstanding based on historical data of option holder exercise and termination behavior for similar grants.  The risk-free interest rate for periods within the contractual life of the option is based on the U.S. Treasury rate over the expected life at the time of grant.  Expected volatility is based upon historical volatility of our stock.

The following table summarizes the activity related to our stock options during the nine months ended September 30, 2017:

   
Number of
shares
   
Weighted
average
exercise price
   
Weighted
average
remaining
 life in years
   
Aggregate
intrinsic
value
 
                         
Outstanding at December 31, 2016
   
1,680,990
   
$
3.54
     
6.55
   
$
752,290
 
Options granted
   
1,042,809
     
1.65
                 
Options exercised
   
(7,211
)
   
1.35
                 
Options surrendered
   
(97,820
)
   
4.53
                 
                                 
Outstanding at September 30, 2017
   
2,618,768
   
$
2.76
     
6.27
   
$
2,151,629
 
                                 
Exercisable at September 30, 2017
   
1,095,392
   
$
4.56
     
3.44
   
$
492,887
 

The total fair value of stock options that vested during the nine months ended September 30, 2017 and 2016 was approximately $223,000 and $268,000, r espectively.
 
We grant restricted shares at the discretion of our directors with vesting terms ranging from six months to three years.  The following table summarizes the activity related to our restricted shares during the nine months ended September 30, 2017:

   
Number of
restricted
shares
   
Weighted
average
grant date
fair value
   
Weighted
average
remaining
life in years
   
Aggregate
intrinsic
value
 
Balance at December 31, 2016
   
992,548
   
$
1.30
     
1.35
   
$
1,995,021
 
Shares granted
   
542,541
     
1.67
                 
Shares vested
   
(692,237
)
   
1.39
             
1,772,127
 
Shares surrendered
   
(68,205
)
   
1.56
                 
                                 
Balance at September 30, 2017
   
774,647
   
$
1.46
     
1.72
   
$
1,983,096
 

The aggregate intrinsic value shown above for the restricted shares represents the total pre-tax value based on the closing price of our common stock at the end of each period.

We recognize share-based compensation expense in our Condensed Consolidated Statements of Operations based on the fair value at the time of grant of the share-based payment over the requisite service period.  We incurred approximately $1,131,000 and $440,000 in share -based compensation expense for the nine months ended September 30, 2017 and 2016, respectively.

On September 30, 2017, we had approximately $883,000 of unrecognized share-based compensation expense related to stock options that we expect to recognize over a weighted-average period of approximately 2.37 years.

On September 30, 2017, we had approximately $684,000 of unrecognized share-based compensation expense related to restricted shares that we expect to recognize over a weighted-average period of approximately 1.72 years.

Note 10. Savings and Retirement Plans

We sponsor various retirement plans for eligible employees in the United States, the United Kingdom, and The Netherlands. Our retirement savings plan in the United States conforms to Section 401(k) of the Internal Revenue Code and participation is available to substantially all employees. We may also make discretionary contributions ratably to all eligible employees. We made discretionary contributions to the U.S. plan of $432,000 and $308,000 for the nine months ended September 30, 2017, and 2016, respectively.

Our international subsidiaries have defined benefit retirement plans for eligible employees.  These plans provide benefits based on the employee’s years of service and compensation during the years immediately preceding retirement, termination, disability, or death, as defined in the plans.

The cost for our defined benefit retirement plans in The Netherlands and the United Kingdom includes the following components for the three- and nine-month periods ended September 30:

   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2017
   
2016
   
2017
   
2016
 
                         
Gross service cost
 
$
26,000
   
$
28,000
   
$
75,000
   
$
83,000
 
Interest cost
   
25,000
     
29,000
     
71,000
     
87,000
 
Expected return on assets
   
(23,000
)
   
(24,000
)
   
(65,000
)
   
(72,000
)
Amortization
   
(1,000
)
   
(2,000
)
   
(1,000
)
   
(5,000
)
Net periodic retirement cost
 
$
27,000
   
$
31,000
   
$
80,000
   
$
93,000
 
 
Note 11. Business Segment Information

ASC 280, “Segment Reporting,” establishes disclosure standards for segments of a company based on management’s approach to defining operating segments.  Reportable segments are defined primarily by the nature of products and services, the nature of the production processes, and the type of customers for our products and services.
 
For financial reporting purposes, we report one operating segment as our Chief Operating Decision Maker utilizes financial statement information provided to him on a consolidated basis.
 
 Information regarding geographic area net sales to customers for the three and nine months ended September 30, is approximately as follows:
 
   
United
States
   
All Other Foreign
Countries (1)
   
Consolidated
 
                   
Three months ended September 30, 2017
 
$
10,415,000
   
$
3,350,000
   
$
13,765,000
 
                         
Three months ended September 30, 2016
 
$
10,701,000
   
$
2,707,000
   
$
13,408,000
 
                         
Nine months ended September 30, 2017
 
$
29,990,000
   
$
10,789,000
   
$
40,779,000
 
                         
Nine months ended September 30, 2016
 
$
28,877,000
   
$
9,742,000
   
$
38,619,000
 

(1)
No other country accounts for 10% of more of the consolidated net sales.

Information regarding geographic area long-lived assets is approximately as follows:

   
United States
   
United Kingdom/
The Netherlands
   
Consolidated
 
                   
September 30, 2017
 
$
1,805,000
   
$
661,000
   
$
2,466,000
 
                         
December 31, 2016
 
$
1,676,000
   
$
439,000
   
$
2,115,000
 

Accounting policies of the operations in the various geographic areas are the same as those described in Note 1.  Net sales attributed to each geographic area are net of intercompany sales.  No single customer represents 10% or more of our consolidated net sales.  Long-lived assets consist of property, plant and equipment.

Note 12. Equity Investment

ASC 323, “ Investments – Equity Method and Joint Ventures,” establishes accounting guidelines for an equity investment in which the Company has the ability to exercise significant influence, but does not have a controlling interest.  In this situation, the equity method should be applied to an investment.  Significant influence is generally considered to exist when the Company has an ownership interest in the voting stock of an entity between 20% and 50%, and other factors, such as representation on the Board of Directors, are considered in determining whether the equity method of accounting is appropriate.

On September 28, 2017, we made an equity investment in Vensica Medical (“Vensica”), a privately-held Israeli-based company developing VensiCare, an ultrasound based, needle-free drug delivery system.  Our $2 million investment gave us a 20% ownership in the company and allows us to have one seat on the Vensica Medical Board of Directors along with two call options to acquire the entire company for an additional $8 million.  The investment is accounted for using the equity method of accounting because the Company has significant influence, but not control, of the entity.  Due to the timing of this investment, we did not earn any income (loss) in Vensica Medical for the three and nine-month period ended September 30, 2017.

Note 13. Subsequent Event

None.
 
ITEM 2.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Forward-looking Statements

We recommend that you read this quarterly report on Form 10-Q in conjunction with our annual report on Form 10-K for the year ended December 31, 2016.

You should read the following discussion of our financial condition and results of operation together with the unaudited, condensed, consolidated financial statements and the notes thereto included elsewhere in this report and other financial information included in this report.  The following discussions may contain predictions, estimates and other forward-looking statements that involve a number of risks and uncertainties, as we discussed in our special note regarding “Forward-Looking Statements” beginning on page 3 of this report and under “Part I - Item 1A. Risk Factors” in our annual report on Form 10-K for the year ended December 31, 2016.  These risks could cause our actual results to differ materially from any further performance suggested below.

We do not undertake, nor assume any obligation, to update any forward-looking statement that we may make from time to time.

Overview

Cogentix Medical is a global medical device company headquartered in Minnetonka, Minnesota, with additional operations in New York, Massachusetts, The Netherlands and the United Kingdom.  We design, develop, manufacture and market a robust line of high performance fiberoptic and video endoscopy products under the PrimeSight TM brand that are used across multiple surgical specialties in diagnostic and treatment procedures, with our focus being on the urology market.  We also offer the Urgent® PC Neuromodulation System, a device that delivers percutaneous tibial nerve stimulation (“PTNS”), for the office-based treatment of overactive bladder (“OAB”).  OAB is a chronic condition that affects approximately 40 million adults in the U.S.  The symptoms include urinary urgency, frequency and urge incontinence.  We also offer Macroplastique® Implants, an injectable urethral bulking agent for the treatment of adult female stress urinary incontinence that is primarily due to intrinsic sphincter deficiency.  Outside the U.S., we market additional bulking agents: PTQ ® for the treatment if fecal incontinence and VOX ® for vocal cord augmentation.

Critical Accounting Policies

We prepare our consolidated financial statements in accordance with U.S. generally accepted accounting principles, or GAAP, which require us to make estimates and assumptions in certain circumstances that affect amounts reported.  In preparing these consolidated financial statements, we have made our best estimates and judgments of certain amounts, giving due consideration to materiality.

We have identified in our annual report on Form 10-K for the year ended December 31, 2016, our “critical accounting policies,” which are certain accounting policies that we consider important to the portrayal of our results of operations and financial condition and which may require the application of a higher level of judgment by our management, and as a result are subject to an inherent level of uncertainty.  Management made no significant changes to our critical accounting policies during the nine months ended September 30, 2017 other than for the adoption of ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting.”  Under the new ASU we no longer account for forfeitures of restricted stock awards and stock options throughout the vesting period, and instead, we account for them in the period in which they occur.  We also recognize certain tax benefits or tax shortfalls upon a restricted-stock award vesting or stock option exercise relative to the deferred tax asset position established in the provision for income taxes line of the consolidated statements of operations instead of within the consolidated statement of shareholders’ equity.

Results of Operations

Three months ended September 30, 2017 compared to three months ended September 30, 2016

Net Sales:   Consolidated net sales of $13,765,000 in the current period represented a $357,000 increase, or 2.7%, over net sales of $13,408,000 in the prior period.  The increase is primarily due to a $422,000 net increase in revenue from the Urology product lines, which is comprised of the PrimeSight, Urgent PC and other urology products, and is offset by a $65,000 net decrease in revenue from the non-core Airway Management and Industrial product lines.

Consolidated net sales for PrimeSight urology products of $4,293,000 in the current period represented a $114,000 decrease, or 2.6%, over net sales of $4,407,000 in the prior period.  Our PrimeSight endoscopes are capital purchases for our customers, and such capital sales can vary from quarter to quarter.  In the third quarter of 2016, the Company had its largest sale to date of capital equipment to one customer and there was no comparable sale in the third quarter of 2017.  Year to date through September 30, 2017, PrimeSight urology revenue has increased by 26% over the same period of 2016.
 
Consolidated net sales of our Urgent PC System of $5,360,000 in the current period represented a $150,000 increase, or 2.9%, when compared to net sales of $5,210,000 in the prior period. The increase is due to increased utilization within existing accounts.

Consolidated net sales of our Macroplastique product of $1,715,000 in the current period represented a $44,000 increase, or 2.6%, over net sales of $1,671,000 in the prior period.  Macroplastique serves a small market, and the focus of our sales force has been on growing sales of our PrimeSight urology and Urgent PC products.

Consolidated net sales of other urology products of $550,000 in the current period represented a $342,000 increase, or 164.4%, over net sales of $208,000 in the prior period.  The increase is due primarily to non-PrimeSight revenue from the Genesis Acquisition described in Note 3 to the financial statements.

Consolidated net sales of our non-urology products (Airway Management and Industrial Boroscopes) of $1,847,000 in the current period represented a $65,000 decrease, or 3.4%, over net sales of $1,912,000 in the prior period.  The decrease is primarily due to our increased focus on Urology products.  Additionally, we are exploring strategic alternatives for our non-Urology Airway Management and Industrial product lines.

Consolidated net sales to customers in the U.S. of $10,415,000 in the current period represented a decrease of $425,000, or 3.9%, over net sales of $10,840,000 in the prior period. Consolidated net sales to customers outside the U.S. of $3,350,000 in the current period represented an increase of $782,000, or 30.5%, over net sales of $2,568,000 in the prior period.

Gross Profit :  Gross profit was $9,395,000, or 68.3% of net sales in the current period, compared to $9,038,000, or 67.4% of net sales in the prior period.  The increase in gross profit percentage is attributed primarily to product mix.  Revenue from our higher margin Urgent PC and Macroplastique products were a higher proportion of total sales in the current quarter than the prior quarter.

Operating Expenses: Operating expenses in the current period totaled approximately $9,589,000, compared to approximately $8,517,000 in the prior period, an increase of approximately $1,072,000.  The increase was primarily attributable to share based compensation expense, business development costs, operating costs from the Genesis Acquisition described in Note 3 to the financial statements and the expansion of the U.S. sales force.  Operating expenses included:

General and Administrative Expenses (G&A):   G&A expenses of $2,056,000 in the current period increased $498,000 from $1,558,000 in the prior period.  The increase is attributed primarily to a $192,000 increase of share based compensation expense and approximately $208,000 of business development costs as well as inclusion of approximately $100,000 for the operating costs of Genesis.

Research and Development Expenses (R&D):   R&D expenses of $1,234,000 in the current period decreased $16,000 from $1,219,000 in the prior period.

Selling and Marketing Expenses (S&M):   S&M expenses of $5,698,000 in the current period increased $494,000, from $5,203,000 in the prior period .   The increase is attributed primarily to the expansion of the U.S sales force as well as the addition of five sales personnel from the Genesis Acquisition.

One-time Costs: In the first half of 2016, the Company incurred one-time costs related to the proxy contest between the Company and Mr. Lewis Pell (a current director) and related litigation.  In the third quarter of 2016, the Company received a $54,000 refund of professional fees.  There were no similar costs or refunds in the current period.

Amortization of Intangible Assets : Amortization of intangible assets was $602,000 in the current period compared to $591,000 in the prior period.

Other Income (Expense):   Other income (expense) includes interest income, interest expense, foreign currency exchange and other non-operating costs when incurred.  Net other income was $61,000 in the current period compared to net other expense of $396,000 in the prior period.  Other income in the current quarter is primarily interest income from our investments.  Interest expense in the prior year is primarily due to interest on related party debt that was converted into equity in the fourth quarter of 2016.

Income Tax Expense :  We recorded income tax expense of approximately $26,000 in the current period and $19,000 in the prior period.  Income tax expense is attributed to our European subsidiaries and to the payment of minimum taxes in the U.S.
 
Net Income (Loss) :  Net loss was approximately $160,000 ($0.00 per share) in the current period compared to net income of approximately $106,000 ($0.00 per share) in the prior period.

Nine months ended September 30, 2017 compared to nine months ended September 30, 2016

Net Sales:   Consolidated net sales of $40,779,000 in the current period represented a $2,160,000 increase, or 5.6%, over net sales of $38,619,000 in the prior period.  The increase is primarily due to a $2,850,000 net increase in revenue from the Urology product lines, which is comprised of the PrimeSight, Urgent PC and other urology products, and is offset by a $572,000 net decrease in revenue from the Airway Management and Industrial product lines.

Consolidated net sales for PrimeSight urology products of $13,735,000 in the current period represented a $2,850,000 increase, or 26.2%, over net sales of $10,885,000 in the prior period.  The increase is primarily due to our sales force becoming more proficient in selling this technology as well the fact that our PrimeSight technology platform meets the needs of our medical customers for always ready, always sterile flexible endoscopy solutions. Our urology PrimeSight products have been clinically proven to reduce the risk of cross contamination associated with the reuse or reprocessing of difficult to clean conventional endoscopes and they also reduce the typical 45-minute reprocessing time to less than 10 minutes, allowing for greater patient throughput, increased physician productivity and ultimately economic benefit for our customers.

Consolidated net sales of our Urgent PC System of $15,602,000 in the current period represented a $118,000 decrease, or 0.8%, when compared to net sales of $15,720,000 in the prior period.  U.S. unit growth was offset by a 4% decline in average selling price.  U.S. unit growth was due primarily to sales execution and increased penetration in existing accounts.  Our sales team has effectively demonstrated the clinical efficacy and value proposition of Urgent PC to our physician customers resulting in the increased sales. The sales team continues to place a strong emphasis on servicing existing accounts and increasing utilization within existing accounts.  The decrease in average selling price is primarily due to the continued sales efforts of a large competitor who entered the PTNS space in the first quarter of 2016.  Average selling prices have been substantially consistent over the past four quarters.

Consolidated net sales of our Macroplastique product of $5,237,000 in the current period represented a $273,000 decrease, or 5.0%, over net sales of $5,510,000 in the prior period.  Macroplastique serves a small market, and the focus of our sales force has been on growing sales of our PrimeSight urology and our Urgent PC products.

  Consolidated net sales of other urology products of $1,071,000 in the current period represented a $273,000 increase, or 34.2%, over net sales of $789,000 in the prior period.  The increase is due primarily to non-PrimeSight revenue from the Genesis Acquisition.

Consolidated net sales of our non-urology products of $5,134,000 in the current period represented a $572,000 decrease, or 10.0%, over net sales of $5,706,000 in the prior period.  The decrease is primarily due to our increased focus on Urology products.  Additionally, we are exploring strategic alternatives for our non-Urology Airway Management and Industrial product lines.

Consolidated net sales to customers in the U.S. of $29,990,000 in the current period represented an increase of $611,000, or 2.1%, over net sales of $29,379,000 in the prior period. Consolidated net sales to customers outside the U.S. of $10,789,000 in the current period represented an increase of $1,549,000, or 16.8%, over net sales of $9,240,000 in the prior period.

Gross Profit :  Gross profit was $27,257,000, or 66.8% of net sales in the current period, compared to $26,361,000, or 68.3% of net sales in the prior period.  The change in gross profit percentage is attributed primarily to product mix, as revenue from our PrimeSight products were a higher proportion of total sales in the currentperiod as compared to the same period of the prior year, and our PrimeSight products have a lower profit percentage than our Urgent PC and Macroplastique products.

Operating Expenses: Operating expenses in the current period totaled approximately $28,288,000 compared to approximately $28,646,000 in the prior period, a decrease of $359,000.  Operating expenses included:

General and Administrative Expenses (G&A):   G&A expenses of $6,250,000 in the current period increased $1,162,000 from $5,088,000 in the prior period.  The increase is attributed primarily to an increase of $655,000 in share based compensation expense and approximately $398,000 of business development costs.

Research and Development Expenses (R&D):   R&D expenses of $3,557,000 in the current period increased $301,000 from $3,256,000 in the prior period.  The increase is attributed to ongoing enhancements to our PrimeSight product line.
 
Selling and Marketing Expenses (S&M):   S&M expenses of $16,700,000 in the current period increased $427,000, from $16,273,000 in the prior period .  The increase is attributed primarily to the expansion of the U.S sales force and is partially offset by a $372,000 for an IRS tax refund related to medical device taxes paid in 2013 -2015.

One-time Costs: One-time costs in the prior period related to the proxy contest settlement between the Company and Mr. Lewis Pell and related litigation in connection with the 2016 Annual Meeting.  These fees included $758,000 of professional fees (primarily legal) and $1,500,000 of severance costs for the Company’s former CEO.  There were no similar costs in the current period.

Amortization of Intangible Assets : Amortization of intangible assets was $1,781,000 in the current period compared to $1,773,000 in the prior period.

Other Income (Expense):   Other income (expense) includes interest income, interest expense, foreign currency exchange and other non-operating costs when incurred.  Net other income was $221,000 in the current period compared to net other expense of $1,187,000 in the prior period.  Other income in the current period is primarily interest income from our investments.  Interest expense in the prior year is primarily due to interest on related party debt that was converted into equity in the fourth quarter of 2016.

Income Tax Expense :  We recorded income tax expense of approximately $141,000 in the current period and $52,000 in the prior period.  Income tax expense is attributed to our European subsidiaries and to the payment of minimum taxes in the U.S.

Net Income (Loss) :  Net loss was approximately $951,000 ($0.02 per share) in the current period compared to a net loss of approximately $3,525,000 ($0.14 per share) in the prior period.

Non-GAAP Financial Measures :  The following tables reconcile our operating income (loss) calculated in accordance with GAAP to non-GAAP financial measures that exclude non-cash charges for share-based compensation expense, depreciation and amortization.  The non-GAAP financial measures used by management and disclosed by us are neither a substitute for, nor superior to, financial measures and consolidated financial results calculated in accordance with GAAP, and you should carefully evaluate our reconciliations to non-GAAP.  We may calculate our non-GAAP financial measures differently from similarly titled measures used by other companies.  Therefore, our non-GAAP financial measures may not be comparable to those used by other companies.  We have described the reconciliations of each of our non-GAAP financial measures described above to the most directly comparable GAAP financial measures.

We use this non-GAAP financial information, and in particular non-GAAP cash operating income (loss), for internal managerial purposes because we believe such measures are one important indicator of the strength and the operating performance of our business.  Analysts and investors frequently ask us for this information.  We believe that they use this information to evaluate the overall operating performance of companies in our industry, including as a means of comparing period-to-period results and as a means of evaluating our results with those of other companies.

Our non-GAAP cash operating income, excluding non-cash expenses, during the three months ended September 30, 2017 was approximately $1,025,000 and our non-GAAP cash operating income, excluding one-time costs, for the three months ended September 30, 2016 was approximately $1,444,000.

     
Expense Adjustments
       
Three-Months Ended
 
GAAP
   
Share-
based
Expense
   
Long-
term
Incentive
Plan
   
Depreciation
   
Amortization
   
Non-GAAP
 
September 30, 2017
                                   
Gross profit
 
$
9,394,657
   
$
5,257
   
$
-
   
$
54,271
   
$
-
   
$
9,454,185
 
% of net sales
   
68.3
%
                                   
68.7
%
Operating expenses
                                               
General and administrative
   
2,055,763
     
(365,780
)
   
-
     
(51,026
)
   
-
     
1,638,957
 
Research and development
   
1,234,468
     
(11,577
)
   
-
     
(3,571
)
   
-
     
1,219,320
 
Selling and marketing
   
5,697,552
     
(45,548
)
   
-
     
(81,405
)
   
-
     
5,570,599
 
Amortization
   
601,604
     
-
     
-
     
-
     
(601,604
)
   
-
 
Total operating expenses
 
$
9,589,387
   
$
(422,905
)
 
$
-
   
$
(136,002
)
 
$
(601,604
)
 
$
8,428,876
 
                                                 
Operating income (loss)
 
$
(194,730
)
 
$
428,162
   
$
-
   
$
190,273
   
$
601,604
   
$
1,025,309
 
                                                 
September 30, 2016
                                               
Gross profit
 
$
9,038,037
   
$
5,375
   
$
-
   
$
41,938
   
$
-
   
$
9,085,350
 
% of net sales
   
67.4
%
                                   
69.9
%
Operating expenses
                                               
General and administrative
   
1,558,090
     
(174,385
)
   
17,534
     
(55,408
)
   
-
     
1,345,831
 
Research and development
   
1,218,669
     
(7,526
)
   
-
     
(1,779
)
   
-
     
1,209,364
 
Selling and marketing
   
5,203,477
     
(27,714
)
   
-
     
(89,427
)
   
-
     
5,086,336
 
Amortization
   
590,858
     
-
     
-
     
-
     
(590,858
)
   
-
 
One-time costs
   
(53,887
)
   
-
     
-
     
-
     
-
     
(53,887
)
Total operating expenses
 
$
8,517,207
   
$
(209,625
)
 
$
17,534
   
$
(146,614
)
 
$
(590,858
)
 
$
7,587,644
 
                                                 
Operating income (loss)
 
$
520,830
   
$
215,000
   
$
(17,534
)
 
$
188,552
   
$
590,858
   
$
1,497,706
 
One-time costs
   
(53,887
)
                                   
(53,887
)
Cash operating income excluding one-time costs
                                         
$
1,443,819
 
 
Our non-GAAP cash operating income, excluding non-cash expenses, during the nine months ended September 30, 2017 was approximately $2,437,000 and our non-GAAP cash operating income, excluding one-time costs for the nine months ended September 30, 2016 was approximately $2,712,000.
 
     
Expense Adjustments
       
Nine-Months Ended
 
GAAP
   
Share-
based
Expense
   
Long-
term
Incentive
Plan
   
Depreciation
   
Amortization
   
Non-GAAP
 
September 30, 2017
                                   
Gross profit
 
$
27,256,759
   
$
17,072
   
$
-
   
$
140,406
   
$
-
   
$
27,414,237
 
% of net sales
   
66.8
%
                                   
67.2
%
Operating expenses
                                               
General and administrative
   
6,250,246
     
(971,688
)
   
-
     
(150,210
)
   
-
     
5,128,348
 
Research and development
   
3,556,977
     
(30,975
)
   
-
     
(8,905
)
   
-
     
3,517,097
 
Selling and marketing
   
16,699,590
     
(111,747
)
   
-
     
(255,770
)
   
-
     
16,332,073
 
Amortization
   
1,780,803
     
-
     
-
     
-
     
(1,780,803
)
   
-
 
Total operating expenses
 
$
28,287,616
   
$
(1,114,410
)
   
-
     
(414,885
)
 
$
(1,780,803
)
 
$
24,977,518
 
                                                 
Operating income (loss)
 
$
(1,030,857
)
 
$
1,131,482
   
$
-
   
$
555,291
   
$
1,780,803
   
$
2,436,719
 
                                                 
September 30, 2016
                                               
Gross profit
 
$
26,360,893
   
$
27,629
   
$
-
   
$
135,321
   
$
-
   
$
26,523,743
 
% of net sales
   
68.3
%
                                   
68.7
%
Operating expenses
                                               
General and administrative
   
5,087,871
     
(314,838
)
   
64,404
     
(155,208
)
   
-
     
4,682,229
 
Research and development
   
3,255,603
     
(16,191
)
   
-
     
(2,960
)
   
-
     
3,236,452
 
Selling and marketing
   
16,272,678
     
(81,342
)
   
-
     
(298,711
)
   
-
     
15,892,625
 
Amortization
   
1,772,574
     
-
     
-
     
-
     
(1,772,573
)
   
-
 
One-time costs
   
2,257,654
     
-
     
-
     
-
     
-
     
2,257,654
 
Total operating expenses
 
$
28,646,380
   
$
(412,371
)
 
$
64,404
   
$
(456,879
)
 
$
(1,772,573
)
 
$
26,068,961
 
                                                 
Operating income (loss)
 
$
(2,285,487
)
 
$
440,000
   
$
(64,404
)
 
$
592,100
   
$
1,772,573
   
$
454,782
 
One-time costs
   
2,257,654
                                   
 
2,257,654
 
Cash operating income excluding one-time costs
                                         
$
2,712,436
 
 
Liquidity and Capital Resources

Cash Flows .

At September 30, 2017, our cash, cash equivalents and investments totaled $26,752,000. Our net working capital as of September 30, 2017, totaled approximately $32,615,000.

For the nine months ended September 30, 2017, cash provided by operating activities was $1,608,000, compared to cash provided by operating activities of $2,875,000 during the nine months ended September 30, 2016.  For the nine months ended September 30, 2017, we incurred a net loss of $951,000.  Significant non-cash expenses incurred in this period include depreciation and amortization expense of $2,336,000 and share based compensation of $1,131,000.  Working capital changes that provided cash include higher accrued liabilities and lower accounts receivable, while cash was used as a result of lower accrued compensation and lower accounts payable.  For the nine months ended September 30, 2016, we incurred a net loss of $3,525,000.  Significant non-cash expenses incurred in this period include depreciation and amortization expense of $2,365,000 and share based compensation of $440,000.  Working capital changes that provided cash include higher accrued compensation, lower accounts receivables, and higher accounts payable, while cash was used as a result of inventories increasing.

 During the nine months ended September 30, 2017, cash provided by investing activities included $9,900,000 of proceeds from the maturity of available-for-sale securities, partially offset by $2,438,000 in purchases of available-for-sale securities, $2,000,000 for the investment in Vensica Medical, as described in Note 12 to the financial statements, $680,000 for the purchase of property, plant, and equipment, and $178,000 for the Genesis Acquisition, as described in Note 3 to the financial statements.  During the nine months ended September 30, 2016, we used $232,000 of net cash for the purchase of property, plant, and equipment.
 
Sources of Liquidity .

In addition to our cash and investments, we have a secured revolving credit facility (“Facility”), subject to eligible accounts receivable and inventory Under the Facility, we may borrow the lesser of:  (a) the sum of (i) eighty percent (80%) of the value of eligible accounts receivable; and (ii) forty percent (40%) of the value of eligible inventory, capped at $2.5 million; or (b) $7 million.  As of September 30, 2017, based on eligible receivables and inventory, our total available borrowing base was approximately $6,250,000.  We did not have any borrowings under the Facility as of September 30, 2017.
 
On April 19, 2017, we filed a universal shelf registration statement with the SEC that enables us to raise capital through the offering from time to time of an aggregate amount of up to $100 million of securities, including common stock, preferred stock, warrants to purchase common stock or preferred stock, units consisting of a combination of securities, and subscription rights to purchase the foregoing securities.  We may offer and sell securities covered by the registration statement through one or more methods of distribution, subject to market conditions and our capital needs.  However, the aggregate market value of securities sold during a 12-month period can be no more than one-third of the aggregate market value of voting and nonvoting common equity held by our non-affiliates. The terms of any offering under the shelf registration statement will be established at the time of the offering and described in a prospectus supplement filed with the SEC prior to the completion of the offering.
 
We may obtain additional debt and/or equity financing during 2017.
 
Our ability to achieve significant revenue growth will depend, in large part, on our ability to achieve widespread market acceptance of our products and successfully expand our business in the U.S.  We cannot guarantee that we will successfully achieve such revenue growth.  If we fail to meet our projections of profitability and cash flow, or determine to use cash for matters we are not currently projecting, we may need to seek additional financing to meet our cash needs.  We cannot assure you that such financing, if needed, will be available to us on acceptable terms, if at all.
 
The Company does not have any commitments for capital expenditures.

ITEM 3.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We are a smaller reporting company and are not required to provide the information required by this Item.
 
ITEM 4.
CONTROLS AND PROCEDURES

Disclosure Controls and Procedures .

Under the supervision and with the participation of our management, including our President and Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial and Accounting Officer) (“CEO and CFO”), we evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e)) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Based on this evaluation, our CEO and CFO of our company concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective in ensuring that the information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in applicable rules and forms and that such information is accumulated and communicated to our management, including our CEO and CFO, in a manner that allows timely decisions regarding required disclosure.

Changes In Internal Controls Over Financial Reporting.

Based on the evaluation conducted by our management, with the participation of the principal executive officer, principal financial officer and principal accounting officer, pursuant to Rules 13a-15(d) and 15d-15(d) promulgated under the Exchange Act, our management (including such officers) have concluded that there were no changes to our internal control over financial reporting (as defined in Rules 13a-15(f) or 15d-15(f) under the Exchange Act) that occurred since June 30, 2017 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

PART II. OTHER INFORMATION
 

 
ITEM 1.
LEGAL PROCEEDINGS

None.

ITEM 1A.
RISK FACTORS

We are a smaller reporting company and are not required to provide the information required by this Item.


ITEM 2.
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

None.

ITEM 3.
DEFAULTS UPON SENIOR SECURITIES

None.

ITEM 4.
MINE SAFETY DISCLOSURE

Not applicable.

ITEM 5.
OTHER INFORMATION

NONE.
 
ITEM 6.
EXHIBITS

Exhibit
No.
 
Exhibit
 
Method of Filing
         
3.1   Amended and Restated Certificate of Incorporation of Cogentix Medical, Inc.  
Filed herewith
         
3.2  
Amended and Restated By-Laws of Cogentix Medical, Inc.
 
Filed herewith
         
10.1*
 
Fifth Amendment dated May 9, 2017, to the Supply Agreement, dated December 6, 2007, by and between Cogentix Medical, Inc. and Covidien Sales LLC
 
Incorporated by reference to Exhibit 10.8 to Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 filed with the SEC on May 12, 2017 (File No. 000-20970)
         
31.1  
Certification by the PEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
 
Filed herewith
         
 
Certification by the PFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
 
Filed herewith
         
 
Certification by the PEO pursuant to Section 18 USC Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
 
Filed herewith
         
 
Certification by the PFO pursuant to Section 18 USC Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
 
Filed herewith
         
101
 
Financial Statements for the Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2017, formatted in Extensible Business Reporting Language: (i) Condensed Consolidated Balance Sheets; (ii) Condensed Consolidated Statement of Operations; (iii) Condensed Consolidated Statement of Comprehensive Income (Loss); (iv) Condensed Consolidated Statement of Shareholders’ Equity; (v) Condensed Consolidated Statement of Cash Flows and (vi) Notes to Condensed Consolidated Financial Statements
 
Filed herewith


*
Portions of this exhibit have been exhibit have been omitted pursuant to a request for confidential treatment
 
SIGNATURES

In accordance with the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

     
COGENTIX MEDICAL, INC.
       
 
Date: November 13, 2017
 
By: /s/ DARIN HAMMERS
Darin Hammers
President and Chief Executive Officer
(Principal Executive Officer)
 
Date: November 13, 2017
 
By: /s/ BRETT REYNOLDS
Brett Reynolds
Senior Vice President, Chief Financial Officer and Corporate Secretary
(Principal Financial and Accounting Officer)
 
 
Page 28


Exhibit 3.1
 
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
COGENTIX MEDICAL, INC.

The present name of the Corporation is Cogentix Medical, Inc.  The Corporation was incorporated under the name "Machida Incorporated" by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on October 19, 1987. This Amended and Restated Certificate of Incorporation of the Corporation, which restates and integrates and also further amends the provisions of the Corporation’s certificate of incorporation, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware. The certificate of incorporation of the Corporation is hereby amended, integrated and restated to read in its entirety as follows:

FIRST. The name of the Corporation is:
Cogentix Medical, Inc.

SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.  The name of its registered agent at such address is The Corporation Trust Company.

THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows:
 
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

FOURTH.   The total number of shares of all classes of stock that the Corporation shall have authority to issue is (i) one hundred million (100,000,000) shares of Common Stock, $0.01 par value per share ("Common Stock"), and (ii) five-million (5,000,000) shares of Preferred Stock, $0.01 par value per share ("Preferred Stock").

Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law. Different series of Preferred Stock shall not be construed to constitute different classes of shares for the purposes of voting by classes unless expressly provided.

Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by resolution or resolutions of the Board of Directors providing for the issue of the shares thereof, to determine and fix such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the General Corporation Law of Delaware. Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to the Preferred Stock or any other series to the extent permitted by law. No vote of the holders of the Preferred Stock or Common Stock shall be a prerequisite to the issuance of any shares of any series of the Preferred Stock authorized by and complying with the conditions of the Certificate of Incorporation, the right to have such vote being expressly waived by all present and future holders of the capital stock of the Corporation.
 
1

FIFTH. In furtherance of and not in limitation of powers conferred by statute, it is further provided:

1. Election of directors need not be by written ballot.

2. The Board of Directors is expressly authorized to adopt, amend or repeal the By-laws of the Corporation.

SIXTH. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

SEVENTH. Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
 
EIGHTH.
1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an "Indemnitee") or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Notwithstanding anything to the contrary in this Article, except as set forth in Section 6 below, the Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by the Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation.
 
2

2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any Indemnitee who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees) and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses (including attorneys' fees) which the Court of Chancery of Delaware or such other court shall deem proper.

3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the other provisions of this Article, to the extent that an Indemnitee has been successful, on the merits or otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article, or in defense of any claim, issue or matter therein, or on appeal from any such action, suit or proceeding, he shall be indemnified against all expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that the Indemnitee had reasonable cause to believe his conduct was unlawful, the Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto.
 
3

4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. After notice from the Corporation to the Indemnitee of its election so to assume such defense, the Corporation shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with such claim, other than as provided below in this Section 4. The Indemnitee shall have the right to employ his own counsel in connection with such claim, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Corporation and the Indemnitee in the conduct of the defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided by this Article. The Corporation shall not be entitled, without the consent of the indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.

5. ADVANCE OF EXPENSES. Subject to the provisions of Section 6 below, in the event that the Corporation does not assume the defense pursuant to Section 4 of this Article of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, any expenses (including attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Corporation in advance of the final disposition of such matter, PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article. Such undertaking may be accepted without reference to the financial ability of such person to make such repayment.

6. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the Indemnitee shall submit to the Corporation a written request, including in such request such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or advancement of expenses. Any such indemnification or advancement of expenses shall be made promptly, and in any event within 60 days after receipt by the corporation of the written request of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the Corporation determines, by clear and convincing evidence, within such 60-day period that the Indemnitee did not meet the applicable standard of conduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in each instance by (a) a majority vote of a quorum of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question ("disinterested directors"), (b) if no such quorum is obtainable, a majority vote of a committee of two or more disinterested directors, (c) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (d) independent legal counsel (who may be regular legal counsel to the Corporation), or (e) a court of competent jurisdiction.
 
4

7. REMEDIES. The right to indemnification or advances as granted by this Article shall be enforceable by the Indemnitee in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within the 60-day period referred to above in Section 6. Unless otherwise provided by law, the burden of proving that the Indemnitee is not entitled to indemnification or advancement of expenses under this Article shall be on the Corporation. Neither the failure of the Corporation to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section 6 that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. The Indemnitee's expenses (including attorneys' fees) incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Corporation.

8. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this Article or of the relevant provisions of the General Corporation Law of Delaware or any other applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal.

9. OTHER RIGHTS. The indemnification and advancement of expenses provided by this Article shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), agreement or vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in any other capacity while holding office for the Corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee. Nothing contained in this Article shall be deemed to prohibit, and the Corporation is specifically authorized to enter into, agreements with officers and directors providing indemnification rights and procedures different from those set forth in this Article. In addition, the Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article.

10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any provision of this Article to indemnification by the Corporation for some or a portion of the expenses (including attorneys' fees), judgments, fines or amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with any action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such expenses (including attorneys' fees), judgments, fines or amounts paid in settlement to which the Indemnitee is entitled.

11. INSURANCE. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) against any expense, liability or loss incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of Delaware.
 
5

12. MERGER OR CONSOLIDATION. If the Corporation is merged into or consolidated with another corporation and the Corporation is not the surviving corporation, the surviving corporation shall assume the obligations of the Corporation under this Article with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the date of such merger or consolidation.

13. SAVINGS CLAUSE. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Indemnitee as to any expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil, criminal or administrative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.

14. DEFINITIONS. Terms used herein and defined in Section 145(h) and Section 145(i) of the General Corporation Law of Delaware shall have the respective meanings assigned to such terms in such Section 145(h) and Section 145(i).

15. SUBSEQUENT LEGISLATION. If the General Corporation Law of Delaware is amended after adoption of this Article to expand further the indemnification permitted to Indemnitees, then the Corporation shall indemnify such persons to the fullest extent permitted by the General Corporation Law of Delaware, as so amended.

NINTH. Notwithstanding any other provision of law, the Amended and Restated Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds (66 2/3%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, Articles SEVENTH, EIGHTH and NINTH. Except as otherwise provided herein, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute and the Amended and Restated Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.

TENTH. This Article is inserted for the management of the business and for the conduct of the affairs of the Corporation.

1. NUMBER OF DIRECTORS. The number of directors of the Corporation shall not be less than seven. The exact number of directors within the limitations specified in the preceding sentence shall be fixed from time to time pursuant to a resolution adopted by the Board of Directors.
 
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2. ELECTION OF DIRECTORS. Elections of directors need not be by written ballot except as and to the extent provided in the By-laws of the Corporation.

3. QUORUM; ACTION AT MEETING. A majority of the directors at any time in office shall constitute a quorum for the transaction of business. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified, provided that in no case shall less than one-third of the number of directors fixed pursuant to Section 1 above constitute a quorum. If at any meeting of the Board of Directors there shall be less than such a quorum, a majority of those present may adjourn the meeting from time to time. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors unless a greater number is required by law, by the By-laws of the Corporation or by this certificate of Incorporation.

4. VACANCIES. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by a vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected to hold office until the next annual meeting, subject to the election and qualification of his/her successor and to his/her earlier death, resignation or removal.

ELEVENTH. Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of all of the outstanding shares of stock that would be entitled to vote thereon at a meeting of stockholders. Notwithstanding any other provisions of law, the Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least 75% of the votes which all of the stockholders would be entitled to cast at an annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.

[Signature Page to Follow]
 
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on this 6 th day of June, 2017.

 
COGENTIX MEDICAL, INC.
     
 
/s/ Brett Reynolds
 
Name:
Brett Reynolds
 
Title:
Senior Vice President, Chief Financial Officer and Corporate Secretary


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Exhibit 3.2
 
AMENDED AND RESTATED BY-LAWS

OF

COGENTIX MEDICAL, INC., AS AMENDED ON JUNE 5, 2017

ARTICLE 1 – Stockholders

1.1     Place of Meetings .  All meetings of stockholders shall be held at such place within or without the State of Delaware as may be designated from time to time by the Board of Directors or the President or, if not so designated, at the registered office of the corporation.

1.2     Annual Meeting .  The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors, the Chairman or the President (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors, the Chairman or the President and stated in the notice of the meeting.  If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient.  If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been