Attached files
| file | filename |
|---|---|
| EX-32.2 - ProText Mobility, Inc. | v191649_ex32-2.htm |
| EX-31.1 - ProText Mobility, Inc. | v191649_ex31-1.htm |
| EX-32.1 - ProText Mobility, Inc. | v191649_ex32-1.htm |
| EX-31.2 - ProText Mobility, Inc. | v191649_ex31-2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
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x
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the
fiscal year ended December 31, 2009
OR
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o
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TRANSITION
REPORT PURSUANT TO SECTION 13 or 15 (d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the
transition period from __________ to __________
Commission
File No: 001-31590
ECHOMETRIX,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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11-3621755
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(State
or other jurisdiction of Incorporate or organization)
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(I.R.S.
Employer Identification No.)
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6800
Jericho Turnpike – Suite 208E, Syosset, NY
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11791
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(516)
802-0223
Securities
registered pursuant to section 12(g) of the Act:
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Title of Each Class
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Name of Each Exchange on which Registered
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Common
Stock, $0.0001 par value
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OTC
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Class
A Warrant to Purchase Common Stock
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OTC
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Class
B Warrant to Purchase Common Stock
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OTC
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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 x No
¨
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K 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.
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Large
accelerated filer ¨
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Accelerated Filer
¨
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Non-accelerated
Filer ¨
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Smaller
reporting company x
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|||
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(Do
not check if smaller reporting company)
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Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes ¨ No
x
As of
June 30, 2009, the aggregate market value of the issued and outstanding common
stock held by non-affiliates of the registrant, based upon the closing price of
the common stock, under the symbol "EHMI" as quoted on the National Association
of Securities Dealers Inc. OTC Bulletin Board of $0.11 was approximately
$7,325,420. For purposes of the statement in the preceding statement, all
directors, executive officers and 10% shareholders are assumed to be affiliates.
This determination of affiliate status is not necessarily a conclusive
determination for any other purpose.
APPLICABLE
ONLY TO CORPORATE ISSUERS
Number of
registrant’s shares of common stock outstanding at March 30, 2010 was
81,024,164.
Documents incorporated by
reference : None.
EXPLANATORY
NOTE
This Form
10-K/A (“Amendment No. 1”) amends the Registrant’s Annual Report on Form 10-K
for the year ended December 31, 2009, filed with the Securities and Exchange
Commission on March 31, 2010 (the “Original Report”). The purpose of this
Amendment No. 1 is to amend Item 9A(T) in the Original Report to provide a
statement as to whether the Company’s disclosure controls and procedures are
effective. This Amendment No. 1 does not amend, update or change any other items
or disclosures contained in the Original Report or otherwise reflect events that
occurred subsequent to the filing of the Original Report.
Item
9A (T). Controls and Procedures
Internal
Controls
Evaluation
of our Disclosure Controls and Internal Controls
Under the
supervision and with the participation of our senior management, including our
chief executive and financial officer, we conducted an evaluation of the
effectiveness of the design and operation of our disclosure controls and
procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as of the end of the
period covered by this annual report (the “Evaluation Date”). The disclosure
controls and procedures are intended to insure that the information relating to
us, including our consolidated subsidiaries, required to be disclosed in our
Securities and Exchange Commission (“SEC”) reports (i) is recorded, processed,
summarized and reported within the time periods specified in SEC rules and
forms, and (ii) is accumulated and communicated to our management, including our
chief executive officer and chief financial officer, as appropriate to allow
timely decisions regarding required disclosure. Our management has concluded
that based on their evaluation that our disclosure controls and procedures are
effective. The Company failed to state this conclusion in the Company’ s annual
report on Form 10-K filed with the SEC on March 31, 2010, due to an
oversight. Management has concluded that internal control over financial
reporting was not effective as of December 31, 2009 as further described
below.
Management's
Annual Report on Internal Controls and Procedures.
Our
internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes of accounting
principles generally accepted in the United States. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect
misstatements. Therefore, even those systems determined to be effective can
provide only reasonable assurance of achieving their control objectives. In
evaluating the effectiveness of our internal control over financial reporting,
our management used the criteria set forth by the Committee of Sponsoring
Organizations of the Treadway Commission (“COSO”) in Internal Control –
Integrated Framework.
Based
upon our assessment and the COSO criteria, management concluded that our
internal control over financial reporting was not effective as of December 31,
2009 due to a material weakness. A material weakness is a deficiency, or a
combination of deficiencies, in internal control over financial reporting, such
that there is a reasonable possibility that a material misstatement of our
annual or interim financial statements will not be prevented or detected on a
timely basis.
More
specifically, the material weakness relates to a lack of sufficient personnel
with appropriate knowledge, experience and training in U.S. GAAP resulting in a
lack of sufficient analysis and documentation of the application of U.S. GAAP to
transactions, including but not limited to accounting for modification of
debt.
Due to
our small size, limited financial resources, and turnover of our Chief Financial
Officer, who has been the only individual involved in our accounting and
financial reporting, there has been no segregation of duties within the
accounting function. This lack of segregation of duties represents a material
weakness.
In
efforts to address this material weakness, we are planning to add additional
personnel to the internal accounting operation.
This
annual report does not include an attestation report of our registered public
accounting firm regarding internal control over financial reporting.
Management’s report was not subject to attestation by our registered public
accounting firm pursuant to temporary rules of the Securities and Exchange
Commission that permit us to provide only management’s report in this annual
report.
Changes in Internal Controls.
There were no significant changes in our internal controls over financial
reporting that occurred during the year ended December 31, 2009, that have
materially affected, or are reasonably like to materially affect, our internal
controls over financial reporting.
2
The
Company's management does not expect that the Company's disclosure controls or
the Company's internal controls will prevent all errors and all fraud. A control
system, no matter how well conceived and operated, can provide only reasonable,
not absolute, assurance that the objectives of the control system are met.
Further, the design of a control system must reflect the fact that there are
constraints, and the benefits of controls must be considered relative to their
costs. Because of the inherent limitations in all control systems, no evaluation
of controls can provide absolute assurance that all control issues and instances
of fraud, if any, have been detected. Because of the inherent limitations in a
cost effective control system, misstatements due to error or fraud may occur and
may not be detected.
Item
15. Exhibits
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Exhibit No.
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Description
of Exhibit
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3(i)(a)
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Certificate
of Incorporation of the Company*
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3(i)(b)
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Certificate
of Amendment effective April 26, 2005 (Incorporated herein by reference to
Form 8-K filed May 2, 2005)
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3(ii)
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By-laws
of the Company*
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3(iii)
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Form
of Certificate Designations, Voting Powers, Preferences, Limitations,
Restrictions, and Relative Rights of Series A 7% Convertible Preferred
Stock, $0.0001 par value.
(Incorporated
herein by reference to Form 8-K filed February 13,
2007)
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3(iv)
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Amended
By-Laws of the Company (Incorporated herein by reference to Form 8-K
filed March 4, 2009)
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3(v)
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Amended
Certificate of Designations, filed with the State of Delaware, dated March
5, 2010 (previously filed).
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4.1
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Specimen
Common Stock Certificate of the Company*
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4.2
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Specimen
Class A Warrant Certificate of the Company*
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4.3
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Specimen
Class B Warrant Certificate of the Company*
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5
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Opinion
re: Legality (Incorporated herein by reference to Post-Effective Amendment
No. 4 to our Form SB-2 filed with the Securities and Exchange Commission
on May 10, 2004 -File No. 33-97687).
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10.3
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Warrant
Agreement, dated January 22, 2003, between the
Company and American Stock Transfer and Trust
Company*
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10.4
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Placement
Agent Registration Rights Agreement, dated January
22, 2003, between the Company and Robert M. Cohen & Co,
Inc.*
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10.5
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Form
of Placement Agent Warrant*
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10.6
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Company
2004 Stock Plan, dated January 1, 2004. **
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10.7
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Participation
Agreement, dated February 3, 2004, between the Company and
Environmental Commercial Technology Corp. **
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10.8
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Letter
Agreement, dated February 3, 2004, between
the Company and BioNeutral Laboratories Corporation USA.
**
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10.9
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Letter
Agreement, dated February 3, 2004, between
the Company and BioNeutral Laboratories Corporation
(Worldwide) Limited. **
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10.10
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Settlement
Agreement, dated October 20, 2005, between EchoMetrix, Inc.
and BioNeutral Laboratories Corporation USA. (filed
herewith)
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10.11
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Registration
Rights Agreement, dated November 7, 2003, by and between the
Company and S.G. Martin Securities LLC.**
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10.12
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Software
Purchase and Service Agreement, dated as of August 15,
2003, by and between the Company and Edocusign, Inc.
**
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10.13
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Employment
Agreement, dated April 26, 2005, between the Company and Joseph
Carrizzo
(Incorporated
herein by reference to Form 8-K filed April 28, 2005)
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10.14
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Securities
Purchase Agreement by and among the Shareholders of E-Top-Pics, Inc.
and the Company dated as of April 26, 2005.
(Incorporated
herein by reference to Form 8-K filed June 14, 2005)
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10.15
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Employment
Agreement, dated May 1, 2005, between the Company
and William Bozsnyak
(Incorporated
herein by reference to Form 8-K filed May 3, 2005)
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10.16
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Employment
Agreement, dated May 1, 2005, between the
Company and Brian O’Connor (Incorporated herein by
reference to Form 8-K filed June 14, 2005)
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10.17
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Accounts
Receivable Purchase Agreement, dated September 15, 2005,
between E-Top-Pics, Inc. and Commercial Capital
Lending, LLC
(Incorporated
herein by reference to Form 8-K filed September 21,
2005)
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10.18
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Secured
Guaranty, dated September 15, 2005, between
EchoMetrix, Inc. and Commercial Capital Lending,
LLC
(Incorporated
herein by reference to Form 8-K filed September 21,
2005)
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10.19
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Supply
Agreement, dated September 27, 2005, between
E-Top-Pics, Inc. and Fuji Photo Film U.S.A., Inc.
(Incorporated
herein by reference to Form 8-K filed October 3, 2005)
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10.20
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Exchange
Agreement dated as of November 2, 2005, among EchoMetrix, Inc.,
AmberAlertAgent, Inc. (“AAA”) and the stockholders
of AAA
(incorporated
herein by reference to 8-K filed November 10,
2005)
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10.21
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Consulting
Agreement, dated November 2, 2005, among EchoMetrix,
Inc., AmberAlertAgent Development Company, LLC,
and certain principals of AmberAlertAgent
Development Company, LLC. ***
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10.22
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Employment
agreement, dated April 24, 2006 between the Company and John
Caruso
(Incorporated
herein by reference to Form 8-K filed May 8,
2006)
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3
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10.23
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Lease
Agreement, dated June 1, 2006, between the Company and RA 6800 Jericho
Turnpike LLC
(Incorporated
herein by reference to Form 8-K filed June 12, 2006)
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10.24
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Settlement
Agreement, dated July 14, 2006 between the Company and BioNeutral
Laboratories Corporation USA
(Incorporated
herein by reference to Form 8-K filed July 20, 2006)
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10.25
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Amendment
to Employment Agreement, dated January 29, 2007, between
the Company and William Bozsnyak ****
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10.26
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Series
A Preferred Stock Purchase Agreement dated February 7, 2007 by and between
the Registrant and Edward Kaplan.
(Incorporated
herein by reference to Form 8-K filed February 13,
2007)
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10.27
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Series
A Preferred Stock Purchase Agreement dated February 8, 2007 by and between
the Registrant and The LAM Opportunity Fund, LTD.
(Incorporated
herein by reference to Form 8-K filed February 13,
2007)
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10.28
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Series
A Preferred Stock Purchase Agreement dated February 8, 2007 by and between
the Registrant and Lewis Opportunity Fund, LP.
(Incorporated
herein by reference to Form 8-K filed February 13,
2007)
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10.29
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Series
A Preferred Stock Purchase Agreement dated February 20, 2007 by and
between the Registrant and The LAM Opportunity Fund, LTD.
(incorporated
herein by reference to Form 8-K filed February 26,
2007)
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10.30
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Series
A Preferred Stock Purchase Agreement dated February 20, 2007 by and
between the Registrant and Lewis Opportunity Fund, LP.
(Incorporated
herein by reference to Form 8-K filed February 26,
2007)
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10.31
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Series
A Preferred Stock Purchase Agreement dated March 9, 2007 by and between
the Registrant and Michael Zuhoski.
(Incorporated
herein by reference to Form 8-K filed June 6, 2007)
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10.32
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Series
A Preferred Stock Purchase Agreement dated March 9, 2007 by and between
the Registrant and Diane Supinsky.
(Incorporated
herein by reference to Form 8-K filed June 6, 2007)
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10.33
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Series
A Preferred Stock Purchase Agreement dated May 16, 2007 by and between
the
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Registrant
and Lewis Opportunity Fund, LP.
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||
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(Incorporated
herein by reference to Form 8-K filed June 6, 2007)
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10.34
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Series
A Preferred Stock Purchase Agreement dated May 16, 2007 by and between the
Registrant and The LAM Opportunity Fund, LTD.
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(incorporated
herein by reference to Form 8-K filed June 6, 2007)
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||
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10.35
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Series
A Preferred Stock Purchase Agreement dated June 1, 2007 by and between the
Registrant and Lewis Opportunity Fund, LP.
(Incorporated
herein by reference to Form 8-K filed June 6, 2007)
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10.36
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Separation
Agreement between the Company and Mr. William Bozsnyak dated February 10,
2009.
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(Incorporated
herein by reference to Form 10-K filed April 14, 2009)
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10.37
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Employment
agreement, dated February 10, 2009 between the Company and Jeffrey Greene.
(Incorporated herein by reference to Form 10-K filed April 14,
2009)
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10.39
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Certificate
of Designation filed with the State of Delaware (Incorporated herein by
reference to the Company’s 10-Q filed November 14,
2009)
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10.40
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Series
B Preferred Stock Purchase Agreement dated September 9, 2009 by and
between the Company and Rock Island Capital, LLC
(Incorporated herein by reference to the Company’s 10-Q filed November 14, 2009) |
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10.41
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Amended
Stock Purchase Agreement to Series B Preferred dated March 4, 2010
(previously filed)
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14
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Code
of Ethics of the Company.**
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21
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List
of Subsidiaries***
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*
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Incorporated
herein by reference to the Company’s Form SB-2 filed with the Securities
and Exchange Commission (File No. 33-97687).
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**
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Incorporated
herein by reference to the Company’s Form 10-KSB filed with the Securities
and Exchange Commission on March 16, 2004.
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***
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Incorporated
herein by reference to the Company’s Form 10-KSB filed with the Securities
and Exchange Commission on April 17, 2006
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****
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Incorporated
herein by reference to the Company’s Form 10-KSB filed with the Securities
and Exchange Commission on April 11,
2007
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4
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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EchoMetrix,
Inc.
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(Registrant)
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By:
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/s/
Jeffrey Greene
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Jeffrey
Greene, Chief Executive Officer
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Date:
July 28, 2010
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By:
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/s/Erica
Zalbert
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Erica
Zalbert, Chief Financial Officer
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Date:
July 28, 2010
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Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
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Name
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Title
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Date
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s/
Frank Chester
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Frank
Chester
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Director
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July
28, 2010
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/s/
Randy S. Zelin
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Randy S. Zelin
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Director
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July
28, 2010
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/s/
David Lewis
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||
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David
Lewis
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Director
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July
28, 2010
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/s/
Peter Charles
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||
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Peter
Charles
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Director
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July
28,
2010
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5