SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Amendment No. 1)
x Annual Report under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended December 31, 2009
or
¨ Transitional Report under Section 13 or 15(d) of the
Securities Exchange Act of 1934
| 000-52327 |
| Commission file number |
| AQUAMER MEDICAL CORP. |
| (Exact name of small business issuer as specified in its charter) |
| Delaware | 80-0664054 | |
| (State of incorporation) | (IRS Employer Identification Number) |
23 Wallace Street, Suite 408 Red Bank, NJ 07701 |
| (Address of principal executive office) |
| (732) 224-9193 |
| (Issuer's telephone number) |
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under to Section 12(g) of the Exchange Act:
| Common Stock |
| (Title of Class) |
Check whether the registrant:
is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
(1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports)
Yes x No ¨
And
(2) has been subject to such filing requirements for the past 90 days.
Yes x No ¨
Check if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-K contained in this form, and no disclosure will be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K ¨
Check whether the registrant: is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
Check whether the registrant: is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
Large accelerated filer ¨ | Accelerated filer ¨ | Non-accelerated filer ¨ | Smaller reporting company x |
Aquamer Medical Corp. did not have any revenue for the year ended December 31, 2009.
As of April 15, 2010, there were 115,629,176 shares of Aquamer Medical Corp. common stock outstanding.
The aggregate market value of the stock held by non-affiliates (62,287,559 shares) computed by reference to the closing price of such stock ($0.18), as of April 14, 2010, was $11,211,761.
Documents incorporated by reference: None.
EXPLANATORY NOTE
This Form 10-K/A Amendment No. 1 (this "Amendment") to the Annual Report on Form 10-K for the year ended December 31, 2009 of Aquamer Medical Corp. (the "Company"), filed with the Securities and Exchange Commission on April 15, 2010 (the "Original Form 10-K"), is being filed, in response to comments issued by the staff of the Division of Corporation Finance of the Securities and Exchange Commission, solely to (i) amend the disclosure required by Item 405 of Regulation S-K to note that ThermaFreeze Products Corporation (“ThermaFreeze”) and Marshall Sterman, a Director and our President during the year ended December 31, 2009, failed to timely file a Form 3 or 4 and a Schedule 13D or Schedule 13G to report their respective ownership interests in the Company, and (ii) amend footnote (2) to the security ownership table under Item 12, “Security Ownership of Certain Beneficial Owners and Management,” of the Original Form 10-K to disclose that the Company believes the Board of Directors of ThermaFreeze has voting and dispositive power over the shares of the Company’s common stock beneficially owned by ThermaFreeze and to name the members of such Board of Directors at the time of the filing of the Original Form 10-K.
This Amendment No. 1 on Form 10-K/A does not modify, replace or update the other disclosures presented in the Original Form 10-K. This Amendment No. 1 on Form 10-K/A also does not reflect events occurring after the filing of the Original Form 10-K.
Aquamer Medical Corp.
Form 10-K/A
Table of Contents
| Page | |||
| PART III | |||
| Item 10. | Directors, Executive Officers and Corporate Governance | 4 | |
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 6 | |
| PART IV | |||
| Item 15. | Exhibits, Financial Statement Schedules. | 8 | |
| Signatures | 8 | ||
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PART III
Item 10 - Directors, Executive Officers and Corporate Governance
The following is a list of our directors and executive officers, their respective ages and the positions they hold with us.
| Name | Age | Positions | ||
| Richard Falcone | 57 | President, Chief Executive Officer and Director | ||
| Marshall Sterman | 78 | Chairman of the Board of Directors |
Pursuant to our bylaws, all directors are elected to a term of one year, and hold such office until the next meeting of the shareholders or until their successors are elected and qualified. The executive officers serve at the pleasure of the Board.
The following is a brief description of the backgrounds of our executive officer and our directors..
Richard Falcone has been President, Chief Executive Officer and Director of Aquamer since February 2010. He is also the Acting Chief Financial Officer of ThermaFreeze Products Corporation. He had previously been Chief Financial Officer of the The A Consulting Team, a publicly traded technology company and had been Chief Executive Officer and Director of Tasker Products Corp., a publicly traded manufacturer and distributor of antimicrobial products and has been a director of Assured Pharmacy, Inc. Mr. Falcone was formerly the Chief Financial Officer of Bed, Bath & Beyond Inc. and had been Director of Internal Finance and Operations for Tiffany and Co. Mr. Falcone is a Certified Public Accountant and is a graduate of the University of Vermont.
Marshall Sterman served as President and a member of our Board of Directors beginning in August 2006, at which time Aquamer was a wholly owned subsidiary of Bellacasa. He continued in those positions when Aquamer became an independent public company in March 2007. In February 2010, he resigned his executive positions but continues as our Board Chairman. Since 1986, Mr. Sterman has been the President of The Mayflower Group, LTD., a merchant banking firm. He also is a member of the Board of Directors of Medical Solutions Management, Inc., and serves as Chairman of WiFiMed Holdings Company, Inc. (formerly Bellacasa). Mr. Sterman is a graduate of Brandeis University and received his MBA from Harvard University.
Board of Directors and Committees
All directors hold office until the next annual meeting of the shareholders and the election of their successors. Officers are elected annually by the Board of Directors and serve at the discretion of the Board.
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Our Board of Directors plans to establish an audit committee and a compensation committee at such time as additional persons are added to our Board of Directors.
The Audit Committee will recommend, to the entire Board of Directors, the independent public accountants to be engaged by us; review the plan and scope of our annual audit; review our internal controls and financial management policies with our independent public accountants; and review all related party transactions.
The compensation committee will review and recommend, to our entire board of directors, compensation and benefits to be paid to our officers and directors.
Compliance with Section 16(a) of the Securities Exchange Act of 1934, as amended
Section 16(a) of the Exchange Act, as amended, requires the Company's directors and officers, and persons who beneficially own more than 10% of a registered class of the Company's equity securities, to file reports of beneficial ownership and changes in beneficial ownership of the Company's securities with the SEC on Forms 3, 4 and 5. Officers, directors and greater than 10% stockholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file.
We believe that all required filings had been made for the year ended December 31, 2009 except that (i) ThermaFreeze Products Corporation failed to timely file a Form 3 and a Schedule 13D or Schedule 13G to report its ownership interest in the Company and (ii) Peter Johnson, as the trustee of certain trusts, failed to timely file a Form 3 and other beneficial ownership forms on behalf of such trusts to report their respective ownership interests in the Company and (iii) Marshall Sterman, a Director and our President during the year ended December 31, 2009, failed to file a Form 4 and other beneficial ownership forms to report his ownership interest in the Company
Code of Business Conduct
Effective March 28, 2006, the Board of Directors of our then parent company, Bellacasa, adopted a Code of Business Conduct for Bellacasa and for its then wholly owned subsidiary, Aquamer. We have continued to maintain the Code of Business Conduct for Aquamer as a publicly owned independent company. Our Code of Business Conduct applies to, among other persons, our President (being our principal executive officer) and our Acting Chief Financial Officer (being our principal financial and accounting officer), as well as persons performing similar functions. As adopted, our Code of Business Conduct sets forth written standards that are designed to deter wrongdoing and to promote: (1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; (2) full, fair, accurate, timely and understandable disclosure in reports and documents that we file with, or submit to, the Securities and Exchange Commission and in other public communications made by us; (3) compliance with applicable governmental laws, rules and regulations; (4) the prompt internal reporting of violations of the Code of Business Conduct to an appropriate person or persons identified in the Code of Business Conduct; and (5) accountability for adherence to the Code of Business Conduct.
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Our Code of Business Conduct requires, among other things, that all of our personnel shall be accorded full access to our President and Chief Financial Officer with respect to any matter which may arise relating to the Code of Business Conduct. Further, all of our personnel are to be accorded full access to our Board of Directors if any such matter involves an alleged breach of the Code of Business Conduct by our President or Chief Financial Officer.
In addition, our Code of Business Conduct emphasizes that all employees, and particularly managers and/or supervisors, have a responsibility for maintaining financial integrity within our company, consistent with generally accepted accounting principles, and federal and state securities laws. Any employee who becomes aware of any incidents involving financial or accounting manipulation or other irregularities, whether by witnessing the incident or being told of it, must report it to his or her immediate supervisor or to our President or Chief Financial Officer. If the incident involves an alleged breach of the Code of Business Conduct by the President or Chief Financial Officer, the incident must be reported to any member of our Board of Directors. Any failure to report such inappropriate or irregular conduct of others is to be treated as a severe disciplinary matter. It is against our company policy to retaliate against any individual who reports in good faith the violation or potential violation of our company's Code of Business Conduct by another.
We will provide a copy of the Code of Business Conduct to any person without charge, upon request.
Item 12 - Security Ownership of Certain Beneficial Owners and Management
As of April 13, 2010, there were 115,629,176 shares of our common stock issued and outstanding. None of our preferred stock has been issued.
The following table describes certain information regarding certain individuals who beneficially owned our common stock on April 13, 2010. In general, a person is considered a beneficial owner of a security if that person has or shares the power to vote or direct the voting of such security, or the power to dispose of such security. A person is also considered to be a beneficial owner of any securities of which the person has the right to acquire beneficial ownership within 60 days.
The persons included in the following table are known to us to beneficially own or exercise voting control over 5% or more of our common stock; each of our officers and directors; and all executive officers and directors as a group.
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| Name and address | Common Shares Owned | % Common Shares Owned | ||||||
| Marshall Sterman | 12,096,852 | (1) | 10.5 | % | ||||
c/o Aquamer Medical Corp. 23 Wallace St., Suite 408 Red Bank, NJ 07701 | ||||||||
| Director | ||||||||
| Richard Falcone | 0 | (2) | 0.0 | % | ||||
| c/o Aquamer Medical Corp. | ||||||||
| 23 Wallace St., Suite 408 | ||||||||
| Red Bank, NJ 07701 | ||||||||
| Officer and Director | ||||||||
| Peter Johnson, Trustee | 26,244,765 | (3) | 22.7 | % | ||||
| Nixon Peabody LLP | ||||||||
| 100 Summer Street | ||||||||
| Boston, MA 02110 | ||||||||
| Frank Magliochetti Irrevocable QTIP Trust | 16,725,000 | (3) | 16.0 | % | ||||
| Peter Johnson, Trustee | ||||||||
| Nixon Peabody LLP | ||||||||
| 100 Summer Street | ||||||||
| Boston, MA 02110 | ||||||||
| ThermaFreeze Products Corporation. | 15,000,000 | (2) | 13.0 | % | ||||
| 5770 I-10 Industrial Parkway | ||||||||
| Theodore, AL 36582-1666 | ||||||||
| Harry Pack | 8,903,898 | 7.7 | % | |||||
2789 NE 5th St. | ||||||||
| Pompano Beach, FL 33062 | ||||||||
| All Officers and Directors | 12,096,852 | 10.5 | % | |||||
| (-2- persons) as a group | ||||||||
(1) Includes 288,799 shares owned by Mr. Sterman's spouse and 288,799 shares owned by The Mayflower Group, Ltd.
(2) Mr. Falcone, the President, Chief Executive Officer and Acting Chief Financial Officer of Aquamer Medical Corp., presently serves as Acting Chief Financial Officer of ThermaFreeze Products Corporation (“ThermaFreeze”). To our knowledge, the Board of Directors of ThermaFreeze consists of Richard Bolton, James Bolton and Zachary Joyce and has voting and dispositive power over the shares of Common Stock beneficially owned by ThermaFreeze.
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(3) Mr. Johnson, as trustee, has sole voting, investment and dispositive authority as to the 16,750,000 shares owned by the Frank Magliochetti Irrevocable QTIP Trust. In addition, he has sole voting and investment and dispositive authority as to 2,902,476 shares owned by an estate of which he is the executor. He also shares voting, investment and dispositive authority as to three separate trusts owning a total of 6,617,289 shares.
Indemnification of Directors and Officers
Our Certificate of Incorporation and Bylaws indemnify our directors and officers to the fullest extent permitted by Delaware corporation law. Insofar as indemnification for liability arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons, we are aware that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is unenforceable.
PART IV
Item 15 - Exhibits, Financial Statement Schedules
See Exhibit Index attached to this Form 10-K/A.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Aquamer Medical Corp. | ||
| (Registrant) | ||
| By: | /s/ Edwin A. Reilly | |
Edwin A. Reilly Chief Executive Officer | ||
| Date: | November 24, 2010 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| By: | /s/ Edwin A. Reilly | |
Edwin A. Reilly Chief Executive Officer and Director (Principal Executive Officer) | ||
| Date: | November 24, 2010 |
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| By: | /s/ James A. Shanahan | |
James A. Shanahan Chief Financial Officer (Principal Accounting Officer and Principal Financial Officer) | ||
| Date: | November 24, 2010 | |
| By: | /s/ Michael J. Mahoney | |
Michael J. Mahoney President, Chief Operating Officer and Director | ||
| Date: | November 24, 2010 |
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Exhibits
Exhibit No. | Description | |
2.1(1) | Certificate of Incorporation | |
2.2(1) | By-laws | |
10.1(2) | Patent License Agreement between Partners in Biomaterials, Inc. and Aquamer, Inc., effective as of March 31, 2006 | |
10.2(2) | Product Supply Agreement between Partners in Biomaterials, Inc. and Aquamer, Inc., effective as of March 31, 2006 | |
10.3(4) | Patent Purchase Agreement between Phillips Capital and Aquamer Medical Corp dated as of March 24, 2008 | |
10.4(5) | Asset Purchase Agreement by and among Thermafreeze Products Corporation, Aquamer Medical Corp. and Aquamer Shipping Corp., dated March 21, 2010 | |
10.5(5) | Consultant Services Agreement between Thermafreeze Products Corporation (assumed by Aquamer) and Thomas Belina, effective as of October 1, 2009 | |
12.1(3) | Joint Disclosure Statement in the definitive proxy statement on Schedule 14C filed by Bellacasa Productions, Inc. on February 1, 2007 | |
14.1(2) | Code of Business Conduct filed by Bellacasa Productions, Inc. | |
21.0(6) | Subsidiaries of Registrant | |
31.1* | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of the Chief Executive Officer | |
31.2* | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of the Chief Financial Officer | |
32.1* | Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of the Chief Executive Officer | |
32.2* | Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of the Chief Financial Officer |
* Filed herewith
(1) Previously filed on November 20, 2006, as an exhibit to Form 10-SB of Aquamer.
(2) Previously filed on March 31, 2006, as an exhibit to Form 10-KSB of Bellacasa.
(3) Previously filed on February 5, 2007, as an exhibit to Form 10-SB/A of Aquamer.
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(4) Previously filed on March 25, 2008, as an exhibit to Report on Form 8-K of Aquamer.
(5) Previously filed on March 25, 2010, as an exhibit to Report on Form 8-K of Aquamer.
(6) Previously filed on April 15, 2010, as an exhibit to Report on Form 10-K of Aquamer.
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