Attached files
file | filename |
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8-K/A - Tri-Mark MFG, Inc. | v208425_8ka.htm |
EX-99.3 - PRO FORMA FINANCIAL INFORMATION - Tri-Mark MFG, Inc. | v208425_ex99-3.htm |
EX-16.1 - LETTER FROM GUMBINER SAVETT, INC - Tri-Mark MFG, Inc. | v208425_ex16-1.htm |
FINANCIAL
STATEMENTS
Report
of Independent Registered Public Accounting Firm
|
2
|
Balance
Sheet as of December 31, 2009, 2008 and September 30, 2010
(unaudited)
|
3
|
Statements
of Operations for the year ended December 31, 2009 and for the period of
September 16, 2008 (inception) through December 31, 2008, the nine month
period ended September 30, 2010 (unaudited) and the nine month period
ended September 30, 2009
|
4
|
Statement
of Changes in Stockholder Equity (Deficit) for the period of September 16,
2008 (inception) through December 31, 2008 and the year ended December 31,
2009 and for the nine month period ended September 30, 2010
(unaudited)
|
5
|
Statements
of Cash Flows for the year ended December 31, 2009, the period September
16, 2008 (inception) through December 31, 2008, the nine month period
ended September 30, 2010 (unaudited) and the nine month period ended
September 30, 2009
|
6
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Notes
to the Financial Statements
|
7
|
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
To the
Audit Committee of the
Board of
Directors and Shareholders of
5to1.Com,
Inc.
We have
audited the accompanying balance sheets of 5to1.Com, Inc., (the “Company”) as of
December 31, 2009 and 2008, and the related statements of operations, changes in stockholders’
equity (deficit) and cash flows for the period from September 16, 2008
(inception) through December 31, 2008 and for the year ended December 31,
2009. These financial statements are the responsibility of the
Company’s management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that
we plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. The Company is not
required to have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audits included consideration of internal
control over financial reporting as a basis for designing audit procedures that
are appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Company’s internal control over financial
reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our
opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of 5to1.Com, Inc., as of December 31,
2009 and 2008, and the results of its operations and its cash flows for the
period from September 16, 2008 (inception) through December 31, 2008 and for the
year ended December 31, 2009 in conformity with accounting principles generally
accepted in the United States of America.
/s/
Marcum LLP
New York,
NY
January 19,
2011
2
5to1.Com,
Inc.
Balance
Sheets
December 31,
|
December 31,
|
September 30,
|
||||||||||
2009
|
2008
|
2010
|
||||||||||
(Unaudited)
|
||||||||||||
ASSETS
|
||||||||||||
Current
Assets:
|
||||||||||||
Cash
and cash equivalents
|
$ | 2,207,423 | $ | 209,669 | $ | 424,068 | ||||||
Accounts
receivable
|
58,207 | - | 325,642 | |||||||||
Loan
receivable - officers/stockholder
|
39,539 | 130,976 | - | |||||||||
Prepaid
expenses and other current assets
|
90,873 | 73,891 | ||||||||||
Total
current assets
|
2,396,042 | 340,645 | 823,601 | |||||||||
Office
Equipment, net of accumulated depreciation of $7,059 and
$20,226
|
35,665 | - | 34,045 | |||||||||
Security
deposits
|
16,691 | - | 44,561 | |||||||||
Debt
Issue Costs
|
30,143 | 9,716 | 23,361 | |||||||||
$ | 2,478,541 | $ | 350,361 | $ | 925,568 | |||||||
LIABILITIES
AND STOCKHOLDERS' EQUITY (DEFICIT)
|
||||||||||||
Current
Liabilities:
|
||||||||||||
Accounts
payable
|
$ | 43,686 | $ | 29,194 | $ | 525,405 | ||||||
Accrued
expenses and payroll taxes payable
|
104,570 | 48,982 | 150,194 | |||||||||
Notes
payable - current portion
|
125,000 | 600,000 | 2,809,001 | |||||||||
Derivative
Liabilities
|
31,573 | - | 599,870 | |||||||||
Common
stock subject to repurchase (69,137, 106,064, and 46,813 shares at
December 31, 2009 and 2008 and September 30, 2010,
respectively)
|
26,298 | 495 | 16,530 | |||||||||
Total
current liabilities
|
331,127 | 678,671 | 4,101,000 | |||||||||
Notes
Payable, less current portion
|
375,000 | - | 250,011 | |||||||||
Total
liabilities
|
706,127 | 678,671 | 4,351,011 | |||||||||
STOCKHOLDERS'
EQUITY (DEFICIT)
|
||||||||||||
Series
A Preferred stock, $.0001 par value, 10,000,000 shares authorized; 135,199
shares issued and outstanding at December 31, 2009 and September 30,
2010
|
13 | - | 13 | |||||||||
Common
stock, $.0001 par value, 27,000,000 shares authorized; 27,135 0 and 44,357
shares issued and outstanding at December 31, 2009 and 2008, and September
30, 2010 respectively (net of shares subject to repurchase and shares held
in treasury
|
3 | - | 5 | |||||||||
Additional
paid-in capital
|
6,212,486 | - | 6,413,038 | |||||||||
Accumulated
deficit
|
(4,440,088 | ) | (327,815 | ) | (9,838,499 | ) | ||||||
Stock subscription receivable | (495 | ) | ||||||||||
Treasury
Stock (29,504, 0,and 38,034 shares at December 31, 2009 and 2008 and
September 31, 2010 respectively)
|
- | - | - | |||||||||
Total
stockholders' equity (deficit)
|
1,772,414 | (328,310 | ) | (3,425,443 | ) | |||||||
TOTAL
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
|
$ | 2,478,541 | $ | 350,361 | $ | 925,568 |
The
accompanying notes are an integral part of these financial
statements.
3
5to1.Com,
Inc.
Statements
of Operations
From Inception
|
||||||||||||||||
Year ended
|
(September 16, 2008)
|
Nine-months ended
|
Nine-months ended
|
|||||||||||||
December 31, 2009
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to December 31, 2008
|
September 30, 2010
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September 30, 2009
|
|||||||||||||
(Unaudited)
|
(Unaudited)
|
|||||||||||||||
Revenue
|
$ | 117,855 | $ | 741,892 | $ | 47,927 | ||||||||||
Cost
of Revenue
|
126,827 | 601,340 | 58,669 | |||||||||||||
Gross
Profit (loss)
|
(8,972 | ) | - | 140,552 | (10,742 | ) | ||||||||||
Operating
Expenses
|
||||||||||||||||
Compensation
|
2,913,964 | 125,068 | 3,210,660 | 1,917,204 | ||||||||||||
Other
operating expenses
|
1,177,777 | 200,357 | 1,459,807 | 853,648 | ||||||||||||
4,091,741 | 325,425 | 4,670,467 | 2,770,852 | |||||||||||||
Loss
from Operations
|
(4,100,713 | ) | (325,425 | ) | (4,529,915 | ) | (2,781,594 | ) | ||||||||
Other
(Income)/Expenses:
|
||||||||||||||||
Interest
income
|
1,594 | 19 | 3,705 | |||||||||||||
Interest
expense
|
(13,230 | ) | (2,390 | ) | (889,795 | ) | ||||||||||
Change
in fair value of derivative liabilities
|
76 | 21,280 | ||||||||||||||
(11,560 | ) | (2,390 | ) | (868,496 | ) | 3,705 | ||||||||||
Net
Loss
|
$ | (4,112,273 | ) | $ | (327,815 | ) | $ | (5,398,411 | ) | $ | (2,785,299 | ) |
The
accompanying notes are an integral part of these financial
statements.
4
5to1.Com
Inc.
STATEMENT
OF STOCKHOLDERS' EQUITY (DEFICIT)
Stock
|
||||||||||||||||||||||||||||||||||||||||
Preferred Stock
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Common Stock
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Additional Paid-
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Subscription
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Treasury Stock
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Total Stockholders'
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|||||||||||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
In Capital</fo
nt>
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Accumulated Deficit
|
recievable
|
Shares
|
Amount
|
Equity (Deficit)</fon
t>
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|||||||||||||||||||||||||||||||
Inception
(September 16, 2008)
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- | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||
Issuance
of Common stock - subscription receivable on shares subject to
repurchase
|
- | - | (495 | ) | (495 | ) | ||||||||||||||||||||||||||||||||||
Net
Loss
|
- | - | - | - | (327,815 | ) | (327,815 | ) | ||||||||||||||||||||||||||||||||
BALANCE,
December 31, 2008
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- | - | - | (327,815 | ) | (495 | ) | - | - | (328,310 | ) | |||||||||||||||||||||||||||||
Subscription
payment received
|
495 | 495 | ||||||||||||||||||||||||||||||||||||||
Issuance
of Common Stock
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3,857 | 1 | 17 | 18 | ||||||||||||||||||||||||||||||||||||
- | ||||||||||||||||||||||||||||||||||||||||
Series
A Preferred stock issued for cash
|
113,612 | 11 | 5,204,093 | 5,204,104 | ||||||||||||||||||||||||||||||||||||
Conversion
of notes payable into Series A Preferred Stock
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21,587 | 2 | 1,007,482 | 1,007,484 | ||||||||||||||||||||||||||||||||||||
Employee
stock option compensation expense
|
787 | 787 | ||||||||||||||||||||||||||||||||||||||
Shares
placed in treasury upon exercise of repurchase option
|
(82,246 | ) | - | |||||||||||||||||||||||||||||||||||||
Issuance
of treasury stock for common shares subject to repurchase
|
52,742 | - | ||||||||||||||||||||||||||||||||||||||
Common
stock released from repurchase agreement upon vesting
|
23,278 | 2 | 107 | 109 | ||||||||||||||||||||||||||||||||||||
Net
Loss
|
(4,112,273 | ) | (4,112,273 | ) | ||||||||||||||||||||||||||||||||||||
BALANCE,
December 31, 2009
|
135,199 | 13 | 27,135 | 3 | 6,212,486 | (4,440,088 | ) | - | (29,504 | ) | - | 1,772,414 | ||||||||||||||||||||||||||||
Issuance
of Common Stock
|
- | |||||||||||||||||||||||||||||||||||||||
Repurchase
of common stock
|
- | |||||||||||||||||||||||||||||||||||||||
Employee
stock option compensation expense
|
4,694 | 4,694 | ||||||||||||||||||||||||||||||||||||||
Fair
value of warrants issued to lender
|
206,412 | 206,412 | ||||||||||||||||||||||||||||||||||||||
Financing
Costs charged to additional paid in capital
|
(14,402 | ) | (14,402 | ) | ||||||||||||||||||||||||||||||||||||
Shares
placed in treasury upon exercise of repurchase option
|
(19,956 | ) | - | - | ||||||||||||||||||||||||||||||||||||
Issuance
of treasury stock for common shares subject to repurchase
|
11,426 | - | - | |||||||||||||||||||||||||||||||||||||
Common
stock released from repurchase agreement upon vesting
|
17,222 | 2 | 3,848 | 3,850 | ||||||||||||||||||||||||||||||||||||
Net
Loss
|
(5,398,411 | ) | (5,398,411 | ) | ||||||||||||||||||||||||||||||||||||
BALANCE,
September 30, 2010 (Unaudited)
|
135,199 | 13</fo nt> | 44,357 | 5</fon t> | 6,413,038</fo nt> | (9,838,499</f ont> | ) | -</fon t> | (38,034 | ) | -</fon t> | (3,425,443</f ont> | ) |
The
accompanying notes are an integral part of these financial
statements.
5
5to1.Com,
Inc.
Statements
of Cash Flows
From Inception
|
||||||||||||||||
Year ended
|
(September 15, 2008)
|
Nine Month Ended
|
Nine Month Ended
|
|||||||||||||
December 31, 2009
|
to December 31, 2008
|
September 30, 2010
|
September 30, 2009
|
|||||||||||||
(Unaudited)
|
(Unaudited)
|
|||||||||||||||
CASH
FLOW FROM OPERATING ACTIVITIES
|
||||||||||||||||
Net
(loss)
|
$ | (4,112,273 | ) | $ | (327,815 | ) | $ | (5,398,411 | ) | $ | (2,785,299 | ) | ||||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||||||||||
Depreciation
|
7,059 | - | 13,167 | 3,951 | ||||||||||||
Stock
based compensation
|
787 | - | 4,694 | - | ||||||||||||
Change
in fair value of derivative liabilities
|
(76 | ) | - | (21,280 | ) | - | ||||||||||
Amortization
of debt discount
|
1,506 | - | 802,771 | - | ||||||||||||
Amortization
of deferred financing
|
9,716 | 29,147 | - | 9,716 | ||||||||||||
Changes
in operating assets and liabilities
|
||||||||||||||||
Accounts
recievable
|
(58,207 | ) | - | (267,435 | ) | (45,473 | ) | |||||||||
Prepaid
expenses
|
(90,873 | ) | - | 16,982 | (800 | ) | ||||||||||
Security
deposits
|
(16,691 | ) | - | (27,870 | ) | (16,691 | ) | |||||||||
Accounts
payable
|
21,976 | 29,194 | 481,719 | (1,523 | ) | |||||||||||
Accrued
expenses and taxes payable
|
55,588 | 48,982 | 45,624 | 32,872 | ||||||||||||
Net
cash used in operating activities
|
(4,181,488 | ) | (220,492 | ) | (4,350,039 | ) | (2,803,247 | ) | ||||||||
CASH
FLOWS FROM INVESTING ACTIVITIES:
|
||||||||||||||||
(Advance
to) repayment from stockholders
|
91,437 | (130,976 | ) | 39,539 | 97,179 | |||||||||||
Purchase
of office equipment
|
(42,724 | ) | - | (11,547 | ) | (31,098 | ) | |||||||||
Net cash used in investing activities
|
48,713 | (130,976 | ) | 27,992 | 66,081 | |||||||||||
CASH
FLOWS FROM FINANCING ACTIVITIES:
|
||||||||||||||||
Proceeds
from notes and loan payable
|
900,000 | 600,000 | 2,642,345 | 400,000 | ||||||||||||
Repayment
of Notes payable
|
- | - | (83,333 | ) | - | |||||||||||
Issuances
of preferred stock
|
5,302,260 | - | - | 3,500,000 | ||||||||||||
Payment
of financing costs
|
(98,156 | ) | (38,863 | ) | (14,402 | ) | (87,088 | ) | ||||||||
Issuances
of common stock
|
18 | - | - | - | ||||||||||||
Issuances
of common stock subject to repurchase
|
26,268 | 7,149 | ||||||||||||||
Proceeds
from subscription receivable
|
495 | |||||||||||||||
Acquisition
of common stock subject to repurchase
|
(356 | ) | (13,067 | ) | ||||||||||||
Net cash provided by financing activities
|
6,130,529 | 561,137 | 2,538,692 | 3,812,912 | ||||||||||||
NET
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
|
1,997,754 | 209,669 | (1,783,355 | ) | 1,075,746 | |||||||||||
CASH
AND CASH EQUIVALENTS - BEGINNING OF YEAR / PERIOD
|
209,669 | - | 2,207,423 | 209,669 | ||||||||||||
CASH
AND CASH EQUIVALENTS - END OF YEAR / PERIOD
|
$ | 2,207,423 | $ | 209,669 | $ | 424,068 | $ | 1,285,415 | ||||||||
Supplemental
disclosures of cash flow information:
|
||||||||||||||||
Interest
paid
|
||||||||||||||||
Taxes
paid
|
||||||||||||||||
Supplemental
disclosure of non-cash financing activities:
|
||||||||||||||||
Conversion
of Notes Payable and interest to Series A Preferred Stock
|
1,007,484 | - | - | 1,007,484 |
The
accompanying notes are an integral part of these financial
statements.
6
5to1.Com,
Inc.
Note to the Financial
Statements
For the Period of September
16, 2008 through December 31, 2008, Year Ended December 31, 2009 and
Nine
Month Periods Ended
September 30, 2009 and 2010
(Information Relating to the
Nine Month Periods Ended September 30, 2009 and 2010 is
Unaudited)
Note
1. Business Organization and Nature of
Operations
5to1.Com,
Inc., a Delaware corporation, (“5to1”, “our”, “us”, “we” or the “Company”)
provides a proprietary advertisement publishing platform that enables major
media publishers to manage and sell their ad space inventory using a
publisher-only controlled advertising platform.
Prior to
the fourth quarter of 2009, we devoted substantially all of our efforts and
resources to the development of our technology platform and pre-sale activities
and considered ourselves a “development stage company.” Effective September
2009, we completed the development of our technology platform, accelerated our
sales efforts and emerged from our development stage activities.
As
described in Note 10, on November 3, 2010, we (i) entered into a merger with
5to1 Holding Corp., formerly known as FTOH Corp. (“FTOH”), a publicly traded
company (the “Merger”), (ii) raised $6,575,000 of new capital in a private
placement transaction and (iii) redeemed $900,000 of bridge notes in exchange
for 2,000,000 shares of common stock.
Prior to
the Merger, we also completed a 46.67 to1 reverse stock split. The accompanying
financial statements and notes to the financial statements presented herein give
retroactive effect to the reverse split for all periods presented.
Note 2. Liquidity and
Financial Condition
We have
incurred cumulative net losses of $ 9,838,499 since the inception of the
business through September 30, 2010. Our cash balance as of September 30, 2010
was $424,068 and we had negative working capital as of that date of
$(3,277,399). Cash used in our operating activities amounted to $4,181,488 and
$4,350,039 for the year ended December 31, 2009 and nine months ended September
30, 2010, respectively.
We
completed the following financing transactions during the periods of September
16, 2008 through December 31, 2008, the year ended December 31, 2009 and the
nine months ended September 30, 2010:
|
·
|
During
the period of September 16, 2008 (inception) through December 31, 2008, we
sold convertible promissory notes (the “2008 Notes”) and received $600,000
in proceeds, of which $250,000 was provided by a related
party.
|
|
·
|
During
the period beginning on February 27, 2009 and ending on March 31, 2009, we
sold additional 2008 Notes and received $400,000 in proceeds, of which
$250,000 was provided by a related
party.
|
|
·
|
On
April 13, 2009, we exchanged 21,587 shares of our Series A Preferred Stock
(the “Series A Preferred”) for all of the outstanding principal and
interest due on the 2008 Notes and issued 21,427 shares of Series A
Preferred to a related party for cash at a purchase price of $46.67 per
share, resulting in cash proceeds of $1
million.
|
|
·
|
On
June 3, 2009 and November 27, 2009, we sold 53,407 and 38,777 shares of
Series A Preferred, respectively, for cash at a purchase price of $46.67
per share, resulting in cash proceeds of $4,302,260, of which $2,251,791
was provided by a related party.
|
|
·
|
On
October 14, 2009, we entered into a Loan and Security Agreement with
Silicon Valley Bank (“SVB”) under which SVB loaned us $500,000 and agreed
to loan us an additional $500,000 under certain conditions (the “SVB
Loan”). We issued SVB a warrant to purchase 750 shares of our Series A
Preferred at an exercise price of $46.67 per share as additional
consideration for the SVB Loan (the “SVB
Warrant”).
|
|
·
|
During
the period beginning on May 14, 2010 and ending on September 15, 2010, we
received $2,042,345 in proceeds from the sale of convertible promissory
notes (the “2010 Notes”) and the issuance of warrants to purchase an
aggregate of 6,564 shares of our Series A Preferred at an exercise price
of $46.67 per share (the “2010 Warrants”). Related parties purchased 2010
Notes with an aggregate principal amount of $1,869,018 (see Note
5).
|
7
|
·
|
On
September 29, 2010, we sold $600,000 aggregate principal amount of
promissory notes (the “Bridge Notes”) for
cash.
|
|
·
|
On
November 3, 2010, we completed the Merger (see Note 10). In connection
with the Merger, our previously issued Series A Preferred shares, 2010
Notes and Bridge Notes were converted into FTOH common shares and we
generated cash proceeds of $3,575,000 from a private placement of FTOH
shares.
|
Based on
the recent progress we made in the execution of our business plan and our merger
with FTOH, we believe that our currently available cash, which includes the cash
received from the issuance of shares in the FTOH private placement transaction,
and funds we expect to generate from operations will enable us to operate our
business through at least October 1, 2011. However, we will require
additional capital in order to execute the longer term aspects of our business
plan. If we are unable to raise additional capital or encounter unforeseen
circumstances that place constraints on our capital resources, we will be
required to take various measures to conserve liquidity, which could include,
but not necessarily be limited to, curtailing our business development
activities or suspending the pursuit of our business plan. We cannot provide any
assurance that we will raise additional capital. We have not secured any
commitments for new financing at this time, nor can we provide any assurance
that new financing will be available to us on acceptable terms, if at
all.
Note 3. Significant
Accounting Policies
Use
of Estimates
The
preparation of the financial statements in conformity with Generally Accepted
Accounting Principles (“GAAP”) 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 dates of the financial
statements and the reported amounts of revenue and expenses during the reporting
periods. Actual results could differ from those estimates. These estimates and
assumptions include valuing equity securities and derivative financial
instruments issued in financing transactions and share based payment
arrangements, determining the fair value of our common stock the collectability
of accounts receivable and deferred taxes and related valuation allowances.
Certain of our estimates, including evaluating the collectability of accounts
receivable, could be affected by external conditions, including those unique to
our industry, and general economic conditions. It is possible that these
external factors could have an effect on our estimates that could cause actual
results to differ from our estimates. We re-evaluate all of our accounting
estimates at least quarterly based on these conditions and record adjustments
when necessary.
Cash
and Cash Equivalents
We
consider all short-term highly liquid investments with an original maturity at
the date of purchase of three months or less to be cash
equivalents.
Revenue
Recognition
We follow
the guidance of the Securities and Exchange Commission’s Staff Accounting
Bulletin (“SAB”) 104 for revenue recognition and Accounting Standards
Codification (“ASC”) Topic 605, “Revenue Recognition.” Accordingly, we record
revenue when persuasive evidence of an arrangement exists, services have been
rendered or product delivery has occurred, the selling price to the customer is
fixed or determinable and collectability of the revenue is reasonably
assured.
Our sole
source of revenue is from the distribution of internet advertising, which
principally includes hosting advertising copy on a proprietary portal for the
eventual placement on media providers’ websites. Revenue is recognized when
the advertisement is delivered to a consumer. Such revenue consists of the gross
value of billings to advertisers. We report these revenues gross because we are
the primary obligor and bear responsibility for fulfillment of the service
provided to our customers, we have latitude in setting the price paid to our
customers, have discretion with respect to choosing publishers, and assume the
credit risk for the entire amount of the sale.
8
Accounts
Receivable and Allowance for Doubtful Accounts Receivable
Accounts
receivable are generally due 30 days from the invoice date. We have a policy of
reserving for uncollectible accounts based on our best estimate of the amount of
probable credit losses in our existing accounts receivable. We extend credit to
our customers based on an evaluation of their financial condition and other
factors. We generally do not require collateral or other security to support
accounts receivable. We perform ongoing credit evaluations of our customers and
maintain an allowance for potential bad debts if required.
We
determine whether an allowance for doubtful accounts is required by evaluating
specific accounts where information indicates the customers may have an
inability to meet financial obligations. In these cases, we use assumptions and
judgment, based on the best available facts and circumstances, to record a
specific allowance for those customers against amounts due to reduce the
receivable to the amount expected to be collected. These specific allowances are
re-evaluated and adjusted as additional information is received. The amounts
calculated are analyzed to determine the total amount of the allowance. We may
also record a general allowance as necessary.
Direct
write-offs are taken in the period when we have exhausted our efforts to collect
overdue and unpaid receivables or otherwise evaluate other circumstances that
indicate that we should abandon such efforts. We have determined that an
allowance for doubtful accounts is not required for any of the periods
presented.
Office
Equipment
Office equipment is stated at
cost less accumulated depreciation. Depreciation is provided for on a
straight-line basis over the three year useful lives of the assets. Expenditures
for additions and improvements are capitalized; repairs and maintenance are
expensed as incurred. Depreciation expense for the period of September 16, 2008
(inception) through December 31, 2008, the year ended December 31, 2009 and the
nine month periods ended September 30, 2009 and 2010 amounted to $0, $7,059,
$3,951 and $13,167, respectively.
Fair
Value Measurements
We
adopted the provisions of ASC Topic 820, “Fair Value Measurements and
Disclosures”, which defines fair value as used in numerous accounting
pronouncements, establishes a framework for measuring fair value and expands
disclosure of fair value measurements.
The
estimated fair value of certain financial instruments, including cash and cash
equivalents, accounts receivable, accounts payable and accrued expenses are
carried at historical cost basis, which approximates their fair values because
of the short-term nature of these instruments. The carrying amounts of our short
and long term credit obligations approximate fair value because the effective
yields on these obligations, which include contractual interest rates taken
together with other features such as concurrent issuances of warrants and/or
embedded conversion options, are comparable to rates of returns for instruments
of similar credit risk.
ASC 820
defines fair value as the exchange price that would be received for an asset or
paid to transfer a liability (an exit price) in the principal or most
advantageous market for the asset or liability in an orderly transaction between
market participants on the measurement date. ASC 820 also establishes a fair
value hierarchy, which requires an entity to maximize the use of observable
inputs and minimize the use of unobservable inputs when measuring fair value.
ASC 820 describes three levels of inputs that may be used to measure fair
value:
Level 1 —
quoted prices in active markets for identical assets or liabilities
Level 2 —
quoted prices for similar assets and liabilities in active markets or inputs
that are observable
Level 3 —
inputs that are unobservable (for example cash flow modeling inputs based on
assumptions)
Financial
liabilities measured at fair value on a recurring basis are summarized
below:
9
Fair Value Measurements at December 31, 2009
|
||||||||||||||||
December 31,
2009
|
Quoted prices in
active markets
for identical
assets (Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Significant
unobservable inputs
(Level 3)
|
|||||||||||||
SVB
Warrant Liability
|
$ | 31,573 | $ | 31,573 | ||||||||||||
Total
|
$ | 31,573 | $ | 31,573 |
Fair Value Measurements at September 30, 2010
|
||||||||||||||||
September 30,
2010
|
Quoted prices in
active markets for
identical assets
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Significant
unobservable inputs
(Level 3)
|
|||||||||||||
SVB
Warrant Liability
|
$ | 30,832 | $ | 30,832 | ||||||||||||
Embedded
Conversion Feature - 2010 Notes
|
$ | 569,038 | $ | 569,038 | ||||||||||||
Total
|
$ | 599,870 | $ | 599,870 |
We had no
financial liabilities outstanding at December 31, 2008 or September 30,
2009.
We
measure derivative liabilities at fair value using the Black-Scholes option
pricing model with assumptions that include the fair value of the stock
underlying the derivative instrument, the exercise or conversion price of the
derivative instrument, the risk free interest rate for a term comparable to the
term of the derivative instrument and the volatility rate and dividend yield for
our common stock. For derivative instruments convertible into or exercisable for
shares of our preferred stock, we considered the price per share of $46.67 paid
by unrelated parties as the fair value of the preferred stock. For derivative
instruments convertible into or exercisable for shares of our common stock, we
considered the results of a valuation performed by a third party specialist and
other internal analyses performed by management to determine the value of our
stock at the commitment dates of applicable transactions. The risk-free rate is
based on the U.S. Treasury yield curve in effect at the time of grant. The
Company has not paid dividends to date and does not expect to pay dividends in
the foreseeable future due to its substantial accumulated deficit. Accordingly,
expected dividends yields are currently zero. Expected volatility is based
principally on an analysis of historical volatilities of similarly situated
companies in the marketplace for a number of periods that is at least equal to
the contractual term or estimated life of the applicable financial
instrument.
We also
considered the use of the lattice or binomial models with respect to valuing
derivative financial instruments that feature anti-dilution price protection;
however, the differences in the results are insignificant due to the low
probability of triggering price adjustments in such financial
instruments.
We
classify our derivative liabilities within Level 3 of the valuation
hierarchy.
The
following table sets forth a summary of the changes in the fair value of our
Level 3 financial liabilities that are measured at fair value on a recurring
basis:
10
December 31, 2009
|
September 30,
2010 (unaudited)
|
|||||||
Beginning
balance
|
$ | - | $ | 31,573 | ||||
Fair
value of derivatives issued
|
31,650 | 589,576 | ||||||
Change
in fair value
|
(77 | ) | (21,279 | ) | ||||
Ending
balance
|
$ | 31,573 | $ | 599,870 |
Customer
Concentration
For the
periods ended December 31, 2009 and September 30, 2010, our largest
customer accounted for approximately 25% of sales. As of December 31,
2009 and September 30, 2010, the accounts receivable balance for this customer
was $17,167 and $72,990, respectively. We had no sales to or accounts
receivable balance due from this customer or any other significant customer for
the nine months ended September 30, 2009 or for the period of September 16, 2008
(inception) through December 31, 2008. Current economic conditions could harm
the liquidity and financial condition of our customers, which could in turn
cause them to fail to meet their contractual or other obligations to
us.
Income
Taxes
We use
the asset and liability method of accounting for income taxes in accordance with
ASC Topic 740, “Income Taxes.” Under this method, income tax expense is
recognized for the amount of: (i) taxes payable or refundable for the current
year and (ii) deferred tax consequences of temporary differences resulting from
matters that have been recognized in an entity’s financial statements or tax
returns. 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. The effect on deferred tax
assets and liabilities of a change in tax rates is recognized in the results of
operations in the period that includes the enactment date. A valuation allowance
is provided to reduce the deferred tax assets reported if based on the weight of
the available positive and negative evidence, it is more likely than not some
portion or all of the deferred tax assets will not be realized.
ASC Topic
740.10.30 clarifies the accounting for uncertainty in income taxes recognized in
an enterprise’s financial statements and prescribes a recognition threshold and
measurement attribute for the financial statement recognition and measurement of
a tax position taken or expected to be taken in a tax return. ASC Topic
740.10.40 provides guidance on derecognition, classification, interest and
penalties, accounting in interim periods, disclosure, and transition. We have no
material uncertain tax positions for any of the reporting periods
presented.
Concentration
of Credit Risk
Financial
instruments that potentially expose us to concentrations of credit risk consist
principally of cash and cash equivalents. We maintain our cash accounts at high
quality financial institutions with balances, at times, in excess of federally
insured limits. As of December 31, 2009 and September 30, 2010, we had
approximately $1,692,230 and $124,500, respectively, of balances in excess of
federally insured limits. Management believes that the financial institutions
that hold our deposits are financially sound and therefore pose minimal credit
risk.
Preferred
Stock
We apply
the guidance enumerated in ASC 480 “Distinguishing Liabilities from Equity” when
determining the classification and measurement of preferred stock. Preferred
shares subject to mandatory redemption (if any) are classified as liability
instruments and are measured at fair value. We classify conditionally redeemable
preferred shares (if any), which includes preferred shares that feature
redemption rights that are either within the control of the holder or subject to
redemption upon the occurrence of uncertain events not solely within our
control, as temporary equity. At all other times, we classified our preferred
shares in stockholders’ equity. Our preferred shares do not feature any
redemption rights within the holders’ control or conditional redemption features
not within our control. Accordingly all issuances of preferred stock are
presented as a component of consolidated stockholders’ equity
(deficit).
11
Convertible
Instruments
We evaluate
and account for conversion options embedded in convertible instruments in
accordance with ASC 815 “Derivatives and Hedging Activities”.
Applicable
GAAP requires companies to bifurcate conversion options from their host
instruments and account for them as free standing derivative financial
instruments according to certain criteria. The criteria include circumstances in
which (a) the economic characteristics and risks of the embedded derivative
instrument are not clearly and closely related to the economic characteristics
and risks of the host contract, (b) the hybrid instrument that embodies
both the embedded derivative instrument and the host contract is not re-measured
at fair value under other GAAP with changes in fair value reported in earnings
as they occur and (c) a separate instrument with the same terms as the
embedded derivative instrument would be considered a derivative
instrument.
We
account for convertible instruments (when we have determined that the embedded
conversion options should not be bifurcated from their host instruments) as
follows: We record when necessary, discounts to convertible notes for the
intrinsic value of conversion options embedded in debt instruments based upon
the differences between the fair value of the underlying common stock at the
commitment date of the note transaction and the effective conversion price
embedded in the note. Debt discounts under these arrangements are amortized over
the term of the related debt to their stated date of redemption. We also record
when necessary, deemed dividends for the intrinsic value of conversion options
embedded in preferred shares based upon the differences between the fair value
of the underlying common stock at the commitment date of the transaction and the
effective conversion price embedded in the preferred shares. As described
elsewhere herein, our Series A preferred shares contain an embedded conversion
option that features anti-dilution price protection, The fair value of the
conversion option contained within our preferred stock was at all times
insignificant based on the difference between the $46.67.00 exercise price of
the conversion option and the fair of our common stock, which was $2.34 as of
December 31, 2009 and $4.67 as of September 30, 2010. Accordingly the effect of
compounding that feature with any other features in warrants that contact fixed
exercise prices or allocating any portion of the proceeds received upon
issuances of preferred shares was insignificant to our financial position and
results of operations for all periods presented.
Common
Stock
We issue
restricted common stock to our employees from time to time. We maintain an
option to repurchase at cost any restricted common stock that has not yet vested
if the employment arrangement is terminated (the "Company Repurchase Option").
We have exercised the Company Repurchase Option on several occasions. We apply
the guidance enumerated in ASC 480 “Distinguishing Liabilities from Equity” when
determining the classification and measurement of the common stock subject to
the foregoing option. Common shares subject to Company Repurchase Options are
classified as liability instruments.
Common
Stock Purchase Warrants and Other Derivative Financial Instruments
We
classify as equity any contracts that require physical settlement or net-share
settlement or provide us a choice of net-cash settlement or settlement in our
own shares (physical settlement or net-share settlement) provided that such
contracts are indexed to our own stock as defined in ASC 815-40 ("Contracts in
Entity's Own Equity"). We classify as assets or liabilities any contracts that
require net-cash settlement (including a requirement to net cash settle the
contract if an event occurs and if that event is outside our control) or give
the counterparty a choice of net-cash settlement or settlement in shares
(physical settlement or net-share settlement). We assess classification of our
common stock purchase warrants and other free standing derivatives at each
reporting date to determine whether a change in classification between assets
and liabilities is required.
Our
derivative financial instruments consist of the (i) Series A Preferred Stock
Purchase Warrants we issued to Silicon Valley Bank, (ii) Series A Preferred
Stock Purchase Warrants we issued to the participants in our 2010 Bridge
Financing Transaction and (iii) the conversion option featured in the notes we
issued in our 2010 Bridge Financing Transaction (Notes 4 and 7). We evaluated
these derivatives to assess their proper classification using the applicable
classification criteria enumerated under ASC 815-40. We determined that the
warrant we issued to Silicon Valley Bank and the conversion option featured in
the 2010 bridge notes should be classified as liabilities in the accompanying
balance sheets because the settlement provisions are not fixed due to
anti-dilution price protection. The warrants we issued to the participants in
our 2010 Bridge Financing Transaction, which have fixed settlement provisions
and do not feature any characteristics permitting net cash settlement at the
option of the holders, are classified in stockholders’ equity
(deficit).
12
Stock-Based
Compensation
We
recognize compensation expense for stock-based compensation in accordance with
ASC Topic 718. For employee stock-based awards, we calculate the fair value of
the award on the date of grant using the Black-Scholes method for stock options
and the quoted price of our common stock for unrestricted shares; the expense is
recognized over the service period for awards expected to vest. For non-employee
stock-based awards, we calculate the fair value of the award on the date of
grant in the same manner as employee awards, however, the awards are revalued at
the end of each reporting period and the pro rata compensation expense is
adjusted accordingly until such time the nonemployee award is fully vested, at
which time the total compensation recognized to date equals the fair value of
the stock-based award as calculated on the measurement date, which is the date
at which the award recipient’s performance is complete. The estimation of
stock-based awards that will ultimately vest requires judgment, and to the
extent actual results or updated estimates differ from original estimates, such
amounts are recorded as a cumulative adjustment in the period estimates are
revised. We consider many factors when estimating expected forfeitures,
including types of awards, employee class, and historical
experience.
Note 4. Loans and
Notes Payable
Loan
and Security Agreement with Silicon Valley Bank
On
October 14, 2009, we entered into a Loan and Security Agreement with SVB
pursuant to which SVB agreed to provide us with up to $1,000,000 of loans in two
separate tranches of $500,000 each, subject to certain conditions. We borrowed
the first $500,000 of the facility prior to December 31, 2009. The availability
of the remaining $500,000 of credit under the second tranche of the facility was
subject to our attainment of certain financial performance targets that we did
not attain during a contractual draw period that commenced on January 1, 2010
and expired on March 1, 2010.
The SVB
Loan is due on March 1, 2013. The SVB Loan bears interest at an annual rate of
6.5%, payable monthly, with interest only through March 1, 2010, and 36
consecutive monthly payments of $15,325 commencing April 1, 2010 and ending on
March 1, 2013. The SVB Loan is secured by a first priority lien on all of our
assets.
As
additional consideration for the SVB Loan, we issued to SVB a warrant (the “SVB
Warrant”) to purchase 536 shares of Series A Convertible Preferred upon
execution of the Loan documents and an additional 214 shares upon accessing the
first $500,000 tranche of the facility at an exercise price of $46.67 per share.
The SVB Warrants expire 10 years from the issue date. The fair value of the SVB
Warrants at the date of issuance amounted to $31,650 (Note 3 and Note 7). We
recorded the fair value of the Warrants as a derivative liability with a
corresponding increase in debt issue costs. Debt issue costs are being amortized
over the term of the SVB Loan to the stated maturity date of March 1, 2013 and
are presented as a component of interest expense in the accompanying statements
of operations. Amortization
of the debt discount for the nine month period ended September 30, 2010 is
$6,782 and is included as a component of interest expense in the accompanying
statement of operations for the nine months ended September 30,
2010.
We
calculated the issuance date fair value of the SVB Warrants using the
Black-Scholes option-pricing model with the following assumptions: Fair value of
stock $46.67; exercise price $46.67; risk free interest rate 1.46% to 2.16%,
term of 10 years; volatility rate of 100%; dividend yield of zero.
As
described in Note 7, the carrying amounts of the SVB Warrants were adjusted to
fair value at December 31, 2009 and September 30, 2010.
Under the
terms governing the SVB Loan, we are subject to certain affirmative and negative
covenants that among other things, require us to comply with certain financial
reporting obligations to SVB and preserve the collateral provided as security
under the Loan agreement and that impose limits on our ability to merge with or
acquire other companies, create liens on our property, incur debt obligations,
enter into transactions with affiliates, except on an arm’s length basis,
dispose of property, issue dividends or make distributions or enter into equity
or subordinated debt financings with existing investors. We requested and
received waivers of the relevant restrictions in connection with the sale of the
2010 Notes and Bridge Notes described below and to enter into the
Merger.
The
following table lists the remaining principal payments due under the SVB Loan
for reporting periods subsequent to September 30, 2010:
13
Reporting
Periods Subsequent to September 30, 2010
|
||||
2011
|
$ | 166,656 | ||
2012
|
166,656 | |||
2013
|
41,696 | |||
$ | 375,008 |
Total
contractual interest expense on the SVB Loan for the periods ended December 31,
2009 and September 30, 2010 was $5,868 and $29,115, respectively.
The
“2008 Notes”
During
the period ended December 31, 2008, we issued $600,000 aggregate face amount of
Convertible Promissory Notes due January 31, 2009. The 2008 Notes featured
interest at 2.38% per annum and were unsecured obligations. The Notes further
provided that if a “Qualified Financing” of preferred stock were to occur (as
defined) prior to the maturity date of the Notes, principal and all accrued but
unpaid interest on the Notes would become automatically convertible into fully
paid and non-assessable shares of our preferred stock at a price per share equal
to the lowest price per share paid by any other purchaser of the shares sold in
the Qualified Financing. The outstanding principal balance of the
2008 Notes at December 31, 2008 was $600,000.
On
February 27, 2009 and March 31, 2009, we issued an additional $400,000 aggregate
face amount of 2008 Notes. As described in Note 7, we completed a Qualified
Financing transaction on April 13, 2009, at which time all of the 2008 Notes
(including accrued interest) were converted into 21,587 shares of our Series A
Preferred.
The
embedded conversion option featured in the 2008 Notes could not be exercised
unless and until we completed a Qualifying Financing transaction. Accordingly,
we determined based on authoritative guidance that the embedded conversion
option is deemed to be a contingent conversion rather than active conversion
option that did not require accounting recognition at the commitment dates of
the issuances of the 2008 Notes. Further, the fair value of the
conversion option contained within our preferred stock was insignificant based
on the difference between the $46.67 exercise price of the conversion option and
the fair of our common stock, which was $2.33 at the commitment date of April
13, 2009.We incurred $38,863 of legal costs in connection with the issuance of
the 2008 Notes, which we recorded as a deferred financing cost, to be amortized
over the term of the 2008 Notes.
Total
contractual interest expense on the 2008 Notes for the periods ended December
31, 2008 and December 31, 2009 was $2,389 and $5,099, respectively.
The
“2010 Notes”
Beginning
on May 14, 2010, and continuing through September 15, 2010, we completed a
$2,042,345 bridge financing transaction in four separate closings
through the issuance of 10%
Subordinated Convertible Promissory Notes
(the "2010 Notes") and warrants to purchase 6,564 shares of Series A
Preferred (the "2010 Warrants"). The 2010 Notes are subordinate to
the SVB Loan. The 2010 Warrants have a term of 5 years and an exercise price of
$46.67 per share. Principal and all accrued but unpaid interest on the 2010
Notes are convertible at maturity as follows: If a “Qualified Financing” occurs
on or prior to the maturity date of the 2010 Notes, principal and all accrued
but unpaid interest on the Notes automatically are convertible into fully paid
and non-assessable shares of preferred stock at a price per share equal to the
lowest price per share paid by any other purchaser of the preferred stock sold
in the Qualified Financing. If no Qualified Financing occurs on or prior to the
Maturity Date, then, at the option of the holder, principal and all accrued but
unpaid interest on the Notes are convertible into fully paid and nonassessable
shares of our Series A Preferred Stock at a conversion price of $46.67 per
share. The 2010 Notes feature anti-dilution price protection that provide for an
adjustment to the contractual conversion price. The outstanding
principal balance of the 2010 Notes at September 30, 2010 was $2,042,345. In
October 2010, holders of the 2010 Notes exchanged their Notes for a total of
3,275,000 shares (see Note 10).
We
determined based on authoritative guidance, that the 2010 Warrants and the
conversion option featured in the 2010 Notes each should be valued
separately. Using the fair value measurements described above, we
allocated $206,412 of the proceeds of the 2010 Notes to the 2010 Warrants and
$589,576 of the proceeds to the conversion option. The 2010 Warrants were
recorded as an increase to additional paid in capital and the conversion option
that was bifurcated from the 2010 Notes is accounted for as a free-standing
derivative liability.
14
We
calculated the fair value of the 2010 Warrants using the Black-Scholes
option-pricing model with the following assumptions: Fair value of stock $46.67;
exercise price $46.67; risk free interest rate 1.46% to 2.16%, term of 5 years;
volatility rate of 100%; dividend yield of zero.
We
calculated the fair value of the conversion option liability using the
Black-Scholes option-pricing model with the following assumptions: Fair value of
stock $46.67; exercise price $46.67; risk free interest rate 1.46% to 2.16%,
term of 0.3 year to 0.6 years; volatility rate of 100%; dividend yield of
zero.
The
difference between the discounted carrying amount of the 2010 Notes and their
contractual redemption amount, which amounted to $795,988, was fully amortized
as of September 30, 2010 and is included as a component of interest
expense in the accompanying statement of operations for the nine months ended
September 30, 2010.
We
incurred $41,082 of legal costs in connection with the issuance of the 2010
Notes, which we recorded as a deferred financing cost that was fully amortized
over the term of the 2010 Notes.
On
September 29, 2010, the holders of the 2010 Notes entered into a Subordination
Agreement with purchasers of the Bridge Notes described below pursuant to which
the holders of the 2010 Notes agreed, among other things, to subordinate the
2010 Notes to the priority of the Bridge Notes and to extend the maturity date
of the 2010 Notes until the earlier of the date of receipt of FTOH common shares
following completion of the Merger or five days following the maturity date of
the Bridge Notes.
We
evaluated the effect that the extension of the maturity date had on the carrying
amount of the 2010 Notes. We determined that because there was no change in the
principal amount of the Notes or the contractual interest rate, that there is no
material change in cash flows of the 2010 Notes. Accordingly, the modification
is insignificant. The conversion option featured in the 2010 Notes,
which was bifurcated and is being accounted for as a free standing derivative
was effectively modified concurrent with the extension of the 2010
Notes. Accordingly, the amount of conversion option liability, which
is equal to the modification charge we recorded at the time the 2010 Notes were
extended, is recorded on the balance sheet at a fair value of
$569,038.
We
calculated the fair value of the conversion option liability at September 30,
2010 using the Black-Scholes option-pricing model with the following
assumptions: Fair value of stock $46.67; exercise price $46.67; risk free
interest rate 1.46% to 2.16%, term of 0.3 year to 0.6 years; volatility rate of
100%; dividend yield of zero.
Total
contractual interest expense on the 2010 Notes for the period ended September
30, 2010 was $59,842.
The
“Bridge Notes”
On
September 29, 2010, we sold $600,000 of Secured Promissory Notes (the “Bridge
Notes”) to unrelated parties and received proceeds of $590,000. The Bridge Notes
are secured by a lien on all of our assets, which is subordinate to the first
priority lien held by SVB. The Bridge Notes bear interest at 6% per annum, and
at the option of the holder convert into the securities issued by FTOH in
connection with the Merger or are due and payable on the date that is the
earlier to occur of: (x) closing of the Merger or (y) March 29,
2011. Under the terms of the Bridge Notes, we are subject to certain
negative covenants that among other things, impose limits on our ability to
incur debt obligations, create liens on our property, amend our certificate of
incorporation or other charter documents, repay or redeem existing outstanding
securities or issue dividends or make distributions. The outstanding principal
balance of the Bridge Notes at September 30, 2010 was $600,000.
On
October 1, 2010, we sold an additional $300,000 aggregate principal amount of
Bridge Notes. In connection with the Merger, all of the principal and interest
outstanding with respect to the Bridge Notes was converted into 2,000,000 FTOH
shares.
Note 5. Related Party
Transactions
We had
loans due from an officer stockholder relating to advances that we made to this
officer principally to fund business travel and other business related expenses
incurred during the normal course of business. The loans are non interest
bearing and are payable on demand. The balance of such loans as of December 31,
2008 and December 31, 2009 was $130,976 and $39,539, respectively. The remaining
balance of such loans was recorded as compensation expense during the nine month
period ended on September 30, 2010.
15
Mr. Ross
Levinsohn is a director of the Company and an officer, director, partner or
holder of a financial interest in ComVentures VI, L.P. and its affiliates, which
purchased (i) 2008 Notes with an aggregate principal amount of $500,000, (ii)
2010 Notes with an aggregate principal amount of $504,018 and (iii) Series A
Preferred with an aggregate liquidation preference of $3,251,791. Mr. Jim
Heckman is our CEO and is President and Manager of Heckman Media Capital LLC,
which purchased 2010 Notes with an aggregate principal amount of
$1,365,000.
Note 6. Commitments
and Contingencies
We are
committed under two separate operating leases for office space, which expire in
2011 and 2012.
Rental
commitments on non cancellable leases for reporting periods subsequent to
September 30, 2010 are as follows:
Reporting
Periods Subsequent to September 30, 2010
|
||||
2011
|
$ | 144,000 | ||
2012
|
18,000 | |||
$ | 162,000 |
Rent
expense charged to operations, including rent paid on month to month leases, was
approximately $162,312 for the nine month period ended September 30, 2010;
$90,000 for the year ended December 31, 2009; and $0 for the period from
inception to December 31, 2008.
Note 7. Stockholders’
Equity
Authorized
Capital
As of
September 30, 2010, we are authorized to issue up to 27,000,000 shares of
common stock, par value $0.0001 per share, and 10,000,000 shares of
preferred stock, par value $0.0001 per share, all of which have been designated
as Series A Preferred Stock.
Series
A Convertible Preferred Stock
Each
share of Series A Preferred has voting rights equal to an equivalent number of
common shares into which it is convertible. The holders of the Series A
Preferred are entitled to receive non-cumulative dividends if and when declared
by the Board of Directors, payable in preference to any dividend on the common
stock. The dividend rate is $2.80 per share. The Series A Preferred
carry a liquidation preference of $46.67 per share subject to adjustment for
certain corporate reorganization events. Each share of Series A preferred is
convertible into common stock at an initial conversion price of $46.67 per
share, subject to adjustment for certain corporate reorganization events and
certain dilutive issuances of stock. The Series A Preferred is not
redeemable. Our Articles of Incorporation state that for as long as at least
2,143 shares of Series A Preferred remain outstanding, the Series A Preferred
stockholders, voting as a separate class, shall have the right to elect one
member to our board of directors.
The
Series A Preferred imposes the following restrictions upon us for as long as at
least 2,143 shares of Series A Preferred remain outstanding: entering into
mergers, consolidations without first obtaining the approval of holders of at
least 60% of the then outstanding shares of Series A Preferred; amending the
certificate of incorporation in a manner that would adversely affect the Series
A Preferred Stockholders; increasing or decreasing our authorized
capital; issuing any new class of equity or debt securities with
rights or provisions senior to or on parity with the Series A Preferred;
effectuating a liquidation or dissolution of the Company; authorizing a merger
or acquisition of sale of substantially all of our assets; declaring dividend
distributions to preferred or common stockholders; increasing the number of
shares authorized under stock options plans or creating new stock option plans;
entering into transactions with officer, directors and stockholders outside the
ordinary course of business without board approval; materially changing our
business; and increasing or decreasing the authorized number of directors
constituting the board of directors.
16
Private
Placement of Series A Convertible Preferred Stock
During
the year ended December 31, 2009, we issued an aggregate of 135,199 shares of
Series A Preferred on the following closing dates pursuant to a Series A
Preferred Stock Purchase Agreement dated April 13, 2009, for a combination of
cash and the settlement of all 2008 Notes outstanding as of April 13,
2009:
Shares Issued for
|
||||||||||||||||||||||||
Closing Date
|
Shares Issued
|
Cash Proceeds
|
Settlement of Notes
Payable
|
Total Issuance
Price
|
Conversion
Price
|
Fair Value of
Common Stock
|
||||||||||||||||||
April
13, 2009
|
43,014 | $ | 1,000,000 | $ | 1,007,484 | $ | 2,007,484 | $ | 47 | $ | 2.33 | |||||||||||||
June
3, 2009
|
53,407 | 2,492,516 | 2,492,516 | $ | 47 | 2.33 | ||||||||||||||||||
November
27, 2009
|
38,777 | 1,809,744 | 1,809,744 | $ | 47 | 2.33 |
The
Series A Preferred is convertible into common stock at any time, at the option
of the holder, at a conversion price of $46.67 per share. The conversion price
is subject to adjustment for stock splits, stock dividends, recapitalizations,
dilutive issuances and other anti-dilution provisions, including circumstances
in which we, at our discretion, issue equity securities or convertible
instruments that feature prices lower than the conversion price specified in the
Series A Preferred. The Series A Preferred is automatically convertible into
shares of our common stock, at the then applicable conversion price, upon the
closing of a firm commitment underwritten public offering of shares of our
common stock yielding aggregate proceeds of not less than $20 million or under
certain other circumstances when the trading volume and average trading prices
of the stock attain certain specified levels.
We
concurrently entered into an Investor Rights Agreement with the Series A
Preferred stockholders, originally dated April 13, 2009 and amended on October
21, 2009 to permit the closing of the loan with SVB, which provides
among other things, that the Series A Preferred stockholders are
entitled to (i) the right to request a best efforts registration of their
securities under certain circumstances and subject to certain limitations at our
discretion, (ii) a best efforts registration on form S-3 in the event of the
completion of an initial public offering of our common stock, and (iii) rights
of first offer with respect to subsequent sales of our securities. The Investor
Rights Agreement imposes restrictions on the transfer of the Series A
Preferred.
We
concurrently entered into a Voting Rights Agreement by and among the Company,
the Series A Preferred Stock holders and our founding stockholders (collectively
the “Investors”) that provides the Investors, among other things, with certain
rights of participation in the determination of the size of the board of
directors, voting rights relating to the election of directors and drag along
rights with respect to change in control transactions. The Voting
Rights Agreement as amended on June 3, 2009 and May 14, 2010 currently provides
for the election of up to five directors of which one would be designated by the
Series A Stockholders, one would be designated by our common stockholders, two
would be designated jointly by both the Series A and our common stockholders and
the remaining director would be appointed by the 2010 Note holders.
Also, we
concurrently entered into a Right of First Refusal and Co-Sale Agreement with
the holders of the Series A Preferred, which, among other things, imposes
restrictions on the Investors’ rights to transfer our common stock or
convertible securities without first notifying us of the intention to transfer
such shares and which provides us with the right of first refusal to purchase
such shares and the right of certain other investors to purchase any shares
offered for sale that are not purchased by us during a specified period of time
following the notice of intent to transfer the shares a price equal to the price
offered by the applicable Investor to the original proposed offeree. In
addition, each of the Investors may participate in the sale to the original
proposed offeree in the manner described in the Agreement in the event that
neither we nor the other permitted investors exercise their right of first
refusal.
In
October 2010, the Investor Rights Agreement, Voting Rights Agreement and Right
of First Refusal and Co-Sale Agreement were cancelled in connection with the
Merger.
We
determined in accordance with the applicable provisions of ASC 815 that the
conversion option featured in the Series A Preferred should be valued
separately. As described elsewhere herein, we determined that the
value of the conversion option was not material and accordingly, we did not
allocate any of the proceeds received upon the sale of the Series A Preferred to
the conversion option.
17
As
described in Note 3, we apply the classification and measurement principles
enumerated in ASC 480 “Distinguishing Liabilities from Equity” with respect to
accounting for our issuances of the Series A Preferred. The Company is required,
under Delaware Law, to obtain the approval of its board of directors in order to
effectuate a merger, consolidation or similar event resulting in a more than 50%
change in control or a sale of all or substantially all of our assets. The board
of directors is then required to submit proposals to enter into these types of
transactions to its stockholders for their approval by majority vote. The Series
A Preferred stockholders and common stockholders jointly controlled
the board of directors at December 31, 2009. The Series A Preferred stockholders
had sole control over the board of directors as of September 30,
2010. Notwithstanding the composition of our board of directors, our
preferred shares do not feature any fixed redemption provisions. In addition,
the liquidation and deemed liquidation events stipulated in our articles of
incorporation provide for both the Series A Preferred stockholders and the
holders of any subordinate classes of securities to receive the same form
consideration upon the occurrence of any liquidation or deemed liquidation
events. Based on these provisions, we classified the Series A Preferred as
permanent equity in the accompanying balance sheet in accordance with the
provisions of ASC 480.
We
evaluated the Series A Convertible Preferred at each reporting date for
appropriate balance sheet classification.
Issuances
of Common Stock
On
October 9, 2008, we issued an aggregate of 106,064 shares of common stock to our
four founding stockholders (the “Founding Stockholders”) pursuant to individual
restricted stock purchase agreements. The shares were issued at par value based
on the fact that the Company was newly formed, had no history of operations, no
capital resources and a business plan subject to substantial uncertainty at the
time of the its formation.
The
restricted stock purchase agreements provide, among other things, for the
Founding Stockholders to purchase their pro-rata portion of any other Founding
Stockholder’s shares of stock upon a departing Founding Stockholder’s
termination of employment from the Company under certain circumstances unless
the remaining Founding Stockholders deliver a notice of intent not to purchase
such shares within 30 days of the date of such stockholder’s termination of
employment. If at any time during the 30 day notice period the remaining
Founding Stockholders decline to purchase the shares, the Company then has the
option, exercisable within 60 days of the date of such stockholder’s
termination, to repurchase any terminating Founding Stockholder’s shares of
stock. All share purchases or repurchases under this agreement are payable in
cash at the original issuance price per share. In addition, the
shares subject to repurchase under this agreement are released from the
repurchase provisions at the rate of 12.5% of all shares held by a Founding
Stockholder six months from the date of their issuance, 12.5% ratably over the
one year period on the date that begins on the first day immediately following
the end of the initial six month release period and the remaining 75% of all
such shares ratably over the three year period on the date that begins on the
first day following the end of the initial six month release
period.
In the
event that the Company terminates any of the Founding Stockholders without cause
or any of the Founding Stockholders terminate their employment for good reason
or there is a change in control, as defined, then certain portions of any
remaining shares not yet released from the recall provisions will be excluded
from the provisions of the stock purchase agreement.
Effective
December 19, 2008, one of the Founding Stockholders terminated his employment
with us. We repurchased 31,712 shares of his common stock on April 10, 2009 at a
cost of $148. We immediately reissued 28,283 shares to the other Founding
Stockholders for proceeds of $132.
On April
13, 2009, we repurchased 7,672 shares and reissued 2,529 shares to the
terminating stockholder for a net repurchase of 5,142 shares for cash of
$24.
On
October 28, 2009, we repurchased 2,529 shares and reissued 2,412 shares to the
same terminating stockholder for a net repurchase of 117 shares for cash of
$1.
On
October 28, 2009, we issued 4,714 shares of stock for $22 in cash to a newly
admitted officer/stockholder of the Company subject to a restricted stock
purchase agreement in which the new officer/stockholder became a successor to
the Founding Stockholder whose employment terminated on December 19, 2008. The
terms of the new officer/stockholder’s restricted stock purchase agreement are
identical to those entered into by the Company and its Founding Stockholders
described above. We also issued 3,857 shares for $18 in cash for
investment purposes to an entity controlled by the new officer/stockholder,
which are not subject to any repurchase agreement.
On
October 28, 2009, we repurchased 34,332 shares of common stock from our three
remaining Founding Stockholders for $160 and reissued 19,516 shares for $91 to
the same stockholders for a net repurchase of 14,816 shares for $69 in
cash.
18
In
November 2009, we sold an aggregate of 11,142 shares of common stock to certain
of our employees at a purchase price of $2.33 per share pursuant to restricted
stock purchase agreements. These restricted stock purchase agreements provide us
with an option to repurchase any of the aforementioned employee’s shares of
stock within the 30 day period following their termination of employment based
on substantially the same terms as the restricted stock purchase agreements
entered into by the Company and its Founding Stockholders described
above.
On March
17, 2010, we issued an aggregate of 1,714 shares of stock to two of our Founding
Stockholders and one director for an aggregate purchase price of $8.00 in
cash.
Om May 4,
2010, we issued 1,714 shares of stock to an employee at $2.33 per share pursuant
to restricted stock purchase agreements on substantially the same terms as the
restricted stock purchase agreements entered into by the Company and certain
other employees in November 2009 as described above.
On June
24, 2010, we repurchased 3,857 shares from a terminated employee at a purchase
price of $2.33 per share for total proceeds of $9,000, We immediately reissued
1,324 shares to such former employee at $2.33 per share for total proceeds of
$3,094 resulting in a net repurchase of 2,531 shares for $5,906 pursuant to a
restricted stock purchase agreement entered into by the Company and the former
employee.
On June
30, 2010, we repurchased 1,714 shares from a terminated employee at a purchase
price of $2.33 per share for total proceeds of $4,000 pursuant to a restricted
stock purchase agreement entered into by the Company and the former employee in
May 4, 2010.
In
December 2009, one of the remaining Founding Stockholders terminated his
employment with us resulting in our repurchase of all 14,385 shares of his
common stock on June 30, 2010 for proceeds of $67. We immediately reissued
10,100 shares for proceeds of $46.67, which includes 4,204 shares to the
terminating stockholder for proceeds of $20 and 5,896 shares to the remaining
Founding Stockholders for proceeds of $27 to facilitate the completion of their
purchase options. Accordingly, we repurchased a net of 4,285 shares from the
terminating stockholder for $20 in cash as of June 30, 2010.
The
following table summarizes the issuance, repurchase and reissuance of our common
stock during the periods from inception through December 31, 2008, the year
ended December 31, 2009 and the nine months ended September 30,
2010.
19
Shares Classified as
Liabilities
|
Shares Classified as Equity
|
Treasury
Stock
|
||||||||||||||||||||||||||||||||
Date
|
Description
|
Total Shares
Issued
|
Cash
Received
(Paid)
|
Shares
|
Dollars
|
Shares
|
Par
|
Additional
Paid In
Capital
|
Shares
|
|||||||||||||||||||||||||
September
16, 2008
|
Issuance
of shares to Founders subject to repurchase
|
106,064 | 106,064 | $ | (495 | ) | ||||||||||||||||||||||||||||
106,064 | 106,064 | (495 | ) | |||||||||||||||||||||||||||||||
Payment
received from stock subscription
|
495 | |||||||||||||||||||||||||||||||||
April
10, 2009
|
Exercise
of repurchase option
|
(148 | ) | (37,712 | ) | 148 | 37,712 | |||||||||||||||||||||||||||
April
10, 2009
|
Reissuance
of shares from treasury to Former Founder
|
132 | 28,283 | (132 | ) | (28,283 | ) | |||||||||||||||||||||||||||
April
13, 2009
|
Exercise
of repurchase option
|
(36 | ) | (7,672 | ) | 36 | 7,672 | |||||||||||||||||||||||||||
April
13, 2009
|
Reissuance
of shares from treasury to Former Founder
|
12 | 2,529 | (12 | ) | (2,529 | ) | |||||||||||||||||||||||||||
October
28, 2009
|
Exercise
of repurchase option
|
(12 | ) | (2,529 | ) | 12 | 2,529 | |||||||||||||||||||||||||||
October
28, 2009
|
Reissuance
of shares from treasury to Former Founder
|
12 | 2,412 | (12 | ) | (2,412 | ) | |||||||||||||||||||||||||||
October
28, 2009
|
Issuance
of shares subject to repurchase to succeeding Founder
|
4,714 | 22 | 4,714 | (22 | ) | ||||||||||||||||||||||||||||
October
29, 2009
|
Issuance
of shares to affilliate of succeeding Founder
|
3,857 | 18 | 3,857 | (1 | ) | (17 | ) | ||||||||||||||||||||||||||
October
29, 2009
|
Shares
repurchased from Founders
|
(160 | ) | (34,332 | ) | 160 | 34,332 | |||||||||||||||||||||||||||
October
29, 2009
|
Reissuance
of shares from treasury to Founders for cash
|
91 | 19,516 | (91 | ) | (19,516 | ) | |||||||||||||||||||||||||||
November
1, 2009
|
Issuance
of shares to new employees subject to repurchase
agreements
|
11,142 | 26,000 | 11,142 | (26,000 | ) | ||||||||||||||||||||||||||||
December
31, 2009
|
Shares
released from repurchase agreements due to vesting during the
period
|
(23,278 | ) | 109 | 23,278 | (2 | ) | (107 | ) | |||||||||||||||||||||||||
125,777 | 26,426 | 69,137 | (26,298 | ) | 27,135 | (3 | ) | (124 | ) | 29,505 | ||||||||||||||||||||||||
March
17, 2010
|
Issuance
of shares to Founder and a director subject to repurchase
agreements
|
1,714 | 8 | 1,714 | (8 | ) | ||||||||||||||||||||||||||||
May
4, 2010
|
Issuance
of shares to new employees subject to repurchase
agreements
|
1,714 | 4,000 | 1,714 | (4,000 | ) | ||||||||||||||||||||||||||||
June
24, 2010
|
Exercise
of repurchase option
|
(9,000 | ) | (3,857 | ) | 9,000 | 3,857 | |||||||||||||||||||||||||||
June
24, 2010
|
Reissuance
of shares from treasury to Former employee
|
3,094 | 1,326 | (3,094 | ) | (1,326 | ) | |||||||||||||||||||||||||||
June
30, 2010
|
Exercise
of repurchase option
|
(4,000 | ) | (1,714 | ) | 4,000 | 1,714 | |||||||||||||||||||||||||||
December
9, 2009
|
Shares
repurchased from former Founder
|
(67 | ) | (14,385 | ) | 67 | 14,385 | |||||||||||||||||||||||||||
June
30, 2010
|
Reissuance
of shares from treasury to Founders
|
47 | 10,100 | (47 | ) | (10,100 | ) | |||||||||||||||||||||||||||
December
31, 2009
|
Shares
released from repurchase agreements due to vesting during the period
(issue at $.0047 per share)
|
(15,603 | ) | 73 | 15,603 | (2 | ) | (71 | ) | |||||||||||||||||||||||||
December
31, 2009
|
Shares
released from repurchase agreements due to vesting during the period
(issue at $2.33 per share)
|
(1,619 | ) | 3,777 | 1,619 | 0 | (3,777 | ) | ||||||||||||||||||||||||||
129,205 | $ | 20,508 | 46,813 | $ | (16,530 | ) | 44,357 | $ | (5 | ) | $ | (3,972 | ) | 38,035 |
Warrants
In
connection with the SVB Loan, we issued warrants to purchase an aggregate 750
shares of Series A Preferred at an exercise price of $46.67 per share. The
aggregate fair value of the warrants, which were recorded as debt issue costs
amounted to $31,650 at their date of issuance (Note 4).
The
carrying amount of the SVB Warrants, which are recorded as derivative
liabilities due to anti-dilution price protection, were adjusted to fair value
at December 31, 2009, and September 30, 2010. We calculated the fair value of
the SVB Warrants using the Black-Scholes option-pricing model with the following
assumptions at their date of issuance and reporting dates of December 31, 2009
and September 30, 2010:
October 27, 2009
|
December 31, 2009
|
September 30, 2010
|
||||||||||
Fair
Value of stock
|
$ | 46.67 | $ | 46.67 | $ | 46.67 | ||||||
Exercise
Price
|
$ | 46.67 | $ | 46.67 | $ | 46.67 | ||||||
Term
(Years)
|
10 | 9.75 | 9 | |||||||||
Dividend
Rate (%)
|
0 | 0 | 0 | |||||||||
Volatility
(%)
|
100 | % | 100 | % | 100 | % | ||||||
Risk
Free Rate (%)
|
3.42 | % | 3.85 | % | 2.53 | % | ||||||
Number
of warrants
|
750 | 750 | 750 | |||||||||
Aggregate
fair value
|
$ | 31,650 | $ | 31,573 | $ | 30,832 |
20
The
changes in fair value between the date of issuance and December 31, 2009, and
from December 31, 2009 to September 30, 2010 amounted to $(76) and $(742),
respectively, and are included in the accompanying statements of operations as a
component of the change in derivative liabilities.
As
described in Note 4, we issued 6,564 warrants with an aggregate
relative fair value of $206,412 to the participants in our 2010 Note
transaction. The 2010 Warrants have fixed settlement provision and were recorded
as a reduction in the carrying amount of the 2010 Notes with a corresponding
increase to additional paid in capital.
Note
8. Income Taxes
The
income tax provision (benefit) consists of the following:
Years Ended
|
||||||||
December 31, 2008
|
December 31, 2009
|
|||||||
Federal:
|
||||||||
Current
|
- | - | ||||||
Deferred
|
$ | 111,457 | $ | 1,397,964 | ||||
State
and Local:
|
||||||||
Current
|
- | - | ||||||
Deferred
|
19,112 | 239,710 | ||||||
Change
in valuation allowance
|
(130,569 | ) | (1,637,674 | ) | ||||
Income
tax provision (benefit)
|
$ | - | $ | - |
For the
periods ended December 31, 2008, December 31, 2009 and September 30, 2010, the
expected tax expense (benefit) based on the statutory rate is reconciled with
actual tax expense (benefit) as follows:
Years Ended
|
||||||||
December 31, 2008
|
December 31, 2009
|
|||||||
U.S.
federal statutory rate
|
-34 | % | -34 | % | ||||
State
income tax, net of federal benefit
|
-5.8 | % | -5.8 | % | ||||
Increase
in valuation allowance
|
39.8 | % | 39.8 | % | ||||
Other
permanent items
|
- | - | ||||||
Income
Tax provision (benefit)
|
0 | % | 0 | % |
As of
December 31, 2008 and December 31, 2009, the Company’s deferred tax assets
consisted of the effects of temporary differences attributable to the
following:
21
Years Ended
|
||||||||
December 31, 2008
|
December 31, 2009
|
|||||||
Deferred
Tax Assets
|
||||||||
Net
operating Losses
|
$ | 38,168 | $ | 1,669,027 | ||||
Start-up
and organizational costs
|
92,401 | 99,216 | ||||||
Total
deferred tax assets
|
$ | 130,569 | $ | 1,768,243 | ||||
Valuation
allowance
|
(130,569 | ) | (1,768,243 | ) | ||||
Deferred
tax assets, net of valuation allowance
|
$ | - | $ | - |
For the
years ended December 31, 2009, the Company had approximately $4,400,000 of
federal and state net operating loss carryovers (“NOLs”) which begin to expire
in 2028. The NOLs may be subject to limitation under Internal Revenue Code
Section 382 should there be a greater than 50% ownership change as determined
under regulations. A change of ownership occurred in June, 2009, which resulted
in an annual limitation on the usage of the Company's losses that are available
through 2028.
In
assessing the realization of deferred tax assets, management considers whether
it is more likely than not that some portion or all of the deferred tax assets
will be realized. The ultimate realization of deferred tax assets is dependent
upon the generation of future taxable income during the periods in which those
temporary differences become deductible. Management considers the scheduled
reversal of deferred tax liabilities, projected future taxable income and tax
planning strategies in making this assessment. Based on the assessment,
management has established a full valuation allowance against all of the
deferred tax assets for every period because it is more likely than not that all
of the deferred tax assets will not be realized.
The
Company files U.S. federal and states of California and Washington tax returns
that are subject to audit by tax authorities beginning with the year ended
December 31, 2008.
Note 9. Stock Option
Plans
Our board
of directors authorized us to adopt our 2008 Equity Incentive Plan (the “2008
Plan”). The 2008 Plan authorizes the grant of stock options to officers and
employees of the Company to purchase up to21,492shares of common
stock. The stock options granted under the plan may be incentive
stock options (“ISO”) or nonstatutory stock options (“NSO”). The
Board of Directors may set the rate at which the options expire, subject to
limitations discussed below. However, no options shall be exercisable
after the tenth anniversary of the date of grant or three months following
termination of employment (or such longer period as is specified in the relevant
award agreement), except in cases of death or disability, for which the time or
exercisability is extended for six months. In the event of
dissolution or liquidation, all stock options that have not been previously
exercised will terminate immediately prior to the consummation of the
dissolution or liquidation. In the event of changes in control of the Company
generally involving an ownership shift greater than 50% of the total voting
power of the stock of the Company, the Board of Directors has discretion to
determine the disposition of outstanding options.
Options
may not be granted at an exercise price of less than the fair market value of
the common stock at the date of grant. If an ISO is granted to an
employee who owns more than 10% of the Company’s total voting stock, such
exercise price shall be at least 110% of fair market value of the common stock,
and the term of the ISO will be five years from the date of grant or such
shorter period as provided in the relevant award agreement.
The plan
also provides for stock appreciation rights, which may be granted with respect
to any stock option. No stock appreciation rights have been granted
through September 30, 2010. The plan also provides for grants of restricted
stock. No restricted stock has been granted under the Plan through
September 30, 2010.
A summary
of the status of our 2008 Plan and changes during the year ended December 31,
2009 and nine month period ended September 30, 2010 is presented
below:
22
Shares
|
Weighted Average
Exercise Price
|
Weighted Average
Remaining
Contractual Life
|
Instrinisic
value
|
|||||||||||||
Options
outstanding at December 31, 2008
|
||||||||||||||||
Granted
|
17,742 | $ | 2.33 | - | ||||||||||||
Cancelled/Forfeited
|
(4,393 | ) | $ | 2.33 | - | |||||||||||
Expired
|
- | |||||||||||||||
Balance
at December 31, 2009
|
13,349 | $ | 2.33 | 9.80 | - | |||||||||||
Granted
|
7,607 | $ | 4.67 | |||||||||||||
Cancelled/Forfeited
|
(2,914 | ) | $ | 2.33 | $ | 1,558 | ||||||||||
Expired
|
- | |||||||||||||||
Balance
at September 30, 2010
|
18,042 | $ | 3.27 | 9.29 | $ | 4,880 | ||||||||||
Options
vested and excercisable at September 30, 2010
|
- | - |
On
October 14, 2009, we granted options to purchase an aggregate of 16,456 shares
of common stock to employees of the Company at an exercise price of $2.33 per
share. The options vest as follows: 25% of the shares vest on the one year
anniversary of the grant date; the balance of the shares vest pro rata on a
monthly basis over a three year term each one-month period on the same day of
the month as the vesting commencement date, subject to the grantee continuing to
serve as an employee or service provider of the Company on such
date.
On
November 24, 2009, we granted options to purchase an aggregate of 1,286 shares
of common stock to employees of the Company at an exercise price of $2.33 per
share. The options vest as described above.
On May
12, 2010, we granted options to purchase an aggregate of 7,607 shares of common
stock to employees of the Company at an exercise price of $4.67 per share. The
options vest as described above.
The
weighted average grant date fair values of options granted during the year ended
December 31, 2009 and nine months ended September 30, 2010 was $26,598 and
$22,893, respectively.
October 14, 2009
|
November 24, 2009
|
May 12, 2010
|
||||||||||
Fair
Value of stock
|
$ | 2.33 | $ | 2.33 | $ | 4.67 | ||||||
Exercise
Price
|
$ | 2.33 | $ | 2.33 | $ | 4.67 | ||||||
Term
(Years)
|
7 | 7 | 7 | |||||||||
Dividend
Rate (%)
|
0 | 0 | 0 | |||||||||
Volatility
(%)
|
100 | % | 100 | % | 100 | % | ||||||
Risk
Free Rate (%)
|
3.45 | % | 3.32 | % | 3.56 | % |
23
The
expected term of the options is 7 years based on the average of the ten year
contractual term and the four year vesting period of the options. The risk-free
rate is based on the U.S. Treasury yield curve in effect at the time of grant.
The Company has not paid dividends to date and does not expect to pay dividends
in the foreseeable future due to its substantial accumulated deficit.
Accordingly, expected dividends yields are currently zero. Expected volatility
is based principally on an analysis of historical volatilities of similarly
situated companies in the marketplace.
The
Company currently has limited history upon which it is able to estimate
cancellations and rates of expected vesting and forfeitures of stock options.
However, Company management estimates, based on available data, which includes
expectations of employee behavior, knowledge of the industry and anticipated
employee terminations rates, that approximately 71% of outstanding options will
vest annually. No options have been exercised to date. The Company
will continue to monitor its employee terminations, exercises and other factors
that could affect its expectations relating to the vesting of options in future
periods. The Company’s policy is to adjust its assumptions relating to its
expectations of future vesting and the terms of options at such times that
additional data indicates that changes in these assumptions are
necessary.
Total
compensation expense recorded during the year ended December 31, 2009 and the
nine months ended September 30, 2010 for share-based payment awards was $787 and
$4,694, respectively and is recorded in general and administrative expenses in
the accompanying statements of operations for those reporting periods. At
September 30, 2010, total estimated compensation expense related to non-vested
stock options granted prior to that date was approximately $18,746, which is
expected to be recognized over a weighted-average period of 3.39
years.
Note 10. Subsequent
Events
On
October 1, 2010, we issued an additional $300,000 aggregate principal amount of
Bridge Notes for proceeds of $250,000 (Note 4).
On
October 14, 2010, we issued 3,275,000 shares of our common stock to the Holders
of the 2010 Notes with an aggregate principal amount of $2,042,345 in
consideration for the return and cancellation of their respective
notes. In addition, our option and warrant holders each exercised or
cancelled outstanding options and warrants.
On
October 14, 2010 we also issued: (i) 166,727 shares of our common stock to
service providers who advise us on advertising and strategic related issues for
total proceeds of $1,089; (ii) 8,380,147 shares of our common stock to Company
management for total proceeds of $54,757; (iii) 5,899,958 shares of our common
stock to Company management and employees for total proceeds of $38,551 upon the
early exercise of incentive stock options granted on October 14, 2010; and (iv)
135,199 shares of our common stock to holders of our Series A Preferred upon
conversion of their shares into common stock. The 8,380,147 shares issued in
(ii) are subject to repurchase provisions substantially similar to those
described in Note 7 under "Issuance of Common Stock" and the 5,899,958 shares
described in (iii) are subject to performance based vesting conditions including
the attainment of specified revenue and earnings targets.
On
October 15, 2010, 5to1 Holdings issued $2,100,000 of convertible notes due 6
months from the issue date, with a conversion price of $1.40 per share, for
gross proceeds of $2,100,000.
On
October 29, 2010, our Board of Directors approved a reverse stock split of
approximately 46.67 to 1.On November 3, 2010, we completed a reverse acquisition
with 5to1 Holding Corp. (formerly, FTOH Corp.) pursuant to an Agreement of
Merger and Plan of Reorganization by and among FTOH Corp, FTOH Acquisition Corp
and the Company.
On
November 3, 2010, the $900,000 principal amount of Bridge Notes was exchanged
for 2,000,000 shares of 5to1 Holding Corp common stock under the same terms as
the Private Placement described below.
On
November 3, 2010, the $2,100,000 of convertible notes previously issued by FTOH
Corp was converted into 1,500,000 shares of common stock of 5to1 Holding Corp.
at $1.40 per share, pursuant to the terms of the convertible
notes.
Upon the closing of the Merger and the Private Placement described below,
under an Agreement of Conveyance, Transfer and Assignment of Assets and
Assumption of Obligations (the “Conveyance Agreement”) dated as of November 3,
2010, 5to1 Holding Corp. agreed to transfer all of its pre-Merger assets and
liabilities to its wholly-owned subsidiary, FTOH Holdings, Inc. (“SplitCo”).
Thereafter pursuant to a stock purchase agreement dated as of November 3, 2010,
5to1 Holding Corp. agreed to transfer all of the outstanding capital stock of
SplitCo to certain of 5to1 Holding Corp. stockholders in exchange for the
cancellation of 66,753,273 shares of 5to1 Holding Corp. common stock.
Accordingly, the business conducted by FTOH prior to the Merger is not being
operated by the combined entity post Merger.
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At the
closing of the Merger, each share of our common stock issued and outstanding
immediately prior to the closing of the Merger was exchanged for the right to
receive 1 share of 5to1 Holding Corp. common stock. To the extent that there are
fractional shares, such fractional shares were rounded to the nearest whole
share and the board authorized 5to1 Holding Corp. to issue shares in order to
correct any rounding deficiencies resulting from the prior
Recapitalization. An aggregate of 17,986,234 shares of 5to1 Holding
Corp. common stock were issued to the holders of our common stock.
On
November 3, 2010, 5to1 Holding Corp. conducted a private placement of 7,075,000
shares of its common stock for an aggregate offering amount of
$6,575,000. 5to1 Holding Corp. accepted subscriptions for and issued
3,575,000 shares of common stock in a private placement (the “Private
Placement”) at $1.00 per share to 19 accredited
investors. Shares issued in the Private Placement have
anti-dilution protection for issuances below $1.00 per share for a period of 18
months and the right to seek “piggyback” registration of their shares in certain
circumstances for a period of 12 months from the date of closing of the Private
Placement.
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