UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(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, 2009
[ ] 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.)
71130, 198 - 8060 Silver Spring Blvd.
Calgary, Alberta Canada T3B 5K2
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 403.537.2516
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 [ ] No [X]
Indicate by check mark whether the registrant has submitted electronically and
posted on its corporate Web site, if any, every Interactive Data File required
to be submitted and posted pursuant to Rule 405 of Regulation S-T (ss.232.405 of
this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes [ ] No [ ] (Not
currently applicable to the Registrant).
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: $409,344.78 based on a price of $0.012 per share, being the average bid
and asked price of such common equity as of March 31, 2010.
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 [ ]
(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. 34,122,065 shares of common
stock as of June 8, 2011.
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
EXPLANATORY NOTE:
This amendment to our Form 10-K for the annual period ended September 30, 2009
has been filed in order to provide additional disclosure in our management's
discussion and analysis.
All other information included in our annual report on Form 10-K for the fiscal
year ended September 30, 2009 has not been amended. Except for the matter
described above, this amendment does not modify or update disclosures in the
originally filed annual report on Form 10-K, or reflect events occurring after
June 30, 2010, which is the date of the filing of the originally filed annual
report on Form 10-K.
PART I
FORWARD LOOKING STATEMENTS.
This annual report contains forward-looking statements that involve risk,
uncertainties and assumptions. In some cases, you can identify forward-looking
statements by terminology such as "may", "should", "expect", "plan",
"anticipate", "believe", "estimate", "predict", "potential" or "continue" or the
negative of these terms or other comparable terminology. Examples of
forward-looking statements made in this annual report on Form 10-K include
statements about:
* Our business plans,
* Our ability to raise additional finances, and
* Our future investments and allocation of capital resources.
These statements are only predictions and involve known and unknown risks,
uncertainties and other factors, including:
* General economic and business conditions,
* Our lack of operating history,
* Our financial condition,
* Our material weakness in our internal control over financial
reporting,
* Our patents are only a provisional patent, and
* The risks in the section of this annual report entitled "Risk
Factors",
any of which may cause our or our industry's actual results, levels of activity,
performance or achievements to be materially different from any future results,
levels of activity, performance or achievements expressed or implied by these
forward-looking statements.
While these forward-looking statements and any assumptions upon which they are
based are made in good faith and reflect our current judgment regarding the
direction of our business, actual results will almost always vary, sometimes
materially, from any estimates, predictions, projections, assumptions or other
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future performance suggested herein. 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
The following discussion and analysis should be read in conjunction with the
financial statements and related notes and the other financial information
appearing elsewhere in this annual report. Our financial statements are stated
in United States dollars and are prepared in accordance with United States
Generally Accepted Accounting Principles.
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
CORPORATE DEVELOPMENTS
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 have not generated any revenues from our technologies to date. On August 10,
2009, our company issued a press release announcing that we were actively
seeking licensors or acquirors for our novel anti-parasitic drug discovery
portfolio and cancer diagnostic platform. To that end, our company formed an
independent committee of the board to assess the strategic direction of our
company. During the four months following the issuance of the press release, the
independent board shortlisted a number of potential candidates that may have had
interest in the acquisition of our company's pharmaceutical business as formerly
held by our subsidiary Pacific Pharma Technologies Inc. Our independent
committee contacted such organizations but discussions did not result in any
offers or agreements to acquire such assets.
After several months, our company continued to face challenges in raising funds
due to the continued financial downturn, especially for early-stage life
sciences companies. To this end, and as discussed in our periodic reports, Joel
Bellenson and Dexster Smith, both former directors and officers of our company,
agreed to voluntarily defer their salaries for the 2009 calendar year, or until
such time that our company completed a sizeable financing. TCF Ventures Corp., a
company through which Tim Fernback provided services as chief financial officer
of our company, agreed to defer a portion of the amounts owed to him for
consulting services on the understanding that such amounts would be repaid when
our company obtained sufficient funds. However, a dispute arose as to the terms
of the deferral as discussed under the heading "Item 3 - Legal Proceedings".
Following the continued downturn, low cash reserves, no available financing, and
the commencement of litigation with TCF Ventures, our company was left with two
available options. The first option was to restructure our company, including a
change of its management and board of directors, and the second option was
bankruptcy. As bankruptcy would effectively prevent our shareholders from
realizing any value in our company, the board agreed to restructure our company.
As a result, and following a write-down of the pharmaceutical business operated
by Pacific Pharma, our wholly-owned subsidiary, we entered into the Asset Sale
Agreement to transfer such assets as described below under the heading "Asset
Sale Agreement". Joel Bellenson and Dexster Smith then agreed to enter into
return to treasury agreements and cancel the remaining stock held by them to
treasury for no consideration. The entire board of directors and management
resigned but not before appointing Mike McFarland as sole director and officer
of our company. Following the appointment of the new director, the new board of
directors intends to seek out viable business opportunities in order to maximize
shareholder value.
ASSET SALE AGREEMENT
On December 14, 2009, our subsidiary, Pacific Pharma, a British Columbia
company, entered into and closed an asset sale agreement with JTAT Consulting
Inc., a company wholly-owned by Art Cherkasov. Pursuant to the terms of the
agreement, Pacific Pharma sold all of the assets held by Pacific Pharma to JTAT
Consulting for the payment of $1.00. The assets included the URL domain name
www.pacificpharmatech.com, Pacific Pharma's patents, patent applications, and
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inventions, methods, processes and discoveries that may be patentable, Pacific
Pharma's know-how, trade secrets, confidential information, technical
information, data, process technology and plans and drawings, owned, used, or
licensed by Pacific Pharma as licensee or licensor. Our board of directors
decided to proceed with the write-down following our inability to find any
potential acquiror or licensor to purchase the assets and advance the technology
and upon deciding to cease any further research and development of this segment
of our business. Our company estimates that the write-down resulted in an
impairment charge of $59,010, offset by a related deferred income tax recovery
of $8,651. Our company does not believe that this net amount will result in any
future cash expenditures.
RETURN TO TREASURY AGREEMENTS
In connection with the restructuring of our company, and on December 4, 2009, we
entered into a return to treasury agreement with each of Joel Bellenson and
Dexster Smith, both former directors and officers of our company. Pursuant to
the terms of the agreements, each of Mr. Bellenson and Mr. Smith agreed to
return 8,095,470 restricted common shares to the treasury of our company for
cancellation without consideration effective December 4, 2009. Following the
share cancellations, each of Joel Bellenson and Dexster Smith held nil shares in
our company.
OPTION TERMINATION AGREEMENTS
On December 14, 2009, Mr. Bellenson and Mr. Smith, both former directors and
officers of our company, entered into Option Termination Agreements with our
company, whereby the 400,000 options held by each person were immediately
cancelled.
RELEASE WITH FORMER DIRECTORS AND MANAGEMENT
On December 14, 2009, our company executed a mutual release with each of Mr.
Bellenson and Mr. Smith, whereby each party agreed to release the other for all
claims each party may have against the other.
OUR BUSINESS
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.
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. On July 22,
2010, we re-filed the five above noted provisional patents along with
provisional patents for "Three-Dimensional Genetic-Variant QSAR Methods" and
"Anti-Parasitic Compounds and Methods for Selection Thereof."
OTHER BUSINESS OPPORTUNITIES
Simultaneously with our genetic diagnostic business, we are seeking new
acquisitions and/or business opportunities with established business entities
for the merger of a business with our company. In certain instances, a business
may wish to become a subsidiary of us or may wish to contribute assets to us
rather than merge. We are not currently in negotiations with any parties to
enter into a business opportunity and there can be no assurance that we will be
able to enter into any agreement. We anticipate that any new acquisition or
business opportunities by our company will require additional financing. There
can be no assurance, however, that we will be able to acquire the financing
necessary to enable us to pursue our plan of operation. If our company requires
additional financing and we are unable to acquire such funds, our business may
fail.
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Management of our company believes that there are perceived benefits to being a
reporting company with a class of publicly-traded securities. These are commonly
thought to include: (i) the ability to use registered securities to acquire
assets or businesses; (ii) increased visibility in the financial community;
(iii) the facilitation of borrowing from financial institutions; (iv) improved
trading efficiency; (v) stockholder liquidity; (vi) greater ease in subsequently
raising capital; (vii) compensation of key employees through stock options;
(viii) enhanced corporate image; and (ix) a presence in the United States
capital market.
We may seek a business opportunity with entities who have recently commenced
operations, or entities who wish to utilize the public marketplace in order to
raise additional capital in order to expand business development activities, to
develop a new product or service, or for other corporate purposes. We may
acquire assets and establish wholly-owned subsidiaries in various businesses or
acquire existing businesses as subsidiaries.
In implementing a structure for a particular business acquisition or
opportunity, we may become a party to a merger, consolidation, reorganization,
joint venture, or licensing agreement with another corporation or entity. We may
also acquire stock or assets of an existing business.
As of the date hereof, management has not entered into any formal written
agreements for a business combination or opportunity and there is no guarantee
that we will be able to enter into such an agreement.
COMPETITION
The biotechnology industry is 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. 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 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. 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.
As we are currently seeking other business opportunities, we compete with other
companies for both the acquisition of prospective properties and businesses and
the financing necessary to develop such properties or businesses.
We conduct our business in an environment that is highly competitive and
unpredictable. In seeking out prospective properties and other businesses, we
have encountered intense competition in all aspects of our proposed business as
we compete directly with other development stage companies as well as
established international companies. Many of our competitors are national or
international companies with far greater resources, capital and access to
information than us. Accordingly, these competitors may be able to spend greater
amounts on the acquisition of prospective properties and on the exploration and
development of such properties or the acquisition of other businesses.
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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
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". All of our provisional patents were re-filed June
22, 2010.
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.
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.
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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.
GOVERNMENT REGULATION
The products and technologies that would be developed from our patents 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.
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 we will not have any research
and development cash expenditures for the next twelve months.
Our company incurred a total of $260,147 in research and development costs for
the year ended September 30, 2009, consisting of $168,074 in cash expenses and
$92,073 in stock expenses. This was a decrease from the year ended September 30,
2008 where we incurred a total of $882,433 in research and development costs,
consisting of $353,320 in cash expenses and $529,113 in stock expenses
EMPLOYEES
We currently have one employee consisting of Michael McFarland, our sole
director and officer. 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, and support our planned growth and carry out
our business plan.
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, 2009, we have
incurred aggregate net losses of $6,853,521. 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 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 or the acquisition of another business.
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
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 January 31, 2011 which is included in our annual report on Form
10-K.
THE WORLDWIDE MACROECONOMIC DOWNTURN MAY REDUCE THE ABILITY OF OUR COMPANY TO
OBTAIN THE FINANCING NECESSARY TO CONTINUE OUR BUSINESS AND MAY REDUCE THE
NUMBER OF VIABLE BUSINESSES THAT WE MAY WISH TO ACQUIRE.
In 2008 and 2009, there has been a downturn in general worldwide economic
conditions due to many factors, including the effects of the subprime lending
and general credit market crises, volatile but generally declining energy costs,
slower economic activity, decreased consumer confidence and commodity prices,
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reduced corporate profits and capital spending, adverse business conditions,
increased unemployment and liquidity concerns. In addition, these macroeconomic
effects, including the resulting recession in various countries and slowing of
the global economy, will likely result in decreased business opportunities as
potential target companies face increased financial hardship. Tightening credit
and liquidity issues will also result in increased difficulties for our company
to raise capital for our continued operations and to consummate a business
opportunity with a viable business.
WE HAVE IDENTIFIED 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, 2009. 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, 2009 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 ineffective. In connection
with the preparation of our quarterly report for the period ended June 30, 2009,
we determined that an accrual error with respect to the management compensation
of one of our senior officers had been made in our financial statements in prior
periods and we determined that our disclosure controls and procedures were not
effective as at September 30, 2009. We have concluded that five material
weaknesses existed as at September 30, 2009 which are set out in Item 9A under
the heading "Controls and Procedures". 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. 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.
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
9
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, and any of our potential
collaborators, 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.
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 licensing of our technology may
adversely affect our ability to generate revenue. There can be no assurance that
our new or existing technologies will gain market acceptance. Management is
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 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 industry is 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 licensing of
our technology. 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.
10
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.
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 Calgary, Alberta, 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, our sole director and officer resides outside the United States,
and all of the assets of this 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 our sole director and officer 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
11
uses and may have a significant negative effect on our business plans and
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 100,000,000
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, 2009. 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
12
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.
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
Effective December 14, 2009, our principal offices are located at 71130, 198 -
8060 Silver Spring Blvd., Calgary, Alberta, Canada. Our sole director and
officer provides this space to us free of charge. This space may not be
available free of charge in the future. We do not own any real property. We
believe this office will be adequate for the near future.
ITEM 3. LEGAL PROCEEDINGS
Other than as set forth below, 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 June 1, 2011.
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 June 1, 2011.
On September 1, 2009, TCF Ventures filed a Writ of Summons and Statement of
Claim against our company. The Statement of Claim alleged that our company
notified TCF Ventures that it would be reducing amounts payable to TCF Ventures
by 33% and that our company would eventually repay the salary owed when it had
sufficient funds. TCF Ventures accepted the deferral of salary on the
understanding that the deferral was temporary and that it would be repaid as
soon as possible. The Statement of Claim further alleged that on or about
January 2009, our company notified TCF Ventures that our company would be
deferring the salary by 50%. In response, on or about February 3, 2009, the
Statement of Claim alleges that TCF Ventures delivered a written notice to our
company advising that our company was in material breach of the agreement for
failing to pay the salary. TCF Ventures claimed judgment against our company for
$68,750 plus GST for outstanding salary under the agreement and $150,000 for
severance.
On September 22, 2009, our company filed a Statement of Defence against TCF
Ventures, whereby our company denied the allegations made against our company
and counter claimed against TCF Ventures, which counterclaim included the
following: (a) causing our company to pay GST on amounts payable to TCF
Ventures, even though the agreement did not provide for the payment of GST to
TCF Ventures; (b) failure to cause our company to deduct GST from amounts
payable to TCF Ventures and to remit such payments to the required government
authority; and (c) during the term of the agreement, Mr. Fernback caused our
company to overpay on salary payments by applying a rate of exchange between the
Canadian and US dollars that was more favourable to TCF Ventures than existing
market rates. Our company took the position that such breaches constituted
repudiation of the agreement with TCF Ventures such that our company was
entitled to treat the agreement at an end and that TCF Ventures has no cause of
action against our company for the severance. Our company further claimed that
our company was entitled to repayment of the GST paid to TCF Ventures and the
13
amount paid in excess of the market exchange rates, and therefore claimed a
right of set-off for such amounts against any amount held to be owing to TCF
Ventures.
On December 14, 2009, TCF Ventures and our company signed a mutual release
whereby, in consideration for the payment of $50,000 from our company to TCF
Ventures, both parties agreed to release each other from all claims or
liabilities for any allegations pled in the Statement of Claim and the Statement
of Defence.
ITEM 4. (REMOVED AND RESERVED)
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, 2009 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.
Quarter Ended High Low
------------- ---- ---
September 30, 2009 $0.25 $0.02
June 30, 2009 $0.09 $0.03
March 31, 2009 $0.08 $0.02
December 31, 2008 $0.17 $0.02
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
On June 8, 2011, the closing price for the common stock as reported by the
quotation service operated by the OTC Bulletin Board was $0.01.
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 June 8, 2011 there were 10 registered holders of record of our common
stock. As of such date, 34,112,065 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.
14
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.
EQUITY COMPENSATION PLAN INFORMATION AS AT SEPTEMBER 30, 2009
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 2,645,300
Approved by Security Holders
Total 2,000,000 $0.95 2,645,300
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, 2009
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.
15
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.
On November 19, 2009, we issued 1,000,000 shares to one person. We issued the
shares upon an exemption from registration in an offering of securities in an
offshore transaction to a non US Person (as that term is defined in Regulation S
of the Securities Act of 1933), relying on Regulation S and/or Section 4(2) of
the Securities Act of 1933.
December 4, 2009, we returned 8,095,470 restricted common shares to the treasury
of our company for cancellation without consideration.
On December 14, 2009, Mr. Bellenson and Mr. Smith, both former directors and
officers of our company, entered into Option Termination Agreements with our
company, whereby the 400,000 options held by each person were immediately
cancelled.
ITEM 6. SELECTED FINANCIAL DATA
Not Applicable.
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. 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.
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.
We are also currently seeking new acquisitions and/or business opportunities
with established business entities for the merger of a target business with our
company including businesses not having a resource focus. In certain instances,
a target business may wish to become a subsidiary of us or may wish to
contribute assets to us rather than merge. There can be no assurance that we
will be able to enter into any agreements. We anticipate that any new
acquisition or business opportunities by our company will require additional
financing. There can be no assurance, however, that we will be able to acquire
the financing necessary to enable us to pursue our plan of operation. If our
company requires additional financing and we are unable to acquire such funds,
our business may fail.
16
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 $100,000
Professional fees $ 50,000
General and administrative expenses $ 30,000
Corporate communications $ 10,000
Research and development $ 25,000
--------
Total $215,000
========
For the 12 months ended September 30, 2009, we recorded a net operating loss of
$1,099,854 and have an accumulated deficit of $6,853,521 since inception. As at
September 30, 2009, we had a working capital deficit of $182,984 and for the
next 12 months, management estimates minimum cash requirements of $150,000 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.
LIQUIDITY AND CAPITAL RESOURCES
Our financial position as at September 30, 2009 and September 30, 2008 and the
changes for the years then ended are as follows:
WORKING CAPITAL
As at As at
September 30, September 30,
2009 2008
---------- ----------
Current Assets $ 241,132 $ 652,922
Current Liabilities $ 424,116 $ 397,930
Working Capital (Deficiency) $ (182,984) $ 254,992
Working capital has decreased by $437,976 from the year ended September 30, 2009
to 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,
2009 2008
------------ ------------
Net cash (used in) Operating Activities $ (375,201) $ (991,768)
Net cash from (used in) Investing Activities $ 1,466 $ (6,997)
Net cash provided by Financing Activities $ -- $ --
Effect of exchange rate changes $ (29,237) $ (7,657)
Increase (Decrease) in Cash during the Year $ (402,972) $ (1,006,422)
Cash, Beginning of Year $ 612,306 $ 1,618,728
Cash, End of Year $ 209,334 $ 612,306
17
During the years ended September 30, 2009 and 2008:
(i) Our net cash used in operating activities decreased by $616,567
primarily due to our company focusing on reducing expenses and
conserving our available cash.
(ii) Our net cash provided by investing activities of $1,466 in 2009
related to converting restricted cash to cash. Our net cash used by
investing activities of $6,997 in 2008 arose from the purchase of
Pacific Pharma Technologies, Inc.and of money market investments to
secure company credit cards.
(iii) Our net cash from financing activities was $nil in 2009 and $nil in
2008 as we did not partake in any financing activities during these
periods..
RESULTS OF OPERATIONS FOR YEAR ENDING SEPTEMBER 30, 2009
The following summary should be read in conjunction with our audited financial
statements for the years ended September 30, 2009 and 2008 included herein.
Year Ended Year Ended
September 30, September 30,
2009 2008
------------ ------------
Revenue $ Nil $ Nil
Expenses
Management and consulting fees $ 322,652 $ 312,863
Amortization 64,826 64,371
License fees and royalties 10,677 14,867
Loss (gain) of foreign exchange 9,302 (6,746)
Professional fees 118,284 119,348
General and administration 61,851 131,431
Corporate communications, transfer agent
and media 20,164 145,619
Research and development 260,147 882,433
Interest (income) expense - net (3,529) (42,329)
Asset impairment loss 59,010 --
Stock-based compensation 194,545 424,128
Total expenses $ 1,117,929 $ 2,045,985
Deferred income tax benefit 18,075 11,483
Net Loss $ (1,099,854) $ (2,034,502)
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, 2009 were $1,117,929
compared to $2,045,985 in 2008. This net decrease of $928,056 was primarily due
to the following:
* $69,570 decrease in general and administration which is a result of a
decrease in rent, travel expenditures, internet expenses and insurance
expense. We adopted a cash conservation plan which caused us to
re-evaluate expenses and determined the above expenditures were not
critical.
18
* $125,455 decrease in corporate communication expenses as a result of
the cancellation of unsuccessful contracts with fund raising firms
during 2008.
* $622,286 decrease in research and development expenses of which
$185,246 was cash and $437,040 equity. The decrease in cash spend was
due to a cash conservation strategy adopted by management during the
fiscal year. In addition, during fiscal 2009, we did not continue
stock based research and development costs which is the reason our
stock based costs were down compared to 2008.
* $39,121 decrease in interest income which was a result of our having a
$1,000,000 short term investment during fiscal 2008 which paid 4.45%
compared to a $470,000 investment earning 1.5% which was redeemed
during the year.
* $229,584 decrease in stock-based compensation was a result of there
being various vesting periods on options during fiscal 2007. Some
options had a two year vesting period which required an expense
totaling $280,395 to be recognized during fiscals 2007 and 2008 but
not 2009. Other options requiring a longer vesting period had
compensation expenses of $134,808 to be recognized in 2008 and
additional expenses to be recognized in 2009.
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; and (iii) 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, 2009
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 AND CONSOLIDATION
These consolidated financial statements and related notes are presented in
accordance with US GAAP and are expressed in US dollars. The Company is in the
development stage and has not realized any revenues from its business plan 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.
USE OF ESTIMATES AND ASSUMPTIONS
The preparation of financial statements in conformity with US GAAP requires the
Company to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
19
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
and the fair value of stock-based compensation, retiring allowances, deferred
income taxes and deferred compensation.
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.
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. The carrying amounts of these financial instruments at September 30,
2009 and 2008 approximate their fair values due to their short term nature.
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. At September 30, 2009, the Company wrote off
the remaining relatively minor balance of its equipment.
INTELLECTUAL PROPERTY RIGHTS
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. Its carrying value is reviewed on a regular basis for the
existence of facts or circumstances that may suggest impairment. The
determination of any impairment includes a comparison of net carrying value with
estimated future operating cash flows anticipated during the remaining useful
life. At September 30, 2009, the Company recognized full impairment of its IPR
(see Note 3).
FOREIGN CURRENCY TRANSACTIONS AND TRANSLATION
The functional and reporting currency of the Company is the United States dollar
and of the Company's Canadian subsidiaries it's the Canadian dollar. The
financial statements of the Canadian subsidiaries are translated into United
States dollars using period-end rates of exchange for assets and liabilities,
and period average rates of exchange for revenues and expenses. Foreign currency
transaction gains (losses) are included in the consolidated statements of
operations and those arising from translation of the Canadian subsidiaries
during the consolidation process are included in other comprehensive income
(loss) which is disclosed as a separate component of shareholders' equity
(deficit). The Company has not entered into any derivative instruments to offset
the impact of foreign currency fluctuations.
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 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.
20
SHARE-BASED COMPENSATION
The Company accounts for share-based compensation using the fair value method
and related compensation expense is recognized over the period of benefit when
the service is required.
CONVERTIBLE DEBENTURES
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. At September 30,
2009 and 2008, no convertible debentures were outstanding.
INCOME TAXES
The Company uses the liability method of accounting for income taxes. Under this
method, deferred tax assets and liabilities are determined based on temporary
differences between the financial statements and the tax basis of assets and
liabilities, and net operating loss (and credit) carry forwards based on using
enacted tax rates in effect for the year in which the differences arc expected
to reverse. The effect of a change in tax rates on deferred tax assets and
liabilities is recognized in income in the year that includes the enactment
date. Valuation allowances are established when it is 'more likely than not that
some portion of the deferred tax assets will not be realized. At September 30,
2009 and 2008, a valuation allowance for the full amount of the deferred tax
assets was recorded.
LOSS PER SHARE
Basic loss per share is computed by dividing the net loss by the weighted
average number of outstanding common shares during the year. Diluted loss per
share gives effect to all potentially dilutive common shares outstanding during
the year, including convet1ible debt, stock options and share purchase warrants,
using either the 'if-converted' method or the 'treasury stock' method. The
computation of diluted loss per share does not assume conversion, exercise or
contingent exercise of securities that would have an anti-dilutive effect on
loss per share.
OTHER COMPREHENSIVE INCOME (LOSS)
Other comprehensive income (loss) is defined as the change in equity of a
business enterprise during a period from transactions, other events and
circumstances from non-owner sources. It includes foreign currency translation
adjustments and unrealized gains and losses on available-for-sale investments.
These amounts are disclosed separately in the accompanying consolidated
statements of stockholders' equity (deficit).
COMPARATIVE FIGURES
Certain comparative figures have been reclassified to conform to the current
year's presentation.
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.
BUSINESS COMBINATIONS
In December 2007, new guidance was issued on business combinations. The guidance
revises the method of accounting for a number of aspects of business
combinations, including acquisition costs, contingencies, the impacts of partial
and step-acquisitions (including the valuation of net assets attributable to
nonacquired minority interests) and post acquisition exit activities of acquired
21
businesses. The new guidance will be effective for the Company beginning October
1, 2009 primarily affecting the accounting for subsequent acquisitions. The
Company does not believe the adoption of this new guidance will have a material
effect on its financial position, results of operations or cash flows.
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.
22
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
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, 2009 and
2008 and the related consolidated statements of operations, cash flows, and
stockholders' deficit and cash flows for the years then ended and the period
from June 14, 2004 (inception) through September 30, 2009. 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, 2009 and 2008 and the results of its operations and its cash flows
for the years then ended and the period from June 14, 2004 (inception) through
September 30, 2009 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.
/s/ "DMCL"
-------------------------------------
DALE MATHESON CARR-HILTON LABONTE LLP
CHARTERED ACCOUNTANTS
Vancouver, Canada
May 31, 2011
23
UPSTREAM BIOSCIENCES, INC.
(A Development Stage Company)
CONSOLIDATED BALANCE SHEETS
(Restated -
see Note 7)
September 30, September 30,
2009 2008
------------ ------------
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 209,334 $ 612,306
Other receivables 2,564 6,485
Prepaid expenses 29,234 34,131
Due from related parties -- 385
------------ ------------
241,132 653,307
RESTRICTED CASH 31,765 33,231
EQUIPMENT, net -- 12,007
INTELLECTUAL PROPERTY RIGHTS, net 178,315 294,141
------------ ------------
$ 451,212 $ 992,686
============ ============
LIABILITIES
CURRENT LIABILITIES
Accounts payable and accrued liabilities $ 126,146 $ 398,315
Due to related parties 297,970 --
------------ ------------
424,116 398,315
DEFERRED INCOME TAX 27,857 45,932
------------ ------------
451,973 444,247
------------ ------------
STOCKHOLDERS' EQUITY (DEFICIT)
CAPITAL STOCK
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 49,453 49,453
ADDITIONAL PAID-IN CAPITAL 6,889,878 6,395,333
OBLIGATION TO ISSUE SHARES 99,737 14,391
DEFERRED COMPENSATION (78,570) (78,570)
ACCUMULATED OTHER COMPREHENSIVE INCOME (LOSS) (10,038) 19,199
DEFICIT (6,951,221) (5,851,367)
------------ ------------
(761) 548,439
------------ ------------
$ 451,212 $ 992,686
============ ============
The accompanying notes are an integral part of these
consolidated financial statements.
24
UPSTREAM BIOSCIENCES, INC.
(A Development Stage Company)
CONSOLIDATED STATEMENTS OF OPERATIONS
Cumulative Results
Years Ended September 30, From Inception
(Restated - (June 14, 2004) to
see Note 7) September 30,
2009 2008 2009
------------ ------------ ------------
REVENUE $ -- $ -- $ 67,600
------------ ------------ ------------
OPERATING EXPENSES
Amortization 64,826 64,371 133,233
Consulting fees -- -- 12,598
Interest and finance charges 398 719 562,844
Interest income (3,927) (43,048) (83,332)
Investor and corporate communications 20,164 145,619 258,349
License fees and royalties 10,677 14,867 80,993
Loss (Gain) on foreign exchange 9,302 (6,746) 9,920
Management compensation 322,652 312,863 1,453,841
Office and general administration 61,851 131,431 436,394
Professional fees 118,284 119,348 514,667
Research and development 260,147 882,433 1,421,530
Stock-based compensation 194,545 424,128 2,090,632
Asset impairment loss 59,010 -- 59,010
------------ ------------ ------------
LOSS BEFORE INCOME TAX (1,117,929) (2,045,985) (6,883,079)
Deferred income tax recovery 18,075 11,483 29,558
------------ ------------ ------------
NET AND COMPREHENSIVE LOSS $ (1,099,854) $ (2,034,502) $ (6,853,521)
============ ============ ============
NET LOSS PER SHARE - BASIC AND DILUTED $ (0.02) $ (0.04)
============ ============
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING - BASIC AND DILUTED 49,453,006 48,689,094
============ ============
The accompanying notes are an integral part of these
consolidated financial statements.
25
UPSTREAM BIOSCIENCES, INC.
(A Development Stage Company)
CONSOLIDATED STATEMENTS OF CASH FLOWS
Cumulative Results
Years Ended September 30, From Inception
Restated - (June 14, 2004 to
see Note 7) September 30,
2009 2008 2009
------------ ------------ ------------
CASH FLOW FROM OPERATING ACTIVITIES
Net and comprehensive loss $ (1,099,854) $ (2,034,502) $ (6,853,521)
Adjustments to reconcile net loss to net cash used in
operating activities:
Amortization 64,826 64,371 133,233
Accretion of convertible debenture -- -- 302,808
Shares issued or to be issued for services 85,346 547,930 1,487,236
Stock based compensation 194,545 424,128 1,658,590
Deferred income tax (18,075) (11,483) (29,558)
Asset impairment 59,010 -- 59,010
Changes in operating assets and liabilities:
Other receivables 3,921 38,308 (2,564)
Prepaid expenses 4,897 10,788 (32,015)
Accounts payable and accrued liabilities 32,598 (800) 203,361
Due to related parties 297,585 (30,508) 297,970
------------ ------------ ------------
Net cash used in operating activities (375,201) (991,768) (2,775,450)
------------ ------------ ------------
CASH FLOW FROM INVESTING ACTIVITIES
(Increase) decrease in restricted cash 1,466 (588) (31,765)
Cash paid for acquisition of PPT shares -- -- (51,507)
Purchase of equipment -- (6,409) (21,234)
------------ ------------ ------------
Net cash provided by (used in) investing activities 1,466 (6,997) (104,506)
------------ ------------ ------------
CASH FLOW FROM FINANCING ACTIVITIES
Proceeds from issuance of convertible debentures -- -- 1,000,000
Proceeds from issuance of common shares, net -- -- 1,995,345
Loan from related party -- -- 78,487
------------ ------------ ------------
Net cash provided by financing activities -- -- 3,073,832
------------ ------------ ------------
EFFECT OF EXCHANGE RATE CHANGES (29,237) (7,657) 15,458
------------ ------------ ------------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (402,972) (1,006,422) 209,334
CASH AND CASH EQUIVALENTS, BEGINNING 612,306 1,618,728 --
------------ ------------ ------------
CASH AND CASH EQUIVALENTS, ENDING $ 209,334 $ 612,306 $ 209,334
============ ============ ============
The accompanying notes are an integral part of these
consolidated financial statements.
26
UPSTREAM BIOSCIENCES, INC.
(A Development Stage Company)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' DEFICIT
FOR THE PERIOD FROM JUNE 14, 2004 TO SEPTEMBER 30, 2009
Common Stock Additional Obligation
Number of Paid-In to Issue
Shares Amount Capital Shares
------ ------ ------- ------
BALANCE - JUNE 14, 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
----------- ------- ---------- -------
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
Obligation to issue shares under contract 4,842
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss
----------- ------- ---------- -------
BALANCE - SEPTEMBER 30, 2007 47,827,710 47,828 5,464,752 4,842
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 (4,842)
For amended 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
Obligation to issue shares under contract 14,391
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss
----------- ------- ---------- -------
BALANCE - SEPTEMBER 30, 2008 49,453,006 49,453 6,395,333 14,391
Amortization of fair value of stock options granted 194,545
Forgiveness of related party debt 300,000
Obligation to issue shares under contract 85,346
Comprehensive income (loss)
Foreign exchange translation adjustment
Net loss
----------- ------- ---------- -------
BALANCE - SEPTEMBER 30, 2009 49,453,006 $49,453 $6,889,878 $99,737
=========== ======= ========== =======
(Restated -
see Note 7)
Accumulated Deficit
Other Accumulated
Comprehensive During the Total
Deferred Income Development Stockholders'
Compensation (Loss) Stage Equity
------------ ------ ----- ------
BALANCE - JUNE 14, 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 (1,843,529) (1,843,529)
--------- -------- ----------- -----------
BALANCE - SEPTEMBER 30, 2006 (2,782) (9,179) (2,019,884) (283,252)
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) --
Obligation to issue shares under contract 4,842
Comprehensive income (loss)
Foreign exchange translation adjustment 36,035 36,035
Net loss (1,796,981) (1,796,981)
--------- -------- ----------- -----------
BALANCE - SEPTEMBER 30, 2007 (108,872) 26,856 (3,816,865) 1,618,541
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 20,113
For amended 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 27,180 27,180
Obligation to issue shares under contract 14,391
Comprehensive income (loss)
Foreign exchange translation adjustment (7,657) (7,657)
Net loss (2,034,502) (2,034,502)
--------- -------- ----------- -----------
BALANCE - SEPTEMBER 30, 2008 (78,570) 19,199 (5,851,367) 548,439
Amortization of fair value of stock options granted 194,545
Forgiveness of related party debt 300,000
Obligation to issue shares under contract 85,346
Comprehensive income (loss)
Foreign exchange translation adjustment (29,237) (29,237)
Net loss (1,099,854) (1,099,854)
--------- -------- ----------- -----------
BALANCE - SEPTEMBER 30, 2009 $ (78,570) $(10,038) $(6,951,221) $ (761)
========= ======== =========== ===========
The accompanying notes are an integral part of these
consolidated financial statements.
27
UPSTREAM BIOSCIENCES, INC
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2009
1. NATURE OF BUSINESS AND CONTINUANCE OF OPERATIONS
Upstream Biosciences, Inc. ("the Company") was incorporated on March 20, 2002
under the laws of the State of Nevada. The Company is engaged in developing
technology relating to biomarker identification, disease susceptibility and drug
response areas of cancer.
GOING CONCERN
These consolidated financial statements have been prepared in accordance with
generally accepted accounting principles in the United States of America ("US
GAAP") 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, 2009, the Company has a working capital deficiency
of $182,984 and has incurred losses since inception of $6,951,221. This raises
substantial doubt about the Company's ability to continue as a going concern
which is dependent upon generating profitable operations from a new business
venture in the future and obtaining the necessary financing to meet its
obligations when they become due. There is no assurance that 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.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION AND CONSOLIDATION
These consolidated financial statements and related notes are presented in
accordance with US GAAP and are expressed in US dollars. The Company is in the
development stage and has not realized significant revenues from its business
plan to date. These financial statements include the accounts of the Company and
its wholly-owned Canadian subsidiaries, Upstream Biosciences, Inc. ("Upstream
Canada") and Pacific Pharma Technologies Inc. ("PPT"). All inter-company
transactions and account balances have been eliminated on consolidation.
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.
INTELLECTUAL PROPERTY RIGHTS
Intellectual Property Rights ("IPR") is being amortized on a straight line basis
over 5 years. Its carrying value is reviewed on a regular basis for the
existence of facts or circumstances that may suggest impairment. The
determination of any impairment includes a comparison of net carrying value with
estimated future operating cash flows anticipated during the remaining useful
life.
USE OF ESTIMATES AND ASSUMPTIONS
The preparation of financial statements in conformity with US GAAP requires the
Company 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
and the fair value of stock-based awards, retiring allowances, deferred income
taxes and deferred compensation.
28
SHARE-BASED COMPENSATION
The Company accounts for share-based compensation using the fair value method
and related compensation expense is recognized over the period of benefit when
the service is rendered.
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. The carrying amounts of these financial instruments at September 30,
2009 and 2008 approximate their fair values due to their short term nature.
FOREIGN CURRENCY TRANSACTIONS AND TRANSLATION
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 using period-end rates of exchange for assets and liabilities, and
period average rates of exchange for revenues and expenses. Foreign currency
transaction gains (losses) are included in the consolidated statements of
operations and those arising from translation of the Canadian subsidiaries
during the consolidation process are included in other comprehensive income
(loss) which is disclosed as a separate component of shareholders' deficit. The
Company has not entered into any derivative instruments to offset the impact of
foreign currency fluctuations.
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 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.
INCOME TAXES
The Company uses the liability method of accounting for income taxes. Under this
method, deferred tax assets and liabilities are determined based on temporary
differences between the financial statements and the tax basis of assets and
liabilities, and net operating loss carry forwards based on using enacted tax
rates in effect for the year in which the differences are expected to reverse.
The effect of a change in tax rates on deferred tax assets and liabilities is
recognized in income in the year that includes the enactment date. Valuation
allowances are established when it is 'more likely than not that some portion of
the deferred tax assets will not be realized. At September 30, 2009 and 2008, a
valuation allowance for the full amount of the deferred tax assets was recorded.
LOSS PER SHARE
Basic loss per share is computed by dividing the net loss by the weighted
average number of outstanding common shares during the year. Diluted loss per
share gives effect to all potentially dilutive common shares outstanding during
the year, including convet1ible debt, stock options and share purchase warrants,
using the treasury stock method. The computation of diluted loss per share does
not assume conversion, exercise or contingent exercise of securities that would
have an anti-dilutive effect on loss per share.
NEW ACCOUNTING PRONOUNCEMENTS AND POLICIES
The Company has reviewed recently issued accounting pronouncements and plans to
adopt those that are applicable to it. It does not expect the adoption of these
pronouncements to have a material impact on its financial position, results of
operations or cash flows.
3. INTELLECTUAL PROPERTY RIGHTS
September 30, September 30,
2009 2008
---------- ----------
Cost $ 295,907 $ 295,907
Deferred income tax 56,779 57,415
---------- ----------
Total cost 352,686 353,322
Less: Accumulated amortization (115,361) (59,181)
---------- ----------
237,325 294,141
Less: Impairment (59,010) --
---------- ----------
$ 178,315 $ 294,141
========== ==========
29
Subsequently to September 30, 2009 the Company disposed of its IPR (see Note 9).
4. RELATED PARTY TRANSACTIONS
For the year ended September 30, 2009, the Company incurred expenses of $563,537
(September 30, 2008 - $719,135) to directors, or companies controlled by
directors.
Year End Year End
September 30, September 30,
2009 2008
---------- ----------
Management fees and benefits $ 441,155 $ 470,866
Amortization of stock options granted 122,382 248,269
---------- ----------
Sub-total $ 563,537 $ 719,135
Less: Reclassified to research and
development expense (100,418) (158,002)
---------- ----------
Net Total $ 463,119 $ 561,133
========== ==========
As at September 30, 2009, the Company owed $297,970 (September 30, 2008 -
$(385)) to directors, or companies controlled by directors (see Note 9). These
loans are unsecured, bears no interest and are due on demand.
During the year ended September 30, 2009 two directors of the Company amended
their employment agreements with the Company. The amendments resulted in accrued
termination benefits amounting to $300,000 no longer being payable. The reversal
of the termination benefit accrual was treated as a capital transaction and
recorded as Additional Paid in Capital in the consolidated financial statements.
Related party transactions were conducted in the ordinary course of business and
measured at the exchange amount established and agreed to by the related
parties, amounts due to related parties are unsecured, non-interest bearing and
have no set terms of repayment.
5. DEFERRED INCOME TAX
The parent Company is subject to income taxes in the US and its wholly-owned
subsidiaries are subject to income taxes in Canada, At September 30, 2009, both
the Company and its subsidiaries had accumulated non-capital loss carry-forwards
of approximately $3,200,000, of which $500,000 pertained to the US and
$2,700,000 to Canada. These losses are available to reduce taxable income in
future taxation years and begin to expire in 2025 after a carry-forward period
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 against this deferred income tax asset.
At September 30, 2009 and 2008, the components of the deferred income tax
accounts are shown below:
September 30, September 30,
2009 2008
---------- ----------
Non-capital tax loss carry forwards $3,200,000 $2,875,000
Statutory tax rate 35% 35%
Deferred income tax asset 1,120,500 1,006,000
Less: Valuation allowance (1,120,500) (1,006,000)
Net deferred income tax asset $ -- $ --
Net deferred income tax liability $ 27,857 $ 45,932
30
6. CAPITAL STOCK
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 $0.00 1 per share.
ISSUED AND OUTSTANDING
No preferred shares have been issued to date.
During the year ended September 30, 2009, there were no changes in common stock.
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 $168,016
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.
(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, 2009 and 2008.
C) STOCK OPTIONS
The Company has 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 options, 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.
During the years ended September 30, 2009 and 2008 the Company did not grant any
stock options.
The Company recorded $194,545 as stock-based compensation expense for vested
options for the year ended September 30, 2009 (September 30, 2008 - $424,128).
At September 30, 2009, 2,000,000 stock options were outstanding with a weighted
average exercise price and remaining life of $0.95 and 5.3 years respectively.
Subsequent to September 30, 2009, 800,000 options expiring March 16, 2017 were
cancelled (see Note 9).
D) SHARE PURCHASE WARRANTS
As at September 30, 2008, 2,666,668 warrants were outstanding which expired
during the year ended September 30, 2009. There are no stock purchase warrants
outstanding at September 30, 2009.
31
7. RESTATEMENT
The consolidated financial statements for the year 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, and
stockholders equity for the year ended September 30, 2008 to correctly present
these revised calculations.
At September 30, 2008, the 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:
At September 30, 2008
----------------------------------------------------------
As Originally
Reported Adjustment As Restated
-------- ---------- -----------
$ $ $
BALANCE SHEET
Accounts payable and accrued liabilities 98,315 300,000 398,315
Due (from) to related parties 364,198 (364,583) (385)
Accumulated deficit (5,915,950) (64,583) (5,851,367)
STATEMENT OF OPERATIONS
Management compensation 487,863 (175,000) 312,863
Net loss (2,209,502) 175,000 (2,034,502)
8. COMMITMENTS AND CONTINGENCIES
An individual has alleged a breach of contract by the Company and has filed a
claim in the amount $500,000 plus interest of $114,000 (as at November 26, 2010)
against the Company and its directors. The Company refuted the claims on
December 13, 2010 and there have been no further developments since that time.
The Company entered into license agreements in March 2005 with both the
University of British Columbia ("UBC") and the British Columbia Cancer Agency
("BCCA"). Both UBC and BCCA have not delivered to the Company the software code
and documentation associated with their licensed technologies and the Company
deems both parties to be in defaults of the license agreements. As official
contract termination notices have also not been delivered to UBC and BCCA the
Company continues to accrue for obligations in terms of the license agreements
in breach. As at September 30, 2009, the Company accrued $52,335 in terms of
these license agreements. In addition, the Company has accrued $12,500 (for
unpaid rent under a separate agreement with BCCA).
32
9. SUBSEQUENT EVENTS
Subsequent to September 30, 2009, the Company entered into the following
agreements:
a) an agreement dated December 4, 2009 with two former officers and directors of
the Company to cancel 16,190,940 restricted common shares without consideration.
b) an agreement dated December 10, 2009 to sell the IPR in exchange for no
further obligation to issue shares amounting to $99,745 at September 30, 2009
and 150,000 performance-based escrow shares recorded as deferred compensation of
$78,570 in shareholders' deficit at September 30, 2009 being cancelled and
returned to treasury.
c) option termination agreements dated December 14, 2009 with two former
officers and directors of the Company to cancel a total of 800,000 stock
options.
d) mutual release agreements dated December 14, 2009 with two former officers
and directors of the Company to release each party from the other for all claims
each party may have against the other. Accordingly, amounts owing to two
officers of $251,934 at September 30, 2009 are no longer owing.
e) mutual release and settlement agreement with its former CFO in the amount of
$46,036 to release each party from the other for all claims each party may have
against the other.
In addition on November 17, 2009, 1,000,000 common 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 these shares since the minimum
$150,000 was not expended on third-party testing of the PPT technology during
the year ended September 30, 2009.
33
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, 2009 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, 2009 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
policies and procedures for accounting and financial reporting with respect to
34
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, 2009 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 June 8, 2011, 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
---- ------------------------------ --- ------------
Mike McFarland(1)(2) President, Secretary, Treasurer, Chief 51 December 14, 2009
Executive Officer, Chief Financial
Officer and Director
----------
(1) Member of the Compensation Committee
(2) Member of the Audit Committee
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.
35
MIKE MCFARLAND
Mike McFarland was appointed as a director and the president, secretary,
treasurer, chief executive officer and chief financial officer of our company on
December 14, 2009. Mr. McFarland earned his Bachelor of Science degree in 1982
and his Bachelor of Education in 1984, both from St. Francis Xavier University.
Mr. McFarland has been in the education and teaching profession for over 25
years. Since 2005, he has been teaching at Notre Dame High School in Calgary,
Alberta. He has been an active investor in both private and public ventures for
the past 12 years.
We believe Mr. McFarland is qualified to serve on our board of directors because
of his knowledge of our company's history and current operations, which he
gained from working for our company as described above, in addition to his
education and business experience as described above.
SIGNIFICANT EMPLOYEES
We have no significant employees other than the sole director and officer of our
company.
FAMILY RELATIONSHIPS
There are no family relationships among our directors or officers.
INVOLVEMENT IN CERTAIN LEGAL PROCEEDINGS
Our sole director and executive officer has not been involved in any of the
following events during the past ten 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
offences);
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;
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;
5. being the subject of, or a party to, any federal or state judicial or
administrative order, judgment, decree, or finding, not subsequently
reversed, suspended or vacated, relating to an alleged violation of:
(i) any federal or state securities or commodities law or regulation;
or (ii) any law or regulation respecting financial institutions or
insurance companies including, but not limited to, a temporary or
permanent injunction, order of disgorgement or restitution, civil
money penalty or temporary or permanent cease- and-desist order, or
removal or prohibition order; or (iii) any law or regulation
prohibiting mail or wire fraud or fraud in connection with any
business entity; or
6. being the subject of, or a party to, any sanction or order, not
subsequently reversed, suspended or vacated, of any self-regulatory
organization (as defined in Section 3(a)(26) of the Securities
Exchange Act of 1934), any registered entity (as defined in Section
1(a)(29) of the Commodity Exchange Act), or any equivalent exchange,
association, entity or organization that has disciplinary authority
over its members or persons associated with a member.
36
AUDIT COMMITTEE
Mike McFarland has been appointed as the sole member of the audit committee. Mr.
McFarland is not an independent director of our company 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 Mike McFarland being appointed to the audit committee, Dr. Geert
Cauwenbergh and Jeffrey Bacha acted as the audit committee. 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 sole audit committee
member is 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.
NOMINATION PROCEDURES FOR APPOINTMENT OF DIRECTORS
As of June 1, 2011, 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
37
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, 2009, all filing requirements
applicable to our officers, directors and greater than 10% percent beneficial
owners were complied with, with the exception of the following:
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 4 - Statement of Changes in Beneficial
Ownership which has subsequently been filed.
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth all compensation received during the two years
ended September 30, 2009 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($)(5) Compensation($) Earnings($) Compensation($) Totals($)
-------- ---- --------- -------- --------- --------- --------------- ----------- --------------- ---------
Mike McFarland(1) 2009 N/A N/A N/A N/A N/A N/A N/A N/A
Chief Executive 2008 N/A N/A N/A N/A N/A N/A N/A N/A
Officer, Chief
Financial
Officer,
President,
Secretary
Treasurer and
Director
38
Joel L. 2009 178,808 Nil Nil Nil Nil Nil Nil 178,808
Bellenson(2) 2008 158,003 Nil Nil 91,172 Nil Nil 53,017 302,222
Chief Executive
Officer, Chief
Financial Offer
and Director
Dexster L. Smith(3) 2009 178,808 Nil Nil Nil Nil Nil Nil 178,808
President and 2008 158,003 Nil Nil 91,172 Nil Nil 53,017 302,222
Director
Tim Fernback(4) 2009 156,687 Nil Nil Nil Nil Nil Nil 156,687
former 2008 154,861 Nil Nil 65,925 Nil Nil 75,000 292,786
Chief Financial
Officer
----------
(1) Mike McFarland was appointed as chief executive officer, chief financial
officer, president, secretary, treasurer and director on December 14, 2009.
(2) Joel Bellenson was appointed director and chief executive officer of our
company on March 1, 2006. Mr. Bellenson was appointed our chief financial
officer on August 28, 2009. Mr. Bellenson resigned as an officer and
director on December 14, 2009.
(3) Dexster Smith was appointed director and president of our company on March
1, 2006. Mr. Smith resigned as an officer and director on December 4, 2009.
(4) Tim Fernback was our chief financial officer from April 12, 2006 to August
28, 2009.
(5) 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 was carried out by Mr. Bellenson and
Mr. Smith, former directors and officers of our company, pursuant to employment
agreements with our company calling for annual base salaries of $150,000 each.
Of note, Messrs. Bellenson and Smith voluntarily agreed to defer their salaries
for the 2009 calendar year, or until such time that our company completes a
suitable financing. Effective August 18, 2009, our company entered into
agreements with Messrs. Bellenson and Smith to amend the terms of their
respective employment agreements. The amendment agreements revise the severance
provisions of the original employment agreements which provided for the payment
of $150,000 as a retiring allowance to each of the employees in the event that
their employment was terminated for any reason. Under the terms of the amending
agreements, we agreed to pay each of Messrs. Bellenson and Smith $150,000
severance only in the event that (a) we terminate their employment without
cause; or (b) they terminate their employment upon a material breach or default
of any term of their respective employment agreements by our company, but only
if they first give written notice of such breach or default to us and we fail to
rectify it within a period of 30 days following receipt of such notice.
Accordingly, the accrued liablity of $300,000 will not be recognized in our
company's financial statements subsequent to June 30, 2009 since the amended
agreements will be accounted for on a prospective basis. Subsequent to our year
ended September 30, 2009, we terminated the amending agreements with Messrs.
Bellenson and Smith.
Prior to August 28, 2009, we paid $150,000 annually to TCF Ventures Corp.
("TCFV") for consulting services primarily pertaining to the function of chief
financial officer. TCFV is a company beneficially owned by Mr. Tim Fernback.
TCFV agreed to defer a portion of the amounts owed to him for consulting
services on the understanding that such amounts would be repaid when our company
obtained sufficient funds. TCFV a company through which Tim Fernback provided
services as chief financial officer of our company, agreed to defer a portion of
the amounts owed to him for consulting services on the understanding that such
amounts would be repaid when our company obtained sufficient funds. On August
24, 2009, our company received notice that TCFV was terminating its management
services contract effective August 28, 2009. The notice alleges TCFV's right to
39
terminate due to an un-rectified material breach arising from our company's
failure to pay a portion of the compensation owing under the contract on a
timely basis. After seeking legal advice, our company denied the breach since
the compensation in question was voluntarily deferred by TCFV. On December 14
2009, TCF Ventures and our company signed a mutual release whereby, in
consideration for the payment of $50,000 from our company to TCF Ventures, both
parties agreed to release each other from all claims or liabilities for any
allegations pled in the Statement of Claim and the Statement of Defence. In
addition, and similar to the situation with respect to Messrs. Bellenson and
Smith above, the $150,000 was incorrectly accrued in the financial statements of
our company from February 7, 2006 (the date of the original contract) to June
30, 2009. Accordingly, and although in dispute, our company has retroactively
reversed the $150,000 accrual from its financial statements as at June 30, 2009.
We have also entered into an amended three year consulting agreement with JTAT
Consulting through which Dr. Artem Cherkasov provides consulting services
related to our biotechnology drug development business. In consideration for
such services, we have agreed to pay JTAT Consulting CDN$50,000 annually and an
equivalent amount of shares in the capital of our company, calculated based upon
the closing price of our shares at the end of each calendar month. Effective
March 1, 2008, we amended the agreement with JTAT Consulting to increase the
equity component of the contract from CDN$50,000 to CDN$200,000 worth of shares
in the capital of our company, calculated based upon the closing price of our
shares at the end of each calendar month. All cash payments have been made and
all obligations to issue shares have been accrued but not yet issued to date. On
December 14, 2009, we stopped making any payments to JTAT Consulting as we
entered into an asset purchase agreement with JTAT Consulting and Dr. Artem
Cherkasov.
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, 2009.
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(#)
---- -------------- ---------------- ---------- ----- ---- --------- --------- --------- ---------
Mike Nil Nil Nil Nil Nil Nil Nil Nil Nil
McFarland(3)
Chief
Executive
Officer,
Chief
Financial
Officer,
President,
Secretary
Treasurer
and
Director
40
Joel L. March 16,
Bellenson(4) 400,000(5) Nil Nil(5) $0.96 2017 Nil Nil Nil Nil
former
Chief
Executive
Officer,
Chief
Financial
Officer and
Director
Dexster L. March 16,
Smith(6) 400,000(7) Nil Nil(7) $0.96 2017 Nil Nil Nil Nil
former
President
and
Director
Tim May 3,
Fernback(8) 400,000 Nil Nil $0.80 2012 Nil Nil Nil Nil
former
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.
(3) Mike McFarland was appointed as chief executive officer, chief financial
officer, president, secretary, treasurer and director on December 14, 2009.
(4) Joel Bellenson was appointed director and chief executive officer of our
company on March 1, 2006. Mr. Bellenson was appointed our chief financial
officer on August 28, 2009. Mr. Bellenson resigned from as an officer and
director on December 14, 2009.
(5) On December 14, 2009, these options were cancelled.
(6) Dexster Smith was appointed director and president of our company on March
1, 2006. Mr. Smith resigned from as an officer and director on December 4,
2009.
(7) On December 14, 2009, these options were cancelled.
(8) Mr. Fernback resigned as our chief financial officer on August 28, 2009.
No options were granted during the year ended September 30, 2009 and 300,000
options were cancelled following the resignations of one former officer. At
September 30, 2009, there were 800,000 stock options issued and outstanding.
Subsequent to the year ended September 30, 2009, 800,000 stock options were
cancelled following the resignations of two former directors and officers.
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 $194,545 as
stock-based compensation expense for the year ended September 30, 2009 (year
ended September 30, 2008 - $424,128).
A summary of our outstanding stock options as of September 30, 2009 is presented
below:
41
Options
Outstanding at
Grant Date Expiry Date Exercise Price September 30, 2009
---------- ----------- -------------- ------------------
May 1, 2006 March 1, 2016 $0.80 400,000
March 16, 2007 March 16, 2017 $0.96 800,000(1)
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
----------
(1) On December 14, 2009, these options were cancelled.
The weighted average exercise price and remaining life of the stock options was
$0.95 and 5.3 years, respectively.
AGGREGATED OPTION EXERCISES
There were no options exercised by any officer or director of our company during
our twelve month period ended September 30, 2009.
LONG-TERM INCENTIVE PLAN
Currently, our company does not have a long-term incentive plan in favor of any
director, officer, consultant or employee of our company.
DIRECTORS COMPENSATION
The particulars of compensation paid to our directors for our year ended
September 30, 2009, is set out in the following director compensation table:
Change in
Pension
Value and
Fees Non-Equity Nonqualified
Earned Incentive Deferred
Paid in Stock Option Plan Compensation All Other
Name Cash($) Awards($) Awards($)(1) Compensation($) Earnings($) Compensation($) Total($)
(A) (B) (C) (D) (E) (F) (G) (H)
---- ------- --------- --------- --------------- ----------- --------------- --------
Mike McFarland(1) N/A N/A N/A N/A N/A N/A N/A
Joel Bellenson(2) Nil Nil Nil Nil Nil Nil Nil
Dexster Smith(3) Nil Nil Nil Nil Nil Nil Nil
Dr. Geert Cauwenbergh(4) Nil Nil Nil Nil Nil Nil Nil
Jeffrey Bacha(5) Nil Nil Nil Nil Nil Nil Nil
----------
(1) Mike McFarland was appointed as a director of our company on December 14,
2009.
(2) Joel Bellenson was appointed as a director of our company on March 1, 2006.
Mr. Bellenson resigned as a director of our company on December 14, 2009.
(3) Dexster Smith was appointed as a director of our company on March 1, 2006.
Mr. Smith resigned as a director of our company on December 4, 2009.
(4) Dr. Geert Cauwenbergh was appointed a director of our company on March 25,
2008. Dr. Cauwenbergh resigned as a director of our company on December 14,
2009.
(5) Jeffrey Bacha was appointed a director of our company on April 3, 2008. Mr.
Bacha resigned as a director of our company on December 14, 2009.
42
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 June 1, 2011, there were 34,112,065 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
---------------- -------- -------------------- --------
Mike McFarland Chief Executive Officer, Nil N/A
71099, 198 - 8060 Silver Chief Financial Officer,
Spring Blvd., Calgary, President, Secretary,
Alberta Canada Treasurer and Director
Directors and Executive
Officers as a Group Nil N/A
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, 2009, 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, 2009, we owed $Nil (September 30, 2008 - $364,584) for accrued
retiring allowances to three of our former officers.
Of the management compensation incurred during the year ended September 30,
2009, $100,418 was expensed as research and development (year ended September
30, 2008 - $158,003).
As at September 30, 2009, we owed $297,970 (September 30, 2008 - $(385)) to
directors, or companies controlled by directors. These loans are unsecured,
bears no interest and are due on demand.
During the year ended September 30, 2009 two of our directors amended their
employment agreements with us. The amendments resulted in accrued termination
benefits amounting to $300,000 no longer being payable.
43
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 one director: Mike McFarland.
We have determined that Mr. McFarland is not an independent director, 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 that
date, Jeffrey Bacha and Dr. Geert Cauwenbergh were appointed as sole members of
the audit committee, both of whom were independent. Currently, upon the
resignations of Jeffrey Bacha and Dr. Geert Cauwenbergh, Mike McFarland is the
sole member of our audit committee. Mike McFarland is not 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.
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
was filed as an exhibit to our Annual Report on Form 10-K, filed with the
Securities and Exchange Commission on December 22, 2008.
COMPENSATION COMMITTEE - COMPENSATION COMMITTEE INTERLOCKS AND INSIDER
PARTICIPATION
Our board of directors struck a compensation committee on September 11, 2008. As
of that date, Dr. Geert Cauwenbergh and Jeffrey Bacha were appointed as sole
members of the committee, each of whom were non-employee directors of our
company. Currently, upon the resignations of Jeffrey Bacha and Dr. Geert
Cauwenbergh, Mike McFarland is the sole member of our compensation committee.
Our sole member of the compensation committee is not 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.
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.
TRANSACTIONS WITH INDEPENDENT DIRECTORS
None of our independent directors entered into any transaction, relationship or
arrangement during the year ended September 30, 2009 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.
44
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, our sole director and officer, Mike McFarland, is not 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".
Mike McFarland, the sole member of our audit committee, is "financially
literate", as defined in National Instrument 52-110, as he has 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 his duties,
the sole member of the audit committee has 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 was filed as an
exhibit to our annual report on Form 10-K filed with the Securities and Exchange
Commission on December 19, 2008.
NATIONAL INSTRUMENT 58-101
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 one member consisting of Mike
McFarland. Mr. McFarland is not independent as that term is defined in National
Instrument 52-110 due to the fact that he is the sole executive officer 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:
* selecting and assessing members of the Board;
45
* 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 our 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 our company,
and monitoring performance against those policies;
* ensuring the integrity of our company's internal control and
management information systems;
* approving any major changes to our 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
-------- -------------------------
Mike McFarland None
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.
46
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
AUDIT FEES
The aggregate fees billed for the two most recently completed fiscal periods
ended September 30, 2009 and September 30, 2008 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,
2009 2008
-------- --------
Audit Fees and Audit Related Fees $ 15,000 $ 32,362
Tax Fees $ 500 Nil
All Other Fees Nil Nil
-------- --------
TOTAL $ 15,500(1) $ 32,362
======== ========
----------
(1) Audit fees for year ended September 30, 2009 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).
47
(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).
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 2007 Stock Option Plan (incorporated by reference from our
Registration Statement on Form SB-2 filed on October 1, 2007)
10.2 Amendment to Employment Agreement dated August 18, 2009 between our
company and Dexster Smith (incorporated by reference from our
Quarterly Report on Form 10-Q filed on August 31, 2009)
10.3 Amendment to Employment Agreement dated August 18, 2009 between our
company and Joel Bellenson (incorporated by reference from our
Quarterly Report on Form 10-Q filed on August 31, 2009)
10.4 Return to Treasury Agreement dated December 14, 2009 between our
company and Joel Bellenson (incorporated by reference from our Current
Report on Form 8-K filed on December 14, 2009)
10.5 Return to Treasury Agreement dated December 14, 2009 between our
company and Dexster Smith (incorporated by reference from our Current
Report on Form 8-K filed on December 14, 2009)
10.6 Asset Sale Agreement dated December 14, 2009 between Pacific Pharma
Technologies Inc. and JTAT Consulting Inc. (incorporated by reference
from our Current Report on Form 8-K filed on December 14, 2009)
(31) SECTION 302 CERTIFICATIONS
31.1* Certification of Principal Executive Officer and 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.
(99) ADDITIONAL EXHIBITS
99.1 Compensation Committee Charter (incorporated by reference from our
Annual Report on Form 10-K filed on December 19, 2008)
99.2 Audit Committee Charter (incorporated by reference from our Annual
Report on Form 10-K filed on December 19, 2008)
48
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.
/s/ Charles El-Moussa
----------------------------------------
Charles El-Moussa
Chief Executive Officer, Chief Financial
Officer, President, Secretary, Treasurer
and Director
(Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
Date: May 29, 2012
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/ Charles El-Moussa
-------------------------------------
Charles El-Moussa
Chief Executive Officer, Chief Financial
Officer, President, Secretary, Treasurer
and Director
(Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
Date: May 29, 2012
49