UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/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 November 30, 2008. | |
| Commission File Number: 001-10221 | ||
MultiCell Technologies, Inc. (Name of small business issuer in its charter) | ||
DELAWARE (State or other jurisdiction of incorporation or organization) | 52-1412493 (IRS Employer Identification No.) | |
68 Cumberland Street, Suite 301 Woonsocket, RI 02895 401-762-0045 (Address and telephone number of principal executive offices) | ||
Securities registered under Section 12(b) of the Exchange Act: None | ||
| Securities registered pursuant to Section 12(g) of the Act: | ||
Common Stock, $0.01 par value per share | ||
Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act during the past 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 ___
Check if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-B is not 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-KSB or any amendment to this Form 10-KSB [X]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes___ No X
State issuer's revenues for its most recent fiscal year: $209,835.
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was sold, or the average bid and asked price of such common equity as of a specified date within the past 60 days (based upon shares held by non-affiliates and the closing price of $0.0175 share for the common stock on the over-the counter market as of March 9, 2009): $2,201,131
State the number of shares outstanding of each of the issuer’s classes of common equity, as of the latest practicable date: 140,429,181 shares of common stock as of March 9, 2009.
DOCUMENTS INCORPORATED BY REFERENCE
Transitional Small Business Disclosure Format (check one): Yes___ No X
MULTICELL TECHNOLOGIES, INC.
FORM 10-KSB/A
INDEX
| PAGE | ||
| EXPLANATORY NOTE | 1 | |
| PART II | ||
| Item 8A(T). | CONTROLS AND PROCEDURES | 1 |
| PART III | ||
| Item 13. | EXHIBITS | 2 |
| SIGNATURES | 3 | |
| EXHIBIT INDEX | 4 | |
EXPLANATORY NOTE
As a part of the review by the Securities and Exchange Commission of MultiCell Technologies, Inc.’s past filings under the Securities Exchange Act of 1934, MultiCell Technologies, Inc. is filing this Amendment No. 1 this (“Amendment No. 1”) to its Form 10-KSB for the fiscal period ended November 28, 2008 (the “Annual Report”). This Amendment No. 1 amends the certification of the Chief Executive Officer and Chief Financial Officer originally filed as Exhibit 31.1 to the Annual Report which incorrectly included the titles of the certifying officer in the first line of the certification. Additionally, this Amendment No. 1 amends Item 8A(T) of Part II of the Annual Report to include a clear statement that MultiCell Technologies, Inc.’s internal control over financial reporting was not effective as of November 30, 2008. The remainder of Item 8 of the Annual Report, including Item 8A, remains the same as previously reported in the Annual Report.
This Amendment No. 1 should be read in conjunction with the Annual Report, which continues to speak as of the date of the Annual Report. Other than as set forth above, this Amendment No. 1 does not modify or update disclosures in the Annual Report. Accordingly, this Amendment No. 1 does not reflect events occurring after the filing of the Annual Report or modify or update any related or other disclosures.
PART II
Item 8A(T). CONTROLS AND PROCEDURES
DISCLOSURE CONTROLS AND PROCEDURES
We maintain “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are designed to ensure that information required to be disclosed by us in reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating our disclosure controls and procedures, management recognized that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable assurance of achieving the desired control objectives, and we necessarily are required to apply our judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures.
Our management, including our principal executive officer and principal financial officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of November 30, 2008 and concluded that the disclosure controls and procedures were not effective, because certain deficiencies involving internal controls constituted material weaknesses as discussed below. The material weaknesses identified did not result in the restatement of any previously reported financial statements or any other related financial disclosure, nor does management believe that it had any effect on the accuracy of the Company’s financial statements for the current reporting period.
MANAGEMENT’S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act. Our internal control system was designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes, in accordance with generally accepted accounting principles. Because of inherent limitations, a system of internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate due to change in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Our management, including our principal executive officer and principal accounting officer, conducted an evaluation of the effectiveness of our internal control over financial reporting using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework. Based on its evaluation, our management concluded that there is a material weakness in our internal control over financial reporting. A material weakness is a deficiency, or a combination of control deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis. As of November 30, 2008, the following material weaknesses existed:
| 1. | Entity-Level Controls: We did not maintain effective entity-level controls as defined by the framework issued by COSO. Specifically, we did not effectively segregate certain accounting duties due to the small size of our accounting staff, and maintain a sufficient number of adequately trained personnel necessary to anticipate and identify risks critical to financial reporting. |
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| 2. | Information Technology: We did not maintain effective controls over the segregation of duties and access to financial reporting systems. Specifically, key financial reporting systems were not appropriately configured to ensure that certain transactions were properly processed with segregated duties among personnel and to ensure that unauthorized individuals did not have access to add or change key financial data. |
Due to this material weakness, management has concluded that our internal control over financial reporting was not effective as of November 30, 2008.
In order to mitigate these material weaknesses to the fullest extent possible, all financial reports are reviewed by the Chief Financial Officer, who has limited system access. In addition, regular meetings are held with the Board of Directors and the Audit Committee. If at any time we determine a new control can be implemented to mitigate these risks at a reasonable cost, it is implemented as soon as possible.
This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the SEC that permit the Company to provide only management’s report in this annual report.
This report shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
PART III
ITEM 13. EXHIBITS
Please see the Exhibit Index which follows the signature page to this Annual Report on Form 10-KSB/A and which is incorporated by reference herein.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15D 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.
MULTICELL TECHNOLOGIES, INC. (Registrant) | |||
| By: | /s/ W. Gerald Newmin | ||
W. Gerald Newmin Chairman, CEO, CFO, President, Treasurer and Secretary Dated August 7, 2009 | |||
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.
| Signature | Title | Date |
/s/ W. Gerald Newmin W. Gerald Newmin | Chairman ,CEO, CFO, President, Treasurer and Secretary | August 7, 2009 |
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| Exhibit No. | Description of Exhibit | |
2.1 (1) | Asset Contribution Agreement dated September 7, 2005 by and among Multicell Technologies, Inc., Astral Therapeutics, Inc., Alliance Pharmaceutical Corp., and Astral, Inc. | |
| 3.1 (2) | Certificate of Incorporation, as filed on April 28, 1970. | |
| 3.2 (2) | Certificate of Amendment, as filed on October 27, 1986. | |
| 3.3 (2) | Certificate of Amendment, as filed on August 24, 1989. | |
| 3.4 (2) | Certificate of Amendment, as filed on July 31, 1991. | |
| 3.5 (2) | Certificate of Amendment, as filed on August 14, 1991. | |
| 3.6 (2) | Certificate of Amendment, as filed on June 13, 2000. | |
| 3.7 (2) | Certificate of Amendment, as filed May 18, 2005. | |
| 3.8 (2) | Certificate of Correction, as filed June 2, 2005. | |
| 3.9 (2) | Bylaws, as amended May 18, 2005. | |
| 3.10 (2) | Specimen Stock Certificate. | |
4.1 (3) | Certificate of Designations of Preferences and Rights of Series I Convertible Preferred Stock, as filed on July 13, 2004. | |
| 4.2 (4) | Certificate of Designation of Series B Convertible Preferred Stock, as filed on July 14, 2006. | |
| 4.3 (5) | Debenture Purchase Agreement between Multicell Technologies, Inc. and La Jolla Cove Investors, Inc. dated February 28, 2007 | |
| 4.4 (5) | Registration Rights Agreement between Multicell Technologies, Inc. and La Jolla Cove Investors, Inc. dated February 28, 2007 | |
| 4.5 (5) | Stock Pledge Agreement dated February 28, 2007 | |
| 4.6 (5) | 7 ¾ % Convertible Debenture for $1,000,000 issued by Multicell Technologies, Inc. to La Jolla Cove Investors, Inc. | |
| 4.7 (5) | Escrow Letter dated February 28, 2007 from La Jolla Cove Investors, Inc. | |
| 4.8 (5) | Letter dated February 28, 2007 from La Jolla Cove Investors, Inc. | |
| 4.9 (5) | Securities Purchase Agreement between Multicell Technologies, Inc. and La Jolla Cove Investors, Inc. dated February 28, 2007 | |
| 4.10 (5) | 4 ¾ % Convertible Debenture for $100,000 issued by Multicell Technologies, Inc. to La Jolla Cove Investors, Inc. | |
| 4.11 (5) | Warrant to Purchase Common Stock dated February 28, 2007 | |
| 4.12 (5) | Letter dated February 28, 2007 to Multicell Technologies, Inc. from La Jolla Cove Investors, Inc. | |
| 4.13 (6) | Warrant for the purchase of 1,572,327 Shares of Common Stock of Multicell Technologies, Inc. issued to and Fusion Capital Fund II, LLC dated May 3, 2006. | |
| 4.14 (7) | Amended and Restated Registration Rights Agreement, dated as of October 5, 2006, by and between Multicell Technologies, Inc. and Fusion Capital Fund II, LLC. | |
| 4.15 (8) | Form of Warrant to Purchase Common Stock (Cashless Exercise) dated July 14, 2006 issued by Multicell Technologies, Inc. to Monarch Pointe Fund, Ltd., Mercator Momentum Fund III, L.P., Asset Managers International Ltd. and Pentagon Special Purpose Fund Ltd. | |
| 4.16 (8) | Form of Warrant to Purchase Common Stock (Cash Exercise), dated July 14, 2006, issued by Multicell Technologies, Inc. to Monarch Pointe Fund, Ltd., Mercator Momentum Fund III, L.P., Asset Managers International Ltd. and Pentagon Special Purpose Fund Ltd. | |
| 4.17 (8) | Form of Registration Rights Agreement dated July 14, 2006 by and between Multicell Technologies, Inc. and Monarch Pointe Fund, Ltd., Mercator Momentum Fund III, L.P., Asset Managers International Ltd. and Pentagon Special Purpose Fund Ltd. | |
| 4.18 (8) | Form of Shares of Series B Convertible Preferred Stock and Common Stock Warrants Subscription Agreement dated July 14, 2006 by and between Multicell Technologies, Inc. and Monarch Pointe Fund, Ltd., Mercator Momentum Fund III, L.P., Asset Managers International Ltd. and Pentagon Special Purpose Fund Ltd. | |
| 4.19 (9) | Amended and Restated Warrant to Purchase Common Stock issued to Anthony Cataldo dated July 25, 2006. |
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| 4.20 (10) | Form of Warrant to Purchase Common Stock dated February 1, 2006 issued by the Company to Trilogy Capital Partners, Inc. | |
| 4.21 (11) | Mutual Termination Agreement between Multicell Technologies, Inc. and Fusion Capital Fund II, LLC, dated as of July 18, 2007. | |
| 10.1 (12) | Letter Agreement between Amarin Neuroscience Limited and the Company dated October 26, 2006. | |
| 10.2 (13) | Letter Agreement between Amarin Neuroscience Limited and the Company dated June 28, 2006. | |
| 10.3 (14) | Worldwide Exclusive License Agreement dated as of December 31, 2005 between Multicell Technologies, Inc. and Amarin Neuroscience Limited dated December 31, 2005. | |
| 10.4 (15) | License Agreement between Eisai Co., Ltd. and the Company dated April 20, 2007. | |
| 10.5 (16) | License Agreement between Corning Incorporated and the Company dated October 9, 2007. | |
| 31.1* | Certification of the Chief Executive Officer and Chief Financial Officer pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002. | |
| 32.1* | Certification of Chief Executive Officer and the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
| * Filed herewith. | ||
(1) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on September 8, 2005.
(2) Incorporated by reference from an exhibit to our Post-Effective Amendment No. 1 to our Registration Statement on Form SB-2 filed on May 6, 2005.
(3) Incorporated by reference from an exhibit to our Form SB-2 Registration Statement filed on August 12, 2004.
(4) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on July 19, 2006.
(5) Incorporated by reference from an exhibit to our Current Report on Form 8-K/A filed on March 7, 2007.
(6) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on May 3, 2006.
(7) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on October 5, 2006.
(8) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on July 20, 2006.
(9) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on July 28, 2006.
(10) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on February 6, 2006.
(11) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on July 19, 2007.
(12) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on October 26, 2006.
(13) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on June 28, 2006.
(14) Incorporated by reference from an exhibit to our Post-Effective Amendment No. 1 to our Registration Statement on Form SB-2 filed on January 12, 2006.
(15) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on April 26, 2007.
(16) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on October 10, 2007
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