Attached files
| file | filename |
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| EX-31.1 - VLOV INC. | v199991_ex31-1.htm |
| EX-32.1 - VLOV INC. | v199991_ex32-1.htm |
| EX-31.2 - VLOV INC. | v199991_ex31-2.htm |
| EX-32.2 - VLOV INC. | v199991_ex32-2.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
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¨
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TRANSITION
REPORT UNDER SECTION 13 OR 15 (d) OF THE EXCHANGE ACT OF
1934
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For
the transition period from _____ to _________
Commission
file number 000-53155
VLOV,
INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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20-8658254
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(State or other jurisdiction of incorporation or organization)
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(IRS Employer Identification No.)
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11/F.,
Xiamen Guanyin Shan International Commercial Operation Centre, A3-2
124
Hubin
Bei Road, Siming District
Xiamen,
Fujian Province
People’s Republic of China
(Address of Principal Executive Offices)
(86592)
2345999
(Issuer Telephone
Number)
N/A
(Former name or former address, if changed since last report)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes ¨ No þ
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 þ
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 þ No ¨
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 herein, 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” 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 þ
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes ¨ No þ
As of
June 30, 2009, the aggregate market value of the registrant's common stock,
$0.00001 par value, held by non-affiliates was approximately $14.5 million based
on the closing price of $2.50 as reported on the Over-the Counter Bulletin Board
on such date.
The
company had a total of 16,667,957 shares of common stock outstanding as of April
6, 2010.
EXPLANATORY
NOTE
This
Form 10-K/A (“Amendment No.1”) is being filed by VLOV, Inc. (the “Company”) to
amend the Company’s Form 10-K for the year ended December 31, 2009 filed with
the Securities and Exchange Commission (“SEC”) on April 15, 2010 (“Initial
10-K”). This Amendment No.1 is filed to (i) amend the disclosures in
the “Management’s Annual Report on Internal Controls over Financial Reporting”
section under Item 9A, and (ii) amend and supplement the disclosures in the
“Business Experience Descriptions,” “Involvement in Certain Legal Proceedings”
and “Section 16(a) of the Exchange Act” sections under Item 10.
These
changes were made, and this Amendment No. 1 is filed in connection with, a
letter from the SEC dated September 20, 2010 regarding Amendment No. 2 to the
Company’s Registration Statement on Form S-1 (333-163803). Except as required to
reflect the changes noted above, this Amendment No.1 does not reflect events
occurring after the filing of the Initial 10-K on April 15, 2010, and no other
information in the Initial 10-K is amended hereby. Other events or circumstances
occurring after the date of the Initial 10-K or other disclosures necessary to
reflect subsequent events have not been updated subsequent to the date of the
Initial 10-K. Accordingly, this Amendment No.1 should be read in conjunction
with the Initial 10-K and the Company’s filings with the SEC subsequent to the
filing of the Initial 10−K.
PART
II.
ITEM
9A. CONTROLS AND PROCEDURES
Management’s
Annual Report on Internal Control over Financial Reporting
Management
of the Company is responsible for establishing and maintaining adequate internal
control over financial reporting. The Company's internal control over financial
reporting is designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles in the
United States of America. The Company's internal control over financial
reporting includes those policies and procedures that: (i) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the Company; (ii) provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles in the United States of America, and that receipts and
expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company's assets that could have a
material effect on the financial statements.
Any
system of internal control, no matter how well designed, has inherent
limitations, including the possibility that a control can be circumvented or
overridden and misstatements due to error or fraud may occur and not be detected
in a timely manner. Also, because of changes in conditions, internal control
effectiveness may vary over time. Accordingly, even an effective system of
internal control will provide only reasonable assurance with respect to
financial statement preparation.
Our
management assessed the effectiveness of the Company's internal control over
financial reporting based on criteria in Internal Control-Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission.
Based on such evaluation, our management concluded that as of December 31, 2009,
and as of the date that the evaluation of the effectiveness of our internal
control over financial reporting was completed, our internal control over
financial reporting was not effective because we did not maintain effective
controls over the preparation, review, presentation and disclosure of amounts
related to our sales of preferred stock, common stock and warrants in November
and December 2009 that were included in our consolidated balance sheets and
consolidated statements of income. Such effective controls were not in place
because the Company’s financial control environment was not designed effectively
to mitigate material misstatement from being prevented or detected. Due to their
relative inexperience, the Company’s accounting staff was not able to properly
account for such complex transactions in a timely manner. Accordingly,
management concluded that this control deficiency constituted a material
weakness.
PART
III
ITEM
10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Business
Experience Descriptions
Set forth
below is a summary of our executive officers’ and directors’ business experience
for the past 5 years.
Qingqing Wu graduated from
Xiamen Jimei School of Light Industry in 1990 with a major in apparel design and
received a Masters in Business Administration degree from Tsing-Hua University
in 2007. Mr. Wu worked as a designer at Huacai Apparel Factory (“Huacai”) in
Jinjiang County from August 1990 to August 1992. Between September 1992 and
September 1994, Mr. Wu served as the Director of Design and Assistant to General
Manager at Shidali Apparel Co., Ltd. (“Shidali”) in Jinjiang City. Neither
Huacai nor Shidali is an affiliate of, or otherwise associated with, the
Company. In November 1994, Mr. Wu founded Yinglin Jinduren. Since November 2009,
Mr. Wu has also served as the Standing Director of the First Committee of the
Association of Fabric & Apparel in Jinjiang City, a local trade
association.
Yushan Zheng graduated from
Jiangxi University of Finance & Economics in 1987 with a major in industrial
economics. Mr. Zheng worked as the Director of Finance Department and
served as the Chief Accounting Officer of Xianyou Electrical Machine Co., Ltd.,
an automobile electrical parts manufacturer and distributor in Fujian Province,
from August 1987 to February 2000. Between March 2000 and February 2004, Mr.
Zheng served as the Manager of Auditors at Putian-based Huada Certified Tax
Agent Firm, which provides accounting, tax planning, and assets auditing and
evaluation services to PRC enterprises. From March 2004 to February
2009, Mr. Zheng served as the Manager of Finance Department and acted as the
Chief Financial Officer of Sanyuan Metal Co., Ltd., a steel distributor, and
Sanchuan Aluminum Co., Ltd., an aluminum manufacturer and distributor,
respectively, in Fujian Province. Beginning in February 2009, Mr.
Zheng has been serving as the Chief Financial Officer of Yinglin Jinduren.
None of these companies is related to or affiliated with us. Mr. Zheng is
a Chinese Certified Public Accountant and a Certified Tax
Agent.
Dr. Jianwei Shen holds a
Doctorate of Economics and Management from China Agricultural University, a
Doctorate of Philosophy from Hohenheim University in Germany, a Masters Degree
in Economics and Management from Beijing Agricultural University, and a
Bachelor’s Degree in Agricultural Economics from Beijing Agricultural
University. Dr. Shen has experience working with China-based
companies, including ones publicly traded outside of China. Since 2006, Dr. Shen
is an independent director and a member of the Audit Committee of the China
Essence Group Ltd., a food processing company listed on the Singapore Exchange
(Main Board). From January 2002 to January 2005, he served as a
project manager for marketing at Fujian Fuma Foods Group Co., a distributor of
finished food products, and he worked as a project manager for marketing at
Beijing Dasbro Co. Ltd., a maker of potato chips, from November 1993 to December
2000. None of these companies that Dr. Shen worked with is related to
or affiliated with us. Dr. Shen is also a member of the Specialist Advisors to
the City of Jinjiang, Fujian which advises the municipal government on policy
issues, a position he has held since January 2006. Dr. Shen also
provides strategic corporate advisory services to Yinglin
Jinduren.
Zhifan Wu serves as the
manager of Yinglin Jinduren’s Purchasing Department, a position he has held
since March 2006. Mr. Wu is also the brother of Qingqing Wu, our
chief executive officer, and has a 34.09% ownership interest in Yinglin
Jinduren. Mr. Wu worked as the purchasing assistant at Huangbao Apparel Co.,
Ltd. (“Huangbao”) from March 1996 to February 2000, and as manager of Huangbao’s
purchasing department from March 2000 to December 2005. Huangbao is a
manufacturer and distributor of menswear and is not related to or affiliated
with us.
Yuzhen Wu graduated from
Huaqiao University in 1998 with a major in Business Management. Mr. Wu is a
valued management member of Yinglin Jingduren where he has worked since May
1998. From June 1998 to August 2001, Mr. Wu worked as the workshop director
supervising all aspects of our production workshop. From 2001 to 2003, Mr. Wu
worked as the production manager overseeing all production arrangements and
process. Mr. Wu served as the vice general manager between November 2003 and
January 2006, supervising and managing our production, quality and inventory
planning process, and as director of the general production management since
February 2006, coordinating with O.E.M. manufacturers to ensure that their
production volumes and quality meet with our requirements.
Congming Xie graduated with a
bachelor’s degree in Economic Science from Huaqiao University in
2002. From July 2002 through December 2004, Mr. Xie acted as
the general manager of Meilun Textile Trade Co., Ltd., a textile manufacturer
and distributor in Xiamen City, Fujian Province which is not related to or
affiliated with us. Mr. Xie is another valued management member of
Yinglin Jinduren, working as the assistant general manager since January 2005,
where he supervises market information gathering and analysis and fabric
evaluation and sourcing.
Ying (Teresa) Zhang is
currently the chief financial officer and a director of China Wind Systems,
Inc., a U.S. public company (NASDAQ: CWS) that manufactures wind power
equipments in China. She was an auditing manager at GC Alliance HK CPA in
Beijing from July 2005 until January 2010, where she provided auditing
services to China-based companies. From January 2003 through June
2005, Ms. Zhang served as a liaison officer for the Australian-Chinese
Friendship Business Association, a trade organization, and from July 2000 to
September 2002 she was an auditor at Ernst & Young in
Beijing. None of these companies that Ms. Zhang worked with is
related to or affiliated with us. Ms. Zhang is a certified practicing accountant
in Australia. She received a bachelor’s degree in international
accounting from Renmin University in China and a master’s degree in
accounting from Macquarie University in Australia. Her accounting background and
her experiences working with China-based companies both from the inside and as
an outside auditor are valuable resources for us in structuring and managing our
own internal control and financial reporting measures.
Involvement
in Certain Legal Proceedings
None
of our directors or executive officers has, during the past ten
years:
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·
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Had any petition under the
federal bankruptcy laws or any state insolvency law filed by or against,
or had a receiver, fiscal agent, or similar officer appointed by a court
for the business or property of such person, or any partnership in which
he was a general partner at or within two years before the time of such
filing, or any corporation or business association of which he was an
executive officer at or within two years before the time of such
filing;
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·
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Been convicted in a criminal
proceeding or a named subject of a pending criminal proceeding (excluding
traffic violations and other minor
offenses);
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(i)
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Acting as a futures commission
merchant, introducing broker, commodity trading advisor, commodity pool
operator, floor broker, leverage transaction merchant, any other person
regulated by the Commodity Futures Trading Commission, or an associated
person of any of the foregoing, or as an investment adviser, underwriter,
broker or dealer in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan association or
insurance company, or engaging in or continuing any conduct or practice in
connection with such
activity;
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(ii)
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Engaging in any type of business
practice; or
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(iii)
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Engaging in any activity in
connection with the purchase or sale of any security or commodity or in
connection with any violation of federal or state securities laws or
federal commodities laws;
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·
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Been the subject of any order,
judgment, or decree, not subsequently reversed, suspended, or vacated, of
any court of competent jurisdiction, permanently or temporarily enjoining
him from, or otherwise limiting, the following
activities:
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·
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Been the subject of any order,
judgment, or decree, not subsequently reversed, suspended, or vacated, of
any federal or state authority barring, suspending, or otherwise limiting
for more than 60 days the right of such person to engage in any activity
described in (i) above, or to be associated with persons engaged in any
such activity;
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·
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Been found by a court of
competent jurisdiction in a civil action or by the SEC to have violated
any federal or state securities law, where the judgment in such civil
action or finding by the SEC has not been subsequently reversed,
suspended, or vacated; or
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·
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Been found by a court of
competent jurisdiction in a civil action or by the Commodity Futures
Trading Commission to have violated any federal commodities law, where the
judgment in such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended, or
vacated.
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Section
16(a) of the Exchange Act
Based
solely on review of the copies of such forms furnished to us, or written
representations that no reports were required, we believe that for the fiscal
year ended December 31, 2009, our directors, executive officers and persons who
owned more than 10% of a registered class of the Company's equity securities
complied with Section 16(a) filing requirements applicable to them, except for
the following: (1) Matthew Hayden did not file a Form 4 in connection with his
resignation from his officer positions and directorship; (2) MMH Group, LLC did
not file a Form 4 in connection with the additional shares of the Company’s
common stock it acquired in February 2009; and (3) Ancora Greater China Fund, LP
did not file a Form 4 in connection with the additional shares of the Company’s
common stock it acquired in February 2009.
ITEM 15. EXHIBITS
(3)
Exhibits
EXHIBIT
INDEX
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Exhibit
Number
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Description
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31.1
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Section
302 Certification by the Corporation’s Chief Executive Officer
*
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31.2
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Section
302 Certification by the Corporation’s Chief Financial Officer
*
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32.1
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Section
906 Certification by the Corporation’s Chief Executive Officer
*
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32.2
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Section
906 Certification by the Corporation’s Chief Financial Officer
*
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*
Filed
herewith.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Xiamen, Fujian Province,
on October 27, 2010.
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VLOV,
INC.
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By:
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/s/
Qingqing Wu
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Qingqing
Wu
Chief Executive Officer
(Principal Executive Officer)
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By:
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/s/
Bennet P. Tchaikovsky
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Bennet
P. Tchaikovsky
Chief Financial Officer
(Principal
Financial and Accounting
Officer)
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this report has
been signed by the following persons in the capacities and on the dates
indicated:
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Signature
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Title
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Date
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/s/
Qingqing Wu
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October
27, 2010
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Qingqing
Wu
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Chairman
of the Board, President,
and
Chief Executive Officer
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/s/
Bennet P. Tchaikovsky
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October
27, 2010
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Bennet
P. Tchaikovsky
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Chief
Financial Officer
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/s/
Jianwei Shen
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October
27, 2010
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Jianwei
Shen
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Director
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/s/
Yuzhen Wu
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October
27, 2010
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Yuzhen
Wu
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Director
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/s/
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October
27, 2010
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Jianhui
Wang
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Director
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/s/
Ying Zhang
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October
27, 2010
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Ying
Zhang
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Director
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