Kyto Biopharma Inc.
c/o 114 Belmont Street
Toronto ON M5R 1P8
telephone (416) 884-8807
telecopier (416)884-8807
Gbh00@comcast.net
August 24, 2011
‘CORESP’
United States Securities and Exchange Commission
100 F Street N.E.
Washington, D.C. 20549
Re: Kyto BioPharma, Inc. (the “Company”)
Form 10-K for the Fiscal Year Ended March 31, 2011
Filed June 29, 2011
File No. 000-50390
Attention: Melissa N. Rocha, Accounting Brach Chief
Dear Ms Rocha;
The Company is in receipt of the staff’s letter of comment dated August 12, 2011 on the above-referenced Current Report on Form 10-K. Following are the Company’s responses to the staff’s comments.
1. | Research and Development Programs. page 4 We note that in the table on page 4 of your filing, you reference Medarex Inc. Please amend your filing to explain your relationship with Medarex Inc. and any material agreements you may have with the company. Please be sure to describe the material terms of the agreements, including but not limited to any payment provisions, royalty rates, aggregate milestones, usage restrictions, exclusivity provisions, obligations/rights to defend. Other rights obtained and material obligations that must be met to keep the agreement in place. Duration and termination provisions. Also, please file any material agreements as exhibits pursuant to Item 60 l(b)( 10)(ii)(B) of Regulation S-K. |
RESPONSE: In 2009, Medarex Inc was acquired by Bristol-Myers Squibb, The reference to Medarex was stated because of the comprehensive nature of the 10k.
2. | We note that you have filed a number of patent applications in the United States, the PCT Member Countries, Japan and in most other jurisdictions and that to date, 18 patents have been issued. Please amend your tiling to describe the expiration dates of your material issued patents and whether you own or license the patent. For the patents that you license, please identify from whom you license each patent. We also note that there are some patents which you acquired in 1999 and in 2010 that you later determined were impaired. II any of these patents are ones identified in the patent table, please remove them from the table. Also, for your material patent applications, please describe the project covered by such patent application and the jurisdiction in which you have applied for patent protection.. |
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RESPONSE: The table will be amended as follows
PATENT NO. | TITLE | ISSUED | EXPIRATION | |||
NZ252,559 | Anti-receptor agents to the vitamin B12/transcobalamin II receptor | 02/14/97 | 05/07/13 | |||
US5,688,504 | Anti-receptor and growth blocking agents to the vitamin B12/transcobalamin II receptor and binding sites | 11/18/97 | 11/18/14 | |||
US5,739,287 | Biotinylated cobalamins | 04/14/98 | 04/14/15 | |||
US5,840,712 | Water soluble vitamin B12 receptor modulating agents and methods relating thereto | 11/24/98 | 04/08/14 | |||
US5,840,880 | Vitamin B12 receptor modulating agents | 11/24/98 | 11/24/15 | |||
US5,869,465 | Methods for receptor modulation and uses thereto | 02/09/99 | 02/09/16 | |||
US6,083,926 | Water soluble vitamin B12 receptor modulating agents and methods relating thereto | 07/04/00 | 04/08/14 | |||
CA2,135,277 | Anti-receptor and growth blocking agents to the vitamin B12/transcobalamin II receptor and use in preventing cellular uptake of vitamin B12 | 04/24/01 | 05/07/13 | |||
NZ323,127 | Vitamin B12 receptor modulating agents and methods related and methods related thereto | 07/12/01 | 10/18/16 | |||
KR297,310 | Anti-receptor and growth blocking agents to the vitamin B12/transcobalamin II receptor and use in preventing cellular uptake of vitamin B12 | 05/21/01 | 05/07/13 | |||
CH0754189 | Receptor modulating agents and methods relating thereto | 10/09/02 | 04/07/15 | |||
DE0754189 | Receptor modulating agents and methods relating thereto | 10/09/02 | 04/07/15 | |||
FR0754189 | Receptor modulating agents and methods relating thereto | 10/09/02 | 04/07/15 | |||
GB0754189 | Receptor modulating agents and methods relating thereto | 10/09/02 | 04/07/15 | |||
US7416728 | Growth Blocking Agents | 08/26/08 | 05/08/12 | |||
CA2199940 | Anti-receptor and growth blocking agents to Vitamin B12/transcobalmin II Receptor and binding sites | 02/11/11 | 09/13/15 |
3. | We note that on February 10. 2010, you entered into a licensing agreement with the Research Foundation of the State University of New York ("RFSUNY"). Please amend your filing to describe the material terms of the agreement, including but not limited to any payment provisions, royalty rates, aggregate milestones, usage restrictions, exclusivity provisions, obligations/rights to defend. other rights obtained and material obligations that must be met to keep the agreement in place. duration and termination provisions. Since the duration of the agreement is conditioned on the expiration of the patent rights, please disclose the duration of the patents. Also, please tile the agreement as an exhibit pursuant to Item 601(b)(10)(ii)(B) of Regulation S-K. |
RESPONSE: Enclosed is the licensing agreement with Research Foundation of the State University of New York. The agreement has a confidentiality clause. Please advise the company on how to proceed with on this point.
4. | Please amend your filing to disclose the specific experience, qualifications, attributes or skills that led to the conclusion that each of your directors should serve as a director as required under Item 401(e) of Regulation S-K. |
RESPONSE: The Company believes that the work experiences describe for the directors is sufficient in concluding that the directors are qualified.
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MR. GEORGES BENARROCH, PRESIDENT & CHIEF EXECUTIVE OFFICER; DIRECTOR.
Director of the Company since May 5, 2000. Mr Benarroch was elected as President and Chief Executive Officer effective February 27, 2006. Mr. Benarroch is the President and Chief Executive Officer of Credifinance Capital Corp.. Mr. Benarroch is also, the President & CEO of Gilla Inc., a public company.
DR. JEAN-LUC BERGER, PH.D., DIRECTOR.
Director of the Company since inception on March 5, 1999, Dr. Berger was President and Chief Executive Officer of the Company from May 15, 2001 to February 27, 2006. Co-founder of Kyto, he joined the Company as Chief Operating Officer in September 2000. Dr Berger resigned as President and Chief Executive Officer effective February 27, 2006. Prior to joining the Company, Dr. Berger was a Pharmaceutical/Biotechnology analyst with Credifinance Securities Limited, a Toronto-based, institutional investment and research firm, since 1996. Dr. Berger obtained his M. Sc. from Universite de Montreal, his Ph.D. from Universite LAVAL and completed his post-doctoral studies at McGill University and has over thirty publications and scientific communications to his credit.
DR. URI SAGMAN, M.D ., DIRECTOR
Director of the Company since inception on July 27, 2007, Dr. Sagman ,studied medicine at McGill University, The University of Calgary, The University of Toronto and Oxford University. Dr. Sagman is a well-respected researcher who has received numerous awards and citations including the Young Investigator awards of the American Society of Clinical Oncology (ASCO) and the American Association for Cancer Research (AACR). He is trained as a medical oncologist, is a fellow of the Royal College of Physicians and Surgeons of Canada and is a fellowship recipient of the Medical Research Council of Canada. He co-founded several companies including C Sixty, Inc., a Canadian nanomedicine company focused on the development of fullerene antioxidants for the treatment of Parkinson's disease, Alzheimer's disease as well certain skin conditions related to aging and UV exposure. Dr. Sagman is also founder and chairman of GRN Capital Inc., a financial services corporation with merchant banking and investment banking operations based in Toronto. Separately, Dr. Sagman serves as Chairman of GRN Health International Inc., a globally-based academic research organization dedicated to medical research.
5. | We note that on March 31, 2011, you owed $1,066,096 to a related party director. We also note that during the year ended March 31, 2001, you entered into an agreement with a vendor who is also a principal stockholder for services totaling $200.000. Please amend your filing to identify the related party director and the vendor who is also a principal stockholder. |
RESPONSE: The related paragraph will be amended as follows
a) At March 31, 2011, the Company owed $1,066,096 to Credifinance Capital Corp. Georges Benarroch is the President and Chief Executive Officer of Credifinance Capital Corp . The loan is non-interest bearing, unsecured and due on demand and included in the loans payable, related party balance. However, ASC-835-30 “Imputation of Interest” has been applied to impute the interest on loan from the related as there is no agreement between the Companies. Imputation of interest has been done @5%p.a. quarterly cumulative from FY 2009 and $89,043 has been imputed as interest.
b) During the year ended March 31, 2001, the Company entered into an agreement with a Medarex Inc(“the vendor”), who is also a principal stockholder, for services totaling $200,000. On November 11, 2002, the Company and vendor mutually agreed that in lieu of the $200,000 payment, the vendor would accept 100,000 shares of the Company's common stock valued at $1.00 totaling $100,000. In addition, the Company also executed a $100,000 unsecured promissory note with the vendor. Under the terms of the promissory note, the obligation bears interest at prime plus 1% (4.25% at March 31, 2011). Interest is accrued and payable quarterly. At March 31, 2011 and 2010, accrued interest totaled $66,139 and $59,329, respectively.
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6. | Please amend your certifications to include the introductory language of paragraph 4 and the language of paragraph 4(b) of Item 601(b)(31) of Regulation S-X. |
RESPONSE: The Certifications will be amended as follows.
Exhibit 31.2
CERTIFICATIONS
I, Georges, certify that:
1) | I have reviewed this Annual Report on Form 10-K for the year ended March 31, 2011 of Kyto Biopharma Inc..; | |||
2) | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |||
3) | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |||
4) | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: | |||
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |||
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |||
c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |||
d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5) | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): | |||
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | |||
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: June 29, 2011 | By: | /s/ Georges Benarroch | |
Georges Benarroch, | |||
President, Chief Executive Officer and Acting Chief Financial Officer |
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We trust the foregoing sufficiently responds to the staff’s comments. The Company acknowledges:
• | the Company is responsible for the adequacy and accuracy of the disclosure in the filing; |
• | staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and |
• | the Company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. |
Sincerely, | |||
By: | /s/ Georges Benarroch | ||
Georges Benarroch |
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