UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-Q/A
Amendment No. 2
(Mark
One)
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QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934
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For
the quarterly period ended: March 31, 2008
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934
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For
the transition period _________ to____________
Commission
file number: 000-51248
OPTIGENEX
INC.
(Exact
name of small business issuer as specified in its charter)
Delaware
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20-1678933
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(State
or other jurisdiction of
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(IRS
Employer I.D. Number)
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incorporation
or organization)
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1170
Valley Brook Avenue, 2
nd
Floor Suite B, Lyndhurst, NJ 07071
(Address
of principal executive offices)
(212)
905-0189
(Issuer’s
telephone number)
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
x
No
o
Indicate
by check mark whether the registrant is a large accelerated filer, and
accelerated file, a non-accelerated filer, or a smaller reporting
company.
Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer
o
(Do not check if
a smaller reporting company)
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Smaller
reporting company
x
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes
o
No
x
APPLICABLE
ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS
DURING THE PRECEDING FIVE YEARS:
Indicate
by check mark whether the registrant has filed all documents and reports
required to be filed by Sections 12, 13 of 15(d) of the Securities Exchange
Act
of 1934 subsequent to the distribution of securities under a plan confirmed
by a
court. Yes
o
No
o
APPLICABLE
ONLY TO CORPORATE ISSUERS:
There
were 66,533,776 shares of Common Stock outstanding as of May 12, 2008.
PART
I
Optigenex
Inc. is referred to as “we”, “our” or “us”
EXPLANATORY
NOTE
Form
10-Q/A
Amendment
#2
On
May
20, 2008, we filed our Form 10-Q for the quarterly period ended March 31, 2008.
On July 31, 2008, we received a comment letter from the Securities and Exchange
Commission’s Division of Corporation Finance (“the SEC”) regarding our internal
control over financial reporting. On September 10, 2008, we filed Amendment
Number 1 to our Form 10-Q. On September 19, 2008, we received another comment
letter from the SEC pertaining to the revised disclosure of our internal control
over financial reporting in Amendment Number 1. As a result of this second
comment letter, we reassessed our internal control over financial reporting,
specifically as to the matters contained below and filed this Amendment Number
2
to Form 10-Q to amend the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2008. Our reassessment is based on: (a) our
misinterpretation of the matters addressed in July 31, 2008 comment letter
and
conducting a reassessment based on the September 19, 2008 comment letter; (b)
consultation with our legal counsel; (c) consultation with our independent
registered public accounting firm; and (d) our review of: (i) “Internal Control
over Financial Reporting - Guidance for Smaller Public Companies published
by
the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”);
(ii) Internal Control over Financial Reporting - Guidance for Smaller Public
Companies published by COSO; and (iii) various SEC releases and SEC
interpretative guidance regarding internal control over financial
reporting.
This
Amendment Number 2 to our Form 10-Q amends Item 4T of Part I of Form 10-Q and
the Principal Executive Officer and Principal Financial Officer Certifications
under Item 601(b)(31) of Regulation S-B (the “Amended Items”). In accordance
with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), the amended items have been amended and restated in their
entirety. No attempt has been made in this Amendment Number 2 to our Form 10-Q
to modify or update other disclosures as presented in the original Form
10-Q.
Item
4T. Controls and Procedures
Evaluation
of Disclosure Controls and Procedures:
We
maintain disclosure controls and procedures, as defined in Rules 13a-15(e)
and
15d-15(e) under the Exchange Act that are designed to insure that information
required to be disclosed in the reports we file or submit under the Exchange
Act
is recorded, processed, summarized and reported within the periods specified
in
the Securities and Exchange Commission’s rules and forms and that such
information is accumulated and communicated to our management, including our
Chief Executive Officer/Chief Financial Officer, or the persons performing
similar functions, to allow timely decisions regarding required
disclosure.
As
previously disclosed in Amendment Number 2 to our Form 10-KSB for the year
ended
December 31, 2007, we concluded that our disclosure controls and procedures
were
ineffective as of December 31, 2007. The fact that we filed our Form 10-KSB
thirty (30) days late was attributable to having ineffective disclosure controls
and procedures.
Under
the
supervision and participation of our Chief Executive Officer/Chief Financial
Officer, or the persons performing similar functions, our management has
evaluated the effectiveness of our disclosure controls and procedures as of
the
end of the period covered by this quarterly report. Based on that evaluation,
our Chief Executive Officer/Chief Financial Officer, or the persons performing
similar functions, concluded that our disclosure controls and procedures were
ineffective as of March 31, 2008.
Specifically,
in Amendment Number 2 to our Form 10-KSB for the year ended December 31, 2007
we
outlined certain steps that we felt were necessary to strengthen our disclosure
controls and procedures, in order to evaluate and remedy the deficiencies and
to
test these procedures and controls on an ongoing basis. Those steps are repeated
below:
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1.
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We
are seeking to hire a Chief Financial Officer, or an employee who
will
perform the functions of a Chief Financial Officer, who will strengthen
our disclosure controls and procedures by implementing procedures
that
enhance the recording, processing, summarizing and reporting of the
information which we are required to file within the time periods
specified in the Commission’s rules and forms. This individual will also
be responsible for simplifying certain accounting procedures and
arrange
for the training of any additional accounting personnel that we may
hire
in the future, which will be beneficial to strengthening our disclosure
controls, expand our documentation of accounting transactions and
related
reviews, improve the timeliness and quality of financial reports
to
management, and improve the communication between our accounting/finance
department and all sectors of our business;
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2.
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We
will increase our use of outside advisors to improve our quality
of
disclosure.
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As
of
March 31, 2008 we had not yet hired a full time Chief Financial Officer to
perform the functions described above as a result, we have concluded that our
disclosure controls and procedures were ineffective as of March 31, 2008. We
will continue to seek to hire a qualified Chief Financial Officer or an employee
to perform the functions described above. Currently we rely on the services
of
an outside consultant to assist management in performing these functions.
Evaluation
of Changes in Internal Control over Financial Reporting:
Under
the
supervision and with the participation of our Chief Executive Officer/Chief
Financial Officer, or those persons performing similar functions, our management
has evaluated changes in our internal controls over financial reporting that
occurred during the first quarter of 2008. Based on that evaluation, our Chief
Executive Officer/Chief Financial Officer, or those persons performing similar
functions, did not identify any change in our internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
Important
Considerations:
The
effectiveness of our disclosure controls and procedures and our internal control
over financial reporting is subject to various inherent limitations, including
cost limitations, judgments used in decision making, assumptions about the
likelihood of future events, the soundness of our systems, the possibility
of
human error, and the risk of fraud. Moreover, projections of any evaluation
of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions and the risk that
the
degree of compliance with policies or procedures may deteriorate over time.
Because of these limitations, there can be no assurance that any system of
disclosure controls and procedures or internal control over financial reporting
will be successful in preventing all errors or fraud or in making all material
information known in a timely manner to the appropriate levels of
management.
SIGNATURES
In
accordance with Section 13 or 15(d) of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto
duly
authorized.
OPTIGENEX
INC.
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/s/
Daniel Zwiren
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Daniel
Zwiren
Chief
Executive Officer
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Dated:
October 14, 2008
In
accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on
the
dates indicated.
Signature
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Title
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Date
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/s/ Daniel
Zwiren
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Chairman
of the Board
Chief
Executive Officer (Principal Executive Officer)
Chief
Financial Officer (Principal Accounting Officer)
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October
14, 2008
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Daniel
Zwiren
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