Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A
Amendment No. 2
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2012
or
o TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _____________
Commission file number: 000-52444
JBI, Inc.
(Exact name of registrant as specified in its charter)
|
Nevada
|
90-0822950
|
|
|
(State or other jurisdiction of
incorporation or organization)
|
(IRS Employer
Identification No.)
|
|
20 Iroquois Street
Niagara Falls, NY 14303
|
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number: (716) 278-0015
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $0.001 per share.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes o No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such report(s)), and (2) has been subject to such filing requirements for the past 90 days.
Yes x No o
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 (§ 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 o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer
|
o |
Accelerated filer
|
x |
|
Non-accelerated filer
|
o |
Smaller reporting company
|
o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the Registrant was approximately $82 million as of June 30, 2012 based upon the closing price of $1.28 per share on June 30, 2012.
As of April 29, 2013, there were 89,941,231 shares of the Registrant’s $0.001 par value common stock outstanding.
Documents Incorporated by Reference:
EXPLANATORY NOTE
This Amendment No. 2 to Annual Report on Form 10-K/A (this “Amended Report”) is being filed with the Securities and Exchange Commission (the “SEC”) to amend the Annual Report on Form 10-K for the year ended December 31, 2012 (as amended by Amendment No. 1 filed with the SEC on April 30, 2013, the “Original 10-K”) of JBI, Inc. (the “Company”, “we” and/or “us”) for the following purposes:
|
●
|
to amend and restate Item 9A of the Original Report to clarify that management concluded that the Company’s internal controls over financial reporting were ineffective as of December 31, 2012 due to the material weakness discussed in Item 9A; and
|
|
●
|
to provide the certifications required by Item 15 of Part IV of Form 10-K in connection with this Amended Report.
|
Except for the foregoing, this Amended Report speaks as of the filing date of the Original 10-K and does not update or discuss any other Company developments after the date of the Original 10-K.
This Amended Report restates only those portions of the Original 10-K affected by the above changes. This Amended Report includes a currently-dated certification from the Company’s Chief Executive Officer and Chief Financial Officer, as required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002.
2
PART II
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of disclosure controls and procedures
Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and Rule 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as of December 31, 2012. Based on this evaluation, our principal executive officer and principal financial officer concluded that as of December 31, 2012 our disclosure controls and procedures were ineffective to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including the Company’s CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.
We have taken numerous steps to address the underlying causes of the deficiencies in our disclosure controls and procedures, primarily through the development and implementation of policies, improved processes and documented procedures, the retention of third-party experts and contractors, and the hiring of additional accounting personnel with technical accounting and inventory accounting experience.
Management’s report on internal control over financial reporting
Management of the Company is responsible for establishing and maintaining effective internal control over our financial reporting as defined in Rule 13a-15(f) under the Exchange Act. The Company’s internal control over financial reporting is intended to be designed to provide reasonable assurance to the Company’s management and Board of Directors regarding the preparation and fair presentation of published financial statements in accordance with United States generally accepted accounting principles (U.S. GAAP), including those policies and procedures that: (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the Company’s assets that could have a material effect on our financial statements. Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control— Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Management’s assessment included an evaluation of the design of our internal control over financial reporting and testing of the operational effectiveness of our internal control over financial reporting as of December 31, 2012. Based on this assessment, management, including our principal executive officer and our principle financial officer, concluded that the Company’s internal controls over financial reporting were ineffective as of December 31, 2012 due to the material weakness discussed below.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Management’s report was subject to attestation by our registered public accounting firm.
3
Management’s Discussion of Material Weakness
A material weakness is a significant deficiency in internal controls that results in more than a remote likelihood that a material misstatement of the financial statements may occur as a result of the deficiency and is important enough to merit attention by those responsible for oversight of a company’s financial reporting. The Company’s material weakness is a result of a lack of policies and procedures, with the associated internal controls, to appropriately address entity level matters. Management concluded that the lack of adherence to the Board of Directors’ policies and more specifically, the Audit Committee Charter, which requires a three member committee with one member qualified as a “financial expert”, caused a failure at the entity level for proper governance over the Company’s financial reporting environment. The Company has been working towards eliminating this material weakness through the search for additional qualified members of our Board of Directors, however, to the extent this deficiency continues to exist, the accuracy and timeliness of financial reporting may be adversely affected.
Management acknowledges its responsibility for internal controls over financial reporting and seeks to continually improve these controls. In order to achieve compliance with Section 404 of the Sarbanes Oxley Act (“Section 404”), we are performing the system and process documentation and evaluation needed to comply with Section 404, which is both costly and challenging. We believe our process for documenting, evaluating and monitoring our internal control over financial reporting is consistent with the objectives of Section 404.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)
1. The consolidated financial statements of JBI, Inc. are included in Item 8 of the Original 10-K.
2. The exhibits required by this item are listed on the Exhibit Index attached hereto.
4
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report has been signed on its behalf by the undersigned, thereunto duly authorized.
|
JBI, INC.
|
||
|
Date: November 6, 2013
|
By:
|
/s/ Richard Heddle
|
|
Name: Richard Heddle
|
||
|
Title: President and Chief Executive Officer
(Principal Executive Officer)
|
||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
||
|
/s/ Richard Heddle
|
Director; President and Chief Executive Officer
|
November 6, 2013
|
||
|
Richard Heddle
|
(Principal Executive Officer)
|
|||
|
/s/ Nicholas Terranova
|
Chief Financial Officer
|
November 6, 2013
|
||
|
Nicholas Terranova
|
(Principal Financial Officer and Principal Accounting Officer)
|
|||
|
/s/ Philip Bradley
|
Director
|
November 6, 2013
|
||
|
Philip Bradley
|
5
EXHIBIT INDEX
|
Exhibit No.
|
Description
|
|
|
2.1
|
Asset Purchase Agreement, dated February 10, 2012, by and between JBI, Inc. and Big 3 Packaging LLC (Incorporated herein by reference to Exhibit 2.1 to our Current Report on Form 8-K filed on February 16, 2012).
|
|
|
3.1
|
Articles of Incorporation of JBI, Inc. (Incorporated by reference to Exhibit 3(a) to our Registration Statement on Form SB-2 filed on December 11, 2006).
|
|
|
3.2
|
Certificate of Amendment to Articles of Incorporation of JBI, Inc. dated January 10, 2007 (Incorporated herein by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
|
|
3.2
|
Certificate of Amendment to Articles of Incorporation of JBI, Inc. dated October 5, 2009 (Incorporated herein by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on October 6, 2009).
|
|
|
3.4
|
Certificate of Amendment to Articles of Incorporation of JBI, Inc. dated December 11, 2009 (Incorporated herein by reference to Exhibit 3.2 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
|
|
3.5
|
Certificate of Amendment to Articles of Incorporation of JBI, Inc. dated May 11, 2012 (Incorporated herein by reference to Exhibit 3.5 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
|
|
3.6
|
Amended and Restated Bylaws of JBI, Inc. (Incorporated herein by reference to Exhibit 3.2 to our Current Report on Form 8-K filed on December 31, 2012).
|
|
|
3.7
|
Certificate of Designation of Series A Super Voting Preferred Stock of JBI, Inc. dated December 1, 2009 (Incorporated herein by reference to Exhibit 3.3 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
6
|
3.8
|
Amendment to Certificate of Designation of Series A Super Voting Preferred Stock of JBI, Inc. dated May 10, 2012 (Incorporated herein by reference to Exhibit 3.4 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
|
|
3.9
|
Certificate of Correction to Certificate of Designation of Series A Super Preferred Voting Stock of JBI, Inc. dated May 14, 2012 (Incorporated herein by reference to Exhibit 3.6 to our Quarterly Report on Form 10-Q filed on August 9, 2012).
|
|
|
3.10
|
Certificate of Designation of Series B Convertible Preferred Stock of JBI, Inc. dated December 24, 2012 (Incorporated herein by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on December 31, 2012).
|
|
|
3.11
|
Certificate of Amendment to Certificate of Designation of Series B Convertible Preferred Stock of JBI, Inc. dated January 11, 2013 (Incorporated herein by reference to Exhibit 3.1 to the Issuer’s Current Report on Form 8-K filed on January 17, 2013).
|
|
|
4.1
|
Form of Warrant (Incorporated herein by reference to Exhibit 4.1 to our Current Report on Form 8-K filed on January 6, 2012).
|
|
|
10.1
|
Master Revenue Sharing Agreement between JBI, Inc. and RockTenn Company dated July 29, 2011 (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on August 4, 2011) .*
|
|
|
10.2
|
Supply and Service Agreement between JBI, Inc. and Coco Asphalt Engineering a division of Coco Paving, Inc. dated June 10, 2011 (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on June 13, 2011).
|
|
|
10.3
|
Form of Subscription Agreement (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on January 6, 2012).
|
|
|
10.4
|
Promissory Note, dated February 14, 2012, by Big 3 Packaging LLC in favor of JBI, Inc. (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on February 16, 2012).
|
|
|
10.5
|
Lease, dated December 1, 2011, between JBI, Inc. and Avondale Stores Limited. (Incorporated herein by reference to Exhibit 10.5 to our Annual Report on Form 10-K, filed on March 19, 2012)
|
7
|
10.6
|
Form of Subscription Agreement (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on May 17, 2012).
|
|
|
10.7
|
Employment Agreement, dated May 15, 2012, by and between JBI, Inc. and John Bordynuik (Incorporated herein by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on May 17, 2012).
|
|
|
10.8
|
2012 Long-Term Incentive Plan of JBI, Inc. dated as of May 23, 2012 (Incorporated herein by reference to Appendix A of our Definitive Proxy Statement on Schedule 14A filed on June 20, 2012).
|
|
|
10.9
|
Form of Incentive Stock Option Agreement pursuant to the 2012 Long-Term Incentive Plan of JBI, Inc. (Incorporated herein by reference to Exhibit 10.4 to our Current Report on Form 8-K filed on October 19, 2012)
|
|
|
10.9
|
Amended and Restated Employment Agreement, dated October 18, 2012, by and between the Company and Richard Heddle (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on October 19, 2012).
|
|
|
10.10
|
Amended and Restated Employment Agreement, dated October 18, 2012, by and between the Company and Nicholas Terranova (Incorporated herein by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on October 19, 2012).
|
|
|
10.11
|
Amended and Restated Employment Agreement, dated October 18, 2012, by and between the Company and Tony Bogolin (Incorporated herein by reference to Exhibit 10.3 to our Current Report on Form 8-K filed on October 19, 2012).
|
|
|
10.12
|
Form of Subscription Agreement (Incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 31, 2012).
|
|
21.1
|
Subsidiaries of the Registrant (Incorporated herein by reference to Exhibit 21.1 to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
23.1
|
Consent of MSCM LLP (Incorporated herein by reference to Exhibit 23.1 to our Annual Report on Form 10-K filed on March 15, 2013).
|
8
|
31.1
|
Certification of our Chief Executive Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (Incorporated herein by reference to Exhibit 31.1 to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
31.2
|
Certification of our Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (Incorporated herein by reference to Exhibit 31.2 to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
31.3
|
Certification of our Chief Executive Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (Incorporated herein by reference to Exhibit 31.3 to our amended Annual Report on Form 10-K/A filed on April 30, 2013).
|
|
|
31.4
|
Certification of our Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (Incorporated herein by reference to Exhibit 31.4 to our amended Annual Report on Form 10-K/A filed on April 30, 2013).
|
|
|
31.5
|
Certification of our Chief Executive Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended. (1)
|
|
|
31.6
|
Certification of our Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended. (1)
|
|
|
32.2
|
Certification of our Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (Incorporated herein by reference to Exhibit 32.2 to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
32.3
|
Certification of our Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (Incorporated herein by reference to Exhibit 32.3 to our amended Annual Report on Form 10-K/A filed on April 30, 2013).
|
|
|
32.4
|
Certification of our Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (Incorporated herein by reference to Exhibit 32.4 to our amended Annual Report on Form 10-K/A filed on April 30, 2013).
|
9
|
32.5
|
Certification of our Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (2)
|
|
|
32.6
|
Certification of our Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (2)
|
|
101.INS
|
XBRL Instance Document (Incorporated herein by reference to Exhibit 101.INS to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
101.SCH
|
XBRL Taxonomy Extension Schema Document (Incorporated herein by reference to Exhibit 101.SCH to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document (Incorporated herein by reference to Exhibit 101.CAL to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
101.DEF
|
XBRL Taxonomy Extension Definition Linkbase Document (Incorporated herein by reference to Exhibit 101.DEF to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
101.LAB
|
XBRL Taxonomy Extension Label Linkbase Document (Incorporated herein by reference to Exhibit 101.LAB to our Annual Report on Form 10-K filed on March 15, 2013).
|
|
|
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase Document (Incorporated herein by reference to Exhibit 101.PRE to our Annual Report on Form 10-K filed on March 15, 2013).
|
_________________
* Certain Confidential Information contained in this Exhibit was omitted by means of redacting a portion of the text and replacing it with an asterisk. This Exhibit has been filed separately with the Secretary of the Securities and Exchange Commission without the redaction pursuant to a Confidential Treatment Request under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(1) Filed herewith.
(2) Furnished herewith.
10