UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended September 30, 2008
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ______________to________________
Commission file number 000-50331
UPSTREAM BIOSCIENCES INC.
(Exact name of registrant as specified in its charter)
Nevada 98-0371433
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 200 - 1892 West Broadway, Vancouver, British
Columbia, Canada V6J 1Y9
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 604.638.1674
Securities registered under Section 12(b) of the Act:
None N/A
Title of each class Name of each exchange on which registered
Securities registered under Section 12(g) of the Act:
Common Stock, $0.001 par value
(Title of class)
Indicate by checkmark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by checkmark if the registrant is not required to file reports pursuant
to Section 13 or 15(d) of the Act. Yes [ ] No [X]
Indicate by checkmark whether the registrant has (1) 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 [ ]
Indicate by checkmark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (ss. 229.405 of this chapter) is not contained herein, and will
not 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. [ ]
Indicate by checkmark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [X]
(Do not check if a small reporting company)
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Act). Yes [ ] No [X]
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 last sold, or the average bid and asked price of such common equity, as of
the last business day of the registrant's most recently completed second fiscal
quarter: $786,019.69 based on a price of $0.0315 per share, being the average
bid and asked price of such common equity as of March 31, 2008.
APPLICABLE ONLY TO REGISTRANTS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PAST FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [ ] No [ ] N/A
(APPLICABLE ONLY TO CORPORATE REGISTRANTS)
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date. 49,453,006 shares of common
stock as of December 19, 2008.
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents if incorporated by reference and the Part
of the Form 10-K (e.g., Part I, Part II, etc.) into which the document is
incorporated: (1) any annual report to security holders; (2) any proxy or
information statement; and (3) any prospectus filed pursuant to Rule 424(b) or
(c) of the Securities Act of 1933. The listed documents should be clearly
described for identification purposes (e.g., annual report to security holders
for fiscal year ended December 24, 1980). Not Applicable
PART I
FORWARD LOOKING STATEMENTS.
This report contains forward-looking statements. Forward-looking statements are
projections in respect of future events or our future financial performance. In
some cases, you can identify forward-looking statements by terminology such as
"may", "should", "intends", "expects", "plans", "anticipates", "believes",
"estimates", "predicts", "potential", or "continue" or the negative of these
terms or other comparable terminology. These statements are only predictions and
involve known and unknown risks, uncertainties and other factors, including the
risks in Item 1A "Risk Factors" commencing on page 7 of this report, which may
cause our or our industry's actual results, levels of activity or performance to
be materially different from any future results, levels of activity or
performance expressed or implied by these forward-looking statements.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity or performance. Except as required by applicable law, including the
securities laws of the United States, we do not intend to update any of the
forward-looking statements to conform these statements to actual results.
In this report, unless otherwise specified, all dollar amounts are expressed in
United States dollars and all references to "common shares" refer to the common
shares in our capital stock.
As used in this report and unless otherwise indicated, the terms "we", "us" and
"our" refer to Upstream Biosciences Inc. and our wholly-owned subsidiaries.
ITEM 1. BUSINESS
We were incorporated pursuant to the laws of the State of Nevada on March 20,
2002 under the name Integrated Brand Solutions Inc. and on February 6, 2006, we
changed our name to Upstream Biosciences Inc. We are a company engaged in the
business of developing and commercializing genetic biomarkers and biotechnology
drugs.
We have not generated any revenues from our technologies to date. We are a
development stage company and we anticipate that we will require significant
time and financing before our technologies are developed to a marketable state.
Without adequate funding, it is management's intention to wait until sufficient
financial resources exist prior to spending additional and significant funds for
the commercialization of our genetic biomarker program. Our company's management
and Board of Directors will continue to evaluate and determine the most
effective use of available funds for its future research and development
programs, including those programs related to diagnostic biomarkers, biomarkers
for a drug response assay, as well as our drug development research and
development efforts. Depending on the level of financing and resources available
to us, we may further develop our pharmaceutical business, or biomarker
business, or if possible, both. Once we have developed our technologies to
commercialization, we could generate revenues in one of several ways. We may
elect to sell directly to customers, license our diagnostic biomarkers and/or
our drug candidates to third parties or we may elect to enter into joint
ventures or other collaborations with third parties such as pharmaceutical,
biotechnology and diagnostics companies, with the aim that they will develop and
commercialize our discoveries into therapeutic, biopharmaceutical or diagnostic
products. If such a collaboration is successful, we will seek to receive
payments upon the successful completion of certain predetermined developmental
stages and milestones, and receive royalties from the sales of the drugs and/or
diagnostics kits, which will be based on our discoveries.
BIOTECHNOLOGY DRUGS
On August 24, 2007, we acquired 100% of Pacific Pharma Technologies Inc. a
Canadian early stage biopharmaceutical company that has developed a proprietary
technology platform that combines artificial intelligence, advanced
computational methods and chemical diversity techniques to discover new drug
candidates. As of the closing date, we commenced the business of developing
biotechnology drugs for certain infectious diseases and cancers. Our business
strategy is to generate revenues through either licensing of our technology or
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sales of our products once commercial or collaborating with third party
companies that develop and/or market biopharmaceuticals and pharmaceuticals
internationally.
Pacific Pharma Technologies was acquired by our company from its founders, Mr.
Gary Morrison and Dr. Artem Cherkasov. The technology, together with several
compounds that were identified by Pacific Pharma Technologies' founders as
potential drug candidates for pre-clinical testing, were developed by Dr. Artem
Cherkasov, a faculty member in the Department of Infectious Diseases in the
Faculty of Medicine at the University of British Columbia, and the current
Chairman of our Scientific Advisory Board. Subsequent to the acquisition of
Pacific Pharma Technologies, Dr. Artem Cherkasov entered into a multi-year
consulting agreement with our company. On December 31, 2007, we entered into an
amended consulting agreement whereby Dr. Cherkasov provided his consulting
services through JTAT Consulting, a proprietorship owned by Dr. Cherkasov and
his spouse. This agreement was subsequently amended on March 10, 2008 (effective
March 1, 2008).
The technology developed by Pacific Pharma Technologies, and subsequently
acquired by our company, has generated novel compounds that in preliminary and
pre-clinical laboratory studies suggest human and veterinary potential against
certain tropical parasitic diseases. Screening analyses and diversity generation
chemistry are then applied to produce an array of potential drug candidates. On
June 13, 2007, Pacific Pharma Technologies through Dr. Artem Cherkasov, filed a
provisional patent with the United States Patent and Trademark Office with
respect to technology developed by its founders entitled "Anti-Parasitic
Compounds and Methods for Selection Thereof" and this provisional patent was
re-filed by our company on July 2, 2008. On August 13, 2008, we re-filed our
provisional patent entitled "Method for combining 3D quantitative chemical
structure activity relationships (QSAR) of compounds with genetic variation of
drug targets and metabolic enzymes to optimize efficacy, provide predictive
toxicology, and address drug resistant microorganisms" based on technology
developed post-acquisition of Pacific Pharma Technologies as "Three-Dimensional
Genetic-Variant QSAR Methods".
We plan to further develop and improve upon these drug candidate compounds
through additional pre-clinical and clinical studies, in order to successfully
commercialize them.
GENETIC BIOMARKERS
Our company is developing genetic diagnostic biomarkers for use in determining a
patient's susceptibility to disease and predicting a patient's response to
drugs. Our business strategy is to generate revenues through licensing our
technologies or collaborating with third parties in the disease susceptibility,
biomarkers identification, and drug response areas of cancer, primarily to
companies that develop and/or market developing diagnostic products.
Our company focuses our research on variations in the untranslated regions of
the human genome. Variations in these regions can be used as diagnostic markers
to predict or aid in the prediction of susceptibility to disease or to predict a
patient's response to drugs. On June 27, 2008, we re-filed a provisional patent
application on genetic markers that, following successful development and
testing, may assist in determining the susceptibility of patients to liver
cancer. These markers may also be important for determining the susceptibility
of patients to other types of cancer, such as prostate or other cancers. On June
27, 2008, we re-filed a provisional patent application on an assay for
identifying genetic markers that may predict a patient's response to a drug
entitled "In-Vivo Assay, Database and Software Algorithm for using Liver Enzyme
CIS-Regulatory Allelic Binding Affinities to Profile and Predict a Haplotype's
Drug Response". On August 13, 2008, we re-filed the three provisional patents
that related to genetic biomarkers for prostate, ovarian and thyroid cancer
susceptibility.
We incorporate data, ideas and methods from disciplines such as mathematics,
computer science, biochemistry, evolutionary biology, literature mining, pattern
recognition and network analysis and apply such information in a manner that
permits us to understand the genetic basis of human disease and the role that
variations in genes and their related gene regulatory regions play in the onset
of disease, particularly cancer. If successful, we believe that our research and
development will result in predictive models, discovery engines and related
technologies, which will enable us to develop potential diagnostic markers. The
presence, absence, varying quantities, and varying composition of molecules
provide information about the development of a disease or other physiological
condition. A molecule that provides this information is referred to as a
diagnostic marker. In order to develop a diagnostic marker, we must identify a
correlation between the presence of a particular variation of a molecule and a
disease or other physiological condition. Once a correlation is identified, we
must develop a method for identifying the correlation. Our goal is to develop
our research into marketable diagnostic markers that are easy to perform,
sensitive, consistent, safe, inexpensive, and cover an attractive market
segment.
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We are developing platforms and related technologies that we hope will enable
the discovery of marketable diagnostic markers to aid in the disease
susceptibility and drug response areas of cancer. We are developing our
technologies which will enable us to identify and prioritize potential
diagnostic markers. Our goal is to develop our platforms and related
technologies to identify a variety of novel gene regulatory regions with
potential applications in diagnostics. Our business strategy is to understand
the relationship between genetic regulation, proteins and human diseases in
order to develop molecular diagnostic products. Through our research and
development, we intend to identify important disease genes, the proteins they
produce, and the biological pathways in which they are involved to better
understand the underlying molecular basis for the cause of human disease.
COMPETITION
The biotechnology and pharmaceutical industries are highly competitive. Numerous
entities in the United States and elsewhere compete with our efforts to
commercialize our technologies. Our competitors include pharmaceutical,
biomedical, biotechnology and diagnostic companies, academic and research
institutions and governmental and other publicly and privately funded research
agencies. We face, and expect to continue to face, competition from these
entities to the extent that they develop products that have a function similar
or identical to the function of our technologies. We also face, and expect to
continue to face, competition from entities that seek to discover therapeutic
and diagnostic products.
Because many of our competitors have substantially greater capital resources and
more experience in research and development, manufacturing and marketing than we
do, we may not succeed in developing our proposed products and bringing them to
market in a cost-effective and timely manner.
We are a development stage company engaged exclusively in research and
development. We have not yet completed the development of our first product and
have no revenue from operations. As a result, we may have difficulty competing
with larger, established biomedical and pharmaceutical companies and
organizations. Within the global genetic biomarker industry, examples of
publicly traded companies include: Compugen, Ltd., Epigenomics AG, Myriad
Genetics, Inc. and Diagnocure Inc.. Within the global pharmaceutical industry,
examples of publicly traded companies involved in the development of drugs to
treat infectious diseases include: GlaxoSmithKline plc, Johnson & Johnson,
Novartis AG, Pfizer Inc. and Schering-Plough Corporation. These companies and
organizations have much greater financial, technical, research, marketing,
sales, distribution, service and other resources than us. Moreover, they may
offer broader product lines, services and have greater name recognition than we
do, and may offer discounts as a competitive tactic.
The technologies for discovering both drugs and genes that predispose persons to
major diseases and approaches for commercializing those discoveries are new and
rapidly evolving. Rapid technological developments may result in our potential
services, products, or processes becoming obsolete before we recover a
significant portion of our related research and development costs and any
capital expenditures that we may incur. If we do not discover additional drug
candidates or disease-predisposing genes, characterize their functions, develop
predictive medicine products and related information services based on such
discoveries, obtain regulatory and other approvals, launch such services or
products before our competitors, and receive adequate financing to cover our
operating costs, we may be adversely affected. Moreover, any products and
technologies that we may develop may be made obsolete by less expensive or more
effective drugs or tests or methods that may be developed from our competitors
in the future.
INTELLECTUAL PROPERTY
PATENT APPLICATIONS
Our company has filed seven original provisional patent applications. Our
company re-files provisional patents with the US Patent and Trademark Office on
an annual basis, prior to completing an initial patent filing as part of our
overall intellectual property strategy. We have identified and filed provisional
patent applications on genetic markers that, following successful development
and testing, may assist in determining the susceptibility of patients to liver
cancer, prostate cancer, ovarian cancer, thyroid cancer, as well as, an assay
for identifying genetic markers that may predict a patient's response to a drug.
On June 13, 2007, Pacific Pharma Technologies through Dr. Artem Cherkasov, filed
a provisional patent with the United States Patent and Trademark Office with
respect to technology developed by its founders entitled "Anti-Parasitic
Compounds and Methods for Selection Thereof" and this provisional patent was
re-filed by our company on July 2, 2008. On August 13, 2008, we re-filed our
4
provisional patent entitled "Method for combining 3D quantitative chemical
structure activity relationships (QSAR) of compounds with genetic variation of
drug targets and metabolic enzymes to optimize efficacy, provide predictive
toxicology, and address drug resistant microorganisms" based on technology
developed post-acquisition of Pacific Pharma Technologies as "Three-Dimensional
Genetic-Variant QSAR Methods".
The validity and breadth of claims in medical technology patents involve complex
legal and factual questions and, therefore, may be highly uncertain. No
assurance can be given that any patents based on pending patent applications or
any future patent applications by us, or any future licensors, will be issued,
that the scope of any patent protection will exclude competitors or provide
competitive advantages to us, that any of the provisional patent applications
that have been or may be issued to us or our licensors will be held valid if
subsequently challenged or that others will not claim rights in or ownership of
the provisional patent applications and other proprietary rights held or
licensed by us. Furthermore, there can be no assurance that others have not
developed or will not develop similar products, duplicate any of our technology
or design around any patents that may be issued to us or our licensors. Since
provisional patent applications in the United States are maintained in secrecy
until patents are issued, we also cannot be certain that others have not or will
not file prior applications for inventions covered by our, and our licensors'
pending patent applications, nor can we be certain that we will not infringe any
patents that may be issued to others on such applications.
Our success will also depend in part on our ability to commercialize our
technology without infringing the proprietary rights of others. We have not
conducted freedom of use patent searches and no assurance can be given that
patents do not exist or could not be filed which would have an adverse affect on
our ability to market our technology or maintain our competitive position with
respect to our technology. If our technologies or subject matter are claimed
under other existing United States or foreign patents or are otherwise protected
by third party proprietary rights, we may be subject to infringement actions. In
such event, we may challenge the validity of such patents or other proprietary
rights or we may be required to obtain licenses from such companies in order to
develop, manufacture or market our technology. There can be no assurances that
we will be able to obtain such licenses or that such licenses, if available, may
be obtained on commercially reasonable terms. Furthermore, the failure to either
develop a commercially viable alternative or obtain such licenses may result in
delays in marketing our proposed technology or the inability to proceed with the
development, manufacture or sale of products requiring such licenses, which may
have a material adverse affect on our business, financial condition and results
of operations. If we are required to defend ourselves against charges of patent
infringement or to protect our proprietary rights against third parties,
substantial costs will be incurred regardless of whether we are successful. Such
proceedings are typically protracted with no certainty of success. An adverse
outcome could subject us to significant liabilities to third parties and force
us to curtail or cease our development and commercialization of our technology.
DOMAIN NAMES
We own and operate the following registered internet domain name:
www.upstreambio.com. The information contained on our website does not form part
of this annual report.
GENERAL
We also rely on trade secrets and unpatentable know-how that we seek to protect,
in part, by confidentiality agreements. We intend to require all future
employees, consultants, contractors, manufacturers, outside scientific
collaborators and sponsored researchers, directors on our board, technical
review board and other advisors to execute confidentiality agreements upon the
commencement of employment or consulting relationships with us. These agreements
will provide that all confidential information developed or made known to the
individual during the course of the individual's relationship with us is to be
kept confidential and not disclosed to third parties except in specific limited
circumstances. We intend to require signed confidentiality or material transfer
agreements from any company that receives confidential information from our
company. We intend to ensure that, in the case of employees, consultants and
contractors, any agreements that our company enters into with such persons will
generally provide that all inventions conceived by the person while rendering
services to us shall be assigned to us as the exclusive property of our company.
We can offer no assurance, however, that all persons who we seek to sign such
agreements will sign, or if they do, that these agreements will not be breached,
that we will have adequate remedies for any breach, or that our trade secrets or
unpatentable know-how will not otherwise become known or be independently
developed by competitors.
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GOVERNMENTAL REGULATION
Our research and development activities and the manufacturing and marketing of
our technology are subject to the laws and regulations of governmental
authorities in the United States and any other countries in which our technology
is ultimately marketed. In the United States, the Food and Drug Administration,
or FDA, among other activities, regulates new product approvals to establish
safety and efficacy guidelines of the types of products and technologies our
company is currently developing. Governments in other countries have similar
requirements for testing and marketing.
Regulation by governmental authorities in the United States and foreign
countries is a significant factor in the development, manufacture and marketing
of our proposed technologies and in our ongoing research and development
activities.
The products and technologies that we are currently researching and developing
will require regulatory approval by governmental agencies prior to
commercialization. Various federal statutes and regulations also govern or
influence the testing, manufacturing, safety, labeling, storage, record keeping,
and marketing of therapeutic products. The process of obtaining these approvals
and the subsequent compliance with applicable statutes and regulations require
the expenditure of substantial time and financial resources. Any failure by us
or our collaborators, licensors or licensees to obtain, or any delay in
obtaining regulatory approval, could have a material adverse effect on our
business.
FDA APPROVAL
In the United States of America, the U.S. Food and Drug Agency (the "FDA") sets
out guidelines for clinical trials which are conducted in order to obtain
approval. Other countries have separate regulatory agencies that carry out
similar functions to approve devices and drugs for medical use within their
respective territories. Clinical trials are required to find effective
treatments to improve health. All clinical trials are based on a protocol which
is a study plan that describes the type of people who may participate in the
trial, the schedule of tests and procedures, and the length of the study.
Most clinical trials in the United States must be approved and monitored by an
Institutional Review Board, or IRB, to make sure the risks of the trial are as
low as possible and are worth any potential benefits. All institutions that
conduct or support biomedical research are required by federal regulation to
have an IRB that initially approves and periodically reviews the research.
Upon successful completion of a clinical trial validation study, an application
based on the results of the clinical trial is submitted for FDA approval. Upon
receipt of FDA approval, the diagnostic screening test or drug is ready for
commercialization.
In the United States, clearance or approval to commercially distribute new
medical devices or products is received from the FDA through clearance of a
510(k) pre-market notification, or 510(k), or approval of a premarket approval
application, or PMA. It may take from three to nine months from submission to
obtain 510(k) clearance, but may take longer or clearance may not be obtained at
all. The FDA may determine that additional information is needed before approval
to distribute the product is given.
For any products that are cleared through the 510(k) pre-market notification
process, modifications or enhancements that may significantly affect safety or
constitute a major change in the intended use of the product will require new
510(k) submissions.
A PMA application must be filed if a proposed product is not substantially
equivalent to a medical product first marketed prior to May 1976, or if
otherwise required by the FDA. The PMA approval process can be expensive,
uncertain and lengthy, and a number of products for which other companies have
sought FDA approval of a PMA application have never been approved for marketing.
It generally takes from six to eighteen months from submission to obtain PMA
approval, but it may take longer or the submission may not be approved at all.
In order to obtain FDA approval of a new medical product, sponsors must
generally submit proof of safety and efficacy. In some cases, such proof entails
extensive pre-clinical and clinical laboratory tests. The testing and
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preparation of necessary applications and processing of those applications by
the FDA is expensive and may take several years to complete. There can be no
assurance that the FDA will act favorably or in a timely manner in reviewing
submitted applications, and we may encounter significant difficulties or costs
in our efforts to obtain FDA approval. Such circumstances may delay or preclude
us from marketing any products we may develop. The FDA may also require
post-marketing testing and surveillance of approved products, or place other
conditions on the approvals. These requirements may create difficulties for our
company to sell the products and may increase the costs of such products which
may restrict the commercial applications of such products. Product approvals may
be withdrawn if compliance with regulatory standards is not maintained or if
problems occur following initial marketing. For patented technologies, delays
imposed by the governmental approval process may materially reduce the period
during which we will have the exclusive right to exploit such technologies.
If human clinical trials of a proposed medical product are required, the
manufacturer or distributor of the product will have to file an Investigational
Device Exemption or Investigational New Drug submission with the FDA prior to
commencing human clinical trials. The submission must be supported by data,
typically including the results of pre-clinical and laboratory testing.
Following submission of the Investigational Device Exemption or Investigational
New Drug, the FDA has 30 days to review the application and raise safety and
other clinical trial issues. If we are not notified of objections within that
period, clinical trials may be initiated, and human clinical trials may commence
at a specified number of investigational sites with the number of patients
approved by the FDA.
RESEARCH AND DEVELOPMENT
Our research and development costs primarily consist of research programs
related to the development of drug candidates for the treatment of certain
infectious diseases and cancers. We estimate that our research and development
cash expenditures, for the next twelve months will be approximately $350,000 as
follows: $150,000 allocation of management salaries, $50,000 for contract
research and development services from Dr. Artem Cherkasov and $150,000 for
third party lab and testing services. These amounts exclude the contingent
payments of company common equity that may be required if specific milestone
discoveries are achieved.
Our company incurred a total of $882,433 in research and development costs for
the year ended September 30, 2008, consisting of $353,320 in cash expenses and
$529,113 in stock expenses, including the Malaria milestone achievement of
1,000,000 shares valued at $362,400. This was an increase from the year ended
September 30, 2007 where we incurred a total of $160,107 in research and
development costs, consisting of $155,265 in cash expenses and $4,842 in stock
expenses.
EMPLOYEES
We currently have two employees consisting of Joel Bellenson as our Chief
Executive Officer and Dexster Smith as our President, Secretary and Treasurer.
Tim Fernback acts as our Chief Financial Officer pursuant to the terms of a
management contract between our company and TCF Ventures Corp., a company
wholly-owned by Mr. Fernback. We have also entered into a consulting services
agreement with a company owned by Dr. Artem Cherkasov to pay $49,250 (C$50,000)
per year plus an equity component of $193,000 (C$200,000) in restricted common
shares until the agreement expires July 31, 2010. We will hire additional
employees when circumstances warrant.
CUSTOMERS
As we are in the development stage of our business, we do not currently have any
customers of our technologies.
SUPPLIERS
Our company is not reliant upon any suppliers for the research and development
of our technologies.
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ITEM 1A. RISK FACTORS
RISKS RELATED TO OUR BUSINESS
WE HAVE HAD NEGATIVE CASH FLOWS FROM OPERATIONS SINCE INCEPTION. WE WILL REQUIRE
SIGNIFICANT ADDITIONAL FINANCING, THE AVAILABILITY OF WHICH CANNOT BE ASSURED,
AND IF OUR COMPANY IS UNABLE TO OBTAIN SUCH FINANCING, OUR BUSINESS MAY FAIL.
To date, we have had negative cash flows from operations and have depended on
sales of our equity securities and debt financing to meet our cash requirements.
Our ability to develop and, if warranted, commercialize our technologies, will
be dependent upon our ability to raise significant additional financing. If we
are unable to obtain such financing, we will not be able to fully develop our
business. Specifically, we will need to raise additional funds to:
* pay our existing and accrued liabilities;
* support our planned growth and carry out our business plan;
* continue scientific progress in our research and development programs;
* address costs and timing of conducting clinical trials and seek
regulatory approvals and patent prosecutions;
* address competing technological and market developments;
* establish additional collaborative relationships; and
* market and develop our technologies.
In light of the current financial crises, financing for companies such as ours
is very difficult to obtain. Even if financing is available, it may not be
available on terms that are favorable to us or in sufficient amounts to satisfy
our requirements. If we require, but are unable to obtain, additional financing
in the future, we may be unable to implement our business plan and our growth
strategies, respond to changing business or economic conditions, withstand
adverse operating results and compete effectively. Without additional funds, we
may not be able to pay our employees or contracts to provide services, and these
same employees or service providers may have to either accept accruals or common
shares, or a combination of both, for compensation. More importantly, if we are
unable to raise further financing when required, we may be forced to scale down
our operations and our ability to continue operations may be negatively
affected.
WE HAVE A HISTORY OF LOSSES AND NOMINAL OPERATING RESULTS, WHICH RAISE
SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
Since inception through the fiscal year ended September 30, 2008, we have
incurred aggregate net losses of $5,753,667. We can offer no assurance that we
will operate profitably or that we will generate positive cash flow in the
future. In addition, our operating results in the future may be subject to
significant fluctuations due to many factors not within our control, such as the
level of competition and general economic conditions.
Our company's operations will be subject to all the risks inherent in the
establishment of a developing enterprise and the uncertainties arising from the
absence of a significant operating history. No assurance can be given that we
may be able to operate on a profitable basis.
Due to the nature of our business and the early stage of our development, our
securities must be considered highly speculative. We are engaged in the business
of developing and commercializing genetic biomarkers and biotechnology drugs,
which technology is in the development stage and we have not commenced the
regulatory approval process for our technology. We have not realized a profit
from our operations to date and there is little likelihood that we will realize
any profits in the short or medium term. Any profitability in the future from
our business will be dependent upon the successful commercialization or
licensing of our core technology, which itself is subject to numerous risk
factors as set forth herein.
We expect to continue to incur development costs and operating costs.
Consequently, we expect to incur operating losses and negative cash flows until
our technology gains market acceptance sufficient to generate a sustainable
level of income from the commercialization or licensing of our technology. Our
8
history of losses and nominal operating results raise substantial doubt about
our ability to continue as a going concern, as described in the explanatory
paragraph in our company's independent registered public accounting firm's audit
report dated November 27, 2008 which is included in our annual report on Form
10-K.
WE HAVE IDENTIFIED A NUMBER OF MATERIAL WEAKNESSES RELATED TO OUR INTERNAL
CONTROL OVER FINANCIAL REPORTING AND CONCLUDED THAT OUR INTERNAL CONTROL OVER
FINANCIAL REPORTING AND DISCLOSURE CONTROLS AND PROCEDURES WERE INEFFECTIVE AS
OF SEPTEMBER 30, 2008. THESE MATERIAL WEAKNESSES REMAIN UNREMEDIED, WHICH COULD
CONTINUE TO IMPACT OUR ABILITY TO REPORT RESULTS OF OPERATIONS AND FINANCIAL
CONDITION ACCURATELY AND IN A TIMELY MANNER.
We have identified a number of material weaknesses in our internal control over
financial reporting. Our management assessed the effectiveness of our internal
control over financial reporting and disclosure controls and procedures as at
September 30, 2008 pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 and
the related SEC rules and concluded that our internal control over financial
reporting and disclosure controls and procedures were not effective as at
September 30, 2008. Specifically, they concluded that four material weaknesses
existed as at September 30, 2008 which are set out in Item 9A under the heading
"Management's Report on Internal Control Over Financial Reporting". Although we
intend to remediate such material weaknesses as set out in Item 9A, we have not
yet been able to address these material weaknesses and they may continue to
remain unremedied for some time, which could adversely impact the accuracy and
timeliness of future reports and filings we make to the SEC and could have a
material adverse effect on our business, results of operations, financial
condition and liquidity.
WE CURRENTLY HOLD NO PATENTS ON OUR PROPRIETARY TECHNOLOGY AND IF WE ARE NOT
ABLE TO PROTECT OUR PROPRIETARY TECHNOLOGY, OUR COMPANY WILL SUFFER A MATERIAL
ADVERSE EFFECT.
We currently have provisional patent applications filed on our technologies. We
currently rely on the provisional patent applications and trade secrets to
protect our proprietary intellectual property.
The departure of any of our management or any significant technical personnel or
consultants we may hire in the future, the breach of their confidentiality and
non-disclosure obligations, or the failure to achieve our intellectual property
objectives may have a material adverse effect on our business, financial
condition and results of operations. We believe our success depends upon the
knowledge and experience of our management and our ability to market our
existing technology and to develop new technologies.
While we believe that we have adequately protected our proprietary technology,
and we intend to take all appropriate and reasonable legal measures to protect
it in the future, the use of our technology by a competitor could have a
material adverse effect on our business, financial condition and results of
operations. Our ability to compete successfully and achieve future revenue
growth will depend, in part, on our ability to protect our proprietary
technology and operate without infringing upon the rights of others. We may not
be able to successfully protect our proprietary technology, and our proprietary
technology may otherwise become known or similar technology may be independently
developed by competitors. Competitors may discover novel uses, develop similar
or more marketable technologies or offer services similar to our company at
lower prices. We cannot predict whether our technologies and services will
compete successfully with the technologies and services of existing or emerging
competitors.
OUR INABILITY TO COMPLETE OUR PRODUCT DEVELOPMENT ACTIVITIES SUCCESSFULLY MAY
SEVERELY LIMIT OUR ABILITY TO OPERATE AND FINANCE OPERATIONS.
Commercialization of our core technologies will require significant additional
research and development as well as substantial clinical trials. For our
biomarker technologies, we believe that the United States will be the principal
market for our technology, although we may elect to expand into Japan and
Western Europe. With regards to our drug technologies for certain infectious
diseases and cancers, we believe that Africa, the Middle East and Asia will be
the principal market for our technology, although we may elect to expand into
Central and South America, Europe and North America. We may not be able to
successfully complete development of our core technology, or successfully market
our technology. We, and any of our potential collaborators, may encounter
problems and delays relating to research and development, regulatory approval
and intellectual property rights of our technology. Our research and development
programs may not be successful. Our core technology may not prove to be safe and
efficacious in clinical trials, and we may not obtain the intended regulatory
approvals for our core technology. Whether or not any of these events occur, we
9
may not have adequate resources to continue operations for the period required
to resolve the issue delaying commercialization and we may not be able to raise
capital to finance our continued operations during the period required for
resolution of that issue.
WE MAY LOSE OUR COMPETITIVENESS IF WE ARE NOT ABLE TO PROTECT OUR PROPRIETARY
TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS AGAINST INFRINGEMENT, AND ANY
RELATED LITIGATION MAY BE TIME-CONSUMING AND COSTLY.
Our success and ability to compete depends to a significant degree on our
proprietary technology. If any of our competitors copy or otherwise gain access
to our proprietary technology or develop similar technologies independently, we
may not be able to compete as effectively. The measures we have implemented to
protect our proprietary technology and other intellectual property rights are
currently based upon a combination of provisional patent applications,
technology licenses and trade secrets. This, however, may not be adequate to
prevent the unauthorized use of our proprietary technology and our other
intellectual property rights. Further, the laws of foreign countries may provide
inadequate protection of such intellectual property rights. We may need to bring
legal claims to enforce or protect such intellectual property rights. Any
litigation, whether successful or unsuccessful, may result in substantial costs
and a diversion of our company's resources. In addition, notwithstanding our
rights to our intellectual property, other persons may bring claims against us
alleging that we have infringed on their intellectual property rights or claims
that our intellectual property rights are not valid. Any claims against us, with
or without merit, could be time consuming and costly to defend or litigate,
divert our attention and resources, result in the loss of goodwill associated
with our business or require us to make changes to our technology.
IF OUR PROVISIONAL PATENT APPLICATIONS AND PROPRIETARY RIGHTS DO NOT PROVIDE
SUBSTANTIAL PROTECTION, THEN OUR BUSINESS AND COMPETITIVE POSITION WILL SUFFER.
Our success depends in large part on our ability to develop, commercialize and
protect our proprietary technology. However, patents may not be granted on any
of our provisional or future patent applications. Also, the scope of any future
patent may not be sufficiently broad to offer meaningful protection. In
addition, any patents granted to us in the future may be successfully
challenged, invalidated or circumvented so that such patent rights may not
create an effective competitive barrier.
OUR COMPANY MAY BECOME SUBJECT TO INTELLECTUAL PROPERTY LITIGATION WHICH MAY
HARM OUR BUSINESS.
Our success depends in part on our ability to develop commercially viable
products without infringing the proprietary rights of others. Although we have
not been subject to any filed infringement claims, other patents could exist or
could be filed which may prohibit or limit our ability to market our products or
maintain a competitive position. In the event of an intellectual property
dispute, we may be forced to litigate. Intellectual property litigation may
divert management's attention from developing our technology and may force us to
incur substantial costs regardless of whether we are successful. An adverse
outcome could subject us to significant liabilities to third parties, and force
us to curtail or cease the development and commercialization of our technology.
IF OUR COMPANY COMMERCIALIZES OR TESTS OUR TECHNOLOGY, OUR COMPANY WILL BE
SUBJECT TO POTENTIAL PRODUCT LIABILITY CLAIMS THAT MAY AFFECT OUR EARNINGS AND
FINANCIAL CONDITION.
We face an inherent business risk of exposure to product liability claims in the
event that the use of our core technology during research and development
efforts, including clinical trials, or after commercialization, results in
adverse effects. As a result, we may incur significant product liability
exposure, which may exceed any insurance coverage that we obtain in the future.
Even if we elect to purchase such issuance in the future, we may not be able to
maintain adequate levels of insurance at reasonable cost and/or reasonable
terms. Excessive insurance costs or uninsured claims may increase our operating
loss and affect our financial condition.
WE HAVE NOT GENERATED ANY REVENUES FROM OPERATIONS AND IF WE ARE UNABLE TO
DEVELOP MARKET SHARE AND GENERATE SIGNIFICANT REVENUES FROM THE
COMMERCIALIZATION OR LICENSING OF OUR TECHNOLOGY, THEN OUR BUSINESS MAY FAIL.
We operate in a highly competitive industry and our failure to compete
effectively and generate income through the commercialization or licensing of
our technology may adversely affect our ability to generate revenue. The
business of developing genetic biomarkers and biotechnology drug development are
both highly competitive and subject to frequent technological innovation with
improved price and/or performance characteristics. There can be no assurance
that our new or existing technologies will gain market acceptance. Management is
10
aware of similar technologies that our technology, when developed to a stage of
commercialization, will compete directly against. Many of our competitors have
greater financial, technical, sales and marketing resources, better name
recognition and a larger customer base than ours. In addition, many of our large
competitors may offer customers a broader or superior range of services and
technologies. Some of our competitors may conduct more extensive promotional
activities and offer lower commercialization and licensing costs to customers
than we do, which could allow them to gain greater market share or prevent us
from establishing and increasing our market share. Increased competition in the
genetic biomarker industry and the drug development industry may result in
significant price competition, reduced profit margins or loss of market share,
any of which may have a material adverse effect on our ability to generate
revenues and successfully operate our business. Our competitors may develop
technologies superior to those that our company is currently developing. In the
future, we may need to decrease our prices if our competitors lower their
prices. Our competitors may be able to respond more quickly to new or changing
opportunities, technologies and customer requirements. Such competition will
potentially affect our chances of achieving profitability, and ultimately affect
our ability to continue as a going concern.
RAPID TECHNOLOGICAL CHANGES IN OUR INDUSTRY MAY RENDER OUR TECHNOLOGY
NON-COMPETITIVE OR OBSOLETE AND CONSEQUENTLY AFFECT OUR ABILITY TO GENERATE
FUTURE REVENUES.
The genetic biomarker and biotechnology drug development industries are
characterized by rapidly changing technology, evolving industry standards and
varying customer demand. We believe that our success will depend on our ability
to generate income through the commercialization and licensing of our technology
and that it will require us to continuously develop and enhance our technology
that is currently being developed and introduce new and more technologically
advanced technologies promptly into the market. We can make no assurance that
our technology will not become obsolete due to the introduction of alternative
technologies. If we are unable to continue to develop and introduce new genetic
biomarkers, new biotechnology drugs and drug candidates to meet technological
changes and changes in market demands, our business and operating results,
including our ability to generate revenues, may be adversely affected.
IF WE FAIL TO EFFECTIVELY MANAGE THE GROWTH OF OUR COMPANY AND THE
COMMERCIALIZATION OR LICENSING OF OUR TECHNOLOGY, OUR FUTURE BUSINESS RESULTS
COULD BE HARMED AND OUR MANAGERIAL AND OPERATIONAL RESOURCES MAY BE STRAINED.
As we proceed with the development of our technology and the expansion of our
marketing and commercialization efforts, we expect to experience significant
growth in the scope and complexity of our business. We will need to add staff to
market our services, manage operations, handle sales and marketing efforts and
perform finance and accounting functions. We anticipate that we will be required
to hire a broad range of additional personnel in order to successfully advance
our operations. This growth is likely to place a strain on our management and
operational resources. The failure to develop and implement effective systems,
or to hire and retain sufficient personnel for the performance of all of the
functions necessary to effectively service and manage our potential business, or
the failure to manage growth effectively, could have a material adverse effect
on our business and financial condition.
FAILURE TO OBTAIN AND MAINTAIN REQUIRED REGULATORY APPROVALS WILL SEVERELY LIMIT
OUR ABILITY TO COMMERCIALIZE OUR TECHNOLOGY.
We believe that it is important for the success of our business to obtain the
approval of the United States Food and Drug Administration (FDA) before we
commence commercialization of our technology in the United States, the principal
market for our biomarker technology and internationally. Furthermore we believe
that it is important for the success of our business to obtain the approval of
the FDA or similar international drug regulatory bodies, before we can commence
the commercialization of our biotechnology drug candidates in their respective
international markets. We may also be required to obtain additional approvals
from foreign regulatory authorities to apply for any sales activities we may
carry out in those jurisdictions. If we cannot demonstrate the safety,
reliability and efficacy of our technology, the FDA or other regulatory
authorities could delay or withhold regulatory approval of our technology.
Even if we obtain regulatory approval of our technology, that approval may be
subject to limitations on the indicated uses for which it may be marketed. Even
after granting regulatory approval, the FDA and other regulatory agencies and
governments in other countries will continue to review and inspect any future
marketed products as well as any manufacturing facilities that we may establish
in the future. Later discovery of previously unknown problems with a product or
facility may result in restrictions on the product, including a withdrawal of
the product from the market.
11
Further, governmental regulatory agencies may establish additional regulations
which could prevent or delay regulatory approval of our technology.
EVEN IF WE OBTAIN REGULATORY APPROVAL TO COMMERCIALIZE OUR TECHNOLOGY, LACK OF
COMMERCIAL ACCEPTANCE MAY IMPAIR OUR BUSINESS.
Our product development efforts are primarily directed toward obtaining
regulatory approval to market genetic diagnostic markers and biotechnology
drugs. Diagnostic markers for cancer, as well as, biotechnology drugs for
certain infectious diseases and cancers, have been widely available for a number
of years, and our technology may not be accepted by the marketplace as readily
as these or other competing products, processes and methodologies. Additionally,
our technology may not be employed in all potential applications being
investigated, and any reduction in applications may limit the market acceptance
of our technology and our potential revenues. As a result, even if our
technology is developed into a marketable technology and we obtain all required
regulatory approvals, we cannot be certain that our technology will be adopted
at a level that would allow us to operate profitably.
IF WE DO NOT KEEP PACE WITH OUR COMPETITORS, TECHNOLOGICAL ADVANCEMENTS AND
MARKET CHANGES, OUR TECHNOLOGY MAY BECOME OBSOLETE AND OUR BUSINESS MAY SUFFER.
The market for our technology is very competitive, is subject to rapid
technological changes and varies for different individual products. We believe
that there are potentially many competitive approaches being pursued that
compete with our technology, including some by private companies for which
information is difficult to obtain.
Many of our competitors have significantly greater resources and have developed
products and processes that directly compete with our technology. Our
competitors may develop, or may in the future develop, new technologies that
directly compete with our technology or even render our technology obsolete. Our
technology is designed to develop diagnostic products as well as treatments for
certain diseases. Even if we are able to demonstrate improved or equivalent
results from our technology, researchers and practitioners may not use our
technology and we may suffer a competitive disadvantage. Finally, to the extent
that others develop new technologies that address the targeted application for
our current technology, our business will suffer.
OUR ABILITY TO HIRE AND RETAIN KEY PERSONNEL WILL BE AN IMPORTANT FACTOR IN THE
SUCCESS OF OUR BUSINESS AND A FAILURE TO HIRE AND RETAIN KEY PERSONNEL MAY
RESULT IN OUR INABILITY TO MANAGE AND IMPLEMENT OUR BUSINESS PLAN.
We are highly dependent upon our management personnel such as Joel Bellenson and
Dexster Smith because of their experience developing genetic diagnostic markers
and bioinformatics software as it relates to drug development. The loss of the
services of one or more of these individuals may impair management's ability to
operate our company. We have not purchased key man insurance on any of these
individuals, which would provide us with insurance proceeds in the event of
their death. Without key man insurance, we may not have the financial resources
to develop or maintain our business until we could replace the individual or to
replace any business lost by the death of that person. The competition for
qualified personnel in the markets in which we operate is intense. In addition,
in order to manage growth effectively, we must implement management systems and
recruit and train new employees. We may not be able to attract and retain the
necessary qualified personnel. If we are unable to retain or to hire qualified
personnel as required, we may not be able to adequately manage and implement our
business.
WE WILL DEPEND UPON THE ESTABLISHMENT OF RELATIONSHIPS WITH THIRD PARTIES TO
TEST OUR TECHNOLOGIES AND ANY RELATIONSHIP MAY REQUIRE OUR COMPANY TO SHARE
REVENUES AND TECHNOLOGY.
Management anticipates that it will be crucial to identify the degree of
elevated or reduced risk of a particular disease or medication based on a
particular variation or combination of variations. To do so will require access
to samples of patients who have had the diseases in question as well as normal
populations. And for each of these collections of samples, it will be important
to note the demographic and epidemiological ranges covered by the collection.
This would entail establishing relationships with clinics, hospitals,
universities and companies that have repositories of biological samples with
carefully curated patient disease and demographic information. These
relationships have various confidentiality provisions that require negotiations
that can span several months. In addition, some of these institutions have
national or provincial mandates for providing access to these samples that may
require us to make our test results publicly available for these jurisdictions
or institutions at a reduced rate and could also require us to provide a flow
12
back of intellectual property licensing for their further research process. Any
such requirement may reduce our revenues.
OUR COMPANY WILL BE DEPENDENT ON VARIOUS OUTSOURCING ACTIVITIES FOR TESTING OUR
TECHNOLOGY AND FAILURE TO OUTSOURCE CERTAIN ACTIVITIES WILL HAVE A MATERIAL
ADVERSE EFFECT ON OUR COMPANY.
We intend to establish relationships with various vendors of biological
laboratory services. Such laboratory services may include DNA SNP profiling,
gene expression profiling, cell culturing, recombinant techniques for inserting
reporter genes into artificial constructs for testing purposes, profiling of
transcription factors active in different disease states, manufacturing and
testing of potential drug candidates, pre-clinical and clinical drug trials, and
other laboratory and analytical services depending upon the outcome of the
results at various stages. Our ability to secure and maintain these future
relationships will be critical to the success of our business objectives, and
conversely the inability to secure these future relationships on reasonable
commercial terms represents a risk and could have a material adverse effect on
our operations or financial condition.
MOST OF OUR ASSETS AND A MAJORITY OF OUR DIRECTORS AND OFFICERS ARE OUTSIDE THE
UNITED STATES, WITH THE RESULT THAT IT MAY BE DIFFICULT FOR INVESTORS TO ENFORCE
WITHIN THE UNITED STATES ANY JUDGMENTS OBTAINED AGAINST US OR ANY OF OUR
DIRECTORS OR OFFICERS.
Although we are organized under the laws of the State of Nevada, United States,
our principal business office is located in Vancouver, British Columbia, Canada.
Outside the United States, it may be difficult for investors to enforce
judgments against us that are obtained in the United States in any action,
including actions predicated upon civil liability provisions of federal
securities laws. In addition, three of our four directors and all of our
executive officers reside outside the United States, and nearly all of the
assets of these non-U.S. persons and our assets are located outside of the
United States. As a result, it may not be possible for investors to affect
service of process within the United States upon such persons or to enforce
against us or such persons judgments predicated upon the liability provisions of
United States securities laws. There is substantial doubt as to the
enforceability against us or any of our directors and officers located outside
the United States in original actions or in actions of enforcement of judgments
of United States courts or liabilities predicated on the civil liability
provisions of United States federal securities laws. In addition, as the
majority of our assets are located outside of the United States, it may be
difficult to enforce United States bankruptcy proceedings against us. Under
bankruptcy laws in the United States, courts typically have jurisdiction over a
debtor's property, wherever it is located, including property situated in other
countries. Courts outside of the United States may not recognize the United
States bankruptcy court's jurisdiction. Accordingly, you may have trouble
administering a United States bankruptcy case involving a Nevada company as
debtor with most of its property located outside the United States. Any orders
or judgments of a bankruptcy court obtained by you in the United States may not
be enforceable.
OUR BUSINESS IS SUBJECT TO COMPREHENSIVE GOVERNMENT REGULATION AND ANY CHANGE IN
SUCH REGULATION MAY HAVE A MATERIAL ADVERSE EFFECT ON OUR COMPANY.
There is no assurance that the laws, regulations, policies or current
administrative practices of any government body, organization or regulatory
agency in the United States, Canada or any other jurisdiction, will not be
changed, applied or interpreted in a manner which will fundamentally alter the
ability of our company to carry on our business. The actions, policies or
regulations, or changes thereto, of any government body or regulatory agency, or
other special interest groups, may have a detrimental effect on our company. Any
or all of these situations may have a negative impact on our operations.
RISKS RELATED TO OUR COMMON STOCK
A DECLINE IN THE PRICE OF OUR COMMON STOCK COULD AFFECT OUR ABILITY TO RAISE
FURTHER WORKING CAPITAL AND ADVERSELY IMPACT OUR ABILITY TO CONTINUE OPERATIONS.
A prolonged decline in the price of our common stock could result in a reduction
in the liquidity of our common stock and a reduction in our ability to raise
capital. Because a significant portion of our operations has been and will be
financed through the sale of equity securities, a decline in the price of our
common stock could be especially detrimental to our liquidity and our
operations. Such reductions may force us to reallocate funds from other planned
uses and may have a significant negative effect on our business plans and
13
operations, including our ability to develop new products and continue our
current operations. If our stock price declines, we can offer no assurance that
we will be able to raise additional capital or generate funds from operations
sufficient to meet our obligations. If we are unable to raise sufficient capital
in the future, we may not be able to have the resources to continue our normal
operations.
The market price for our common stock may also be affected by our ability to
meet or exceed expectations of analysts or investors. Any failure to meet these
expectations, even if minor, may have a material adverse effect on the market
price of our common stock.
IF WE ISSUE ADDITIONAL SHARES IN THE FUTURE, IT WILL RESULT IN THE DILUTION OF
OUR EXISTING SHAREHOLDERS.
Our certificate of incorporation authorizes the issuance of up to 750,000,000
shares of common stock with a $0.001 par value and 100,000,000 preferred shares
with a par value of $0.001, of which 49,453,006 common shares were issued and
outstanding as of September 30, 2008. Our board of directors may fix and
determine the designations, rights, preferences or other variations of each
class or series within each class. Our board of directors may choose to issue
some or all of such shares to acquire one or more businesses or to provide
additional financing in the future. The issuance of any such shares will result
in a reduction of the book value and market price of the outstanding shares of
our common stock. If we issue any such additional shares, such issuance will
cause a reduction in the proportionate ownership and voting power of all current
shareholders. Further, such issuance may result in a change of control of our
company.
TRADING OF OUR STOCK MAY BE RESTRICTED BY THE SECURITIES EXCHANGE COMMISSION'S
PENNY STOCK REGULATIONS, WHICH MAY LIMIT A STOCKHOLDER'S ABILITY TO BUY AND SELL
OUR STOCK.
The Securities and Exchange Commission has adopted regulations which generally
define "penny stock" to be any equity security that has a market price (as
defined) less than $5.00 per share or an exercise price of less than $5.00 per
share, subject to certain exceptions. Our securities are covered by the penny
stock rules, which impose additional sales practice requirements on
broker-dealers who sell to persons other than established customers and
"accredited investors". The term "accredited investor" refers generally to
institutions with assets in excess of $5,000,000 or individuals with a net worth
in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly
with their spouse. The penny stock rules require a broker-dealer, prior to a
transaction in a penny stock not otherwise exempt from the rules, to deliver a
standardized risk disclosure document in a form prepared by the Securities and
Exchange Commission, which provides information about penny stocks and the
nature and level of risks in the penny stock market. The broker-dealer also must
provide the customer with current bid and offer quotations for the penny stock,
the compensation of the broker-dealer and its salesperson in the transaction and
monthly account statements showing the market value of each penny stock held in
the customer's account. The bid and offer quotations, and the broker-dealer and
salesperson compensation information, must be given to the customer orally or in
writing prior to effecting the transaction and must be given to the customer in
writing before or with the customer's confirmation. In addition, the penny stock
rules require that prior to a transaction in a penny stock not otherwise exempt
from these rules, the broker-dealer must make a special written determination
that the penny stock is a suitable investment for the purchaser and receive the
purchaser's written agreement to the transaction. These disclosure requirements
may have the effect of reducing the level of trading activity in the secondary
market for the stock that is subject to these penny stock rules. Consequently,
these penny stock rules may affect the ability of broker-dealers to trade our
securities. We believe that the penny stock rules discourage investor interest
in and limit the marketability of our common stock.
FINRA'S SALES PRACTICE REQUIREMENTS MAY ALSO LIMIT A STOCKHOLDER'S ABILITY TO
BUY AND SELL OUR STOCK.
In addition to the "penny stock" rules promulgated by the Securities and
Exchange Commission (see above for a discussion of penny stock rules), FINRA
rules require that in recommending an investment to a customer, a broker-dealer
must have reasonable grounds for believing that the investment is suitable for
that customer. Prior to recommending speculative low priced securities to their
non-institutional customers, broker-dealers must make reasonable efforts to
obtain information about the customer's financial status, tax status, investment
objectives and other information. Under interpretations of these rules, FINRA
believes that there is a high probability that speculative low priced securities
will not be suitable for at least some customers. FINRA requirements make it
more difficult for broker-dealers to recommend that their customers buy our
common stock, which may limit your ability to buy and sell our stock and have an
adverse effect on the market for our shares.
14
OUR COMMON STOCK IS ILLIQUID AND THE PRICE OF OUR COMMON STOCK MAY BE NEGATIVELY
IMPACTED BY FACTORS WHICH ARE UNRELATED TO OUR OPERATIONS.
Our common stock is currently quoted on the OTC Bulletin Board. Trading of our
stock through the OTC Bulletin Board is frequently thin and highly volatile.
There is no assurance that a sufficient market will develop in the stock, in
which case it could be difficult for shareholders to sell their stock. The
market price of our common stock could fluctuate substantially due to a variety
of factors, including market perception of our ability to achieve our planned
growth, quarterly operating results of our competitors, trading volume in our
common stock, changes in general conditions in the economy and the financial
markets or other developments affecting our competitors or us. In addition, the
stock market is subject to extreme price and volume fluctuations. This
volatility has had a significant effect on the market price of securities issued
by many companies for reasons unrelated to their operating performance and could
have the same effect on our common stock.
ITEM 2. PROPERTIES
EXECUTIVE OFFICES
Our principal office is located at Suite 200 - 1892 West Broadway, Vancouver
British Columbia Canada. The 400 square feet office space serves as the base of
operations for our corporate, managerial, accounting, financial, administrative,
sales and marketing functions. Our company has leased the office premises on a
monthly basis for CDN$1000 ($953) per month, pursuant to an agreement commencing
March 1, 2008. This monthly amount includes phone, fax and internet access, as
well as the shared use of a receptionist and a boardroom facility.
ITEM 3. LEGAL PROCEEDINGS
We know of no material, active, or pending legal proceeding against our company,
nor are we involved as a plaintiff in any material proceeding or pending
litigation where such claim or action involves damages for more than 10% of our
current assets as of December 19, 2008. Additionally, there were no proceedings
in which any of our company's directors, officers, or affiliates, or any
registered or beneficial shareholders holding more than 5% of our voting
securities, is an adverse party or has a material interest adverse to our
company's interest as of December 19, 2008.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES
MARKET FOR SECURITIES
Our stock is listed for quotation on the OTC Bulletin Board under the trading
symbol "UPBS". Our common shares initially began trading on the OTC Bulletin
Board on September 1, 2004 under the trading symbol "IBSO.OB". The following
table sets forth, for the periods indicated, the high and low closing prices for
each quarter within the last two fiscal years ended September 30, 2008 as
reported by the quotation service operated by the OTC Bulletin Board. All
quotations for the OTC Bulletin Board reflect inter-dealer prices, without
retail mark-up, mark-down or commission and may not necessarily represent actual
transactions.
15
Quarter Ended High Low
------------- ---- ---
September 30, 2008 $0.23 $0.11
June 30, 2008 $0.31 $0.16
March 31, 2008 $0.46 $0.12
December 31, 2007 $0.39 $0.11
September 30, 2007 $1.02 $0.35
June 30, 2007 $1.29 $0.80
March 31, 2007 $1.37 $0.72
December 31, 2006 $1.17 $0.38
On December 18, 2008, the closing price for the common stock as reported by the
quotation service operated by the OTC Bulletin Board was $0.055.
Nevada Agency and Trust Company is the registrar and transfer agent for our
common shares. Their address is 50 West Liberty, Suite 800 Reno, Nevada, 89501
Telephone: 775.322.0626, Facsimile: 775.322.5623.
HOLDERS OF OUR COMMON STOCK
As of December 18, 2008, there were 9 registered holders of record of our common
stock. As of such date, 49,453,006 common shares were issued and outstanding.
DIVIDEND POLICY
We have not declared or paid any cash dividends since inception. Although there
are no restrictions that limit our ability to pay dividends on our common
shares, we intend to retain future earnings, if any, for use in the operation
and expansion of our business and do not intend to pay any cash dividends in the
foreseeable future.
EQUITY COMPENSATION PLAN INFORMATION
On March 16, 2007, our board of directors approved the 2007 Stock Option Plan.
Under the terms of the 2007 Stock Option Plan, options to purchase up to
5,000,000 shares of our common stock may be granted to our officers, directors,
employees and permitted consultants of our company.
The following table sets forth certain information concerning all equity
compensation plans previously approved by stockholders and all previous equity
compensation plans not previously approved by stockholders, as of the most
recently completed fiscal year.
16
EQUITY COMPENSATION PLAN INFORMATION AS AT SEPTEMBER 30, 2008
Number of securities
remaining available for
issuance under equity
Number of securities to Weighted-average compensation plans
be issued upon exercise exercise price of (excluding securities
of outstanding options, outstanding options, reflected in the
Plan Category warrants and rights warrants and rights first column)
- ------------- ------------------- ------------------- -------------
Equity Compensation Plans Nil N/A N/A
Approved by Security
Holders
Equity Compensation Plans Not 2,000,000 $0.95 3,000,000 (1)
Approved by Security Holders
Total 2,000,000 $0.95 3,000,000 (1)
- ----------
(1) In addition, our company has agreed to issue 1,500,000 stock options to two
directors and three new scientific advisory board members under the 2007
Stock Option Plan, on terms to be determined.
RECENT SALES OF UNREGISTERED SECURITIES
The following sets forth certain information concerning securities which were
sold or issued by us during the last fiscal year ended September 30, 2008
without the registration of these securities under the Securities Act of 1933 in
reliance on exemptions from such registration requirements.
On August 31, 2008, pursuant to the terms of an Amended and Restated Consulting
Agreement, we issued 213,725 common shares to Dr. Artem Cherkasov. The common
shares were issued to Dr. Artem Cherkasov as a non-U.S. person (as that term is
defined in Regulation S of the Securities Act of 1933, as amended), in an
offshore transaction relying on Regulation S and/or section 4(2) of the
Securities Act of 1933, as amended.
On March 7, 2008, pursuant to the terms of a Consulting Services Agreement dated
March 7, 2008, we issued 403,388 common shares to Dr. Artem Cherkasov. The
common shares were issued to Dr. Artem Cherkasov as a non-U.S. person (as that
term is defined in Regulation S of the Securities Act of 1933, as amended), in
an offshore transaction relying on Regulation S and/or section 4(2) of the
Securities Act of 1933, as amended.
On February 28, 2008, pursuant to the terms of the Share Exchange Agreement
dated August 17, 2007, among our company, Pacific Pharma Technologies Inc., and
the selling shareholders of Pacific Pharma Technologies Inc. we issued 462,500
common shares to Dr. Artem Cherkasov and 462,500 to Mr. Gary Morrison. The
common shares were issued to Dr. Artem Cherkasov and Mr. Gary Morrison as a
non-U.S. person (as that term is defined in Regulation S of the Securities Act
of 1933, as amended), in an offshore transaction relying on Regulation S and/or
section 4(2) of the Securities Act of 1933, as amended. At the same time, 37,500
shares were released to both Dr Artem Cherkasov and Mr Gary Morrison from the
escrow pool of 225,000 performance-based shares which had been set aside for
this purpose, leaving a balance of 150,000 shares for future milestones as of
September 30, 2008.
On January 31, 2008, pursuant to the terms of a Consulting Services Agreement
dated December 31, 2007, we issued 83,183 common shares to Dr. Artem Cherkasov.
The common shares were issued Dr. Artem Cherkasov as a non-U.S. person (as that
term is defined in Regulation S of the Securities Act of 1933, as amended), in
an offshore transaction relying on Regulation S and/or section 4(2) of the
Securities Act of 1933, as amended.
ITEM 6. SELECTED FINANCIAL DATA
Not Applicable.
17
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATION
The following discussion should be read in conjunction with our audited
consolidated financial statements and the related notes that appear elsewhere in
this annual report. The following discussion contains forward-looking statements
that reflect our plans, estimates and beliefs. Our actual results could differ
materially from those discussed in the forward looking statements. Factors that
could cause or contribute to such differences include those discussed below and
elsewhere in this annual report.
Our audited consolidated financial statements are stated in United States
dollars and are prepared in accordance with United States generally accepted
accounting principles.
PLAN OF OPERATIONS AND CASH REQUIREMENTS OVER THE NEXT 12 MONTHS
Without adequate funding, it is management's intention to halt current research
and development efforts associated with our biomarker program and wait until
sufficient financial resources exist before spending additional and significant
funds for the commercialization of our biomarker program, and concentrate our
research and development efforts on our drug development programs. However, we
will continue to evaluate and determine the most cost effective use of available
funds for all future research and development programs, including diagnostic
biomarkers, biomarkers for a drug response assay and drug development efforts.
Depending on the level of financing and resources available, we may further
develop our pharmaceutical business, or biomarker business, or both, if
possible.
There is no assurance that our research and development programs will produce
commercially viable products or treatments, and a great deal of additional R&D
will be required before a final evaluation of the economic feasibility of our
technologies can be determined. Even if we complete our proposed R&D and we are
successful in identifying commercially viable products and/or treatments, we
will have to spend substantial funds on further studies before we will know our
products and/or treatments are commercially viable or not.
ANTICIPATED CASH REQUIREMENTS
Over the next 12 months, we have estimated our minimum cash requirements to be
as follows:
Estimated Expenses for the Next Twelve Month Period
Cash Operating Expenses
Employee and consultant compensation $240,000
Professional fees $100,000
General and administrative expenses $ 70,000
Corporate communications $ 40,000
Research and development $350,000
--------
Total $800,000
========
For the 12 months ended September 30, 2008, we recorded a net operating loss of
$2,034,502 and have an accumulated deficit of $5,851,367 since inception. As at
September 30, 2008, we had cash on hand of $612,306 and for the next 12 months,
management estimates minimum cash requirements of $800,000 to fund on-going
operations and planned research and development programs. Accordingly, we do not
have sufficient funds to meet our plan of operation over the next 12 months and
will need to obtain further financing through issuance of shares, debentures or
convertible debentures. We will also endeavor to access available funding from
research and development grants or loans from various public and private
research granting agencies. Moreover, all cash operating expenses will be
carefully monitored to ensure we can meet our obligations as they come due.
Due to the current financial crisis, there can be no assurance that additional
financing will be available when needed or, if available, on commercially
reasonable terms. If we are not able to obtain additional financing on a timely
basis, we may not be able to meet our obligations as they come due and may be
forced to scale down or perhaps even cease business operations.
18
LIQUIDITY AND CAPITAL RESOURCES
Our financial position as at September 30, 2008 and September 30, 2007 and the
changes for the years then ended are as follows:
WORKING CAPITAL
As at As at
September 30, September 30,
2008 2007
---------- ----------
Current Assets $ 653,307 $1,708,440
Current Liabilities (398,315) (434,080)
---------- ----------
Working Capital $ 254,992 $1,274,360
========== ==========
Working capital has decreased from $1,274,360 at September 30, 2007 to $254,992
at September 30, 2008 due to significantly lower cash balances and higher
amounts payable to related parties on account of retiring allowances.
CASH FLOWS
Year Ended Year Ended
September 30, September 30,
2008 2007
---------- ----------
Net cash used in Operating Activities $ (991,768) $ (807,721)
Net cash used in Investing Activities (6,997) (76,113)
Net cash provided by Financing Activities -- 1,995,000
Effect of exchange rate changes (7,657) 36,035
---------- ----------
Increase (Decrease) in Cash during the Year $1,006,422 $1,147,201
Cash, Beginning of Year 1,618,728 471,527
---------- ----------
Cash, End of Year $ 612,306 $1,618,728
========== ==========
During the years ended September 30, 2008 and 2007:
(i) Our net cash used in operating activities of $991,768fa in 2008 and
$807,721 in 2007 is substantially lower than the net losses incurred
in both years primarily due to the significant amount of expenses not
requiring a cash outlay including amortization of IPR and stock
options granted and shares issued for service.
(ii) Our net cash used in investing activities of $6,997 in 2008 related to
the purchase of R&D software, The $76,113 invested in 2007 arose from
the purchase of PPT and of money market investments to secure company
credit cards.
(iii) Our net cash from financing activities was $nil in 2008 and
$1,995,000 in 2007. These funds were raised last year pursuant to
private placement agreements with two shareholders.
19
RESULTS OF OPERATIONS FOR YEAR ENDING SEPTEMBER 30, 2008
The following summary should be read in conjunction with our audited financial
statements for the years ended September 30, 2008 and 2007 included herein.
September 30, September 30,
2008 2007
------------ ------------
Revenue $ Nil $ Nil
------------ ------------
Expenses
Management and consulting fees $ 312,863 $ 263,580
Professional fees 119,348 161,762
General and administration 131,431 120,826
Corporate communications, transfer agent and media 145,619 68,911
Research and development 882,433 160,107
Interest (income) expense - net (43,048) (36,357
Depreciation 64,371 3,273
Loss on foreign exchange (6,746) 12,019
Interest and finance charges 719 262,825
License fees and royalties 14,867 8,226
Stock-based compensation 424,128 771,809
------------ ------------
Total expenses $ 2,045,985 $ 1,796,981
Deferred income tax benefit (11,483) --
------------ ------------
Net Loss $ (2,034,502) $ (1,796,981)
============ ============
REVENUE
We are a development stage company and have not generated any revenues from our
technologies since inception. We anticipate significant additional time and
financing will be required before our technologies are developed to a marketable
state.
EXPENSES
Our operating expenses for the year ended September 30, 2008 were $2,045,985
compared to $1,796,981 in 2007. This net increase of $249,004 was primarily due
to the following:
* $49,283 increase in management and consulting fees due to increased
salary and accrued retiring allowance for one company officer to bring
his compensation into line with the other two company officers.
* $42,414 decrease in professional fees since the legal fees for
purchase of Pacific Pharma Technologies Inc. and completing the S8/
SB2 registration statements were not required in fiscal 2008.
* $10,605 increase in general and administration due to commencement of
Intellectual Property Rights amortization and higher Directors &
Officers insurance, both partially offset by gain on foreign exchange.
* $76,708 increase in corporate communication expenses primarily due to
unsuccessful contracts with fund raising firms which have since been
cancelled.
* $722,326 increase in research and development expenses of which
$198,055 was cash and $554,271 equity. The increase in cash spend was
due to start-up implementation of the newly acquired technologies
including contracts with Dr. Artem Cherkasov, universities in Kampala,
Moscow and Montreal along with various suppliers for technical
materials and testing. The increase in stock issuances resulted from
achieving the Malaria milestone and paying out the equity portion of
Dr. Artem Cherkasov's consulting services contract.
* $268,797 decrease in interest (income) expense primarily due to
eliminating interest expense on the 5% convertible debentures after
they were converted in March 2007. There was a modest $6,691 increase
in interest income from short term deposits during 2008 compared to
2007.
* $347,681 decrease in stock-based compensation following resumption of
normal stock option amortization in fiscal 2008 after recording a
major catch-up on 2.2 million stock options last year when the new
plan was adopted in March 2007.
20
GOING CONCERN
The audited financial statements accompanying this report have been prepared on
a going concern basis, which implies that our company will continue to realize
its assets and discharge its liabilities and commitments in the normal course of
business. Our company has not generated revenues since inception, has never paid
any dividends and is unlikely to pay dividends or generate earnings in the
immediate or foreseeable future. The continuation of our company as a going
concern is dependent upon: (i) the continued financial support from our
shareholders; (ii) the ability of our company to continue raising necessary
equity financing to achieve its operating objectives; (iii) the continuing
achievement of positive results from our Research and Development activities and
(iv) the eventual attainment of profitable operations.
Our independent auditors included an explanatory paragraph in their annual
report on our financial statements for the year ended September 30, 2008
regarding concerns about our ability to continue as a going concern. In
addition, our financial statements contain further note disclosures in this
regard. The continuation of our business plan is dependent upon our ability to
continue raising sufficient new capital from equity or debt markets in order to
fund our on-going operating losses and oil and gas acquisition and exploration
activities. The issuance of additional equity securities could result in a
significant dilution in the equity interests of our current stockholders.
APPLICATION OF CRITICAL ACCOUNTING POLICIES
The preparation of financial statements in conformity with United States
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying disclosures of our company. Although these estimates are based on
management's knowledge of current events and actions that our company may
undertake in the future, actual results may differ from such estimates.
BASIS OF PRESENTATION
Our consolidated financial statements and related notes are presented in
accordance with generally accepted accounting principles in the United States of
America ("US") and are expressed in US dollars. We are a development stage
company as defined by Statement of Financial Accounting Standard ("SFAS") No. 7,
"Accounting and Reporting by Development Stage Enterprises" and has not realized
any revenues from its planned operations to date. These financial statements
include the accounts of the Company and its wholly-owned subsidiaries, Upstream
Canada and PPT, which were acquired pursuant to share exchange agreements on
February 24, 2006 and August 24, 2007 respectively. All inter-company
transactions and account balances have been eliminated on consolidation. The
fiscal year end of our Company and subsidiaries is September 30.
INTELLECTUAL PROPERTY RIGHTS
We have adopted the provisions of the Statement of Financial Accounting
Standards No. 142 ("SFAS 142"), "Goodwill and Other Intangible Assets".
Intangible assets with a definite life are amortized over that expected life and
tested for impairment at least annually or whenever events or circumstances
indicate a revision to the remaining period of amortization is warranted.
The fair market value of Intellectual Property Rights ("IPR") acquired on August
24, 2007 during the acquisition of Pacific Pharma Technologies Inc. is being
amortized on a straight line basis over 5 years. The determination of any
impairment of Intellectual Property Rights includes a comparison of net carrying
value with estimated future operating cash flows anticipated during the
remaining life; and is dependent on our ability to continue operating as a going
concern.
During the annual impairment review, we determined the carrying value of our IPR
at September 30, 2008 was not impaired.
21
TRANSLATION OF FOREIGN CURRENCIES
Our functional and reporting currency is the United States dollar and our
Canadian subsidiary's is the Canadian dollar. The financial statements of the
Canadian subsidiaries are translated into United States dollars in accordance
with SFAS No. 52 "Foreign Currency Translation" using period-end rates of
exchange for assets and liabilities, and period-average rates of exchange for
revenues and expenses. Gains or losses resulting from foreign currency
transactions are included in the consolidated statements of operations; whereas,
adjustments arising from the translation of financial statements of our
subsidiaries during the consolidation process are included as a separate
component of shareholders' equity called other comprehensive income (loss). We
have not, to the date of these financials statements, entered into derivative
instruments to offset the impact of foreign currency fluctuations.
RESEARCH AND DEVELOPMENT
These costs are charged to expense when incurred and consist primarily of direct
material and personnel costs, contract services and indirect costs. We have
received government assistance in the past and may receive same in the future
regarding our research and development activities. When the work is performed
that qualifies for such grants, the related assistance amount is credited to
research and development expense.
STOCK-BASED COMPENSATION
Effective January 1, 2006, we adopted the fair value recognition provisions of
SFAS No. 123R, "Share Based Payments", using the modified prospective transition
method. Under this transition method, compensation cost is recognized for all
share-based payments granted prior to January 1, 2006, based on the grant date
fair value estimated in accordance with the original provisions of SFAS 123; and
the compensation cost of all share-based payments granted subsequent to January
1, 2006, based on the grant date fair value estimated in accordance with the
provisions of SFAS 123R.
All transactions in which goods and services are the consideration received for
the issuance of equity instruments are accounted for based on fair value of the
consideration received or the fair value of the equity instrument issued,
whichever is more reliably measurable. Equity instruments issued to employees
and the cost of the services received as consideration are measured and
recognized based on the fair value of the equity instruments issued.
RECENT ACCOUNTING PRONOUNCEMENTS
We do not believe that any recently issued, but not yet effective accounting
standards if currently adopted, will have a material effect on our financial
statements.
In December 2007, the FASB issued Statement of Financial Accounting Standards
No. 141 (revised 2007), "Business Combinations" ("SFAS 141R"). SFAS 141R changes
the accounting for and reporting of business combinations including, among other
things, expanding the definition of a business and a business combination;
requiring all assets and liabilities of the acquired business, including
goodwill, contingent assets and liabilities, and contingent consideration to be
recorded at fair value on the acquisition date; requiring acquisition-related
transaction and restructuring costs to be expensed, rather than accounted for as
acquisition costs; and requiring reversals of valuation allowances related to
acquired deferred tax assets and changes to acquired income tax uncertainties to
be recognized in earnings. SFAS 141R applies prospectively to business
combinations for which the acquisition date is on or after the beginning of the
first annual reporting period beginning on or after December 15, 2008. Earlier
application of SFAS 141R is prohibited. We have reached the conclusion that this
will have no impact on our consolidated financial statements.
In December 2007, the FASB issued Statement of Accounting Standards No. 160,
"Non-controlling Interests in Consolidated Financial Statements, an Amendment of
ARB No. 51" ("SFAS 160"). SFAS 160 changes the accounting and reporting for
non-controlling interests (previously referred to as minority interests) such
that non-controlling interests will be reported as a component of equity; losses
will be allocated to the non-controlling interest; changes in ownership
interests that do not result in a change in control will be accounted for as
equity transactions and, upon a loss of control, any gain or loss on the
interest sold will be recognized in earnings and any ownership retained will be
re-measured at fair value. SFAS 160 is effective for fiscal years, and interim
periods within those fiscal years, beginning on or after December 15, 2008.
Earlier application of SFAS 160 is prohibited. SFAS 160 applies prospectively as
22
of the beginning of the fiscal year in which it is initially applied, except for
the presentation and disclosure requirements which apply retrospectively for all
periods presented. We have reached the conclusion that this will have no impact
on our consolidated financial statements.
In March 2008, the FASB issued Statement of Financial Accounting Standards No.
161, "Disclosures about Derivative Instruments and Hedging Activities, an
Amendment of FASB Statement No. 133" ("SFAS 161"). SFAS 161 amends and expands
the disclosure requirements of FASB Statement No. 133, "Accounting for
Derivative Instruments and Hedging Activities - as amended" ("SFAS 133"), to
provide enhanced disclosures about how and why an entity uses derivative
instruments; how derivative instruments and related hedged items are accounted
for under SFAS 133; and how derivative instruments and related hedged items
affect an entity's financial position, financial performance, and cash flows.
SFAS 161 is effective for financial statements issued for fiscal years and
interim periods beginning after November 15, 2008, with early application
encouraged. We have reached the conclusion that this will have no impact on our
consolidated financial statements.
In May 2008, the FASB issued Statement of Financial Accounting Standards No.
162, "The Hierarchy of Generally Accepted Accounting Principles" ("SFAS 162").
SFAS 162 identifies a consistent framework, or hierarchy, for selecting
accounting principles to be used in preparing financial statements that are
presented in conformity with U.S. generally accepted accounting principles for
nongovernmental entities. SFAS 162 is effective 60 days following the SEC's
approval of the Public Company Accounting Oversight Board amendments to AU
Section 411, "The Meaning of Present Fairly in Conformity With Generally
Accepted Accounting Principles". We have reached the conclusion that this will
have no impact on our consolidated financial statements.
In June 2008, the FASB issued FASB Staff Position No. EITF 03-6-1, "Determining
Whether Instruments Granted in Share-Based Payment Transactions Are
Participating Securities" ("FSP EITF 03-6-1"). FSP EITF 03-6-1 establishes that
unvested share-based payment awards that contain nonforfeitable rights to
dividends or dividend equivalents (whether paid or unpaid) are participating
securities as defined in Emerging Issues Task Force ("EITF") Issue No. 03-6,
"Participating Securities and the Two-Class Method under FASB Statement No.
128", and should be included in the computation of earnings per share pursuant
to the two-class method as described in Statement of Financial Accounting
Standards No. 128, "Earnings per Share". FSP EITF 03-6-1 is effective for
financial statements issued for fiscal years beginning after December 15, 2008,
and interim periods within those years. All prior-period earnings per share data
presented shall be adjusted retrospectively to conform to the provisions of FSP
EITF 03-6-1. Early application is not permitted. We are currently evaluating the
impact that the adoption of FSP EITF 03-6-1 will have on our consolidated
financial statements.
In September 2008, the FASB issued two separate but related exposure drafts: (1)
Proposed Statement of Financial Accounting Standards, "Accounting for Transfers
of Financial Assets - an amendment of FASB Statement No. 140", and (2) Proposed
Statement of Financial Accounting Standards, "Amendments to FASB Interpretation
No. 46(R)" (together, the "proposed Statements"). The proposed Statements would
remove the concept of a qualifying special-purpose entity ("QSPE") from SFAS 140
and the exceptions from applying FIN 46R to QSPEs. The proposed Statements would
be effective as of the beginning of a reporting entity's fiscal year that begins
after November 15, 2009. We have reached the conclusion that this will have no
impact on our consolidated financial statements.
In November 2008, the Financial Accounting Standards Board (the "FASB") voted on
the effective date and other amendments of proposed FASB Staff Position FAS
140-e and FIN 46(R)-e, "Disclosures about Transfers of Financial Assets and
Interests in Variable Interest Entities" ("FSP FAS 140-e and FIN 46R-e"). FSP
FAS 140-e and FIN 46R-e would amend SFAS No. 140, "Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities - as amended"
("SFAS 140") and FASB Interpretation No. 46 (revised December 2003),
"Consolidation of Variable Interest Entities" ("FIN 46R") to require enhanced
disclosures by public entities about transfers of financial assets and interests
in variable interest entities, and provide users of the financial statements
with greater transparency about a transferor's continuing involvement with
transferred financial assets and an enterprise's involvement with variable
interest entities. The disclosures required by FSP FAS 140-e and FIN 46R-e will
be effective for reporting periods (interim and annual) ending after December
15, 2008. We have reached the conclusion that this will have no impact on our
consolidated financial statements.
23
OFF-BALANCE SHEET ARRANGEMENTS
We have no significant off-balance sheet arrangements that have or are
reasonably likely to have a current or future effect on our financial condition,
changes in financial position, revenues and expenses, results of operations,
liquidity, capital expenditures or capital resources that are material to
stockholders.
24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
[LETTERHEAD OF DALE MATHESON CARR-HILTON LABONTE LLP CHARTERED ACCOUNTANTS]
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors of Upstream Biosciences, Inc.
We have audited the accompanying consolidated balance sheets of Upstream
Biosciences, Inc. (a development stage company) as of September 30, 2008 and
2007 and the related consolidated statements of operations, stockholders' equity
and cash flows for the years ended September 30, 2008 and 2007 and the period
from June 14, 2004 (inception) through September 30, 2008. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform an audit to obtain reasonable assurance whether the financial
statements are free of material misstatement. The Company is not required to
have, nor were we engaged to perform, an audit of its internal control over
financial reporting. Our audits included consideration of internal control over
financial reporting as a basis for designing audit procedures that are
appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Company's internal control over financial
reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, these consolidated financial statements present fairly, in all
material respects, the financial position of Upstream Biosciences, Inc. as at
September 30, 2008 and 2007 and the results of its operations and its cash flows
for the years ended September 30, 2008 and 2007 and the period from June 14,
2004 (inception) through September 30, 2008 in conformity with accounting
principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has not generated revenues since inception,
has incurred losses in developing its business, and further losses are
anticipated. The Company requires additional funds to meet its obligations and
the costs of its operations. These factors raise substantial doubt about the
Company's ability to continue as a going concern. Management's plans in this
regard are described in Note 1. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
Our previous report dated November 27, 2008 has been withdrawn and the
accompanying financial statements restated to correct misstatements as disclosed
in Note 9.
/s/ "DMCL"
DALE MATHESON CARR-HILTON LABONTE LLP
CHARTERED ACCOUNTANTS
Vancouver, Canada
November 27, 2008, except for Note 9 which is of December 14, 2010
25
UPSTREAM BIOSCIENCES, INC.
(A Development Stage Company)
CONSOLIDATED BALANCE SHEETS
September 30, September 30,
2008 2007
------------ ------------
(Restated -
See Note 9)
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 612,306 $ 1,618,728
Other receivables 6,485 44,793
Prepaid expenses 34,131 44,919
Due from related parties (Note 4) 385 --
------------ ------------
653,307 1,708,440
RESTRICTED CASH (Note 2) 33,231 32,643
EQUIPMENT, net 12,007 10,789
INTELLECTUAL PROPERTY RIGHTS, net (Note 3) 294,141 353,322
------------ ------------
$ 992,686 $ 2,105,194
============ ============
LIABILITIES
CURRENT LIABILITIES
Accounts payable and accrued liabilities (Note 4) $ 398,315 $ 403,957
Due to related parties (Note 4) -- 30,123
------------ ------------
398,315 434,080
DEFFERED INCOME TAXES (Note 5) 45,932 57,415
------------ ------------
444,247 491,495
------------ ------------
STOCKHOLDERS' EQUITY
CAPITAL STOCK (Note 6)
Authorized
100,000,000 non-voting preferred shares at $0.001 par value
750,000,000 common shares at $0.001 par value
Issued and outstanding
49,453,006 common shares (September 30, 2007 - 47,827,710) 49,453 47,828
ADDITIONAL PAID-IN CAPITAL 6,395,333 5,464,752
OBLIGATION TO ISSUE SHARES 14,391 --
DEFERRED COMPENSATION (78,570) (108,872)
ACCUMULATED OTHER COMPREHENSIVE INCOME 19,199 26,856
DEFICIT ACCUMULATED DURING THE DEVELOPMENT STAGE (5,851,367) (3,816,865)
------------ ------------
548,439 1,613,699
------------ ------------
$ 992,686 $ 2,105,194
============ ============
COMMITMENTS AND CONTINGENCIES (Note 8)
The accompanying notes are an integral part of
these consolidated financial statements.
26
UPSTREAM BIOSCIENCES, INC
(A Development Stage Company)
CONSOLIDATED STATEMENTS OF OPERATIONS
Cumulative Results
From Inception
(June 14, 2004) to
Years Ended September 30, September 30,
2008 2007 2008
------------ ------------ ------------
(Restated - (Restated -
See Note 9) See Note 9)
REVENUE $ -- $ -- $ 67,600
------------ ------------ ------------
OPERATING EXPENSES
Amortization 64,371 3,273 68,407
Consulting fees -- 12,598 12,598
Interest and finance charges 719 262,825 630,046
Interest income (43,048) (36,357) (79,405)
Investor and corporate communications 145,619 68,911 238,185
License fees and royalties 14,867 8,226 70,316
Loss (Gain) on foreign exchange (6,746) 12,019 618
Management compensation 312,863 250,982 1,131,189
Office and general administration 131,431 120,826 306,943
Professional fees 119,348 161,762 396,383
Research and development - Cash 353,320 155,265 632,270
- Stock 529,113 4,842 529,113
Stock based compensation (Note 6) 424,128 771,809 1,896,087
------------ ------------ ------------
LOSS BEFORE INCOME TAX 2,045,985 1,796,981 5,832,750
------------ ------------ ------------
Deferred income tax recovery 11,483 -- 11,483
NET LOSS $ (2,034,502) $ (1,796,981) $ (5,753,667)
------------ ------------ ------------
BASIC AND DILUTED NET LOSS PER SHARE $ (0.04) $ (0.04)
============ ============
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 48,689,094 46,071,666
============ ============
The accompanying notes are an integral part of
these consolidated financial statements.
27
UPSTREAM BIOSCIENCES INC
(A Development Stage Company)
CONSOLIDATED STATEMENTS OF CASH FLOWS
Cumulative Results
From Inception
(June 14, 2004) to
Years Ended September 30, September 30,
2008 2007 2008
------------ ------------ ------------
(Restated - (Restated -
See Note 9) See Note 9)
CASH FLOW FROM OPERATING ACTIVITIES
Net loss $ (2,034,502) $ (1,796,981) $ (5,753,667)
Adjustments to reconcile net loss to net
cash used in operating activities:
Amortization of intellectual property rights and equipment 64,371 3,273 68,407
Shares issued for services 547,930 59,189 1,342,784
Amortization of fair value of stock options granted 424,128 771,809 1,464,045
Deferred income tax recovery (11,483) -- (11,483)
Accretion of convertible debenture -- 232,621 302,808
Changes in operating assets and liabilities:
Other receivables 38,308 (28,718) (6,484)
Prepaid expenses 10,788 (39,270) (36,912)
Accounts payable and accrued liabilities (800) 29,031 203,371
Due to related parties (30,508) (38,675) 52,378
------------ ------------ ------------
Net cash used in operating activities (991,768) (807,721) (2,374,753)
------------ ------------ ------------
CASH FLOW FROM INVESTING ACTIVITIES
Increase in restricted cash (588) (22,188) (33,231)
Cash paid for acquisition of PPT shares -- (51,507) (51,507)
Purchase of equipment (6,409) (2,418) (21,234)
------------ ------------ ------------
Net cash used in investing activities (6,997) (76,113) (105,972)
------------ ------------ ------------
CASH FLOW FROM FINANCING ACTIVITIES
Proceeds from issuance of convertible debentures -- -- 1,000,000
Proceeds from issuance of common shares, net -- 1,995,000 1,995,345
Loan from related party -- -- 78,487
------------ ------------ ------------
Net cash provided by financing activities -- 1,995,000 3,073,832
------------ ------------ ------------
EFFECT OF EXCHANGE RATE CHANGES (7,657) 36,035 19,199
------------ ------------ ------------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (1,006,422) 1,147,201 612,306
CASH AND CASH EQUIVALENTS, BEGINNING 1,618,728 471,527 --
------------ ------------ ------------
CASH AND CASH EQUIVALENTS, ENDING $ 612,306 $ 1,618,728 $ 612,306
============ ============ ============
SUPPLEMENTARY INFORMATION
Cash paid for:
Interest $ -- $ -- $ --
Income taxes $ -- $ -- $ --
Non-cash investing and financing activities (Note 7)
The accompanying notes are an integral part of
these consolidated financial statements.
28
UPSTREAM BIOSCIENCES, INC
(A Development Stage Company)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE PERIOD FROM MARCH 20, 2002 TO SEPTEMBER 30, 2008
Common Stock
----------------------- Additional Obligation
Number of Paid-in to Issue
Shares Amount Capital Shares
------ ------ ------- ------
BALANCE - MARCH 20, 2002 -- $ -- $ -- $ --
Activity from inception through March 31, 2004 59,300,000 59,300 (10,300) --
----------- -------- ---------- --------
BALANCE - MARCH 31, 2004 59,300,000 59,300 (10,300) --
Forward stock split on a 1.5:1 basis 29,650,000 29,650 (29,650)
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss
----------- -------- ---------- --------
BALANCE - DECEMBER 31, 2005 88,950,000 88,950 (39,950) --
Share exchange and recapitalization
Shares issued to former shareholders of Upstream Canada 24,000,000 24,000
Shares cancelled on acquisition (68,650,000) (68,650)
Recapitalization adjustment (4,005)
Fair value compensation to consultant
Issuance of stock at $1.20 per share 500,000 500 599,500
Amortization of fair value of stock options granted 100,150
Issuance of convertible debenture
Fair value of detachable warrants 360,964
Embedded beneficial conversion feature 268,108
Issuance of stock for services
Prepaid for six months ended October 31, 2006 17,500 18 17,750
Less: amount expensed to September 30, 2006
Issuance of stock for BCCA license fee 29,577 30 17,717
Partial forfeiture of convertible debenture 141,844
Comprehensive loss
Foreign exchange translation adjustment
Net loss (Restated - See Note _)
----------- -------- ---------- --------
BALANCE - SEPTEMBER 30, 2006 44,847,077 44,848 1,462,078 --
Amortization of fair value of stock options granted 771,809
Amortization of stock issued for operating expenses
Issuance of stock for services
Prepaid for twelve months ended October 31, 2007 48,326 48 34,674
Less: amount expensed to September 30, 2007
Issuance of stock for cash @ 1.50 per share 1,333,334 1,333 1,998,667
Cash payment for unsuccessful due diligence (5,000)
Issuance of stock for convertible debenture
Principal 800,000 800 799,200
Interest payable 53,973 54 53,919
Issuance of stock for acquisition of PPT
For 100% of PPT's shares 520,000 520 243,880
For performance-based escrow shares as deferred compensation 225,000 225 105,525
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss (Restated - See Note _)
----------- -------- ---------- --------
BALANCE - SEPTEMBER 30, 2007 47,827,710 47,828 5,464,752 --
Amortization of fair value of stock options granted 424,128
Amortization of stock issued for operating expenses
Issuance of stock for consulting services contract
For six months ended January 31, 2008 @ $0.30 per share 83,183 83 24,872 --
For amendede and restated contract @ $0.25 per share 403,388 403 100,445
For six months ended August 31, 2008 @ $0.30 per share 213,725 214 46,841
Issuance of stock for achieving Malaria milestone
New stock issued @ $0.3624 / sh 925,000 925 334,295
Release of 75,000 performance-based shares from escrow 27,180 27,180
Obligation to issue shares under contract 14,391
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss (Restated - See Note _)
----------- -------- ---------- --------
BALANCE - SEPTEMBER 30, 2008 49,453,006 $ 49,453 $6,395,333 $ 14,391
=========== ======== ========== ========
Accumulated Deficit
Other Accumulated
Comprehensive During the Total
Deferred Income Development Stockholders'
Compensation (Loss) Stage Equity
------------ ------ ----- ------
BALANCE - MARCH 20, 2002 $ -- $ -- $ -- $ --
Activity from inception through March 31, 2004 -- -- (77,105) (28,105)
--------- -------- ------------ -----------
BALANCE - MARCH 31, 2004 -- -- (77,105) (28,105)
Forward stock split on a 1.5:1 basis
Comprehensive income (loss)
Foreign exchange translation adjustment (3,472) (3,472)
Net loss (50,205) (50,205)
--------- -------- ------------ -----------
BALANCE - DECEMBER 31, 2005 -- (3,472) (127,310) (81,782)
Share exchange and recapitalization
Shares issued to former shareholders of Upstream Canada 24,000
Shares cancelled on acquisition (68,650)
Recapitalization adjustment (49,045) (53,050)
Fair value compensation to consultant
Issuance of stock at $1.20 per share 600,000
Amortization of fair value of stock options granted 100,150
Issuance of convertible debenture
Fair value of detachable warrants 360,964
Embedded beneficial conversion feature 268,108
Issuance of stock for services
Prepaid for six months ended October 31, 2006 (17,768) --
Less: amount expensed to September 30, 2006 14,986 14,986
Issuance of stock for BCCA license fee 17,747
Partial forfeiture of convertible debenture 141,844
Comprehensive loss
Foreign exchange translation adjustment (5,707) (5,707)
Net loss (Restated - See Note _) (1,843,529) (1,843,529)
--------- -------- ------------ -----------
BALANCE - SEPTEMBER 30, 2006 (2,782) (9,179) (2,019,884) (524,919)
Amortization of fair value of stock options granted 771,809
Amortization of stock issued for operating expenses 2,782 2,782
Issuance of stock for services
Prepaid for twelve months ended October 31, 2007 (34,722) --
Less: amount expensed to September 30, 2007 31,600 31,600
Issuance of stock for cash @ 1.50 per share 2,000,000
Cash payment for unsuccessful due diligence (5,000)
Issuance of stock for convertible debenture
Principal 800,000
Interest payable 53,973
Issuance of stock for acquisition of PPT
For 100% of PPT's shares 244,400
For performance-based escrow shares as deferred compensation (105,750) --
Comprehensive income (loss)
Foreign exchange translation adjustment 36,035 36,035
Net loss (Restated - See Note _) (1,796,981) (1,796,981)
--------- -------- ------------ -----------
BALANCE - SEPTEMBER 30, 2007 (108,872) 26,856 (3,816,865) 1,613,699
Amortization of fair value of stock options granted 424,128
Amortization of stock issued for operating expenses 3,122 3,122
Issuance of stock for consulting services contract
For six months ended January 31, 2008 @ $0.30 per share 24,955
For amendede and restated contract @ $0.25 per share 100,848
For six months ended August 31, 2008 @ $0.30 per share 47,055
Issuance of stock for achieving Malaria milestone
New stock issued @ $0.3624 / sh 335,220
Release of 75,000 performance-based shares from escrow
Obligation to issue shares under contract 14,391
Comprehensive income (loss)
Foreign exchange translation adjustment (7,657) (7,657)
Net loss (Restated - See Note _) (2,034,502) (2,034,502)
--------- -------- ------------ -----------
BALANCE - SEPTEMBER 30, 2008 $ (78,570) $ 19,199 $ (5,851,367) $ 548,439
========= ======== ============ ===========
The accompanying notes are an integral part of
these consolidated financial statements.
29
UPSTREAM BIOSCIENCES, INC
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2008
1. NATURE OF BUSINESS AND CONTINUANCE OF OPERATIONS
Upstream Biosciences, Inc. ("the Company") was incorporated as Integrated Brand
Solutions, Inc. on March 20, 2002 under the laws of the State of Nevada and on
February 6, 2006 changed its name to Upstream Biosciences Inc. to better reflect
the intended future direction and business of the Company.
On February 24, 2006, the Company completed the acquisition of 100% of the
issued and outstanding shares of Upstream Biosciences, Inc. ("Upstream Canada")
pursuant to an amended share exchange agreement entered into with the
shareholders of Upstream Canada. Upstream Canada was incorporated on June 14,
2004 under the laws of Canada for the purpose of developing genetic diagnostic
biomarkers for use in determining a patient's susceptibility to disease and
predicting a patient's response to drugs. After the agreement closed, the
Upstream Canada shareholders held 54.2% of the issued and outstanding common
shares of the Company. Accordingly, the transaction was accounted for as a
recapitalization of Upstream Canada, which is similar to a reverse acquisition,
whereby Upstream Canada is treated as the accounting parent (legal subsidiary)
and the Company is treated as the accounting subsidiary (legal parent). This
means Upstream Canada, the acquired entity, was regarded as the predecessor and
continuing entity as of February 24, 2006.
On August 24, 2007, the Company completed the acquisition of 100% of the issued
and outstanding shares of Pacific Pharma Technologies, Inc ("PPT") pursuant to a
share exchange agreement entered into with the shareholders of PPT. PPT was an
early stage biopharmaceutical company incorporated under the laws of British
Columbia, Canada that had developed a proprietary technology platform combining
artificial intelligence, advanced computational methods and chemical diversity
techniques to discover new drug candidates.
After the acquisition, the Company has been able to pursue business development
strategies in two separate areas:
i) its original strategy of developing technologies in order to generate
revenues from licensing and/or collaborating with third parties in the disease
susceptibility, biomarkers identification, and drug response areas of cancer,
primarily to companies that develop and/or market developing diagnostic
products.
ii) an expanded strategy of developing biotechnology drugs for certain
infectious diseases and cancers in order to generate revenues through either
licensing the technology or selling the drug products following
commercialization and collaboration with third party companies.
Significant time and financing are required before the Company's technologies
are developed to a marketable state. Depending on the level of financing and the
resources available, the Company will continue to evaluate and determine the
most cost effective way of implementing its on-going research and development
programs in all areas of its expertise including diagnostic biomarkers,
biomarkers for a drug response assay, and biotechnology drugs for infectious
diseases and cancers.
GOING CONCERN
These consolidated financial statements have been prepared in accordance with
generally accepted accounting principles in the United States of America on a
going concern basis, which contemplates the realization of assets and the
satisfaction of liabilities and commitments in the normal course of business. As
at September 30, 2008, the Company has working capital of $254,992 and has
incurred losses since inception of $5,753,667. Further losses are anticipated in
the development of its business and there can be no assurance that the Company
will be able to achieve or maintain profitability. The continuing operations of
the Company and the recoverability of the carrying value of assets is dependent
upon the ability of the Company to obtain necessary financing to fund its
on-going working capital requirements and research and development activities,
and upon future profitable operations. The accompanying financial statements do
not include any adjustments relative to the recoverability and classification of
asset carrying amounts or the amount and classification of liabilities that
might result from the outcome of this uncertainty. There is no assurance that
30
equity or debt capital will be available as necessary to meet the Company's
requirements or, if the capital is available, that it will be on terms
acceptable to the Company. The issuances of additional equity securities by the
Company may result in dilution in the equity interests of its current
shareholders. Obtaining commercial loans, assuming those loans would be
available, will increase the Company's liabilities and future cash commitments.
If the Company is unable to obtain financing in the amounts and on terms deemed
acceptable, the business and future success may be adversely affected.
Management plans to continue raising sufficient capital from equity or debt
markets, as a supplement to its existing cash reserves of $612,306, in order to
fund its on-going research and development program and operating losses.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) BASIS OF PRESENTATION
These consolidated financial statements and related notes are presented in
accordance with generally accepted accounting principles in the United States of
America and are expressed in US dollars. The Company is a development stage
company as defined by Statement of Financial Accounting Standard ("SFAS") No. 7,
"Accounting and Reporting by Development Stage Enterprises" and has not realized
any revenues from its planned operations to date. These financial statements
include the accounts of the Company and its wholly-owned subsidiaries, Upstream
Canada and PPT. All inter-company transactions and account balances have been
eliminated on consolidation. The fiscal year end of the Company and its
subsidiaries is September 30.
(B) USE OF ESTIMATES
The preparation of financial statements in conformity with US generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenue and expenses during the reporting period. The
Company bases its estimates and assumptions on current facts, historical
experience and various other factors that it believes to be reasonable under the
circumstances, the results of which form the basis for making judgments about
the carrying values of assets and liabilities and the accrual of costs and
expenses that are readily apparent from other sources. The actual results
experienced by the Company may differ materially from the Company's estimates.
To the extent there are material differences, future results may be affected.
Estimates used in preparing these financial statements include the carrying
value of intellectual property rights, fair value of stock-based compensation,
retiring allowances, deferred income tax rates and deferred compensation.
(C) CASH AND CASH EQUIVALENTS
Cash and cash equivalents consist of bank deposits and short-term investments in
financial instruments with maturities less than 90 days held for the purpose of
meeting short-term cash commitments rather than for investing or other purposes.
Restricted cash consists of security deposits for Company credit cards.
(D) FINANCIAL INSTRUMENTS
The Company's financial instruments consist of cash and cash equivalents, other
receivables, restricted cash, accounts payable, and amounts due to related
parties. It is management's opinion that the Company is not exposed to
significant interest, currency or credit risks arising from these financial
instruments. The fair value of these financial instruments approximates their
carrying values due to the relatively short maturity of these instruments.
(E) EQUIPMENT
Equipment is valued at cost less accumulated amortization. Amortization is
recorded using the straight-line method over four years and maintenance and
repairs are expensed as incurred.
31
(F) INTELLECTUAL PROPERTY RIGHTS
The Company has adopted the provisions of the SFAS No. 142, "Goodwill and Other
Intangible Assets". Intangible assets with a definite life are amortized over
that expected life and tested for impairment at least annually or whenever
events or circumstances indicate a revision to the remaining period of
amortization is warranted.
The fair market value of Intellectual Property Rights (`IPR') acquired on August
24, 2007 during the acquisition of PPT is being amortized on a straight line
basis over 5 years. The determination of any impairment of IPR includes a
comparison of net carrying value with estimated future operating cash flows
anticipated during the remaining life.
(G) TRANSLATION OF FOREIGN CURRENCIES
The functional and reporting currency of the Company is the United States dollar
and of the Company's Canadian subsidiaries is the Canadian dollar. The financial
statements of the Canadian subsidiaries are translated into United States
dollars in accordance with SFAS No. 52 "Foreign Currency Translation" using
period-end rates of exchange for assets and liabilities, and period-average
rates of exchange for revenues and expenses. Gains or losses resulting from
foreign currency transactions are included in the consolidated statements of
operations; whereas, adjustments arising from the translation of financial
statements of the Company's subsidiaries during the consolidation process are
included as a separate component of shareholders' equity called other
comprehensive income (loss). The Company has not, to the date of these
financials statements, entered into derivative instruments to offset the impact
of foreign currency fluctuations.
(H) RESEARCH AND DEVELOPMENT
These costs are expensed when incurred and consist primarily of direct material
and personnel costs, contract services and indirect costs. The Company has
received government assistance in the past and may receive the same in the
future regarding its research and development activities. When the work is
performed that qualifies for such grants, the related assistance amount is
credited to research and development expense.
(I) STOCK-BASED COMPENSATION
The Company has adopted the fair value recognition provisions of SFAS No. 123R,
"Share Based Payments", whereby compensation expense is recognized for all
share-based payments based on the fair value in accordance with the provisions
of SFAS 123R.
All transactions in which goods and services are the consideration received for
the issuance of equity instruments are accounted for based on fair value of the
consideration received or the fair value of the equity instrument issued,
whichever is more reliably measurable.
(J) CONVERTIBLE DEBENTURE
In accordance with EITF 00-27 "Application of Issue No. 98-5 to Certain
Convertible Instruments", the proceeds received on issuance of convertible
debentures are allocated between the convertible debt and the detachable
warrants based on their relative fair values. At the date of issuance, the fair
value of the detachable warrants represents the difference between the stated
value and the carrying value of the convertible debenture and is recorded as
additional paid-in capital. The carrying value of the debenture is accreted to
its face value at maturity through charges to interest and finance charges over
its term. As of September 30, 2008, no convertible debentures were outstanding.
(K) DEFERRED INCOME TAXES
Income taxes are provided for in accordance with Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS 109"), as
interpreted by FASB Interpretation No. 48, "Accounting for Uncertainty in Income
Taxes - an interpretation of FASB Statement No. 109" ("FIN 48"). Deferred tax
assets and liabilities are recorded for temporary differences between the tax
basis of assets and liabilities, computed pursuant to FIN 48 and the reported
amounts in the consolidated financial statements using the statutory tax rates
32
in effect for the year when the reported amount of the asset or liability is
recovered or settled, respectively. The effect on deferred tax assets and
liabilities of a change in tax rates is recognized in the results of operations
in the period that includes the enactment date. A valuation allowance is
recorded to reduce the carrying amounts of deferred tax assets to the amount
that is more likely than not to be realized. For each tax position taken or
expected to be taken in a tax return, the Company determines whether it is more
likely than not that the position will be sustained upon examination based on
the technical merits of the position, including resolution of any related
appeals or litigation. A tax position that meets the more likely than not
recognition threshold is measured to determine the amount of benefit to
recognize. The tax position is measured at the largest amount of benefit that is
greater than 50% likely of being realized upon settlement.
(L) LOSS PER SHARE
The Company computes net loss per share in accordance with SFAS No. 128,
"Earnings per Share", which requires presentation of both basic and diluted loss
per share ("LPS") on the face of the statement of operations. Basic LPS is
computed by dividing the net loss available to common shareholders by the
weighted average number of outstanding common shares during the period. Diluted
LPS gives effect to all potentially dilutive common shares outstanding during
the period, including convertible debt, stock options and share purchase
warrants, using the treasury stock method. The computation of diluted LPS does
not assume conversion, exercise or contingent exercise of securities that would
have an anti-dilutive effect on LPS.
(M) LONG-LIVED ASSETS
In accordance with SFAS No. 144, "Accounting for the Impairment or Disposal of
Long-Lived Assets", the carrying value of intangible assets and other long-lived
assets is reviewed on a regular basis for the existence of facts or
circumstances that may suggest impairment. The Company recognizes impairment
when the sum of the expected undiscounted future cash flows is less than the
carrying amount of the asset. Impairment losses, if any, are measured as the
excess of the carrying amount of the asset over its estimated fair value.
(N) COMPARATIVE FIGURES
Certain comparative figures have been reclassified to conform to the current
year's presentation.
(O) RECENT ACCOUNTING PRONOUNCEMENTS
In November 2008, the FASB voted on the effective date and other amendments of
proposed FASB Staff Position FAS 140-e and FIN 46(R)-e, "Disclosures about
Transfers of Financial Assets and Interests in Variable Interest Entities" ("FSP
FAS 140-e and FIN 46R-e"). FSP FAS 140-e and FIN 46R-e would amend SFAS No. 140,
"Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities - as amended" ("SFAS 140") and FASB Interpretation No. 46
(revised December 2003), "Consolidation of Variable Interest Entities" ("FIN
46R") to require enhanced disclosures by public entities about transfers of
financial assets and interests in variable interest entities, and provide users
of the financial statements with greater transparency about a transferor's
continuing involvement with transferred financial assets and an enterprise's
involvement with variable interest entities. The disclosures required by FSP FAS
140-e and FIN 46R-e will be effective for reporting periods (interim and annual)
ending after December 15, 2008. The Company has reached the conclusion that this
will have no impact on its consolidated financial statements.
In September 2008, the FASB issued two separate but related exposure drafts: (1)
Proposed Statement of Financial Accounting Standards, "Accounting for Transfers
of Financial Assets - an amendment of FASB Statement No. 140", and (2) Proposed
Statement of Financial Accounting Standards, "Amendments to FASB Interpretation
No. 46(R)" (together, the "proposed Statements"). The proposed Statements would
remove the concept of a qualifying special-purpose entity ("QSPE") from SFAS 140
and the exceptions from applying FIN 46R to QSPEs. The proposed Statements would
be effective as of the beginning of a reporting entity's fiscal year that begins
after November 15, 2009. The Company has reached the conclusion that this will
have no impact on its consolidated financial statements.
In June 2008, the FASB issued FASB Staff Position No. EITF 03-6-1, "Determining
Whether Instruments Granted in Share-Based Payment Transactions Are
Participating Securities" ("FSP EITF 03-6-1"). FSP EITF 03-6-1 establishes that
33
unvested share-based payment awards that contain nonforfeitable rights to
dividends or dividend equivalents (whether paid or unpaid) are participating
securities as defined in Emerging Issues Task Force ("EITF") Issue No. 03-6,
"Participating Securities and the Two-Class Method under FASB Statement No.
128", and should be included in the computation of earnings per share pursuant
to the two-class method as described in Statement of Financial Accounting
Standards No. 128, "Earnings per Share". FSP EITF 03-6-1 is effective for
financial statements issued for fiscal years beginning after December 15, 2008,
and interim periods within those years. All prior-period earnings per share data
presented shall be adjusted retrospectively to conform to the provisions of FSP
EITF 03-6-1. Early application is not permitted. The Company is currently
evaluating the impact that the adoption of FSP EITF 03-6-1 will have on its
consolidated financial statements.
In May 2008, the FASB issued Statement of Financial Accounting Standards No.
162, "The Hierarchy of Generally Accepted Accounting Principles" ("SFAS 162").
SFAS 162 identifies a consistent framework, or hierarchy, for selecting
accounting principles to be used in preparing financial statements that are
presented in conformity with U.S. generally accepted accounting principles for
nongovernmental entities. SFAS 162 is effective 60 days following the SEC's
approval of the Public Company Accounting Oversight Board amendments to AU
Section 411, "The Meaning of Present Fairly in Conformity With Generally
Accepted Accounting Principles". The Company has reached the conclusion that
this will have no impact on its consolidated financial statements.
In March 2008, the FASB issued Statement of Financial Accounting Standards No.
161, "Disclosures about Derivative Instruments and Hedging Activities, an
Amendment of FASB Statement No. 133" ("SFAS 161"). SFAS 161 amends and expands
the disclosure requirements of FASB Statement No. 133, "Accounting for
Derivative Instruments and Hedging Activities - as amended" ("SFAS 133"), to
provide enhanced disclosures about how and why an entity uses derivative
instruments; how derivative instruments and related hedged items are accounted
for under SFAS 133; and how derivative instruments and related hedged items
affect an entity's financial position, financial performance, and cash flows.
SFAS 161 is effective for financial statements issued for fiscal years and
interim periods beginning after November 15, 2008, with early application
encouraged. The Company has reached the conclusion that this will have no impact
on its consolidated financial statements.
In December 2007, the FASB issued Statement of Financial Accounting Standards
No. 141 (revised 2007), "Business Combinations" ("SFAS 141R"). SFAS 141R changes
the accounting for and reporting of business combinations including, among other
things, expanding the definition of a business and a business combination;
requiring all assets and liabilities of the acquired business, including
goodwill, contingent assets and liabilities, and contingent consideration to be
recorded at fair value on the acquisition date; requiring acquisition-related
transaction and restructuring costs to be expensed, rather than accounted for as
acquisition costs; and requiring reversals of valuation allowances related to
acquired deferred tax assets and changes to acquired income tax uncertainties to
be recognized in earnings. SFAS 141R applies prospectively to business
combinations for which the acquisition date is on or after the beginning of the
first annual reporting period beginning on or after December 15, 2008. Earlier
application of SFAS 141R is prohibited. The Company has reached the conclusion
that this will have no impact on its consolidated financial statements.
In December 2007, the FASB issued Statement of Accounting Standards No. 160,
"Non-controlling Interests in Consolidated Financial Statements, an Amendment of
ARB No. 51" ("SFAS 160"). SFAS 160 changes the accounting and reporting for
non-controlling interests (previously referred to as minority interests) such
that non-controlling interests will be reported as a component of equity; losses
will be allocated to the non-controlling interest; changes in ownership
interests that do not result in a change in control will be accounted for as
equity transactions and, upon a loss of control, any gain or loss on the
interest sold will be recognized in earnings and any ownership retained will be
re-measured at fair value. SFAS 160 is effective for fiscal years, and interim
periods within those fiscal years, beginning on or after December 15, 2008.
Earlier application of SFAS 160 is prohibited. SFAS 160 applies prospectively as
of the beginning of the fiscal year in which it is initially applied, except for
the presentation and disclosure requirements which apply retrospectively for all
periods presented. The Company has reached the conclusion that this will have no
impact on its consolidated financial statements.
34
3. INTELLECTUAL PROPERTY RIGHTS
Year ended Year ended
September 30, September 30,
2008 2007
--------- ---------
Cost $ 295,907 $ 295,907
Deferred income tax 57,415 57,415
--------- ---------
Total cost 353,322 353,322
Deferred income tax recovery (11,486) --
Amortization (47,695) --
--------- ---------
Balance at year end $ 294,141 $ 353,322
========= =========
4. RELATED PARTY TRANSACTIONS
At September 30, 2008, the Company owed $300,000 (September 30, 2007 - $330,123)
for unpaid compensation of $nil (September 30, 2007 - $30,123) and accrued
retiring provisions included in accounts payable and accrued liabilities of
$300,000 (September 30, 2007 - $300,000).
At September 30, 2008 related parties owed the Company $385 (September 30, 2007
- - $nil).
The compensation paid or accrued for the benefit of the three Company officers
was as follows:
Year ended Year ended
September 30, September 30,
2008 2007
-------- --------
Management fees and benefits $470,866 $403,322
Amortization of fair value of stock
options granted 248,269 476,550
-------- --------
Total compensation to Company officers $719,135 $879,872
======== ========
Of the management fees and benefits expensed during the year, $158,003 was
recorded as research and development (2007 - $152,340).
All related party transactions are conducted in the ordinary course of business
and measured at the exchange amount, which is the consideration established and
agreed to by the related parties.
5. DEFERRED INCOME TAXES
The parent Company is subject to income taxes in the US and its wholly-owned
subsidiaries are subject to income taxes in Canada. As of September 30, 2008,
both the Company and its subsidiaries had accumulated non-capital loss
carry-forwards of approximately $3,050,000, which are available to reduce
taxable income in future taxation years. These losses begin to expire in 2025
after carry-forward periods of 20 years. The Company is required to compute the
deferred income tax benefits from non-capital loss carry-forwards. However, due
to the uncertainty of realization of these loss carry-forwards, a full valuation
allowance has been provided for this deferred income tax asset.
In addition, the Company has a deferred income tax liability of $45,932 (2007:
$57,415) arising from the "tax gross-up" required by US GAAP during the
acquisition of PPT. At the time of acquisition, it represented the deferred
35
income tax on the difference between fair value of the IPR acquired for
accounting purposes and the related tax base.
At September 30, 2008 and 2007, the components of the deferred income tax
accounts are shown below including non-capital tax loss carry forwards,
statutory tax rate, deferred income tax asset and elected amount of valuation
allowance:
September 30, September 30,
2008 2007
-------- --------
Non-capital tax loss carry forwards $ 3,050,000 $ 1,700,000
Statutory tax rate 35% 35%
Deferred income tax asset 1,067,500 595,000
Less: valuation allowance (1,067,500) (595,000)
----------- -----------
Net deferred income tax asset $ -- $ --
=========== ===========
Net deferred income tax liability $ 45,932 $ 57,415
=========== ===========
6. CAPITAL STOCK
A) AUTHORIZED
The authorized capital stock of the Company is comprised of 100,000,000
non-voting preferred shares and 750,000,000 voting common shares, both with a
par value of $0.001 per share.
B) ISSUED AND OUTSTANDING
No preferred shares have been issued to date.
During the year ended September 30, 2007, the changes in common stock were as
follows:
(i) On January 1 and June 5, 2007, a total of 48,326 common shares were
issued pursuant to an office lease agreement with a fair value of
$34,722.
(ii) On February 28 and May 8, 2007, 1,333,334 units were issued at a
subscription price of $1.50 per unit pursuant to private placements
for $2,000,000. Each unit consists of one common share of the Company,
one non-transferable Series A warrant and one non-transferable Series
B warrant both entitling the holders to purchase one additional common
share at an exercise price of $1.75 and $1.85 respectively for a two
year period expiring February 28 and May 8, 2009. No value was
attributed to the warrants issued as part of these unit placements.
(iii) On March 15, 2007, 853,973 common shares were issued pursuant to the
terms of a three year, 5% convertible debenture due February 1, 2009
whereby the Company, at its option, was entitled to convert the
outstanding principal of $800,000 and related interest payable of
$53,973 into common shares at $1.00 per share at any time.
(iv) On August 24, 2007, 520,000 common shares were issued into escrow at
fair value of $244,400 pursuant to a share exchange agreement entered
into with the shareholders of PPT. On the same date, 225,000
performance-based escrow shares were issued at fair value of $105,750
to be released in the future when certain agreed research milestones
are achieved.
During the year ended September 30, 2008, the changes in common stock were as
follows:
(i) 700,296 shares were issued with a fair market value of $172,858
pursuant to a consulting services agreement for the development and
commercialization of proprietary drugs with one of the former
36
shareholders of PPT. All amounts under this agreement are recorded as
research and development expense in the statement of operations as
follows:
(a) Effective January 31, 2008, 83,183 shares with a fair value of
$24,955 for the six months then ended.
(b) Effective March 1, 2008, 403,388 prepaid shares with a fair value
of $100,848.
(c) Effective August 31, 2008, 213,725 shares with a fair value of
$47,055.
(ii) On February 28, 2008, 925,000 shares were issued pursuant to the terms
of an agreement dated August 24, 2007 regarding the purchase of PPT
whereby the Company was obligated to issue 1,000,000 shares to the two
former shareholders of PPT in consideration for each milestone
achieved. The fair value of the common shares issued was $335,220
which was recorded as research and development expense in the
statement of operations for the year ended September 30, 2008. At the
same time, 75,000 shares were released from the escrow pool of 225,000
performance-based shares which had been set aside for this purpose,
leaving a balance of 150,000 shares for future milestones as of
September 30, 2008.
C) STOCK OPTIONS
During the year ended September 30, 2007, the changes in stock options were as
follows:
(i) In March 2007, the Company approved and adopted a stock option plan
(the "Plan") authorizing the issuance of up to 5,000,000 shares of
common stock upon exercise of the options granted pursuant to the
Plan. Under the Plan, the Company's employees, directors, officers,
consultants and advisors (collectively the "Optionee Group") are
eligible to receive a grant of the Company's shares, provided however
that bona fide services are rendered by consultants or advisors and
such services are not in connection with the offer or sale of
securities in a capital-raising transaction.
(ii) In March and May 2007, the Company granted 1,800,000 additional stock
options pursuant to the Plan at the market price prevailing at the
date of grant to certain members of the Optionee Group under the
following terms and conditions:
(a) 800,000 options exercisable at $0.96 per share for 10 years
ending March 16, 2017 with 300,000 vesting immediately, 300,000
vesting one year from date of grant, and 200,000 vesting two
years from date of grant.
(b) 700,000 options exercisable from $0.96 to $1.00 per share for 5
years ending March 16, 2012 with 400,000 vesting immediately,
200,000 vesting one year from date of grant, and 100,000 vesting
two years from date of grant.
(c) 100,000 options exercisable at $1.02 per share for 5 years ending
March 27, 2012 with 33,333 vesting immediately, 33,333 vesting
one year from date of grant, and 33,334 vesting two years from
date of grant.
(d) 200,000 options exercisable at $1.41 per share for 5 years ending
May 3, 2012 with 66,666 vesting immediately, 66,666 vesting one
year from date of grant, and 66,668 vesting two years from date
of grant.
The fair value of stock options granted during the year ended September 30, 2007
was estimated to be $1,449,100 using the Black-Scholes option pricing model
using the following assumptions: expected stock price volatility of 132%,
risk-free interest rate of 3.5%, expected option life of 3 years and expected
dividend yield of 0%. Due to the subjective nature of these assumptions, the
fair value estimate can vary significantly with changed assumptions.
During the year ended September 30, 2008, no stock options were granted but
200,000 were cancelled following the resignations of two former directors.
37
In connection with all options granted to date, the Company recorded $424,128 as
stock-based compensation expense for the year ended September 30, 2008 (2007 -
$771,809). The unamortized balance of $221,321 will continue to be charged to
operations on a straight-line basis over the remaining vesting periods.
The following table provides continuity of the outstanding stock options during
the year ended September 30, 2008:
# of Options # of Options
Outstanding at Outstanding at
Exercise September 30, September 30,
Grant Date Expiry Date Price 2007 Cancelled 2008
---------- ----------- ----- ---- --------- ----
May 1, 2006 March 1, 2016 $0.80 400,000 400,000
March 16, 2007 March 16, 2017 $0.96 800,000 800,000
March 16, 2007 March 16, 2012 $0.96-$1.00 700,000 700,000
March 27, 2007 March 27, 2012 $1.02 100,000 (100,000) --
May 3, 2007 May 3, 2012 $1.41 200,000 (100,000) 100,000
--------- -------- ---------
TOTALS 2,200,000 200,000 2,000,000
========= ======== =========
As of September 30, 2008, 1,533,333 stock options were exercisable with a
weighted average exercise price and remaining life of $0.95 and 6.3 years,
respectively.
D) SHARE PURCHASE WARRANTS
The following table provides continuity of the outstanding stock purchase
warrants during the year ended September 30, 2008:
# of Shares # of Shares
Outstanding at Outstanding at
Exercise September 30, September 30,
Grant Date Expiry Date Price 2007 Expired 2008
---------- ----------- ----- ---- ------- ----
Feb 28, 2007 Feb 28, 2009 $1.75 666,667 666,667
Feb 28, 2007 Feb 28, 2009 $1.85 666,667 666,667
May 8, 2007 May 8, 2009 $1.75 666,667 666,667
May 8, 2007 May 8, 2009 $1.85 666,667 666,667
--------- -------- ---------
TOTALS 2,666,668 0 2,666,668
========= ======== =========
The weighted average exercise price and remaining life of the stock purchase
warrants as of September 30, 2008 was $1.80 and 0.51 years, respectively.
7. NON-CASH OPERATING, INVESTING AND FINANCING ACTIVITIES
During the year ended September 30, 2008, the Company issued 1,625,296 shares
(year ended September 30, 2007 - 1,647,299) for non-cash consideration as
follows:
(a) 700,296 shares were issued with a fair market value of $172,858
pursuant to a consulting services agreement for the development and
commercialization of proprietary drugs with one of the former
shareholders of PPT. All amounts under this agreement are recorded as
research and development expense in the statement of operations as
follows:
(i) Effective January 31, 2008, 83,183 shares with a fair value of
$24,955 for the six months then ended in accordance with the
original consulting agreement.
(ii) Effective March 1, 2008, 403,388 prepaid shares with a fair value
of $100,847 in accordance with the amended and restated
consulting agreement.
(iii) Effective August 31, 2008, 213,725 shares with a fair value of
$47,055 in accordance with a consulting agreement.
38
(b) On February 28, 2008, 925,000 shares were issued pursuant to the terms
of an agreement dated August 24, 2007 regarding the purchase of PPT
whereby the Company was obligated to issue 1,000,000 shares to the two
former shareholders of PPT in consideration for each milestone
achieved. The fair value of the common shares issued was $362,400
which was recorded as research and development expense in the
statement of operations for the year ended September 30, 2008.
8. COMMITMENTS AND CONTINGENCIES
(A) EMPLOYMENT CONTRACTS WITH THREE COMPANY OFFICERS
The Company has entered into employment contracts with three Company officers
for renewable periods of two to three years. The total annual cash compensation
commitment for the three officers is $450,000, excluding a 40% bonus commitment
for two of the three officers when certain performance milestones, yet to be
determined, are achieved in the future.
In the event of contract termination by either party and subject to 30 to 90-day
termination clauses, retirement allowances of $300,000 ($150,000 each) will
become immediately payable to the two officers. The amount was fully accrued at
September 30, 2008.
(B) ON-GOING COMMITMENTS PERTAINING TO PPT ACQUISITION
(i) A three year consulting services agreement commenced immediately after
the acquisition with one of the former shareholders of PPT in
connection with the development and commercialization of proprietary
drugs using PPT's intellectual property rights. Initially, the annual
consulting fee consisted of $49,250 in cash payable monthly and
$49,250 in shares payable semi-annually based on the closing share
price at the end of each month. Effective March 1, 2008, the original
agreement was amended and restated. The equity component was increased
to $193,000 (C$200,000) of which $100,848 was paid immediately with
403,368 common shares and $47,055 ($50,000) was paid effective August
31, 2008 with 213,725 shares. The equity component balance of $48,427
(C$50,000) is due on February 28, 2009. Thereafter, the annual equity
component of $196,330 (C$200,000) will be payable semi-annually until
the agreement expires on July 31, 2010 along with the annual cash
component which was not changed.
(ii) The Company is committed to issuing up to 2,000,000 additional common
shares for the future achievement of two agreed research milestones
depending on the degree of success. These shares will be reduced by
the release of 150,000 performance-based shares remaining from the
225,000 originally put into escrow and recorded in stockholders'
equity as deferred compensation during the acquisition of PPT.
(iii) The Company must spend a minimum $150,000 on third-party testing of
the PPT intellectual property during each of the four years ending
December 31, 2011 or else the maximum contingent shares payment for
milestone achievements described above becomes due and payable. This
commitment was met for the year ended September 30, 2008.
(C) CONTINGENT PAYMENT FOR SUCCESSFUL FUND RAISING
On May 27, 2008, the Company signed a non-exclusive agreement with a
Toronto-based investment firm for five months at $7,500 per month, extendable on
a month-to-month basis by mutual agreement, which remains in effect to the date
of this report. Upon successful completion of a financing agreement, the Company
will pay this firm 2% of the funds raised or $247,800, whichever is greater.
(D) LICENSE AGREEMENT WITH BRITISH COLUMBIA CANCER AGENCY BRANCH ("BCCA")
The Company entered into a license agreement with BCCA on March 10, 2005 for a
seven year term expiring March 2012 regarding bioinformatics technology
developed at the University of British Columbia ("UBC"). Under terms of the
agreement, the Company paid the initial license fee to BCCA during year ended
September 30, 2006 by issuing 29,477 Company shares having a fair value of
$17,747 at the time of issuance.
39
In addition, the Company is obligated to pay annual royalties starting September
14, 2007 equal to 10% of the gross revenue from licensed product sales or
$9,632, whichever is greater. At September 30, 2008, royalties of $10,033 have
been accrued but unpaid.
(E) LICENSE AGREEMENT WITH UNIVERSITY OF BRITISH COLUMBIA ("UBC")
Upstream Canada entered into a License Agreement with UBC on March 23, 2005 for
a ten year term expiring March 2015 regarding bioinformatics technology
developed at UBC. Under terms of the agreement, Upstream Canada agreed to pay
the initial license fee consisting of $7,554 cash plus an equity component which
is subject to on-going negotiations. The former has been paid and the latter
accrued at an estimated amount of $12,040 (CDN$12,500) but unpaid as of
September 30, 2008.
In addition to the license fee and commencing March 2005, Upstream Canada has
agreed to pay the greater of (a) annual royalties equal to 15% of the gross
revenue from licensed product sales or (b) the minimum annual sliding scale
amounts as follows: $7,554 from April 1, 2005 to March 31, 2007 (2 years);
$14,448 from April 1, 2007 to March 31, 2012 (5 years); and $19,264 from April
1, 2012 to March 31, 2015 (3 years). To September 30, 2008, royalties of $21,672
(CDN$22,500) have been accrued but unpaid.
(F) MINIMUM ANNUAL COMMITMENTS
The aggregate minimum annual commitments regarding the above commitments for the
next five years ending September 30 are as follows:
2009 $111,372
2010 25,955
2011 25,955
2012 25,955
2013 31,146
Thereafter to 2015, inclusive 51,909
--------
$272,292
========
9. RESTATEMENT
The consolidated financial statements for the period ended September 30, 2008
have been amended. The Company has restated its financial statements to correct
the calculation of the accounting for accrued severance liabilities to two
officers. The Company has restated the balance sheet, statement of operations,
cash flows and stockholders' deficit for the period ended September 30, 2008 to
correctly present these revised calculations.
At September 30, 2008, the full accrued liability of $300,000 in connection with
the severance provisions has been recognized and the related accrued liability
of $258,333, previously being accreted straight line over the three year term of
the original employment agreements, has been reversed.
The amount of $106,250 that was previously accrued for an officer of the Company
has been reversed.
The effect on the company's audited financial statements for the year ended
September 30, 2008 is as follows following adjustments:
As At September 30, 2008
-------------------------------------------------------
As Originally
Reported Adjustments As Restated
---------- ----------- -----------
$ $ $
BALANCE SHEET
Accounts payable and accrued liabilities 98,315 300,000 398,315
Due from related parties 364,198 (364,583) (385)
Accumulated deficit (5,915,950) (64,583) (5,851,367)
40
For The Year Ended September 30, 2008
-------------------------------------------------------
As Originally
Reported Adjustments As Restated
---------- ----------- -----------
$ $ $
STATEMENT OF OPERATIONS AND DEFICIT
Management compensation 487,863 (175,000) 312,863
Net loss (2,209,502) 175,000 (2,034,502)
Cumulative From Inception (June 14, 2004) to September 30, 2008
---------------------------------------------------------------
As Originally
Reported Adjustments As Restated
---------- ----------- -----------
$ $ $
STATEMENT OF OPERATIONS AND DEFICIT
Management compensation 1,195,772 (64,583) 1,131,189
Net loss (5,818,250) 64,583 (5,753,667)
STATEMENT OF CASH FLOWS
Net cash flow (used in) operating activities
- Year ended September 30, 2008 (991,768) -- (991,768)
- From inception (June 14, 2004) to
September 30, 2008 (2,374,753) -- (2,374,753)
41
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
DISCLOSURE CONTROLS AND PROCEDURES
As required by paragraph (b) of Rules 13a-15 or 15d-15 under the Exchange Act,
our principal executive officer and principal financial officer evaluated our
company's disclosure controls and procedures (as defined in Rules 13a-15(e) and
15d-15(e) of the Exchange Act) as of the end of the period covered by this
annual report on Form 10-K. Based on this evaluation, these officers concluded
that as of the end of the period covered by this Annual Report on Form 10-K,
these disclosure controls and procedures were not effective to ensure that the
information required to be disclosed by our company in reports it files or
submits under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the rules and forms of the Securities
Exchange Commission and include controls and procedures designed to ensure that
such information is accumulated and communicated to our company's management,
including our company's principal executive officer and principal financial
officer, to allow timely decisions regarding required disclosure. The conclusion
that our disclosure controls and procedures were not effective was due to the
presence of material weaknesses in internal control over financial reporting as
identified below under the heading "Management's Report on Internal Control Over
Financial Reporting." Management anticipates that such disclosure controls and
procedures will not be effective until the material weaknesses are remediated.
Our company intends to remediate the material weaknesses as set out below.
Because of the inherent limitations in all control systems, no evaluation of
controls can provide absolute assurance that all control issues, if any, within
our company have been detected. These inherent limitations include the realities
that judgments in decision-making can be faulty and that breakdowns can occur
because of simple error or mistake.
MANAGEMENT'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
Our company's management is responsible for establishing and maintaining
adequate internal control over financial reporting (as defined in Rules
13a-15(f) and 15d-15(f) of the Exchange Act) for our company. Our company's
internal control over financial reporting is designed to provide reasonable
assurance, not absolute assurance, regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles in the United States of
America. Internal control over financial reporting includes those policies and
procedures that: (i) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of our
company's assets; (ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles in the United States of
America, and that our company's receipts and expenditures are being made only in
accordance with authorizations of our management and directors; and (iii)
provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of our assets that could have a
material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting
may not prevent or detect misstatements. In addition, 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 that the
degree of compliance with the policies or procedures may deteriorate.
Our Management, including our principal executive officer and principal
financial officer, conducted an evaluation of the design and operation of our
internal control over financial reporting as of September 30, 2008 based on the
criteria set forth in Internal Control - Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission. This
evaluation included review of the documentation of controls, evaluation of the
design effectiveness of controls, testing of the operating effectiveness of
controls and a conclusion on this evaluation. Based on this evaluation, our
management concluded our internal control over financial reporting was not
effective as at September 30, 2008 due to the following material weaknesses
which are indicative of many small companies with small staff: (i) inadequate
segregation of duties and effective risk assessment; (ii) insufficient written
42
policies and procedures for accounting and financial reporting with respect to
the requirements and application of both US GAAP and SEC guidelines; (iii)
inadequate security and restricted access to computer systems including
insufficient disaster recovery plans; and (iv) no written whistle-blower policy.
Our company plans to take steps to enhance and improve the design of our
internal controls over financial reporting. During the period covered by this
annual report on Form 10-K, we have not been able to remediate the material
weaknesses identified above. To remediate such weaknesses, we plan to implement
the following changes during our fiscal year ending September 30, 2009: (i)
appoint additional qualified personnel to address inadequate segregation of
duties and ineffective risk management; (ii) adopt sufficient written policies
and procedures for accounting and financial reporting and a whistle-blower
policy; and (iii) implement sufficient security and restricted access measures
regarding our computer systems and implement a disaster recovery plan. The
remediation efforts set out in (i) and (iii) are largely dependent upon our
company securing additional financing to cover the costs of implementing the
changes required. If we are unsuccessful in securing such funds, remediation
efforts may be adversely effected in a material manner.
This annual report does not include an attestation report of our independent
registered public accounting firm regarding internal control over financial
reporting. Our internal control over financial reporting was not subject to
attestation by our independent registered public accounting firm pursuant to
temporary rules of the Securities and Exchange Commission that permit us to
provide only management's report in this annual report.
Because of the inherent limitations in all control systems, no evaluation of
controls can provide absolute assurance that all control issues, if any, within
our company have been detected. These inherent limitations include the realities
that judgments in decision-making can be faulty and that breakdowns can occur
because of simple error or mistake.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING.
There were no changes in our company's internal control over financial reporting
during the quarter ended September 30, 2008 that have materially affected, or
are reasonably likely to materially affect, our company's internal control over
financial reporting.
ITEM 9B. OTHER INFORMATION
None.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
DIRECTORS AND EXECUTIVE OFFICERS
As at December 19, 2008, our directors and executive officers, their ages,
positions held, and duration of such, are as follows:
Date First Elected
Name Position Held with the Company Age or Appointed
---- ------------------------------ --- ------------
Joel Bellenson Chief Executive Officer and Director 44 March 1, 2006
Dexster Smith President and Director 41 March 1, 2006
Dr. Geert Cauwenbergh (1)(2) Director 54 March 25, 2008
Jeffrey Bacha (1)(2) Director 40 April 3, 2008
Tim Fernback Chief Financial Officer 41 April 12, 2006
- ----------
(1) Members of the Compensation Committee
(2) Members of the Audit Committee
43
BUSINESS EXPERIENCE
The following is a brief account of the education and business experience of
each director and executive officer during at least the past five years,
indicating each person's principal occupation during the period, and the name
and principal business of the organization by which he was employed.
JOEL LLOYD BELLENSON
Joel Bellenson was appointed as a director and the Chief Executive Officer of
our company on March 1, 2006 and was appointed as a director and Chief Executive
Officer of Upstream Canada in August, 2004. From 1998 to present, Mr. Bellenson
has been a partner in Libra Digital, LLC, a consulting limited liability company
that develops new technologies and provides marketing assistance in the fields
of biotechnology and alternative energy. Mr. Bellenson was also a co-founder of
DigiScents Inc. and its Chief Executive Officer from 1999 to 2001. DigiScents
developed hardware and software multimedia platforms for adding scent to movies,
interactive games, advertising and e-commerce. Mr. Bellenson was also a
co-founder of DoubleTwist Inc., its Chief Executive Officer and Chief Strategist
from 1991 to 1999 and a director from 1991 to 2001. DoubleTwist was a
bioinformatics company that designed informatics systems in the fields of
biology, chemistry and healthcare for customers in the life sciences industries.
Mr. Bellenson obtained a Bachelor of Science (Biology) from Stanford University
in 1988.
DEXSTER L. SMITH
Dexster Smith was appointed as a director and the President of our company on
March 1, 2006 and was appointed as a director and the President of Upstream
Canada in August, 2004. From 1998 to present, Mr. Smith has been a partner in
Libra Digital, LLC, a consulting limited liability company that develops new
technologies and provides marketing assistance in the fields of biotechnology
and alternative energy. Mr. Smith was also a co-founder of DigiScents Inc. and
its President from 1999 to 2001. DigiScents developed hardware and software
multimedia platforms for adding scent to movies, interactive games, advertising
and e-commerce. Mr. Smith was also a co-founder of DoubleTwist Inc., its
President from 1991 to 1999 and a director from 1991 to 2001. DoubleTwist was a
bioinformatics company that designed informatics systems in the fields of
biology, chemistry and healthcare for customers in the life sciences industries.
Mr. Smith obtained a Bachelor of Science (Industrial Engineering) from Stanford
University in 1989.
DR. GEERT CAUWENBERGH
Dr. Cauwenbergh was appointed as a director of our company on March 25, 2008. In
2001, Dr. Cauwenbergh founded Barrier Therapeutics, Inc., a pharmaceutical
company developing and commercializing products in the field of dermatology, and
he subsequently led Barrier Therapeutics' successful initial public offering.
Barrier Therapeutics merged with Stiefel Laboratories in August of 2008. Prior
to Barrier Therapeutics, Dr. Cauwenbergh was Vice President of Technology of the
Johnson & Johnson Consumer and Personal Care Products Companies, leveraging
intellectual property owned by Johnson & Johnson to launch new companies and
businesses. Previously, Dr. Cauwenbergh served as Vice President of Research &
Development of the Johnson & Johnson Consumer Companies Worldwide, Vice
President of Product Development and a member of the Management Board of the
U.S. Johnson & Johnson Consumer Company and Director of the Corporate Skin Care
Council of Johnson & Johnson. He also was a member of the Johnson & Johnson
Business Development Council.
Earlier in his career, at Janssen Pharmaceutica in Belgium, Dr. Cauwenbergh was
the International Director of Clinical R&D, Dermatology and Infectious Diseases
at the Janssen Research Foundation. Dr. Cauwenbergh also serves on the Board of
Directors of Ablynx nv and Euroscreen SA in Belgium, as well as DARA Biosciences
Inc. and ECI Biotech in the USA. On August 25, 2008, Dr. Cauwenbergh joined RHEI
Pharmaceuticals Inc., a private development company in China, as its Chairman
and CEO. Dr Cauwenbergh has authored over 100 publications and co-authored
several books. Dr. Cauwenbergh received a Ph.D. in medical sciences from the
Catholic University of Leuven, Faculty of Medicine, where he also completed his
Master's and undergraduate work.
JEFFREY BACHA
Mr. Bacha was appointed as a director of our company on April 3, 2008. Jeffrey
Bacha has over fifteen years of experience working within the life sciences
industry, specifically in the areas of operations, strategy and finance. During
44
his career, he has assisted biotechnology, pharmaceutical and medical device
companies to develop and implement a wide range of business and financing
strategies.
Mr. Bacha currently oversees the drug development and financial activities of
Clera Inc. in his current role as Executive Vice President, Corporate Affairs
and Chief Operating Officer and acts in an advisory capacity to a number of
other companies.
In 2002, Mr. Bacha launched Inimex Pharmaceuticals as President and Founding
Chief Executive Officer with University of British Columbia Professors Bob
Hancock and Brett Finlay. Prior to leaving Inimex in 2005, Mr. Bacha led the
company through its start-up phase to pre-clinical lead selection. He recruited
the management and scientific research teams, completed key strategic
partnerships and venture capital financing. Based on Mr. Bacha's leadership,
Inimex is positioned to advance new medicines that are anticipated to overcome
the serious issues of drug resistance in the treatment of bacterial infections
and other diseases into human clinical trials.
From 1998 until joining Inimex, Mr. Bacha served as Vice President, Corporate
Development of Inflazyme Pharmaceuticals Ltd. where he was responsible for
overall corporate strategy, partnering and licensing activities, corporate
communications and investor relations.
In a consulting capacity, Mr. Bacha has served as a founding member of the Board
of Directors of Urigen Holdings Inc., a clinical stage specialty pharmaceutical
company focused on the development and commercialization of new products to
treat and diagnose major urological disorders. During his tenure as a Director,
he assisted the company in the development of its business plan, its relocation
to Vancouver, Canada, the completion of a Series A financing and led the
company's successful effort to in-license a second clinical-stage urology
platform in order to expand its product development portfolio. Urigen recently
announced a reverse take-over of a NASDAQ listed company. Additionally, Mr.
Bacha served as founding Chief Financial Officer and Vice President, Corporate
Development of XBiotech Inc., a start-up antibody platform company. Mr. Bacha
assisted the company in establishing its business including development of its
business plan, raising initial seed capital and location of the company's
laboratories to co-founder and Nobel laureate Rolf Zinkernagel's laboratories in
Europe.
Prior 1998, Mr. Bacha spent a number of years in KPMG's U.S. Health Ventures and
Life Sciences Corporate Finance Group where he was most recently Senior Manager
and Director in the Firm's San Francisco practice. Mr. Bacha has also served as
the Founding Director of Marketing for the Forensic Research Consulting Group,
of San Diego, California, and as Production, New Product Development and
Regulatory Compliance Manager for MarDx Diagnostics, Inc. of Carlsbad,
California.
Mr. Bacha is originally from California, USA. He holds a B.Sc. in Biophysics
from the University of California and an M.B.A. from the Goizueta Business
School at Emory University.
Both Inimex and Inflazyme were named one of the "Top 10 Life Sciences Investment
Opportunities" in Canada during every year of his tenure at those organizations.
Mr. Bacha has been recognized by Business in Vancouver Magazine as one of the
"Top 40 Under 40" business persons in British Columbia and in 2004 he was
nominated for the Ernst & Young Entrepreneur of the Year Award.
In addition to his biotechnology industry endeavors, Mr. Bacha serves on the
Board of Directors of Covenant House Vancouver, a not-for-profit agency focused
on assistance to street youth; and as the former Chair of the Greater Vancouver
Economic Council.
TIM FERNBACK
Tim Fernback has been the Chief Financial Officer of our company since April 12,
2006. Mr. Fernback has over a decade of experience financing both private and
public companies in Canada. Mr. Fernback was the head of the technology
consulting practice for Discovery Capital Corporation, a prominent British
Columbia venture capital firm specializing in financing and consulting to
technology based start-up ventures, and later oversaw the Investment Banking and
Corporate Finance Departments for Western Canadian-based brokerage firm,
Wolverton Securities Ltd.
45
In 2004, Mr. Fernback left Wolverton Securities and was the founder of a
boutique technology consulting practice. Since 2002, Mr. Fernback has been an
active director of the Okanagan Capital Fund, a Canadian-based technology
venture fund. Mr. Fernback holds an Honors B.Sc. in Biology from McMaster
University (1991) with a concentration in molecular biology, and also a graduate
of the University of British Columbia (1993), where he completed his MBA with a
concentration in Finance.
SIGNIFICANT EMPLOYEES
We have no significant employees other than the officers of our company.
FAMILY RELATIONSHIPS
There are no family relationships among our directors or officers.
INVOLVEMENT IN CERTAIN LEGAL PROCEEDINGS
Our directors, executive officers and control persons have not been involved in
any of the following events during the past five years:
1. any bankruptcy petition filed by or against any business of which such
person was a general partner or executive officer either at the time
of the bankruptcy or within two years prior to that time;
2. any conviction in a criminal proceeding or being subject to a pending
criminal proceeding (excluding traffic violations and other minor
offenses);
3. being subject to any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring,
suspending or otherwise limiting his involvement in any type of
business, securities or banking activities; or
4. being found by a court of competent jurisdiction (in a civil action),
the Securities and Exchange Commission or the Commodity Futures
Trading Commission to have violated a federal or state securities or
commodities law, and the judgment has not been reversed, suspended, or
vacated.
AUDIT COMMITTEE
Our board of directors struck an audit committee on December 3, 2008. As of this
date, Jeffrey Bacha and Geert Cauwenbergh were appointed as sole members of the
audit committee with Jeffrey Bacha acting as Chairman of the committee, both are
independent directors of our company. Jeffrey Bacha and Geert Cauwenbergh of our
compensation committee are independent as defined by Rule 4200(a)(15) of the
Nasdaq Marketplace Rules. Our audit committee undertakes an independent review
of our company's financial statements, and meets with management to determine
the adequacy of internal controls and other financial reporting matters.
Prior to striking the audit committee, our entire board of directors acted as
the audit committee, which included Joel Bellenson, Dexster Smith, Dr. Geert
Cauwenbergh and Jeffrey Bacha. Our board of directors determined that Dr. Geert
Cauwenbergh and Jeffrey Bacha were the only members of our board of directors
that were "independent" as the term is defined by Rule 4200(a)(15) of the Nasdaq
Marketplace Rules.
AUDIT COMMITTEE FINANCIAL EXPERT
Our board of directors has determined that it does not have an audit committee
member that qualifies as an "audit committee financial expert" as defined in
Item 407(d)(5)(ii) of Regulation S-K. We believe that the audit committee
members are collectively capable of analyzing and evaluating our financial
statements and understanding internal controls and procedures for financial
reporting. In addition, we believe that retaining an independent director who
would qualify as an "audit committee financial expert" would be overly costly
46
and burdensome and is not warranted in our circumstances given the early stages
of our development and the fact that we have not generated revenues to date.
NOMINATION PROCEDURES FOR APPOINTMENT OF DIRECTORS
As of December 19, 2008, we did not effect any material changes to the
procedures by which our stockholders may recommend nominees to our board of
directors.
CODE OF ETHICS
Effective January 29, 2004, our company's board of directors adopted a Code of
Business Conduct and Ethics that applies to, among other persons, members of our
board of directors, our company's officers, contractors, consultants and
advisors. As adopted, our Code of Business Conduct and Ethics 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 and Ethics to an appropriate person or persons identified in
the Code of Business Conduct and Ethics; and
(5) accountability for adherence to the Code of Business Conduct and
Ethics.
Our Code of Business Conduct and Ethics requires, among other things, that all
of our company's personnel shall be accorded full access to our president with
respect to any matter which may arise relating to the Code of Business Conduct
and Ethics. Further, all of our company's personnel are to be accorded full
access to our company's board of directors if any such matter involves an
alleged breach of the Code of Business Conduct and Ethics by our company
officers.
In addition, our Code of Business Conduct and Ethics 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, provincial 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 company's President. If the incident involves an
alleged breach of the Code of Business Conduct and Ethics by the President, 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 and Ethics by another.
We will provide a copy of the Code of Business Conduct and Ethics to any person
without charge, upon request. Requests can be sent to our company at the address
on the cover of this annual report.
SECTION 16(a) BENEFICIAL OWNERSHIP COMPLIANCE
Section 16(a) of the Securities Exchange Act requires our executive officers and
directors, and persons who own more than 10% of our common stock, to file
reports regarding ownership of, and transactions in, our securities with the
Securities and Exchange Commission and to provide us with copies of those
filings. Based solely on our review of the copies of such forms received by us,
or written representations from certain reporting persons, we believe that
during the fiscal year ended September 30, 2008, all filing requirements
applicable to our officers, directors and greater than 10% percent beneficial
owners were complied with, with the exception of the following:
47
Number of
Transactions Not
Number of Reported on a Failure to File
Name Late Reports Timely Basis Requested Forms
---- ------------ ------------ ---------------
Dr. Geert Cauwenbergh 1 (1) Nil Nil
- ----------
(1) The named director filed a late Form 3 - Initial Statement of Beneficial
Ownership of Securities which has subsequently been filed.
ITEM 11. EXECUTIVE COMPENSATION.
The following table sets forth all compensation received during the two years
ended September 30, 2008 by our Chief Executive Officer, Chief Financial Officer
and each of the other most highly compensated executive officers whose total
compensation exceeded $100,000 in such fiscal year. These officers are referred
to as the Named Executive Officers in this Report.
SUMMARY COMPENSATION
The following table provides a summary of the compensation received by the
persons set out therein for each of our last two fiscal years:
SUMMARY COMPENSATION TABLE
Change in
Pension
Value and
Non-Equity Nonqualified
Name and Incentive Deferred
Principal Stock Option Plan Compensation All Other
Position Year Salary($) Bonus($) Awards($) Awards($)(4) Compensation($) Earnings($) Compensation($) Totals($)
-------- ---- --------- -------- --------- --------- --------------- ----------- --------------- ---------
Joel L. 2008 158,003 Nil Nil 91,172 Nil Nil 53,017 302,222
Bellenson(1) 2007 149,650 Nil Nil 164,110 Nil Nil 52,690 366,450
Chief Executive
Officer
and Director
Dexster L. 2008 158,003 Nil Nil 91,172 Nil Nil 53,017 302,222
Smith(2) 2007 149,650 Nil Nil 164,110 Nil Nil 52,690 366,450
President and
Director
Tim Fernback(3) 2008 154,861 Nil Nil 65,925 Nil Nil 75,000 292,786
Chief Financial 2007 98,642 Nil Nil 148,331 Nil Nil 31,250 278,223
Officer
- ----------
(1) Joel Bellenson was appointed director and officer of our company on March
1, 2006.
(2) Dexster Smith was appointed director and officer of our company on March 1,
2006.
(3) Tim Fernback was appointed Chief Financial Officer on April 12, 2006.
(4) The determination of value of option awards is based upon the Black-Scholes
Option pricing model, details and assumptions of which are set out in our
financial statements included in this annual report. The amounts represent
annual amortization of fair value of stock options granted to the named
executive officer.
COMPENSATION DISCUSSION AND ANALYSIS
All of our current research and development is carried out by Mr. Bellenson and
Mr. Smith, with some consulting services carried out by Dr. Artem Cherkasov. Mr.
Bellenson and Mr. Smith have entered into employment agreements, while Dr. Artem
Cherkasov has entered into a consulting agreement with our company. Pursuant to
48
the terms of the employment agreements, our company agreed to pay Mr. Bellenson
and Mr. Smith a base salary of $150,000 annually adjusted for any foreign
exchange difference that may arise. Pursuant to the terms of the amended
consulting contract, our company agreed to pay Mr. Cherkasov an annual
consulting services fee of $49,250 (C$50,000) plus equity component of $193,000
(C$200,000) in restricted common shares based upon the closing price of our
common stock at the end of each calendar month until the agreement expires July
31, 2010.
If the employment agreements between our company and Joel Bellenson or Dexster
Smith are terminated for any reason, our company is required to pay the
respective officer a $150,000 retiring allowance within 30 days of receiving
notification of the termination. If either Mr. Bellenson or Mr. Smith terminate
the employment agreement for any reason with 14 days notice, our company is
required to pay all accrued salary, bonuses and benefits to the respective
officer. Our company may terminate either agreement for cause on receipt of
written notice to the officer, and without cause on 90 days written notice to
the officer. Under such circumstances, our company is required to pay all
accrued salary, bonuses and benefits to the terminated officer.
Our company also retained TCF Ventures Corp., a company beneficially owned by
Mr. Tim Fernback, as a consultant to provide financial advisory services to our
company pursuant to the terms of a Consultant Engagement Agreement dated May 1,
2007, our company agreed to pay the consultant $150,000 annually plus applicable
taxes subject to adjustment as set out in the consulting agreement, as well as
400,000 stock options. The options are exercisable until March 1, 2016 at the
exercise price of $0.80 per share. On April 12, 2006, Mr. Fernback became our
company's Chief Financial Officer. If the consulting agreement between our
company and TCF Ventures Corp. is terminated for any reason, our company is
required to pay the respective officer a $150,000 retiring allowance within 30
days of receiving notification of the termination. If TCF Ventures Corp.
terminates the consulting agreement for any reason with 14 days notice, our
company is required to pay all accrued fees, bonuses and benefits. Our company
may terminate either agreement for cause on receipt of written notice to the
officer, and without cause on 90 days written notice to the officer. Under such
circumstances, our company is required to pay all accrued fees, bonuses and
benefits.
Our compensation program for our executive officers is administered and reviewed
by our board of directors and the Compensation Committee. Historically,
executive compensation consists of a combination of base salary and bonuses.
Individual compensation levels are designed to reflect individual
responsibilities, performance and experience, as well as the performance of our
company. The determination of discretionary bonuses is based on various factors,
including implementation of our business plan, acquisition of assets,
development of corporate opportunities and completion of financing. The
objectives of our compensation program are to retain and offer an incentive to
current management, and to carry out our compensation related policies as per
our Compensation Committee Charter.
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
The following table sets forth for each named executive officer certain
information concerning the outstanding equity awards as of September 30, 2008.
49
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
Option Awards Stock Awards
-------------------------------------------------------------------- -------------------------------------------------
Equity
Incentive
Equity Plan
Incentive Awards:
Plan Market or
Awards: Payout
Equity Number of Value of
Incentive Number Unearned Unearned
Plan Awards; of Market Shares, Shares,
Number of Number of Number of Shares Value of Units or Units or
Securities Securities Securities or Units Shares or Other Other
Underlying Underlying Underlying of Stock Units of Rights Rights
Unexercised Unexercised Unexercised Option Option That Stock That That That
Options Options Unearned Exercise Expiration Have Not Have Not Have Not Have Not
Name Exercisable(#)(1) Unexercisable(#) Options(#)(2) Price($) Date Vested(#) Vested($) Vested(#) Vested(#)
- ---- -------------- ---------------- ---------- ----- ---- --------- --------- --------- ---------
Joel L. March 16,
Bellenson 300,000 Nil 100,000 0.96 2017 Nil Nil Nil Nil
Chief
Executive
Officer
and
Director
Dexster L. March 16,
Smith 300,000 Nil 100,000 0.96 2017 Nil Nil Nil Nil
President
and
Director
Tim March 1,
Fernback 300,000 Nil 100,000 0.80 2016 Nil Nil Nil Nil
Chief
Financial
Officer
- ----------
(1) Represents options granted to the named executive officer that have vested.
(2) Represents options granted to the named executive officer that have not yet
vested.
No options were granted during the year ended September 30, 2008 and 200,000
options were cancelled following the resignations of two former directors. At
September 30, 2008, there were 2,000,000 stock options issued and outstanding.
In addition to the stock options set out in the table above, our company has
agreed to issue 1,500,000 stock options to Dr. Geert Cauwenbergh, Jeffrey Bacha
and three new scientific and business advisory board members under the 2007
Stock Option Plan, on terms yet to be determined.
In March 2007, our company approved and adopted a stock option plan authorizing
the issuance of up to 5,000,000 shares of common stock upon exercise of the
options granted pursuant to the plan. Under the plan, our employees, directors,
officers, consultants and advisors are eligible to receive a grant of our
shares, provided however that bona fide services are rendered by consultants or
advisors and such services are not in connection with the offer or sale of
securities in a capital-raising transaction.
In connection with previously granted options, we recorded $424,128 as
stock-based compensation expense for the year ended September 30, 2008 (year
ended September 30, 2007 - $771,809). The unamortized balance of $221,321 will
be charged to operations in the future on a straight-line basis over the
remaining vesting periods.
A summary of our outstanding stock options as of September 30, 2008 is presented
below:
50
Options
Outstanding at
Grant Date Expiry Date Exercise Price September 30, 2007
---------- ----------- -------------- ------------------
May 1, 2006 March 1, 2016 $0.80 400,000
March 16, 2007 March 16, 2017 $0.96 800,000
March 16, 2007 March 16, 2012 $0.96-$1.00 700,000
May 3, 2007 May 3, 2012 $1.41 100,000
---------
TOTALS 2,000,000
=========
The weighted average exercise price and remaining life of the stock options was
$0.95 and 6.3 years, respectively.
AGGREGATED OPTION EXERCISES
There were no options exercised by any officer or director of our company during
our twelve month period ended September 30, 2008.
LONG-TERM INCENTIVE PLAN
Currently, our company does not have a long-term incentive plan in favor of any
director, officer, consultant or employee of our company.
DIRECTORS COMPENSATION
The particulars of compensation paid to our directors for our year ended
September 30, 2008, is set out in the following director compensation table:
Change in
Pension
Value and
Fees Non-Equity Nonqualified
Earned Incentive Deferred
Paid in Stock Option Plan Compensation All Other
Name Cash($) Awards($) Awards($)(1) Compensation($) Earnings($) Compensation($) Total($)
---- ------- --------- --------- --------------- ----------- --------------- --------
(a) (b) (c) (d)(1) (e) (f) (g) (h)
Joel Nil Nil Nil Nil Nil Nil Nil
Bellenson(2)
Dexster Nil Nil Nil Nil Nil Nil Nil
Smith(3)
Dr. Geert Nil Nil Nil Nil Nil Nil Nil
Cauwenbergh(4)
Jeffrey Nil Nil Nil Nil Nil Nil Nil
Bacha(5)
Dr. Dale Nil Nil Nil Nil Nil Nil Nil
Pfost(6)
Phil Rice(7) Nil Nil Nil Nil Nil Nil Nil
- ----------
(1) Joel Bellenson was appointed as a director of our company on March 1, 2006
(2) Dexster Smith was appointed as a director of our company on March 1, 2006
(3) Dr. Geert Cauwenbergh was appointed a director of our company on March 25,
2008. Our company has agreed to issue 400,000 stock options to Dr. Geert
Cauwenbergh under the 2007 Stock Option Plan in consideration for services
provided as a director, which terms have not been agreed upon as at the
date of this annual report.
51
(4) Jeffrey Bacha was appointed a director of our company on April 3, 2008. Our
company has agreed to issue 400,000 stock options to Mr. Bacha under the
2007 Stock Option Plan in consideration for services provided as a
director, which terms have not been agreed upon as at the date of this
annual report.
(5) Dr. Dale Pfost resigned as a director of our company on March 25, 2008.
(6) Phil Rice resigned as a director of our company on March 25, 2008.
Independent directors may be paid their expenses for attending each board of
directors meeting and may be paid a fixed sum for attendance at each meeting of
the directors or a stated salary as director. No payment precludes any director
from serving our company in any other capacity and being compensated for the
service. Members of special or standing committees may be allowed like
reimbursement and compensation for attending committee meetings.
PENSION AND RETIREMENT PLANS
Currently, we do not offer any annuity, pension or retirement benefits to be
paid to any of our officers, directors or employees, in the event of retirement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
As of December 19, 2008, there were 49,453,006 shares of our common stock
outstanding. The following table sets forth certain information known to us with
respect to the beneficial ownership of our common stock as of that date by (i)
each of our directors, (ii) each of our executive officers, and (iii) all of our
directors and executive officers as a group. Except as set forth in the table
below, there is no person known to us who beneficially owns more than 5% of our
common stock.
Name and Address of Amount and Nature of Percentage
Beneficial Owner Position Beneficial Ownership of Class(1)
---------------- -------- -------------------- -----------
Joel L. Bellenson Chief Executive Officer 12,300,000(2) 25.3%
c/o Suite 200 and Director
1892 West Broadway
Vancouver, BC V6J 1Y9
Dexster L. Smith President and Director 12,300,000(3) 25.3%
c/o Suite 200
1892 West Broadway
Vancouver, BC V6J 1Y9
Timothy Fernback Chief Financial Officer 800,000(4) 1.6%
c/o Suite 200
1892 West Broadway
Vancouver, BC V6J 1Y9
Dr. Geert Cauwenbergh Director Nil Nil
Suite 3200, 600 College
Road East
Princeton, NJ 08540
Jeffrey Bacha Director Nil Nil
Suite 3, 1545 West 14th Avenue
Vancouver, BC V6J 2J1
Directors and Executive
Officers as a Group(5) 25,400,000 52.2%
- ----------
(1) Based on 49,453,006 shares of common stock issued and outstanding as of
December 19, 2008. Beneficial ownership is determined in accordance with
52
the rules of the Securities and Exchange Commission and generally includes
voting or investment power with respect to securities. Except as otherwise
indicated, we believe that the beneficial owners of the common stock listed
above, based on information furnished by such owners, have sole investment
and voting power with respect to such shares, subject to community property
laws where applicable.
(2) We granted 400,000 stock options to Mr. Bellenson under the 2007 Stock
Option Plan at an exercise price of $0.96 per share, of which 300,000
options had vested and may be exercisable as of, or within 60 days after
December 19, 2008.
(3) We granted 400,000 stock options to Mr. Smith under the 2007 Stock Option
Plan at an exercise price of $0.96 per share, of which 300,000 options had
vested and may be exercisable as of, or within 60 days after December 19,
2008.
(4) Consists of 500,000 common shares and 300,000 options held by TCF Ventures
Corp., a wholly- owned company of Mr. Fernback. We granted TCF Ventures
400,000 options at an exercise price of $0.80, of which 300,000 have vested
and may be exercisable as of, or within 60 days after December 19, 2008.
CHANGES IN CONTROL
We are unaware of any contract or other arrangement the operation of which may
at a subsequent date result in a change of control of our company.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
Except as described below, no director, executive officer, principal shareholder
holding at least 5% of our common shares, or any family member thereof, had any
material interest, direct or indirect, in any transaction, or proposed
transaction, since the beginning of our year ended September 30, 2008, or in any
currently proposed transaction, in which the amount involved in the transaction
exceeded or exceeds the lesser of $120,000 or one percent of the average of our
total assets at the year end for the last two completed fiscal years.
At September 30, 2008, we owed $300,000 (September 30, 2007 - $330,123) for
accrued retiring allowances to three of our officers, two of whom are also
directors.
Of the management compensation incurred during the year ended September 30,
2008, $158,003 was expensed as research and development (year ended September
30, 2007 - $152,340).
All related party transactions are conducted in the ordinary course of business
and measured at the exchange amount, which is the consideration established and
agreed to by the related parties.
CORPORATE GOVERNANCE
We currently have four directors, consisting of Joel Bellenson, Dexster Smith,
Dr. Geert Cauwenbergh and Jeffrey Bacha.
We have determined that Dr. Geert Cauwenbergh and Jeffrey Bacha are independent
directors, as that term is used in Rule 4200(a)(15) of the Nasdaq Marketplace
Rules and National Instrument 52-110.
AUDIT COMMITTEE
Our board of directors struck an audit committee on December 3, 2008. As of this
date, Jeffrey Bacha and Dr. Geert Cauwenbergh were appointed as sole members of
the audit committee, both of whom are independent. Jeffrey Bacha and Dr. Geert
Cauwenbergh of our compensation committee are independent as defined by Rule
4200(a)(15) of the Nasdaq Marketplace Rules. Our audit committee undertakes an
53
independent review of our company's financial statements, and meets with
management to determine the adequacy of internal controls and other financial
reporting matters.
Prior to striking the audit committee, our entire board of directors acted as
the audit committee, which included Joel Bellenson, Dexster Smith, Dr. Geert
Cauwenbergh and Jeffrey Bacha. Our board of directors determined that Dr. Geert
Cauwenbergh and Jeffrey Bacha were the only members of our board of directors
that were "independent" as the term is defined by Rule 4200(a)(15) of the Nasdaq
Marketplace Rules.
Our board of directors has determined that it does not have an audit committee
member that qualifies as an "audit committee financial expert" as defined in
Item 407(d)(5)(ii) of Regulation S-K. We believe that the audit committee
members are collectively capable of analyzing and evaluating our financial
statements and understanding internal controls and procedures for financial
reporting. In addition, we believe that retaining an independent director who
would qualify as an "audit committee financial expert" would be overly costly
and burdensome and is not warranted in our circumstances given the early stages
of our development and the fact that we have not generated revenues to date.
The audit committee acts in accordance with our Audit Committee Charter which is
filed as an exhibit to this annual report.
COMPENSATION COMMITTEE - COMPENSATION COMMITTEE INTERLOCKS AND INSIDER
PARTICIPATION
Our board of directors struck a compensation committee on September 11, 2008. As
of this date, Dr. Geert Cauwenbergh and Jeffrey Bacha were appointed as sole
members of the committee, each of whom are non-employee directors of our
company. All of the members of our compensation committee are independent as
defined by Rule 4200(a)(15) of the Nasdaq Marketplace Rules. The purpose of our
compensation committee is to oversee our company's compensation and benefit
plans, including our compensation and equity-based plans. Our compensation
committee also monitors and evaluates matters relating to the compensation and
benefits structure of our company and takes other such actions within the scope
of the compensation committee charter as our board of directors may assign to
the compensation committee from time to time.
Prior to striking a compensation committee, our board of directors acted as the
compensation committee, which included Joel Bellenson and Dexster Smith, each of
whom is not independent. Joel Bellenson is the Chief Executive Officer of our
company and Dexster Smith is the President of our company. Mr. Bellenson and Mr.
Smith entered into related party transactions during the year ended September
30, 2008 as disclosed under the heading "Certain Relationships and Related
Transactions, and Director Independence."
The compensation committee acts in accordance with our Compensation Committee
Charter which is filed as an exhibit to this annual report.
COMPENSATION COMMITTEE REPORT
The compensation committee has reviewed and discussed the Compensation
Discussion and Analysis with management, and based on the review and discussion,
the compensation committee recommended to the board of directors that the
Compensation Discussion and Analysis be included in our company's annual report.
Dr. Geert Cauwenbergh
Jeffrey Bacha
TRANSACTIONS WITH INDEPENDENT DIRECTORS
None of our independent directors entered into any transaction, relationship or
arrangement during the year ended September 30, 2008 that was considered by our
board of directors in determining whether the director maintained his
independence in accordance with Rule 4200(a)(15) of the Nasdaq Marketplace
Rules.
54
NATIONAL INSTRUMENT 52-110
We are a reporting issuer in the Province of British Columbia. National
Instrument 52-110 of the Canadian Securities Administrators requires our
company, as a venture issuer, to disclose annually in our annual report certain
information concerning the constitution of our audit committee and our
relationship with our independent auditor. As defined in National Instrument
52-110, Jeffrey Bacha and Dr. Geert Cauwenbergh are independent. For a
description of the education and experience of each audit committee member that
is relevant to the performance of his responsibilities as an audit committee
member, please see the disclosure under the heading "Item 10. Directors,
Executive Officers and Corporate Governance - Business Experience".
All of the audit committee members are "financially literate", as defined in
National Instrument 52-110, as all have the industry experience necessary to
understand and analyze financial statements of our company, as well as the
understanding of internal controls and procedures necessary for financial
reporting.
The audit committee is responsible for review of both interim and annual
financial statements for our company. For the purposes of performing their
duties, the members of the audit committee have the right at all times, to
inspect all the books and financial records of our company and any subsidiaries
and to discuss with management and the external auditors of our company any
accounts, records and matters relating to the financial statements of our
company. The audit committee members meet periodically with management and
annually with the external auditors.
Since the commencement of our company's most recently completed financial year,
our company's board of directors has not failed to adopt a recommendation of the
audit committee to nominate or compensate an external auditor.
Since the commencement of our company's most recently completed financial year,
our company has not relied on the exemptions contained in sections 2.4 or 8 of
National Instrument 52-110. Section 2.4 (DE MINIMIS NON-AUDIT SERVICES) provides
an exemption from the requirement that the audit committee must pre-approve all
non-audit services to be provided by the auditor, where the total amount of fees
related to the non-audit services are not expected to exceed 5% of the total
fees payable to the auditor in the fiscal year in which the non-audit services
were provided. Section 8 (EXEMPTIONS) permits a company to apply to a securities
regulatory authority for an exemption from the requirements of National
Instrument 52-110 in whole or in part.
The audit committee has adopted specific policies and procedures for the
engagement of non-audit services as set out in the Audit Committee Charter of
our company. A copy of our company's Audit Committee Charter is filed as an
exhibit to this annual report.
NATIONAL INSTRUMENT 58-110
We are a reporting issuer in the Province of British Columbia. National
Instrument 58-101 of the Canadian Securities Administrators requires our
company, as a venture issuer, to disclose annually in our annual report certain
information concerning corporate governance disclosure.
BOARD OF DIRECTORS
Our board of directors currently acts with four members consisting of Joel
Bellenson, Dexster Smith, Dr. Geert Cauwenbergh and Jeffrey Bacha. We have
determined that Dr. Geert Cauwenbergh and Jeffrey Bacha are independent as that
term is defined in National Instrument 52-110 and Joel Bellenson and Dexster
Smith are not independent due to the fact that they are executive officers of
our company.
Our board of directors facilitates its exercise of independent supervision over
management by endorsing the guidelines for responsibilities of the board as set
out by regulatory authorities on corporate governance in Canada and the United
States. Our board's primary responsibilities are to supervise the management of
our company, to establish an appropriate corporate governance system, and to set
a tone of high professional and ethical standards. The board is also responsible
for:
55
* selecting and assessing members of the Board;
* choosing, assessing and compensating the Chief Executive Officer of
our company, approving the compensation of all executive officers and
ensuring that an orderly management succession plan exists;
* reviewing and approving the Company's strategic plan, operating plan,
capital budget and financial goals, and reviewing its performance
against those plans;
* adopting a code of conduct and a disclosure policy for the Company,
and monitoring performance against those policies;
* ensuring the integrity of the Company's internal control and
management information systems;
* approving any major changes to the Company's capital structure,
including significant investments or financing arrangements; and
* reviewing and approving any other issues which, in the view of the
Board or management, may require Board scrutiny.
DIRECTORSHIPS
The following directors are also directors of other reporting issuers (or the
equivalent in a foreign jurisdiction), as identified next to their name:
Reporting Issuers or Equivalent
Director in a Foreign Jurisdiction
-------- -------------------------
Joel Bellenson None
Dexster Smith None
Dr. Geert Cauwenbergh Ablynx nv and Dara Biosciences Inc.
Jeffrey Bacha Sernova Corp.
ORIENTATION AND CONTINUING EDUCATION
We have an informal process to orient and educate new recruits to the board
regarding their role of the board, our committees and our directors, as well as
the nature and operations of our business. This process provides for an
orientation with key members of the management staff, and further provides
access to materials necessary to inform them of the information required to
carry out their responsibilities as a board member. This information includes
the most recent board approved budget, the most recent annual report, the
audited financial statements and copies of the interim quarterly financial
statements.
The board does not provide continuing education for its directors. Each director
is responsible to maintain the skills and knowledge necessary to meet his or her
obligations as directors.
NOMINATION OF DIRECTORS
The board is responsible for identifying new director nominees. In identifying
candidates for membership on the board, the board takes into account all factors
it considers appropriate, which may include strength of character, mature
judgment, career specialization, relevant technical skills, diversity and the
extent to which the candidate would fill a present need on the board. As part of
the process, the board, together with management, is responsible for conducting
background searches, and is empowered to retain search firms to assist in the
nominations process. Once candidates have gone through a screening process and
met with a number of the existing directors, they are formally put forward as
nominees for approval by the board.
ASSESSMENTS
The board intends that individual director assessments be conducted by other
directors, taking into account each director's contributions at board meetings,
service on committees, experience base, and their general ability to contribute
to one or more of our company's major needs. However, due to our stage of
development and our need to deal with other urgent priorities, the board has not
yet implemented such a process of assessment.
56
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
AUDIT FEES
The aggregate fees billed for the two most recently completed fiscal periods
ended September 30, 2008 and September 30, 2007 for professional services
rendered by Dale Matheson Carr-Hilton Labonte LLP, Chartered Accountants for the
audit of our annual consolidated financial statements, quarterly reviews of our
interim consolidated financial statements and services normally provided by the
independent accountant in connection with statutory and regulatory filings or
engagements for these fiscal periods were as follows:
Year Ended Year Ended
September 30, September 30,
2008 2007
------- -------
Audit Fees and Audit Related Fees $32,362 $30,263
Tax Fees $ Nil $7,505
All Other Fees $ Nil $ Nil
------- -------
TOTAL $32,362(1) $37,768
========= =======
- ----------
(1) Audit fees for year ended September 30, 2008 have not been billed to us yet
In the above table, "audit fees" are fees billed by our company's external
auditor for services provided in auditing our company's annual financial
statements for the subject year. "Audit-related fees" are fees not included in
audit fees that are billed by the auditor for assurance and related services
that are reasonably related to the performance of the audit review of our
company's financial statements. "Tax fees" are fees billed by the auditor for
professional services rendered for tax compliance, tax advice and tax planning.
"All other fees" are fees billed by the auditor for products and services not
included in the foregoing categories.
POLICY ON PRE-APPROVAL BY AUDIT COMMITTEE OF SERVICES PERFORMED BY INDEPENDENT
AUDITORS
The board of directors pre-approves all services provided by our independent
auditors. All of the above services and fees were reviewed and approved by the
board of directors either before or after the respective services were rendered.
The board of directors has considered the nature and amount of fees billed by
Dale Matheson Carr-Hilton Labonte LLP and believes that the provision of
services for activities unrelated to the audit is compatible with maintaining
Dale Matheson Carr-Hilton Labonte LLP.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
Exhibit
Number Description
- ------ -----------
(2) PLAN OF PURCHASE, SALE, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR
SUCCESSION
2.1 Share Exchange Agreement dated February 3, 2006, among our company,
Upstream Canada, the shareholders of Upstream Canada and Steve Bajic
(incorporated by reference from our Current Report on Form 8-K filed on
February 6, 2006).
2.2 Amended and Restated Share Exchange Agreement dated February 24, 2006,
among our company, Upstream Canada, the shareholders of Upstream Canada
and Steve Bajic (incorporated by reference from our Current Report on
Form 8-K filed on February 27, 2006).
(3) ARTICLES OF INCORPORATION AND BY-LAWS
3.1 Articles of Incorporation (incorporated by reference from our
Registration Statement on Form SB-2 filed on July 5, 2002).
57
3.2 Bylaws (incorporated by reference from our Registration Statement on
Form SB-2 Filed on July 5, 2002).
3.3 Certificate of Amendment filed with the Nevada Secretary of State on
March 8, 2005 (incorporated by reference from our Current Report on
Form 8-K filed on March 10, 2005).
3.4 Certificate of Change filed with the Nevada Secretary of State on
December 20, 2005 (incorporated by reference from our Current Report on
Form 8-K filed on December 29, 2005).
3.5 Articles of Merger filed with the Nevada Secretary of State on February
6, 2006 (incorporated by reference from our Current Report on Form 8-K
filed on February 9, 2006).
3.6 Certificate of Amendment filed with the Nevada Secretary of State on
November 27, 2006 (incorporated by reference from our Current Report on
Form 8-K filed on November 30, 2006).
(10) MATERIAL CONTRACTS
10.1 Consultant Engagement Agreement dated February 7, 2006 among TCF
Ventures Corp., our company and Upstream Canada (incorporated by
reference from our Current Report on Form 8-K filed on March 7, 2006).
10.2 Stock Option and Subscription Agreement dated February 13, 2006,
between our company and TCF Ventures Corp. (incorporated by reference
from our Current Report on Form 8-K filed on March 7, 2006).
10.3 Amendment Agreement dated February 13, 2006, among TCF Ventures Corp.,
our company and Upstream Canada (incorporated by reference from our
Current Report on Form 8-K filed on March 7, 2006).
10.4 Employment Agreement dated March 1, 2006, between our company and Joel
Bellenson (incorporated by reference from our Current Report on Form
8-K filed on March 7, 2006).
10.5 Employment Agreement dated March 1, 2006 between our company and
Dexster Smith (incorporated by reference from our Current Report on
Form 8-K filed on March 7, 2006).
10.6 Private Placement Subscription Agreement dated March 2, 2007, between
our company and Ultimate Investments Ltd. (incorporated by reference
from our Registration Statement on Form SB-2 filed on October 1, 2007)
10.7 2007 Stock Option Plan (incorporated by reference from our Registration
Statement on Form SB-2 filed on October 1, 2007)
10.8 Stock Option and Subscription Agreement dated March 16, 2007, between
our company and Dexster Smith (incorporated by reference from our
Registration Statement on Form SB-2 filed on October 1, 2007)
10.9 Stock Option and Subscription Agreement dated March 16, 2007, between
our company and Joel Bellenson (incorporated by reference from our
Registration Statement on Form SB-2 filed on October 1, 2007)
10.10 Stock Option and Subscription Agreement dated March 27, 2007, between
our company and Philip Rice (incorporated by reference from our
Registration Statement on Form SB-2 filed on October 1, 2007)
10.11 Contract for Services Agreement dated May 1, 2007, between our company
and TCF Ventures Corp. (incorporated by reference from our Registration
Statement on Form SB-2 filed on October 1, 2007)
58
10.12 Stock Option and Subscription Agreement dated May 3, 2007, between our
company and Dale Pfost (incorporated by reference from our Registration
Statement on Form SB-2 filed on October 1, 2007)
10.13 Private Placement Subscription Agreement dated May 3, 2007, between our
company and Red Tree Ventures SA (incorporated by reference from our
Registration Statement on Form SB-2 filed on October 1, 2007)
10.14 Share Exchange Agreement dated August 17, 2007, among our company,
Pacific Pharma Technologies Inc., and the selling shareholders of
Pacific Pharma Technologies Inc. (incorporated by reference from our
Current Report on Form 8-K filed on August 23, 2007)
10.15 Art Cherkasov Revised Consulting Services Contract dated September 12,
2007 (incorporated by reference from our Quarterly Report on Form
10-QSB filed on February 14, 2008)
10.16 JTAT Consulting Services Contract dated December 31, 2007 (incorporated
by reference from our Quarterly Report on Form 10-QSB filed on February
14, 2008)
10.17 JTAT Consulting Services Contract dated March 7, 2008 (incorporated by
reference from our Quarterly Report on Form 10-QSB filed on May 15,
2008)
10.18 Compensation Committee Charter (incorporated by reference from our
Annual Report on Form 10-K filed on December 19, 2008)
10.19 Audit Committee Charter (incorporated by reference from our Annual
Report on Form 10-K filed on December 19, 2008)
(31) SECTION 302 CERTIFICATIONS
31.1* Certification of Principal Executive Officer filed pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
31.2* Certification of Principal Financial Officer filed pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
(32) SECTION 906 CERTIFICATIONS
32.1* Certification of Principal Executive Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
32.2* Certification of Principal Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
59
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.
UPSTREAM BIOSCIENCES INC.
By: /s/ Joel Bellenson
------------------------------------------------------------
Joel Bellenson
Chief Executive Officer and Director
(Principal Executive Officer)
Date: December 16, 2010
By: /s/ Tim Fernback
------------------------------------------------------------
Tim Fernback
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
Date: December 16, 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/ Joel Bellenson
------------------------------------------------------------
Joel Bellenson
Chief Executive Officer and Director
(Principal Executive Officer)
Date: December 16, 2010
By: /s/ Tim Fernback
------------------------------------------------------------
Tim Fernback
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
Date: December 16, 2010
By: /s/ Dexter Smith
------------------------------------------------------------
Dexter Smith
President and Director
Date: December 16, 2010
By: /s/ Dr. Geert Cauwenbergh
------------------------------------------------------------
Dr. Geert Cauwenbergh Director
Date: December 16, 2010
By: /s/ Jeffrey Bacha
------------------------------------------------------------
Jeffrey Bacha
Director
Date: December 16, 2010
60