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EX-31 - EXHIBIT 31.2 - Accelerize Inc.ex31-2.htm
EX-31 - EXHIBIT 31.1 - Accelerize Inc.ex31-1.htm

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 10-K/A

 

Amendment No. 1

 

[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2013

 

or

 

[   ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from ___________ to _________.

 

Commission file number 000-52635

 

ACCELERIZE NEW MEDIA, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

20-3858769

(State of Incorporation)

(IRS Employer Identification No.)

 

20411 SW BIRCH STREET, SUITE 250

NEWPORT BEACH

CALIFORNIA 92660

(Address of principal  executive  offices) (Zip Code)

 

 Registrant's telephone number, including area code: (949) 515 2141

 

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

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes [  ]  No [X]

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes [  ]  No [X]

 

Indicate by check mark whether the registrant:  (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes [X]  No [   ]

 

Indicate by check mark whether the registrant 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 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 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.  [X]

 

 
 

 

 

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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):

 

Large accelerated filer [   ]

Accelerated filer [  ]

 

 

Non-accelerated filer [   ]

Smaller reporting company [X]

(Do not check if a smaller reporting company)

 

                                                                       

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes [  ]  No [ X]

 

The aggregate market value of the common equity voting shares of the registrant held by non-affiliates on June 28, 2013, the registrant's most recently completed second fiscal quarter, was $51,833,433. For purposes of this calculation, an aggregate of 10,479,000 shares of Common Stock were held by the directors and officers of the registrant on June 28, 2013 and have been included in the number of shares of Common Stock held by affiliates.

 

The number of the registrant’s shares of Common Stock outstanding as of March 20, 2014: 59,209,131

 

In this Annual Report on Form 10-K, the terms the “Company,” “Accelerize,” “we,” “us” or “our” refers to Accelerize New Media, Inc., unless the context indicates otherwise.

 

EXPLANATORY NOTE

 

We are filing this Amendment No. 1 to our Annual Report on Form 10-K, or Form 10-K/A, to our Annual Report on Form 10-K for the fiscal year ended December 31, 2013, or the Annual Report, which was originally filed with the Securities and Exchange Commission on March 25, 2014, to clarify, amend and restate Part II, Item 9A of the Annual Report relating to our evaluation of our disclosure controls and procedures.

 

In addition, we are filing, as indicated under Part IV, Item 15 in this Form 10-K/A, as exhibits certain currently dated certifications.

 

Except as described in the preceding paragraphs, we do not purport by this Form 10-K/A to update any of the information contained in the Annual Report.

 

PART II

 

Item 9A.  Controls and Procedures.

 

Evaluation of Disclosure Controls and Procedures

 

As of December 31, 2013, our management, with the participation of our Chief Executive Officer, who is our principal executive and financial officer, evaluated the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15(b) promulgated under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Based upon that evaluation, and in light of the material weaknesses found in our internal control over financial reporting, our Chief Executive Officer concluded that, as of December 31, 2013, our disclosure controls and procedures were not effective in ensuring that material information required to be disclosed in the reports that 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, including ensuring that such material information is accumulated and communicated to our Chief Executive Officer to allow timely decisions regarding required disclosure.

 

Management Report on Internal Control over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Exchange Act.  Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2013.  In making this assessment, our management used criteria issued by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control Over Financial Reporting – Guidance for Smaller Public Companies.

 

 
 

 

 

During our assessment of the design and the effectiveness of internal control over financial reporting as of December 31, 2013, management identified the following material weaknesses:

 

  

There is no documentation that the Board of Directors monitored or provided oversight responsibility related to financial reporting and related internal controls and considered its effectiveness;

 

 

 

  

While we have processes in place, there are no formal written policies and procedures related to certain financial reporting processes;

 

 

 

  

There is no formal documentation in which management specified financial reporting objectives to enable the identification of risks, including fraud risks; and

 

 

 

  

From November 2010 until April 2014, our Board of Directors consisted of only one member and we lack the resources and personnel to implement proper segregation of duties or other risk mitigation systems.

 

A material weakness is "a significant deficiency, or a combination of significant deficiencies, that result in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected by us in a timely manner." A significant deficiency, is a deficiency or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of the registrant’s financial reporting.

 

We intend to gradually improve our internal control over financial reporting to the extent that we can allocate resources to such improvements.  We intend to prioritize the design of our internal control over financial reporting starting with our control environment and risk assessments and ending with control activities, information and communication activities, and monitoring activities.   Although we believe the time to adapt in the next year will help position us to provide improved internal control functions into the future, in the interim, these changes caused control deficiencies, which in the aggregate resulted in a material weakness.  Due to the existence of these material weaknesses, our management, including our Chief Executive Officer, concluded that our internal control over financial reporting was not effective as of December 31, 2013.

 

This annual report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to the rules of the SEC that permit smaller reporting companies to provide only the management’s report in this annual report.

 

Changes in Internal Control over Financial Reporting

 

There was no change in our internal control over financial reporting during the fiscal quarter ended December 31, 2013, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

 

PART IV

 

 Item 15.  Exhibits and Financial Statement Schedules

   

b.

Exhibits

 

EXHIBIT NO.

DESCRIPTION

  

  

2.1

Asset Purchase Agreement, dated September 27, 2012, between Accelerize New Media, Inc. and Emerging Growth LLC (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on September 27, 2012).

 

 

3.1

Certificate of Incorporation dated November 22, 2005, as amended by Certificate of Designation dated August 8, 2006 (incorporated by reference to the Company’s Registration Statement on Form SB-2  (file no. 333-139586)  filed on December 22, 2006).

  

  

3.2

Certificate of Designation of 10% Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form SB-2 (file no. 333-139586)  filed on December 22, 2006).

 

 
 

 

 

3.3

Certificate of Designation of 8% Series B Convertible Preferred Stock (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-QSB for the quarter ended June 30, 2007).

  

  

3.4

By-laws of the Company (incorporated by reference to the Company’s Registration Statement on Form SB-2 (file no. 333-139586) filed on December 22, 2006).

  

  

3.5

Certificate of Amendment to the Certificate of Designation of 8% Series B Convertible Preferred Stock (incorporated by reference to the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 29, 2012).

  

  

4.1

Form of Common Stock Certificate (incorporated by reference to the Company’s Registration Statement on Form SB-2 (file no. 333-139586) filed on December 22, 2006).

  

  

4.2

Form of Common Stock Purchase Warrant for 8% Series B Convertible Preferred Stock (incorporated by reference to the Company’s Quarterly Report on Form 10-QSB filed on August 13, 2007).

  

  

4.3

Form of Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K (file no. 000-52635) filed on May 6, 2010).

  

  

4.4

Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K (file no. 000-52635) filed on September 27, 2012).

  

  

4.5

Warrant to Purchase Stock issued September 27, 2012 (incorporated by reference to the Company's Current Report on Form 8-K (file no. 000-52635) filed on September 27, 2012).

 

 

4.6

Warrant to Purchase Stock issued March 17, 2014 (incorporated by reference to the Company’s Current Report on Form 8-K (file No 000-52635) filed on March 19, 2014).

 

 

10.1*

Employment Agreement, dated November 9, 2012, between Accelerize New Media, Inc. and Brian Ross (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on November 14, 2012). 

 

 

10.2*

Employment Agreement, dated November 9, 2012, between Accelerize New Media, Inc. and Damon Stein (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on November 14, 2012).

  

  

10.3*

Employment Agreement, dated May 13, 2013, between Accelerize New Media, Inc. and Jeff McCollum (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on May 13, 2013).

  

  

10.4*

Employment Agreement, dated May 13, 2013, between Accelerize New Media, Inc. and David Stewart (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on May 13, 2013).

  

  

10.5*

Accelerize New Media, Inc. Stock Option Plan (incorporated by reference to the Company’s Registration Statement on Form SB-2 (file no. 333-139586) filed on December 22, 2006).

 

 

10.6*

Form of Stock Option Agreement (incorporated by reference to the Company’s Registration Statement on Form SB-2 (file no. 333-139586) filed on December 22, 2006).

 

 

10.7*

Amendment No. 1 to Accelerize New Media, Inc. Stock Option Plan (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on May 10, 2011).

  

 

10.8*

Amendment No. 2 to Accelerize New Media, Inc. Stock Option Plan (incorporated by reference to the Company's Quarterly Report on Form 10-Q (file no. 000-52635) filed on May 10, 2011).

  

  

10.9*

Amendment No. 3 to Accelerize New Media, Inc. Stock Option Plan (incorporated by reference to the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 29, 2012).

 

 
 

 

 

10.10*

Amendment No. 4 to Accelerize New Media, Inc. Stock Option Plan (incorporated by reference to the Company's Current Report on Form 8-K (file no. 000-52635) filed on May 29, 2012). 

  

  

10.11

Amendment Number One to Asset Purchase Agreement, dated June 10, 2013, between Accelerize New Media, Inc. and Emerging Growth LLC (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on June 10, 2013).

   

  10.12

Referral Agreement, dated November 22, 2013, between Digital River Marketing Solutions, Inc. and Accelerize New Media, Inc. (portions of this exhibit have been omitted pursuant to a grant of confidential treatment) (incorporated by reference to the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 25, 2014).

  

  

10.13

Amendment Number Two to Asset Purchase Agreement, dated December 10, 2013, between Accelerize New Media, Inc. and Emerging Growth LLC (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on December 10, 2013).

  

  

10.14

Standard Multi-Tenant Office Lease-Gross, dated January 8, 2014, between Ferrado Bayview, LLC and Accelerize New Media, Inc. (incorporated by reference to the Company's Current Report on Form 8-K (file no. 000-52635) filed on January 14, 2014).

 

 

10.15

Loan and Security Agreement, dated March 17, 2014, between the Company and Square1 Bank (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on March 19, 2014).

 

 

10.16

Intellectual Property Security Agreement, dated March 17, 2014, between the Company and Square1 Bank (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on March 19, 2014).

 

 

16.1

Letter dated January 8, 2013 from Sherb & Co., LLP to the Securities and Exchange Commission (incorporated by reference to the Company’s Current Report on Form 8-K (file no. 000-52635) filed on January 8, 2013).

 

 

 23.1

Consent of RBSM LLP (incorporated by reference to the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 25, 2014).

 

 

31.1**

Rule 13a-14(a) Certification.

 

 

31.2**

Rule 13a-14(a) Certification.

 

 

32.1

Certification pursuant to 18 U.S.C. Section 1350 (furnished with the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 25, 2014).

 

 

101.1

The following materials from the Company's Annual Report on Form 10-K for the year ended December 31, 2013, formatted in XBRL (eXtensible Business Reporting Language): (i) the Balance Sheets, (ii) the Statements of Operations, (ii) the Statements of Cash Flows, and (iv) related notes to these financial statements (incorporated by reference to the Company's Annual Report on Form 10-K (file no. 000-52635) filed on March 25, 2014).

 

*     Management contract or compensatory plan or arrangement.

**   Filed herewith.

 

 
 

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly authorized.

 

ACCELERIZE NEW MEDIA, INC.

 

By:    /s/ Brian Ross

Brian Ross

President, Chief Executive Officer and Treasurer

 

Date: June 19, 2014

 

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

  

  

  

  

By: /s/ Brian Ross

  

President, Chief Executive Officer, Treasurer and Director

June 19, 2014

Brian Ross

  

(Principal executive and financial officer)

  

       
       
By: /s/ Gregory Akselrud   Director June 19, 2014
Gregory Akselrud      
       
       
By: /s/ Mario Marsillo, Jr.   Director June 19, 2014
Mario Marsillo, Jr.