Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report under Section 13 or 15 (d) of
Securities Exchange Act of 1934
For the Period ended September 30, 2011
Commission File Number 000-54359
IN Media Corporation
(Exact name of Registrant as specified in its charter)
Nevada 20-8644177
(State of Incorporation) (IRS Employer ID Number)
4920 El Camino Real, Suite 100, Los Altos, CA 94022
Phone: (408) 849-9499
(Address and telephone number of principal executive offices)
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 whether the registrant has submitted electronically and
posted on its corporate Web site, if any, every Interactive Data File required
to be submitted and posted pursuant to Rule 405 of Regulation S-T (ss.232.405 of
this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes [X] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company.
Large accelerated filer [ ] Accelerated Filer [ ]
Non-accelerated filer [ ] Smaller reporting company [X]
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
As of November 5, 2011, the registrant had 51,908,957 shares of common stock,
$0.001 par value, issued and outstanding.
Transitional Small Business Disclosure Format Yes [ ] No [X]
IN MEDIA CORPORATION
Page
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PART I - FINANCIAL INFORMATION
Item 1. Interim Condensed Financial Statements (unaudited) 3
Interim Balance Sheets 4
Interim Statements of Operations 5
Interim Changes in Financial Positions 6
Notes to the Interim Financial Statements 7
Item 2. Management Discussion & Analysis of Financial Condition and Results
of Operations 15
Item 3. Quantitative and Qualitative Disclosures About Market Risk 21
Item 4. Controls and Procedures 21
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 22
Item 1A. Risk Factors 22
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 29
Item 3. Defaults Upon Senior Securities 29
Item 4. Removed and Reserved 29
Item 5 Other information 30
Item 6. Exhibits 30
2
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The accompanying reviewed interim condensed consolidated financial statements
have been prepared in accordance with the instructions to Form 10-Q. Therefore,
they do not include all information and footnotes necessary for a complete
presentation of financial position, results of operations, cash flows, and
stockholders' equity in conformity with generally accepted accounting
principles. Except as disclosed herein, there has been no material change in the
information disclosed in the notes to the consolidated financial statements
included in the Company's amended annual report on Form 10-K/A for the year
ended December 31, 2010. In the opinion of management, all adjustments
considered necessary for a fair presentation of the results of operations and
financial position have been included and all such adjustments are of a normal
recurring nature. Operating results for the nine months ended September 30, 2011
are not necessarily indicative of the results that can be expected for the year
ending December 31, 2011.
3
IN MEDIA CORPORATION
(A Development Stage Company)
Condensed Balance Sheets
September 30, December 31,
2011 2010
---------- ----------
(Unaudited) (Audited and Restated)
ASSETS
CURRENT ASSETS
Cash $ 192 $ 62
Prepaid expenses and license fees -- 207,500
---------- ----------
192 207,562
Movie distribution systems 40,000 --
---------- ----------
TOTAL ASSETS $ 40,192 $ 207,562
========== ==========
LIABILITIES & STOCKHOLDERS' DEFICIT
CURRENT LIABILITIES
Accounts payable $ 301,767 $ 48,478
Accrued interest 6,843 6,715
Advances and deposits received from customers 47,650 --
Loan from director -- 2,100
Derivative liability 20,317 81,469
Convertible note, principal amount 50,000 170,500
Less discount (7,073) (39,911)
---------- ----------
Notes payable, net 42,927 130,589
---------- ----------
TOTAL CURRENT LIABILITIES 419,504 269,351
LONG TERM LIABILITIES
Long term accounts payable to related party 339,148 952,548
STOCKHOLDERS' EQUITY
Common stock - 75,000,000 shares authorized at $0.001 par value;
51,908,957 and 45,562,618 shares issued and outstanding
at September 30, 2011 and December 31, 2010, respectively 51,909 45,563
Additional paid-in Capital 1,821,740 778,436
Deficit accumulated during the development stage (2,592,109) (1,838,336)
---------- ----------
TOTAL STOCKHOLDERS' EQUITY (718,460) (1,014,337)
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT $ 40,192 $ 207,562
========== ==========
The accompanying footnotes are an integral part of these financial statements.
4
IN MEDIA CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONDENSED STATEMENTS OF OPERATIONS
(Unaudited)
Inception
Three Months Three Months Nine Months Nine Months October 27, 2008
Ending Ending Ending Ending Through
September 30, September 30, September 30, September 30, September 30,
2011 2010 2011 2010 2011
------------ ------------ ------------ ------------ ------------
(Restated) (Restated) (Restated)
EXPENSES
General & administrative $ 108,352 $ 134,699 $ 430,824 $ 484,170 $ 1,851,695
Development expenses -- 103,750 207,500 103,750 618,250
Interest and debt discount expense 35,713 3,085 115,449 3,589 122,164
------------ ------------ ------------ ------------ ------------
NET (LOSS) $ (144,065) $ (241,534) $ (753,773) $ (591,509) $ (2,592,109)
============ ============ ============ ============ ============
Basic and fully-diluted (loss) per share* $ (0.00) $ (0.01) $ (0.02) $ (0.01)
============ ============ ============ ============
Weighted average number of basic common
shares outstanding 48,158,957 45,049,500 47,104,558 45,014,143
============ ============ ============ ============
----------
* The fully-diluted loss per share is not presented since the result would be
anti-dilutive.
The accompanying footnotes notes are an integral part of
these financial statements.
5
IN MEDIA CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
Inception
Nine Months Nine Months October 27, 2008
Ended Ended Through
September 30, September 30, September 30,
2011 2010 2011
------------ ------------ ------------
(Restated) (Restated)
CASH FLOW FROM OPERATING ACTIVITIES
Net loss $ (753,773) $ (716,586) $ (2,592,109)
Adjustments to reconcile net income to net cash used
in operating activities
Stock issued in settlement of debt -- -- 675,000
Stock issued for services in lieu of cash 64,001 -- 568,000
Stock issued on conversion of notes -- -- 153,000
Amortization of prepaid maintenance expenses 207,500 -- --
Non cash stock compensation expense 47,687 -- 47,687
Discount on convertible notes, net of amortization (44,790) -- (66,232)
Extinguishment of derivative liability on convertible notes, net 20,317 -- 20,317
Foregiveness of director's loan (2,100) -- --
Note interest paid by common stock 6,249 -- 12,964
Increase (decrease) in operating liabilities
Accounts payable 253,289 19,716 301,767
Amounts due to related party -- 480,000 339,148
Advances and deposits from customers 47,650 -- 47,650
Net assets acquired in merger -- (50,965) --
------------ ------------ ------------
TOTAL CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES (153,970) (267,835) (492,808)
------------ ------------ ------------
CASH FLOW FROM INVESTING ACTIVITIES
TOTAL CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES -- -- --
------------ ------------ ------------
CASH FLOW FROM FINANCING ACTIVITIES
Proceeds from issuance of common stock -- 255,000 290,000
Net proceeds from sale of convertible notes 92,500 -- 203,000
Advances from related party 61,600 -- --
Loan from a director -- 8,095 --
------------ ------------ ------------
TOTAL CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES 154,100 263,095 493,000
------------ ------------ ------------
Net increase (decrease) in cash 130 (4,740) 192
Cash at beginning of period 62 4,803 --
------------ ------------ ------------
Cash at end of period $ 192 $ 63 $ 192
============ ============ ============
Supplemental Cash Flow Information:
Interest Paid $ -- $ -- $ --
============ ============ ============
Taxes Paid $ -- $ 800 $ 800
============ ============ ============
The accompanying footnotes are an integral part of these financial statements.
6
IN MEDIA CORPORATION
NOTES TO FINANCIAL STATEMENTS FOR THE THREE MONTHS AND NINE MONTHS
ENDED SEPTEMBER 30, 2011 AND 2010
(UNAUDITED)
1. ORGANIZATION
IN Media Corporation (the "Company") is a Nevada corporation incorporated on
March 5, 2007 as Tres Estrellas Enterprises, Inc. ("Tres Estrellas"). Effective
February 3, 2010, the Company changed its name to IN Media Corporation. The
Company is a development stage company. On October 30, 2009 (the "Acquisition
Date"), we executed an agreement between IN Media Corporation ("IN Media") and
Tres Estrellas whereby IN Media shareholders acquired thirty-three million, five
hundred thousand (33,500,000) shares of the Company's common stock and the
Company acquired all the issued and outstanding shares of In Media and IN Media
was merged into Tres Estrellas. The Company reported this event on Form 8-K,
filed with the Securities and Exchange Agreement on November 2, 2009. For
financial accounting purposes, the acquisition was a reverse merger of the
Company by IN Media, under the purchase method of accounting, and was treated as
a recapitalization with IN Media as the acquirer. Upon consummation of the
merger, the Company adopted the business plan of IN Media. Accordingly, the
consolidated statements of operations include the results of operations of IN
Media from its inception on October 27, 2008 and the results of operations of
Tres Estrellas from the Acquisition Date. The Company's fiscal year end is
December 31.
2. GOING CONCERN AND LIQUIDITY CONSIDERATIONS
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern, which contemplates, among other
things, the realization of assets and satisfaction of liabilities in the normal
course of business. As of September 30, 2011, the Company had accumulated a loss
from operations of $2.6 million and has earned no revenues since inception, and
our liabilities exceed our assets by approximately $0.7 million. The Company
intends to fund its continuing operations through strict expense management and
control, a combination of equity or debt financing arrangements, reliance on
third party contractors to avoid the need for capital expenditure or commitment
to fixed overhead, and extended credit from suppliers and related parties, all
of which may be insufficient to fund its capital expenditures, working capital
and other cash requirements for the year ending December 31, 2011.
In September and October 2010, we received purchase orders for approximately $1
million and $4 million of our hardware products from Sri Lanka and India,
respectively. As a result of our lack of financial resources and inability to
secure credit terms from our sub-contract manufacturer, we have not yet managed
to solve the problems of financing production of the inventory that we need to
fulfill these orders, and the order from India has subsequently lapsed. We will
not be able to fulfill the Sri Lanka or other orders until we can establish
additional funding to open letters of credit, or place security deposits with
our sub-contract manufacturer, and we are currently exploring all financing
options. We estimate that we may need to procure capital in the region of
$500,000 to secure the first delivery under these orders. While we have only
limited tangible assets as collateral to support debt financing, we believe we
have significant intangible value, including the licensed IP rights to our fully
operational IPTV products and systems, an established international distribution
channel for our products, and a purchase order from a potential customer. This
customer has agreed to work with us while we seek and negotiate financing
arrangements to fund these orders, however, as a result of the delay, they are
asking us to upgrade or customize certain features to remain at the forefront of
the competitive market by the time we actually ship the products ordered. If we
are unable to secure financing for production and delivery of this purchase
order within a reasonable period of time we face the risk that the order may be
cancelled or diverted to other providers of IP TV equipment. In March 2011, we
received an advance payment of $47,650 from a customer in India, for the
purchase of an initial order of hardware and software, and this advance should
enable us to have products manufactured and shipped from our sub-contract
manufacturer in fulfillment of this order in late 2011.
The ability of the Company to emerge from the development stage is dependent
upon, among other things, obtaining additional financing to purchase the
inventory required to fulfill current purchase order commitments, to make
on-account payments to vendors, and to service our current debt obligations.
7
These factors, among others, raise substantial doubt about the Company's ability
to continue as a going concern. The accompanying financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
3. RESTATEMENT OF FINANCIAL STATEMENTS
Subsequent to December 31, 2010 the Company reconsidered the manner in which it
had been accounting for convertible debt issued as a primary means of raising
additional equity funding. It concluded that the financial statements were not
reported in accordance with GAAP and incorrectly stated the financial position
at December 31, 2010 and results of operations for the year then ended as
described in Note 3 to the Financial Statements in this Amended and Restated
Form 10-K/A. As a result, as of November 15, 2011, the Company has re-stated its
financial statements as at December 31, 2010, and filed an amended Form 10-K/A
in order to comply with guidance provided by ASC 815-15-25-1. This accounting
principle issue has been corrected in this Amended and Restated Form 10-K/A, and
the Company has extended the scope of its engagement with its professional
advisors to focus more closely on ensuring future compliance with GAAP. The
comparative numbers for December 31, 2010 in these financial statements are
taken from the restated financial statements provided in that Form 10-K/A.
The Company also determined, for the same reason, that the Form 10-Qs filed for
the three months ended March 31, 2011 and six months ended June 30, 2011 were
not reported in accordance with GAAP and incorrectly stated the financial
position and results of operations for the periods then ended, and that they
should also be subject to adjustments to ensure compliance with ASC 815-15-25-1,
as well as adjustments to opening balances for accumulated deficit and
additional paid in capital, and other corrections of the December 31, 2010
comparative data to reflect the restated December 31, 2010 financial statements.
The Company has not filed amended and restated Forms 10-Q for these periods, but
includes a summary of the changes that would have been presented had it filed
amended Forms 10-Q/A for these periods.
The Company believes that the information contained in the restated Form 10-K/A
for the year ended December 31, 2010, this Form 10-Q for the nine months ended
September, 2011, and the information provided in this note in connection with
the periods ended March 31, and June 30, 2011 provide sufficient details of the
Company's financial position, results of operations and cash flows for the
period then ended.
AMOUNTS AS
PREVIOUSLY AMOUNTS AS
AMOUNTS IN $S EXCEPT SHARE DATA REPORTED ADJUSTMENTS RESTATED COMMENT
------------------------------- -------- ----------- -------- -------
Balance sheet as at March 31, 2011
----------------------------------
Derivative liability on notes -- 98,738 98,738 To record derivative embedded in convertible
notes
Long-term liability: Convertible note,
net of discount 90,000 (90,000) -- Reclassified as short-term liability
Current liability: Convertible note,
net of discount -- 57,720 57,720 Reclassified from long-term liability and
re-valued to reflect discount for embedded
derivative liability, net of amortization
Additional paid-in capital 903,484 106,228 1,009,712 Amortization of discount on notes &
restatement of prior year additional paid-in
capital
Accumulated deficit (1,880,793) (172,947) (2,053,740) Amortization of discount on notes & restatement
Statement of Operations for Three Months Ended March 31, 2011
-------------------------------------------------------------
General & administrative expense 20,038 (2,500) 17,538 Adjustment to consultant compensation
Interest and debt discount
amortization expense 2,715 27,401 30,116 Amortization of discount on notes
Net loss (190,503) (24,902) (215,405) Amortization of discount on notes and consultant
compensation
Statement of Cash Flows For Three Months Ended March 31, 2011
-------------------------------------------------------------
Net loss (190,503) (24,902) (215,405) Amortization of discount on notes and consultant
compensation
Amortization of note discount -- 27,401 27,401 Amortization of discount on notes
8
AMOUNTS AS
PREVIOUSLY AMOUNTS AS
AMOUNTS IN $S EXCEPT SHARE DATA REPORTED ADJUSTMENTS RESTATED COMMENT
------------------------------- -------- ----------- -------- -------
Balance sheet as at June 30, 2011
---------------------------------
Derivative liability on notes -- 115,838 115,838 To record derivative embedded in convertible
notes
Convertible note, net of discount 92,500 (23,787) 68,713 Re-valued to reflect discount for embedded
derivative liability, net of amortization
Additional paid-in capital 903,484 106,228 1,009,712 Amortization of discount on notes & restatement
of prior year additional paid- in capital
Accumulated deficit (2,249,494) (198,550) (2,448,044) Amortization of discount on notes & restatement
of prior year accumulated deficit
Statement of Operations for Three Months Ended June 30, 2011
------------------------------------------------------------
Interest and debt discount
amortization expense 24,028 25,592 49,620 Amortization of discount on notes
Net loss (368,711) (25,592) (394,303) Amortization of discount on notes
Statement of Cash Flows for Six Months Ended June 30, 2011
----------------------------------------------------------
Net loss (368,711) (25,592) (394,303) Amortization of discount on notes
Amortization of note discount -- 27,401 27,401 Amortization of discount on notes
4. SIGNIFICANT ACCOUNTING POLICIES
A) BASIS OF PRESENTATION
The accounting and reporting policies of the Company conform to U.S. generally
accepted accounting principles (US GAAP) applicable to development stage
companies.
B) USE OF ESTIMATES
The preparation of financial statements in conformity with U.S. generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amount of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
C) CASH AND CASH EQUIVALENTS
Cash and cash equivalents include cash in banks, money market funds, and
certificates of term deposits with maturities of less than three months from
inception, which are readily convertible to known amounts of cash and which, in
the opinion of management, are subject to an insignificant risk of loss in
value.
D) FAIR VALUE OF FINANCIAL INSTRUMENTS AND DERIVATIVE FINANCIAL INSTRUMENTS
The Company's financial instruments as defined by FASB ASC 825-10-50 include
cash, trade accounts receivable, and accounts payable and accrued expenses. All
instruments are accounted for on a historical cost basis, which, due to the
short maturity of these financial instruments, approximates fair value at
September 30, 2011. FASB ASC 820 defines fair value, establishes a framework for
measuring fair value in accordance with generally accepted accounting
principles, and expands disclosures about fair value measurements. ASC 820
establishes a three-tier fair value hierarchy which prioritizes the inputs used
in measuring fair value as follows:
Level 1. Observable inputs such as quoted prices in active markets;
Level 2. Inputs, other than the quoted prices in active markets, that are
observable either directly or indirectly; and
Level 3. Unobservable inputs in which there is little or no market data,
which requires the reporting entity to develop its own assumptions.
The Company does not have any assets or liabilities measured at fair value on a
recurring basis at September 30, 2011 and December 31, 2010.
E) INCOME TAXES
The Company accounts for income taxes under ASC 740 "Income Taxes" which
codified SFAS 109, "Accounting for Income Taxes" and FIN 48 "Accounting for
Uncertainty in Income Taxes - an Interpretation of FASB Statement No. 109."
9
Under the asset and liability method of ASC 740, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statements carrying amounts of existing assets
and liabilities and their respective tax bases. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. Under ASC 740, the effect on deferred tax assets and
liabilities of a change in tax rates is recognized in income in the period the
enactment occurs. A valuation allowance is provided for certain deferred tax
assets if it is more likely than not that the Company will not realize tax
assets through future operations.
F) EARNINGS (LOSS) PER SHARE
FASB ASC 260, "Earnings (Loss) Per Share" provides for calculation of "basic"
and "diluted" earnings per share. Basic earnings per share includes no dilution
and is computed by dividing net income (loss) available to common shareholders
by the weighted average common shares outstanding for the period. Diluted
earnings per share reflect the potential dilution of securities that could share
in the earnings of an entity similar to fully diluted earnings per share. Since
the Company has reported a loss in all periods, the Company has not reported
diluted loss per share since the result would be anti-dilutive.
G) STOCK-BASED COMPENSATION
ASC 718 "Compensation - Stock Compensation" codified SFAS No. 123 prescribes
accounting and reporting standards for all stock-based payments award to
employees, including employee stock options, restricted stock, employee stock
purchase plans and stock appreciation rights, may be classified as either equity
or liabilities. The Company should determine if a present obligation to settle
the share-based payment transaction in cash or other assets exists. A present
obligation to settle in cash or other assets exists if: (a) the option to settle
by issuing equity instruments lacks commercial substance or (b) the present
obligation is implied because of an entity's past practices or stated policies.
If a present obligation exists, the transaction should be recognized as a
liability; otherwise, the transaction should be recognized as equity. The
Company accounts for stock-based compensation issued to non-employees and
consultants in accordance with the provisions of ASC 505-50 "Equity - Based
Payments to Non-Employees" which codified SFAS 123 and the Emerging Issues Task
Force consensus in Issue No. 96-18 ("EITF 96-18"), "Accounting for Equity
Instruments that are Issued to Other Than Employees for Acquiring or in
Conjunction with Selling, Goods or Services". Measurement of share-based payment
transactions with non-employees shall be based on the fair value of whichever is
more reliably measurable: (a) the goods or services received; or (b) the equity
instruments issued. The fair value of the share-based payment transaction should
be determined at the earlier of performance commitment date or performance
completion date.
H) DERIVATIVE INSTRUMENTS
The Company recognizes the underlying value of embedded derivatives in
accordance with ASC 815-15-25-1. The value of the option for noteholders to
convert their notes into shares of common stock is calculated and credited as a
derivative liability for the duration of the notes, while an offsetting amount
is classified as a discount to the principal value of the notes. The derivative
value added to the discount reserve and derivative value was $37,585 and $62,168
during the nine months ended September 30, 2011 and 2010, respectively. The
value of the debt discount is amortized as interest expense on a straight line
basis over the life of the notes. During the nine months ended September 30,
2010 and 2009, the Company amortized $65,800 and $17,288, respectively, as debt
discount expense. At December 31, 2010, the Company valued the derivative
liability and determined that the carrying value was in line with market value
and, accordingly, no adjustments were made to the value of derivative liability
or additional paid-in capital.
I) REVENUE RECOGNITION
The Company recognizes revenue from the sale of products and services in
accordance with Securities and Exchange Commission Staff Accounting Bulletin No.
104 ("SAB 104"), "Revenue Recognition in Financial Statements." Revenue will
consist of products and services income and will be recognized only when all of
the following criteria have been met: (i) Persuasive evidence for an agreement
exists; (ii) Service or delivery has occurred; (iii) The fee is fixed or
determinable; and (iv) Revenue is reasonably assured.
10
5. CAPITAL STOCK
A) AUTHORIZED STOCK
The Company has authorized 75,000,000 common shares with $0.001 par value. Each
common share entitles the holder to one vote, in person or proxy, on any matter
on which action of the stockholder of the Company is sought.
On June 17, 2010, the Company filed an S-8 registration with the SEC reserving
2,500,000 common shares for issuance under the Company's 2010 Stock Option Plan.
During the period from registration through September 30, 2011, the Company
issued 2,417,000 shares to consultants and employees, and has 83,000 registered
shares available for future issuance.
On August 27, 2010, the Company filed an S-1 registration with the SEC reserving
4,000,000 common shares for issuance under the terms of a self-underwritten
public offering. The filing was subsequently withdrawn on October 18, 2010.
B) SHARE ISSUANCES
Since inception (October 27, 2008) to September 30, 2011, the Company has issued
the following shares:
(i) A total of 5,500,000 common stock shares to an officer and director at
$0.002 per share for a total of $11,000. The shares bear a restrictive
transfer legend in accordance with Rule 144 under the Securities Act.
(ii) A total of 6,000,000 common stock shares to 40 unaffiliated investors
at $.004 per share for a total of $24,000, pursuant to an SB-2
Registration Statement.
(iii)A total of 33,500,000 common stock shares to the shareholders of IN
Media Corporation pursuant to the terms and conditions of a Merger
Agreement. This issuance of stock did not involve any public offering,
general advertising or solicitation. At the time of the issuance, IN
Media had fair access to and was in possession of all available
material information about our Company. The shares bear a restrictive
transfer legend in accordance with Rule 144 under the Securities Act.
(iv) In addition, the Company has issued a total of 6,908,957 common stock
shares to (a) consultants for payment of services provided, (b)
vendors for the purchase and payment of movie distribution systems
including storage and distribution hardware, operating software, and
rights to distribute two thousand movie titles, (c) creditors for
settlement of outstanding debt, and (d) a noteholder for conversion of
certain notes payable and accrued interest thereon as set out in the
following table:
11
Summary Issuance of Common Stock
Nine Months Year Ended
Ended Ended
September 30, December 31,
# Shares 2011 2010 Total
-------- ---------- ---------- ----------
Payment of consultants 400,000 417,000 817,000
Purchase of assets 250,000 -- 250,000
Conversion of notes 1,140,968 145,618 1,286,586
Settlement of debt 4,500,000 -- 4,500,000
Payment of note interest 55,371 -- 55,371
---------- ---------- ----------
Total 6,346,339 562,618 6,908,957
========== ========== ==========
Nine Months Year Ended
Ended Ended
September 30, December 31,
Value of Shares 2011 2010 Total
--------------- ---------- ---------- ----------
Payment of consultants $ 64,001 $ 503,999 $ 568,000
Purchase of assets 40,000 -- 40,000
Conversion of notes 123,000 30,000 153,000
Settlement of debt 675,000 -- 675,000
Payment of note interest 6,121 -- 6,121
---------- ---------- ----------
Total $ 908,122 $ 533,999 $1,442,121
========== ========== ==========
The issuance of such shares of our common stock was effected in reliance on the
exemptions for sales of securities not involving a public offering, as set forth
in Rule 506 promulgated under the Securities Act of 1933, as amended (the
"Securities Act") and in Section 4(2) of the Securities Act, based on the
following: (a) the debt-holder confirmed to us that they were "accredited
investors," as defined in Rule 501 of Regulation D promulgated under the
Securities Act and had such background, education and experience in financial
and business matters as to be able to evaluate the merits and risks of an
investment in the securities; (b) there was no public offering or general
solicitation with respect to the conversion of the debt and issuance of the
shares; (c) the debt-holder acknowledged that the shares being issued were
"restricted securities" for purposes of the Securities Act, and agreed to
transfer such securities only in a transaction registered under the Securities
Act or exempt from registration under the Securities Act; and could only be
transferred if subsequently registered under the Securities Act or transferred
in a transaction exempt from registration under the Securities Act.
6. NOTES PAYABLE
The Company issued Convertible Notes ("Notes"), all carrying interest at 8% per
annum, to a single note holder as set forth in the following table.
Summary of Notes
Original Note Balance of Notes
Date of Issuance Proceeds Converted Repaid Outstanding
---------------- -------- --------- ------ -----------
8-Jun-10 $ 100,000 $(100,000) $ -- $ --
27-Jul-10 $ 53,000 $ (53,000) $ -- $ --
17-Nov-10 $ 47,500 $ -- $ (47,500) $ --
25-Jan-11 $ 42,500 $ -- $ (42,500) $ --
7-Apr-11 $ 50,000 $ -- $ -- $ 50,000
4-Oct-11 $ -- $ -- $ -- $ --
--------- --------- --------- ---------
$ 293,000 $(153,000) $ (90,000) $ 50,000
========= ========= ========= =========
The Notes can be converted at the noteholder's option any time after six months
from the issuance date based on 62.5% of the average of the lowest three closing
bid prices over the ten days preceding the conversion date. The Company is
12
required to maintain an available pool of common shares equal to 300% of the
number of shares required for conversion. As at September 30, 2011, two Notes
amounting to $153,000, and $6,121 of related interest thereon, had been
converted into 1,341,957 shares of common stock, and two Notes for $47,500 and
$42,500 were repaid prior to maturity including $24,300 and $21,600,
respectively, of accrued interest and prepayment penalties. The Company has
reserved 1,810,257 shares of common stock to cover the conversion of the
outstanding Notes and accrued interest as required under the terms of the Note
purchase agreements. There are no warrants attached to the Notes.
The Company recognizes the underlying value of embedded derivatives in
accordance with ASC 815-15-25-1. The value of the option for noteholders to
convert their notes into shares of common stock is calculated and credited as a
derivative liability for the duration of the notes, while an offsetting amount
is classified as a discount to the principal value of the notes. The derivative
value added to the discount reserve and derivative value was $37,585 and $62,168
during the nine months ended September 30, 2011 and 2010, respectively. The
value of the debt discount is amortized as interest expense on a straight line
basis over the life of the notes. During the nine months ended September 30,
2010 and 2009, the Company amortized $65,800 and $17,288, respectively, as debt
discount expense. At December 31, 2010, the Company valued the derivative
liability and determined that the carrying value was in line with market value
and, accordingly, no adjustments were made to the value of derivative liability
or additional paid-in capital.
7. INCOME TAXES
The Company has incurred operating losses of $2,592,109 which, if unutilized,
will begin to expire in 2027. Future tax benefits, which may arise as a result
of these losses, have not been recognized in these financial statements, and
have been offset by a valuation allowance. Details of future income tax assets
are as follows:
September 30, 2011
------------------
Future income tax assets:
Net operating loss from October 27, 2008 (inception)
to September 30, 2011 $ 2,592,109
Statutory tax rate (combined federal and state) 37.6%
Non-capital tax loss 975,060
Valuation allowance (975,060)
-----------
$ --
===========
The potential future tax benefits of these losses have not been recognized in
these financial statements due to uncertainty of their realization. When the
future utilization of some portion of the carry forwards is determined not to be
"more likely than not," a valuation allowance is provided to reduce the recorded
tax benefits from such assets.
8. NEW ACCOUNTING PRONOUNCEMENTS
The Company does not expect any recent accounting pronouncements to have a
material impact on its financial statements.
9. RELATED PARTY TRANSACTIONS
In the fourth quarter of 2010, Mr. Karnick paid off supplier balances of $2,100
on behalf of the Company and the balance outstanding at December 31, 2010 was
reported as an unsecured and interest-free loan from a director. The loan was
paid off in March 2011.
One of our shareholders, directors and officers, Mr. Karnick, who, together with
his wife, owns approximately 16 million shares of restricted common stock, has a
controlling interest in Numerity Corporation from whom we have licensed our
engineering technology, IP and set top box designs (the "Licensing and
Maintenance Agreement"), and to whom we are committed to pay maintenance and
royalties. On July 1, 2010, the Company agreed to amend that licensing agreement
to provide a deferral of any further maintenance dues, and an extension of
13
credit until three months after first commercial shipment. The amendment to the
Licensing and Maintenance Agreement was additionally authorized for the Company
by Mr. Danny Mabey, a board director.
One of our shareholders, directors and officers, Mr. Karnick, who, together with
his wife, owns approximately 16 million shares of restricted common stock, has a
controlling interest in Numerity Corporation with whom we contracted the
provision of executive, administration and business development services (the
"Service Agreement") in exchange for contract service fees of $40,000 per month.
On July 1, 2010, the Company and Numerity agreed to amend that Service Agreement
such that the next $330,000 of service fees payable would be waived by Numerity,
and the corresponding fees would be payable directly to Numerity's
sub-contractors, either in cash or common stock at the option of the Company.
Additionally, the parties agreed to extend credit for contract service fees due
to Numerity on a rolling quarterly basis, subject to mutual agreement.
Subsequently, as of January 1, 2011, the Company and Numerity agreed to
discontinue contract service charges, and instead have Numerity bill the Company
for the actual cost of any goods or services provided wholly, exclusively and
necessarily for the benefit of the Company. The amendments were additionally
both authorized by Mr. Danny Mabey, a board director.
As at September 30, 2011, we owed Numerity Corporation a total of $339,148 in
connection with license, service charge payments, and other advances made from
time to time, and with limited resources, we recognize that we are in no
position to pay any amounts due to Numerity Corporation until we are able to
raise significant cash from investment or commercial operations. Accordingly,
for no additional consideration, the Company entered into an extended credit
agreement with Numerity under which payments will not be due for one year and
one day after receipt of payment request from Numerity. Accordingly all amounts
due to Numerity are classified as non-current liabilities. On September 26,
2011, Numerity , for due consideration, entered into a debt assignment agreement
with Maxway Electronics Ltd, one of our prospective suppliers, under which
$675,000 of the debt due to Numerity was transferred to Maxway. On September 30,
2011, the Company issued 4.5 million shares of fully-paid restricted common
stock to Maxway in settlement of this debt.
One of our shareholders, Guifeng Qui, who owns approximately 13 million shares
of restricted common stock, has a controlling interest in the Chinese
distributor who we have appointed to represent us in developing our business in
China. The Agreement with this distributor provides that we will receive a
margin of $20 on each unit of set-top box sold through that distribution
channel, and an additional $5 per month per subscriber for content distribution
contracts using our content library of over four thousand titles.
One of our shareholders, directors and officers, Mr. Karnick owns the library of
film content which has been made available for our use at no charge to us, which
we intend to include as part of our product offerings. Mr. Karnik entered into
an agreement with the Company to make the library available for use and support
of our IPTV activities for the term of the License Agreement, without charge.
10. SUBSEQUENT EVENTS
On October 4, 2011, the Company received net proceeds of $52,000 from the
issuance of a convertible promissory note for $55,000. The note is repayable
after nine months, carries interest at 8% pa. and is convertible at the
noteholder's option any time after six months at a discount of 42% on the
average of the lowest three closing prices in the ten days preceding the
conversion date. On October 5, the Company repaid $30,000 of the principal
balance of another convertible note, due October 7, 2011, together with $20,000
of accrued and prepayment penalty interest.
14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CAUTIONARY STATEMENTS
The Company adopted at management's discretion, the most conservative
recognition of revenue based on the most stringent guidelines of the SEC.
Management will elect additional changes to revenue recognition to comply with
the most conservative SEC recognition on a forward going accrual basis as the
model is replicated with other similar markets (i.e. SBDC). The Company's actual
results could differ materially from those anticipated in these forward-looking
statements. In addition, the foregoing factors may affect generally our
business, results of operations and financial position. Forward-looking
statements speak only as of the date the statement was made. We do not undertake
and specifically decline any obligation to update any forward-looking
statements. All material risks are described in the risk section of this Form
10-Q and in the Company's Amended and restated Annual Report on Form 10-K/A for
the year ended December 31, 2010.
BACKGROUND
IN Media Corporation (the "Company") is a Nevada corporation incorporated on
March 5, 2007 as Tres Estrellas Enterprises, Inc. ("Tres Estrellas"). Effective
February 3, 2010, we changed our name to IN Media Corporation. We are a
development stage company. On October 30, 2009 (the "Acquisition Date"), we
executed an agreement between IN Media Corporation ("IN Media") and Tres
Estrellas whereby IN Media shareholders acquired thirty-three million, five
hundred thousand (33,500,000) shares of the Company's common stock, we received
all the issued and outstanding stock of In Media, and IN Media was merged into
Tres Estrellas. We reported this event on Form 8-K, filed with the Securities
and Exchange Agreement on November 2, 2009. For financial accounting purposes,
the acquisition was a reverse merger of our company by IN Media, under the
purchase method of accounting, and was treated as a recapitalization with IN
Media as the acquirer. Upon consummation of the merger, we adopted the business
plan of IN Media. Accordingly, the consolidated statements of operations include
the results of operations of IN Media from its inception on October 27, 2008 and
the results of operations of Tres Estrellas from the Acquisition Date through
September 30, 2011. Our fiscal year end is December 31.
BUSINESS
With our registered office in Reno, Nevada, and principal executive office in
Los Altos, CA, we are a development stage company positioned to exploit the
emerging market for Internet Protocol Television ("IPTV") services for cable,
satellite, internet, telephony and mobile markets. IPTV delivers video content
from public domain and premium content sources over the internet to consumer
display devices ranging from large screen TVs in the home, to mobile display
devices such as the I-Phone or I-Pad. Our goal is to become a global leader of
IPTV implementation systems through the design and delivery of a combination of
hardware, software, manufacturing and content services at competitive prices.
Our systems may be offered to communications providers such as cable or
satellite channels, governmental organizations, content owners such as
publishers, movie and video game owners, and other premium content providers, or
distributors and re-sellers who support such channels to either complete their
proprietary offerings or provide an all-in-one solution.
TRENDS AND MARKET OPPORTUNITIES
* In recent years the opportunity for IPTV has been fuelled by various
factors including, but not limited to improvements in broadband
technology and infrastructure and consequent reduced cost
* Growth of mass market adoption of broadband access including mobile
applications
* Consumer expectations and pressure for video on demand rather than
general broadcast distribution which has become increasingly expensive
and generally poor quality content
* Fragmentation and specialization of content ownership encouraging
content owners to make their content available by subscription,
advertising sponsorship, or as a message delivery medium
These trends have taken place in the North American market, but even more so in
developing countries around the world. Although we have focussed our efforts on
developing business opportunities in China, the demand is universal, and we have
received expressions of interest in our hardware products from India and Sri
Lankar.
15
PRODUCTS
We offer our customers fully integrated plug-and-play solutions comprising
hardware devices, operating software, and access to a library of video content.
As of September 30, 2011, we are currently offering a choice of three hardware
devices:
IPTV SET TOP BOX(IPSTB): The IPSTB enables a user to access video content such
as movies, videos, games, and educational or other promotional content simply
connecting the IPSTB to ethernet cable from a home Internet source such as a
Modem on one side to a Hi Definition TV set, or other convenient display on the
other. Once connected, the user gains access to internet content like YouTube,
Yahoo, Google or premium distribution sites like NetFlix, which stream video
over the internet.
TABLET PC : Our Tablet PC, offered in both 7 inch or 10 inch screen models works
in exactly the same way as our IPSTB enabling the user to access video over the
internet, however, because the display and the STB functionality are both
integrated into the device, the Tablet PC can also be used as a regular browser
for web surfing and other internet enabled functions like checking emails, or
making phone calls, in the same way as a consumer might use an Apple iPad.
PREMIUM VIDEO CONTENT: We currently have the rights to make available our
library of over 4,000 entertainment titles from Hollywood to "Bollywood" (the
informal term popularly used for the Mumbai-based Hindi-language film industry
in India) movies. This library can be made available and accessed by users
through their IPTV platform by direct subscription, or indirectly vis third
party channels.
DEVELOPMENT STAGE OPERATIONS
To date, we have built our business by focusing on outsourcing to experienced
and well established third party providers to reduce the risk of development
problems and delays, market and employee acquisition, and up-front cash flow. We
plan to sub-contract our production and logistics to third parties in China so
that we can leverage their facilities and equipment, production, purchasing and
logistics management, and inventory and working capital resources. These third
party contractors have been responsible for designing our products and operating
software, QA testing, customer demonstration and evaluation support, as well as
market analysis, channel development and sale promotion. They also provide
general and operational support, such that we have no full time employees, or
full time employee equivalents on our own books. By adopting this approach, we
have managed to develop, test, and bring to market three distinct product
offerings in the highly competitive global market for IPTV for a cumulative cost
of approximately $2.7 million. At the same time, we have been working with
distribution channels in China and other international markets to demonstrate
and prove our products and the integrated platform offering, complete with
software and content. To date we have not invested in any fixed assets, design,
test, or production equipment, and have no capital commitments to do so.
In September and October 2010, we received purchase orders for approximately $1
million and $4 million of our hardware products from Sri Lanka and India,
respectively. As a result of our lack of financial resources and inability to
secure credit terms from our sub-contract manufacturer, we have not yet managed
to solve the problems of financing production of the inventory that we needed to
fulfill these orders, and the order from India has subsequently lapsed. We will
not be able to fulfill the Sri Lanka order, or accept other orders until we can
establish additional funding to open letters of credit, or place security
deposits with our contract manufacturer, and we are currently exploring all
financing options. We estimate that we may need to procure capital in the region
of $500,000 to secure the first delivery under these orders. While we have only
limited tangible assets as collateral to support debt financing, we believe we
have significant intangible value, including the licensed IP rights to our fully
operational IPTV products and systems, an established international distribution
channel for our products, and a purchase order from a potential customer. This
customer has agreed to work with us while we seek and negotiate financing
arrangements to fund these orders, however, as a result of the delay, they are
asking us to upgrade or customize certain features to remain at the forefront of
the competitive market by the time we actually ship the products ordered. If we
are unable to secure financing for production and delivery of these purchase
orders within a reasonable period of time, we face the risk that the order may
16
be cancelled or diverted to other providers of IPTV equipment. In March 2011, we
received an advance payment of $47,650 from a customer in India for the purchase
of an initial order of hardware and software, and this advance should enable us
to have products manufactured and shipped from our sub-contract manufacturer in
fulfillment of this order.
THE COMPETITION AND COMPETITIVE ADVANTAGE
The competitive landscape for IPTV services is very crowded as the market
potential is very large. The key players will be the platform providers who
control access to telephony, television, internet and content for consumers.
However, new players like Microsoft, Apple, Amazon, and the major Hollywood
studios are moving forward on their own solutions to monetize content and
services over the internet. Key hardware vendors like Motorola, Cisco, Intel,
etc. are also potential competitors for set-top box solutions as they have
previously established relationships with the platform providers.
Although our competitors have strong brands and significant engineering and
marketing budgets we believe that we will have an opportunity to compete because
we have outsourced our manufacturing and distribution function in China to local
partners who know and operate in the Chinese market where our cost is low and
the power of established US brands may not be so powerful. Since we already have
a fully functional product offering and have established local distribution we
believe our market offering in China is fully competitive with solutions from
our competitors.
RESULTS OF OPERATIONS
We are a development stage company and have been focused to date on developing
and refining our product hardware and operating platform to reflect market
feedback, and build our distribution channels and relationships, however we have
not yet generated any revenues while we have incurred $2,592,109 in expenses
since inception through September 30, 2011. In September and October 2010, we
received purchase orders for approximately $1 million and $4 million of our
hardware products from Sri Lanka and India, respectively. As a result of our
lack of financial resources and inability to secure credit terms from our
sub-contract manufacturer we have not yet managed to solve the problems of
financing production of the inventory that we need to fulfill these orders, and
the order from India has subsequently lapsed. We will not be able to fulfill the
Sri Lanka or accept other orders until we can establish additional funding to
open letters of credit, or place security deposits with our contract
manufacturer, and we are currently exploring all financing options. We estimate
that we may need to raise in the region of $500,000 to secure the first delivery
under these orders. While we have only limited tangible assets as collateral to
support debt financing, we believe we have significant intangible value,
including the licensed IP rights to our fully operational IPTV products and
systems, an established international distribution channel for our products, and
a purchase order from a potential customer. This customer has agreed to work
with us while we seek and negotiate financing arrangements to fund these orders,
however, as a result of the delay, they are asking us to upgrade or customize
certain features to remain at the forefront of the competitive market by the
time we actually ship the products ordered. If we are unable to secure financing
for production and delivery of these purchase orders within a reasonable period
of time we face the risk that the order may be cancelled or diverted to other
providers of IP TV equipment. In March 2011, we received an advance payment of
$47,650 from a customer in India, for the purchase of an initial order of
hardware and software, and this advance should help us to have products
manufactured and shipped from our sub-contract manufacturer in fulfillment of
this order.
We incurred $108,352 and $134,699 in general administrative expenses for the
three months ended September 30, 2011 and 2010, respectively. These costs
consisted of general and administration, business development expenses, and
professional fees associated with our financial reports and SEC filings. The
decrease of 19.6% over the same period in 2010 was principally due to negotiated
changes to the service agreement with Numerity.
Additionally, we incurred $0 and $103,750 of development expenses in the three
months ended September 30, 2011 and 2010, respectively. The Company entered into
a Licensing and Maintenance Agreement with Numerity Corporation in which it
committed to pay $415,000 per year in maintenance fees, and intended to amortize
the cost over a twelve month period. At various times, as expectations of first
commercial shipments were delayed, the maintenance period was extended with $0
being amortized in the three months ended September 30, 2011, and $103,750 in
the three months ended September 30, 2010. The amended License and Maintenance
17
Agreement now provides that maintenance charges will be waived until three
months after first commercial shipment of licensed IPTV product.
Interest and debt discount expense amounted to $35,713 and $3,085 for the three
months ended September 30, 2011 and 2010, respectively. The interest expense for
the three months ended September 30, 2011 included $29,100 of penalty interest
for exercise of a prepayment option on a convertible note, $12,807 amortization
of debt discount, and $3,806 of note interest. The interest charges reflect
interest of 8 % pa on the actual amounts of notes outstanding during the
respective periods.
The following table provides selected financial data about our company as at
September 30, 2011.
Balance Sheet Data
------------------
Cash $ 191
Total assets $ 40,192
Total liabilities $ 758,652
Shareholders' equity (deficit) $(718,460)
LIQUIDITY AND CAPITAL RESOURCES
Our cash balance at September 30, 2011 was $192. During the nine months ended
September 30, 2011, we generated $130 in cash, of which $92,500 was generated by
the net proceeds of sale of convertible notes, and $153,970 was used in
operating activities. We also received an advance from Numerity of $61,600.
Since September 2010, we have received two orders amounting to $5 million for
our products, but due to lack of cash or credit capacity, we have been unable to
secure production of the products necessary to fulfill these orders. Of these
orders, $4 million was withdrawn, and the remaining $1 million is still
outstanding, but the customer has modified the order to require additional
features. On March 31, 2011, we received a prepaid deposit from a customer for
$47,650 which we intend to leverage to secure production of the inventory
required to meet this order.
We are a development stage company and have generated no revenue to date.
Although we have managed to raise $290,000 through the issuance of common stock,
secured advances from directors and officers of our company, obtained extended
credit from related parties in connection with services provided, and raised
funding from the issuance of convertible notes, aggregating $293,000 as of
September 30, 2011, there is no assurance that we can secure additional funding
to cover our expenses or working capital requirements in the future. We filed an
S-1 registration statement on September 13, 2010 in contemplation of raising up
to $4 million from the sale of our common stock, however, this filing was
withdrawn on October 18, 2010 so as not to limit other short-term fund-raising
activities being undertaken in connection with providing the working capital we
need to fund recently received purchases orders. As a result of the loss of our
original market maker, and delays in finding a replacement and completing the
required approval with FINRA, our stock was listed on the OTCQB exchange rather
than on the OTC Bulletin Board, and this may have hampered our ability to raise
additional note financing from our current note finance partner or other
potential investors. Subsequently, in June 2011 our application for relisting on
OTC Bulletin Board was approved by FINRA.
We are currently seeking other available sources of funding to provide secured,
back-to-back financing of our purchase order commitments with production
inventory. If we are unable to secure adequate capital to continue, our business
will likely fail, and our shareholders could lose some or all of their
investment. We cannot continually incur operating losses in the future and may
decide that we can no longer continue with our business operations as detailed
in our business plan because of a lack of financial results and a lack of
available financial resources.
OFF-BALANCE SHEET ARRANGEMENTS
We do not have any off-balance sheet arrangements that have or are reasonably
likely to have a current or future effect on our financial condition, changes in
financial condition, revenues or expenses, results of operations, liquidity,
capital expenditures or capital resources that is material to investors.
18
RECENT ACCOUNTING PRONOUNCEMENTS
Recent accounting pronouncements that the Company has adopted or that will be
required to adopt in the future are summarized below.
On September 30, 2009, the Company adopted updates issued by the Financial
Accounting Standards Board (FASB) to the authoritative hierarchy of GAAP. These
changes establish the FASB Accounting Standards CodificationTM (ASC) as the
source of authoritative accounting principles recognized by the FASB to be
applied by nongovernmental entities in the preparation of financial statements
in conformity with GAAP. Rules and interpretive releases of the Securities and
Exchange Commission ("SEC") under authority of federal securities laws are also
sources of authoritative GAAP for SEC registrants. The FASB will no longer issue
new standards in the form of Statements, FASB Staff Positions, or Emerging
Issues Task Force Abstracts; instead the FASB will issue Accounting Standards
Updates. Accounting Standards Updates will not be authoritative in their own
right as they will only serve to update the Codification. These changes and the
Codification itself do not change GAAP. Other than the manner in which new
accounting guidance is referenced, the adoption of these changes had no impact
on the Condensed Consolidated Financial Statements.
In June 2009, the FASB issued guidance now codified as ASC Topic 105, "GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES" ("ASC 105"), which establishes the FASB
Accounting Standards Codification as the source of GAAP to be applied to
nongovernmental agencies. ASC 105 explicitly recognizes rules and interpretive
releases of the SEC under authority of federal securities laws as authoritative
GAAP for SEC registrants. ASC 105 became effective for interim or annual periods
ending after September 15, 2009. ASC 105 does not have a material impact on the
Company's consolidated financial statements presented hereby.
In May 2009, the FASB issued guidance now codified as ASC Topic 855, "SUBSEQUENT
EVENTS" ("ASC 855"). The pronouncement modifies the definition of what qualifies
as a subsequent event--those events or transactions that occur following the
balance sheet date, but before the financial statements are issued, or are
available to be issued--and requires companies to disclose the date through
which it has evaluated subsequent events and the basis for determining that
date. The Company adopted the provisions of ASC 855 in the second quarter of
2009, in accordance with the effective date.
On July 1, 2009, we adopted guidance issued by the FASB on business
combinations. The guidance retains the fundamental requirements that the
acquisition method of accounting (previously referred to as the purchase method
of accounting) be used for all business combinations, but requires a number of
changes, including changes in the way assets and liabilities are recognized and
measured as a result of business combinations. It also requires the
capitalization of in-process research and development at fair value and requires
the expensing of acquisition-related costs as incurred. We have applied this
guidance to business combinations completed since July 1, 2009.
On July 1, 2009, we adopted guidance issued by the FASB that changes the
accounting and reporting for non-controlling interests. Non-controlling
interests are to be reported as a component of equity separate from the parent's
equity, and purchases or sales of equity interests that do not result in a
change in control are to be accounted for as equity transactions. In addition,
net income attributable to a non-controlling interest is to be included in net
income and, upon a loss of control, the interest sold, as well as any interest
retained, is to be recorded at fair value with any gain or loss recognized in
net income. Adoption of the new guidance did not have a material impact on our
financial statements. On July 1, 2009, we adopted guidance on fair value
measurement for nonfinancial assets and liabilities, except for items that are
recognized or disclosed at fair value in the financial statements on a recurring
basis (at least annually). Adoption of the new guidance did not have a material
impact on our financial statements.
In January 2010, the Financial Accounting Standards Board ("FASB") issued
guidance to amend the disclosure requirements related to recurring and
nonrecurring fair value measurements. The guidance requires new disclosures on
the transfers of assets and liabilities between Level 1 (quoted prices in active
market for identical assets or liabilities) and Level 2 (significant other
observable inputs) of the fair value measurement hierarchy, including the
reasons and the timing of the transfers. Additionally, the guidance requires a
19
roll forward of activities on purchases, sales, issuance, and settlements of the
assets and liabilities measured using significant unobservable inputs (Level 3
fair value measurements). The guidance became effective for us with the
reporting period beginning January 1, 2010, except for the disclosure on the
roll forward activities for Level 3 fair value measurements, which will become
effective for us with the reporting period beginning July 1, 2011. Other than
requiring additional disclosures, adoption of this new guidance did not have a
material impact on our financial statements. On February 24, 2010, the FASB
issued guidance in the "Subsequent Events" topic of the FASC to provide updates
including: (1) requiring the company to evaluate subsequent events through the
date in which the financial statements are issued; (2) amending the glossary of
the "Subsequent Events" topic to include the definition of "SEC filer" and
exclude the definition of "Public entity"; and (3) eliminating the requirement
to disclose the date through which subsequent events have been evaluated. This
guidance was prospectively effective upon issuance. The adoption of this
guidance did not impact the Company's results of operations of financial
condition.
In October 2009, the FASB issued guidance on revenue recognition that became
effective for us beginning July 1, 2010. Under the new guidance on arrangements
that include software elements, tangible products that have software components
that are essential to the functionality of the tangible product will no longer
be within the scope of the software revenue recognition guidance, and
software-enabled products will now be subject to other relevant revenue
recognition guidance. Additionally, the FASB issued guidance on revenue
arrangements with multiple deliverables that are outside the scope of the
software revenue recognition guidance. Under the new guidance, when vendor
specific objective evidence or third party evidence for deliverables in an
arrangement cannot be determined, a best estimate of the selling price is
required to separate deliverables and allocate arrangement consideration using
the relative selling price method. The new guidance includes new disclosure
requirements on how the application of the relative selling price method affects
the timing and amount of revenue recognition. We believe adoption of this new
guidance will not have a material impact on our financial statements. In June
2009, the FASB issued guidance on the consolidation of variable interest
entities, which became effective for us beginning July 1, 2010. The new guidance
requires revised evaluations of whether entities represent variable interest
entities, ongoing assessments of control over such entities, and additional
disclosures for variable interest entities.
In January 2010, the FASB issued an amendment to ASC 505, Equity, where entities
that declare dividends to shareholders that may be paid in cash or shares at the
election of the shareholders are considered to be a share issuance that is
reflected prospectively in EPS, and is not accounted for as a stock dividend.
This standard is effective for interim and annual periods ending on or after
December 15, 2009 and is to be applied on a retrospective basis. The adoption of
this standard did not have a significant impact on the Company's consolidated
financial statements.
The Company has implemented all new accounting pronouncements that are in effect
and that may impact its financial statements and does not believe that there are
any other new accounting pronouncements that have been issued that might have a
material impact on its financial position or results of operations.
WHERE YOU CAN FIND MORE INFORMATION
You are advised to read this Form 10-Q in conjunction with other reports and
documents that we file from time to time with the SEC. In particular, please
read our Quarterly Reports on Form 10-Q, Annual Report on Form 10-K and 10-K/A,
and Current Reports on Form 8-K that we file from time to time. You may obtain
copies of these reports directly from us or from the SEC at the SEC's Public
Reference Room at 100 F. Street, N.E. Washington, D.C. 20549, and you may obtain
information about obtaining access to the Reference Room by calling the SEC at
1-800-SEC-0330. In addition, the SEC maintains information for electronic filers
at its website http://www.sec.gov.
20
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We do not hold any derivative instruments and do not engage in any hedging
activities.
ITEM 4. CONTROLS AND PROCEDURES
(A) EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
Under the supervision and with the participation of the Company's management,
including the Chief Executive Officer and the Chief Financial Officer, the
Company has evaluated the effectiveness of its disclosure controls and
procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) under the
Securities Exchange Act of 1934, as amended (Exchange Act). Based on that
evaluation, the Chief Executive Officer and the Chief Financial Officer have
concluded that these disclosure controls and procedures are effective as of the
end of the period covered by this quarterly report.
(B) CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
There was no change in the Company's internal control over financial reporting,
as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act, during the most
recent fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the Company's internal control over financial reporting.
21
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 1A. RISK FACTORS
You should carefully consider the following risk factors together with the other
information contained in this Interim Report on Form 10-Q, and in prior reports
pursuant to the Securities Exchange Act of 1934, as amended and the Securities
Act of 1933, as amended. If any of the risks factors actually occur, our
business, financial condition or results of operations could be materially
adversely affected. There have been no material changes to the risk factors
previously discussed in Item 1A of the Company's Amended and Restated Form
10-K/A for the year ended December 31, 2010, including but not limited, to the
following:
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW AND THE OTHER INFORMATION CONTAINED
IN THIS PROSPECTUS BEFORE DECIDING TO INVEST IN OUR COMMON STOCK.
If any of the following risks, or any other risks not described below because
they are currently unknown to us or we currently deem such risks as immaterial,
but they later become material, actually occurs, it is likely that our business,
financial condition, and operating results could be seriously harmed. As a
result, the trading price of our Common Stock could decline and you could lose
part or all of your investment.
MINIMAL OPERATING HISTORY AND NO REVENUE MEANS THAT IT IS DIFFICULT TO DETERMINE
WHEN, IF AT ALL, WE WILL EVER BE PROFITABLE, AND PROVIDE A RETURN TO INVESTORS.
Prior to the merger we had a minimal operating history and have generated no
revenues or earnings from operations. We have no significant assets or financial
resources. We will, in all likelihood, sustain operating expenses without
corresponding revenues, at least until we begin selling our product. This will
result in us incurring a net operating loss which will increase continuously
until we can generate sufficient revenue. There is no assurance that we can
generate or sustain profitable operations.
THE REPORT OF OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM CONTAINS
EXPLANATORY LANGUAGE THAT SUBSTANTIAL DOUBT EXISTS ABOUT OUR ABILITY TO CONTINUE
AS A GOING CONCERN.
The independent auditor's report on our financial statements for the year ended
December 31, 2010 and the footnotes to that report, contained explanatory
language that substantial doubt exists about our ability to continue as a going
concern, specifically in Note 2 to these financial statements. The report states
that we had accumulated a loss from operations of $2.6 million and have earned
no revenues since inception, and our liabilities exceed our assets by over $1.7
million. Management intends to fund its continuing operations through strict
expense management and control, a combination of equity or debt financing
arrangements, reliance on third party contractors to avoid the need for capital
expenditure or commitment to fixed overhead, and extended credit from suppliers
and related parties, all of which may be insufficient to fund our capital
expenditures, working capital and other cash requirements for the year ending
December 31, 2011. If we are unable to obtain sufficient financing in the near
term or achieve profitability, then we would, in all likelihood, experience
severe liquidity problems and may have to curtail our operations. If we curtail
our operations, we may be placed into bankruptcy or undergo liquidation, the
result of which will adversely affect the value of our common shares.
SPECULATIVE NATURE OF THE COMPANY'S PROPOSED OPERATIONS MEANS THAT IT IS
DIFFICULT TO DETERMINE WHEN, IF AT ALL, OUR BUSINESS MODEL WILL BE ACCEEPTED BY
THE MARKET, AND ENABLE US TO EARN PROFITS AND PROVIDE A RETURN TO INVESTORS.
The success of our proposed plan of operation will depend to a great extent on
the operations, financial condition and management of the Company. In the
immediate future we will spend most of our resources, efforts and expenditures
in two primary areas: 1) The securing of key customers and 2) the development of
our IPTV set top box products. We have generated no revenue since inception due
to the fact that we have not yet made any commercial shipments of our products.
The success of our operations will be dependent upon finding qualified customers
and their acceptance of our product and numerous other factors beyond our
control,
22
including, but not limited to development of our sales channels, competitive
features and pricing compared to our competitors in a dynamic and evolving
market, the impact of economic and political instability on consumer spending
habits, consumer awareness of IP TV and interest in available libraries of
content, and our ability to finance and manage production and distribution of
inventories for resale. Additionally, even if we succeed in winning orders for
our products, we may not be able to finance the building of the inventory
necessary to fulfill such orders on acceptable terms, or on any terms at all.
REPORTING REQUIREMENTS MAY UTILIZE A SUBSTANTIAL PORTION OF OUR CASH AND REDUCE
THE PERIOD OF TIME WE CAN SURVIVE ON OUR AVAILABLE CASH RESERVES PRIOR TO
GENERATING REVENUE.
We will incur ongoing costs and expenses for SEC reporting and compliance. To be
eligible for quotation on the OTCBB, issuers must remain current in their
filings with the SEC. Market Makers are not permitted to begin quotation of a
security whose issuer does not meet this filing requirement. Securities already
quoted on the OTCBB that become delinquent in their required filings will be
removed following a 30 day grace period if they do not make their required
filing during that time. In order for us to remain in compliance we will require
future revenues to cover the cost of these filings, which could comprise a
substantial portion of our available cash resources.
THE REGULATION OF PENNY STOCKS BY SEC AND FINRA MAY DISCOURAGE THE TRADABILITY
OF THE COMPANY'S SECURITIES AND THEREBY MAKE IT HARD FOR INVESTORS TO SELL THEIR
SHARES AT THE TIME AND PRICES THEY MIGHT OTHERWISE EXPECT.
We are a "penny stock" company. We are subject to a Securities and Exchange
Commission rule that imposes special sales practice requirements upon
broker-dealers who sell such securities to persons other than established
customers or accredited investors. For purposes of the rule, the phrase
"accredited investors" means, in general terms, institutions with assets in
excess of $5,000,000, or individuals having a net worth in excess of $1,000,000
or having an annual income that exceeds $200,000 (or that, when combined with a
spouse's income, exceeds $300,000). For transactions covered by the rule, the
broker-dealer must make a special suitability determination of the purchaser and
receive the purchaser's written agreement to the transaction prior to the sale.
Effectively, this discourages broker-dealers from executing trades in penny
stocks. Consequently, the rule will affect the ability of purchasers in this
offering to sell their securities in any market that might develop, because it
imposes additional regulatory burdens on penny stock transactions.
In addition, the Securities and Exchange Commission has adopted a number of
rules to regulate "penny stocks". Such rules include Rules 3a51-1, 15g-1, 15g-2,
15g-3, 15g-4, 15g-5, 15g-6, and 15g-9 under the Securities and Exchange Act of
1934, as amended. Because our securities constitute "penny stocks" within the
meaning of the rules, the rules would apply to us and to our securities. The
rules will further affect the ability of owners of shares to sell their
securities in a market that might develop for them because it imposes additional
regulatory burdens on penny stock transactions.
Shareholders should be aware that, according to the Securities and Exchange
Commission Release No. 34-29093, the market for penny stocks has suffered in
recent years from patterns of fraud and abuse. Such patterns include (i) control
of the market for the security by one or a few broker-dealers that are often
related to the promoter or issuer; (ii) manipulation of prices through
prearranged matching of purchases and sales and false and misleading press
releases; (iii) "boiler room" practices involving high-pressure sales tactics
and unrealistic price projections by inexperienced sales persons; (iv) excessive
and undisclosed bid-ask differentials and markups by selling broker-dealers; and
(v) the wholesale dumping of the same securities by promoters and broker-dealers
after prices have been manipulated to a desired level, leaving investors with
losses. Our management is aware of the abuses that have occurred historically in
the penny stock market. Although we do not expect to be in a position to dictate
the behavior of the market or of broker-dealers who participate in the market,
management will strive within the confines of practical limitations to prevent
the described patterns from being established with respect to the Company's
securities.
RULE 144 SALES IN THE FUTURE MAY HAVE A DEPRESSIVE EFFECT ON THE COMPANY'S STOCK
PRICE AS AN INCREASE IN SUPPLY OF SHARES FOR SALE, WITH NO CORRESPONDING
INCREASE IN DEMAND WILL CAUSE PRICES TO FALL.
All of the outstanding shares of common stock held by the present officers,
directors, and affiliate stockholders are "restricted securities" within the
meaning of Rule 144 under the Securities Act of 1933, as amended. As restricted
23
shares, these shares may be resold only pursuant to an effective registration
statement or under the requirements of Rule 144 or other applicable exemptions
from registration under the Act and as required under applicable state
securities laws. Officers, directors and affiliates will be able to sell their
shares if this Registration Statement becomes effective. Rule 144 provides in
essence that a person who is an affiliate or officer or director who has held
restricted securities for six months may, under certain conditions, sell every
three months, in brokerage transactions, a number of shares that does not exceed
the greater of 1.0% of a Company's outstanding common stock. There is no limit
on the amount of restricted securities that may be sold by a non-affiliate after
the owner has held the restricted securities for a period of six months if the
company is a current, reporting company under the 1934 Act. A sale under Rule
144 or under any other exemption from the Act, if available, or pursuant to
subsequent registration of shares of common stock of present stockholders, may
have a depressive effect upon the price of the common stock in any market that
may develop. In addition, if we are deemed a shell company pursuant to Section
12(b)-2 of the Act, our "restricted securities", whether held by affiliates or
non-affiliates, may not be re-sold for a period of 12 months following the
filing of a Form 10 level disclosure or registration pursuant to the Act.
FUTURE ISSUANCES OF SHARES FOR VARIOUS CONSIDERATIONS INCLUDING WORKING CAPITAL
AND OPERATING EXPENSES WILL INCREASE THE NUMBER OF SHARES OUTSTANDING WHICH WILL
DILUTE EXISTING INVESTORS AND MAY HAVE A DEPRESSIVE EFFECT ON THE COMPANY'S
STOCK PRICE.
There may be substantial dilution to our shareholders purchasing in future
offerings as a result of future decisions of the Board to issue shares without
shareholder approval for cash, services, or acquisitions.
THERE MAY IN ALL LIKLIHOOD BE LITTLE DEMAND FOR SHARES OF OUR COMMON STOCK AND
AS A RESULT INVESTORS MAY BE UNABLE TO SELL AT OR NEAR ASK PRICES OR AT ALL IF
THEY NEED TO LIQUIDATE THEIR INVESTMENT.
There may be little demand for shares of our common stock on the OTC Bulletin
Board meaning that the number of persons interested in purchasing our common
shares at or near ask prices at any given time may be relatively small or
non-existent. This situation is attributable to a number of factors, including
the fact that it is a small company which is relatively unknown to stock
analysts, stock brokers, institutional investors and others in the investment
community that generate or influence sales volume, and that even if the Company
came to the attention of such persons, they tend to be risk-averse and would be
reluctant to follow an unproven, early stage company such as ours or purchase or
recommend the purchase of any of our Securities until such time as it became
more seasoned and viable. As a consequence, there may be periods of several days
or more when trading activity in the Company's securities is minimal or
non-existent, as compared to a seasoned issuer which has a large and steady
volume of trading activity that will generally support continuous sales without
an adverse effect on the securities price. We cannot give investors any
assurance that a broader or more active public trading market for the Company's
common securities will develop or be sustained, or that any trading levels will
be sustained. Due to these conditions, we can give investors no assurance that
they will be able to sell their shares at or near ask prices or at all if they
need money or otherwise desire to liquidate their securities of the Company.
FAILURE TO ACHIEVE AND MAINTAIN EFFECTIVE INTERNAL CONTROLS IN ACCORDANCE WITH
SECTION 404 OF THE SARBANES-OXLEY ACT COULD HAVE A MATERIAL ADVERSE EFFECT ON
OUR BUSINESS AND OPERATING RESULTS.
It may be time consuming, difficult and costly for us to develop and implement
the additional internal controls, processes and reporting procedures required by
the Sarbanes-Oxley Act. We may need to hire additional financial reporting,
internal auditing and other finance staff in order to develop and implement
appropriate additional internal controls, processes and reporting procedures. If
we are unable to comply with these requirements of the Sarbanes-Oxley Act, we
may not be able to obtain the independent accountant certifications that the
Sarbanes-Oxley Act requires of publicly traded companies.
If we fail to comply in a timely manner with the requirements of Section 404 of
the Sarbanes-Oxley Act regarding internal control over financial reporting or to
remedy any material weaknesses in our internal controls that we may identify,
such failure could result in material misstatements in our financial statements,
cause investors to lose confidence in our reported financial information and
have a negative effect on the trading price of our common stock.
24
Pursuant to Section 404 of the Sarbanes-Oxley Act and current SEC regulations,
we are required to prepare assessments regarding internal controls over
financial reporting and furnish a report by our management on our internal
control over financial reporting. Failure to achieve and maintain an effective
internal control environment or complete our Section 404 certifications could
have a material adverse effect on our stock price.
In addition, in connection with our on-going assessment of the effectiveness of
our internal control over financial reporting, we may discover "material
weaknesses" in our internal controls as defined in standards established by the
Public Company Accounting Oversight Board, or the PCAOB. A material weakness is
a significant deficiency, or combination of significant deficiencies, that
results in more than a remote likelihood that a material misstatement of the
annual or interim financial statements will not be prevented or detected. The
PCAOB defines "significant deficiency" as a deficiency that results in more than
a remote likelihood that a misstatement of the financial statements that is more
than inconsequential will not be prevented or detected.
In the event that a material weakness is identified, we will employ qualified
personnel and adopt and implement policies and procedures to address any
material weaknesses that we identify. However, the process of designing and
implementing effective internal controls is a continuous effort that requires us
to anticipate and react to changes in our business and the economic and
regulatory environments and to expend significant resources to maintain a system
of internal controls that is adequate to satisfy our reporting obligations as a
public company. We cannot assure you that the measures we will take will
remediate any material weaknesses that we may identify or that we will implement
and maintain adequate controls over our financial process and reporting in the
future.
Any failure to complete our assessment of our internal control over financial
reporting, to remediate any material weaknesses that we may identify or to
implement new or improved controls, or difficulties encountered in their
implementation, could harm our operating results, cause us to fail to meet our
reporting obligations or result in material misstatements in our financial
statements. Any such failure could also adversely affect the results of the
periodic management evaluations of our internal controls and, in the case of a
failure to remediate any material weaknesses that we may identify, would
adversely affect the annual auditor attestation reports regarding the
effectiveness of our internal control over financial reporting that are required
under Section 404 of the Sarbanes-Oxley Act. Inadequate internal controls could
also cause investors to lose confidence in our reported financial information,
which could have a negative effect on the trading price of our common stock.
The systems of internal controls and procedures that we have developed and
implemented to date are adequate in a business that has no revenue, few purchase
and expense transactions, and little in the way of tangible assets and working
capital. However, the reliance on third party sub-contractors and lack of
employees makes it difficult to ensure segregation of key duties, provide
multiple levels of review, and ensure that specified checks and balances exist
and are enforced and acted upon where necessary. The current transaction volume
and limited transaction channels mean that operating management, financial
management, and the independent board member and auditor can, and do,
efficiently perform a very extensive and detailed transaction review to ensure
compliance with the Company's established procedures and controls. When we
secure purchase orders and start purchasing product from our sub-contract
manufacturers, shipping product to our customers, collecting receivables, and
paying our vendors we will need to apply significantly more resources to the
management of our controls and procedures and to ensure and continue effective
compliance. If our business grows rapidly, we may not be able to keep up with
recruiting and training personnel, and enhancing our systems of internal control
in line with the growth in transaction volumes and compliance risks which could
result in loss of assets, profit, and ability to manage the daily operations of
our Company.
CERTAIN NEVADA CORPORATION LAW PROVISIONS COULD PREVENT A POTENTIAL TAKEOVER,
WHICH COULD ADVERSELY AFFECT THE MARKET PRICE OF OUR COMMON STOCK.
We are incorporated in the State of Nevada. Certain provisions of Nevada
corporation law could adversely affect the market price of our common stock.
Because Nevada corporation law requires board approval of a transaction
involving a change in our control, it would be more difficult for someone to
acquire control of us. Nevada corporate law also discourages proxy contests
making it more difficult for you and other shareholders to elect directors other
than the candidate or candidates nominated by our board of directors.
25
THE MARKET PRICE FOR OUR COMMON SHARES IS PARTICULARLY VOLATILE GIVEN OUR STATUS
AS A RELATIVELY UNKNOWN COMPANY WITH A SMALL AND THINLY TRADED PUBLIC FLOAT,
LIMITED OPERATING HISTORY AND LACK OF PROFITS WHICH COULD LEAD TO WIDE
FLUCTUATIONS IN OUR SHARE PRICE. THE PRICE AT WHICH YOU PURCHASE OUR COMMON
SHARES MAY NOT BE INDICATIVE OF THE PRICE THAT WILL PREVAIL IN THE TRADING
MARKET. YOU MAY BE UNABLE TO SELL YOUR COMMON SHARES AT OR ABOVE YOUR PURCHASE
PRICE, WHICH MAY RESULT IN SUBSTANTIAL LOSSES TO YOU.
The market for our common shares is characterized by significant price
volatility when compared to seasoned issuers, and we expect that our share price
will continue to be more volatile than a seasoned issuer for the indefinite
future. The volatility in our share price is attributable to a number of
factors. First, as noted above, our common shares are sporadically and thinly
traded. As a consequence of this lack of liquidity, the trading of relatively
small quantities of shares by our shareholders may disproportionately influence
the price of those shares in either direction. The price for our shares could,
for example, decline precipitously in the event that a large number of our
common shares are sold on the market without commensurate demand, as compared to
a seasoned issuer which could better absorb those sales without adverse impact
on its share price. Secondly, we are a speculative or "risky" investment due to
our limited operating history and lack of profits to date, shortage of working
capital, and uncertainty of future market acceptance for our potential products.
As a consequence of this enhanced risk, more risk-adverse investors may, under
the fear of losing all or most of their investment in the event of negative news
or lack of progress, be more inclined to sell their shares on the market more
quickly and at greater discounts than would be the case with the stock of a
seasoned issuer. Many of these factors are beyond our control and may decrease
the market price of our common shares, regardless of our operating performance.
We cannot make any predictions or projections as to what the prevailing market
price for our common shares will be at any time, including as to whether our
common shares will sustain their current market prices, or as to what effect
that the sale of shares or the availability of common shares for sale at any
time will have on the prevailing market price.
VOLATILITY IN OUR COMMON SHARE PRICE MAY SUBJECT US TO SECURITIES LITIGATION,
THEREBY DIVERTING OUR RESOURCES THAT MAY HAVE A MATERIAL EFFECT ON OUR
PROFITABILITY AND RESULTS OF OPERATIONS.
As discussed in the preceding risk factor, the market for our common shares is
characterized by significant price volatility when compared to seasoned issuers,
and we expect that our share price will continue to be more volatile than a
seasoned issuer for the indefinite future. In the past, plaintiffs have often
initiated securities class action litigation against a company following periods
of volatility in the market price of its securities. We may in the future be the
target of similar litigation. Securities litigation could result in substantial
costs and liabilities and could divert management's attention and resources.
WE DO NOT HAVE KEY MAN INSURANCE ON OUR CEO, COO AND CFO, ON WHOM WE RELY FOR
THE MANAGEMENT OF OUR BUSINESS AND IT MAY BE DIFFICULT, OR TIME CONSUMING TO
FIND SUITABLE REPLACEMENTS WHICH COULD LEAD TO LOSS OF BUSINESS MOMENTUM.
We depend, to a large extent, on the abilities and participation of our current
management team, Nitin Karnik, the Company's Chief Executive Officer, Dan Mabey,
the Chief Operating Officer, and Simon Westbrook, our Chief Financial Officer.
The loss of the services of any of these people, for any reason, may have a
material adverse effect on our business and prospects. We cannot assure you that
their services will continue to be available to us, or that we will be able to
find a suitable replacement for either of them. We do not carry key man life
insurance for any key personnel.
WE MAY NOT BE ABLE TO HIRE AND RETAIN QUALIFIED PERSONNEL TO SUPPORT OUR GROWTH
AND IF WE ARE UNABLE TO RETAIN OR HIRE SUCH PERSONNEL IN THE FUTURE, OUR ABILITY
TO IMPROVE OUR PRODUCTS AND IMPLEMENT OUR BUSINESS OBJECTIVES COULD BE ADVERSELY
AFFECTED.
If one or more of our senior executives or other key personnel are unable or
unwilling to continue in their present positions, we may not be able to replace
them easily or at all, and our business may be disrupted and our financial
condition and results of operations may be materially and adversely affected.
Competition for senior management and senior technology personnel is intense,
the pool of qualified candidates is very limited, and we may not be able to
retain the services of our senior executives or senior technology personnel, or
attract and retain high-quality senior executives or senior technology personnel
in the future. Considering our current cash position, we do not have adequate
cash resources to hire and retain key personnel should our current efforts fail
to raise adequate funding. Such failure could materially and adversely affect
our future growth and financial condition.
26
WE HAVE ISSUED CONVERTIBLE NOTES WHICH COME DUE FOR CONVERSION OR REPAYMENT
BASED ON A VARIABLE AVERAGE SHARE PRICE AT THAT TIME, AND SHAREHOLDERS MAY
SUFFER SIGNIFICANT DILUTION IF OUR STOCK PRICE IS THEN LOW.
The Company has issued convertible notes ("Notes") in the aggregate principal
amount of $293,000 carrying interest at 8% per annum. The Notes can be converted
at the noteholder's option any time after six months from the issuance date
based on 62.5% of the average of the lowest three closing bid prices over the
ten days preceding the conversion date. We have experienced considerable
volatility in our share price and if the share price falls in advance of the
conversion date, investors could suffer significant dilution when the Notes are
converted into shares of common stock. As of September 30, 2011, the Company has
repaid $90,000 of the Notes, and converted $153,000 of the Notes into 1,286,586
shares of common stock. It would require an additional 533,333 shares to convert
the remaining $50,000 of the Notes as of September 30, 2011.
WE ARE RESPONSIBLE FOR THE INDEMNIFICATION OF OUR OFFICERS AND DIRECTORS AND IN
THE EVENT OF CLAIMS NOT COVERED BY OUR DIRECTORS AND OFFICERS INSURANCE, WE MAY
HAVE TO SPEND OUR LIMITED RESOURCES ON LEGAL FEES DIVERTING CASH FROM FUNDING
BUSINESS OPERATING EXPENSES AND WORKING CAPITAL.
Our Bylaws provide for the indemnification of our directors, officers,
employees, and agents, under certain circumstances, against costs and expenses
incurred by them in any litigation to which they become a party arising from
their association with or activities on our behalf. Consequently, we may be
required to expend substantial funds to satisfy these indemnity obligations.
THE COMPANY IS PLANNING ON DOING A SIGNIFICANT PORTION OF ITS BUSINESS IN THE
PEOPLE'S REPUBLIC OF CHINA ("PRC"). GIVEN A HISTORY OF POLITICAL AND ECONOMIC
INSTABILITY, IT IS POSSIBLE THAT MEASURES BEYOND OUR CONTROL COULD AFFECT OUR
OWNERSHIP OF ASSETS, ABILITY TO DO BUSINESS, ACQUIRE NECESSARY LICENSES AND
PERMITS, COMPLY WITH IMPORT LEGISLATION AND DUTIES, REMIT PROFITS, OR IN OTHER
WAYS ADVERSELY AFFECT OUR PROFITABILITY, OR ABILITY TO CONTINUE TO DO BUSINESS
IN THIS MARKET.
The PRC is passing from a planned economy to a market economy. The Chinese
government has confirmed that economic development will follow a model of market
economy under socialism. While the PRC government has pursued economic reforms
since its adoption of the open-door policy in 1978, a large portion of the PRC
economy is still operating under five-year plans and annual state plans adopted
by the government that set down national economic development goals. Through
these plans and other economic measures, such as control on foreign exchange,
taxation and restrictions on foreign participation in the domestic market of
various industries, the PRC government exerts considerable direct and indirect
influence on the economy. Many of the economic reforms are unprecedented or
experimental for the PRC government, and are expected to be refined and
improved. Other political, economic and social factors can also lead to further
re-adjustment of such reforms. This refining and re-adjustment process may not
necessarily have a positive effect on our operations or future business
development. Our operating results may be adversely affected by changes in the
PRC's economic and social conditions as well as by changes in the policies of
the PRC government, which we may not be able to foresee, such as changes in laws
and regulations (or the official interpretation thereof), measures which may be
introduced to control inflation, changes in the rate or method of taxation, and
imposition of additional restrictions on currency conversion.
THE RECENT NATURE AND UNCERTAIN APPLICATION OF MANY PRC LAWS APPLICABLE TO US
CREATE AN UNCERTAIN AND POTENTIALLY ADVERSE ENVIRONMENT FOR BUSINESS OPERATIONS
AND THEY COULD HAVE A NEGATIVE EFFECT ON OUR ABILITY TO SELL OUR PRODUCTS
PROFITABLY IN THE PRC MARKET.
The PRC legal system is a civil law system. Unlike the common law system, such
as the legal system used in the United States, the civil law system is based on
written statutes in which decided legal cases have little value as precedents.
In 1979, the PRC began to promulgate a comprehensive system of laws and has
since introduced many laws and regulations to provide general guidance on
economic and business practices in the PRC and to regulate foreign investment.
Progress has been made in the promulgation of laws and regulations dealing with
economic matters such as corporate organization and governance, foreign
27
investment, commerce, taxation and trade. The promulgation of new laws, changes
of existing laws and the abrogation of local regulations by national laws could
have a negative impact on our business and business prospects. In addition, as
these laws, regulations and legal requirements are relatively recent, their
interpretation and enforcement involve significant uncertainty.
IF RELATIONS BETWEEN THE UNITED STATES AND CHINA WORSEN, INVESTORS MAY
ANTICIPATE FUTURE ECONOMIC TRADE RESTRICTIONS OR OTHER DIFFICULTIES AND DECIDE
TO SELL OR AVOID BUYING SHARES OF COMPANIES OPERATING IN PRC. THIS WOULD LIKELY
LEAD TO A DECLINE IN OUR STOCK PRICE AND WE MAY HAVE DIFFICULTY ACCESSING THE
U.S. CAPITAL MARKETS.
At various times during recent years, the United States and China have had
disagreements over political and economic issues. Controversies may arise in the
future between these two countries. Any political or trade controversies between
the United States and China could adversely affect the market price of our
common stock and our ability to access U.S. capital markets.
GOVERNMENTAL CONTROL OF CURRENCY CONVERSION MAY AFFECT THE DOLLAR VALUE OF
REVENUES EARNED IN PRC, AND THE REALISED VALUE OF REMITTANCES WHICH COULD REDUCE
THE PROFITABILITY OF OUR BUSINESS AND THE VALUE OF YOUR INVESTMENT.
The PRC government imposes controls on the convertibility of RMB ("RMB") into
foreign currencies and, in certain cases, the remittance of currency out of the
PRC. Currently, the RMB is not a freely convertible currency. Shortages in the
availability of foreign currency may restrict our ability to remit sufficient
foreign currency to pay dividends, or otherwise satisfy foreign currency
denominated obligations. Under existing PRC foreign exchange regulations,
payments of current account items, including profit distributions, interest
payments and expenditures from the transaction, can be made in foreign
currencies without prior approval from the PRC State Administration of Foreign
Exchange by complying with certain procedural requirements. However, approval
from appropriate governmental authorities is required where RMB is to be
converted into foreign currency and remitted out of China to pay capital
expenses such as the repayment of loans and corporate debt obligations
denominated in foreign currencies.
The PRC government may also at its discretion restrict access in the future to
foreign currencies for current account transactions. If the foreign exchange
control system prevents us from obtaining sufficient foreign currency to satisfy
our currency demands, we may not be able to pay certain of our expenses as they
come due.
THE FLUCTUATION OF THE RMB ("RMB") MAY MATERIALLY AND ADVERSELY AFFECT THE
DOLLAR VALUE OF REVENUES EARNED IN PRC, AND THE REALISED VALUE OF REMITTANCES
WHICH COULD REDUCE THE PROFITABILITY OF OUR BUSINESS AND THE VALUE OF YOUR
INVESTMENT.
The value of the RMB against the U.S. dollar and other currencies may fluctuate
and is affected by, among other things, changes in the PRC's political and
economic conditions. Any significant revaluation of the RMB may materially and
adversely affect our cash flows, revenues and financial condition. For example,
to the extent that we need to convert U.S. dollars into RMB for our operations,
appreciation of the RMB against the U.S. dollar could have a material adverse
effect on our business, financial condition and results of operations.
Conversely, if we decide to convert our RMB into U.S. dollars for business
purposes and the U.S. dollar appreciates against the RMB, the U.S. dollar
equivalent of the RMB we convert would be reduced. Any significant evaluation of
RMB may reduce our operation costs in U.S. dollars but may also reduce our
earnings in U.S. dollars. In addition, the depreciation of significant U.S.
dollar denominated assets could result in a charge to our income statement and a
reduction in the value of these assets.
Commencing from July 21, 2005, China has adopted a managed floating exchange
rate regime based on market demand and supply with reference to a basket of
currencies. The exchange rate of the US dollar against the RMB was adjusted from
approximately RMB 8.28 per US dollar to approximately RMB 8.11 per US dollar on
July 21, 2005. Since then, the PRC administers and regulates the exchange rate
of the US dollar against the RMB taking into account demand and supply of RMB,
as well as domestic and foreign economic and financial conditions and as of
December 31, 2010 stood at RMB 6.59.
28
In addition, there can be no assurance that we will be able to obtain sufficient
foreign exchange to pay dividends or satisfy other foreign exchange requirements
in the future and we currently do not intend to pay dividends.
PUBLIC DISCLOSURE REQUIREMENTS AND COMPLIANCE WITH CHANGING REGULATION OF
CORPORATE GOVERNANCE POSE CHALLENGES FOR OUR MANAGEMENT TEAM AND RESULT IN
ADDITIONAL EXPENSES AND COSTS WHICH MAY REDUCE THE FOCUS OF MANAGEMENT AND THE
PROFITABALITY OF OUR COMPANY.
Changing laws, regulations and standards relating to corporate governance and
public disclosure, including the Dodd-Frank Wall Street Reform and Consumer
Protection Act and the rules and regulations promulgated thereunder, the
Sarbanes-Oxley Act and SEC regulations, have created uncertainty for public
companies and significantly increased the costs and risks associated with
accessing the U.S. public markets. Our management team will need to devote
significant time and financial resources to comply with both existing and
evolving standards for public companies, which will lead to increased general
and administrative expenses and a diversion of management time and attention
from revenue generating activities to compliance activities.
SHOULD ONE OR MORE OF THE FOREGOING RISKS OR UNCERTAINTIES MATERIALIZE, OR
SHOULD THE UNDERLYING ASSUMPTIONS PROVE INCORRECT, ACTUAL RESULTS MAY DIFFER
SIGNIFICANTLY FROM THOSE ANTICIPATED, BELIEVED, ESTIMATED, EXPECTED, INTENDED OR
PLANNED.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
The Company has issued 6,346,339 and 562,618 of fully-paid shares of common
stock during the nine months ended September 30, 2011 and year ended December
31, 2010, as set out in the following table.
Nine Months Year Ended
Ended Ended
September 30, December 31,
# Shares 2011 2010 Total
-------- ---------- ---------- ----------
Payment of consultants 400,000 417,000 817,000
Purchase of assets 250,000 -- 250,000
Conversion of notes 1,140,968 145,618 1,286,586
Settlement of debt 4,500,000 -- 4,500,000
Payment of note interest 55,371 -- 55,371
---------- ---------- ----------
Total 6,346,339 562,618 6,908,957
========== ========== ==========
Nine Months Year Ended
Ended Ended
September 30, December 31,
Value of Shares 2011 2010 Total
--------------- ---------- ---------- ----------
Payment of consultants $ 64,001 $ 503,999 $ 568,000
Purchase of assets 40,000 -- 40,000
Conversion of notes 123,000 30,000 153,000
Settlement of debt 675,000 -- 675,000
Payment of note interest 6,121 -- 6,121
---------- ---------- ----------
Total $ 908,122 $ 533,999 $1,442,121
========== ========== ==========
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. REMOVED AND RESERVED
29
ITEM 5. OTHER INFORMATION
There is no information with respect to which information is not otherwise
called for by this form.
ITEM 6. EXHIBITS
Exhibit
Number
------
Numerity licensing and maintenance agreement 10.1**
Numerity licensing and maintenance agreement 1st amendment 10.2**
Numerity service agreement 10.3**
Numerity service agreement 1st amendment 10.4**
Numerity service agreement 2nd amendment 10.5**
IN TV independent sales representation agreement 10.6**
Numerity license to use office agreement 10.7**
Numerity revolving credit agreement 10.8**
Numerity video library license agreement 10.9**
Amended Bylaws 10.10**
Certification of Chief Executive Officer pursuant to 18 U.S.C. 1350,
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.1
Certification of Chief Financial Officer pursuant to 18 U.S.C. 1350,
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2
Certification of Chief Executive Officer pursuant to 18 U.S.C. 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.1
Certification of Chief Financial Officer pursuant to 18 U.S.C. 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2
Letter Agreement between Numerity Corporation and IN Media Corporation
confirming rights for IN Media to use Numerity's video library without
charge 99.1*
Letter Agreement between Numerity Corporation and IN Media Corporation
confirming Numerity's commitment, without charge, to extend credit for
a period of one year and one day, subject to notice 99.2*
Interactive data files pursuant to Rule 405 of Regulation S-T. 101
----------
* Incorporated by reference to Form 10-Q for June 30, 2011
** Incorporated by reference to form 10K/A for December 31, 2010
30
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
IN Media Corporation (Registrant)
/s/ Nitin Karnik Date: November 11, 2011
---------------------------------------
Nitin Karnik
President, Chief Executive Officer
and Director
/s/ Simon Westbrook Date: November 11, 2011
---------------------------------------
Simon Westbrook
Chief Financial Officer & Principal
Accounting Officer
3