PBSV 10-K/A
Pharma-Bio Serv, Inc. (PBSV)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
(Amendment No. 1)
(Mark One)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from _____________ to ______________
Commission File No.
(Exact Name of Registrant as Specified in Its Charter) |
(State or Other Jurisdiction of Incorporation or Organization) | (IRS Employer Identification No.) |
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(Address of Principal Executive Offices) |
| (Zip Code) |
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act: None
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
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Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $0.0001 per share
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐
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.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ |
☒ | Smaller reporting company | ||
Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to § 240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes
The aggregate market value of common stock held by non-affiliates of the registrant, based on the closing price for the registrant’s common stock on April 30, 2022 (the last business day of the second quarter of the registrant’s current fiscal year), was $
The number of shares of the registrant’s common stock outstanding as of January 25, 2023 was
PCAOB ID
Location:
Explanatory Note
This Annual Meeting on Form 10-K/A is being filed by Pharma-Bio Serv, Inc. (the “Company”) to amend the Annual Report on Form 10-K for the year ended October 31, 2022 filed by the Company with the Securities and Exchange Commission (the “SEC”) on January 30, 2023 to include the information required to be disclosed by Part III, Items 10-14 of Form 10-K.
PHARMA-BIO SERV, INC.
ANNUAL REPORT ON FORM 10-K/A
FOR THE YEAR ENDED OCTOBER 31, 2022
TABLE OF CONTENTS
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
(a) Identification of Directors.
Name |
| Age |
|
| Positions with the Company |
| Director Since |
| Class (4) | ||
Kirk Michel(1),(2) |
|
| 67 |
|
| Chairman of the Board |
| 2006 |
| Class II | |
Dov Perlysky(2),(3) |
|
| 60 |
|
| Director |
| 2004 |
| Class II | |
Howard Spindel(1),(3) |
|
| 77 |
|
| Director |
| 2006 |
| Class III | |
Irving Wiesen(1),(2),(3) |
|
| 68 |
|
| Director |
| 2006 |
| Class I |
________________
(1) | Member of the Audit Committee and Compensation Committee. |
(2) | Member of the Mergers and Acquisition Committee. |
(3) | Member of the Nominating and Corporate Governance Committee. |
(4) | Our Board of Directors (“Board”) is divided into three separate classes, as nearly equal in number as possible, with one class being elected each year to serve a staggered three year-term. Class I directors are serving until the 2023 Annual Meeting of Stockholders, Class II directors are serving until the 2024 Annual Meeting of Stockholders and Class III directors are serving until the 2025 Annual Meeting of Stockholders.” |
Kirk Michel, a director since 2006 and Chairman of the Board since January 2021, is the founder and a managing director of KEMA Advisors, Inc. (“KEMA”). Founded in 2000, KEMA is a boutique investment banking firm located in Charlotte, North Carolina. KEMA provides corporate finance advisory services to middle market companies and governmental agencies. Prior to KEMA, from 1995 to 2000, Mr. Michel was the co-founder and a managing director of Bahia Group Holdings, LLC, which provided corporate finance, public finance and merger and acquisition services to middle market companies and governmental agencies. Mr. Michel holds a M.B.A. degree in Finance and Accounting from the Columbia University Graduate School of Business and a B.A. in Economics from Northwestern University.
Mr. Michel brings extensive leadership, business, and finance experience to the Board. His experience as an investment banker has given him broad understanding and expertise, particularly relating to business and finance matters.
Dov Perlysky, a director since 2004, has been the managing member of Nesher, LLC, a private investment firm since 2000. From 1998 until 2002, Mr. Perlysky was a vice president in the private client group of Laidlaw Global Securities, a registered broker-dealer. Mr. Perlysky was a director of Enzo Biochem, Inc., a growth-oriented life sciences and clinical laboratory company listed on the New York Stock Exchange, until January 2022, a director of Highlands Bancorp, Inc., a New Jersey community bank until its sale to Lakeland Bank in 2019 and a director of Engex, Inc., a closed end investment company until its dissolution in 2018. He received his B.S. in Mathematics and Computer Science from the University of Illinois in 1985 and a Masters in Management from the JL Kellogg Graduate School of Northwestern University in 1991.
Mr. Perlysky brings extensive leadership and business experience, as well as an in-depth understanding of the Company’s history, as the former president of the Company from 2004 to 2006, and tremendous knowledge of our business and the pharmaceutical industry, to the Board.
Howard Spindel, a director since 2006, has been a consultant with Integrated Management Solutions, a securities industry consulting and recruitment firm which he founded, since 1985. In this capacity, he has also acted as a financial and operations principal, general securities principal, registered representative and options principal for several broker-dealers during this period. He was a director of Engex, Inc., a closed end investment company until its dissolution in 2018. Mr. Spindel received a B.S (Accounting) degree from Hunter College and is a member of the American Institute of Certified Public Accountants and of the New York State Society of Certified Public Accountants.
Mr. Spindel brings extensive leadership, business, and accounting experience to the Board. His experience as a consultant, certified public accountant and board member to other companies has given him broad understanding and expertise, particularly relating to business, accounting and finance matters.
Irving Wiesen, a director since 2006, has practiced as an attorney specializing in food and drug law and regulation in the pharmaceutical and medical device industries for over forty years. For more than the past ten years he has been of counsel to the New York law firms, Ullman, Shapiro and Ullman, LLP and Cohen, Tauber, Spievack & Wagner. Prior to that, Mr. Wiesen was a partner in the New York food and drug law firm, Bass & Ullman, and also served as division counsel of Boehringer Ingelheim Pharmaceuticals, Inc. Mr. Wiesen represents pharmaceutical, medical device and biotechnology companies in all aspects of Food and Drug Administration regulation, corporate practice and compliance, litigation and allied commercial transactions. Mr. Wiesen received his J.D. degree from the New York University School of Law and holds an M.A. in English Literature from Columbia University and a B.A., cum laude, from Yeshiva University.
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Mr. Wiesen brings extensive leadership, business, and legal experience to the Board. He has practiced as an attorney specializing in food and drug law and regulation in the pharmaceutical and medical device industries for over thirty years. His experience as a practicing lawyer in the pharmaceutical and medical device industries has given him broad understanding and expertise, particularly relating to legal and industry matters impacting the Company.
(b) Identification of Executive Officers.
Name |
| Age |
| Position |
Victor Sanchez |
| 52 |
| Chief Executive Officer, President and President of European Operations |
Pedro J. Lasanta |
| 63 |
| Chief Financial Officer, Vice President - Finance and Administration and Secretary |
Victor Sanchez has served as our Chief Executive Officer and President since January 1, 2015 and as the President of the European Operations of the Company since January 2011. Prior to joining the Company, he served as Operations Manager in the LOCM and OSD divisions of Merck Sharp & Dohme, a pharmaceutical company, in Madrid, Spain from April 2010 to January 2011 and as Operations Manager of the LOCM division of Schering-Plough S.A., a pharmaceutical company, in Madrid, Spain, from September 2004 to April 2010. He served as Quality Control Validations Manager for Schering-Plough Products, LLC, a pharmaceutical company (“Schering-Plough”), in Puerto Rico from December 2000 to August 2004 and as Quality Control Laboratory Supervisor of Schering-Plough from April 1996 to December 2000. Mr. Sanchez holds a Bachelor of Science in Chemistry, summa cum laude, and a M.B.A. in Industrial Management, cum laude, from the Interamerican University of Puerto Rico. He holds a Post Graduate Diploma in Pharmaceutical Validation Technology from the Dublin Institute of Technology, Ireland. Mr. Sanchez is a chemist licensed by the Puerto Rico State Department and a member of the American Chemical Society, the Parenteral Drug Association, the Regulatory Affairs Professional Society, and the International Society for Pharmaceutical Engineers.
Pedro J. Lasanta has served as our Chief Financial Officer and Vice President - Finance and Administration since November 2007, and our Secretary since December 1, 2014. From 2006 until October 2007, Mr. Lasanta was in private practice as an accountant, tax and business counselor. From 1999 until 2006, Mr. Lasanta was the Chief Financial Officer for Pearle Vision Center PR, Inc. In the past, Mr. Lasanta was also an audit manager for Ernst & Young, formerly Arthur Young & Company. He is a cum laude graduate in business administration (accounting) from the University of Puerto Rico. Mr. Lasanta is a Certified Public Accountant. In 2012, he was awarded the Puerto Rico Manufacturers Association (North Region) Service Manager of the Year. Mr. Lasanta served as a Member of the Puerto Rico District Export Council for the U.S. Department of Commerce from January 2014 to December 2017.
(c) Identification of Certain Significant Employees
Not applicable.
(d) Family Relationships
There are no family relationships among our executive officers and directors.
(e) Business Experience
The business experience of each of our current directors and executive officers is set forth in Part III, Item 10(a), ”Identification of Directors” and Part III, Item 10(b), ”Identification of Executive Officers,” respectively, of this Annual Report on Form 10-K/A.
The directorships currently held, and held during the past five years, by each of our directors in any company with a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, or subject to Section 15 of such Act or any company registered as an investment company under the Investment Company Act of 1940, as amended, are set forth in Part III, Item 10(a), ”Identification of Directors” of this Annual Report on Form 10-K/A.
(f) Involvement in Certain Legal Proceedings
To the best of our knowledge, none of our directors or executive officers that served during the year ended October 31, 2022 (“Fiscal 2022”) or currently has been involved during the past ten years in any legal proceedings required to be disclosed pursuant to Item 401(f) of Regulation S-K.
(g) Promoters and Control Persons
Not applicable.
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(h) and (i) Audit Committee and Audit Committee Financial Expert
The Company has separately designated a standing Audit Committee established in accordance with Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended. The members of the standing Audit Committee are Howard Spindel, Chairman, Kirk Michel and Irving Wiesen, all of whom are independent directors as determined by the Nasdaq Rules. The responsibilities and duties of the Audit Committee consist of but are not limited to: (1) overseeing the financial reporting process; (2) meeting with our external auditors regarding audit results; (3) engaging and ensuring independence of our outside audit firm and (4) reviewing the effectiveness of the Company’s internal controls.
Our Board has determined that Mr. Spindel qualifies as an ”Audit Committee financial expert” within the meaning of applicable regulations of the Securities and Exchange Commission, promulgated pursuant to the Sarbanes-Oxley Act of 2002. Our board of directors has adopted a written charter for the Audit Committee which the Audit Committee reviews and reassesses for adequacy on an annual basis. A copy of the Audit Committee’s charter is located on our website at www.pharmabioserv.com.
(j) Procedures for Stockholder Nominations to the Board of Directors
No material changes to the procedures for nominating directors by our stockholders were made during Fiscal 2022.
Code of Conduct and Ethics
We have adopted a Code of Ethics that applies to all our senior management, including our principal executive officer, principal financial officer and principal accounting officer, and directors. A copy of our Code of Ethics is incorporated by reference as Exhibit 14.1 to this Annual Report on Form 10-K/A. We intend to post amendments to or waivers from our Code of Ethics (to the extent applicable to our Principal Executive Officer, Principal Financial Officer, Principal Accounting Officer or controller, or persons performing similar functions) on our website at www.pharmabioserv.com. Our website is not part of this report.
ITEM 11. EXECUTIVE COMPENSATION.
Summary Compensation Table
The following table provides the compensation paid to our principal executive officer and other executive officers whose total compensation exceeded $100,000 for the fiscal years ended October 31, 2022 and 2021 (the “Named Executive Officers”).
Name and Principal Position |
| Fiscal Year |
| Salary |
|
| Bonus (1) |
|
| Option Awards($) (2) |
|
| All Other Compensation |
|
| Total |
| |||||
Victor Sanchez |
| 2022 |
| $ | 231,000 |
|
| $ | 53,600 |
|
| $ | 14,640 |
|
| $ | 14,300 | (3) |
| $ | 313,540 |
|
President and Chief Executive Officer |
| 2021 |
| $ | 231,000 |
|
| $ | 100,600 |
|
| $ | - |
|
| $ | 14,950 | (3) |
| $ | 346,550 |
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Pedro Lasanta |
| 2022 |
| $ | 175,000 |
|
| $ | 33,600 |
|
| $ | 14,640 |
|
| $ | - |
|
| $ | 223,240 |
|
Chief Financial Officer, Vice President-Finance and Administration and Secretary |
| 2021 |
| $ | 175,000 |
|
| $ | 75,600 |
|
| $ | - |
|
| $ | - |
|
| $ | 250,600 |
|
________________
(1) | Represents bonus for services in fiscal years 2022 and 2021, which were paid in December 2022 and December 2021, respectively, and a statutory holiday bonus of $600 paid in December 2022 and 2021, respectively. |
(2) | Amounts shown do not reflect compensation received by the executive officers. Instead, the amounts shown reflect the grant date fair value of options granted to the executive officers determined pursuant to FASB ASC Topic 718. The assumptions used to calculate the value of the option awards are set forth under Note J – Stock Options and Stock Based Compensation in our audited financial statements for the fiscal year ended October 31, 2022 included in our Annual Report on Form 10-K for the fiscal year ended October 31, 2022. |
(3) | Represents health insurance plan expenses incurred pursuant to Mr. Sanchez’s employment agreement. |
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Outstanding Equity Awards at Fiscal Year-End Table
The following table summarizes information regarding equity-based awards held by our Named Executive Officers as of October 31, 2022.
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| Option Awards |
| Stock Awards |
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Name |
| Number of Securities Underlying Unexercised Options Exercisable |
|
| Number of Securities Underlying Unexercised Options Unexercisable |
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| Option Exercise Price |
|
| Option Expiration Date |
| Number of Shares or Units of Stock that have not Vested |
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| Market Value of Shares or Units of Stock that have not Vested |
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| Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights that have not Vested |
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| Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights that have not Vested |
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Victor Sanchez (1) |
|
| - |
|
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| 25,000 |
|
| $ | 0.99 |
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| Dec. 9, 2026 |
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| - |
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| - |
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| - |
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| - |
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Pedro Lasanta (2) |
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| - |
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| 25,000 |
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| $ | 0.99 |
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| Dec. 9, 2026 |
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| 100,000 |
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| - |
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| $ | 0.88 |
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| Oct. 4, 2024 |
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| - |
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| - |
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| - |
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| - |
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________________
(1) | Represents options to purchase 25,000 shares of common stock which were granted on December 9, 2021. These options vest in three equal annual installments beginning on December 9, 2022. |
(2) | Represents options to purchase 25,000 and 100,000 shares of common stock which were granted on December 9, 2021 and October 4, 2019, respectively. These options vest in three equal annual installments beginning on December 9, 2022 and October 4, 2020, respectively. |
Employment Agreements
Victor Sanchez – Employment Agreement
On January 1, 2015, the Company entered into an Employment Agreement with Victor Sanchez, the Chief Executive Officer, President, and President of Europe Operations of the Company (the ”Employment Agreement”). Pursuant to the Employment Agreement, Mr. Sanchez is entitled to receive an annual base salary of $220,000 and such discretionary bonus, stock options and other equity-based incentives as determined by the Compensation Committee of the Company. Also, Mr. Sanchez is entitled to receive benefits provided to all other executive officers of the Company. Effective November 2, 2020, Mr. Sanchez’s salary was increased to $231,000.
Also, pursuant to the Employment Agreement, if the Company terminates the Employment Agreement and Mr. Sanchez’s employment other than for death, disability or cause, the Company shall (1) pay to Mr. Sanchez within 30 days after the date of termination (a) a lump-sum severance payment in an amount equivalent to one (1) year of salary at the time of the termination, less legal withholdings, or the severance established by PR labor law No. 80 of May 30, 1976, known as the ”Wrongful Discharge Act” (“Ley de Despido Injustificado”), whichever amount is higher; (b) any bonuses that he may have earned up to the date of his termination, and (c) the value of any unused accrued vacation days, (2) provide executive one (1) year health coverage for the executive and dependents, and (3) provide that any restricted stock units, options or other similar granted awards held by him will become vested and exercisable for a three month period following the termination. Also, pursuant to the Employment Agreement, in the event of a change of control of the Company in connection with a sale, merger or acquisition of the Company or the Company ceases to be a public company, and is no longer subject to the reporting obligations of the Securities Exchange Act of 1934, as amended, any restricted stock units, options or other similar granted awards held by Mr. Sanchez will become vested and exercisable immediately prior to such event. If the Employment Agreement is terminated for death, disability or cause, no additional compensation will be payable subsequent to the date of such termination. The Employment Agreement also includes standard provisions relating to non-competition, non-solicitation and confidentiality.
Pedro Lasanta – Employment Agreement
On November 5, 2007, we entered into an employment agreement with Pedro Lasanta, our Chief Financial Officer and Vice President – Finance and Administration and Secretary, for a one year term pursuant to which we paid Mr. Lasanta an annual salary of $100,000 plus a monthly car allowance of $500. Mr. Lasanta’s employment agreement has a non-competition provision pursuant to which he agrees that during the term of the agreement and for one year thereafter, Mr. Lasanta will not, directly or indirectly, engage in a competing business or solicit any customer or seek to persuade any customer to reduce the amount of business it does with us or seek to persuade any employee to leave our employment.
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On December 17, 2008, we entered into an amendment to the employment agreement with Mr. Lasanta pursuant to which the term of the contract was extended indefinitely. The amended employment agreement provides that we will pay Mr. Lasanta an annual salary of $110,000 and an annual bonus in cash or Company stock options to be granted based on performance metrics to be established. Pursuant to the amended employment agreement, we will grant Mr. Lasanta options to purchase 30,000 shares of Company stock having an exercise price equal to fair market value on the date of grant and vesting in three equal annual installments beginning one year from November 1, 2008. In addition, upon termination of Mr. Lasanta’s employment for reasons other than those set forth in his amended employment agreement, Mr. Lasanta will receive a lump-sum severance payment in an amount equivalent to six months of his salary at the time of the termination, less legal withholdings, or the severance established by Ley de Despido Injustificado, whichever amount is higher. All other terms and conditions of Mr. Lasanta’s employment agreement remain the same.
On March 11, 2009, upon the approval of the Company’s Compensation Committee, the Company entered into an Amendment to Employment Agreement with Mr. Lasanta to reduce Mr. Lasanta’s current annual base salary from $110,000 to $106,000 and to eliminate Mr. Lasanta’s automobile allowance effective March 1, 2009. Effective January 1, 2010, the Company amended the Employment Agreement of Mr. Lasanta, dated November 5, 2007, to restore Mr. Lasanta’s annual base salary to $110,000. On January 31, 2012, the Company amended the Employment Agreement of Mr. Lasanta, dated November 5, 2007, to increase Mr. Lasanta’s annual base salary from $110,000 to $125,000. On December 31, 2012, the Company amended the Employment Agreement of Mr. Lasanta, dated November 5, 2007, to increase Mr. Lasanta’s annual base salary from $125,000 to $150,000 as of January 1, 2013. All other terms and conditions of Mr. Lasanta’s employment agreement, as amended, remain the same.
On February 17, 2014, the Company amended the Employment Agreement of Mr. Lasanta, dated November 5, 2007, to increase Mr. Lasanta’s salary to $160,000, effective January 1, 2014 (the “Lasanta Amendment”). Also, pursuant to the Lasanta Amendment, if the Company terminates the employment agreement of Mr. Lasanta other than for death, disability or cause, the Company shall (1) pay to the executive within 30 days after the date of termination (a) a lump-sum severance payment in an amount equivalent to one (1) year of salary at the time of the termination, less legal withholdings, or the severance established by Ley de Despido Injustificado, whichever amount is higher; (b) any bonuses that the executive may have earned up to the date of his termination, and (c) the value of any unused accrued vacation days, (2) provide executive one (1) year health coverage for the executive and dependents, and (3) provide that any restricted stock units, options or other similar granted awards held by the executive will become vested and exercisable for a three month period following the termination. Also, pursuant to the Lasanta Amendment, in the event of a change of control of the Company in connection with a sale, merger or acquisition of the Company or the Company ceases to be a public company, and is no longer subject to the reporting obligations of the Securities Exchange Act of 1934, as amended, any restricted stock units, options or other similar granted awards held by Mr. Lasanta will become vested and exercisable immediately prior to such event.
On October 7, 2019, the Company amended the Employment Agreement of Mr. Lasanta to increase his salary from $160,000 to $175,000, effective October 7, 2019.
Director Compensation
Effective January 1, 2014, and as amended on March 16, 2022, the Compensation Committee of the Board approved the following compensation to our independent directors (i) a $12,500 quarterly retainer fee and (ii) an automatic annual stock option grant of 20,000 shares to be granted on the tenth day of January each year. Also, each independent director received an option to purchase 25,000 shares of the Company’s common stock on the date of his first election.
The following table summarizes the compensation earned and paid to our directors for the year ended October 31, 2022.
Name |
| Fees Earned (1) |
|
| Option Awards (2)(3) |
|
| Total |
| |||
Kirk Michel |
| $ | 50,000 |
|
| $ | 11,053 |
|
| $ | 61,053 |
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Dov Perlysky |
| $ | 50,000 |
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| $ | 11,053 |
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| $ | 61,053 |
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Howard Spindel |
| $ | 50,000 |
|
| $ | 11,053 |
|
| $ | 61,053 |
|
Irving Wiesen |
| $ | 50,000 |
|
| $ | 11,053 |
|
| $ | 61,053 |
|
________________
(1) | During the fiscal year ended October 31, 2022, all members of the Board of Directors individually earned and were paid fees of $50,000 each. |
(2) | Amounts shown do not reflect compensation received by the directors. Instead, the amounts shown reflect the grant date fair value of options granted to the directors determined pursuant to FASB ASC Topic 718. The assumptions used to calculate the value of the option awards are set forth under Note J – Stock Options and Stock Based Compensation in our audited financial statements for the fiscal year ended October 31, 2022 included in our Annual Report on Form 10-K for the fiscal year ended October 31, 2022. |
(3) | The options grants have a term of five years from the grant date and an exercise price equal to the fair market value on the date of grant. The options are exercisable as to 50% of the shares six months from the date of grant and as to the remaining 50% 18 months from the date of grant. |
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As of October 31, 2022, each of the below named directors held the following number of options to purchase shares of common stock:
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| OPTIONS GRANTED TO |
| |||||||||||||||
Grant Date |
| Exercise Price |
|
| H. Spindel |
|
| K. Michel |
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| I. Wiesen |
|
| D. Perlysky |
| |||||
1/10/2018 |
| $ | 0.52 |
|
|
| 20,000 |
|
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| - |
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| - |
|
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| - |
|
1/10/2019 |
| $ | 1.00 |
|
|
| 20,000 |
|
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| 20,000 |
|
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| 20,000 |
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| 20,000 |
|
1/10/2020 |
| $ | 0.76 |
|
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| 20,000 |
|
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| 20,000 |
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| 20,000 |
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| 20,000 |
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1/10/2021 |
| $ | 1.40 |
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| 20,000 |
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| 20,000 |
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| 20,000 |
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| 20,000 |
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1/10/2022 |
| $ | 0.97 |
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| 20,000 |
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| 20,000 |
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| 20,000 |
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| 20,000 |
|
Compensation Committee
The members of the Compensation Committee are Kirk Michel, Chairman, Howard Spindel and Irving Wiesen, all of whom are independent directors as determined by the Nasdaq Rules. The responsibilities and duties of the Compensation Committee consist of, but are not limited to: (1) approving salaries and incentive compensation of executive officers, as well as the compensation of our Board members; (2) reviewing compensation plans, policies and benefit programs for employees, generally and (3) administering the employee stock option and benefit plans, when designed by the Board. While performing its duties, the Compensation Committee receives substantial input from the Chief Executive Officer regarding the appropriate level and type of compensation for our executives, excluding the compensation paid to the Chief Executive Officer. The Compensation Committee has determined that no risks exist rising from the Company’s compensation policies and practices for its employees that are reasonably likely to have a material adverse effect on the Company. The Compensation Committee has not retained a compensation consultant to review our policies and procedures with respect to executive compensation. A copy of the Compensation Committee’s charter is located on our website at www.pharmabioserv.com.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
The following table provides information as to shares of common stock beneficially owned as of February 19, 2023 by:
· | each director; |
· | each officer named in the summary compensation table (“Named Executive Officers”); |
· | each person owning of record or known by us, based on information provided to us by the persons named below, to own beneficially at least 5% of our common stock; and |
· | all directors and executive officers as a group. |
| 8 |
| Table of Contents |
As of February 19, 2023, the Company had 22,943,121 shares of common stock outstanding. As used herein, the term beneficial ownership with respect to a security is defined by Rule 13d-3 under the Securities Exchange Act of 1934 as consisting of sole or shared voting power (including the power to vote or direct the vote) and/or sole or shared investment power (including the power to dispose or direct the disposition of) with respect to the security through any contract, arrangement, understanding, relationship or otherwise, including a right to acquire such power(s) during the next 60 days. Unless otherwise noted, beneficial ownership consists of sole ownership, voting and investment rights and the address for each person is c/o Pharma-Bio Serv, Inc., the Pharma-Bio Serv Building, #6 Road 696, Dorado, Puerto Rico, 00646.
Name |
| Shares of Common Stock Beneficially Owned at February 19, 2023 |
|
| Percentage |
| ||
Directors and Executive Officers |
|
|
|
|
|
| ||
Dov Perlysky(1) |
|
| 2,051,633 |
|
|
| 8.9 | % |
Kirk Michel(2) |
|
| 445,742 |
|
|
| 1.9 | % |
Howard Spindel(3) |
|
| 111,372 |
|
| * | % | |
Irving Wiesen(4) |
|
| 114,335 |
|
| * |
| |
Victor Sanchez(5) |
|
| 18,549 |
|
| * |
| |
Pedro Lasanta(6) |
|
| 202,877 |
|
| * |
| |
All Directors and Executive Officers as a group |
|
|
|
|
|
|
|
|
(six persons)(7) |
|
| 2,944,508 |
|
|
| 12.6 | % |
5% or Greater Stockholders |
|
|
|
|
|
|
|
|
Elizabeth Plaza(8) |
|
| 3,852,921 |
|
|
| 16.8 | % |
Venturetek, L.P.(9) |
|
| 3,132,932 |
|
|
| 13.7 | % |
Ramon Luis Dominguez Thomas (10) |
|
| 2,060,060 |
|
|
| 9.0 | % |
Addison McKinley Levi III (11) |
|
| 2,050,059 |
|
|
| 8.9 | % |
Adam Hirsh (12) |
|
| 1,172,179 |
|
|
| 5.1 | % |
________________
* | Less than 1%. |
|
|
(1) | The shares of common stock beneficially owned by Mr. Perlysky include (i) 44,288 shares directly owned, (ii) 1,164,554 shares of common stock owned by Krovim, LLC, (iii) 772,791 shares owned by LDP Family Partnership and (iv) 70,000 shares of common stock issuable upon exercise of options, which are exercisable as of February 19, 2023. |
|
|
(2) | The shares of common stock beneficially owned by Mr. Michel consist of (i) 35,036 shares directly owned, (ii) 70,000 shares of common stock issuable upon exercise of options, which are exercisable as of February 19, 2023, and (iii) 340,706 shares of common stock owned by KEMA Advisors, of which Mr. Michel is managing director. |
|
|
(3) | The shares of common stock owned by Mr. Spindel represent 41,372 shares owned by his spouse and 70,000 shares issuable upon exercise of options, which are exercisable as of February 19, 2023. Mr. Spindel disclaims beneficial ownership of the shares held by his spouse. |
|
|
(4) | The shares of common stock owned by Mr. Wiesen represent 44,335 shares directly owned and 70,000 shares issuable upon exercise of options, which are exercisable as of February 19, 2023. |
|
|
(5) | The shares of common stock owned by Mr. Sanchez represent 10,224 shares directly owned and 8,325 shares issuable upon exercise of options, which are exercisable as of February 19, 2023. |
|
|
(6) | The shares of common stock owned by Mr. Lasanta represent 94,552 shares directly owned and 108,325 shares issuable upon exercise of options, which are exercisable as of February 19, 2023. |
|
|
(7) | Includes 396,650 shares issuable upon the exercise of options, which are exercisable as of February 19, 2023. |
|
|
(8) | This information was obtained from the Form 4 filed by Elizabeth Plaza on June 28, 2021. The postal address stated on Ms. Plaza’s Form 4 is Calle Marginal Costa De Oro C-3, Suite 2, Dorado, Puerto Rico 00646. |
|
|
(9) | This information was obtained from Amendment No. 4 to Schedule 13 D/A filed by Venturetek, L.P. (“Venturetek”) on September 6, 2011. This information does not include 1,565,058 shares underlying warrants, which warrants expired in January 2011, listed in the Schedule 13 D/A filed on January 5, 2011. Mr. David Selengut is the manager of TaurusMax LLC, which is the general partner of Venturetek. The postal address stated on Venturetek, L.P.’s Schedule 13D/A is 150 East 42nd Street, New York, NY 10017. |
|
|
(10) | This information was obtained from a Schedule 13D filed by Ramon Luis Dominguez Thomas on March 27, 2014. The postal address stated on Mr. Dominguez Thomas’ Schedule 13D is c/o San Juan Holdings, Inc., MCS Plaza, Suite #305, 255 Ponce de Leon Avenue, San Juan, PR, 00917. |
|
|
(11) | This information was obtained from a Schedule 13D filed by Addison McKinley Levi III on March 27, 2014. The postal address stated on Mr. Levi’s Schedule 13D is 6414 Stanton Drive, Apartment #208, Charlotte, North Carolina 28216. |
|
|
(12) | This information was obtained from a Schedule 13G filed by Adam Hirsh on October 15, 2019. The postal address stated on Mr. Hirsh’s Schedule 13G is 1021 Saturn Court Incline Village, Nevada 89451. |
| 9 |
| Table of Contents |
Equity Compensation Plan Information
The following table summarizes the equity compensation plans under which our securities may be issued as of October 31, 2022.
Plan Category |
| Number of securities to be issued upon exercise of outstanding options |
|
| Weighted-average exercise price per share of outstanding options |
|
| Number of securities remaining available for future issuance under equity compensation plans |
| |||
Equity compensation plans approved by security holders: |
|
|
|
|
|
|
|
|
| |||
2014 Long-Term Incentive Plan |
|
| 500,000 |
|
| $ | 0.9764 |
|
|
| 1,280,000 |
|
Equity compensation plans not approved by security holders |
|
| - |
|
| $ | - |
|
|
| - |
|
Total |
|
| 500,000 |
|
|
|
|
|
|
| 1,280,000 |
|
________________
(1) | The 2014 Long-Term Incentive Plan was approved by stockholders in April 2014. |
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
Related Party Transactions
The Company conducts its headquarters administrative operations in office facilities located in Dorado, Puerto Rico (the “Office Facilities”). The Office Facilities are leased from an affiliate of our past Chairman of the Board and greater than 5% stockholder. The lease agreement was for an initial five-year term commencing January 1, 2016, with a renewal option for five additional years which was exercised and became effective January 1, 2021. The lease agreement, as amended, has monthly rental payments of $14,561 through the end of the renewal option term. The lease agreement also requires the payment of utilities, property taxes, insurance and expenses incurred by the affiliate in connection with the maintenance of common areas.
On December 31, 2013, the Company entered into a Consulting Agreement with both our former Chairman and a company affiliated with our former Chairman and greater than 5% stockholder (the “Consultant”), effective as of January 1, 2014. Pursuant to the Consulting Agreement as amended, the Consultant consulted with the Board regarding the Company’s strategic initiatives, company services, management, operations and other matters as requested from time to time by the Board. The compensation paid under this agreement was $67,400 for the year ended October 31, 2021. The Consulting Agreement ended pursuant to its terms on December 31, 2020.
On November 28, 2014, Pharma-Bio PR entered into an Independent Contractor Agreement with Nelida Plaza, the sister of our former Chairman of the Board and greater than 5% stockholder, pursuant to which Ms. N. Plaza provided independent services with project deliverables as requested by Pharm-Bio PR at a rate ranging from $90 to $125 per hour. This agreement was terminated in January 2022. Pursuant to the Independent Contractor Agreement, during the year ended October 31, 2021, Ms. N. Plaza was compensated $215,600, while no compensation was paid during the year ended October 31, 2022 as she did not provide services to the Company for that period.
Director Independence
The Board has determined that the following directors are independent pursuant to Nasdaq Rule 5605 (“Nasdaq Rules”) (even though the Company’s securities are not traded on the Nasdaq market): Kirk Michel, Dov Perlysky, Howard Spindel and Irving Wiesen. The members of the Audit Committee are Howard Spindel (Chair), Kirk Michel and Irving Wiesen, all of whom are independent directors as determined by the Nasdaq Rules. The members of the Compensation Committee are Kirk Michel (Chair), Howard Spindel and Irving Wiesen, all of whom are independent directors as determined by the Nasdaq Rules. The members of the Nominating Committee are Irving Wiesen (Chair), Dov Perlysky and Howard Spindel, all of whom are independent as determined by the Nasdaq Rules.
| 10 |
| Table of Contents |
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.
We were billed by Crowe PR PSC (formerly known as Horwath Velez & Co. PSC) (“Crowe”) in 2022 and 2021 as follows:
Description of services: |
| Fiscal 2022 |
|
| Fiscal 2021 |
| ||
Audit fees |
| $ | 58,990 |
|
| $ | 52,670 |
|
Audit-related fees |
|
| 32,390 |
|
|
| 31,085 |
|
Tax fees |
|
| - |
|
|
| - |
|
All other services |
|
| 7,150 |
|
|
| 6,500 |
|
Total Fees |
| $ | 98,530 |
|
| $ | 90,255 |
|
Audit fees above are professional services associated with the integrated audit of our consolidated financial statements. Audit-related fees are primarily attributable to services rendered in connection to reviews of our quarterly condensed financial statements. All other fees are primarily attributable to retirement plan compliance audit services.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Auditors
The Audit Committee’s policy is to pre-approve all audit and permissible non-audit services provided by the independent public accountants. These services may include audit services, audit-related services, tax services and other services. Pre-approval is generally provided for up to one year and any pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. Crowe and management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent public accountants in accordance with this pre-approval, and the fees for the services performed to date. The Audit Committee may also pre-approve particular services on a case by case basis. The Audit Committee approved one hundred percent (100%) of all services provided by Crowe during Fiscal 2022 and 2021.
The Audit Committee has considered the nature and amount of the fees billed by Crowe, and believes that the provision of the services for activities unrelated to the audit is compatible with maintaining Crowe’s independence.
| 11 |
| Table of Contents |
PART IV
ITEM 15. EXHIBIT AND FINANCIAL STATEMENT SCHEDULES.
The following documents are filed as a part of this Annual Report on Form 10-K.
| 1. | All Financial Statements: Consolidated Financial Statement are included in our Annual Report on Form 10-K filed with the Commission on January 30, 2023 immediately following the signature pages of the report. See Index to Consolidated Financial Statements on page F-1 on our Annual Report on Form 10-K filed with the Commission on January 30, 2023. |
|
|
|
| 2. | Financial Statement Schedules: None. |
|
|
|
| 3. | Exhibits. The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Commission as indicated in the description of each. |
Exhibit |
|
| Incorporated By Reference | ||||||||
Number |
| Exhibit Description |
| Form |
| File Number |
| Exhibit |
| Filing Date | |
|
|
|
|
|
|
|
|
|
| ||
|
| 8-K |
| 000-50956 |
| 99.1 |
| 5/1/2006 | |||
|
|
|
|
|
|
|
|
|
|
|
|
| Certificate of Amendment to the Certificate of Incorporation |
| 8-K |
| 000-50956 |
| 3.1 |
| 4/12/2013 | ||
|
|
|
|
|
|
|
|
|
|
| |
|
| 8-K |
| 000-50956 |
| 3.1 |
| 2/9/2023 | |||
|
|
|
|
|
|
|
|
|
|
| |
|
| 10-K |
| 000-50956 |
| 4.1 |
| 1/29/2020 | |||
|
|
|
|
|
|
|
|
|
|
| |
| Employment Agreement, effective January 1, 2015, between Pharma-Bio Serv, Inc. and Victor Sanchez |
| 8-K |
| 000-50956 |
| 10.2 |
| 1/5/2015 | ||
|
|
|
|
|
|
|
|
|
| ||
| Employment Agreement dated November 5, 2007 between the Pharma-Bio Serv, Inc. and Pedro Lasanta |
| 10-K |
| 000-50956 |
| 10.8 |
| 1/29/2009 | ||
|
|
|
|
|
|
|
|
|
|
| |
| Amendment to Employment Agreement dated December 17, 2008 between the Registrant and Pedro Lasanta |
| 8-K |
| 000-50956 |
| 99.1 |
| 12/23/2008 | ||
|
|
|
|
|
|
|
|
|
|
| |
|
| 8-K |
| 000-50956 |
| 10.3 |
| 3/17/2009 | |||
|
|
|
|
|
|
|
|
|
|
| |
|
| 8-K |
| 000-50956 |
| 10.2 |
| 1/07/2010 | |||
|
|
|
|
|
|
|
|
|
| ||
|
| 8-K |
| 000-50956 |
| 10.1 |
| 2/2/2012 | |||
|
|
|
|
|
|
|
|
|
|
| |
|
| 8-K |
| 000-50956 |
| 10.1 |
| 1/7/2013 | |||
|
|
|
|
|
|
|
|
|
| ||
|
| 8-K |
| 000-50956 |
| 10.2 |
| 2/21/2014 | |||
|
|
|
|
|
|
|
|
|
|
| |
|
| 8-K |
| 000-50956 |
| 10.1 |
| 10/11/2019 | |||
|
|
|
|
|
|
|
|
|
| ||
|
| DEF 14A |
| 000-50956 |
| Appendix C |
| 3/26/2007 |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
| 10-Q |
| 000-50956 |
| 10.4 |
| 3/17/2014 |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
| 8-K |
| 000-50956 |
| 10.1 |
| 5/2/2014 |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
| 10-KSB |
| 000-50956 |
| 14.1 |
| 2/2/2007 |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
| 10-K |
| 000-50956 |
| 21.1 |
| 1/30/2023 |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
| Consent of Crowe PR PSC (formerly known as Horwath Vélez & Co, PSC) |
| 10-K |
| 000-50956 |
| 23.1 |
| 1/30/2023 |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Certification of chief executive officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Certification of chief financial officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
|
|
|
|
|
| |
|
|
|
|
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| ||
|
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|
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|
|
|
|
|
|
101.INS |
| XBRL Instance Document |
| 10-K |
| 000-50956 |
| 101.INS |
| 1/30/2023 | |
101.SCH |
| XBRL Taxonomy Extension Schema |
| 10-K |
| 000-50956 |
| 101.SCH |
| 1/30/2023 |
|
101.CAL |
| XBRL Taxonomy Extension Calculation Linkbase |
| 10-K |
| 000-50956 |
| 101.CAL |
| 1/30/2023 |
|
101.DEF |
| XBRL Taxonomy Extension Definition Linkbase |
| 10-K |
| 000-50956 |
| 101.DEF |
| 1/30/2023 |
|
101.LAB |
| XBRL Taxonomy Extension Label Linkbase |
| 10-K |
| 000-50956 |
| 101.LAB |
| 1/30/2023 |
|
101.PRE |
| XBRL Taxonomy Extension Presentation Linkbase |
| 10-K |
| 000-50956 |
| 101.PRE |
| 1/30/2023 |
|
104* |
| Cover page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) |
|
|
|
| 1 |
|
|
| |
———————
* | Filed herewith |
** | Furnished herewith |
Exhibits 10.8 through 10.19 are management contracts or compensatory plans, contracts or arrangements.
ITEM 16. FORM 10-K SUMMARY.
None.
| 12 |
| Table of Contents |
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.
| PHARMA-BIO SERV, INC. |
| |
|
|
|
|
Dated: February 28, 2023 | By: | /s/ |
|
|
| Name: Pedro J. Lasanta |
|
|
| Chief Financial Officer, Vice President -Finance and Administration and Secretary (Principal Financial and Accounting Officer) |
|
| 13 |