UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 10-K/A
(Amendment No. 1)
(Mark One)
 
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.
For the fiscal year ended December 31, 2011
 

o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.
For the transition period from _______ to ______
 
Commission file number: 001-33675
 
AspenBio Pharma, Inc.
(Exact name of registrant as specified in charter)

Colorado
84-1553387
(State or other jurisdiction of incorporation or organization)
(IRS Employer Identification No.)

1585 South Perry Street
Castle Rock, CO
80104
(Address of principal executive offices)
(Zip Code)
 
Registrant's telephone number, including area code:   (303) 794-2000
 
Securities registered under Section 12(b) of the Act:
 
Title of Each Class
Name of each exchange on which registered
Common Stock, No Par Value
NASDAQ Capital Market


Securities registered under Section 12(g) of the Act:   None
 
Indicate by check mark if the registrant is a well known, seasoned issuer, as defined in Rule 405 of the Securities Act:  Yes  o   No  x
 
Indicate by check mark whether the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act: Yes o   No x
 
Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes  x   No o
 
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 (§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 o
 
Indicate by check mark if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-K contained in this form, and no disclosure will 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.     o
 
 
 

 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company (as defined in Exchange Act Rule 12b-2).
 
     
 
Large accelerated filer  o
 
Non-accelerated filer  o
(Do not check if smaller reporting company)
Accelerated filer  o
 
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  No x
 
The aggregate market value of Common Stock held by non-affiliates of the registrant as of June 30, 2011, computed by reference to the closing price on that date was $26,090,000.
 
The number of shares outstanding of the registrant’s common stock at March 12, 2012 was 9,633,321.
 
 
EXPLANATORY NOTE
 
 
This Amendment No. 1 to Form 10-K (this “Amendment”) amends our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 originally filed on March 16, 2012 (the “Original Filing”). We are filing this Amendment to include an updated Exhibit list and to file Exhibit 10.6.3.
 
Except as described above, no other changes have been made to the Original Fling. The Original Filing continues to speak as of the date filed and we have not updated the disclosures contained therein to reflect any events which occurred subsequent to the filing date of the Original Filing.
 
 
 
 
 

 
ASPENBIO PHARMA, INC.
INDEX TO ANNUAL REPORT ON FORM 10-K
 
 
Page
 
     
     
PART IV
     
     
Item 15.
   
Exhibits and Financial Statement Schedules.
     
2
 
     

 
 
 
1
 
 

 
PART IV

ITEM 15.     EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
 
(a)  
Exhibits:

 
 3.1
Articles of Incorporation filed July 24, 2000 (1)
 3.1.1
Articles of Amendment to the Articles of Incorporation filed December 26, 2001 (1)
 3.1.2
Articles of Amendment to the Articles of Incorporation filed November 9, 2005 (2)
 3.1.2
Articles of Amendment to the Articles of Incorporation filed July 29, 2011 (17)
 3.2
Amended and Restated Bylaws (3)
 4.1
Specimen Certificate of Common Stock (1)
 4.2
Form of Warrant between the Company and each of the investors signatories thereto (incorporated by reference to the Company’s Current Report on Form 8-K dated and filed with the Securities and Exchange Commission (SEC) on April 30, 2010). (11)
 4.3
Form of Common Stock Warrant between AspenBio and Liolios Group, Inc.  (12)
 4.4
Form of Warrant between the Company and each of the investors signatories to the Securities Purchase Agreement dated December 23, 2011 (18)
 10.1
2002 Stock Incentive Plan, as amended and restated effective July 1, 2007 (13)
 10.1.1
Amendment to 2002 Stock Incentive Plan, dated June 9, 2008 (12)
 10.1.2
Amendment to 2002 Stock Incentive Plan, dated November 20, 2009 (12)
 10.1.3
Amendment to 2002 Stock Incentive Plan, dated November 22, 2010  (14)
 10.1.4
Amendment to Amended and Restated 2002 Stock  Incentive Plan, as amended, dated July 8, 2011  (16)
 10.2
Placement Agent Agreement, dated April 30, 2010, between the Company and Lazard Capital Markets LLC. (10)
 10.2.1
Form of Subscription Agreement between the Company and each of the investors signatories thereto. (10)
 10.3
Placement Agency Agreement, dated December 23, 2011, between the Company and Landenburg Thalmann & Co. Inc.  (18)
 10.3.1
Form of Securities Purchase Agreement between the Company and each of the investors signatories thereto. (18)
 10.4
Exclusive License Agreement, dated May 1, 2004 between AspenBio and The Washington University, as amended.  (11)
 10.5
Debt Modification Agreement dated June 13, 2003 with FirstBank of Tech Center. (4)
 10.5.1
Loan Agreement between AspenBio, Inc. and Front Range Regional Economic Development Corporation dated June 13, 2003 for $1,300,000 regarding loan for physical plant or capital equipment acquisitions. (4)
 10.5.2
Promissory Note dated June 13, 2003 by AspenBio, Inc. to Front Range Regional Economic Development Corporation in principal amount of $1,300,000. (4)
 10.5.3
Unconditional Guarantee dated June 13, 2003 by AspenBio, Inc. to Front Range Regional Economic Development Corporation in principal amount of $1,300,000. (4)
 10.6
Exclusive License Agreement with Novartis Animal Health, Inc., dated as of April 2, 2008. (5)
 10.6.1
Amendment to Exclusive License Agreement with Novartis Animal Health, Inc., dated as of April 2, 2008. (15)
 10.6.2
Amendment to Exclusive License Agreement with Novartis Animal Health, dated July 26, 2010 (15)
 10.6.3
Termination and Settlement Agreement with Novartis Animal Health, dated November 15, 2011 *
 10.7
Employment Agreement with Jeffrey McGonegal, effective as of February 10, 2009. (6)
 10.8
Assignment and Consultation Agreement, dated May 29, 2003, between AspenBio and John Bealer, M.D. (7)
 10.9
Employment Agreement with Greg Pusey effective as of January 1, 2010. (12)
 10.10
Employment Agreement with Stephen Lundy effective as of March 24, 2010. (12)
 10.11
Form of Stock Option Agreement under the 2002 Stock Incentive Plan, as amended and restated and amended. (12)
 10.12
Non-Employee Director Compensation. (12)
 14
Form of Code of Ethics (9)
 23
Consent of GHP Horwath, P.C. (19)
 31.1
Rule 13a-14(a)/15d-14(a) - Certification of Chief Executive Officer *
 31.2
Rule 13a-14(a)/15d-14(a) - Certification of Chief Financial Officer. *
 32
Section 1350 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101
Interactive data files pursuant to Rule 405 of Regulation S-T:  (i) the Balance Sheets, (ii) the Statements of Operations, (iii) Statements of Stockholders Equity, (iv) the Statement of Cash Flows and (v) the Notes to the Financial Statements (A)
 
   
(A)
Pursuant to Rule 106T for Regulation S-T, the XBRL related information in Exhibit 101 to this Annual Report on Form 10-K shall not be deemed to be filed by the Company for purposes of Section 18 or any other provision of the Exchange Act of 1934, as amended.
____________________

*
Filed herewith.
  
2
 
 

 
(1)
Incorporated by reference from the registrant's Registration Statement on Form S-1 (File no. 333-86190), filed April 12, 2002. 
(2)
Incorporated by reference from the registrant's Report on Form 10-QSB for the quarter ended October 31, 2005, filed November 10, 2005. 
(3)
Incorporated by reference from the registrant's Report on Form 10-Q for the quarter ended March 31, 2008 filed on May 15, 2008. 
(4)
Incorporated by reference from the registrant's Report on Form 10-KSB/A for the year ended December 31, 2004 (file no. 000-50019), filed March 29, 2004. 
(5)
Incorporated by reference from the registrant's Report on Form 10-Q for the quarter ended June 30, 2008, filed August 13, 2008. 
(6)
Incorporated by reference from the registrant's Report on Form 8-K dated February 10, 2009, filed on February 17, 2009. 
(7)
Incorporated by reference from the registrant's Report on Form 10-K for the year ended December 31, 2008, filed March 16, 2009. 
(8)
Incorporated by reference from the registrant's Report on Form 8-K dated January 19, 2009, filed January 23, 2009.
(9)
Incorporated by reference from the registrant's Report on Form 10-KSB for the year ended December 31, 2007, filed March 21, 2008. 
(10)
Incorporated by reference from the registrant’s Report on Form 8-K dated and filed on April 30, 2010. 
(11)
Incorporated by reference from the registrant's Report on Form 10-Q for the quarter ended June 30, 2010, filed August 5, 2010. 
(12)
Incorporated by reference from the registrant's Report on Form 10-K for the year ended December 31, 2009, filed March 9, 2010. 
(13)
Incorporated by reference from the registrant’s Registration Statement on Form S-8, filed June 22, 2007. 
(14)
Incorporated by reference from the registrant’s Report on Form 8-K, dated November 22, 2010 and filed November 29, 2010. 
(15)
Incorporated by reference from the registrant's Report on Form 10-K for the year ended December 31, 2010, filed April 15, 2011.
(16)
Incorporated by reference from the registrant’s Report on Form 8-K, dated July 8, 2011 and filed July 13, 2011.
(17)
Incorporated by reference from the registrant’s Report on Form 8-K, dated and filed July 29, 2011.
(18)
Incorporated by reference from the registrant’s Report on Form 8-K, dated December 23, 2011 and filed December 28, 2011.
(19)
Incorporated by reference from the registrant's Report on Form 10-K for the year ended December 31, 2011, filed March 16, 2012.

 
 

3
 
 

 
SIGNATURES
 
 
        In accordance with the requirements of Section 13 on 15(k) of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf on April 9, 2012 by the undersigned thereto.
 
 
ASPENBIO PHARMA, INC.
 
 
/s/ Stephen T. Lundy 
Stephen T. Lundy ,
Chief Executive Officer
 
 
/s/ Jeffrey G. McGonegal
Jeffrey G. McGonegal,
Chief Financial Officer


 


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