Posted by  Mak Yuen Teen  |  Jul 18, 2020  |  Articles

By Mak Yuen Teen

On July 5, I posted an article &ldquo Biolidics&rsquo Disclosures Are Simply Unacceptable&rdquo in which I questioned why Biolidics did not timely disclose the fact that its exclusive distribution agreement with Nasdaq-listed Aytu Bioscience (Aytu) was not progressing according to its original announcement on April 23.

In the announcement on April 23, it was said that Aytu has a binding commitment to purchase from Biolidics an initial  500,000  Covid-19 rapid test kits by the  next business day. To retain its exclusivity, Aytu was also required to purchase a total of  1.25 million  test kits within  3 months  of the agreement.

On June 28, Biolidics announced that the distribution agreement had been terminated. Following SGX queries, the company said that only 13,000 test kits had been delivered. Biolidics was to refund all deposits paid by Aytu and Aytu will return the 13,000 test kits. Biolidics is not required to refund the amounts paid for the 13,000 test kits to be returned by Aytu.  [Note:  On July 18, I updated my July 5 article to correct my original statement that Biolidics also had to refund the amount paid for the 13,000 returned kits, but the rest of my article stands.]

In its April 23 announcement on the distribution agreement, Biolidics said:  &ldquo The Agreement is likely to contribute positively to the revenue of the Company for the current financial year ending 31 December 2020. However, the Company is unable to quantify the financial impact as there are no minimum purchase quantities beyond the first three months of the Agreement.&rdquo

Yet, when Aytu did not buy the 500,000 test kits that it was supposed to by the  next business day  under the  binding commitment,  Biolidics did not inform the market.  Less than a month before the end of the three-month period for Aytu to buy 1.25 million kits to retain exclusivity, Biolidics told the market on June 28 that the distribution agreement had been terminated on June 27. In response to SGX&rsquo s queries, it said only 13,000 kits had been delivered.

Investors who bought the company&rsquo s shares on the basis of the April 23 announcement &ndash which said the deal will contribute positively to the revenue of the company for the year &ndash did not know that Aytu did not buy the 500,000 kits by the next day and was nowhere near to buying the 1.25 million kits within three months. As I said, this is simply unacceptable under our continuous disclosure requirement in the SGX listing rules, backed by the Securities and Futures Act.

When I read the June 28 announcement, I found it difficult to understand fully the circumstances surrounding the termination of the distribution agreement but it was evident that it had to do with increased competition for the test kits in the US, and those that have received US FDA Emergency Use Authorization (EUA) &ldquo have established leading US market positions&rdquo . Biolidics&rsquo test kits had not received such authorisation.

As Aytu is listed on Nasdaq, I expected that it would also have made an announcement. I couldn&rsquo t find such an announcement on Aytu&rsquo s website even though it posts other announcements (including the original distribution agreement), but there was a Form 8-K filing with the US Securities and Exchange Commission. I have attached the announcement here:

Download (PDF, 126KB)

Aytu&rsquo s announcement provides a bit more colour about the termination of the agreement.  Aytu said that it has another distribution agreement for similar test kits with L.B. Resources, Limited manufactured by Zhejiang Orient Gene Biotech, Limited (Orient Gene), and those test kits had received EUA from US FDA on May 29. It also said:  &ldquo Virtually all antibody test kits in the Company&rsquo s warehouse and those tests that have been sold to date have been sourced from Orient Gene. Through its relationship with L.B. Resources in sourcing the Orient Gene Test Kits, the Company believes it has access to adequate supply  of these FDA EUA Orient Gene Test Kits now and expects to have supply as needed in the future.&rdquo

In other words, the agreement with Biolidics was terminated because Aytu already has enough supply of test kits which have received EUA, and it did not need the supply from Biolidics which has yet to receive EUA. Based on Aytu&rsquo s announcement, it appears that by May 29, Aytu knew that the Orient Gene test kits had received approval while the Biolidics&rsquo test kits had not. When did Aytu communicate to Biolidics that it was looking to terminate the distribution agreement?

On July 15, I posted another article &ldquo Biolidics: Making an A*S of the Rules&rdquo in which I questioned the late disclosure of the five-year non-exclusive licensing agreement that Biolidics signed with Accelerate Technologies Pte Ltd (A*ccelerate), the commercialisation arm of A*STAR. I also questioned the delay in the request for the trading halt. SGX has since queried Biolidics on this agreement and its disclosure.

Having looked at the company&rsquo s response to SGX&rsquo s queries, I am doubtful about the ability of Biolidics to monetise this agreement through any eventual sales. In essence, Biolidics has a non-exclusive right to use the technology developed by A*ccelerate, enhance it, and then develop test kits from it. It will take up to nine months to incorporate the technology into its serology test kits. Biolidics will then have to obtain product liability insurance before commercialisation. After the five-year agreement, Biolidics will no longer have the right to use the technology from A*cclerate, but will own the enhancements created on its own. Given how the market for tests is evolving (not to mention all the efforts focused on developing a vaccine), nine months is an eternity, and there are many &ldquo ifs&rdquo and &ldquo buts&rdquo .

The company said the latest agreement is unlikely to have a material impact on EPS and NAV for the rest of the current financial year. This is almost certainly true given that there are only about five more months left of this financial year. It is also unlikely in my view that this will have any material impact for the future either.

However, this does not excuse the way the disclosure of this agreement and the calling of the trading halt have been handled. Biolidics said that the agreement was signed after trading hours on July 9. On July 9, the share price surged by 10 cents or 32%, from 31 cents at close on July 8 to 41 cents. Volume increased to 61.6 million shares, from 4.5 million, 2.4 million and 3 million for the immediately preceding three days. The agreement signed after trading hours on July 9 would not have materialised out of thin air as there must have been discussions and draft agreements. Who were privy to these discussions about the impending agreement?

While the final agreement is in my view nothing to be excited about &ndash and unlikely to have a material impact on EPS and NAV either for this year or the future &ndash news about a impending agreement without specifics may have leaked, causing the price and volume to run up.

Once the price and volume were running up, Biolidics should have called a trading halt &ndash on July 9 &ndash as it would have been in advanced stages of entering into the agreement and information about it may have leaked. Not only did it not call a trading halt on July 9, it waited until Monday, July 13, at 12.19 pm to do so. By that time, the share price had shot up by another 11 cents and another 38.3 million shares had changed hands. It finally announced the agreement on July 14 at 10.46 pm, and the trading halt was then lifted the next day.

In response to SGX&rsquo s queries, the company said that polling day, followed by the weekend, had delayed the finalisation of the announcement. It also said the announcement was not expected to have a material impact in the current year.

The market appears to have thought otherwise, given the price and volume run up, perhaps because information about a potential agreement had leaked.

There is certainly no excuse in my view for a trading halt to not have been called much earlier, given the price and volume run up.