U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
(Check One)
|_| Registration statement pursuant to Section 12 of the Securities Exchange Act
of 1934
or
|X| Annual report pursuant to section 13(a) or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended June 30, 2004
Commission file number _______
YM BIOSCIENCES INC.
(Exact name of Registrant as specified in its charter)
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NOVA SCOTIA, CANADA 2836 NOT APPLICABLE
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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SUITE 400, BUILDING 11, 5045 ORBITOR DRIVE, MISSISSAUGA, ONTARIO, CANADA L4W 4Y4
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
TORYS LLP
237 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 880-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Securities registered or to be registered pursuant to
Section 12(b) of the Act.
Title of each class Name of each exchange on which registered
------------------- -----------------------------------------
Common Shares American Stock Exchange
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d)
of the Act: None
For annual reports, indicate by check mark the information
filed with this Form:
[X] Annual Information Form [X] Audited Annual Financial Statements
Indicate the number of outstanding shares of each of the issuer's classes
of capital or common stock as of the close of the period covered by the annual
report. COMMON SHARES OUTSTANDING AS AT JUNE 30, 2004: 28,684,591
Indicate by check mark whether the registrant by filing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934
(the "Exchange Act"). If "Yes" is marked, indicate the file number assigned to
the registrant in connection with such rule.
Yes |_| No |X|
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act 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 |X|
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FORM 40-F
PRINCIPAL DOCUMENTS.
The following documents, filed as Exhibits 99.1 through 99.3 hereto, are hereby
incorporated by reference into this Annual Report on Form 40-F:
a. Annual Information Form for the fiscal year ended June 30, 2004
b. Management's Discussion and Analysis of Financial Condition and Results of
Operations for the fiscal year ended June 30, 2004
c. Consolidated Financial Statements for the fiscal year ended June 30, 2004
ADDITIONAL DISCLOSURE
CERTIFICATIONS AND DISCLOSURE REGARDING CONTROL AND PROCEDURES.
(a) Certifications. See Exhibits 99.4, 99.5, 99.6 and 99.7 to this Annual
Report on Form 40-F.
(b) Disclosure controls and procedures. As of the end of YM BioSciences Inc.'s
(the "Company") fiscal year ended June 30, 2004, an evaluation of the
effectiveness of the Company's "disclosure controls and procedures" (as
such term is defined in Rules 13a-15(e) and 15d-15(e) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) was carried out by
the Company's Chief Executive Officer ("CEO") and Chief Financial Officer
("CFO"). Based upon that evaluation, the CEO and CFO have concluded that
as of the end of that fiscal year, the Company's disclosure controls and
procedures are effective to ensure that information required to be
disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the
time periods specified in Securities and Exchange Commission rules and
forms.
It should be noted that while the CEO and CFO believe that the Company's
disclosure controls and procedures provide a reasonable level of assurance
that they are effective, they do not expect that the Company's disclosure
controls and procedures or internal control over financial reporting will
prevent all errors and fraud. A control system, no matter how well
conceived or operated, can provide only reasonable, not absolute,
assurance that the objectives of the control system are met.
(c) Changes in Internal Control Over Financial Reporting. It should be noted
that, during fiscal 2004, the company issued third quarter interim
statements which subsequently required reissuance as a result of a number
of matters including reclassifaction of amounts between share capital and
share purchase warrants and incomplete disclosures as required by Canadian
GAAP. As a result, the company has now added an additional level of
internal review before the issuance of quarterly financial statements.
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NOTICES PURSUANT TO REGULATION BTR.
None.
AUDIT COMMITTEE FINANCIAL EXPERT.
The following member of the audit committee of the Board of Directors of the
Company is a "financial expert" within the meaning of the Exchange Act: Tyron
Williams. Such person is independent with the meaning of Section 10A(m)(3) of
the Exchange Act.
CODE OF ETHICS.
On October 19, 2004, the Company adopted a code of ethics that applies to its
principal executive officer, principal financial officer, principal accounting
officer or controller, and persons performing similar functions (the "Ethics
Code"). See Exhibits 99.9 to this Annual Report on Form 40-F.
The Ethics Code was not adopted during the fiscal year to which this Form 40-F
relates. There have been no amendments or waivers granted of any of the
provisions of the Ethics Code since it was adopted.
PRINCIPAL ACCOUNTANT FEES AND SERVICES.
The following table provides information about the fees billed to the registrant
for professional services rendered by KPMG LLP during fiscal 2004 and 2003:
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(Canadian $) 2004 2003
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Audit Fees $254,000 $50,000
Audit-Related Fees -- --
Tax Fees $ 35,100 $24,450
All Other Fees -- --
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Total $289,100 $74,450
==========================================================================
Audit Fees. Audit fees include fees for services that would normally be provided
by the external auditor in connection with statutory and regulatory filings or
engagements, including fees for services necessary to perform an audit or review
in accordance with generally accepted auditing standards. This category also
includes services that generally only the external auditor reasonably can
provide, including comfort letters, statutory audits, attest services, consents
and assistance with and review of certain documents filed with securities
regulatory authorities.
Audit-Related Fees. Audit-related fees are for assurance and related services,
such as due diligence services, that traditionally are performed by the external
auditor. More specifically, these services include, among others: employee
benefit plan audits, due diligence related to mergers and acquisitions,
accounting consultations and audits in connection with acquisitions, internal
control reviews, attest services that are not required by statute or regulation,
and consultation concerning financial accounting and reporting standards.
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Tax Fees. Tax fees are principally for assistance in tax return preparation and
tax advisory services.
All Other Fees. All other fees include fees for translation, litigation and
advisory support services.
PRE-APPROVAL POLICIES AND PROCEDURES.
The audit committee of the registrant's board of directors has adopted a policy
regarding the provision of services by the registrant's external auditors,
currently KPMG LLP. This policy requires audit committee pre-approval of all
permitted audit, audit-related and non-audit services.
Under the policy, all permitted services to be provided by KPMG must be
pre-approved by the audit committee or a designated member of the audit
committee. Any pre-approval granted by a designated member must be reported to
the audit committee at its next scheduled meeting. The pre-approval of services
may be given at any time up to a year before commencement of the specified
service.
Of the fees reported in this Annual Report on Form 40-F under the heading
"Principal Accountant Fees and Services" none of the fees billed by KPMG LLP
were approved by the audit committee of the Board of Directors of the Company
pursuant to the de minimis exception provided by Section (c)(7)(i)(C) of Rule
2-01 of Regulation S-X.
IDENTIFICATION OF THE AUDIT COMMITTEE.
The Company has a separately-designated standing audit committee established in
accordance with section 3(a)(58)(A) of the Exchange Act. The members of the
audit committee are: Thomas I. A. Allen, Henry Friesen and Tryon M. Williams.
OFF-BALANCE SHEET ARRANGEMENTS.
The Corporation has certain arrangements with our subsidiaries that have an
effect or may have a future effect on the Corporation's financial condition,
revenues or expenses, results of operations, liquidity, capital expenditures or
capital resources in that there is no assurance that funds advanced to our
subsidiaries will be reimbursed. The arrangements are described in notes 1, 4
and 9 of the financial statements. The Corporation makes provision for any
advances to the joint ventures that do not eliminate on consolidation such that
the Corporation has recorded 100% of the results of operations and cash flows of
these entities.
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TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS.
As of June 30, 2004, the only determinable future payments were those related
the operating lease obligations, which payments are set forth below.
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Contractual Obligations Total Less Than 1 1-3 Years 3-5 Years More Than
Year 5 Years
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Operating Lease (Expires $213,115 $58,632 $154,483 -- --
January 2008)
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Total $213,115 $58,632 $154,483 -- --
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In addition, as of June 30, 2004, the Company was party to certain licensing
agreements that require the Company to pay to licensors a proportion of any fees
that the Company may receive from sublicensees. The amounts of such fees are not
known.
Finally, during the fiscal year ended June 30, 2004, the Company entered into a
Clinical Research Services Agreement with Pharm-Olam International, Ltd.
("POI"), dated March 10, 2004. The Company has contracted with POI to conduct a
Phase III clinical trial on its behalf with tesmilifene in metastatic and
recurrent breast cancer. POI in turn is contracting with others to perform
services and to recruit and treat patients. The contract with POI is payable
over the term of the trial and payments due are dependent on the number of
patients recruited, number of countries trials are conducted in, the length of
time over which the clinical trials are to be conducted and the time for
completion of all Phase III clinical trials. The Company is liable for certain
payments of clinical services costs, data management costs and pass through
costs. The Company can terminate this contract by providing 30 days' notice and
payment of a penalty of 10% of any remaining commitment.
The Company plans to continue the clinical development of tesmilifene and
NorelinTM and is in discussion with others regarding additional clinical trials
for TheraCIM. There are also ongoing activities directed at licensing out
tesmilifene and TheraCIM. The Company anticipates that it has sufficient cash to
support its current development program to beyond the end of fiscal 2006.
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UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
A. UNDERTAKING.
The Company undertakes to make available, in person or by telephone,
representatives to respond to inquiries made by the Securities and Exchange
Commission (the "Commission") staff, and to furnish promptly, when requested to
do so by the Commission staff, information relating to: the securities
registered pursuant to Form 40-F; the securities in relation to which the
obligation to file an annual report on Form 40-F arises; or transactions in said
securities.
B. CONSENT TO SERVICE OF PROCESS.
The Company has previously filed a Form F-X in connection with the class of
securities in relation to which the obligation to file this report arises.
Any change to the name or address of the agent for service of process of the
registrant shall be communicated promptly to the Securities and Exchange
Commission by an amendment to the Form F-X referencing the file number of the
relevant registration statement.
SIGNATURES
Pursuant to the requirements of the Exchange Act, the registrant certifies that
it meets all of the requirements for filing on Form 40-F and has duly caused
this annual report to be signed on its behalf by the undersigned, thereunto duly
authorized, on November 12, 2004.
YM BIOSCIENCES INC.
By: /s/ Len Vernon
--------------------------------------
Name: Len Vernon
Title: Director, Finance and
Administration
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EXHIBIT INDEX
Exhibit Description
99.1 Annual Information Form for the fiscal year ended June 30, 2004
99.2 Management's Discussion and Analysis of Financial Condition and
Results of Operations for the fiscal year ended June 30, 2004
99.3 Consolidated Financial Statements for the fiscal year ended June 30,
2004
99.4 Certification of Chief Executive Officer pursuant to Rule 13a-14(a) or
15d-14 of the Securities Exchange Act of 1934
99.5 Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or
15d-14 of the Securities Exchange Act of 1934
99.6 Section 1350 Certification of Chief Executive Officer
99.7 Section 1350 Certification of Chief Financial Officer
99.8 Consent of KPMG LLP
99.9 Code of Ethics
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