UNITED
STATES
 SECURITIES
AND EXCHANGE COMMISSION
 Washington,
D.C. 20549
  FORM
10-K/A
 (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 September 30, 2009
  or
  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 000-26285
  CNS
RESPONSE, INC.
 (Exact
name of registrant as specified in its charter)
  Delaware
              87-0419387(State or other jurisdiction
              (I.R.S. Employerof incorporation or organization)
              Identification No.)
 85
Enterprise, Suite 410
 Aliso
Viejo, CA 92656
 (Address
of Principal Executive Offices)(Zip Code)
  (714)
545-3288
 (Registrant’s
telephone number, including area code)
 
 Securities
registered pursuant to Section 12(b) of the Act:
 None
  Securities
registered under Section 12(g) of the Exchange 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    
 ̈No     
x
  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    
 ̈No     
x
  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.
 Yes    
xNo     
 ̈
  Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Website, 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    
 ̈No     
x
  Indicate
by check mark 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.
  ̈
  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 “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
 Large
      accelerated filer        ̈
                  Accelerated
      filer  ̈Non-accelerated
      filer       ̈(Do not
      check if 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 Act.)
 Yes    
 ̈No     
x
  The
aggregate market value of the registrant's common stock held by non-affiliates
of the registrant on March 31, 2009, the last business day of the registrant's
most recently completed second fiscal quarter was $13,555,818 (based on the
closing sales price of the registrant's common stock on that date).
 
 At
January 15, 2010, the registrant had 53,567,795 shares of Common Stock, $0.001
par value, issued and outstanding.
  DOCUMENTS
INCORPORATED BY REFERENCE
  None.
  
  STATEMENT
REGARDING AMENDMENT NO. 1
  This
Amendment No. 1 to Form 10-K on Form 10-K/A (this “Amendment”) is being
filed for the purpose of (i) amending Item 5, Market for Registrant’s Common
Equity, Related Stockholder Matters and Issuer Purchases of Securities, to
provide supplemental information relating to closings of our private placement
transaction which occurred subsequent to December 30, 2009, and (ii) restating
Part III of the Annual Report on Form 10-K for the fiscal year ended September
30, 2009, filed with the Securities and Exchange Commission on December 30, 2009
(the “Original Filing”).
  Except as
expressly noted herein, this Amendment does not reflect events occurring after
the December 30, 2009 filing date of our Original Filing, and we do not
undertake to update any item of our Original Filing, except in each case to
reflect the changes discussed in this Amendment. Accordingly, this Amendment
should be read in conjunction with the Original Filing. As a result of these
amendments, we are also filing as exhibits to this Amendment the certifications
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. Because no financial
statements are contained within this Amendment, we are not including
certifications pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
 
 ITEM
5.  Market for Registrant’s Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities.
 
 The following information supplements
the information contained under Item 5 in the Original Filing:
  Third and Fourth
Tranches:  December 31, 2009 and January 4, 2010
  The
Company completed a third and fourth closing of its private placement, on
December 31, 2009 and January 4, 2010, respectively, resulting in gross proceeds
to the Company of approximately $540,000, thereby completing our Private
Placement.
  Pursuant
to Subscription Agreements entered into with the investors, the Company sold 10
Investment Units at $54,000 per Investment Unit. Each “Investment Unit” consists
of 180,000 shares of the Company’s common stock and a five year non-callable
warrant to purchase 90,000 shares of the Company’s common stock at an exercise
price of $0.30 per share.
  After
commissions and expenses, the Company received aggregate net proceeds of
approximately $480,000 in the December 31 and January 4 closings of the Private
Placement.  The Company intends to use the net proceeds from the
Private Placement for general corporate purposes, including clinical trial
expenses, research and development expenses, and general and administrative
expenses, including payment of accrued legal expenses incurred in connection
with successfully defending the Company from actions brought in the Delaware
Court of Chancery by the Company’s former CEO, Leonard Brandt.
  A FINRA
member firm acted as lead placement agent (the “Placement Agent”) in connection
with the Private Placement.  For its services in connection with the
December 31, 2009 closing of the Private Placement, the Placement Agent received
(i) a cash fee of $4,320, (ii) a cash expense allowance of $8,640, and (iii) a
five year non-callable warrant to purchase 14,400 shares of the Company’s common
stock at an exercise price of $.33 per share.
  For its
services in connection with the January 4, 2010 closing of the Private
Placement, the lead Placement Agent received (i) a cash fee of $1,080, (ii) a
cash expense allowance of $2,160, and (iii) a five year non-callable warrant to
purchase 3,600 shares of the Company’s common stock at an exercise price of $.33
per share.
  In
connection with the third and fourth closings of our Private Placement, each
investor who participated in the financing became party to the Registration
Rights agreement described in the Original Filing and will receive the same
rights and benefits as the investors in the earlier closings of our Private
Placement.
  2
  In
issuing the shares and warrants to the investors without registration under the
Securities Act of 1933, as amended (the “Securities Act”), the Company relied
upon one or more of the exemptions from registration contained in Sections 4(2)
of the Securities Act, and in Regulation D promulgated thereunder, as the shares
and warrants were issued to accredited investors, without a view to
distribution, and were not issued through any general solicitation or
advertisement.  The Company made this determination based on the
representations of each investor which included, in pertinent part, that such
investor is an “accredited investor” within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act, that such investor was
acquiring the shares and the warrant for investment purposes for its own
account, and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities
Act, and that such investor understood that the shares, the warrant and the
securities issuable upon exercise thereof may not be sold or otherwise disposed
of without registration under the Securities Act or an applicable exemption
therefrom.
  ITEM 10.
              Directors,
      Executive Officers and Corporate
Governance.
 
 The
following table sets forth the name, age and position of each of our executive
officers and directors as of January 15, 2010.
  Name
                      
                      Age
                      
                      PositionGeorge
      Carpenter
                      
                      51
                      
                      Chairman
      of the Board, Chief Executive Officer and SecretaryDaniel
      Hoffman
                      
                      61
                      
                      President,
      Chief Medical OfficerJohn
      Pappajohn
                      
                      81
                      
                      DirectorDavid
      B. Jones
                      
                      66
                      
                      DirectorJerome
      Vaccaro, M.D.
                      
                      54
                      
                      DirectorDr.
      Henry T. Harbin
                      
                      63
                      
                      DirectorTommy
      Thompson
                      
                      66
                      
                      Director
 George
Carpenter, Chairman of the Board, Chief Executive Officer,
Secretary
  George
Carpenter has served as our Chief Executive Officer since April 10, 2009 and
prior to that date served as our President since October 1, 2007.  As
President, Mr. Carpenter’s primary responsibility involved developing strategy
and commercializing our rEEG technology. From 2002 until he joined CNS, Mr.
Carpenter was the President and CEO of WorkWell Systems, Inc., a national
physical medicine firm that manages occupational health programs for Fortune 500
employers.  Prior to his position at WorkWell Systems, Mr. Carpenter
founded and served as Chairman and CEO of Core, Inc., a company focused on
integrated disability management and work-force analytics.  He served
in those positions from 1990 until Core was acquired by Assurant, Inc. in
2001.  From 1984 to 1990, Mr. Carpenter was a Vice President of
Operations with Baxter Healthcare, served as a Director of Business Development
and as a strategic partner for Baxter's alternate site
businesses.  Mr. Carpenter began his career at Inland Steel where he
served as a Senior Systems Consultant in manufacturing process control. Mr.
Carpenter holds an MBA in Finance from the University of Chicago and a BA with
Distinction in International Policy & Law from Dartmouth
College.
  3
  Daniel
Hoffman, Chief Medical Officer and President
  Dr.
Hoffman became our President on April 10, 2009 and our Chief Medical Officer on
January 15, 2008 upon our acquisition of Neuro-Therapy Clinic, Inc., which at
the time of the acquisition was our largest customer and which was owned by Dr.
Hoffman.  He had served as the Medical Director of Neuro-Therapy
Clinic, Inc. since 1993. Dr. Hoffman is a Neuropsychiatrist with over 25 years
experience treating general psychiatric conditions such as depression, bipolar
disorder and anxiety. He provides the newest advances in diagnosing and treating
attentional and learning problems in children and adults. Dr. Hoffman has
authored over 40 professional articles, textbook chapters, poster presentations
and letters to the editors on various aspects of neuropsychiatry, Quantitative
EEG, LORETA, Referenced EEG, advances in medication management, national
position papers and standards, Mild Traumatic Brain Injury, neurocognitive
effects of Silicone Toxicity, sexual dysfunction and other various topics. Dr.
Hoffman has given over 58 major presentations and seminars, including Grand
Rounds at Universities and Hospitals, workshops and presentations at national
society meetings (such as American Psychiatric Association and American
Neuropsychiatric Association), national CME conferences, insurance companies,
national professional associations, panel member discussant, and presenter of
poster sessions. He has also lectured internationally as part of a consortium
advancing Quantitative EEG in Psychiatry and done research with the major
national academic institutions on the use of Referenced EEG to help guide
treatment choices and as a Biomarker.Dr. Hoffman has a
Bachelor of Science in Psychology from the University of Michigan, an MD from
Wayne State University School of Medicine and conducted his Residency in
Psychiatry at the University of Colorado Health Sciences Center. During the past
five years, Dr. Hoffman has served as the President of Neuro-Therapy Clinic,
Inc., a wholly-owned subsidiary of the company that is focused on discovering
ways to integrate technology into the creation of better business
practices.
  John
Pappajohn, Director
  John
Pappajohn joined our board of directors on August 26, 2009.  Since
1969, Mr. Pappajohn has been the President and sole owner of Pappajohn Capital
Resources, a venture capital firm, and President and sole owner of Equity
Dynamics, Inc., a financial consulting firm, both located in Des Moines,
Iowa.  He serves as a director on the boards of the following public
companies:  American CareSource Inc., Dallas, TX since 1994;
PharmAthene, Inc., Annapolis, MD., since 2007; Spectrascience, Inc., San Diego,
CA, since 2007; CareGuide, Inc., Florida,  (formerly Patient
Infosystems, Inc.),  since 1996; and ConMed Healthcare Management,
Inc., Hanover, MD since 2005.
  David
B. Jones, Director
  David B.
Jones has been a director of CNS California since August 2006, and became a
director of the company upon the completion of our merger with CNS California on
March 7, 2007.  Mr. Jones currently serves as a partner of SAIL
Venture Partners, L.P., a position which he has held since 2003.  From
1998 to 2004, Mr. Jones served as Chairman and Chief Executive Officer of
Dartron, Inc., a computer accessories manufacturer. From 1985 to 1997, Mr. Jones
was a general partner of InterVen Partners, a venture capital firm with offices
in Southern California and Portland, Oregon. From 1979 to 1985, Mr. Jones was
President and Chief Executive Officer of First Interstate Capital, Inc., the
venture capital affiliate of First Interstate Bancorp. Mr. Jones is a graduate
of Dartmouth College and holds Masters of Business Administration and law
degrees from the University of Southern California.
  Jerome
Vaccaro, M.D., Director
  Jerome
Vaccaro, M.D., joined the Board of directors of CNS California in 2006 and
became a director of the company upon the completion of our merger with CNS
California on March 7, 2007.  Dr. Vaccaro is President and Chief
Operating Officer of APS Healthcare, Inc, (APS) a privately held specialty
healthcare company, which he joined in June 2007.  From February 2001
until its acquisition by United Health Group in 2005, Dr. Vaccaro served as
President and Chief Executive Officer of PacifiCare Behavioral Health (“PBH”),
and then served as Senior Vice President with United Health Group’s Specialized
Care Services until he joined APS.  Dr. Vaccaro has also served as
Medical Director of PBH (1996-2001), Chief Executive Officer of PacifiCare
Dental and Vision (2002-2004), and Senior Vice President for the PacifiCare
Specialty Health Division (2002-2004). Dr. Vaccaro has an extensive background
in community mental health and public sector work, including editing the
textbook, “Practicing Psychiatry in the Community,” which is hailed as the
definitive community psychiatry text. Dr. Vaccaro completed medical school and a
Psychiatry Residency at the Albert Einstein College of Medicine in New York
City. After his training, Dr. Vaccaro served on the full-time faculty of the
University of Hawaii (1985-1989) and UCLA (1989-1996) Departments of
Psychiatry.
  4
  Henry
T. Harbin, M.D., Director
  Henry
Harbin, M.D. joined our Board of directors on October 17, 2007.  Since
2004, Dr. Harbin has worked as an independent consultant providing health care
consulting services to a number of private and public organizations. Dr. Harbin
is a Psychiatrist with over 30 years of experience in the behavioral health
field. He has held a number of senior positions in both public and private
health care organizations. He worked for 10 years in the public mental health
system in Maryland serving as Director of the state mental health authority for
three of those years.  He has been CEO of two national behavioral
healthcare companies - Greenspring Health Services and Magellan Health Services.
At the time he was CEO of Magellan, it was the largest managed behavioral
healthcare company managing the mental health and substance abuse benefits of
approximately 70 million Americans including persons who were insured by private
employers, Medicaid and Medicare. In 2002 and 2003, he served on the President's
New Freedom Commission on Mental Health.  As a part of the Commission
he was chair of the subcommittee for the Interface between Mental Health and
General Medicine.  In 2005, he served as co-chair of the National
Business Group on Health's work group that produced the Employer's Guide to
Behavioral Health Services in December 2005.
  Tommy
Thompson, Director
  Tommy G.
Thompson joined our board of directors on August 26, 2009.  Mr.
Thompson is the former Health and Human Services Secretary and four-term
Governor of Wisconsin.  Since March 2005 he has been a partner at the
law firm of Akin Gump Strauss Hauer & Feld, and since February 2005 he also
has served as President of Logistics Health, Inc.  He serves on the
boards of CR Bard and Centene Corporation, both of which are public companies,
and is Chairman of AGA Medical Corporation, a privately-held
company.  Mr. Thompson served as HHS Secretary from 2001 to 2005 and
is one of the nation's leading advocates for the health and welfare of all
Americans. He is the 19th individual to serve as Secretary of the department,
which employs more than 60,000 personnel and had a fiscal year 2005 budget of
$584 billion.  Mr. Thompson has dedicated his professional life to
public service and served as Governor of Wisconsin from 1987 to 2001. Mr.
Thompson was re-elected to office for a third term in 1994 and a fourth term in
1998.   At HHS, Mr. Thompson led the Administration’s efforts to
pass and implement a new Medicare law that is for the first time providing a
drug benefit to America’s seniors. As governor, Mr. Thompson created the
nation's first parental school choice program in 1990, allowing low-income
Milwaukee families to send children to the private or public school of their
choice. He created Wisconsin's Council on Model Academic Standards, which
implemented high academic standards for English language arts, math, science and
social studies. Mr. Thompson began his career in public service in 1966 as a
representative in Wisconsin's state Assembly. He was elected assistant Assembly
minority leader in 1973 and Assembly minority leader in 1981. Mr. Thompson has
received numerous awards for his public service, including the Anti-Defamation
League's Distinguished Public Service Award. In 1997, Mr. Thompson received
Governing Magazine's Public Official of the Year Award, and the Horatio Alger
Award in 1998. Mr. Thompson served as chairman of the National Governors'
Association, the Education Commission of the States and the Midwestern
Governors' Conference. Mr. Thompson also served in the Wisconsin National Guard
and the Army Reserve.
  Board
Composition and Committees
  Our board
of directors currently consists of six members: George Carpenter, Henry Harbin,
David Jones, Jerome Vaccaro, John Pappajohn and Tommy Thompson.  Each
director was elected at our annual meeting of shareholders held on September 29,
2009.  Each of our directors will serve until our next annual meeting
or until his successor is duly elected and qualified.
  5
  We do not
have any committees, including an audit committee, compensation committee, or
nominating and corporate governance committee and the functions customarily
delegated to these committees are performed by our full board of
directors.  In addition, we do not have any charters that relate to
the functions traditionally performed by these committees.  We are not
a “listed company” under SEC rules and are therefore not required to have
separate committees comprised of independent directors. We have, however,
determined that David Jones, Jerome Vaccaro, Henry Harbin, John Pappajohn and
Tommy Thompson are “independent” as that term is defined in Section 5600 of the
Nasdaq Listing Rules as required by the NASDAQ Stock Market.  In
addition, although our full board of directors functions as our audit committee,
we have determined that Jerome Vaccaro, David Jones, John Pappajohn and Tommy
Thompson are “independent” for purposes of Rule 5605-4 of the Nasdaq Listing
Rules as required by the NASDAQ Stock Market.
  We have
also determined that David Jones qualifies as an “audit committee financial
expert” within the meaning of the rules and regulations of the SEC and that each
of our other board members are able to read and understand fundamental financial
statements and have substantial business experience that results in that
member's financial sophistication. Accordingly, our board of directors believes
that each of its members has sufficient knowledge and experience necessary to
fulfill the duties and obligations that an audit committee would
have.
  Stockholder
Recommendations for Director Nominees
  A CNS
stockholder may nominate one or more persons for election as a director at an
annual meeting of stockholders if the stockholder complies with the requisite
provisions contained in our Bylaws.  Stockholders who desire the Board
to consider a candidate for nomination as a director at the 2010 annual meeting
must submit advance notice of the nomination to our Board a reasonable time
prior to the mailing date of the proxy statement for the 2010 annual meeting.
The recommendation should be in writing and addressed to our Corporate
Secretary.
  A
stockholder’s notice of a proposed nomination for director to be made at an
annual meeting must include the following information:
  ·
              the
      name and address of the stockholder proposing to make the nomination and
      of the person or persons to be
nominated;
  ·
              a
      representation that the holder is a stockholder entitled to vote his or
      her shares at the annual meeting and intends to vote his or her shares in
      person or by proxy for the person or persons nominated in the
      notice;
  ·
              a
      description of all arrangements or understandings between the
      stockholder(s) supporting the nomination and each
  nominee;
  ·
              any
      other information concerning the proposed nominee(s) that we would be
      required to include in the proxy statement if our Board of Directors made
      the nomination; and
  ·
              the
      consent of the nominee(s) to serve as director if
  elected.
  Code
of Ethical Conduct
  Our board
of directors has adopted a Code of Ethical Conduct (the “Code of Conduct”) which
constitutes a “code of ethics” as defined by applicable SEC rules and a “code of
conduct” as defined by applicable NASDAQ rules. We require all employees,
directors and officers, including our principal executive officer, principal
financial officer and principal accounting officer to adhere to the Code of
Conduct in addressing legal and ethical issues encountered in conducting their
work. The Code of Conduct requires that these individuals avoid conflicts of
interest, comply with all laws and other legal requirements, conduct business in
an honest and ethical manner and otherwise act with integrity and in our best
interest. The Code of Conduct contains additional provisions that apply
specifically to our principal financial officer and other financial officers
with respect to full and accurate reporting. The Code of Conduct is available on
our website at www.cnsresponse.com
and is also filed as an exhibit to our Annual Report on Form
10-K.
  6
 
 Section
16(a) Beneficial Ownership Reporting Compliance
  Section
16(a) of the Securities Exchange Act of 1934, as amended, requires our directors
and executive officers and the holders of more than 10% of our common stock to
file with the Securities and Exchange Commission initial reports of ownership
and reports of changes in ownership of our equity securities. Based solely on
our review of the copies of the forms received by us and written representations
from certain reporting persons that they have complied with the relevant filing
requirements, we believe that, during the year ended September 30, 2009, all of
our executive officers, directors and the holders of 10% or more of our common
stock complied with all Section 16(a) filing requirements, except for the
following: (i) one Statement of Changes in Beneficial Ownership on Form 4,
reporting one transaction, was filed late by Brad Luce; (ii) one Statement of
Changes in Beneficial Ownership on Form 4, reporting one transaction, was filed
late by David Jones; (iii) one Statement of Changes in Beneficial Ownership on
Form 4, reporting one transaction, was filed late by SAIL Venture Partners LP;
(iv) one Statement of Changes in Beneficial Ownership on Form 4, reporting one
transaction, was filed late by SAIL Venture Partners, LLC; (v) one Statement of
Changes in Beneficial Ownership on Form 4, reporting one transaction, was filed
late by John Pappajohn and (vi) one initial statement of beneficial ownership of
securities on Form 3 was filed late by Tommy Thompson.
  ITEM 11.
              Executive
      Compensation
 
 Compensation
Discussion and Analysis
  As we do
not have a designated compensation committee, our full Board of Directors
oversees matters regarding executive compensation.  The Board is
responsible for, among other functions: (1) reviewing and approving corporate
goals and objectives relevant to the compensation of our executive officers and
evaluating the performance of such executive officers in light of these
corporate goals and objectives; (2) administering our 2006 Stock Incentive Plan
and other equity incentive plans that we may adopt from time to time; and (3)
negotiating, reviewing and setting the annual salary, bonus, stock options and
other benefits, direct and indirect, of the Chief Executive Officer, and other
current and former executive officers. The Board also has the authority to
select and/or retain outside counsel, compensation and benefits consultants, or
any other consultants to provide independent advice and assistance in connection
with the execution of its responsibilities. Our “named executive officers” for
our fiscal year ended September 30, 2009 were as follows:
  ·
              George
      Carpenter, Chief Executive Officer.
  ·
              Daniel
      Hoffman, President and Chief Medical Officer;
  and
  ·
              Leonard
      Brandt, Chief Executive Officer until April 10,
  2009.
  Compensation
Philosophy
  Because
we are a small company with a total of 14 full-time employees, we do not have a
formal comprehensive executive compensation policy.  As we expand our
operations, we intend to establish such policies to further our corporate
objectives.  Generally, we compensate our executive officers with a
compensation package that is designed to drive company performance to maximize
shareholder value while meeting our needs and the needs of our executives. The
following are objectives we consider:
  7
  ·
              Alignment
      - to align the interests of executives and shareholders through
      equity-based compensation awards;
 ·
              Retention
      - to attract, retain and motivate highly qualified, high performing
      executives to lead our growth and success;
and
 ·
              Performance
      - to provide, when appropriate, compensation that is dependent upon the
      executive's achievements and the company’s
  performance.
  In order
to achieve the above objectives, our executive compensation philosophy is guided
by the following principles:
  ·
              Rewards
      under incentive plans are based upon our short-term and longer-term
      financial results and increasing shareholder
  value;
 ·
              Executive
      pay is set at sufficiently competitive levels to attract, retain and
      motivate highly talented individuals who are necessary for us to strive to
      achieve our goals, objectives and overall financial
    success;
 ·
              Compensation
      of an executive is based on such individual's role, responsibilities,
      performance and experience; and
 ·
              Annual
      performance of our company and the executive are taken into account in
      determining annual bonuses with the goal of fostering a
      pay-for-performance culture.
  Compensation
Elements
  We
compensate our executives through a variety of components, which may include a
base salary, annual performance based incentive bonuses, equity incentives, and
benefits and perquisites, in order to provide our executives with a competitive
overall compensation package. The mix and value of these components are impacted
by a variety of factors, such as responsibility level, individual negotiations
and performance and market practice. The purpose and key characteristics for
each component are described below.
  Base
Salary
  Base
salary provides executives with a steady income stream and is based upon the
executive's level of responsibility, experience, individual performance and
contributions to our overall success, as well as negotiations between the
company and such executive officer. Competitive base salaries, in conjunction
with other pay components, enable us to attract and retain talented executives.
The Board typically sets base salaries for our executives at levels that it
deems to be competitive, with input from our Chief Executive
Officer.
  Annual
Incentive Bonuses
  Annual
incentive bonuses are a variable performance-based component of compensation.
The primary objective of an annual incentive bonus is to reward executives for
achieving corporate and individual goals and to align a portion of total pay
opportunities for executives to the attainment of our company's performance
goals. Annual incentive awards, when provided, act as a means to recognize the
contribution of our executive officers to our overall financial, operational and
strategic success.
  Equity
Incentives
  Equity
incentives are intended to align executive and shareholder interests by linking
a portion of executive pay to long-term shareholder value creation and financial
success over a multi-year period. Equity incentives may also be provided to our
executives to attract and enhance the retention of executives and to facilitate
stock ownership by our executives. The Board considers individual and company
performance when determining long-term incentive opportunities.
  8


Health
& Welfare Benefits
  The
executive officers participate in health and welfare, and paid time-off benefits
which we believe are competitive in the marketplace. Health and welfare and paid
time-off benefits help ensure that we have a productive and focused
workforce.
  Severance
and Change of Control Arrangements
  We do not
have a formal plan for severance or separation pay for our employees, but we
typically include a severance provision in the employment agreements of our
executive officers that have written employment agreements with
us.  Generally, such provisions are triggered in the event of
involuntary termination of the executive without cause or in the event of a
change in control.  Please see the description of our employment
agreements with each of George Carpenter and Daniel Hoffman below for further
information.
  Other
Benefits
  In order
to attract and retain highly qualified executives, we may provide our executive
officers with automobile allowances, consistent with current market
practices.
  Accounting
and Tax Considerations
  We
consider the accounting implications of all aspects of our executive
compensation strategy and, so long as doing so does not conflict with our
general performance objectives described above, we strive to achieve the most
favorable accounting (and tax) treatment possible to the company and our
executive officers.
  Process
for Setting Executive Compensation; Factors Considered
  When
making pay determinations for named executive officers, the Board considers a
variety of factors including, among others: (1) actual company performance as
compared to pre-established goals, (2) individual executive performance and
expected contribution to our future success, (3) changes in economic conditions
and the external marketplace, (4) prior years’ bonuses and long-term incentive
awards, and (5) in the case of executive officers, other than Chief Executive
Officer, the recommendation of our Chief Executive Officer, and in the case of
our Chief Executive Officer, his negotiations with our Board. No specific
weighing is assigned to these factors nor are particular targets set for any
particular factor. Ultimately, the Board uses its judgment and discretion when
determining how much to pay our executive officers and sets the pay for such
executives by element (including cash versus non-cash compensation) and in the
aggregate, at levels that it believes are competitive and necessary to attract
and retain talented executives capable of achieving the Company's long-term
objectives.
  9
  Summary
Compensation Table
  The
following table provides disclosure concerning all compensation paid for
services to us in all capacities for our fiscal years ending September 30, 2009
and 2008 (i) as to each person serving as our principal executive officer
(“PEO”) or acting in a similar capacity during our fiscal year ended September
30, 2009, and (ii) as to our most highly compensated executive officer other
than our PEO who was serving as an executive officer at the end of our fiscal
year ended September 30, 2009, whose compensation exceeded
$100,000.  The people listed in the table below are referred to as our
“named executive officers”.
  Name and
                                            Principal Position
                                          Fiscal Year
                                            Ended
                                            September
                                            30,
                                          
                                          Salary
                                            ($)
                                          
                                          
                                          Bonus
                                            ($)
                                          
                                          
                                          Option
                                            Awards
                                            ($)
                                          
                                          
                                          All Other
                                            Compensation
                                            ($)
                                          
                                          
                                          Total
                                            ($)George
      Carpenter (Chief
                                            Executive
      Officer,
                                          2009
                                          
                                          
                                          180,000
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          20,500
                                          (2)
                                          
                                          
                                          200,500Principal
      Executive Officer, Director)
                                          2008
                                          
                                          
                                          180,000
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          680,700
                                          (1)
                                          
                                          
                                          16,300
                                          (2)
                                          
                                          
                                          877,000Daniel
      Hoffman
                                            (President,
                                            Chief
      Medical Officer)
                                          2009
                                          
                                          
                                          150,000
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          33,400
                                          (3)
                                          
                                          
                                          183,4002008
                                          
                                          
                                          108,100
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          39,200
                                          (3)
                                          
                                          
                                          147,300Leonard
      Brandt (Former
                                            Chief
      Executive Officer,
                                          2009
                                          
                                          
                                          119,800
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          20,500
                                          
                                          
                                          
                                          140,300Former
      Principal
                                            Executive
      Officer,
                                            Former
      Director)
                                          2008
                                          
                                          
                                          175,000
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          0
                                          
                                          
                                          
                                          19,000
                                          (2)
                                          
                                          
                                          194,000
  (1)           These
options were granted on October 1 2007.  The fair value of the options
was estimated on the date of grant using the Black-Scholes option pricing model
using the assumptions detailed in Note 4 to the Financial
Statements.
  (2)           Relates
to healthcare insurance premiums paid on behalf of executive officers by the
company.
  (3)           Relates
to healthcare insurance premiums for the year ended September 30, 2009 of
$28,300 and automobile expenses of $4,400 paid on behalf of Dr. Hoffman by the
company. For the year ended September 30, 2008, healthcare insurance premiums
were $15,300 and automobile expenses were $8,900.  Additionally Dr.
Hoffman was paid $15,000 in consulting fees for services rendered to the company
prior to his employment.
 
 Grant
of Plan Based Awards in the Fiscal Year Ending September 30, 2009
  No option
grants to executive officers occurred during fiscal year ending September 30,
2009 under our 2006 Stock Incentive Plan, which is the only plan pursuant to
which awards can be granted, as the Board was focused on management changes,
securing funding and defending against a lawsuit brought by a dissident
shareholder and fellow director.
  10
  Narrative
Disclosure to Summary Compensation Table and Grants of Plan-Based Awards
Table
  Since we
had $0.99 million in cash and cash equivalents and a working capital deficit of
approximately $1.1 million as of September 30, 2009, we elected to preserve our
cash and did not pay any bonuses to our executive officers during our fiscal
year ended September 30, 2009.  As discussed, we do not have a formal
plan for determining the compensation of our executive
officers.  Instead, each named executive officer negotiates the terms
of their employment with us, taking into account our compensation philosophy
outlined above.  The following is a summary of each employment
agreement that we have entered into with respect to our named executive
officers, which summary includes, where applicable, a description of all
payments the company is required to make to such named executive officers at,
following or in connection with the resignation, retirement or other termination
of such named executive officers, or a change in control of our company or a
change in the responsibilities of such named executive officers following a
change in control.
  Employment
Agreements
  George
Carpenter
  On
October 1, 2007, after our 2007 fiscal year end, we entered into an employment
agreement with George Carpenter pursuant to which Mr. Carpenter served as our
President.  During the period of his employment, Mr. Carpenter will
receive a base salary of no less than $180,000 per annum, which is subject to
upward adjustment at the discretion of the Chief Executive Officer or our Board
of Directors.  In addition, pursuant to the terms of the employment
agreement, on October 1, 2007, Mr. Carpenter was granted an option to purchase
968,875 shares of our common stock at an exercise price of $0.89 per share
pursuant to our 2006 Stock Incentive Plan.  These options vest as
follows: 121,109 shares vested immediately with the remaining 847,766 shares
vesting equally over 42 months commencing April 30, 2008.  In the
event of a change of control transaction, a portion of Mr. Carpenter’s unvested
options equal to the number of unvested options at the date of the corporate
transaction multiplied by the ratio of the time elapsed between October 1, 2008
and the date of corporate transaction over the vesting period (48 months) will
automatically accelerate, and become fully vested.  Mr. Carpenter will
be entitled to four weeks vacation per annum, health and dental insurance
coverage for himself and his dependents, and other fringe benefits that we may
offer our employees from time to time.
  Mr.
Carpenter's employment is on an "at-will" basis, and Mr. Carpenter may terminate
his employment with us for any reason or for no reason. Similarly, we may
terminate Mr. Carpenter's employment with or without cause.  If we
terminate Mr. Carpenter's employment without cause or Mr. Carpenter
involuntarily terminates his employment with us (an involuntary termination
includes changes, without Mr. Carpenter’s consent or pursuant to a corporate
transaction, in Mr. Carpenter’s title or responsibilities so that he is no
longer the President of the company), Mr. Carpenter shall be eligible to receive
as severance his salary and benefits for a period equal to six months payable in
one lump sum of $98,100 upon termination.  If Mr. Carpenter is
terminated by us for cause, or if Mr. Carpenter voluntarily terminates his
employment, he will not be entitled to any severance.
  As of
April 10, 2009, Mr. Carpenter was named Chief Executive Officer and a Director
of the company and Daniel Hoffman became our President.  Other than
Mr. Carpenter’s change in title, there have been no changes in the terms of Mr.
Carpenter’s employment with us.
  Daniel
Hoffman
  On
January 11, 2008, we entered into an employment agreement with Daniel Hoffman
pursuant to which Dr. Hoffman began serving as our Chief Medical Officer
effective January 15, 2008. During the period of his employment, Dr. Hoffman
will receive a base salary of $150,000 per annum, which is subject to upward
adjustment. Dr. Hoffman will also have the opportunity to receive bonus
compensation, if and when approved by our Board of Directors.  Dr.
Hoffman's employment is on an "at-will" basis, and Dr. Hoffman may terminate his
employment with us for any reason or for no reason. Similarly, we may terminate
Dr. Hoffman's employment with or without cause. If we terminate Dr. Hoffman's
employment without cause or Dr. Hoffman involuntarily terminates his employment
with us (an involuntary termination includes changes, without Dr. Hoffman’s
consent or pursuant to a corporate transaction, in Dr. Hoffman’s title or
responsibilities so that he is no longer the Chief Medical Officer of the
company), Dr. Hoffman will be eligible to receive as severance his salary and
benefits for a period equal to six months payable in one lump sum of $92,000
upon termination. If Dr. Hoffman is terminated by us for cause, or if Dr.
Hoffman voluntarily terminates his employment, he will not be entitled to any
severance. Dr. Hoffman will be entitled to four weeks vacation per annum, health
and dental insurance coverage for himself and his dependents, and other fringe
benefits that we may offer our employees from time to time.
  11
  Prior to
his employment, from October 1, 2007 to January 15, 2008 Dr. Hoffman earned
$15,000 for consulting services rendered to the company.  In addition,
as compensation for his services to us as a consultant, Dr. Hoffman was granted
options to purchase an aggregate of 814,062 shares of our common stock at an
exercise price of $1.09 on August 7, 2007. In accordance with the terms of his
employment agreement, the terms of Dr. Hoffman's option grant were amended to
provide that in the event of a change of control transaction, a portion of Dr.
Hoffman's unvested options equal to the number of unvested options at the date
of the corporate transaction multiplied by the ratio of the time elapsed between
August 7, 2007 and the date of corporate transaction over the vesting period (42
months), will automatically accelerate, and become fully vested.
  In
addition to being the Chief Medical Officer, Dr. Hoffman was named President of
the Company on April 10, 2009.
  The
Company has no other employment agreements with its executive
officers.
  2006
Stock Incentive Plan
  On August
3, 2006, CNS California adopted the CNS California 2006 Stock Incentive Plan
(the "2006 Plan"). On March 7, 2007, in connection with the closing of the
merger transaction with CNS California, we assumed the CNS California stock
option plan and all of the options granted under the plan at the same price and
terms.  The following is a summary of the 2006 Plan, which we use to
provide equity compensation to employees, directors and consultants to the
company.
  The 2006
Plan provides for the issuance of awards in the form of restricted shares, stock
options (which may constitute incentive stock options (ISO) or nonstatutory
stock options (NSO)), stock appreciation rights and stock unit grants to
eligible employees, directors and consultants and is administered by the board
of directors. A total of 10 million shares of stock are reserved for issuance
under the 2006 Plan. As of September 30, 2009, 2,124,740 options were exercised
and there were 6,662,014 options and 183,937 restricted shares outstanding under
the 2006 Plan and 1,029,309 shares available for issuance of
awards.  The 2006 Plan provides that in any calendar year, no eligible
employee or director shall be granted an award to purchase more than 3 million
shares of stock. The option price for each share of stock subject to an option
shall be (i) no less than the fair market value of a share of stock on the date
the option is granted, if the option is an ISO, or (ii) no less than 85% of the
fair market value of the stock on the date the option is granted, if the option
is a NSO; provided, however, if the option is an ISO granted to an eligible
employee who is a 10% shareholder, the option price for each share of stock
subject to such ISO shall be no less than 110% of the fair market value of a
share of stock on the date such ISO is granted. Stock options have a maximum
term of ten years from the date of grant, except for ISOs granted to an eligible
employee who is a 10% shareholder, in which case the maximum term is five years
from the date of grant. ISOs may be granted only to eligible
employees.
  Outstanding
Equity Awards at Fiscal Year-End 2009
  The
following table presents information regarding outstanding options held by our
named executive officers as of the end of our fiscal year ended September 30,
2009.  During the fiscal year ended September 30, 2009, Leonard Brandt
exercised 2,124,740 options at an exercise price of $0.132 per share which were
granted on August 11, 2006.
  12
  Name
                                      
                                      Number of Securities Underlying
                                        Unexercised Options (#)
                                      
                                      
                                      Option Exercise
                                        Price ($)
                                      
                                      Option Expiration
                                        DateExercisable
                                      
                                      
                                      UnexercisableGeorge
      Carpenter (1)
                                      
                                      
                                      484,454
                                      
                                      
                                      
                                      484,421
                                      
                                      
                                      
                                      0.89
                                      
                                      October
      1, 2017Daniel
      Hoffman (2)
                                      
                                      
                                      508,796
                                      
                                      
                                      
                                      305,796
                                      
                                      
                                      
                                      1.09
                                      
                                      August
      8, 2017119,013
                                      
                                      
                                      
                                      0
                                      
                                      
                                      
                                      0.12
                                      
                                      August
      11, 2016Leonard
      Brandt (3)
                                      
                                      
                                      229,353
                                      
                                      
                                      
                                      104,258
                                      
                                      
                                      
                                      1.20
                                      
                                      August
      8, 2012827,930
                                      
                                      
                                      
                                      140,959
                                      
                                      
                                      
                                      1.09
                                      
                                      August
      8,
2017
 
 (1)           Please
see the summary of Mr. Carpenter’s employment agreement above, which describes
the vesting terms of the options granted to Mr. Carpenter.
  (2)           On
August 8, 2007, Dr. Hoffman was granted options to purchase 814,062 shares of
our common stock.  The options are exercisable at $1.09 per share and
vest as follows:  options to purchase 203,516 shares vested on March
8, 2008; options to purchase 593,600 shares vest in equal monthly installments
of 16,960 shares over 35 months commencing on April 30, 2008; the remaining
options to purchase 16,946 shares vest on March 31, 2011.  On August
11, 2006, Dr. Hoffman was granted an option to purchase 119,013 shares of common
stock at an exercise price of $0.12 per share, which is now fully
exercisable.
  (3)           On
August 8, 2007, Mr. Brandt was granted options to purchase 1,302,500 shares of
our common stock.  The options were exercisable at $1.20 per share as
to 333,611 shares and $1.09 per share as to 968,889 shares.  The
option to purchase 333,611 of our shares was scheduled to vest as
follows:  options to purchase 83,403 shares vested on August 8, 2007,
the date of grant; options to purchase 243,250 shares were scheduled to
vest in equal monthly installments of 6,950 shares over 35 months commencing on
January 31, 2008 and the remaining options to purchase 6,958 shares were
scheduled to vest on December 31, 2010.  The option to purchase
968,889 of our shares was scheduled to vest as follows: options to purchase
269,357 shares vested on August 8, 2007, the date of grant; options to purchase
135,675 shares vested in equal monthly installments of 27,135 shares over 5
months beginning on August 31 2007; options to purchase 543,726 shares were
scheduled to vest in equal monthly installments of 20,138 shares over 27 months
beginning on January 31, 2008 and the remaining options to purchase 20,131
shares were scheduled to vest on April 30, 2010.Upon Mr.
Brandt’s termination as a Director on December 2, 2009, Mr. Brandt forfeited
90,358 options having an exercise price of $1.20 per share and 100,683 options
having an exercise price of $1.09 per share.
  Director
Compensation
  During
our fiscal year ended September 30, 2009, our non-employee directors did not
receive compensation for their services on our board.  We do not pay
management directors for board service in addition to their regular employee
compensation.  The full Board of Directors has the primary
responsibility for reviewing and considering any revisions to director
compensation.  Going forward, we intend to compensate our non-employee
directors for their service on our Board with a combination of cash payments and
option grants.  As described below, Dr. Harbin received compensation
for consulting services he provided to the company during our fiscal year ending
September 30, 2009.
  Non-Employee Director Compensation
 Name
                                    
                                    All Other Compensation
                                      ($)
                                    
                                    
                                    Total ($)Jerome
      Vaccaro (1)
                                    
                                    
                                    0
                                    
                                    
                                    
                                    0Henry
      Harbin (2)
                                    
                                    
                                    46,400
                                    
                                    
                                    
                                    46,400John
      Pappajohn (3)
                                    
                                    
                                    0
                                    
                                    
                                    
                                    0Tommy
      Thompson (3)
                                    
                                    
                                    0
                                    
                                    
                                    
                                    0David
      Jones (3)
                                    
                                    
                                    0
                                    
                                    
                                    
                                    0
 
 13
  (1)           On
August 28, 2006 Dr. Vaccaro was granted 20,000 options having an exercise
pri ce of
$0.12 for his service as a Director.  The options vested semiannually
in four equal amounts over a period of two years commencing February 28, 2007
through August 31, 2008.  These options expire on August 28, 2016 and
are fully vested.
  (2)           On
August 8, 2007, we entered into an agreement with Dr. Harbin for consulting
services.  Pursuant to the agreement, we granted options to purchase
24,000 shares of our common stock at an exercise price of $1.09 per share
pursuant to our 2006 Stock Incentive Plan.  The options expire on
August 8, 2017 and are now fully vested.
  As
compensation for his service as a Director of the company, on December 19, 2007,
we granted Dr. Harbin options to purchase 20,000 shares of our common stock at
an exercise price of $0.80 per share under our 2006 Stock Incentive
Plan.  The options expire on December 19, 2017 and are now fully
vested.
  On April
15, 2008, we entered into a consulting agreement with Dr. Harbin which expired
on December 31, 2008.  Pursuant to the agreement, we paid Dr. Harbin a
consulting fee of $24,000 in cash of which $8,000 was paid during the fiscal
year ended September 30, 2009. Additionally Dr Harbin was granted options to
purchase 56,000 shares of our common stock at an exercise price of $0.96 per
share under our 2006 Stock Incentive Plan.  The options expire on
April 15, 2018 and are now fully vested.
  On March
17, 2009, we entered into a consulting agreement with Dr. Harbin which expired
on December 31, 2009 pursuant to which Dr. Harbin was to be paid an aggregate of
$24,000 as compensation for his consulting services.  Dr. Harbin was
paid the $24,000 due to him in January 2010.  In addition, as further
compensation, we granted Dr. Harbin options to purchase 56,000 shares of our
common stock at an exercise price of $0.40 per share, with the options vesting
in equal monthly installments over a twelve month period commencing on January
1, 2009.  The options expire on March 17, 2019.  The fair
value of the options was estimated to be $22,400 on the date of grant using the
Black-Scholes option pricing model using the assumptions detailed in Note 4 to
the Financial Statements.
  (3)           No
options have been granted to Mr. Pappajohn, Mr. Thompson or Mr.
Jones.
  ITEM
      12.
              Security
      Ownership of Certain Beneficial Owners and Management and Related
      Stockholder Matters
 
 The
following table presents information regarding the beneficial ownership of our
common stock as of January 15, 2010 by each of our named executive officers,
each of our directors, all of our directors and executive officers as a group,
and each stockholder known by us to be the beneficial owner of more than 5% of
our common stock.
  Beneficial
ownership is determined in accordance with the rules of the SEC and generally
includes voting or investment power with respect to securities. Unless otherwise
indicated below, to our knowledge, the persons and entities named in the table
have sole voting and sole investment power with respect to all shares
beneficially owned, subject to community property laws where applicable. Shares
of our common stock subject to options or warrants from the Company that are
currently exercisable or exercisable within 60 days of January 15, 2010 are
deemed to be outstanding and to be beneficially owned by the person holding such
options or warrants for the purpose of computing the percentage ownership of
that person but are not treated as outstanding for the purpose of computing the
percentage ownership of any other person.
  The
information presented in this table is based on 53,567,795 shares of our common
stock outstanding on January 15, 2010.
  14
  Unless
otherwise indicated, the address of each of the named executive officers,
directors and 5% or more stockholders named below is c/o CNS Response, Inc., 85
Enterprise, Suite 410 Aliso Viejo, CA 92656.
  Number of Shares
                          Beneficially OwnedName of Beneficial Owner
                        
                        Number
                        
                        
                        Percentage of
                          Shares
                          OutstandingNamed
      Executive Officers and Directors:George
      Carpenter
                          Chief
      Executive Officer and Chairman of the Board (1)
                        
                        
                        1,125,341
                        
                        
                        
                        2.1
                        %Daniel
      Hoffman
                          President
      and Chief Medical Officer (2)
                        
                        
                        823,654
                        
                        
                        
                        1.5
                        %David
      B. Jones
                          Director
      (3)
                        
                        
                        8,696,055
                        
                        
                        
                        15.6
                        %Dr.
      Jerome Vaccaro
                          Director
      (4)
                        
                        
                        20,000
                        
                        
                        
                        *Dr.
      Henry Harbin
                          Director
      (5)
                        
                        
                        166,834
                        
                        
                        
                        *John
      Pappajohn
                          Director(6)
                        
                        
                        12,333,335
                        
                        
                        
                        20.8
                        %Tommy
      Thompson
                          Director
                        
                        
                        -
                        
                        
                        
                        -Executive
      Officers and Directors as a group (7 persons) (7)
                        
                        
                        23,165,219
                        
                        
                        
                        36.7
                        %5%
      Stockholders:SAIL
      Venture Partners LP (3)
                        
                        
                        8,696,055
                        
                        
                        
                        15.6
                        %Leonard
      Brandt (8)
                        
                        
                        11,081,982
                        
                        
                        
                        19.9
                        %
 * Less
than 1%
  (1)           Consists
of (a) 360,000 shares of common stock (b) 180,000 shares of common stock
issuable upon the exercise of vested and exercisable warrants to purchase common
stock and (c) options to acquire 585,341 shares of common stock issuable
upon the exercise of vested and exercisable options.
  (2)           Consists
of (a) 98,544 shares of common stock, which includes 500 shares held by Dr.
Hoffman’s daughter (b) 12,501 shares of common stock issuable upon the exercise
of vested and exercisable warrants to purchase common stock and (c) options to
acquire 712,609 shares of common stock issuable upon the exercise of vested and
exercisable options.
  (3)           Consists
of (a) 6,471,067 shares of Common Stock and (b) 2,224,988 shares of Common Stock
issuable upon the exercise of vested and exercisable warrants held by SAIL
Venture Partners, LP.  SAIL Venture Partners, LLC is the general
partner of SAIL Venture Partners, L.P.  The unanimous vote of the
managing members of SAIL Venture Partners, LLC (who are Walter Schindler, Alan
Sellers, Thomas Cain, and David B. Jones), is required for voting and investing
decisions over the shares held by this selling stockholder.  The
address of SAIL Venture Partners, L.P. is 600 Anton Blvd., Suite 1010, Costa
Mesa, CA 92626.
  (4)           Consists
of options to acquire 20,000 shares of common stock issuable upon the exercise
of vested and exercisable options.
  15
  (5)           Consists
of (a) 8,333 shares of common stock, (b) 2,501 shares of common stock issuable
upon the exercise of warrants to purchase common stock and (c) options to
acquire 156,000 shares of common stock issuable upon the exercise of vested and
exercisable options.
  (6)           Consists
of (a) 6,666,668 shares of common stock and (b) 5,666,667 shares of common stock
issuable upon the exercise of vested and exercisable warrants to purchase common
stock.  The address of John Pappajohn is 2166 Financial Center, Des
Moines, IA 50309.
  (7)           Consists
of 13,604,612 shares of common stock and 9,560,607 shares of common stock
issuable upon the exercise of vested and exercisable options and
warrants.
  (8)           Consists
of (a) 8,890,795 shares of common stock (including 540,000 shares owned by Mr.
Brandt's children and 956,164 shares held by Brandt Ventures), (b) 1,079,728
shares reserved for issuance upon exercise of warrants to purchase common stock
(including warrants to purchase 478,082 shares of common stock held by Brandt
Ventures) and (c) 1,111,459 shares reserved for issuance upon exercise of
options to purchase common stock held by Mr. Brandt.  The address of
Leonard Brandt is 28911 Via Hacienda San Juan Capistrano CA 92675.
  Changes
in Control
  We do not
have any arrangements which may at a subsequent date result in a change in
control.
  Securities
Authorized for Issuance Under Equity Compensation Plans
  The
following table sets forth certain information regarding our equity compensation
plans as of September 30, 2009.
  Plan Category
                      
                      Number of securities
                        to be issued upon
                        exercise of
                        outstanding options,
                        warrants and rights
                        (a)
                      
                      
                      Weighted-average
                        exercise price of
                        outstanding options,
                        warrants and rights
                        (b)
                      
                      
                      Number of
                        securities
                        remaining
                        available for future
                        issuance under
                        equity
                        compensation
                        plans
                        (c)Equity
      compensation plans approved by security holders
                      
                      
                      6,662,014
                      
                      
                      $
                      0.76
                      
                      
                      
                      1,029,309Equity
      compensation plans not approved by security holders
                      
                      
                      0
                      
                      
                      $
                      0
                      
                      
                      
                      0Total
                      
                      
                      6,662,014
                      
                      
                      $
                      0.76
                      
                      
                      
                      1,029,309
 
 ITEM
      13.
              Certain
      Relationships and Related Transactions, and Director
      Independence
  Except as
follows, since October 1, 2007, there has not been, nor is there currently
proposed, any transaction or series of similar transactions to which we are or
will be a party:
  
              in
      which the amount involved exceeds the lesser of $120,000 or 1% of the
      average of our total assets at year-end for the last two completed fiscal
      years;and
  16
 
 
              in
      which any director, executive officer, other stockholders of more than 5%
      of our common stock or any member of their immediate family had or will
      have a direct or indirect material
interest.
  Transactions
with George Carpenter
  On
December 24, 2009, the Company completed a second closing of its private
placement in which it received gross proceeds of approximately $3 million, which
included $108,000 invested by Mr. Carpenter.  In exchange
for his investment, the Company issued to Mr. Carpenter 360,000 shares of its
common stock and a five year non-callable warrant to purchase 180,000 shares of
its common stock at an exercise price of $0.30 per share.  This
investment was completed with the identical terms as received by all other
investors in the Company’s private placement closings that took place on August
26, 2009, December 24, 2009, December 31, 2009 and January 4, 2010.
  Transactions
with SAIL Venture Partners LP
  On March 30, 2009, we executed two
senior secured convertible promissory notes each in the principal amount of
$250,000 with SAIL Venture Partners, LP (“SAIL”) and Brandt Ventures, GP
(“Brandt”). David Jones, a member of our board of directors, is one of four
managing members of SAIL Venture Partners, LLC, which is the general partner of
SAIL. Leonard Brandt, also a member of our board of directors until December 3,
2009 and our former Chief Executive Officer, is the general partner of
Brandt.
  These
notes accrue interest at the rate of 8% per annum and are due and payable upon a
declaration by the note holder(s) requesting repayment, unless sooner converted
into shares of our common stock (as described below), upon the earlier to occur
of: (i) June 30, 2009 or (ii) an Event of Default (as defined in the notes),
which includes the default that occurred as a result of Mr. Brandt no longer
serving as our Chief Executive Officer effective as of April 10, 2009. The notes
are secured by a lien on substantially all of our assets (including all
intellectual property). In the event of a liquidation, dissolution or winding up
of the company, unless Brandt and/or SAIL informs us otherwise, we shall pay
such investor an amount equal to the product of 250% multiplied by the principal
and all accrued but unpaid interest outstanding on the note.
  In
concert with an equity financing transaction of at least $1,500,000 (excluding
any and all other debt that is converted), the principal and all accrued, but
unpaid interest outstanding under the notes shall be automatically converted
into the securities issued in the equity financing by dividing such amount by
90% of the per share price paid by the investors in such financing.
  On May
14, 2009, we entered into a Bridge Note and Warrant Purchase Agreement with
SAIL.
  Pursuant
to the Purchase Agreement, on May 14, 2009, SAIL purchased a Secured Promissory
Note in the principal amount of $200,000 from us. In order to induce SAIL to
purchase the note, we issued to SAIL a warrant to purchase up to 100,000 shares
of our common stock at a purchase price equal to $0.25 per share. The warrant
expires on the earlier to occur of May 31, 2016 or a change of control of the
company.
  The
Purchase Agreement also provides that, at any time on or after June 30, 2009,
and provided that certain conditions are satisfied by us, SAIL will purchase
from us a second Secured Convertible Promissory Note in the principal sum of
$200,000 and will be issued a second warrant identical in terms to the warrant
described above. The aforementioned conditions include our entry into a term
sheet in which investors commit to participate in an equity financing by us of
not less than $2,000,000 (excluding any and all other debt that are to be
converted).
  17


The notes
issued or issuable pursuant to the Purchase Agreement accrue interest at the
rate of 8% per annum and are due and payable, unless sooner converted into
shares of our common stock (as described below), upon the earlier to occur of:
(i) a declaration by SAIL on or after June 30, 2009 or (ii) an Event of Default
as defined in the notes. The note(s) are secured by a lien on substantially all
of our assets (including all intellectual property). In the event of a
liquidation, dissolution or winding up of the company, unless SAIL informs us
otherwise, we shall pay SAIL an amount equal to the product of 250% multiplied
by the principal and all accrued but unpaid interest outstanding on the
note(s).




In the
event we consummate an equity financing transaction of at least $1,500,000
(excluding any and all other debt that is converted), then the principal and all
accrued, but unpaid interest outstanding under the note(s) shall be
automatically converted into the securities issued in the equity financing by
dividing such amount by 85% of the per share price paid by the investors in such
financing.




In
addition, in the event we issue preferred stock that is not part of an equity
financing described above, SAIL may, at its option, convert the principal and
all accrued, but unpaid interest outstanding under the note(s) into preferred
stock by dividing such amount by 85% of the per share price paid by the
purchasers’ of our preferred stock.




On August
26, 2009, the Company completed an equity financing transaction of approximately
$2 million. As a result of the financing, each of the notes described above that
were held by SAIL and Brandt automatically converted into common stock, with
SAIL receiving 1,758,356 shares and Brandt receiving 956,164 shares. In
addition, pursuant to the terms of the notes, SAIL was issued a non-callable
five year warrant to purchase 879,178 shares of common stock at an exercise
price of $0.30 per share and Brandt was issued a non-callable five year warrant
to purchase 478,082 shares of common stock at an exercise price of $0.30 per
share.




In
connection with the equity financing referred to above, on August 26, 2009, SAIL
purchased 6 Units for $324,000. Each Unit consists of 180,000 shares of common
stock and a five year non-callable warrant to purchase an additional 90,000
shares of common stock at an exercise price of $0.30 per share. The shares of
common stock and warrants comprising the Units are immediately separable and
were issued separately.  This investment was completed with the
identical terms as received by all other investors in the Company’s private
placement closings that took place on August 26, 2009, December 24, 2009,
December 31, 2009 and January 4, 2010.




Transactions
with Leonard Brandt




Please see the discussion above under
the heading “Transaction with
SAIL Venture Partners LP”for a summary of a bridge financing transaction
which closed on March 30, 2009, in which Mr. Brandt participated.




Transactions
with Henry Harbin M.D.




Since
June 2007, Dr. Harbin has acted as a strategic advisor to the company, and has
advised us on our marketing initiatives. As compensation for his services as an
advisor, on August 8, 2007, we granted Dr. Harbin a non-qualified option to
purchase 24,000 shares of our common stock at an exercise price of $1.09 per
share. Options to purchase 6,000 shares vested on the date of grant, and the
remaining 18,000 shares vested in equal installments of 2,000 shares on each
monthly anniversary of the grant date for a period of nine months.




Subsequently,
on April 15, 2008, we entered into a consulting agreement which expired on
December 31, 2008 pursuant to which Dr. Harbin was paid an aggregate of $24,000
and was granted options to purchase 56,000 shares of our common stock at an
exercise price of $0.96 per share, with options to purchase 14,000 shares
vesting on the date of grant, options to purchase 37,328 shares vesting in eight
equal monthly installments of 4,666 options commencing on April 30, 2008, and
the remaining options to purchase 4,672 shares vesting on December 31,
2008.




18




Most
recently, on March 17, 2009, we entered into a consulting agreement with Dr.
Harbin which expires on December 31, 2009 pursuant to which Dr. Harbin was paid
an aggregate of $24,000 as compensation for his consulting
services.  In addition, as further compensation, we granted Dr. Harbin
options to purchase 56,000 shares of our common stock at an exercise price of
$0.40 per share, with the option vesting in equal monthly installments over a
twelve month period commencing on January 1, 2009.




Transactions
with Daniel Hoffman




On
January 11, 2008, we, through our wholly owned subsidiary, Colorado CNS
Response, Inc. and pursuant to the terms of a Stock Purchase Agreement, acquired
all of the outstanding common stock of Neuro-Therapy Clinic, PC, a Colorado
professional medical corporation wholly owned by Dr. Hoffman ("NTC") in exchange
for a non-interest bearing note of $300,000 payable in equal monthly
installments over 36 months.  At the time of the transaction, NTC was
our largest customer.  Upon the completion of the acquisition, Dr.
Hoffman was appointed our Chief Medical Officer.  The Stock Purchase
Agreement provides that upon the occurrence of certain events, as defined in the
purchase agreement, Dr. Hoffman has a repurchase option for a period of three
years subsequent to the closing, as well as certain rights of first refusal, in
relation to the assets and liabilities we acquired.




In
addition, Dr. Hoffman has acted as a consultant to the corporation on various
matters since 2003. Subsequent to October 1, 2007, Dr. Hoffman has received cash
payments of $15,000 in consideration for his consulting services to us prior to
joining us as our Chief Medical Officer.




Transactions
with John Pappajohn




In
conjunction with the closing of the Company’s private placement on August 26,
2009, Mr. Pappajohn joined the Company’s Board of Directors.  On
September 29, 2009 at the Company’s Annual Meeting of shareholders, Mr.
Pappajohn’s directorship was approved by a majority vote of the shareholders of
the Company.




On June
12, 2009, we entered into a Bridge Note and Warrant Purchase Agreement with Mr.
John Pappajohn (“Pappajohn”).




Pursuant
to the Purchase Agreement, on June 12, 2009, Pappajohn purchased a Secured
Convertible Promissory Note in the principal amount of $1,000,000 from
us.  In order to induce Pappajohn to purchase the note, we issued to
Pappajohn a warrant to purchase up to 3,333,333 shares of our common stock at a
purchase price equal to $0.30 per share.  The warrant expires on June
30, 2016.




The note
issued pursuant to the Purchase Agreement provides that the principal amount of
$1,000,000 together with a single Premium Payment of $90,000 which is due and
payable, unless sooner converted into shares of our common stock (as described
below), upon the earlier to occur of: (i) a declaration by Pappajohn on or after
June 30, 2010 or (ii) an Event of Default as defined in the note.  The
note is secured by a lien on substantially all of our assets (including all
intellectual property).  In the event of a liquidation, dissolution or
winding up of the company, unless Pappajohn informs us otherwise, we shall pay
Pappajohn an amount equal to the product of 250% multiplied by the then
outstanding principal amount of the note and the Premium Payment.




In the
event we consummate an equity financing transaction of at least $1,500,000
(excluding any and all other debt that is converted), the then outstanding
principal amount of the note (but excluding the Premium Payment, which will be
repaid in cash at the time of such equity financing) shall be automatically
converted into the securities issued in the equity financing by dividing such
amount by the per share price paid by the investors in such
financing.




19




On August
26, 2009, the Company completed an equity financing transaction of approximately
$2 million.  As a result of the financing, the note described above
held by Mr. Pappajohn automatically converted into common stock, with Mr.
Pappajohn receiving 3,333,334 shares.  In addition, pursuant to the
terms of the note, Mr. Pappajohn received a five year non-callable warrant to
purchase 1,666,667 shares of common stock at an exercise price of $0.30 per
share.




In
connection with the equity financing referred to above, on August 26, 2009, Mr.
Pappajohn invested an additional $1,000,000 in the Company.  In
exchange for his investment, the Company issued an additional 3,333,3334 shares
of common stock to Mr. Pappajohn and a five year non-callable warrant to
purchase 1,666,667 shares of common stock at an exercise price of $0.30 per
share.  This investment was completed with the identical terms as
received by all other investors in the Company’s private placement closings that
took place on August 26, 2009, December 24, 2009, December 31, 2009 and January
4, 2010.




The
Company intends to reimburse Equity Dynamics, Inc., a company solely owned by
Mr. Pappajohn, for expenses which Equity Dynamics incurred between May and
December, 2009 on behalf of CNS Response, Inc.  These expenses include
$34,700 incurred in connection with the Company’s private placement financing
activities.




Transactions
with Promoters and Control Persons




Prior to
our merger with CNS California, which closed on March 7, 2007, Strativation,
Inc. (now called CNS Response, Inc.) existed as a "shell company" with nominal
assets whose sole business was to identify, evaluate and investigate various
companies to acquire or with which to merge.




Shares
for Debt Agreement




Prior to
our merger with CNS California, on January 11, 2007, we entered into a Shares
For Debt Agreement with Richardson & Patel LLP ("R&P"), our former legal
counsel, pursuant to which we agreed to issue and R&P agreed to accept
645,846 restricted shares of our common stock (the "Shares") as full and
complete settlement of a portion of the total outstanding debt in the amount of
$261,202 that we owed to R&P for legal services (the "Partial Debt"). On
January 15, 2007, the company and R&P agreed to amend and restate the Shares
for Debt Agreement to increase the number of Shares to be issued in settlement
of such Partial Debt to 656,103 restricted shares of our common stock, which
then represented 75.5% of our issued and outstanding common stock.




Registration
Rights Agreement




On
January 11, 2007, we entered into a Registration Rights Agreement in connection
with the above referenced Shares For Debt Agreement with R&P and various
other stockholders of the Company signatory thereto ("Majority Stockholders") in
connection with the shares of the company acquired pursuant to the Shares For
Debt Agreement and certain other transactions that took place on or around July
18, 2006. On January 15, 2007, the company and the Majority Stockholders agreed
to amend and restate the Registration Rights Agreement to provide registration
rights to the Majority Stockholders for up to 767,101 shares of our common stock
held or to be acquired by them.


20


Merger
Agreement




On
January 16, 2007, we entered into an Agreement and Plan of Merger with CNS
Response, Inc., a California corporation (or CNS California), and CNS Merger
Corporation, a California corporation and our wholly-owned subsidiary that was
formed to facilitate the acquisition of CNS California. On March 7, 2007, the
merger with CNS California closed, CNS California became our wholly-owned
subsidiary, and we changed our name from Strativation, Inc. to CNS Response,
Inc.  At the Effective Time of the Merger (as defined in the Merger
Agreement, as amended on February 23, 2007), MergerCo was merged with and into
CNS California, the separate existence of MergerCo ceased, and CNS California
continued as the surviving corporation at the subsidiary level. We issued an
aggregate of 17,744,625 shares of our common stock to the stockholders of CNS
California in exchange for 100% ownership of CNS California. Additionally, we
assumed an aggregate of 8,407,517 options to purchase shares of common stock and
warrants to purchase shares of common stock on the same terms and conditions as
previously issued by CNS California. Pursuant to the Merger Agreement, our
former sole director and executive officer, Silas Phillips, resigned as a
director and executive officer of our company effective as of the closing of the
merger, and the directors and officers of CNS California were appointed to serve
as directors and officer of our company. Except for the Merger Agreement, as
amended, and the transactions contemplated by that agreement, neither CNS
California, nor the directors and officers of CNS California serving prior to
the consummation of the Merger, nor any of their associates, had any material
relationship with us, or any of our directors and officers, or any of our
associates prior to the merger. Following the merger, the business conducted by
the company is the business conducted by CNS California.




Pursuant
to the terms of the Merger Agreement, we paid an advisory fee of $475,000 to
Richardson & Patel, LLP, our former legal counsel and a principal
shareholder, immediately upon the closing of the merger.




ITEM 14.
            Principal
      Accounting Fees and Services




Audit
Fees




The
aggregate fees billed for professional services rendered by Cacciamatta
Accountancy Corporation for professional services rendered for the audit of our
annual financial statements and review of the financial statements included in
our Form 10-Q’s or services that are normally provided by the accountant in
connection with statutory and regulatory filings or engagements for fiscal years
2009 and 2008 were $134,500 and $102,500, respectively.




Audit-Related
Fees




Cacciamatta
Accountancy Corporation billed us $0 in fees for assurance and related services
related to the performance of the audit or review of our financial statements
for the fiscal years ended September 30, 2009 and September 30, 2008,
respectively.




Tax
Fees




The
aggregate fees to be billed by Cacciamatta Accountancy Corporation for
professional services rendered for tax compliance, tax advice, and tax planning
during our fiscal years ending September 30, 2009 and September 30, 2008 were $0
and $0, respectively.




All
Other Fees




None.




Audit
Committee Policies and Procedures




Our Audit
Committee, which consists of our entire Board of Directors, is directly
responsible for interviewing and retaining our independent accountant,
considering the accounting firm’s independence and effectiveness, and
pre-approving the engagement fees and other compensation to be paid to, and the
services to be conducted by, the independent accountant. During each of the
fiscal years ended September 30, 2009 and September 30, 2008, respectively, our
Board of Directors pre-approved 100% of the services described
above.


21


ITEM 15.
            Exhibits,
      Financial Statement Schedules




(a)(3) Exhibits.




Exhibit
                  Number
                
                Exhibit Title31.1
                
                Certification
      by Chief Executive Officer pursuant to Rule 13a-14(a) or 15d-14(a) under
      the Securities Exchange Act of 1934, as amended.31.2
                
                Certification
      by Principal Financial Officer pursuant to Rule 13a-14(a) or 15d-14(a)
      under the Securities Exchange Act of 1934, as
  amended.


22


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.




CNS
      RESPONSE, INC.By:
              /s/ George CarpenterGeorge
      Carpenter
                Chief
      Executive OfficerDate:
      January 25, 2010





In
accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the Registrant and in the capacities and on the
dates indicated.




Signature
            
            Title
            
            Date/s/ George Carpenter
            
            Chief
      Executive Officer, Director
            
            January
      25, 2010George
      Carpenter
            
            (Principal
      Executive, Financial and
              Accounting
      Officer)/s/ David B. Jones
            
            Director
            
            January
      25, 2010David
      B. Jones/s/ Jerome
      Vaccaro
            
            Director
            
            January
      25, 2010Jerome
      Vaccaro, M.D./s/ Henry Harbin
            
            Director
            
            January
      25, 2010Henry
      T. Harbin, M. D./s/ John Pappajohn
            
            Director
            
            January
      25, 2010John
      Pappajohn/s/ Tommy Thompson
            
            Director
            
            January
      25, 2010Tommy
      Thompson