Attached files
file | filename |
---|---|
EX-32.2 - NUGEN HOLDINGS, INC. | v171220_ex32-2.htm |
EX-31.2 - NUGEN HOLDINGS, INC. | v171220_ex31-2.htm |
EX-31.1 - NUGEN HOLDINGS, INC. | v171220_ex31-1.htm |
EX-32.1 - NUGEN HOLDINGS, INC. | v171220_ex32-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K
(Mark
One)
x ANNUAL REPORT UNDER
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the
fiscal year ended September 30, 2009
or
o TRANSITION REPORT
UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the
transition period from __________ to __________
Commission
file number 000-52865
INOVACHEM,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
26-1946130
|
(State
or other jurisdiction of incorporation or
organization)
|
(I.R.S.
Employment Identification No.)
|
c/o
Polymed Therapeutics, Inc.
|
||
3040
Post Oak Boulevard, Suite 1110
|
||
Houston,
TX
|
77056
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
(713)
777-7088
(Registrant’s
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of Act:
None
Securities
registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par
value
(Title of
Class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.
¨
Yes x No
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Act.
¨
Yes x No
Indicate
by check mark whether the registrant (1) has 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. x Yes ¨ No
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 (Section 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 x No
Indicate
by checkmark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§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. x Yes o No
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “larger accelerated filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Larger
accelerated filer ¨
|
Accelerated
filer ¨
|
Non -
accelerated filer o
(Do not check if a smaller reporting company) Smaller reporting company x
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act).
Yes x No
¨
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: $417,004.
Indicate
the number of shares outstanding of each of the registrant’s classes of common
stock, as of the latest practicable date: 21,515,013 shares of common stock,
$0.001 par value, were outstanding on January 11, 2010.
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) under 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).
InovaChem,
Inc.
FORM
10-K
TABLE
OF CONTENTS
|
Page
|
PART
I
|
3
|
ITEM
1. BUSINESS
|
6
|
ITEM
1A. RISK FACTORS
|
6
|
ITEM
1 B. UNRESOLVED STAFF COMMENTS
|
6
|
ITEM
2. PROPERTIES
|
6
|
ITEM
3. LEGAL PROCEEDINGS
|
6
|
ITEM
4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
|
7
|
PART
II
|
7
|
ITEM
5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES
|
7
|
ITEM
6. SELECTED FINANCIAL DATA
|
7
|
ITEM
7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
|
7
|
ITEM
7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
|
11
|
ITEM
8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
|
11
|
ITEM
9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
|
11
|
ITEM
9A(T). CONTROLS AND PROCEDURES
|
12
|
ITEM
9B. OTHER INFORMATION
|
12
|
PART
III
|
12
|
ITEM
10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
|
12
|
ITEM
11. EXECUTIVE COMPENSATION
|
15
|
ITEM
12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
|
20
|
ITEM
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
|
21
|
ITEM
14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
22
|
PART
IV
|
22
|
ITEM
15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
|
22
|
2
PART
I
ITEM
1. BUSINESS
History
We are an
early stage research, development and manufacturing company. Our strategic plan
during the past fiscal year was to reduce the cost of manufacture of food,
pharmaceutical and other products through the utilization of new technologies.
We had hoped to obtain these technologies through their purchase, acquisition or
in-house development.
Proposed
Merger
On November 9, 2009, we entered into a
letter of intent with NuGen Mobility, Inc., a Delaware corporation based in
Ashburn, Virginia (“NuGen”), relating to our proposed acquisition of
NuGen for approximately 80% of our capital stock on a fully-diluted basis. NuGen
is engaged in the development, manufacture and marketing of permanent
magnet electric motors, powertrain technology and related electric
controls. Consummation of the contemplated transaction is subject to
the negotiation and execution of a mutually satisfactory definitive share
exchange agreement or merger agreement (the “Definitive Agreement”), setting
forth the specific terms and conditions of the transaction. The
execution of the Definitive Agreement is subject to the consummation of a
private placement of no less than $1,000,000, approval by our board of directors
and the board of directors of NuGen, approval by the shareholders of NuGen, and
the completion by us of a satisfactory review of the legal, financial and
business condition of NuGen, including the receipt of NuGen’s financial
statements audited in accordance with applicable SEC rules. We and
NuGen are obligated to use our reasonable best efforts to negotiate in good
faith the Definitive Agreement, which will contain, among other standard terms
and conditions, representations, warranties, covenants, indemnities and other
provisions customary in transactions of this nature, including without
limitation, representations and warranties as to the condition of the title held
to the assets of NuGen, the financial statements of NuGen, the payment of taxes
and contingent liabilities. Any necessary third-party consents shall be obtained
prior to consummation of the transaction, including but not limited to any
consents required to be obtained from NuGen lenders, creditors, vendors and
lessors. If and when the proposed merger with NuGen is consummated, we would
assume NuGen’s business as our sole line of business.
Description
of Business
We were
incorporated in the state of Delaware on September 27, 2007, and we were
formerly named Expedite 1, Inc. We changed our name to InovaChem, Inc. on
February 11, 2008, after Exchequer, Inc. purchased all of the outstanding shares
of our common stock from our original sole stockholder. On June 28, 2008,
InovaChem Mergerco, LLC a Texas limited liability company and our wholly owned
subsidiary merged with and into Trinterprise LLC, a Texas limited liability
company (“Trinterprise”) with Trinterprise surviving the merger. As a result of
the Merger, we acquired the rights in and to three patent applications of
Trinterprise, and Trinterprise became our wholly owned subsidiary. This
transaction was treated as a recapitalization of Trinterprise. We maintained our
fiscal year end of September 30, which was the historical fiscal year end of
Inovachem, Inc. and Trinterprise.
The
patent applications we acquired are as follows: (i) U.S. Patent Application No.
11/806,810, “NOVEL CHLORINATION PROCESS FOR PREPARING SUCRALOSE”(ii) U.S. Patent
Application No. 11/898/652, “NOVEL PROCESS FOR PREPARING SUCROSE-6-ESTERS”; and
(iii) U.S. Patent Application No. 12/003,850, CIP of 11/806,810. Sucralose is a
non-caloric sweetener, which is 600 times sweeter than sucrose, made from
sugar. The patent applications were filed with the United States
Patent and Trademark office by Shao Jun Xu, PhD. and, subsequently, assigned to
Polymed Therapeutics, Inc., a company owned by our Chief Executive Officer
(William Zuo) and our vice-president (Xiaojing Li). Polymed assigned the patent
applications to Trinterprise in connection with the merger.
3
In
connection with the merger, Polymed also assigned to Trinterprise the following
two reports from Covance Laboratories, Inc.: (i) Covance report dated March 11,
2008, Sucralose C071202 Specifications, Sample No. 80104857, Batch No. 80104857;
and (ii) Covance report dated March 11, 2008, Sucralose Specifications, Sample
No. 80104857, Batch No. 80104857. The Covance reports list the
results of tests of certain sucralose samples. The Covance reports do
not contain certifications on behalf of Covance as to the meaning of the Covance
reports. Shao Jun Xu, PhD., however, one of our officers, has
provided a letter in connection with the merger, confirming that the sucralose
samples tested by Covance and which are the subject of the Covance reports, were
manufactured by Polymed in accordance with the patent applications that Polymed
assigned to Trinterprise.
Under the
terms of our merger agreement, the members of Trinterprise received an aggregate
of 16,666,667 of newly issued shares of common stock, in exchange for all of the
outstanding membership interest in Trinterprise. Upon consummation of the
merger, the Trinterprise members owned approximately 80% of our issued and
outstanding common stock. All but one of the Trinterprise members are directors
and/or officers of us. In addition, our Executive Chairman and Vice
President/Corporate Secretary are the managers of Trinterprise. Each
Trinterprise member received an amount of merger shares that is equal in
proportion to the interest in Trinterprise held by such Trinterprise
member.
In
accordance with the terms of the merger agreement, 4,166,667 merger shares were
placed in escrow to satisfy certain indemnity obligations the Trinterprise
members have to us. The escrowed merger shares will be released on the later of
(i) the sixth month anniversary of the merger agreement, and (ii) the date of
delivery to us of executed supply agreements between Polymed and two designated
manufacturing facilities in China. We will be entitled to receive all or a
portion of the escrowed merger shares prior to the Release Date in the event we
are entitled to indemnification under the terms of the Merger Agreement.
Such merger shares have not been released from escrow since supply agreements
between Polymed and two designated manufacturing facilities in China have not as
yet been delivered to us. In the proposed merger with NuGen described above,
these shares currently held in escrow will be canceled and returned to
us.
As the
Trinterprise members obtained voting and management control of us as a result of
the merger, the merger was accounted for as a recapitalization of Trinterprise.
Accordingly, our financial statements subsequent to the merger consist of the
balance sheets of InovaChem, Inc. and Trinterprise, the historical operations of
Trinterprise and the operations of both InovaChem, Inc. and Trinterprise from
June 28, 2008 (date of merger) until September 30, 2009. As a result of the
merger, the historical financial statements of InovaChem, Inc. for the period
prior to June 28, 2008, are not presented herein.
Due to,
the slowdown in the global economy and our lack of capital, among other reasons,
we did not commence production.
Proposed
Sucralose Production
In
connection with the Trinterprise merger, we entered into a supply agreement with
Polymed with respect to the production of sucralose in accordance with the
patent applications.
Polymed
has advised us that it intends to subcontract its manufacturing obligations
under the supply agreement by negotiating and entering into manufacturing
contracts with each of Runkang, and Chongqing, which are Chinese
manufacturers. The contracts with the Chinese manufacturers have not
yet been executed. We also did not expend funds on research and development of
our products and have delayed our plans to do so due to, among other reasons,
the poor economy.
Our
Patents Pending
We
received an opinion from patent counsel that our patents pending do not likely
infringe on any issued U.S. patents that are valid and enforceable. In the
opinion of counsel, we are free to employ our sucralose process without
infringing any of the issued U.S. patents that they uncovered in their search.
However, patent counsel also advises that it is impossible for them to provide a
firm opinion as to the likelihood of infringement from any other pending
applications for patents. We do not know when our patents will
issue.
4
Competition
Our main
competitors for the production and sale of sucralose are Tate & Lyle, a U.K.
based multi-national agri-business, McNeil Nutritionals, LLC, a division of
Johnson & Johnson, each of which manufactured and/or distributed sucralose
under the Splenda® brand name, and JK Sucralose Inc. Tate & Lyle and McNeil
Nutritionals are each well established and capitalized companies that have been
manufacturing and distributing sucralose for several years. At present, Tate
& Lyle manufactures sucralose at a plant located in McIntosh, Alabama, with
plans for additional capacity at a plant it is constructing in Jurong, Singapore
and supplies Mcneil Nutritionals with sucralose. JK Sucralose Inc. is located in
the Economical Developing Area of Yangcheng, Jiangsu Province near
Shanghai. JK Sucralose Inc. is the largest sucralose manufacturer in
China with sales offices and customer service in China, USA and Europe. JK
Sucralose Inc. is one of the largest sucralose suppliers in the world with the
majority of its sucralose being exported to the United States and Europe to be
used both the food and pharmaceutical industries.
Our
Business Strategy
Our
business strategy was to manufacture and develop sucralose and sucralose based
products at cost effective prices that drive cash flow and create value. By
capitalizing on the strength of our flexible production capabilities and growing
demand for sucralose and sucralose based products, we believe we will be well
positioned to achieve steady revenue growth and stable cash flows through
identifiable near-term initiatives, including:
• Develop sales by promoting new usage
to producers of sucralose-based products. Core consumer groups of
artificial sweeteners, including sucralose, consist primarily of
health-conscious consumers and diabetics. We intend to capitalize on the loyalty
of these groups to sucralose and sucralose based consumer products by marketing
to the producers of such consumer products and encouraging new and more frequent
uses of our product. We intend to increase usage through various value-focused
product marketing with our partners and distributors. We plan to initially sell
our products to manufacturers of sucralose-based consumer products for use by
such manufacturers in their products.
• Gain market share among current
users of low calorie artificial sweeteners. We plan to pursue users of
competitive brands of artificial sweeteners through focused promotion aimed at
encouraging our sucralose brand and conversion from other artificial sweeteners
to sucralose. Outside North America, we will pursue gain in market share
primarily through geographic expansion.
• Execute aggressive marketing plans
in key markets to enhance our brand. By continuing to execute our current
marketing efforts, we believe we can solidify and enhance our position as a
leader in sucralose production. We intend to develop a strategic marketing
initiative which will enable us to capture market share and develop a voice with
sucralose consumers.
Employees
We
currently have no employees. Effective as of January 1, 2009, we ceased paying
salaries to our CEO, Executive VP, Chief Science Officer and VP and have
continued paying our CFO through payments to his consulting firm.
Government
Approvals and Regulations
We may be
subject to various international, federal, state and local laws and regulations
with respect to the manufacturing, packaging and selling of
sucralose. We will not be able to identify the specific types of
regulations to which we will be subject until we create a more detailed
marketing plan. If we sell our products to manufacturers of food
products, who will use our product as an ingredient in their product,
regulations will vary depending upon the geographic locations of the
manufacturer purchasers of our products and the geographic locations in which
the ultimate consumers of their products reside. If we sell our
products directly into the retail market, we may also be subject to packaging
laws in the jurisdictions in which we distribute our products. There
may be other types of laws to which we will be subject of which we are not yet
aware and which we will research once we prepare a detailed marketing plan and
are ready to commence operations. We have not yet evaluated other laws,
including environmental laws, with which we may be required to comply or
determined the cost and effect of compliance with such laws.
5
Marketing
and Sales
As an
early stage company, we currently have no production, sales, marketing or
distribution capabilities. In general, we will be dependent on our customers for
the production, sales, marketing, distribution and other aspects of the
commercialization of the products of which our products are one ingredient, when
developed. Our intent is to initially sell our products to major food ingredient
suppliers, food producers, or pharmaceutical companies. We intend to distribute
our products through major distributors of similar products. We may develop a
more detailed marketing and sales plan once the economy improves.
Chemical
and Solvent Production
We
anticipate that we will also develop and produce chemicals for use in electronic
“smart glass” and solvents to be used as new carriers for use in lithium
batteries. Although we are unable at present to estimate the funds we will
require to purchase and/or acquire these products and technologies, management
expects that we will need to raise additional funds through the sale of common
stock if and when we pursue this aspect of our business plan. There can be no
assurance that we will be able to raise such funds if and when we wish to do
so.
Going
Concern
As
reflected in the accompanying audited consolidated financial statements, we had
a net loss of $562,255 and used cash in operating activities of $294,941 for the
fiscal year ending September 30, 2009.
As noted
in the report of our auditors for our financial statements for our fiscal year
ended September 30, 2009, these matters raise substantial doubt about our
ability to continue as a going concern. Our ability to continue as a going
concern is dependent on our ability to further implement our business plan,
raise capital, and generate revenues. The financial statements do not include
any adjustments that might be necessary if we are unable to continue as a going
concern.
Management
intends to attempt to raise additional capital through public or private
offerings; acquire a company; or merge with or into another company
ITEM
1A. RISK FACTORS
Not
Required
ITEM
1 B. UNRESOLVED STAFF COMMENTS
Not
Required.
ITEM
2. PROPERTIES
Our
executive offices are located at 3040 Post Oak Boulevard, Suite 1110, Houston,
Texas 77056. We currently use two offices at this location that are
leased by a party related to two of our executive officers. We occupy these
offices at no cost to us on an informal unwritten month to month basis and could
be asked to vacate these offices at any time.
ITEM
3. LEGAL PROCEEDINGS
There are
no pending legal proceedings to which the Company is a party or in which any
director, officer or affiliate of the Company, any owner of record or
beneficially of more than 5% of any class of voting securities of the Company,
or security holder is a party adverse to the Company or has a material interest
adverse to the Company. The Company's property is not the subject of any pending
legal proceedings.
6
ITEM
4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter
was submitted to a vote of the security holders, through the solicitation of
proxies or otherwise, during the fiscal year ended September 30,
2009.
PART
II
ITEM
5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
There is
no trading market for our common stock. There are approximately 56 holders of
our common stock as of January 11, 2010.
We have
never paid any cash dividends on our common stock. We do not currently
anticipate paying cash dividends for the foreseeable future, but instead we plan
to retain any earnings to fund our growth. The decision to pay dividends on our
common stock in the future will depend on our ability to generate earnings, our
need for capital, our overall financial condition and other factors that our
board of directors may consider to be relevant. We did not repurchase any of our
securities during the fourth quarter of our fiscal year.
Securities
Authorized for Issuance under Equity Compensation Plans
As of
September 30, 2009, the Company had no shares of common stock subject
to any outstanding awards or available for future awards under equity
compensation plans. The 2008 Stock Option Plan, which was adopted by the Board
on June 30, 2008, specifically provided for its effectiveness within 12 months
of its adoption by vote of the shareholders; as of September 30, 2009 the
shareholders did not vote to adopt or reject the option plan. Accordingly, the
2008 Stock Option Plan is no longer effective and any previous options granted
thereunder are null and void.
Purchases
of equity securities by the issuer and affiliated purchasers
None.
ITEM
6. SELECTED FINANCIAL DATA
Not
required
ITEM
7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Forward-Looking
Statements
We
caution readers that this report includes “forward-looking statements” as that
term is used in the Private Securities Litigation Reform Act of 1995.
Forward-looking statements are based on current expectations rather than
historical facts and they are indicated by words or phrases such as
“anticipate,” “could,” “may,” “might,” “potential,” “predict,” “should,”
“estimate,” “expect,” “project,” “believe,” “intend,” “plan,” “envision,”
“continue,” target,” “contemplate,” or “will” and similar words or phrases or
corporate terminology. We have based such forward-looking statements on our
current expectations, assumptions, estimates and projections. While we believe
these expectations, assumptions, estimates and projections are reasonable, such
forward-looking statements are only predictions and involve known and unknown
risks and uncertainties and other factors that may cause actual results,
performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements, many of which are beyond our control.
Some of
the factors that could affect our financial performance, cause actual results to
differ from our estimates or underlie such forward-looking statements are set
forth in various places in this report. These factors include, but are not
limited to:
7
|
•
|
general
economic conditions,
|
|
•
|
our
ability to evaluate and predict our future operations and expenses, being
an early stage development company with limited assets and no current
operations,
|
|
•
|
the
possibility of future product-related liability
claims,
|
|
•
|
our
future capital needs and our ability to obtain
financing,
|
|
•
|
our
ability to protect our intellectual property and trade secrets, both
domestically and abroad,
|
|
•
|
expenses
involved in protecting our intellectual property and trade
secrets,
|
|
•
|
our
ability to attract and retain key management, technical, and research and
development personnel,
|
|
•
|
our
ability to research and develop new technology, products and design and
manufacturing techniques,
|
|
•
|
technological
advances, the introduction of new and competing products, and new design
and manufacturing techniques developed by our
competitors,
|
|
•
|
anticipated
and unanticipated trends and conditions in our
industry,
|
|
•
|
our
ability to predict consumer
preferences,
|
|
•
|
changes
in the costs of operation,
|
|
•
|
our
ability to compete,
|
|
•
|
our
ability to manage growth and carry out growth strategies, including
international expansion,
|
|
•
|
possible
necessity of obtaining government approvals for both new and continuing
operations,
|
|
•
|
risks,
expenses and requirements involved in operating in various foreign
markets, including China,
|
|
•
|
exposure
to foreign currency risk and interest rate
risk,
|
|
•
|
possible
foreign import controls and United States-imposed
embargoes,
|
|
•
|
possible
disruption in commercial activities due to terrorist activity, armed
conflict and government instability,
and
|
|
•
|
other
factors set forth in this report and in our other Securities and Exchange
Commission (“SEC”) filings.
|
You are
cautioned not to place undue reliance on these forward-looking statements, which
are valid only as of the date they were made. We undertake no obligation to
update or revise any forward-looking statements to reflect new information or
the occurrence of unanticipated events or otherwise.
General
We are an
early stage research, development and manufacturing company. Our strategic plan
was to reduce the cost of manufacture of food, pharmaceutical and other
products, including sucralose, through the utilization of new technologies. We
intended to obtain these technologies through their purchase, acquisition or
in-house development.
If and
when the proposed merger with NuGen is consummated, we would assume NuGen’s
business as our sole line of business.
8
Results
of Operation
We did
not have any operating revenues since our inception, February 14, 2008
until September 30, 2009. We had a net loss of $1,262,337 for the period
from February 14, 2008 (inception) through September 30, 2009, and had a
working capital deficit of $349,352 at September 30, 2009. The net loss
consisted primarily of compensation expense, professional fees and travel
expenses. In fiscal 2010 we expect to expend cash for
operations and technology investments in order to implement the business of
NuGen and we do not expect immediate revenues to offset such
expenditures.
Liquidity
and Capital Resources
Our
principal source of funds has been equity provided by our stockholders. Our
principal use of funds has been for general and administrative expenses,
relating to legal, travel and start-up expenses. We expect to rely upon our
equity financings, as well as possible future equity financings, to implement
our business plan. We do not believe that we can implement our business plan
without raising additional capital. We have not yet determined how much
additional capital we will require and will not know until we complete our
business plan which we do not plan to do until the economy
improves.
At
September 30, 2009, we had $55,415 of cash on hand. As reflected in the
accompanying consolidated financial statements, for the period ended September
30, 2009, we were in the development stage with no operations and we had a net
loss of $562,255. The net loss consisted primarily of compensation expense,
professional fees, impairment expense and travel expenses. We raised
approximately $427,000 in our private offering in the first half of July 2008.
We have not yet determined the amount of additional funds we will need to raise
to meet our liquidity needs for the coming year. Once we reach that
determination, the funds required, if any, will be raised through private and/or
public offerings.
Proposed
Merger
On November 9, 2009, we entered into a
letter of intent with NuGen Mobility, Inc., a Delaware corporation based in
Ashburn, Virginia (“NuGen”), relating to our proposed acquisition of
NuGen for approximately 80% of our capital stock on a fully-diluted basis. NuGen
is engaged in the development, manufacture and marketing of permanent
magnet electric motors, powertrain technology and related electric
controls. Consummation of the contemplated transaction is subject to
the negotiation and execution of a mutually satisfactory definitive share
exchange agreement or merger agreement (the “Definitive Agreement”), setting
forth the specific terms and conditions of the transaction. The
execution of the Definitive Agreement is subject to the consummation of a
private placement of no less than $1,000,000, approval by our board of directors
and the board of directors of NuGen, approval by the shareholders of NuGen, and
the completion by us of a satisfactory review of the legal, financial and
business condition of NuGen, including the receipt of NuGen’s financial
statements audited in accordance with applicable SEC rules. We and
NuGen are obligated to use our reasonable best efforts to negotiate in good
faith the Definitive Agreement, which will contain, among other standard terms
and conditions, representations, warranties, covenants, indemnities and other
provisions customary in transactions of this nature, including without
limitation, representations and warranties as to the condition of the title held
to the assets of NuGen, the financial statements of NuGen, the payment of taxes
and contingent liabilities. Any necessary third-party consents shall be obtained
prior to consummation of the transaction, including but not limited to any
consents required to be obtained from NuGen lenders, creditors, vendors and
lessors. If and when the proposed merger with NuGen is consummated, we would
assume NuGen’s business as our sole line of business.
Prior to
the June 2008 recapitalization, on February 11, 2008, Exchequer, Inc., a
party affiliated with one of our shareholders, purchased all of the 100,000
outstanding shares of our common stock from our original sole stockholder. We
were then renamed InovaChem, Inc. Following the purchase, we declared a stock
dividend of 8.7 shares for every share of our common stock issued and
outstanding, and issued an additional 870,000 shares of common stock to
Exchequer, Inc. for a total of 970,000 outstanding shares of common stock. In
connection with the stock dividend, we then issued 1,530,000 shares of common
stock to five additional people for an aggregate of $153,000. These amounts
total the 2,500,000 common shares that were deemed issued to the
pre-capitalization shareholders of InovaChem, Inc. pursuant to the June 2008
recapitalization.
9
In July
2008, we sold 1,423,346 shares of common stock at $0.30 per share for an
aggregate amount of $426,999 to 46 “accredited investors” in a private offering
under Regulation D promulgated by the SEC. We expect that we will
continue to require additional financing to execute our business strategy. There
can be no assurance that we will be able to raise such funds if and when we wish
to do so.
Our
business plan currently anticipates that we will consummate the reverse merger
with NuGen and then be engaged in the development, manufacture and marketing
of permanent magnet electric motors, powertrain technology and
related electric controls. Although we are unable at present to estimate the
funds we will require to purchase and/or acquire these products and
technologies, management expects that we will need to raise additional funds
through the sale of common stock if and when we pursue this aspect of our
business plan. There can be no assurance that we will be able to raise such
funds if and when we wish to do so. We do not plan to pursue this aspect of our
business plan during our current fiscal year.
Critical
Accounting Policies
We have
identified the accounting policies outlined below as critical to our business
operations and an understanding of our results of operations. Additionally, we
intend to develop and adopt policies, once we commence operations, which are
appropriate to our operations. The list is not intended to be a comprehensive
list of all of our accounting policies. In many cases, the accounting treatment
of a particular transaction is specifically dictated by accounting principles
generally accepted in the United States, with no need for management's judgment
in their application. In particular, given our early stage of business, our
primary critical accounting policy and area in which we use judgment is in the
area of the recoverability of deferred tax assets.
In
accordance with ASC 360, "Accounting for the Impairment or Disposal of
Long-Lived Assets", the Company reviews the carrying value of intangibles and
other long-lived assets for impairment at least annually or whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of long-lived assets is measured by comparison of
its carrying amount to the undiscounted cash flows that the asset or asset group
is expected to generate. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the property, if any, exceeds its fair market value.
At
inception, the Company implemented ASC 718, “Share-Based Payment” which requires
the fair value of all stock-based employee compensation awarded to employees to
be recorded as an expense over the related requisite service period. The
statement also requires the recognition of compensation expense for the fair
value of any unvested stock option awards outstanding at the date of adoption.
The Company values any employee or non-employee stock based compensation at fair
value using the Black-Scholes Option Pricing Model.
New Accounting
Pronouncements
In
June 2009, the FASB issued ASC 105 Accounting Standards
Codification TM and the Hierarchy of Generally
Accepted Accounting Principles. The FASB Accounting Standards
Codification TM (the
“Codification”) has become the source of authoritative accounting principles
recognized by the FASB to be applied by nongovernmental entities in the
preparation of financial statements in accordance with Generally Accepted
Accounting Principles (“GAAP”). All existing accounting standard documents are
superseded by the Codification and any accounting literature not included in the
Codification will not be authoritative. Rules and interpretive releases of the
SEC issued under the authority of federal securities laws, however, will
continue to be the source of authoritative generally accepted accounting
principles for SEC registrants. Effective September 30, 2009, all
references made to GAAP in our consolidated financial statements will include
references to the new Codification. The Codification does not change or alter
existing GAAP and, therefore, will not have an impact on our financial position,
results of operations or cash flows.
10
In June
2009, the FASB issued changes to the consolidation guidance applicable to a
variable interest entity (VIE). FASB ASC Topic 810, "Consolidation," amends the
guidance governing the determination of whether an enterprise is the primary
beneficiary of a VIE, and is, therefore, required to consolidate an entity, by
requiring a qualitative analysis rather than a quantitative analysis. The
qualitative analysis will include, among other things, consideration of who has
the power to direct the activities of the entity that most significantly impact
the entity's economic performance and who has the obligation to absorb losses or
the right to receive benefits of the VIE that could potentially be significant
to the VIE. This standard also requires continuous reassessments of whether an
enterprise is the primary beneficiary of a VIE. FASB ASC 810 also requires
enhanced disclosures about an enterprise's involvement with a VIE. Topic 810 is
effective as of the beginning of interim and annual reporting periods that begin
after November 15, 2009. This will not have an impact on the Company’s financial
position, results of operations or cash flows.
In June
2009, the FASB issued Financial Accounting Standards Codification No. 860 -
Transfers and Servicing. FASB ASC No. 860 improves the relevance,
representational faithfulness, and comparability of the information that a
reporting entity provides in its financial statements about a transfer of
financial assets; the effects of a transfer on its financial position, financial
performance, and cash flows; and a transferor's continuing involvement, if any,
in transferred financial assets. FASB ASC No. 860 is effective as of the
beginning of each reporting entity's first annual reporting period that begins
after November 15, 2009, for interim periods within that first annual reporting
period and for interim and annual reporting periods thereafter. The Company is
evaluating the impact the adoption of FASB ASC No. 860 will have on its
financial statements.
Off
Balance Sheet Arrangements
None.
ITEM
7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not
required
ITEM
8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See pages
F-1 to F-16 appearing at the end of this report.
ITEM
9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
On
December 28, 2009 the Board of Directors of the Company approved the dismissal
of Salberg & Company, P.A. (“SalbergCo”) as the Company’s principal
independent registered public accountants. SalbergCo was the independent
registered public accounting firm for the Company’s financial statement periods
from February 11, 2008 (inception) to September 30, 2008 and for the interim
periods since then. The report of SalbergCo’s on the Company’s financial
statements from February 11, 2008 (inception) to September 30, 2008
did not, (a) contain an adverse opinion or disclaimer of opinion, (b) was not
modified as to uncertainty, audit scope, or accounting principles, except that
there was an explanatory paragraph describing conditions that raised substantial
doubt about the Company’s ability to continue as a going
concern, or (c) did not contain any disagreements on any
matters of accounting principles or practices financial statement disclosure, or
auditing scope or procedures, which disagreements, if not resolved to the
satisfaction of SalbergCo would have caused it to make reference to the subject
matter of the disagreements in connection with its reports. None of the
reportable events set forth in Item 304(a)(1)(iv)(B) of Regulation S-K occurred
during the period in which SalbergCo served as the Company’s principal
independent accountants.
The
Company engaged Webb & Company, P.A. of Boynton Beach, Florida, as its
principal independent registered public accountants as of December 28, 2009. The
Company did not consult with Webb & Company, P.A. regarding
either the application of accounting principles to a specific
transaction, either completed or proposed, or the type of audit
opinion that might be rendered on the Company’s financial statements.
Neither a written report nor oral advice was provided to the Company by Webb
& Company, P.A. that they concluded was an important factor considered by
the Company in reaching a decision as to the accounting, auditing or financial
reporting issue; and the Company did not consult Webb & Company, P.A.
regarding any matter that was either the subject of a “disagreement” (as defined
in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) or any of
the reportable events set forth in Item 304(a)(1)(v) of Regulation S-K and
related instructions.
11
ITEM
9A(T). CONTROLS AND PROCEDURES
Under the
supervision and with the participation of our management, including our
principal executive officer and principal financial officer, we conducted an
evaluation of our disclosure controls and procedures, as such term is defined
under Rule 13a-15(e) and Rule 15d-15(e) promulgated under the Securities
Exchange Act of 1934, as amended, as of September 30, 2009. Based on this
evaluation, our principal executive officer and principal financial officer have
concluded that our disclosure controls and procedures were effective to ensure
that information required to be disclosed by us in the reports filed or
submitted under the Securities Exchange Act were recorded, processed,
summarized, and reported within the time periods specified in the Securities and
Exchange Commission’s rules and forms and that our disclosure controls are
designed to ensure that information required to be disclosed by us in the
reports that we file or submit under the Securities Exchange Act is accumulated
and communicated to management, including our principal executive officer and
principal financial officer, or persons performing similar functions, as
appropriate to allow timely decisions regarding required
disclosure.
Because
of its inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
The
Company’s management, including the Company’s Chief Executive Officer and
Principal Financial Officer assessed the effectiveness of the Company’s internal
control over financial reporting as of September 30, 2009. In making this
assessment, management used the framework in “Internal Control - Integrated
Framework” promulgated by the Committee of Sponsoring Organizations of the
Treadway Commission, commonly referred to as the “COSO” criteria. Based on the
assessment performed, management believes that as of September 30, 2009, the
Company’s internal control over financial reporting was effective based upon the
COSO criteria. Additionally, based on management’s assessment, the Company
determined that there were no material weaknesses in its internal control over
financial reporting as of September 30, 2009.
There
were no changes in our internal controls over financial reporting during our
fourth fiscal quarter that have materially affected, or are reasonably likely to
materially affect, our internal control over financial reporting.
This
annual report does not include an attestation report of our registered public
accounting firm regarding internal control over financial reporting
. Management’s report was not subject to attestation by our
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.
ITEM
9B. OTHER INFORMATION
None
PART
III
ITEM
10. DIRECTORS EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors
and Executive Officers
The
following table sets forth certain information regarding our directors and
executive officers. Each of our directors serve for a period of one year or
until their successors are elected. Our officers serve at the pleasure of our
board of directors, subject to the terms of any applicable employment
agreements.
12
Name
|
Age
|
Title
|
||
William
Zuo, PhD.
|
48
|
Director,
Chairman and Chief Executive Officer
|
||
Henry
Toh
|
52
|
Director,
Vice-Chairman and Executive Vice President of Corporate
Development
|
||
Shao
Jun Xu, PhD.
|
45
|
Chief
Science and Technical Officer
|
||
Xiaojing
Li
|
60
|
Director,
Vice President and Corporate Secretary
|
||
Alan
Pritzker
|
55
|
Chief
Financial Officer and Treasurer
|
||
Michael
Kleinman, M.D
|
|
53
|
|
Director
|
William Zuo, Ph.D was
appointed as Chairman of our Board of Directors and Chief Executive Officer as
of February 11, 2008. Dr. Zuo has been the President and CEO of the Polymed
Therapeutics group of companies in Asia and the United States since 1995.
Polymed specializes in the manufacturing, sale and marketing of various complex
“Active Pharmaceutical Ingredients.” Dr. Zuo has been responsible for the
building of numerous cGMP facilities in China and has extensive experience in
dealing with the Food and Drug Administration in both China and the United
States. Dr. Zuo received his Ph.D in Nanotechnology from Rice University where
he worked extensively with Dr. Richard Smalley the late Nobel Prize Scholar. Dr.
Zuo also has Master degrees in Chemical Engineering and Applied
Mathematics.
Henry Toh was appointed as
Vice Chairman of our board of directors and Executive Vice President of
Corporate Development as of February 11, 2008. Mr. Toh is currently serving as a
director of five publicly traded companies. Since 2006, Mr. Toh has served as a
director of American Surgical Holdings, Inc., a company specializing in staffing
of surgical assistants. Since 2004, Mr. Toh has served as a director of
Isolagen, Inc, an American Stock Exchange company specializing in cellular
therapy. Since 2001, Mr. Toh has served as a director of Teletouch
Communications Inc., a wireless communications company. Since 1992, Mr. Toh
has served as an officer and director of C2 Global Technologies Inc., a
publicly held voice-over-IP company. Since December 1998, Mr. Toh has
served as a director of I DNA, Inc., a specialized finance and
entertainment company. From April 2002 until February 2004,
Mr. Toh served as a director of Bigmar, Inc., a Swiss pharmaceuticals
company. From September 2004 until August 2005, Mr. Toh served as
a director of Vaso Active Pharmaceuticals Inc., a healthcare products
manufacturer. Since 1992, Mr. Toh has served as an officer and director of
Four M International, Inc., a privately held offshore investment entity.
Since August 2005, Mr. Toh has served as a director of Labock
Technologies, Inc., an armored vehicle and armoring products manufacturer.
Mr. Toh began his career with KPMG from 1980 to 1992, where he specialized
in international taxation and mergers and acquisitions. Mr. Toh is a
graduate of Rice University.
Shao Jun Xu, PhD was appointed
as our Chief Science and Technical Officer as of February 11, 2008. Dr. Xu is
currently the Chief Scientific Officer (CSO) for Polymed Therapeutics Group and
has served in such position since 2003. His track record in the chemical and
pharmaceutical industry spans over 21 years, in compound research, development,
and operations; resulting in over one hundred product approvals or process
improvements. He has served as visiting professor for many institutes and
organizations, such as the Departments of Chemistry of both Lanzhou University
and Zhejiang University, and others. Dr. Xu was the Vice President of Research
and Development at Hisun Pharmaceutical from 2000 to 2003, a public company in
China that manufactures active pharmaceutical ingredients, chemicals, and
intermediates. Dr. Xu received his Doctoral degree in Organic Chemistry from
Zhejiang University in 2000, his Masters degree from the same department in
1997, and his B.S. in Chemical Engineering at Tianjing University in
1986.
Xiaojing Li was appointed as a
director and as our Vice President and Corporate Secretary as of February 11,
2008. Ms. Li is currently a Vice President of Polymed Therapeutics, Inc., a
pharmaceutical manufacturing and distribution company she co-founded in 1995.
From 1995 to 2001, Ms. Li also served as President of Hand Tech USA a
pharmaceutical manufacturing and distributing company. Ms. Li is a graduate of
Xian Jiaotong University, Xian, China.
13
Alan Pritzker was appointed as
our Chief Financial Officer and Treasurer as of February 11, 2008. Mr.
Pritzker’s corporate experience includes supervision of Finance, Accounting,
Information Technology, Office Services, Human Resources and Risk Management.
Additionally, Mr. Pritzker has expertise in SEC reporting having been the chief
financial officer of publicly traded entities for over 12 years. Mr. Pritzker is
employed by North Point Consultants, Inc., a consulting firm that he founded in
2001. North Point provides accounting and administrative services to various
companies. Mr. Pritzker was the Chief Financial Officer of Labock Technologies,
Inc., an armored vehicle and armoring products manufacturer, from March 2005
until December 2006 and was the Chief Financial Officer of Commodore Cruise
Lines, a publically traded cruise line company, from July 1995 until May 2002.
Mr. Pritzker is a graduate of Brooklyn College.
Michael Kleinman, M.D. was
appointed a director in June 2008. Dr. Kleinman graduated from Rice University
and attained his medical degree at the University of Texas, Albert Einstein
College of Medicine in Dallas, Texas in 1983. He is a Board certified surgeon
with a private practice in Houston, Texas, Clinical Assistant Professor of
Surgery at Baylor University and at the University of Texas, Physician Liaison
for Memorial Care System, Fellow of the American College of Surgeons, Member of
the American Society of General Surgeons, the Society of American
Gastrointestinal Laparoscopic Surgery, Houston Surgical Society, Harris County
Medical Society, the American Medical Association and past member of the Texas
Medical Association, International College of Surgeons, American College of
Physician Executives, and the American Board of Utilization Review Physicians.
He also received the Physicians’ Recognition Award in 2003 and 2006, and 10
citations for top doctors.
Section
16 (a) Beneficial Ownership Reporting Compliance
Section 16(a)
of the Securities Exchange Act requires our directors, executive officers and
holders of more than 10% percent of our common stock to file reports of
beneficial ownership and changes in ownership of our common stock with the
Securities and Exchange Commission. Such persons are required to furnish us with
copies of all Section 16(a) forms they file.
Based
solely on a review of Forms 3 and 4, and amendments thereto during fiscal 2009,
all filing requirements applicable to our directors and officers who are subject
to Section 16(a) were complied with, particularly since the options granted
to our officers and directors had no force and effect until and unless
shareholder approval was obtain on the 2008 Stock Option Plan and no such
approval was ever obtained.
Corporate
Governance
Board
Committees
Our board
of directors has established an audit committee, a compensation committee and a
corporate governance committee. The members of each committee are appointed by
the board of directors and serve one year terms. The composition and
responsibilities of each committee are described below. Our board of directors
has not appointed a nominating committee and has not yet adopted procedures by
which security holders may recommend nominees to our board of
directors.
Audit
Committee. The sole member of our audit committee is Dr. Michael
Kleinman. The audit committee’s functions include overseeing the integrity of
our financial statements, our compliance with legal and regulatory requirements,
the selection and qualifications of our independent registered public accounting
firm, and the performance of our internal audit function and controls regarding
finance, accounting, legal compliance and ethics that management and our board
of directors have established. In this oversight capacity, the audit committee
reviews the scope, timing and fees for the annual audit and the results of audit
examinations performed by the internal auditors and independent registered
accounting firm, including any recommendations to improve the system of
accounting and internal controls. The audit committee is comprised of outside
directors who are not officers or employees of us or our subsidiaries. In the
opinion of the board of directors, Dr. Kleinman is “independent” as that term is
defined in the rules and regulations of the FINRA and the SEC.
Compensation
Committee. The sole member of our
compensation committee is Dr. Michael Kleinman. The compensation committee
determines the goals and objectives, and makes determinations regarding the
salary and bonus for the CEO, approves salaries and bonuses for the other
executive officers, administers our incentive compensation plans and makes
recommendations to the board of directors and senior management regarding our
compensation programs.
14
Governance
Committee. The sole member of our nominating and governance committee is
Dr. Michael Kleinman. The governance Committee is responsible for evaluating our
governance and the governance of our board and its committees, monitoring our
compliance and that of the board and its committees with our corporate
governance guidelines, evaluating our corporate governance guidelines and
reviewing those matters that require the review and consent of the independent
directors of the board and that are not otherwise within the responsibilities
delegated to another committee of the board.
Code
of Ethics
We have
not adopted a code of ethics to date due to our relatively small size but intend
to do so in the future.
ITEM
11. EXECUTIVE COMPENSATION
Summary
Compensation Table
The
following table sets forth information concerning the fiscal 2009 and
2008 compensation earned by our principal executive officer (“Named
Executive Officer”) No other executive officer earned compensation in excess of
$100,000 during our fiscal years ended as of September 30, 2009 and
2008:
SUMMARY
COMPENSATION TABLE
Name and
principal
position
|
Year
|
Salary ($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option
Awards
($)
|
Non-Equity
Incentive Plan
Compensation
($)
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
All Other
Compensation
($)
|
Total ($)
|
|||||||||||||||||||||||||
William
Zuo,
|
2009
|
75,000
|
0
|
0
|
0
|
0
|
0
|
0
|
|
75,000
|
||||||||||||||||||||||||
Chairman
and CEO
|
2008
|
|
75,000(1)
|
0
|
90,000(2)
|
0
|
0
|
0
|
0
|
165,000
|
|
1.
|
Represents
accrual of salary for the period February 14, 2008, our inception, through
September 30, 2008. Pursuant to the terms of the employment agreement, Mr.
Zuo was entitled to receive a base salary of $300,000, subject to review
and increase at our board of directors' discretion. We elected to defer
payment of some or all of the compensation to our Chairman and our other
executives until such time as our financial situation permits payment of
such compensation. The total cash amount paid to our Chairman and CEO in
each of fiscal 2009 and fiscal 2008 was $11,250. Beginning January 1,
2009, we stopped paying and accruing salaries to all of its
officers.
|
|
2.
|
Pursuant
to the employment agreements entered into with Mr. Zuo, we issued 300,000
shares of common stock which were valued by us at $0.30 per
share.
|
Mr. Zuo
was entitled to 300,000options to purchase shares of our common stock pursuant
to the 2008 Stock Option Plan, but no options ever vested and any issued options
terminated as a result of not receiving shareholder approval for the adoption of
such plan
As of
September 30, 2009, the Company had no outstanding equity
awards.
15
Restricted
Stock Grants
In June
2008 we granted, pursuant to the employment agreements we entered into with our
officers and pursuant to our arrangement with our directors, 925,000 shares of
our common stock to our officers and directors valued at the contemporaneous
private offering price of $.30 per share. As the shares were fully vested on the
grant date, a total of $277, 500 was charged to compensation expense in the
fiscal year ended September 30, 2008.
No shares
were issued to any of our officers or directors in Fiscal 2009.
Employment
Agreements and Potential Payout upon Termination or Change in
Control
The
following section describes the terms of employment agreements between us and
certain of our executive officers. This section also describes payments that
would be made to certain of these executive officers as a result of (i) a
termination of the executive’s service due to death or disability, (ii) the
executive’s termination without “cause,” or (iii) the termination of the
executive’s service if a “change in control” occurs either because we terminate
the executive without “cause” or because the executive quits for “good reason.”
In quantifying the amounts we would pay to each executive under each of these
circumstances, we have assumed that the executive’s termination of service
occurred on September 30, 2009, the last day of our fiscal year.
It is
contemplated that if we close the reverse merger with NuGen, the following
employment agreements will either be terminated or
amended.
Mr. William
Zuo
On June
28, 2008, we entered into an employment agreement with Mr. William Zuo pursuant
to which Mr. Zuo agreed to serve as Executive Chairman of InovaChem, Inc.
for an initial term ending December 31, 2011, which automatically renews
for an additional one-year term unless we notify Mr. Zuo within 90 days prior to
the expiration of this agreement. Mr. Zuo’s agreement provides that he will be
entitled to compensation following the completion of our private offering of
securities (July 2008). Additionally, at the sole discretion of the board Mr.
Zuo’s compensation will begin to be paid at a percentage and time in keeping
with our financial situation (see Summary Compensation Table above). The
following calculations are done assuming Mr. Zuo would be paid his full salary
per the terms of the agreement.
The
agreement provides for an annual salary of $300,000. Mr. Zuo is entitled to
receive an annual bonus each year, prorated for the period of employment in such
year, payable subsequent to the issuance of our final audited financial
statements, but in no case later than 120 days after the end of our most
recently completed fiscal year. The final determination on the amount of the
annual bonus will be made by the compensation committee of the board of
directors, based primarily on criteria established by our compensation
committee. The targeted amount of the annual bonus shall be 50% of
Mr. Zuo’s base salary, although the actual bonus may be higher or lower.
Mr. Zuo received a stock grant of 300,000 shares of our common stock upon
signing the agreement and he was granted a ten-year option to purchase 300,000
shares of common stock at an exercise price of $0.45 per share, which vests in
twelve equal quarterly installments commencing June 30, 2008 pursuant to the
Plan. The shares will not actually vest until the stock option plan is approved
by our shareholders. As of September 30, 2009 the Plan had not been approved by
shareholders.
Upon
termination of the agreement by us for a reason other than for “cause” (as
defined in the agreement) or upon the death or disability of Mr. Zuo,
Mr. Zuo to be paid his base salary for the longer of the remaining term of
the agreement or twelve months from the termination date.
Upon
termination of the agreement by us for “cause” or upon the death or disability
of Mr. Zuo, Mr. Zuo is entitled to all amounts due to him for any
portion of the payroll period worked but for which payment had not yet been made
up to the date of termination.
If we had
terminated Mr. Zuo’s employment with us without “cause” on September 30, 2009,
we would pay to Mr. Zuo $25,000 per month over the twenty seven month
period following the termination date.
16
Mr. Henry
Toh
On June
28, 2008, we entered into an employment agreement with Mr. Henry Toh pursuant to
which Mr. Toh agreed to serve as Executive Vice President of Corporate
Development of InovaChem, Inc. for an initial term ending December 31,
2009, which automatically renews for an additional one-year term unless we
notify Mr. Toh within 90 days prior to the expiration of this agreement. Mr.
Toh’s agreement provides that he will be entitled to compensation following the
completion of our private offering of securities (July 2008). Additionally, at
the sole discretion of the board Mr. Toh’s compensation will begin to be paid at
a percentage and time in keeping with our financial situation .The following
calculations are done assuming Mr. Toh would be paid his full salary per the
terms of the agreement.
The
agreement provides for an annual salary of $150,000. Mr. Toh is entitled to
receive an annual bonus each year, prorated for the period of employment in such
year, payable subsequent to the issuance of our final audited financial
statements, but in no case later than 120 days after the end of our most
recently completed fiscal year. The final determination on the amount of the
annual bonus will be made by the compensation committee of the board of
directors, based primarily on criteria established by our compensation
committee. The targeted amount of the annual bonus shall be 50% of
Mr. Toh’s base salary, although the actual bonus may be higher or lower.
Mr. Toh received a stock grant of 150,000 shares of our common stock upon
signing the agreement and he was granted a ten-year option to purchase 150,000
shares of common stock at an exercise price of $0.45 per share, which vests in
twelve equal quarterly installments commencing June 30, 2008 pursuant to the
Plan. The shares will not actually vest until the stock option plan is approved
by our shareholders. As of September 30, 2009 the Plan had not been approved by
shareholders.
Upon
termination of the agreement by us for a reason other than for “cause” (as
defined in the agreement) or upon the death or disability of Mr. Toh,
Mr. Toh to be paid his base salary for the longer of the remaining term of
the agreement or twelve months from the termination date.
Upon
termination of the agreement by us for “cause” or upon the death or disability
of Mr. Toh, Mr. Toh is entitled to all amounts due to him for any
portion of the payroll period worked but for which payment had not yet been made
up to the date of termination.
If we had
terminated Mr. Toh’s employment with us without “cause” on September 30, 2009,
we would pay to Mr. Toh $12,500 per month over the three month period
following the termination date.
Mr.
Shao Xun Xu
On June
28, 2008, we entered into an employment agreement with Mr. Shao Xun Xu pursuant
to which Mr. Xu agreed to serve as Chief Science Officer of InovaChem, Inc.
for an initial term ending December 31, 2009, which automatically renews
for an additional one-year term unless we notify Mr. Xu within 90 days prior to
the expiration of this agreement. Mr. Xu’s agreement provides that he will be
entitled to compensation following the completion of our private offering of
securities (July 2008). Additionally, at the sole discretion of the board Mr.
Xu’s compensation will begin to be paid at a percentage and time in keeping with
our financial situation . The following calculations are done assuming Mr. Xu
would be paid his full salary per the terms of the agreement.
The
agreement provides for an annual salary of $100,000. Mr. Xu is entitled to
receive an annual bonus each year, prorated for the period of employment in such
year, payable subsequent to the issuance of our final audited financial
statements, but in no case later than 120 days after the end of our most
recently completed fiscal year. The final determination on the amount of the
annual bonus will be made by the compensation committee of the board of
directors, based primarily on criteria established by our compensation
committee. The targeted amount of the annual bonus shall be 50% of Mr. Xu’s
base salary, although the actual bonus may be higher or lower. Mr. Xu
received a stock grant of 100,000 shares of our common stock upon signing the
agreement and he was granted a ten-year option to purchase 100,000 shares of
common stock at an exercise price of $0.45 per share, which vests in twelve
equal quarterly installments commencing June 30, 2008 pursuant to thePlan. The
shares will not actually vest until the Plan is approved by our shareholders. As
of September 30, 2009 the stock option plan had not been approved by
shareholders.
Upon
termination of the agreement by us for a reason other than for “cause” (as
defined in the agreement) or upon the death or disability of Mr. Xu,
Mr. Xu to be paid his base salary for the longer of the remaining term of
the agreement or twelve months from the termination date.
17
Upon
termination of the agreement by us for “cause” or upon the death or disability
of Mr. Xu, Mr. Xu is entitled to all amounts due to him for any
portion of the payroll period worked but for which payment had not yet been made
up to the date of termination.
If we had
terminated Mr. Xu’s employment with us without “cause” on September 30, 2009, we
would pay to Mr. Xu $8,333 per month over the three month period following
the termination date.
Ms.
Xiaojing Li
On June
28, 2008, we entered into an employment agreement with Ms. Xiaojing Li pursuant
to which Ms. Li agreed to serve as Vice President and Corporate Secretary of
InovaChem, Inc. for an initial term ending December 31, 2009, which
automatically renews for an additional one-year term unless we notify Ms. Li
within 90 days prior to the expiration of this agreement. Ms. Li’s agreement
provides that it she will be entitled to compensation following the completion
of our private offering of securities (July 2008). Additionally, at the sole
discretion of the board Ms. Li’s compensation will begin to be paid at a
percentage and time in keeping with our financial situation. The following
calculations are done assuming Ms. Li would be paid his full salary per the
terms of the agreement.
The
agreement provides for an annual salary of $100,000. Ms. Li is entitled to
receive an annual bonus each year, prorated for the period of employment in such
year, payable subsequent to the issuance of our final audited financial
statements, but in no case later than 120 days after the end of our most
recently completed fiscal year. The final determination on the amount of the
annual bonus will be made by the compensation committee of the board of
directors, based primarily on criteria established by our compensation
committee. The targeted amount of the annual bonus shall be 50% of Ms. Li’s base
salary, although the actual bonus may be higher or lower. Ms. Li received a
stock grant of 100,000 shares of our common stock upon signing the agreement and
she was granted a ten-year option to purchase 100,000 shares of common stock at
an exercise price of $0.45 per share, which vests in twelve equal quarterly
installments commencing June 30, 2008 pursuant to thePlan. The shares will not
actually vest until the stock option plan is approved by our shareholders. As of
September 30, 2009 the Plan had not been approved by shareholders.
Upon
termination of the agreement by us for a reason other than for “cause” (as
defined in the agreement) or upon the death or disability of Ms. Li, Ms. Li to
be paid her base salary for the longer of the remaining term of the agreement or
twelve months from the termination date.
Upon
termination of the agreement by us for “cause” or upon the death or disability
of Ms. Li, Ms. Li is entitled to all amounts due to her for any portion of the
payroll period worked but for which payment had not yet been made up to the date
of termination.
If we had
terminated Ms. Li’s employment with us without “cause” on September 30, 2009, we
would pay to Ms. Li $8,333 per month over the twenty seven month period
following the termination date.
Mr. Alan
Pritzker
On June
28, 2008, we entered into an employment agreement with Mr. Alan Pritzker
pursuant to which Mr. Pritzker agreed to serve as Chief Financial Officer
of InovaChem, Inc. for an initial term ending December 31, 2009, which
automatically renews for an additional one-year term unless we notify Mr.
Pritzker within 90 days prior to the expiration of this agreement. Mr.
Pritzker’s agreement provides that he will be entitled to compensation following
the completion of our private offering of securities (July 2008). Additionally,
at the sole discretion of the board Mr. Pritzker’s compensation will begin to be
paid at a percentage and time in keeping with our financial situation. The
following calculations are done assuming Mr. Pritzker would be paid his full
salary per the terms of the agreement.
18
The
agreement provides for an annual salary of $125,000. Mr. Pritzker is entitled to
receive an annual bonus each year, prorated for the period of employment in such
year, payable subsequent to the issuance of our final audited financial
statements, but in no case later than 120 days after the end of our most
recently completed fiscal year. The final determination on the amount of the
annual bonus will be made by the compensation committee of the board of
directors, based primarily on criteria established by our compensation
committee. The targeted amount of the annual bonus shall be 50% of
Mr. Pritzker’s base salary, although the actual bonus may be higher or
lower. Mr. Pritzker received a stock grant of 100,000 shares of our common
stock upon signing the agreement and he was granted a ten-year option to
purchase 100,000 shares of common stock at an exercise price of $0.45 per share,
which vests in twelve equal quarterly installments commencing June 30, 2008
pursuant to the Plan. The shares will not actually vest until the stock option
plan is approved by our shareholders. As of September 30, 2009 the Plan had not
been approved by shareholders.
Upon
termination of the agreement by us for a reason other than for “cause” (as
defined in the agreement) or upon the death or disability of Mr. Pritzker,
Mr. Pritzker to be paid his base salary for the longer of the remaining
term of the agreement or twelve months from the termination date.
Upon
termination of the agreement by us for “cause” or upon the death or disability
of Mr. Pritzker, Mr. Pritzker is entitled to all amounts due to him
for any portion of the payroll period worked but for which payment had not yet
been made up to the date of termination.
If we had
terminated Mr. Pritzker’s employment with us without “cause” on September 30,
2009, we would pay to Mr. Pritzker $10,417 per month over the three month
period following the termination date.
Employment
Agreements
On June
30, 2008, we entered into employment agreements with our Executive Chairman,
Executive Vice Chairman, Chief Science Officer, Vice President/Corporate
Secretary and Chief Financial Officer/Treasurer. The employment agreements for
the Executive Chairman and the Vice President/Corporate Secretary are for an
initial term ending on December 31, 2011. The other employment agreements are
for an initial term ending on December 31, 2009.
Pursuant
to the terms of the employment agreements, each of the Executive Chairman,
Executive Vice Chairman, Chief Science Officer, Vice President/Corporate
Secretary and Chief Financial Officer/Treasurer will be entitled to receive a
base salary of $300,000, $150,000, $100,000, $100,000, and $125,000,
respectively, in each case subject to review and increase at our board of
directors' discretion. Pursuant to the terms of the employment agreements, we
may defer payment of some or all of the compensation to each of the executives
until such time as our financial situation permits payment of such compensation.
The board of directors and compensation committee has determined that they will
defer a portion of the cash compensation due to each of the Executives such that
the total monthly compensation (beginning in July 2008) that is being paid to
our executive officers is approximately $13,000 per month. A total of
approximately $51,000 per month of the executive’s compensation will deferred
until such time as determined by our compensation committee. Our compensation
committee reserves the right to reassess these payments and adjust the amount to
be paid our financial condition changes. Each of the executives will also be
entitled to receive an annual bonus with a targeted amount of 50% of their
respective base salary based on performance criteria established by the board of
directors. Each of the executives shall be entitled to participate in
disability, health, life insurance and other fringe benefit plans or programs
offered to all our employees, as well as be entitled to four weeks vacation per
year.
The
employment agreements of each executive may be terminated by (a) us upon death
or disability of the executive, for "Cause" (as defined in the employment
agreement), or for any reason in our sole and absolute discretion or (b) by the
executive for "Good Reason" (as defined in the employment agreement). In the
event of a termination upon death or disability, the executive and/or the
executive's family shall continue to be covered by all of the our medical,
health and dental plans, at our expense, for a period of 18 months following
such executive's death or disability.
In the
event of a termination by us for any reason other than death, disability or
Cause, or by the executive for Good Reason, the executive shall be entitled to
receive his/her base salary for the longer of (i) the remaining term of the
employment agreement or (ii) 12 months from the date of
termination.
The
employment agreements provide for a non-compete for the period during which the
executive is employed by us and for so long as the executive is receiving
payments under the terms of the employment agreement following
termination.
19
On
January 1, 2009, we entered into agreements with our executive officers which
amended their employment agreements to provide that effective January 1, 2009,
we ceased paying salaries to such executives. Included in the agreement with Mr.
Pritzker, was a consulting arrangement with North Point Consultants, Inc., an
entity owned by Alan Pritzker, whereby, in lieu of salary under his employment
agreement, we pay to North Point Consultants, Inc. $5,000 per month for Mr.
Pritzker’s services as our chief financial officer.
Retirement
Plans
At
present we do not provide executive officers with any retirement or pension
plans. We may institute these plans in the future.
Perquisites
and Other Personal Benefits
At
present we do not provide executive officers with perquisites and other personal
benefits. We may institute perquisites and other personal benefits for our
officers in the future.
Policy
on Deductibility of Compensation Expense
Internal
Revenue Service rules do not permit us to deduct certain compensation paid to
certain executive officers in excess of $1 million, except to the extent such
excess constitutes performance-based compensation. The Compensation Committee
considers that its primary goal is to design compensation strategies that
further the best interests of us and our shareholders. To the extent not
inconsistent with that goal, the Compensation Committee attempts to use
compensation policies and programs that preserve the tax deductibility of
compensation expenses. For fiscal 2009, we met all the requirements to deduct
all compensation.
Accounting
for Stock-Based Compensation
Beginning
on February 14, 2008, our date of inception, we began accounting for
stock-based payments, including awards under our 2008 Stock Option Plan, in
accordance with the requirements of ASC 718 “Share Based Payment”.
Director
Compensation
We did
not pay any compensation to our directors in fiscal 2009 for serving in such
capacity.
ITEM
12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
The
following table sets forth information regarding beneficial ownership of our
common stock as of January 11, 2010 by each person or entity known by us to be
the beneficial owner of more than 5% of the outstanding shares of our common
stock, our Named Executive Officer and each of our directors, and all of our
executive officers and directors as a group.
Beneficial
ownership has been determined in accordance with the rules of the SEC. Under
these rules, shares are deemed to be beneficially owned by a person if the
person has the right to acquire shares (for example, upon exercise of an option)
within 60 days of the date as of which the information is provided. In computing
the percentage ownership of any person, the amount of shares is deemed to
include the amount of shares beneficially owned by that person by reason of
these acquisition rights, but are not deemed outstanding for computing the
percentage ownership of any other person. As a result, the percentage of
outstanding shares of any person as shown in the following table does not
necessarily reflect the person’s actual voting power at any particular
date.
Unless
otherwise indicated in the footnotes to the following table, each person named
in the table has sole voting and investment power with respect to the shares of
common stock and the address for the current officers and directors is c/o
Inovachem, Inc., c/o Polymed Therapeutics, Inc.,3040 Post Oak Boulevard, Suite
1110,Houston, Texas 77056.
20
Number of Shares of Common
|
Percentage
|
|||||||
Name of Beneficial Owner
|
Stock Beneficially Owned
|
of Ownership
|
||||||
(1) | ||||||||
William
Zuo
|
6,216,667 | (2) | 28.89 | % | ||||
Xiaojing
Li
|
6,016,667 | (3) | 27.96 | % | ||||
Shao
Xun Xu
|
3,433,333 | (4) | 15.96 | % | ||||
Henry
Toh
|
1,816,667 | (5) | 8.44 | % | ||||
Alan
Pritzker
|
116,667 | (6) | * | |||||
Michael
Kleinman
|
66,667 | (7) | * | |||||
All
directors and executive
|
||||||||
officers
as a group (6 persons)
|
17,666,668 | 82.11 | % | |||||
Exchequer,
Inc.
|
1,000,000 | (8) | 4.65 | % |
* Less
than 1%
(1)
Calculated based on 21,515,013 shares of common stock outstanding as of January
11, 2010.
(2)
Includes 500,000 shares of common stock purchased by Mr. Zuo, directly from us
5,416,667 shares of common stock acquired by Mr. Zuo as consideration for his
membership interest in Trinterprise and 300,000 shares of common stock granted
to Mr. Zuo pursuant to his employment agreement.
(3)
Includes 500,000 shares of common stock purchased by Ms. Li, directly from us
5,416,667 shares of common stock acquired by Ms. Li as consideration for her
membership interest in Trinterprise and 100,000 shares of common stock granted
to Ms. Li pursuant to her employment agreement
(4)
Includes 3,333,333 shares of common stock acquired by Mr. Xu as consideration
for his membership interest in Trinterprise and 100,000 shares of common stock
granted to Mr. Xu pursuant to his employment agreement.
(5)
Includes 1,666,667 shares of common stock acquired by Mr. Toh as consideration
for his membership interest in Trinterprise and 150,000 shares of common stock
granted to Mr. Toh pursuant to his employment agreement. Mr. Toh is an executive
officer of Exchequer, Inc., however, he has no voting or investment power with
respect to the shares of common stock owned by Exchequer, and disclaims
beneficial ownership of such shares of common stock.
(6)
Includes 16,667 shares of common stock purchased by Mr. Pritzker, directly from
us and 100,000 shares of common stock granted to Mr. Pritzker pursuant to his
employment agreement.
(7)
Includes 16,667 shares of common stock purchased by Dr. Kleinman, directly from
us and 50,000 shares of common stock granted to Dr. Kleinman in connection with
his appointment as a director.
(8) Mr.
Toh is an executive officer of Exchequer, however, he has no voting or
investment power with respect to the shares of common stock owned by Exchequer,
and disclaims beneficial ownership of such shares of common stock.
ITEM
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR
INDEPENDENCE
Certain
Relationships and Related Transactions
We
currently use two offices in Houston, TX that are leased by a party related to
William Zuo, our Chairman and Chief Executive Officer, and Ms. Xiaojing Li, our
Vice President. We occupy these offices at no cost to us on an informal
unwritten month to month basis and could be asked to vacate these offices at any
time.
21
Director
Independence
We are
not subject to the listing requirements of any national securities exchange or
national securities association and, as a result, we are not at this time
required to have our board comprised of a majority of “independent directors.”
We do believe that Dr. Kleinman currently meets the definition of “independent”
as promulgated by the rules and regulations of the American Stock
Exchange
ITEM
14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Audit
Fees
The
aggregate fees billed for professional services rendered by our principal
accountants for the audit of our annual financial statements and review of
interim quarterly financial statements for the fiscal year ended September
30, 2009 and 2008 were $16,500 and $26,500, respectively.
Audit
Related Fees
We
incurred fees during the last two fiscal years ended September 30, 2009 and 2008
by our principal accountant for the performance of audit related services or
other audit related consulting. Fees of $0 and $11,000 were incurred related to
the Audit of our subsidiary, Trinterprise, LLC.
Tax
Fees
We did
not incur any fees during the last two fiscal years for professional services
rendered by our principal accountant for tax compliance, tax advice and tax
planning.
All
Other Fees
None
Our Audit
Committee pre-approves all audit services and permitted non-audit services
(including the fees and terms thereof) to be performed by our independent
registered public accounting firm, subject to the de minimus exceptions for
non-audit services described in Section 10A(i)(1)(B) of the Exchange Act,
which are approved by our Audit Committee prior to the completion of the audit.
Our Audit Committee may form and delegate authority to subcommittees consisting
of one or more members when appropriate, including the authority to grant
pre-approvals of audit and permitted non-audit services, provided that decisions
of such subcommittee to grant pre-approvals shall be presented to the full Audit
Committee at its next scheduled meeting.
During
fiscal 2009, our Audit Committee pre-approved all audit services performed by
our independent registered public accounting firm and did not rely upon the de
minimus exceptions described in Section 10A(i)(1)(B) of the Exchange
Act.
PART
IV
ITEM
15. EXHIBITS
(a) Financial
Statements and Financial Statement Schedules:
The
following documents are filed as part of the report:
(1) See
the index to our consolidated financial statements on page F-1 for a list of the
financial statements being filed herein.
(2) All
financial statement schedules are omitted because they are not applicable or the
required information is shown in the consolidated financial statements or other
notes thereto.
(3) See
the Exhibits under Item 15(b) below for all Exhibits being filed or incorporated
by reference herein.
22
(b)
Exhibits
Exhibits #
|
|
Description
|
2.1
|
Merger
Agreement and Plan of Reorganization dated June 28, 2008, by and among
InovaChem, Inc, InovaChem Mergerco, LLC, Trinterprise LLC, William W. Zuo,
Xiaojing Li, Shao Jun Xu, Henry Toh, and Lu Yiu
(4)
|
2.2
|
Articles
of Amendment to Articles of Incorporation
(2)
|
2.3
|
Amended
and Restated Bylaws (2)
|
3.1
|
Certificate
of Incorporation(1)
|
3.2
|
Bylaws(1)
|
10.1
|
Employment
Agreement dated June 30, 2008 between the Company and William Zuo
(5)
|
10.2
|
Employment
Agreement dated June 30, 2008 between the Company and Henry Toh
(5)
|
10.3
|
Employment
Agreement dated June 30, 2008 between the Company and Xiaojing Li
(5)
|
10.4
|
Employment
Agreement dated June 30, 2008 between the Company and Alan Pritzker
(5)
|
10.5
|
Employment
Agreement dated June 30, 2008 between the Company and Shao Jun Xu
(5)
|
10.6
|
Supply
Agreement dated June 28, 2008 between InovaChem Inc., and Polymed
Therapeutics Inc., (5)
|
10.7
|
2008
Stock Option Plan (5)
|
10.8
|
Amendment
#1 dated January 1, 2009 to Employment Agreement between the Company and
William Zuo
|
10.9
|
Amendment
#1 dated January 1, 2009 to Employment Agreement between the Company and
Henry Toh
|
10.10
|
Amendment
#1 dated January 1, 2009 to Employment Agreement between the Company and
Xiaojing Li
|
10.11
|
Amendment
#1 dated January 1, 2009 to Employment Agreement between the Company and
Shao Xun Xu
|
10.12
|
Amendment
#1 dated January 1, 2009 to Employment Agreement between the Company and
Alan Pritzker
|
10.13
|
Letter
of Intent, dated November __, 2009 with NuGen Mobility,
Inc.
|
16.1
|
Letter
from Gately & Associates, LLC
(3)
|
16.2
|
Letter
from Salberg & Company, P.A.
(6)
|
31.1 Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
32.1 Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
|
(1)
|
Filed
as an exhibit to the Form 10-SB filed with the SEC on October 22,
2008
|
|
(2)
|
Filed
as an exhibit to the Form 8-K filed with the SEC on February 14,
2008
|
|
(3)
|
Filed
as an exhibit to the Form 8-K filed with the SEC on May 2,
2008
|
|
(4)
|
Filed
as an exhibit to the Form 8-K filed with the SEC on July 7,
2008
|
|
(5)
|
Filed
as an exhibit to the Form 10-Q filed with the SEC on August 14,
2008
|
|
(6)
|
Filed
as an exhibit to the Form 8-K filed with the SEC on December 29,
2010
|
23
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.
By:
|
/s/ William Zuo
|
William
Zuo
|
|
President,
Chief Executive Officer (principal
executive
officer)
|
|
January
13, 2009
|
|
By:
|
/s/Alan Pritzker
|
Alan
Pritzker
|
|
Chief
Financial Officer (principal financial
and
accounting officer)
|
January
13, 2009
Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated..
TITLE
|
DATE
|
|||
|
|
|
||
/s/ William Zuo
|
Chairman, Chief Executive
|
January 13, 2009
|
||
William Zuo
|
Officer and a Director
|
|
||
|
(Principal Executive Officer)
|
|
||
|
|
|
||
/s/ Alan Pritzker
|
Chief Financial Officer
|
January 13, 2009
|
||
Alan Pritzker
|
(Principal Financial and
|
|
||
|
Accounting Officer)
|
|
||
|
|
|
||
/s/ Henry Toh
|
Executive Vice President of
|
January 13, 2009
|
||
Henry Toh
|
Corporate Development and
|
|
||
|
A Director
|
|
||
|
|
|
||
/s/ Xiaojing Li
|
Executive Vice President of
|
January 13, 2009
|
||
Xiaojing Li
|
Corporate Development and
|
|
||
|
A Director
|
|
||
Director
|
January 13, 2009
|
|||
Michael Kleinman
|
|
|
24
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
September
30, 2009
Table
of Contents
FINANCIAL STATEMENTS
|
Page #
|
|
Reports
of Independent Registered Public Accounting Firms
|
F –
1
|
|
Consolidated
Balance Sheets
|
F –
3
|
|
Consolidated
Statements of Operations
|
F –
4
|
|
Consolidated
Statement of Changes in Stockholders’ Equity (Deficiency)
|
F –
5
|
|
Consolidated
Statements of Cash Flows
|
F –
6
|
|
Notes
to Consolidated Financial Statements
|
F –
7
|
25
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
To the
Board of Directors of:
Inovachem,
Inc.
(A
Development Stage Company)
We have
audited the accompanying consolidated balance sheet of Inovachem, Inc. (A
Development Stage Company) (the “Company”) as of September 30, 2009, and the
related consolidated statements of operations, changes in stockholders’ equity
(deficiency) and cash flows for the year then ended and the period from February
14, 2008 (inception) to September 30, 2009. These consolidated
financial statements are the responsibility of the Company’s
management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audit. The consolidated financial
statements of the Company for the period from February 14, 2008 (Inception)
through September 30, 2008, were audited by other auditors whose report dated
January 6, 2009 expressed an unqualified opinion on those consolidated
statements.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require
that we plan and perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An audit
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 audit provides a reasonable basis
for our opinion.
In our
opinion, the consolidated financial statements referred to above present fairly
in all material respects, the financial position of Inovachem, Inc. (A
Development Stage Company) as of September 30,
2009 and the results of its operations and its cash flows for the year then
ended and the period from February 14, 2008 (inception) to 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 consolidated financial statements, the Company reported a net loss of
$562,255 and used cash from operations of $294,941 for the Fiscal Year ended
September 30, 2009. In addition, the Company is in the development
stage with no revenues. These factors raise substantial doubt about
the Company's ability to continue as a going concern. Management's
plans concerning these matters are also described in Note 1. The
financial statements do not include any adjustments that might result from the
outcome of this uncertainty.
WEBB
& COMPANY, P.A.
Certified
Public Accountants
Boynton
Beach, Florida
January
8, 2010
F-1
Report
of Independent Registered Public Accounting Firm
To the
Board of Directors and Shareholders of:
Inovachem,
Inc.
We have
audited the accompanying consolidated balance sheet of Inovachem, Inc. and
Subsidiary (a development stage company) as of September 30, 2008 and the
related consolidated statements of operations, changes in stockholders' equity,
and cash flows for the period from February 14, 2008 (inception) to September
30, 2008. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audit.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require
that we plan and perform the audit to obtain reasonable assurance about whether
the consolidated financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall consolidated financial statement
presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our
opinion, the consolidated financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Inovachem, Inc.
and Subsidiary (a development stage company) as of September 30, 2008 and the
consolidated results of its operations and its cash flows for the period from
February 14, 2008 (inception) to September 30, 2008 in conformity with
accounting principles generally accepted in the United States of
America.
The
accompanying consolidated financial statements have been prepared assuming the
Company will continue as a going concern. As discussed in Note 1 to
the consolidated financial statements the Company reported a net loss of
$700,082 and used cash for operating activities of $241,911 for the period from
February 14, 2008 (inception) to September 30, 2008. In addition, the
Company is in the development stage with no revenues. These matters
raise substantial doubt about the Company’s ability to continue as a going
concern. Management's plans as to these matters are also described in
Note 1. The financial statements do not include any adjustments that
might result from the outcome of this uncertainty.
/s/
Salberg & Company, P.A.
SALBERG
& COMPANY, P.A.
Boca
Raton, Florida
January
6, 2009
F-2
InovaChem,
Inc. and Subsidiary
(a
development stage company)
CONSOLIDATED
BALANCE SHEETS
September
30,
|
||||||||
2009
|
2008
|
|||||||
ASSETS
|
||||||||
Current
assets
|
||||||||
Cash
and cash equivalents
|
$ | 55,415 | $ | 350,356 | ||||
Prepaid
expenses
|
2,559 | 4,618 | ||||||
Total
current assets
|
57,974 | 354,974 | ||||||
Total
assets
|
$ | 57,974 | $ | 354,974 | ||||
LIABILITIES
AND STOCKHOLDERS' EQUITY (DEFICIENCY)
|
||||||||
Current
liabilities
|
||||||||
Accounts
payable
|
$ | 65,477 | $ | 146,767 | ||||
Accrued
expenses
|
25,599 | 15,084 | ||||||
Due
to related parties
|
316,250 | 160,220 | ||||||
Total
current liabilities
|
407,326 | 322,071 | ||||||
Total
liabilities
|
407,326 | 322,071 | ||||||
Commitments
and contingencies (Note 4)
|
||||||||
Stockholders'
equity (deficiency)
|
||||||||
Preferred
stock - $0.001 par value; 50,000,000
|
||||||||
shares
authorized, none issued and outstanding
|
- | - | ||||||
Common
stock - $0.001 par value; 200,000,000
|
||||||||
shares
authorized, 21,515,013 shares issued and outstanding
|
21,515 | 21,515 | ||||||
Additional
paid-in capital
|
891,470 | 711,470 | ||||||
Deficit
accumulated during development stage
|
(1,262,337 | ) | (700,082 | ) | ||||
Total
stockholders' equity (deficiency)
|
(349,352 | ) | 32,903 | |||||
Total
liabilities and stockholders' equity (deficiency)
|
$ | 57,974 | $ | 354,974 |
The
accompanying notes are an integral part of these
consolidated financial statements
F-3
InovaChem,
Inc. and Subsidiary
(a
development stage company)
CONSOLIDATED
STATEMENTS OF OPERATIONS
Cumulative
|
||||||||||||
For Period from
|
For Period from
|
|||||||||||
February 14, 2008
|
February 14, 2008
|
|||||||||||
For Year Ended
|
(inception) to
|
(inception) to
|
||||||||||
September 30,
|
September 30,
|
September 30,
|
||||||||||
2009
|
2008
|
2009
|
||||||||||
Revenues
|
$ | - | $ | - | $ | - | ||||||
Operating
expenses
|
||||||||||||
Compensation
|
433,572 | 502,210 | 935,782 | |||||||||
Professional
fees
|
16,987 | 101,652 | 118,639 | |||||||||
Impairment
expense
|
- | 45,944 | 45,944 | |||||||||
Travel
expenses
|
89,684 | 30,805 | 120,489 | |||||||||
Other
general and administrative expenses
|
23,279 | 20,421 | 43,700 | |||||||||
Total
operating expenses
|
563,522 | 701,032 | 1,264,554 | |||||||||
Net
loss from operations
|
(563,522 | ) | (701,032 | ) | (1,264,554 | ) | ||||||
Other
income and (expense)
|
||||||||||||
Interest
income
|
1,632 | 1,055 | 2,687 | |||||||||
Interest
expense
|
(365 | ) | (105 | ) | (470 | ) | ||||||
Total
other income and (expense)
|
1,267 | 950 | 2,217 | |||||||||
Net
loss
|
$ | (562,255 | ) | $ | (700,082 | ) | $ | (1,262,337 | ) | |||
Net
loss per share
|
$ | (0.03 | ) | $ | (0.04 | ) | ||||||
Weighted
average number
|
||||||||||||
of
common stock outstanding
|
21,515,013 | 18,621,679 |
The
accompanying notes are an integral part of these
consolidated financial statements
F-4
InovaChem,
Inc. and Subsidiary
(a
development stage company)
CONSOLIDATED
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
For the
period from February 14, 2008 (INCEPTION) to September 30, 2008,
and
For the Year Ended September 30, 2009
Deficit
|
||||||||||||||||||||||||||||
accumulated
|
||||||||||||||||||||||||||||
Preferred Stock
|
Common Stock
|
Additional
|
during
|
|||||||||||||||||||||||||
Number of
|
Par
|
Number of
|
Par
|
Paid-in
|
development
|
|||||||||||||||||||||||
Shares
|
Value
|
Shares
|
Value
|
Capital
|
stage
|
Total
|
||||||||||||||||||||||
Balance
at February 14, 2008 (Inception)
|
- | $ | - | 16,666,667 | $ | 16,667 | $ | 43,333 | $ | - | $ | 60,000 | ||||||||||||||||
Recapitalization
|
- | - | 2,500,000 | $ | 2,500 | (34,014 | ) | - | (31,514 | ) | ||||||||||||||||||
Issuance
of common stock to officers and
|
||||||||||||||||||||||||||||
directors
for services ($0.30 / share)
|
- | - | 925,000 | 925 | 276,575 | - | 277,500 | |||||||||||||||||||||
Issuance
of common stock for
|
||||||||||||||||||||||||||||
cash
($0.30 / share)
|
- | - | 1,423,346 | 1,423 | 425,576 | - | 426,999 | |||||||||||||||||||||
Net
loss from February 14, 2008
|
||||||||||||||||||||||||||||
(inception)
to September 30, 2008
|
- | - | - | - | - | (700,082 | ) | (700,082 | ) | |||||||||||||||||||
Balance
at September 30, 2008
|
- | - | 21,515,013 | 21,515 | 711,470 | (700,082 | ) | 32,903 | ||||||||||||||||||||
Contributed
services
|
- | - | - | - | 180,000 | - | 180,000 | |||||||||||||||||||||
Net
loss for the year ended
|
||||||||||||||||||||||||||||
September
30, 2009
|
- | - | - | - | - | (562,255 | ) | (562,255 | ) | |||||||||||||||||||
Balance
at September 30, 2009
|
- | $ | - | 21,515,013 | $ | 21,515 | $ | 891,470 | $ | (1,262,337 | ) | $ | (349,352 | ) |
The
accompanying notes are an integral part of these
consolidated financial statements
F-5
InovaChem,
Inc. and Subsidiary
(a
development stage company)
CONSOLIDATED
STATEMENTS OF CASH FLOWS
Cumulative
|
||||||||||||
For Period from
|
For Period from
|
|||||||||||
from February 14, 2008
|
from February 14, 2008
|
|||||||||||
For Year Ended
|
(inception)
|
(inception)
|
||||||||||
September 30,
|
September 30,
|
September 30,
|
||||||||||
2009
|
2008
|
2009
|
||||||||||
Cash
flows from operating activities:
|
||||||||||||
Net
loss
|
$ | (562,255 | ) | $ | (700,082 | ) | $ | (1,262,337 | ) | |||
Adjustments
to reconcile net loss to net cash provided by (used in)
operating activities:
|
||||||||||||
Contributed
services
|
180,000 | - | 180,000 | |||||||||
Stock
issued as compensation
|
- | 277,500 | 277,500 | |||||||||
Impairment
expense
|
- | 45,944 | 45,944 | |||||||||
Changes
in operating assets and liabilities:
|
||||||||||||
Prepaid
expenses
|
2,059 | 7 | 2,066 | |||||||||
Accounts
payable
|
(81,290 | ) | 11,259 | (70,031 | ) | |||||||
Accrued
expenses
|
10,515 | (30,860 | ) | (20,345 | ) | |||||||
Due
to related parties
|
156,030 | 154,321 | 310,351 | |||||||||
Net
cash provided by (used in) operating activities
|
(294,941 | ) | (241,911 | ) | (536,852 | ) | ||||||
Cash
flows from investing activities:
|
||||||||||||
Cash
acquired in recapitalization
|
- | 105,268 | 105,268 | |||||||||
Net
cash provided by investing activities
|
- | 105,268 | 105,268 | |||||||||
Cash
flows from financing activities:
|
||||||||||||
Proceeds
from sale of common stock, net
|
- | 486,999 | 486,999 | |||||||||
Net
cash provided by financing activities
|
- | 486,999 | 486,999 | |||||||||
Net
increase (decrease) in cash and cash equivalents
|
(294,941 | ) | 350,356 | 55,415 | ||||||||
Cash
and cash equivalents at beginning of period
|
350,356 | - | - | |||||||||
Cash
and cash equivalents at end of period
|
$ | 55,415 | $ | 350,356 | $ | 55,415 | ||||||
Supplemental
disclosure of cash flow information:
|
||||||||||||
Cash
paid during the period for interest
|
$ | 365 | $ | 105 | $ | 470 | ||||||
Cash
paid during the period for taxes
|
$ | - | $ | - | $ | - | ||||||
Supplemental
disclosure of non- cash investing
|
||||||||||||
and
financing activities:
|
||||||||||||
Net
non-cash assets and (liabilities) assumed
|
||||||||||||
in
recapitalization
|
$ | - | $ | (136,782 | ) | $ | (136,782 | ) |
The
accompanying notes are an integral part of these
consolidated financial statements
F-6
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
Note 1. Nature of
Operations, Basis of Presentation and Going Concern:
Nature of
Operations
InovaChem,
Inc. and its subsidiary (the “Company”) is a development stage research,
development and manufacturing company. The Company’s strategic plan is to reduce
the cost of manufacturing of food, pharmaceutical and other products, including
sucralose, through the utilization of new technologies. The Company intends to
obtain these technologies through their purchase, acquisition or in-house
development.
On June
28, 2008, InovaChem Mergerco, LLC a Texas limited liability company (“Mergerco”)
and a wholly owned subsidiary of the Company merged (the “Merger”) with and into
Trinterprise LLC, a Texas limited liability company (“Trinterprise”) with
Trinterprise surviving the Merger. As a result of the Merger, the Company
acquired the rights in and to three patent applications of Trinterprise, and
Trinterprise became a wholly owned subsidiary of the Company. As discussed below
in Note 5, this transaction was treated as a recapitalization of Trinterprise.
The Company is maintaining its fiscal year end of September 30, which was the
historical fiscal year end of Inovachem, Inc. and Trinterprise.
Activities
during the development stage include obtaining patents pending, developing the
business plan, and raising capital.
Going
Concern
As
reflected in the accompanying audited consolidated financial statements, the
Company had a net loss of $562,255 and used cash in operating activities of
$294,941 for the fiscal year ending September 30, 2009. These factors raise
substantial doubt about the Company’s ability to continue as a going concern.
The Company expects to have to expend cash for operations and technology
investments in order to implement its business plan and does not expect
immediate revenues to offset such expenditures.
The
ability of the Company to continue as a going concern is dependent on the
Company's ability to further implement its business plan, raise capital, and
generate revenues.
Management
intends to attempt to raise additional capital through public or private
offerings; acquire a company; or merge with or into another company. The Company
has entered into a letter of intent to merge with another company – See Note 10.
Subsequent Events.
The
financial statements do not include any adjustments that might be necessary if
the Company is unable to continue as a going concern.
F-7
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
Note 2. Summary of
Significant Accounting Policies:
Principles of
Consolidation
The
consolidated financial statements include the accounts of Inovachem, Inc, and
Trinterprise, LLC, its wholly-owned subsidiary. All significant inter-company
balances and transactions have been eliminated in consolidation.
Use of
Estimates
Management
has used estimates and assumptions in preparing these financial statements in
accordance with generally accepted accounting principles. Those estimates and
assumptions affect the reported amounts of assets and liabilities and the
Company’s reported expenses. Significant estimates during fiscal 2009 and fiscal
2008 include the valuation of patents contributed by founders in connection with
the Trinterprise acquisition, valuation of subsequent capitalized patent costs,
the valuation of stock-based compensation and the valuation of deferred tax
assets.. These estimates are reasonable in the judgment of the Company’s
management.
Cash and Cash
Equivalents
The
Company considers cash on hand and amounts on deposit with financial
institutions which have original maturities of three months or less to be cash
and cash equivalents.
Fair Value of Financial
Instruments
The
Company's financial instruments may include cash and cash equivalents,
short-term investments, accounts receivable, accounts payable and liabilities to
banks and shareholders. The carrying amount of long-term debt to banks
approximates fair value based on interest rates that are currently available to
the Company for issuance of debt with similar terms and remaining maturities.
The carrying amounts of other financial instruments approximate their fair value
because of short-term maturities.
Intangibles and Other
Long-Lived Assets
In
accordance with ASC 360, "Accounting for the Impairment or Disposal of
Long-Lived Assets", the Company reviews the carrying value of intangibles and
other long-lived assets for impairment at least annually or whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of long-lived assets is measured by comparison of
its carrying amount to the undiscounted cash flows that the asset or asset group
is expected to generate. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the property, if any, exceeds its fair market value.
F-8
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
Revenue
Recognition
The
Company follows the guidance of ASC 605 for revenue recognition. In general, the
Company records revenue when persuasive evidence of an arrangement exists,
services have been rendered or product delivery has occurred, the sales price to
the customer is fixed or determinable, and collectability is reasonably
assured.
Stock Based
Compensation
At
inception, the Company implemented ASC 718 which requires the fair value of all
stock-based employee compensation awarded to employees to be recorded as an
expense over the related requisite service period. The statement also requires
the recognition of compensation expense for the fair value of any unvested stock
option awards outstanding at the date of adoption. The Company values any
employee or non-employee stock based compensation at fair value using the
Black-Scholes Option Pricing Model.
Research and
development
Research
and development costs, if any, are expensed as incurred.
Income
Taxes
The
Company utilizes the asset and liability method to measure and record deferred
income tax assets and liabilities. Deferred tax assets and liabilities
reflect the future income tax effects of temporary differences between the
financial statement carrying amounts of existing assets and liabilities and
their respective tax bases and are measured using enacted tax rates that apply
to taxable income in the years in which those temporary differences are expected
to be recovered or settled. Deferred tax assets are reduced by a valuation
allowance when in the opinion of management, it is more likely than not that
some portion or all of the deferred tax assets will not be realized. At this
time, the Company has set up an allowance for deferred taxes as there is no
Company history to indicate the usage of deferred tax assets and
liabilities.
Earnings Per
Share
Basic
earnings per share ("EPS") is computed by dividing earnings available to common
stockholders by the weighted-average number of common shares outstanding for the
period as required by ASC 260, “Earnings per Shares”. Diluted EPS reflects the
potential dilution of securities that could share in the earnings. There were no
common stock equivalents at September 30, 2009 and 2008 that may dilute future
EPS.
F-9
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
New Accounting
Pronouncements
In
June 2009, the FASB issued ASC 105 Accounting Standards
Codification TM and the Hierarchy of Generally
Accepted Accounting Principles. The FASB Accounting Standards
Codification TM (the
“Codification”) has become the source of authoritative accounting principles
recognized by the FASB to be applied by nongovernmental entities in the
preparation of financial statements in accordance with Generally Accepted
Accounting Principles (“GAAP”). All existing accounting standard documents are
superseded by the Codification and any accounting literature not included in the
Codification will not be authoritative. Rules and interpretive releases of the
SEC issued under the authority of federal securities laws, however, will
continue to be the source of authoritative generally accepted accounting
principles for SEC registrants. Effective September 30, 2009, all
references made to GAAP in our consolidated financial statements will include
references to the new Codification. The Codification does not change or alter
existing GAAP and, therefore, will not have an impact on our financial position,
results of operations or cash flows.
In June
2009, the FASB issued changes to the consolidation guidance applicable to a
variable interest entity (VIE). FASB ASC Topic 810, "Consolidation," amends the
guidance governing the determination of whether an enterprise is the primary
beneficiary of a VIE, and is, therefore, required to consolidate an entity, by
requiring a qualitative analysis rather than a quantitative analysis. The
qualitative analysis will include, among other things, consideration of who has
the power to direct the activities of the entity that most significantly impact
the entity's economic performance and who has the obligation to absorb losses or
the right to receive benefits of the VIE that could potentially be significant
to the VIE. This standard also requires continuous reassessments of whether an
enterprise is the primary beneficiary of a VIE. FASB ASC 810 also requires
enhanced disclosures about an enterprise's involvement with a VIE. Topic 810 is
effective as of the beginning of interim and annual reporting periods that begin
after November 15, 2009. This will not have an impact on the Company’s financial
position, results of operations or cash flows.
In June
2009, the FASB issued Financial Accounting Standards Codification No. 860 -
Transfers and Servicing. FASB ASC No. 860 improves the relevance,
representational faithfulness, and comparability of the information that a
reporting entity provides in its financial statements about a transfer of
financial assets; the effects of a transfer on its financial position, financial
performance, and cash flows; and a transferor's continuing involvement, if any,
in transferred financial assets. FASB ASC No. 860 is effective as of the
beginning of each reporting entity's first annual reporting period that begins
after November 15, 2009, for interim periods within that first annual reporting
period and for interim and annual reporting periods thereafter. The Company is
evaluating the impact the adoption of FASB ASC No. 860 will have on its
financial statements.
F-10
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
Note 3. Related
Parties
We
currently use two offices in Houston, TX that are leased by a party related to
William Zuo, our Chairman and Chief Executive Officer, and Ms. Xiaojing Li, our
Vice President. We occupy these offices at no cost to us on an informal
unwritten month to month basis and could be asked to vacate these offices at any
time. The value of such space used is de minimis.
“Due to
related parties” includes reimbursable travel expenses, miscellaneous fees and
expenses, as well as research costs and other amounts paid for by corporate
officers or directors on behalf of the Company.
Note 4. Commitments and
Contingencies
Employment
Agreements
On June
30, 2008, the Company entered into employment agreements with its Executive
Chairman, Executive Vice Chairman, Chief Science Officer, Vice President /
Corporate Secretary and Chief Financial Officer / Treasurer. The employment
agreements for the Executive Chairman and the Vice President / Corporate
Secretary are for an initial term ending on December 31, 2011. The other
employment agreements are for an initial term ending on December 31,
2009.
Pursuant
to the terms of the employment agreements, each of the Executive Chairman,
Executive Vice Chairman, Chief Science Officer, Vice President / Corporate
Secretary and Chief Financial Officer / Treasurer will be entitled to receive a
base salary of $300,000, $150,000, $100,000, $100,000, and $125,000,
respectively, in each case subject to review and increase at the Company's Board
of Directors' discretion. Pursuant to the terms of the employment agreements,
the Company may defer payment of some or all of the compensation to each of the
executives until such time as the Company’s financial situation permits payment
of such compensation. The Board of Directors and Compensation Committee have
approved the deferral of a portion of the cash compensation due to each of the
executives such that the total monthly compensation (beginning in July 2008)
that is being paid to the Company’s executive officers totals approximately
$13,000 per month. A total of approximately $51,600 per month of the executive’s
compensation will be deferred until such time as determined by the Company’s
Compensation Committee.
Effective
January 1, 2009 the Company stopped the payment of salaries to its executives
through the end of the initial terms of the agreements. The Company’s Chief
Financial Officer receives, through his consulting company, a $5,000 per month
fee. The Compensation Committee of the Company reserves the right to reassess
these payments and adjust the amount to be paid as the financial condition of
the Company changes. Each of the executives will also be entitled to receive an
annual bonus with a targeted amount of 50% of their respective base salary based
on performance criteria established by the Board of Directors. Each of the
executives shall be entitled to participate in disability, health, life
insurance and other fringe benefit plans or programs offered to all employees of
the Company, as well as be entitled to four weeks vacation per year. An in-kind
contribution of services and office space has been charged to additional paid-in
capital in the amount of $5,000 per month for each of the executives with the
exception of the chief financial officer (see note 6).
F-11
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
The
employment agreements of each executive may be terminated by (a) the Company
upon death or disability of the executive, for "Cause" (as defined in the
employment agreement), or for any reason in the Company's sole and absolute
discretion or (b) by the executive for "Good Reason" (as defined in the
employment agreement). In the event of a termination upon death or disability,
the executive and/or the executive's family shall continue to be covered by all
of the Company's medical, health and dental plans, at the Company's expense, for
a period of 18 months following such executive's death or
disability.
In the
event of a termination by the Company for any reason other than death,
disability or Cause, or by the executive for Good Reason, the executive shall be
entitled to receive his/her base salary for the longer of (i) the remaining term
of the employment agreement or (ii) 12 months from the date of
termination.
The
employment agreements provide for a non-compete for the period during which the
executive is employed by the Company and for so long as the Executive is
receiving payments under the terms of the employment agreement following
termination.
Note 5. Merger and
Recapitalization
On June
28, 2008, Mergerco, which is a wholly owned subsidiary of the Company, merged
with and into Trinterprise, with Trinterprise surviving the Merger as a
wholly-owned subsidiary of the Company.
Under the
terms of the Merger Agreement, the Trinterprise Members received an aggregate of
16,666,667 newly issued shares (the “Merger Shares”) of common stock, par value
$.001 per share (the “Common Stock”), of the Company in exchange for all of the
outstanding membership interest in Trinterprise. Upon consummation of the
Merger, the Trinterprise Members owned approximately 80% of the issued and
outstanding Common Stock of InovaChem. All but one of the Trinterprise Members
are directors and/or officers of the Company. In addition, the Executive
Chairman and Vice President / Corporate Secretary of the Company are the
managers of Trinterprise. Each Trinterprise Member received an amount of
Merger Shares that is equal in proportion to the interest in Trinterprise held
by such Trinterprise Members.
In
accordance with the terms of the Merger Agreement, 4,166,667 Merger Shares were
placed in escrow to satisfy certain indemnity obligations the Trinterprise
Members may have to the Company. The escrowed Merger Shares will be released on
the later ( the "Release Date") of (i) the sixth month anniversary of the Merger
Agreement, and (ii) the date of delivery to the Company of executed supply
agreements between Polymed and two designated manufacturing facilities in China.
The Company will be entitled to receive all or a portion of the escrowed Merger
Shares prior to the Release Date in the event the Company is entitled to
indemnification under the terms of the Merger Agreement.
F-12
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
As the
Trinterprise Members obtained voting and management control of the Company as a
result of the Merger, the Merger was accounted for as a recapitalization of
Trinterprise. Accordingly, the financial statements of the Company subsequent to
the Merger consist of the balance sheets of InovaChem, Inc. and Trinterprise,
the historical operations of Trinterprise and the operations of both InovaChem,
Inc. and Trinterprise from June 28, 2008 (date of Merger) until September 30,
2009. As a result of the Merger, the historical financial statements of
InovaChem, Inc. for the period prior to June 28, 2008, are not presented
herein.
As a
result of the Merger, the 2,500,000 common shares that had previously been
issued to the pre-merger stockholders of Inovachem, Inc. were recapitalized and
valued as the net of the $141,407 of current liabilities, $105,268 of cash and
cash equivalents and $4,625 of prepaid expenses that were assumed by the
Company. The net charge of $31,514 is reflected on the Company’s Statement of
Changes in Stockholders’ Equity.
All of
the effects of the recapitalization are reflected retroactively in the
accompanying consolidated financial statements.
In June
2008, certain patent applications were assigned to Trinterprise from certain
controlled affiliates of the founders of Trinterprise. Pursuant to ASC 845,
"Transfers of Nonmonetary
Assets by Promoters or Shareholders", the patent applications of
Trinterprise were acquired by the Company at their historical cost basis of $0
as determined under generally accepted accounting principles and therefore there
was no accounting effect of the assignment.
Note 6. Stockholder's
Equity
Preferred
stock includes 50,000,000 shares authorized at a par value of $0.001, of which
none are issued or outstanding. Common Stock includes 200,000,000 shares
authorized at a par value of $0.001 of which 21,515,013 are issued and
outstanding.
In
February 2008, the Trinterprise Members paid $60,000 for their membership
interest in Trinterprise. As a result of the Merger, this membership interest
was converted to 16,666,667 common shares of the Company which is reflected
retroactively in the accompanying consolidated financial statements. The
existing 2,500,000 common shares were deemed to be issued to the pre-merger
stockholders of Inovachem, Inc. as a result of the recapitalization. (See Note 5
– Merger and Recapitalization).
In June
2008 the Company granted, pursuant to the Employment Agreements it entered into
with its officers and pursuant to its arrangement with its directors, 925,000
shares of Common Stock to its officers and directors valued at the then
contemporaneous private offering price of $.30 per share. As the shares were
fully vested on the grant date, a total of $277,500 was charged to compensation
expense in the quarter ended June 30, 2008.
In July
2008, the Company sold a total of 1,423,346 shares of Common Stock, pursuant to
its private offering, at a price of $.30 per share for aggregate proceeds of
$426,999.
F-13
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
2008 Stock Option
Plan
On June
30, 2008, the Company's Board of Directors adopted the 2008 Stock Option Plan
(the “Plan”). The Plan was implemented for the purpose of furthering the
Company’s long-term stability, continuing growth and financial success by
retaining and attracting key employees, officers and directors through the use
of stock incentives. The Company will submit the Plan to its stockholders for
approval at its next annual meeting of stockholders. Awards may be granted under
the Plan in the form of incentive stock options and non-qualified stock options,
subject to stockholder approval of the Plan. Pursuant to the Plan, the Company
has reserved 2,000,000 shares of its Common Stock for awards.
All of
the Company’s officers, directors and executive, managerial, administrative and
professional employees are eligible to receive awards under the Plan. The
Company’s Compensation Committee has the power and complete discretion, as
provided in the Plan, to select which persons will receive awards and to
determine for each such person the terms, conditions and nature of the award,
and the number of shares to be allocated to each individual as part of each
award.
Upon
adoption of the Plan, the Company’s Board of Directors approved the issuance of
options to purchase 1,200,000 common shares, subject to stockholder approval of
the Plan. The shares subject to the stock options vest in 12 quarterly
installments on the last day of each fiscal quarter commencing on June 30, 2008.
The shares will not actually vest until the Plan is approved by the Company’s
shareholders. The 2008 Stock Option Plan, which was adopted by the Board on June
30, 2008, specifically provided for its effectiveness within 12 months of its
adoption by vote of the shareholders; as of September 30, 2009 the shareholders
did not vote to adopt or reject the option plan. Accordingly, the 2008 Stock
Option Plan is no longer effective and any previous options granted thereunder
are null and void, and, pursuant to ASC 718, there is no measurement date and no
expense for these grants as of September 30, 2009. As of September 30, 2009, the
Company had no shares of common stock subject to any outstanding
awards or available for future awards under equity compensation
plans.
Contributed
services
An
in-kind contribution of services and office space has been charged to additional
paid-in capital in the amount of $5,000 per month for each of the executives
with the exception of the chief financial officer (see note 4). Management
believes its estimate of the value of contributed services is
reasonable.
Note 7.
Concentrations
Concentrations of Credit
Risk:
Financial
instruments which potentially expose the Company to concentrations of credit
risk consist principally of operating demand deposit accounts. The Company's
policy is to place its operating demand deposit accounts with high credit
quality financial institutions. At September 30, 2009, there were $0 of deposits
that exceeded federally insured limits of $250,000 and at September 30, 2008
there were $242,258 of deposits that exceeded the then federally insured limits
of $100,000.
F-14
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
Patent Applications
Concentration
The
Company’s business relies on patent applications assigned to the Company by its
founders. Although the Company has received a Freedom to Operate opinion from
its patent counsel regarding these applications, there can be no assurance that
the U.S. Patent and Trademark Office will grant the Company the patents.
Accordingly, there is a risk that if the patents are not granted, there can be a
material effect on the Company’s planned operations.
Note 8. Impairment of
Assets
Through
May 31, 2008, the Company incurred patent application costs of $45,944. These
costs were capitalized but then impaired since the Company is a newly formed
development stage company with no revenues and therefore could not project
positive cash flows to support the value of such assets as of May 31,
2008.
Note 9. Income
Taxes
The
Company operated as a Limited Liability Company (LLC) from February 14, 2008
(inception) through June 28, 2008, the date of the recapitalization.
Accordingly, any net income or loss is passed through directly to the LLC
members for that period. Upon acquisition of Trinterprise, LLC by Inovachem,
Inc. the Company is taxed as a Delaware Corporation.
There was
no income tax expense for year ended September 30, 2009 or for the period from
June 29, 2008 through September 30, 2008 due to the Company’s net
losses.
The
Company’s tax expense differs from the “expected” tax expense for Federal income
tax purposes for the periods ended September 30, 2009 and 2008 (computed by
applying the United States Federal Corporate tax rate of 34% to loss before
taxes), as follows:
2009
|
2008
|
|||||||
Computed
“expected” tax benefit
|
$ | (191,617 | ) | $ | (222,161 | ) | ||
State
tax rate benefit
|
20,410 | 23,719 | ||||||
Other
non-deductible items
|
67,813 | 3,763 | ||||||
Change
in deferred tax asset valuation allowance
|
143,764 | 242,117 | ||||||
$ | - | $ | - |
The
effects of temporary differences that gave rise to significant portions of
deferred tax assets and liabilities at September 30, 2009 and 2008 are as
follows:
Deferred tax assets
|
2009
|
2008
|
||||||
Net
operating loss carryforward
|
$ | 385,881 | $ | 242,117 | ||||
Total
gross deferred tax assets
|
385,881 | 242,117 | ||||||
Less
valuation allowance
|
(385,881 | ) | (242,117 | ) | ||||
Net
deferred tax assets
|
$ | - | $ | - |
F-15
INOVACHEM,
INC. AND SUBSIDIARY
(a
development stage company)
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
September
30, 2009 and 2008
The
valuation allowance at September 30, 2008 and February 14, 2008 (inception) was
$242,117 and $0, respectively. The net change in valuation allowance during the
periods ended September 30, 2009 and 2008 was an increase of $143,764. The
Company has a net operating loss carryforward of approximately $1,025,460
available to offset future U.S. net income through 2029.
The
utilization of the net operating loss carryforwards is dependent upon the
ability of the Company to generate sufficient taxable income during the
carryforward period. In addition, utilization of these carryforwards may be
limited due to ownership changes as defined in the Internal Revenue
Code.
Note 10. Subsequent
Events
In
preparing these financial statements, the Company has evaluated events and
transactions for potential recognition or disclosure through January 13, 2010,
the date the financial statements were issued.
Letter of Agreement with
NuGen Mobility. In November, 2009, the Company and NuGen
Mobility, Inc., a Delaware corporation based in Ashburn, Virginia (“NuGen”),
entered into a letter of intent relating to the Company’s proposed
acquisition of NuGen for approximately 80% of the capital stock of
the Company on a fully-diluted basis (the “Consideration”). Consummation of the
contemplated transaction is subject to the negotiation and execution of a
mutually satisfactory definitive share exchange agreement or merger agreement
(the “Definitive Agreement”), setting forth the specific terms and conditions of
the transaction. The execution of the Definitive Agreement is subject
to the consummation by NuGen of a private placement of no less than
$1,000,000, approval by the Board of Directors of both the Company and NuGen,
approval by the shareholders of NuGen and the completion by the Company of a
satisfactory review of the legal, financial and business condition of NuGen. ,
including the receipt of NuGen’s financial statements audited in accordance with
applicable SEC rules. The Company and NuGen are obligated
to use their reasonable best efforts to negotiate in good faith the Definitive
Agreement, which will contain, among other standard terms and conditions,
representations, warranties, covenants, indemnities and other provisions
customary in transactions of this nature, including without limitation,
representations and warranties as to the condition of the title held to the
assets of NuGen, the financial statements of NuGen, the payment of taxes and
contingent liabilities. Any necessary third-party consents shall be obtained
prior to consummation of the Transaction, including but not limited to any
consents required to be obtained from NuGen lenders, creditors, vendors and
lessors.
Salary
Forgiveness
In November 2009 the
officers of the Company forgave $316,250 of accrued salaries. This amount will
be added to paid in capital.
F-16