MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
DECEMBER 31, 2012
Index to Financial Statements
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM | F-2 |
| |
CONSOLIDATED BALANCE SHEETS | F-3 |
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CONSOLIDATED STATEMENTS OF OPERATIONS | F-4 |
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CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ | |
EQUITY (DEFICIT) | F-5 |
| |
CONSOLIDATED STATEMENTS OF CASH FLOWS | F-6 |
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS | F-7 to F-27 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors
Marathon Patent Group, Inc.
(Formerly American Strategic Minerals Corporation)
(Development Stage Company)
We have audited the accompanying consolidated balance sheets of Marathon Patent Group, Inc. (formerly American Strategic Minerals Corporation) (Development Stage Company) as of December 31, 2012 and 2011 and the related consolidated statements of operations, changes in stockholders' equity (deficit), and cash flows for the year ended December 31, 2012, for the period from April 30, 2011 (Inception) to December 31, 2011 and for the period from April 30, 2011 (Inception) to December 31, 2012. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
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 includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes 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 consolidated financial statements referred to above present fairly, in all material respects, the financial position of Marathon Patent Group, Inc. (formerly American Strategic Minerals Corporation) (Development Stage Company) as of December 31, 2012 and 2011, and the results of its operations and its cash flows for the year ended December 31, 2012, for the period from April 30, 2011 (Inception) to December 31, 2011 and for the period from April 30, 2011 (Inception) to December 31, 2012 in conformity with accounting principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company had a net loss and net cash used in operations of $6,938,308 and $1,261,404, respectively, in 2012, had a deficit accumulated during the development stage of $7,037,134 at December 31, 2012. These matters raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans as to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s/ KBL, LLP
New York, NY
March 26, 2013
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES |
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION ) |
(DEVELOPMENT STAGE COMPANY) |
CONSOLIDATED BALANCE SHEETS |
| | December 31, 2012 | | | December 31, 2011 | |
| | | | | | |
ASSETS | | | | | | |
| | | | | | |
Current assets: | | | | | | |
Cash | | $ | 2,354,169 | | | $ | 129,152 | |
Marketable securities - available for sale securities | | | 12,500 | | | | - | |
Prepaid expenses | | | 40,333 | | | | - | |
Assets of discontinued operations - current portion | | | 82,145 | | | | 20,000 | |
Total current assets | | | 2,489,147 | | | | 149,152 | |
| | | | | | | | |
Other assets: | | | | | | | | |
Intangible assets, net | | | 492,152 | | | | - | |
Assets of discontinued operations - long term portion | | | 1,035,570 | | | | 3,500 | |
Total other assets | | | 1,527,722 | | | | 3,500 | |
| | | | | | | | |
Total Assets | | $ | 4,016,869 | | | $ | 152,652 | |
| | | | | | | | |
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) | | | | | | | | |
| | | | | | | | |
Current liabilities: | | | | | | | | |
Accounts payable and accrued expenses | | $ | 57,158 | | | $ | 4,000 | |
Notes payable - related party | | | - | | | | 152,974 | |
Advances payable | | | - | | | | 100,000 | |
Liabilities of discontinued operations | | | 30,664 | | | | - | |
Total liabilities | | | 87,822 | | | | 256,974 | |
| | | | | | | | |
Stockholders' Equity (deficit): | | | | | | | | |
Preferred stock, $.0001 par value, 50,000,000 shares | | | | | | | | |
authorized: none issued and outstanding | | | - | | | | - | |
Common stock, ($.0001 par value; 200,000,000 shares authorized; 45,546,345 and 10,000,000 issued and outstanding at December 31, 2012 and 2011 | | | 4,555 | | | | 1,000 | |
Additional paid-in capital | | | 10,972,122 | | | | 4,000 | |
Deficits accumulated during the development stage | | | (7,037,134 | ) | | | (109,322 | ) |
| | | | | | | | |
Total Marathon Patent Group, Inc. equity (deficit) | | | 3,939,543 | | | | (104,322 | ) |
| | | | | | | | |
Non-controlling interest in subsidiary | | | (10,496 | ) | | | - | |
| | | | | | | | |
Total stockholders' equity (deficit) | | | 3,929,047 | | | | (104,322 | ) |
| | | | | | | | |
Total liabilities and stockholders' equity (deficit) | | $ | 4,016,869 | | | $ | 152,652 | |
See accompanying notes to consolidated financial statements. |
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION ) |
(DEVELOPMENT STAGE COMPANY) |
CONSOLIDATED STATEMENTS OF OPERATIONS |
| | FOR THE YEAR | | | PERIOD FROM INCEPTION | | | PERIOD FROM INCEPTION | |
| | ENDED | | | (APRIL 30, 2011) TO | | | (APRIL 30, 2011) TO | |
| | DECEMBER 31, 2012 | | | DECEMBER 31, 2011 | | | DECEMBER 31, 2012 | |
| | | | | | | | | |
Revenues | | $ | - | | | $ | - | | | $ | - | |
| | | | | | | | | | | | |
Expenses | | | | | | | | | | | | |
Compensation and related taxes | | | 2,676,462 | | | | - | | | | 2,676,462 | |
Consulting fees | | | 2,042,144 | | | | - | | | | 2,042,144 | |
Professional fees | | | 510,112 | | | | 4,605 | | | | 514,717 | |
General and administrative | | | 312,244 | | | | 5,243 | | | | 317,487 | |
Total operating expenses | | | 5,540,962 | | | | 9,848 | | | | 5,550,810 | |
| | | | | | | | | | | | |
Operating loss from continuing operations | | | (5,540,962 | ) | | | (9,848 | ) | | | (5,550,810 | ) |
| | | | | | | | | | | | |
Other income (expenses) | | | | | | | | | | | | |
Other income | | | 125,000 | | | | - | | | | 125,000 | |
Realized loss other than temporary decline - available for sale | | | (112,500 | ) | | | - | | | | (112,500 | ) |
Interest expense | | | (153 | ) | | | - | | | | (153 | ) |
Interest income | | | 978 | | | | - | | | | 978 | |
Total other income | | | 13,325 | | | | - | | | | 13,325 | |
| | | | | | | | | | | | |
Loss from continuing operations before provision for income taxes | | | (5,527,637 | ) | | | (9,848 | ) | | | (5,537,485 | ) |
| | | | | | | | | | | | |
Provision for income taxes | | | - | | | | - | | | | - | |
| | | | | | | | | | | | |
Loss from continuing operations | | | (5,527,637 | ) | | | (9,848 | ) | | | (5,537,485 | ) |
| | | | | | | | | | | | |
Discontinued operations: | | | | | | | | | | | | |
Loss from discontinued operations, net of tax | | | (1,410,671 | ) | | | (99,474 | ) | | | (1,510,145 | ) |
| | | | | | | | | | | | |
Net loss | | | (6,938,308 | ) | | | (109,322 | ) | | | (7,047,630 | ) |
| | | | | | | | | | | | |
Less: Net loss attributable to non-controlling interest | | | 10,496 | | | | - | | | | 10,496 | |
| | | | | | | | | | | | |
Net loss attributable to Marathon Patent Group, Inc. | | $ | (6,927,812 | ) | | $ | (109,322 | ) | | $ | (7,037,134 | ) |
| | | | | | | | | | | | |
| | | | | | | | | | | | |
Loss per common share, basic and diluted: | | | | | | | | | | | | |
Loss from continuing operations | | $ | (0.15 | ) | | $ | (0.00 | ) | | $ | (0.22 | ) |
Loss from discontinued operations | | | (0.04 | ) | | | (0.01 | ) | | | (0.06 | ) |
| | $ | (0.19 | ) | | | (0.01 | ) | | $ | (0.28 | ) |
| | | | | | | | | | | | |
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING - Basic and Diluted | | | 36,238,712 | | | | 7,469,388 | | | | 24,948,719 | |
See accompanying notes to consolidated financial statements. |
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES |
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION ) |
(DEVELOPMENT STAGE COMPANY) |
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT) |
FOR THE PERIOD FROM INCEPTION (APRIL 30, 2011) TO DECEMBER 31, 2012 |
| | | | | | | | | | | Accumulated | | | | | | | |
| | | | | | | | | | | Deficit | | | | | | | |
| | Common Stock | | | Additional | | | During | | | | | | Total | |
| | No Par Value | | | Paid-in | | | Exploration | | | Non-Controlling | | | Stockholders' | |
| | Shares | | | Amount | | | Capital | | | Stage | | | Interest | | | Equity (Deficit) | |
| | | | | | | | | | | | | | | | | | |
Balance from inception (April 30, 2011) | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued to officers for cash | | | 10,000,000 | | | | 1,000 | | | | 4,000 | | | | - | | | | - | | | | 5,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Net loss for the period ended December 31, 2011 | | | - | | | | - | | | | - | | | | (109,322 | ) | | | - | | | | (109,322 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
Balance at December 31, 2011 | | | 10,000,000 | | | | 1,000 | | | | 4,000 | | | | (109,322 | ) | | | - | | | | (104,322 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
Recapitalization of the Company | | | 7,500,000 | | | | 750 | | | | 2,650 | | | | - | | | | - | | | | 3,400 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for cash | | | 13,449,965 | | | | 1,345 | | | | 6,510,620 | | | | - | | | | - | | | | 6,511,965 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for advance payable | | | 200,000 | | | | 20 | | | | 99,980 | | | | - | | | | - | | | | 100,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for legal services | | | 375,000 | | | | 38 | | | | 164,962 | | | | - | | | | - | | | | 165,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued pursuant to an option agreement | | | 10,000,000 | | | | 1,000 | | | | - | | | | - | | | | - | | | | 1,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for compensation | | | 83,218 | | | | 9 | | | | 33,278 | | | | - | | | | - | | | | 33,287 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for exercise of warrants on a cashless basis | | | 4,494,829 | | | | 449 | | | | (449 | ) | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Common stock issued for acquisition of patents | | | 9,250,000 | | | | 925 | | | | - | | | | - | | | | - | | | | 925 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Stock-based compensation in connection with warrants granted to employees and consultants | | | - | | | | - | | | $ | 4,238,100 | | | | - | | | | - | | | | 4,238,100 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Cancellation of common stock in connection with rescission agreement | | | (9,806,667 | ) | | | (981 | ) | | | (131,019 | ) | | | - | | | | - | | | | (132,000 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
Proceeds from disgorgement of former officer short swing profits | | | - | | | | - | | | | 50,000 | | | | - | | | | - | | | | 50,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | |
Net loss | | | - | | | | - | | | | - | | | | (6,927,812 | ) | | | (10,496 | ) | | | (6,938,308 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
Balance at December 31, 2012 | | | 45,546,345 | | | $ | 4,555 | | | $ | 10,972,122 | | | $ | (7,037,134 | ) | | $ | (10,496 | ) | | $ | 3,929,047 | |
See accompanying notes to consolidated financial statements. |
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES |
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION ) |
(DEVELOPMENT STAGE COMPANY) |
CONSOLIDATED STATEMENTS OF CASH FLOWS |
| | FOR THE YEAR | | | PERIOD FROM INCEPTION | | | PERIOD FROM INCEPTION | |
| | ENDED | | | (APRIL 30, 2011) TO | | | (APRIL 30, 2011) TO | |
| | DECEMBER 31, 2012 | | | DECEMBER 31, 2011 | | | DECEMBER 31, 2012 | |
| | | | | | | | | |
| | | | | | | | | |
Cash flows from operating activities: | | | | | | | | | |
Net loss attributable to Marathon Patent Group, Inc. | | $ | (6,927,812 | ) | | $ | (109,322 | ) | | $ | (7,037,134 | ) |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | |
Amortization expense | | | 8,773 | | | | - | | | | 8,773 | |
Stock based compensation on warrants granted | | | 2,723,162 | | | | - | | | | 2,723,162 | |
Stock based compensation on options granted | | | 1,514,938 | | | | - | | | | 1,514,938 | |
Common stock issued for services | | | 198,287 | | | | - | | | | 198,287 | |
Non-controlling interest | | | (10,496 | ) | | | - | | | | (10,496 | ) |
Non-cash other income | | | (125,000 | ) | | | - | | | | (125,000 | ) |
Realized loss other than temporary decline - available for sale | | | 112,500 | | | | - | | | | 112,500 | |
Impairment of mineral rights | | | 1,256,000 | | | | 99,474 | | | | 1,355,474 | |
Impairment of assets of discontinued operations | | | 30,248 | | | | - | | | | 30,248 | |
| | | | | | | | | | | | |
Changes in operating assets and liabilities | | | | | | | | | | | | |
Assets of discontinued operations - current portion | | | (62,145 | ) | | | - | | | | (62,145 | ) |
Prepaid expenses | | | (36,933 | ) | | | (20,000 | ) | | | (56,933 | ) |
Deposits | | | - | | | | (3,500 | ) | | | (3,500 | ) |
Assets of discontinued operations - long term portion | | | 3,915 | | | | - | | | | 3,915 | |
Accounts payable and accrued expenses | | | 53,159 | | | | 4,000 | | | | 57,159 | |
| | | | | | | | | | | | |
Net cash used in operating activities | | | (1,261,404 | ) | | | (29,348 | ) | | | (1,290,752 | ) |
| | | | | | | | | | | | |
Cash flows from investing activities: | | | | | | | | | | | | |
Acquisition of mineral rights | | | (325,000 | ) | | | - | | | | (325,000 | ) |
Acquisition of patents | | | (500,000 | ) | | | - | | | | (500,000 | ) |
Note receivable - related party | | | (147,708 | ) | | | - | | | | (147,708 | ) |
Collection on note receivable - related party | | | 147,708 | | | | - | | | | 147,708 | |
Sale of real estate property | | | 576,477 | | | | - | | | | 576,477 | |
Acquisition of real estate property | | | (1,366,627 | ) | | | - | | | | (1,366,627 | ) |
Capitalized cost related to improvements of real estate property | | | (245,420 | ) | | | - | | | | (245,420 | ) |
Net cash used in investing activities | | | (1,860,570 | ) | | | - | | | | (1,860,570 | ) |
| | | | | | | | | | | | |
Cash flows from financing activities: | | | | | | | | | | | | |
Payment on note payable | | | (930,000 | ) | | | - | | | | (930,000 | ) |
Payment on note payable - related party | | | (152,974 | ) | | | - | | | | (152,974 | ) |
Payment in connection with the cancellation of stock and rescission agreement | | | (132,000 | ) | | | - | | | | (132,000 | ) |
Proceeds from disgorgement of former officer short swing profits | | | 50,000 | | | | - | | | | 50,000 | |
Proceeds from advances payables | | | - | | | | 100,000 | | | | 100,000 | |
Proceeds from promissory note - related party | | | - | | | | 53,500 | | | | 53,500 | |
Proceeds from sale of common stock, net of issuance costs | | | 6,511,965 | | | | 5,000 | | | | 6,516,965 | |
Net cash provided by financing activities | | | 5,346,991 | | | | 158,500 | | | | 5,505,491 | |
| | | | | | | | | | | | |
Net increase in cash | | | 2,225,017 | | | | 129,152 | | | | 2,354,169 | |
| | | | | | | | | | | | |
Cash at beginning of year | | | 129,152 | | | | - | | | | - | |
| | | | | | | | | | | | |
Cash at end of year | | $ | 2,354,169 | | | $ | 129,152 | | | $ | 2,354,169 | |
| | | | | | | | | | | | |
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | | | | | | | | | | | | |
Cash paid for: | | | | | | | | | | | | |
Interest | | $ | - | | | $ | - | | | $ | - | |
Income taxes | | $ | - | | | $ | - | | | $ | - | |
| | | | | | | | | | | | |
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | | | | | | | | | | | | |
Issuance of a note payable to a related party in connection with the purchase of mining rights | | $ | - | | | $ | 99,474 | | | $ | 99,474 | |
Issuance of common stock for advances payable | | $ | 100,000 | | | $ | - | | | $ | 100,000 | |
Assumption of prepaid assets upon exercise of option agreement | | $ | 43,157 | | | $ | - | | | $ | 43,157 | |
Assumption of accounts payable upon exercise of option agreement | | $ | 30,664 | | | $ | - | | | $ | 30,664 | |
Issuance of a note payable in connection with an option agreement | | $ | 930,000 | | | $ | - | | | $ | 930,000 | |
Issuance of common stock in connection with an option agreement | | $ | 1,000 | | | $ | - | | | $ | 1,000 | |
Common stock issued for acquisition of patents | | $ | 925 | | | $ | - | | | $ | 925 | |
See accompanying notes to consolidated financial statements. |
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS
Organization
Marathon Patent Group, Inc. (“the Company”), formerly American Strategic Minerals Corporation, was incorporated under the laws of the State of Nevada on February 23, 2010.
On December 7, 2011, the Company filed a Certificate of Amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to change its name to “American Strategic Minerals Corporation” from “Verve Ventures, Inc.”, and increase the Company’s authorized capital to 200,000,000 shares of common stock, par value $0.0001 per share, and 50,000,000 shares of preferred stock, par value $0.0001 per share. During June 2012, the Company decided to discontinue its exploration and potential development of uranium and vanadium minerals business. Additionally, in November 2012, the Company decided to discontinue its real estate business.
On August 1, 2012, the shareholders holding a majority of the Company’s voting capital voted in favor of (i) changing the name of the Company to “Fidelity Property Group, Inc.” and (ii) the adoption the 2012 Equity Incentive Plan and reserving 10,000,000 shares of common stock for issuance thereunder (the “2012 Plan”). The Board of Directors of the Company approved the name change and the adoption of the 2012 Plan on August 1, 2012. The Company did not file an amendment to its Articles of Incorporation with the Secretary of State of Nevada and subsequently abandoned the decision to adopt the “Fidelity Property Group, Inc.” name.
On October 1, 2012, the shareholders holding a majority of the Company’s voting capital voted and authorized the Company to (i) change the name of the Company to Marathon Patent Group, Inc. (the “Name Change”) and (ii) effectuate a reverse stock split of the Company’s common stock by a ratio of 3-for-2 (the “Reverse Split”) within one year from the date of approval of the stockholders of the Company. The Board of Directors of the Company approved the Name Change and the Reverse Split on October 1, 2012. The Company’s Board of Directors determined the name “Marathon Patent Group, Inc.” better reflects the long-term strategy in exploring other opportunities and the identity of the Company going forward. On February 15, 2013, the Company filed the Certificate with the Secretary of State of the State of Nevada in order to effectuate the Name Change. Currently, the Reverse Split has been authorized by the Company’s shareholders but has not been effectuated.
On January 26, 2012, the Company entered into a Share Exchange Agreement (the “Exchange Agreement”) with American Strategic Minerals Corporation, a Colorado corporation (“Amicor”) and the shareholders of Amicor (the “Amicor Shareholders”). Upon closing of the transaction contemplated under the Exchange Agreement (the “Share Exchange”), on January 26, 2012, the Amicor Shareholders transferred all of the issued and outstanding capital stock of Amicor to the Company in exchange for an aggregate of 10,000,000 shares of the common stock of the Company. The Share Exchange caused Amicor to become a wholly-owned subsidiary of the Company. Additionally, as further consideration for entering into the Exchange Agreement, certain Amicor Shareholders received ten-year warrants to purchase an aggregate of 6,000,000 shares of the Company’s common stock with an exercise price of 0.50 per share. Prior to acquisition by the Company, Amicor owned certain mining and mineral rights.
Amicor, formerly Nuclear Energy Corporation, was incorporated under the laws of the State of Colorado on April 30, 2011. Amicor owns mining leases of federal unpatented mining claims and leases private lands in the states of Utah and Colorado for the purpose of exploration and potential development of uranium and vanadium minerals.
Prior to the Share Exchange, the Company was a shell company with no business operations.
The Share Exchange was accounted for as a reverse-merger and recapitalization. Amicor was the acquirer for financial reporting purposes and the Company was the acquired company. Consequently, the assets and liabilities and the operations reflected in the historical financial statements prior to the Share Exchange were those of Amicor and was recorded at the historical cost basis of Amicor, and the consolidated financial statements after completion of the Share Exchange included the assets and liabilities of the Company and Amicor, historical operations of Amicor and operations of the Company from the closing date of the Share Exchange.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS (continued)
On June 11, 2012, the Company terminated various leases related to its uranium mining claims (the “Claims”), consisting of: the Cutler King Property (3 unpatented mining claims); “Centennial-Sun Cup” (42 unpatented mining claims); “Bull Canyon” (2 unpatented mining claims); “Martin Mesa” (51 unpatented mining claims); “Avalanche/Ajax” (8 unpatented mining claims) and “Home Mesa” (9 unpatented mining claims). The Company had acquired the Claims through the acquisition of Amicor on January 26, 2012. The decision by the Company to terminate these leases followed changes in management and direction of the Company, a review of the uranium market, and the timing and costs expected to pursue the business.
On June 11, 2012, the Company entered into a rescission agreement (the “Rescission Agreement”) with Amicor, and the Amicor Shareholders. Each of the Amicor Shareholders had previously received shares of the Company’s common stock (and certain of the Amicor Shareholders also received warrants to purchase shares of the Company’s common stock) (collectively, the “Shareholder Securities”) pursuant to the Rescission Agreement. Each of the Amicor Shareholders, with the exception of one, agreed to return the Shareholder Securities to the Company for cancellation and to enter into joint mutual releases with the Company. Furthermore, pursuant to the terms of the Rescission Agreement, George Glasier resigned from his position as President, Chief Executive Officer and Chairman of the Company; Kathleen Glasier resigned from her position as Secretary of the Company, Michael Moore resigned from his position as Chief Operating Officer and Vice President of the Company and each of David Andrews and Kyle Kimmerle resigned from their position as a director of the Company. As a result of the foregoing, the Company cancelled 9,806,667 shares of the Company’s common stock and 4,800,000 warrants and terminated the mining leases entered into with the Amicor Shareholders. Additionally, the Company paid an aggregate of $132,000 to Amicor Shareholders upon the execution of the Rescission Agreement.
Under the terms of the Rescission Agreement, the Company’s employment agreement with Mr. Glasier was terminated and all options, warrants and rights to acquire any shares of the Company’s common stock, whether vested or unvested, were terminated as of the date of the Rescission Agreement. Additionally, under the terms of the Rescission Agreement, the Company’s lease for certain office space, dated as of January 26, 2012 with Silver Hawk Ltd., an entity owned and controlled by George Glasier and Kathleen Glasier, was terminated.
On June 11, 2012, the Company and Pershing Gold Corporation (“Pershing”) exercised its right under the Option Agreement executed in January 2012, through the assignment of Pershing’s wholly owned subsidiary, Continental Resources Acquisition Sub, Inc. (“Acquisition Sub”), (see Note 5). As a result of the assignment, Acquisition Sub became a wholly owned subsidiary of the Company and the Company acquired all of Pershing’s uranium assets.
On November 14, 2012, the Company entered into a Share Exchange Agreement (the "Sampo Exchange Agreement") with Sampo IP LLC, a Virginia limited liability company ("Sampo"), a company that holds certain intellectual property rights, and the members of Sampo (the "Sampo Members"). Upon closing of the transaction contemplated under the Sampo Exchange Agreement (the "Sampo Share Exchange"), on November 14, 2012, the Sampo Members (6 members) transferred all of the issued and outstanding membership interests of Sampo to the Company in exchange for an aggregate of 9,250,000 shares of the common stock of the Company. Additionally, the Company made a cash payment to Sampo of $500,000 pursuant to the terms of the Sampo Exchange Agreement.
Upon the closing of the Sampo Share Exchange, Mark Groussman resigned as the Company’s Chief Executive Officer and John Stetson resigned as the Company’s President and Chief Operating Officer and simultaneously with the effectiveness of the Sampo Share Exchange, Doug Croxall was appointed as the Company’s Chief Executive Officer and Chairman and John Stetson was appointed as the Company’s Chief Financial Officer and Secretary. LVL Patent Group LLC, of which Mr. Croxall is the Chief Executive Officer, and John Stetson, were former members of Sampo and received 4,000,000 and 500,000 shares of the Company’s common stock, respectively, in connection with the Sampo Share Exchange.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS (continued)
Through the Company’s wholly owned subsidiary, Sampo, the Company intends to engage in the acquisition, development and monetization of intellectual property through both the prosecution and licensing of its own patent portfolio, the acquisition of additional intellectual property or partnering with others to defend and enforce their patent rights. Consequently, the Company decided to discontinue its real estate business and intends to sell and dispose its remaining real estate holdings during fiscal 2013.
Going Concern
The consolidated financial statements have been prepared on a going concern basis which assumes the Company will be able to realize its assets and discharge its liabilities in the normal course of business for the foreseeable future. The Company has incurred losses since inception resulting in a deficit accumulated during the development stage of $7,037,134 as of December 31, 2012, negative cash flows from operating activities and net loss of $1,261,404 and $6,938,308, respectively, for the year ended December 31, 2012. The Company anticipates further losses in the development of its business raising substantial doubt about the Company’s ability to continue as a going concern. The ability to continue as a going concern is dependent upon the Company generating profitable operations in the future and/or to obtain the necessary financing to meet its obligations and repay its liabilities arising from normal business operations when they come due. The ability to successfully resolve these factors raise substantial doubt about the Company's ability to continue as a going concern. The consolidated financial statements of the Company do not include any adjustments that may result from the outcome of these aforementioned uncertainties.
Based on current operating plans, the current resources of the Company, after taking into account the net funds received subsequent to balance sheet date from the sales and disposal of the remaining real estate properties, are expected to be sufficient for at least the next twelve months. The Company may choose to raise additional funds in connection with any future acquisition of additional intellectual property assets, operating businesses or other assets that it may choose to pursue. There can be no assurance, however, that any such opportunities will materialize. Moreover, any potential financing would likely be dilutive to the Company’s stockholders.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation and Principle of Consolidation
The consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States of America ("US GAAP") and present the consolidated financial statements of the Company and its wholly-owned subsidiaries as of December 31, 2012. In the preparation of consolidated financial statements of the Company, intercompany transactions and balances were eliminated.
Development Stage Company
The Company is presented as a development stage company. Activities during the development stage include organizing the business, raising capital and acquiring additional intellectual property. The Company is a development stage company with no revenues and no profits. The Company has not commenced significant operations and, in accordance with Accounting Standards Codification (“ASC”) Topic 915 “Development Stage Entities”, is considered a development stage company.
Use of Estimates and Assumptions
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Significant estimates made by management include, but are not limited to, the assumptions used to calculate fair value of warrants granted, common stock issued for services, common stock issued in connection with an option agreement, common stock issued for acquisition of patents, and the valuation of mineral rights.
Intangible assets
Intangible assets include patents purchased and recorded based on the cost to acquire them. These assets are amortized over their remaining estimated useful lives. Useful lives of intangible assets are periodically evaluated for reasonableness and the assets are tested for impairment whenever events or changes in circumstances indicate that the carrying amount may no longer be recoverable.
Cash and Cash Equivalents
The Company considers all highly liquid debt instruments and other short-term investments with maturity of three months or less, when purchased, to be cash equivalents. The Company maintains cash and cash equivalent balances at one financial institution that is insured by the Federal Deposit Insurance Corporation. The Company’s account at this institution is insured by the Federal Deposit Insurance Corporation ("FDIC") up to $250,000. In addition to the basic insurance deposit coverage, the FDIC was providing temporary unlimited coverage for non-interest bearing transaction accounts through December 31, 2012. For the year ended December 31, 2012, the Company has reached bank balances exceeding the FDIC insurance limit of approximately $958,000. To reduce its risk associated with the failure of such financial institution, the Company evaluates at least annually the rating of the financial institution in which it holds deposits.
Marketable Securities
Marketable securities that the Company invests in publicly traded equity securities and are generally restricted for sale under Federal securities laws. The Company’s policy is to liquidate securities received when market conditions are favorable for sale. Since these securities are often restricted, the Company is unable to liquidate them until the restriction is removed. Pursuant to ASC Topic 320, “Investments –Debt and Equity Securities” the Company’s marketable securities have a readily determinable and active quoted price, such as from NASDAQ, NYSE Euronext, the Over the Counter Bulletin Board, and the OTC Markets Group.
Available for sale securities are carried at fair value, with changes in unrealized gains or losses are recognized as an element of comprehensive income based on changes in the fair value of the security. Once liquidated, realized gains or losses on the sale of marketable securities available for sale are reflected in the net income (loss) for the period in which the security was liquidated.
Comprehensive Income
Accounting Standards Update (“ASU”) No. 2011-05 amends Financial Accounting Standards Board (“FASB”) Codification Topic 220 on comprehensive income (1) to eliminate the current option to present the components of other comprehensive income in the statement of changes in equity, and (2) to require presentation of net income and other comprehensive income (and their respective components) either in a single continuous statement or in two separate but consecutive statements. These amendments do not alter any current recognition or measurement requirements in respect of items of other comprehensive income. The amendments in this Update are to be applied prospectively.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Fair Value of Financial Instruments
The Company adopted FASB ASC 820, “Fair Value Measurements and Disclosures” (“ASC 820”), for assets and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for fair value to be applied to existing generally accepted accounting principles that require the use of fair value measurements, establishes a framework for measuring fair value and expands disclosure about such fair value measurements. The adoption of ASC 820 did not have an impact on the Company’s financial position or operating results, but did expand certain disclosures.
ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. These inputs are prioritized below:
| Level 1: | Observable inputs such as quoted market prices in active markets for identical assets or liabilities | | |
| Level 2: | Observable market-based inputs or unobservable inputs that are corroborated by market data | | |
| Level 3: | Unobservable inputs for which there is little or no market data, which require the use of the reporting entity’s own assumptions. | | |
Investment measured at fair value on a recurring basis:
| | Fair Value Measurements Using: | |
| | Quoted Prices in Active Markets (Level 1) | | | Significant Other Observable Inputs (Level 2) | | | Significant Unobservable Inputs (Level 3) | |
| | | | | | | | | |
Marketable securities – available for sale, net of discount for effect of restriction | | $ | - | | | $ | - | | | $ | 12,500 | |
The Company classifies the investments in marketable securities available for sale as Level 3, adjusted for the effect of restriction. The securities are restricted and cannot be readily resold by the Company absent a registration of those securities under the Securities Act of 1933, as amended (the “Securities Act”) or the availabilities of an exemption from the registration requirements under the Securities Act. As these securities are often restricted, the Company is unable to liquidate them until the restriction is removed. Unrealized gains or losses on marketable securities available for sale are recognized as an element of comprehensive income based on changes in the fair value of the security. Once liquidated, realized gains or losses on the sale of marketable securities available for sale are reflected in our net income for the period in which the security was liquidated.
The carrying amounts reported in the balance sheet for cash, prepaid expenses, accounts payable, and accrued expenses, approximate their estimated fair market value based on the short-term maturity of this instrument.
In addition, FASB ASC 825-10-25 “Fair Value Option” was effective for January 1, 2008. ASC 825-10-25 expands opportunities to use fair value measurements in financial reporting and permits entities to choose to measure many financial instruments and certain other items at fair value.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Prepaid Expenses
Prepaid expenses of $40,333 and $0 at December 31, 2012 and 2011, respectively, consist primarily of costs paid for future services and expenses which will occur within a year. Prepaid expenses include prepayments in cash of public relation, consulting services and prepaid insurance which are being amortized over the terms of their respective agreements.
Income Taxes
The Company accounts for income taxes pursuant to the provision of ASC 740-10, “Accounting for Income Taxes” which requires, among other things, an asset and liability approach to calculating deferred income taxes. The asset and liability approach requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. A valuation allowance is provided to offset any net deferred tax assets for which management believes it is more likely than not that the net deferred asset will not be realized.
The Company follows the provision of the ASC 740-10 related to Accounting for Uncertain Income Tax Position. When tax returns are filed, it is highly certain that some positions taken would be situated upon examination by the taxing authorities, while others are subject to uncertainty about the merits of the position taken or the amount of the position that would be ultimately sustained. In accordance with the guidance of ASC 740-10, the benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, management believes it is most likely that not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions.
Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above should be reflected as a liability for uncertain tax benefits in the accompanying balance sheet along with any associated interest and penalties that would be payable to the taxing authorities upon examination. The Company believes its tax positions are all highly certain of being upheld upon examination. As such, the Company has not recorded a liability for uncertain tax benefits.
The Company has adopted ASC 740-10-25 Definition of Settlement, which provides guidance on how an entity should determine whether a tax position is effectively settled for the purpose of recognizing previously unrecognized tax benefits and provides that a tax position can be effectively settled upon the completion and examination by a taxing authority without being legally extinguished. For tax position considered effectively settled, an entity would recognize the full amount of tax benefit, even if the tax position is not considered more likely that not to be sustained based solely on the basis of its technical merits and the statute of limitations remains open. The federal and state income tax returns of the Company are subject to examination by the IRS and state taxing authorities, generally for three years after they were filed.
Basic and Diluted Net Loss per Share
Net loss per common share is calculated in accordance with ASC Topic 260: Earnings Per Share (“ASC 260”). Basic loss per share is computed by dividing net loss by the weighted average number of shares of common stock outstanding during the period. The computation of diluted net loss per share does not include dilutive common stock equivalents in the weighted average shares outstanding as they would be anti-dilutive. The Company has 2,000,000 options and 2,589,109 warrants outstanding at December 31, 2012 and was excluded from the computation of diluted shares outstanding as they would have had an anti-dilutive impact on the Company’s net loss.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
The following table sets forth the computation of basic and diluted loss per share:
| | For the Year ended December 31, 2012 | | | For the period from inception, April 30, 2011 to December 31, 2011 | |
Numerator: | | | | | | |
Loss from continuing operations | | $ | (5,527,637 | ) | | $ | (9,848 | ) |
Loss from discontinued operations | | $ | (1,410,671 | ) | | $ | (99,474 | ) |
| | | | | | | | |
Denominator: | | | | | | | | |
Denominator for basic and diluted loss per share | | | | | | | | |
(weighted-average shares) | | | 36,238,712 | | | | 7,469,388 | |
| | | | | | | | |
Loss per common share, basic and diluted: | | | | | | | | |
Loss from continuing operations | | $ | (0.15 | ) | | $ | ( 0.00 | ) |
Loss from discontinued operations | | $ | (0.04 | ) | | $ | (0.01 | ) |
Impairment of Long-lived Assets
The Company accounts for the impairment or disposal of long-lived assets according to the ASC 360 “Property, Plant and Equipment”. The Company continually monitors events and changes in circumstances that could indicate that the carrying amounts of long-lived assets, including mineral rights, may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to the estimated future net undiscounted cash flows expected to be generated by the asset. When necessary, impaired assets are written down to estimated fair value based on the best information available. Estimated fair value is generally based on either appraised value or measured by discounting estimated future cash flows. Considerable management judgment is necessary to estimate discounted future cash flows. Accordingly, actual results could vary significantly from such estimates. The Company recognizes an impairment loss when the sum of expected undiscounted future cash flows is less than the carrying amount of the asset.
Stock-based Compensation
Stock-based compensation is accounted for based on the requirements of the Share-Based Payment Topic of ASC 718 which requires recognition in the consolidated financial statements of the cost of employee and director services received in exchange for an award of equity instruments over the period the employee or director is required to perform the services in exchange for the award (presumptively, the vesting period). The ASC also requires measurement of the cost of employee and director services received in exchange for an award based on the grant-date fair value of the award.
Pursuant to ASC Topic 505-50, for share-based payments to consultants and other third-parties, compensation expense is determined at the “measurement date.” The expense is recognized over the vesting period of the award. Until the measurement date is reached, the total amount of compensation expense remains uncertain. The Company initially records compensation expense based on the fair value of the award at the reporting date.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Mineral Property Acquisition and Exploration Costs
Costs of lease, exploration, carrying and retaining unproven mineral lease properties were expensed as incurred. The Company expensed all mineral exploration costs as incurred. Such expenses are included in the loss from discontinued operations and prior periods have been restated in the Company’s financial statements and related footnotes to conform to this presentation.
The Company’s remaining claims which include (1) mining lease encompassing 1,520 acres of land owned by J. H. Ranch, Inc. located in San Juan County, Utah (2) certain unpatented lode mining claims acquired on March 9, 2012, located in San Juan County, Utah (3) the Pitchfork Claims, acquired in January 2012 and located in San Miguel County Colorado and (4) the claims acquired on June 11, 2012 from Pershing which include the Coso, Artillery Peak, Blythe and Carnotite properties.
Revenue Recognition
The Company has not generated revenue from the Company’s current patent business. The Company will recognize revenue when all the conditions for revenue recognition are met: (i) persuasive evidence of an arrangement exists, (ii) collection of the fee is probable, (iii) the sales price is fixed and determinable and (iv) delivery has occurred or services have been rendered.
Recent Accounting Pronouncements
In July 2012, the FASB issued ASU 2012-02, Intangibles – Goodwill and Other (Topic 350): Testing Indefinite-Lived Intangible Assets for Impairment, on testing for indefinite-lived intangible assets for impairment. The new guidance provides an entity to simplify the testing for a drop in value of intangible assets such as trademarks, patents, and distribution rights. The amended standard reduces the cost of accounting for indefinite-lived intangible assets, especially in cases where the likelihood of impairment is low. The changes permit businesses and other organizations to first use subjective criteria to determine if an intangible asset has lost value. The amendments to U.S. GAAP will be effective for fiscal years starting after September 15, 212. The Company’s adoption of this accounting guidance does not have a material impact on the consolidated financial statements and related disclosures.
There were other updates recently issued, most of which represented technical corrections to the accounting literature or application to specific industries and are not expected to have a material impact on the Company’s financial position, results of operations or cash flows.
NOTE 3 - DISCONTINUED OPERATIONS
During June 2012, the Company decided to discontinue its exploration and potential development of uranium and vanadium minerals business and prior periods have been restated in the Company’s consolidated financial statements and related footnotes to conform to this presentation. Additionally, in November 2012, the Company decided to discontinue its real estate business and intends to sell and dispose its remaining real estate holdings during fiscal 2013. The Company is now engage in the acquisition, development and monetization of intellectual property through both the prosecution and licensing of its own patent portfolio, the acquisition of additional intellectual property or partnering with others to defend and enforce their patent rights.
The remaining assets and liabilities of discontinued operations are presented in the balance sheet under the caption “Assets and Liabilities of discontinued operation" and relates to the discontinued operations of the uranium and vanadium minerals business and real estate business.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 3 - DISCONTINUED OPERATIONS (continued)
The carrying amounts of the major classes of these assets and liabilities are summarized as follows:
| | December 31, 2012 | | | December 31, 2011 | |
Assets: | | | | | | |
Prepaid expenses – current portion | | $ | - | | | $ | 20,000 | |
Deposits in real estate under contract | | | 82,145 | | | | - | |
Deposit | | | - | | | | 3,500 | |
Real estate held for sale | | | 1,035,570 | | | | - | |
Assets of discontinued operations | | $ | 1,117,715 | | | $ | 23,500 | |
| | | | | | | | |
Liabilities: | | | | | | | | |
Accounts payables and accrued expenses | | $ | 30,664 | | | $ | - | |
Liabilities of discontinued operations | | $ | 30,664 | | | $ | - | |
The following table indicates selected financial data of the Company’s discontinued operations of its uranium and vanadium minerals business and real estate business.
| | For the Year Ended December 31, 2012 | | | Period from inception (April 30, 2011) to December 31, 2011 | |
Revenues – real estate | | $ | 724,090 | | | $ | - | |
Cost of sales- real estate | | | (576,126) | | | | - | |
Gross profit | | | 147,964 | | | | - | |
Operating and other non-operating expenses | | | (1,558,635 | ) | | | (99,474 | ) |
| | | | | | | | |
Loss from discontinued operations | | $ | (1,410,671 | ) | | $ | (99,474 | ) |
Deposits
Deposits at December 31, 2012 and 2011 were $82,145 and $3,500, respectively, which consist of earnest money deposits in connection with real estate properties under contract and are included in assets of discontinued operations. The Company expects to collect these deposits during fiscal 2013.
Real estate held for sale
Real estate held for sale consists of a residential property located in Southern California. Real estate held for sale is initially recorded at the lower of cost or estimated fair market value less the estimated cost to sell. After acquisition, costs incurred relating to the development and improvements of property are capitalized to the extent they do not cause the recorded value to exceed the net realizable value, whereas costs relating to holding and disposition of the property are expensed as incurred. After acquisition, real estate held for sale is analyzed periodically for changes in fair values and any subsequent write down is charged to impairment losses on real estate properties. Whenever events or changes in circumstances suggest that the carrying amount may not be recoverable, management assesses the recoverability of its real estate by comparing the carrying amount with its fair value. The process involved in the determination of fair value requires estimates as to future events and market conditions. This estimation process may assume that the Company has the ability to dispose of its real estate properties in the ordinary course of business based on management’s present plans and intentions.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 3 - DISCONTINUED OPERATIONS (continued)
If management determines that the carrying value of a specific real estate investment is impaired, a write-down is recorded as a charge to current period operations. The evaluation process is based on estimates and assumptions and the ultimate outcome may be different.
The Company determined that the carrying value of the remaining real estate properties do not exceed the net realizable value and thus did not consider it necessary to record any impairment charges of real estate held for sale at December 31, 2012. The Company sold 3 real estate properties generating gross profit of $147,964 during the year ended December 31, 2012 and is included in loss from discontinued operations. As of December 31, 2012 and 2011, real estate held for sale which includes capitalized improvements amounted to $1,035,570 and $0 respectively and are included in assets of discontinued operations. The Company intends to sell and dispose its remaining real estate holdings during fiscal 2013.
The Company recorded an impairment charge in connection with its mineral rights of $1,256,000 and $99,474 for the year ended December 31, 2012 and for the period from inception, April 30, 2011 to December 31, 2011, respectively, and has been included in loss from discontinued operations.
NOTE 4 – INTANGIBLE ASSETS
Intangible assets were acquired from the acquisition by the Company’s wholly owned subsidiary, Sampo and consisted of the following:
| | December 31, 2012 | | | December 31, 2011 | |
| | | | | | | | |
Patent rights | | $ | 500,925 | | | $ | - | |
Accumulated amortization | | | (8,773) | | | | - | |
Intangible assets, net | | $ | 492,152 | | | $ | - | |
The life of the patent rights shall be based on the expiration dates of the patent rights as follows:
US Patent 6,161,149 expires March 13, 2018 or estimated useful life of 5.33 years;
US Patent 6,772,229 expires December 1, 2019 or estimated useful life of 7.05 years; and
US Patent 8,015,495 expires November 16, 2023 or estimated useful life of 11.01 years.
The patent rights are being amortized on a straight-line basis over its respective estimated useful lives. The Company assesses fair market value for any impairment to the carrying values. As of December 31, 2012 and 2011 management concluded that there was no impairment to the acquired assets.
The weighted average amortization period on total is approximately 7.80 years. Amortization expense for the years ended December 31, 2012 and 2011 was $8,773 and $0, respectively. Future amortization of intangible assets, net is as follows:
2013 | | | 70,186 | |
2014 | | | 70,186 | |
2015 | | | 70,186 | |
2016 | | | 70,186 | |
2017 and thereafter | | | 211,408 | |
Total | | $ | 492,152 | |
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 5 – NOTES PAYABLE – RELATED PARTY
In November 2011, the Company issued a promissory note for $53,500 to an affiliated company owned by the officers of Amicor. The note was payable in full without interest on or before January 15, 2012.
In December 2011, the Company issued a promissory note for $99,474 to an affiliated company owned by the officers of Amicor. The note was payable in full without interest on or before January 15, 2012 and was subject to a late charge of 5% per annum if not paid within 15 days after January 15, 2012.
Such note was issued in connection with the execution of a lease assignment agreement between the Company and the affiliated company for certain mineral rights located in San Juan County, Utah.
On January 30, 2012, the Company paid both promissory notes for a total of $152,974. The affiliated company agreed not to charge the Company a late penalty fee upon satisfaction of the notes.
On November 14, 2012, upon the closing of the Sampo Share Exchange (See Note 1), LVL Patent Group LLC, of which Mr. Croxall is the Chief Executive Officer, and John Stetson, were former members of Sampo, received 4,000,000 and 500,000 shares of the Company’s common stock, respectively, in connection with the Sampo Share Exchange.
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT)
On November 25, 2011, the Board of Directors of the Company authorized a 1.362612612 for one forward split in the form of a dividend, whereby an additional 0.362612612 shares of common stock, par value $0.0001 per share, were issued for each one share of common stock held by each shareholder of record on December 9, 2011. All share amounts have been adjusted to reflect the number of shares of common stock on a post-dividend/post-split basis.
On December 7, 2011, the Company filed a Certificate of Amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to increase the Company’s authorized capital to 200,000,000 shares of common stock from 75,000,000 shares, change the par value to $0.0001 per share from $.001 per share, and authorized new 50,000,000 shares of preferred stock, par value $0.0001 per share.
Common Stock
On January 26, 2012, the Company entered into the Exchange Agreement with Amicor and Amicor Shareholders (see Note 1). Upon closing of the Share Exchange, on January 26, 2012, the Amicor Shareholders transferred all of the issued and outstanding capital stock of Amicor to the Company in exchange for an aggregate of 10,000,000 shares of the Company’s common stock. Additionally, as further consideration for entering into the Exchange Agreement, certain Amicor Shareholders received ten-year warrants to purchase an aggregate of 6,000,000 shares of the Company’s common stock with an exercise price of 0.50 per share.
Immediately following the closing of the Share Exchange and a private placement of the Company’s securities (described below), under an Agreement of Conveyance, Transfer and Assignment of Assets and Assumption of Obligations (the “Conveyance Agreement”), the Company transferred all of the pre-Share Exchange assets and liabilities to a newly formed wholly-owned subsidiary of the Company, Verve Holdings, Inc. (“SplitCo”). Pursuant to a stock purchase agreement, the Company transferred all of the outstanding capital stock of SplitCo to certain former shareholders of the Company in exchange for the cancellation of an aggregate of 4,769,144 (post-split) shares of the Company’s common stock that they owned (the “Split-Off”), with 7,500,000 (post split) shares of the Company’s common stock held by persons who acquired such shares prior to the Share Exchange remaining outstanding. Accordingly, following the Split-Off, 7,500,000 shares will constitute as the Company’s “public float”.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT) (continued)
On January 26, 2012, the Company sold 10,029,965 shares of the Company’s common stock at a purchase price of $0.50 per share in a private placement to accredited investors, resulting in aggregate net proceeds to the Company of $4,993,965 (the “Private Placement”), which includes an aggregate of $100,000 advanced to Amicor for general working capital purposes prior to the closing of the Share Exchange which was converted into an aggregate of 200,000 shares of common stock in the Private Placement and an aggregate of $75,000 in debt owed in January 2012 for legal fees incurred by Amicor which was converted into an aggregate 150,000 shares of common stock in the Private Placement. On January 30, 2012, the Company sold an additional 600,000 shares of common stock in the Private Placement with gross proceeds to the Company of $300,000 for total net proceeds to the Company of $5,293,965. In connection with these private placements, the Company paid legal fees of $21,000.
On January 26, 2012, contemporaneously with the Share Exchange, the Company also entered into an Option Agreement with Pershing pursuant to which the Company obtained the option (the “Option”) to acquire certain uranium exploration rights and properties held by Pershing for a purchase price of $10.00. In consideration for issuance of the Option, the Company issued to Pershing (i) a $1,000,000 promissory note payable in installments upon satisfaction of certain conditions, expiring six months following issuance and (ii) 10 million shares of the Company’s common stock (collectively, the “Option Consideration”). On January 26, 2012, Pershing held 26.65% of interest in the Company. David Rector and Joshua Bleak were former members of the Company’s board of directors. David Rector was a former member of the board of Pershing and Joshua Bleak is the Chief Executive Officer and a director of Continental Resources Group, Inc. (a company which is one of the largest shareholders of Pershing).
Between February1, 2012 and March 30, 2012, the Company sold 1,300,000 shares of the Company’s common stock at a purchase price of $0.50 per share in a private placement to accredited investors, resulting in aggregate net proceeds to the Company of $650,000.
As of December 31, 2012, $930,000 of the principal amount of note has been paid. Under the terms of the note, the Company was required to pay the balance of the note upon completion of a private placement totaling $1 million or more on or before July 26, 2012. The $1.0 million private placement was not completed by that date thus the Company was not required to pay the final $70,000 due under the note and a total of $930,000 has been paid under the note. On June 11, 2012, the Company and Pershing exercised its right under the Option, through the assignment of Pershing’s wholly owned subsidiary, Acquisition Sub, (see Note 1). As a result of the assignment, Acquisition Sub became a wholly owned subsidiary of the Company and the Company acquired all of Pershing’s uranium assets. The Company recorded the 10 million shares at par value or $1,000. Pursuant to ASC 805-50-30-2 “Business Combinations”, the Company determined that if the consideration paid is not in the form of cash, the measurement may be based on either
(i) the cost which is measured based on the fair value of the consideration given or (ii) the fair value of the assets (or net assets) acquired, whichever is more clearly evident and thus more reliably measurable. The Company determined that the fair value of the net assets acquired was a better indicator thus more reliably measurable than the fair value of the common stock issued.
As a result, on June 11, 2012, the Company recorded the value of the Option Consideration amounting to $931,000 to mineral rights which was initially recorded as a deposit before the date of exercise as reflected in the first quarter of 2012.
Between March 2012 and August 2012, the Company issued an aggregate of 4,494,829 shares of common stock in connection with the exercise of the 6,200,000 stock warrants on a cashless basis. The Company valued these common shares at par value (see Note – Common Stock Warrants).
On June 11, 2012, the Company cancelled a total of 9,806,667 shares of common stock and 4,800,000 warrants in connection with the Rescission Agreement (see Note 1). Upon the execution of the Rescission Agreement, the Company paid to Amicor Shareholders an aggregate of $132,000 and was recorded to additional paid in capital.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT) (continued)
In connection with the Sampo Exchange Agreement (see Note 1), on November 14, 2012, the Sampo Members transferred all of the issued and outstanding membership interests of Sampo to the Company in exchange for an aggregate of 9,250,000 shares of the common stock of the Company. Additionally, the Company made a cash payment to Sampo of $500,000 pursuant to the terms of the Sampo Exchange Agreement. The 9,250,000 shares of common stock were valued at par value or $925. In accordance with Accounting Standards Codification ("ASC") 805-50-30 "Business Combinations," the Company determined that if the consideration paid is not in the form of cash, the measurement may be based on either (i) the cost which is measured based on the fair value of the consideration given or (ii) the fair value of the assets (or net assets) acquired, whichever is more clearly evident and thus more reliably measurable. The Company determined that the fair value of the net assets acquired was a better indicator thus more reliably measurable than the fair value of the common stock issued.
Therefore the Company has determined, in accordance with ASC 805-50-30, that the value of the net assets acquired is equivalent to $500,925 which represents the cash consideration paid of $500,000 and the par value of 9,250,000 shares of the Company’s common stock amounting to $925. No independent valuation was done on the net assets or patents acquired before acquisition. The Company deemed that the fair value of the net asset of Sampo amounting to $500,925 is more clearly evident and more reliable measurement basis.
On December 27, 2012, the Company sold an aggregate of 1,089,109 units with gross proceeds to the Company of $866,287 to certain accredited investors pursuant to a subscription agreement. Each unit was sold for a purchase price of $0.80 per unit and consists of: (i) two shares of the Company’s common stock (2,178,218 common stock) and (ii) a five-year warrant to purchase an additional share of common stock at an exercise price of $0.60 per share, subject to adjustment upon the occurrence of certain events such as stock splits and dividends. The sale of units consists of 1,870,000 shares of common stock issued for cash of $743,000, 83,218 shares of common stock for the conversion of unpaid salaries of $33,287 and 225,000 shares of common stock for certain outstanding amounts for legal fees of $90,000 into units at the per unit offering price totaling $866,287. The Company paid placement agent fees of $5,000 in cash to a broker-dealer in connection with the sale of the Units.
Pursuant to a Registration Rights Agreement with the investors, the Company has agreed to file a “resale” registration statement with the SEC covering all shares of the common stock and shares underlying the warrants within 90 days of the final closing date of the sale of units on December 27, 2012 (the “Filing Date”) and to maintain the effectiveness of the registration statement until all securities have been sold or are otherwise able to be sold pursuant to Rule 144. The Company has agreed to use its reasonable best efforts to have the registration statement declared effective within 90 days of the Filing Date (the “Effectiveness Date”). The Company is obligated to pay to investors a fee of 1% per month in cash for every thirty day period up to a maximum of 6%, (i) that the registration statement has not been filed and (ii) following the Effectiveness Date that the registration statement has not been declared effective; provided, however, that the Company shall not be obligated to pay any such liquidated damages if the Company is unable to fulfill its registration obligations as a result of rules, regulations, positions or releases issued or actions taken by the SEC pursuant to its authority with respect to “Rule 415”, provided the Company registers at such time the maximum number of shares of common stock permissible upon consultation with the staff of the SEC.
Common Stock Warrants
On January 26, 2012, the Company issued to certain Amicor Shareholders ten-year warrants to purchase an aggregate of 6,000,000 shares of the Company’s common stock with an exercise price of 0.50 per share in connection with the Exchange Agreement (see Note 1).
The Company entered into consulting agreements with Melechdavid Inc. and GRQ Consultants, Inc., pursuant to which such consultants will provide consulting services to the Company in consideration for which the Company sold to the consultants warrants to purchase an aggregate of 3,500,000 shares of the Company’s common stock with an exercise price of $0.50 per share (the “Consulting Warrants”). The services provided by the consultants include introductions to banking relationships, consulting on strategic acquisitions and advice on capital restructuring.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT) (continued)
The Consulting Warrants have a term of ten years and were exercisable on a cashless basis after twelve months if the shares of common stock underlying the Consulting Warrants are not registered with the Securities and Exchange Commission. In March 2012, the Company entered into a First Amendment to the Consulting Warrants (the "First Amendment") with such consultants to amend the cashless exercise terms of the warrants. The First Amendment provides for the exercise of the Consulting Warrants on a cashless basis immediately upon the execution of the First Amendment. In March 2012, the Company issued an aggregate of 2,722,222 shares of common stock in connection with the exercise of the 3,500,000 Consulting Warrants on a cashless basis. The Company’s former Chief Executive Officer is the President of Melechdavid Inc.
The Company issued warrants to purchase an aggregate of 2,700,000 shares of common stock at an exercise price of $0.50 per share to Joshua Bleak, David Rector, Stuart Smith and George Glasier, in consideration for their services as directors of the Company (the “Director Warrants”). The Director Warrants have a term of ten years and are exercisable on a cashless basis after twelve months if the shares of common stock underlying the Director Warrants are not registered with the Securities and Exchange Commission. The Director Warrants issued to Mr. Smith, Mr. Rector and Mr. Bleak vest in three equal annual installments with the first installment vesting one year from the date of issuance. The Director Warrant issued to Mr. Glasier is immediately exercisable.
In March 2012, the Company issued an aggregate of 1,166,667 shares of common stock to Mr. Glasier in connection with the exercise of the 1,500,000 stock warrants on a cashless basis. Such 1,166,667 shares were cancelled on June 11, 2012 in connection with the Rescission Agreement (see Note 1).
The Company also issued a ten-year warrant to purchase an aggregate of 300,000 shares of common stock with an exercise price of $0.50 per share to Daniel Bleak, an outside consultant to the Company, which vests in three equal annual installments with the first installment vesting one year from the date of issuance (the “Additional Consulting Warrant”). The Additional Consulting Warrant is exercisable on a cashless basis after twelve months in the absence of an effective registration statement covering the resale of the shares of common stock underlying the Additional Consulting Warrant. Daniel Bleak is the father of Joshua Bleak, a former member of the Company’s board of directors. The Company did not enter into a consulting agreement with Mr. Bleak.
The 6,500,000 warrants were valued on the grant date at approximately $0.50 per warrant or a total of $3,242,850 using the Black-Scholes option pricing model used for this valuation had the following assumptions: stock price of $0.50 per share (based on the per share price of the Company’s common stock in the most recent private placements), volatility of 191% (estimated using volatilities of similar companies), expected term of approximately ten years, and a risk free interest rate of 1.96%. For the year ended December 31, 2012, the Company recorded stock-based compensation and stock-based consulting expense of $931,280and $1,791,882, respectively. At December 31, 2012, there was a total of $519,688 of unrecognized compensation expense related to these non-vested warrant-based compensation arrangements discussed above.
Between July 2012 and August 2012, the Company issued an aggregate of 605,940 shares of common stock to two warrant holders in connection with the exercise of 1,200,000 stock warrants on a cashless basis.
On December 27, 2012, the Company sold an aggregate of 1,089,109 units with gross proceeds to the Company of $866,287 to certain accredited investors pursuant to a subscription agreement. Each unit was sold for a purchase price of $0.80 per unit and consists of: (i) two shares of the Company’s common stock (2,178,218 common stock) and (ii) a five-year warrant to purchase an additional share of common stock (1,089,109 warrants) at an exercise price of $0.60 per share, subject to adjustment upon the occurrence of certain events such as stock splits and dividends. The warrants may be exercised on a cashless basis. The warrants contains limitations on the holder’s ability to exercise the warrant in the event such exercise causes the holder to beneficially own in excess of 4.99% of the Company’s issued and outstanding common stock, subject to a discretionary increase in such limitation by the holder to 9.99% upon 61 days’ notice.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT) (continued)
A summary of the status of the Company's outstanding stock warrants and changes during the period then ended is as follows:
| | Number of Warrants | | | Weighted Average Exercise Price | | | Weighted Average Remaining Contractual Life (Years) | |
Balance at December 31, 2011 | | | - | | | $ | - | | | | - | |
Granted | | | 13,589,109 | | | | 0.51 | | | | 8.59 | |
Cancelled | | | (4,800,000 | ) | | | 0.50 | | | | 9.80 | |
Forfeited | | | - | | | | - | | | | - | |
Exercised | | | (6,200,000 | ) | | | 0.50 | | | | 9.70 | |
Balance at December 31, 2012 | | | 2,589,109 | | | $ | 0.54 | | | | 6.52 | |
| | | | | | | | | | | | |
Warrants exercisable at December 31, 2012 | | | 1,089,109 | | | $ | - | | | | - | |
Weighted average fair value of warrants granted during the year ended December 31, 2012 | | | | | | $ | 0.51 | | | | | |
Common Stock Option
In August 2012, the Company entered into executive employment agreements (the “Employment Agreement”) with Mark Groussman, Chief Executive Officer of the Company and John Stetson, President and Chief Operating Officer of the Company (the “Executives”). In connection with the Employment Agreement, the Company granted to Executives an aggregate of 3,000,000 10-year options to purchase shares of common stock at $0.50 per share which vest in full upon issuance. The Company also granted Mr. Groussman 1,000,000 restricted shares which shall vest as follows: 1/3 after the Company achieves at least $800,000 in gross profits; 1/3 after the Company achieves at least $1,200,000 in gross profits and 1/3 after the Company achieves at least $1,600,000 in gross profits. The Company granted Mr. Stetson 2,000,000 restricted shares which shall vest as follows: 1/3 after the Company achieves at least $800,000 in gross profits; 1/3 after the Company achieves at least $1,200,000 in gross profits and 1/3 after the Company achieves at least $1,600,000 in gross profits. The Company shall account for the restricted shares once vested pursuant to the terms of the Employment Agreement.
The 3,000,000 options were valued on the grant date at approximately $0.48 per option or a total of $1,454,400 using a Black-Scholes option pricing model with the following assumptions: stock price of $0.50 per share (based on the recent selling price of the Company’s common stock at private placements), volatility of 192%, expected term of 5 years, and a risk free interest rate of 0.61%. For the year ended December 31, 2012, the Company recorded stock-based compensation of $1,454,400 in connection with the fully vested options granted above.
On November 14, 2012, in connection with the Sampo Share Exchange and the changes to the Company’s Board of Directors and Executive Officers (see Note 1), Mark Groussman agreed to forfeit to the Company for cancellation, an unvested restricted stock grant equal to 1,000,000 shares of common stock and a fully vested option grant to purchase an aggregate of 1,500,000 shares of common stock. Additionally, John Stetson agreed to forfeit to the Company for cancellation, an unvested restricted stock grant equal to 2,000,000 shares of common stock and a fully vested option grant to purchase an aggregate of 1.500.000 shares of common stock, which were issued in connection with their previously executed employment agreements. In January 2013, Mr. Stetson entered into a new employment agreement with the Company in connection with his appointment as the Company’s Chief Financial Officer.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 6 - STOCKHOLDERS' EQUITY (DEFICIT) (continued)
On November 14, 2012, the Company entered into an employment agreement with Doug Croxall (the “Croxall Employment Agreement”), whereby Mr. Croxall agreed to serve as our Chief Executive Officer for a period of two years, subject to renewal, in consideration for an annual salary of $350,000 and an Indemnification Agreement. Additionally, under the terms of the Croxall Employment Agreement, Mr. Croxall shall be eligible for an annual bonus if the Company meets certain criteria, as established by the Board of Directors. As further consideration for his services, Mr. Croxall received a ten year option award to purchase an aggregate of 2,000,000 shares of the Company’s common stock with an exercise price of $0.50 per share, subject to adjustment, which shall vest in 24 equal monthly installments on each monthly anniversary of the date of the Croxall Employment Agreement. The 2,000,000 options were valued on the grant date at approximately $0.48 per option or a total of $968,600 using a Black-Scholes option pricing model with the following assumptions: stock price of $0.50 per share (based on the recent selling price of the Company’s common stock at private placements), volatility of 192%, expected term of 5 years, and a risk free interest rate of 0.61%. For the year ended December 31, 2012, the Company recorded stock-based compensation of $60,538. At December 31, 2012, there was a total of $908,062 of unrecognized compensation expense related to these non-vested warrant-based compensation arrangements discussed above.
A summary of the stock options as of December 31, 2012 and changes during the period are presented below:
| | Number of Options | | | Weighted Average Exercise Price | | | Weighted Average Remaining Contractual Life (Years) | |
Balance at December 31, 2011 | | | - | | | | - | | | | - | |
Granted | | | 5,000,000 | | | | 0.50 | | | | 10.0 | |
Exercised | | | - | | | | - | | | | - | |
Forfeited | | | - | | | | - | | | | - | |
Cancelled | | | (3,000,000) | | | | 0.50 | | | | 10.0 | |
Balance outstanding at December 31, 2012 | | | 2,000,000 | | | $ | 0.50 | | | | 9.87 | |
| | | | | | | | | | | | |
Options exercisable at end of year | | | 83,333 | | | $ | 0.50 | | | | | |
Options expected to vest | | | 1,916,667 | | | | | | | | | |
Weighted average fair value of options granted during the period | | | | | | $ | 0.48 | | | | | |
Stock options outstanding at December 31, 2012 as disclosed in the above table have approximately $1,000,000 intrinsic value at the end of the year.
NOTE 7 – RELATED PARTY TRANSACTIONS
Parties are considered to be related to the Company if the parties, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. The Company discloses all related party transactions.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 7 – RELATED PARTY TRANSACTIONS (continued)
In November 2011, the Company issued a promissory note for $53,500 to an affiliated company owned by the officers of Amicor. The note was payable in full without interest on or before January 15, 2012. In December 2011, the Company issued a promissory note for $99,474 to an affiliated company owned by the officers of Amicor. The note was payable in full without interest on or before January 15, 2012. Such note was issued in connection with the execution of a lease assignment agreement between the Company and the affiliated company for certain mineral rights located in San Juan County, Utah. On January 30, 2012, the Company paid both promissory notes above for a total of $152,974. The affiliated company agreed not to charge the Company a late penalty fee upon satisfaction of the notes.
On January 26, 2012, the Company entered into a 1 year consulting agreement with GRQ Consultants, Inc., pursuant to which such consultant will provide certain services to the Company in consideration for which the Company sold to the consultant warrants to purchase an aggregate of 1,750,000 shares of the Company’s common stock with an exercise price of $0.50. Barry Honig is the owner of GRQ Consultants, Inc. GRQ Consultants, Inc. 401(k), which is also owned by Mr. Honig, purchased an aggregate of $500,000 of shares of common stock in the Company’s Private Placement. In addition, the Company entered into an Option Agreement with Pershing and Mr. Honig is a member of Pershing’s board of directors (see Note 6). Additionally, the Company entered into consulting agreement with Melechdavid Inc. in consideration for which the Company sold to Melechdavid Inc. warrants to purchase an aggregate of 1,750,000 shares of the Company’s common stock with an exercise price of $0.50 per share. The Company’s former Chief Executive Officer is the President of Melechdavid Inc. (see Note 6).
On January 26, 2012 the Company also issued a ten-year warrant to purchase an aggregate of 300,000 shares of common stock with an exercise price of $0.50 per share to Daniel Bleak, an outside consultant to the Company, which vests in three equal annual installments with the first installment vesting one year from the date of issuance. Daniel Bleak is the father of Joshua Bleak, a former member of the Company’s board of directors. Additionally, in August 2012, the Company paid Daniel Bleak $50,000 for research and business advisory services rendered pursuant to a Professional Service Agreement executed on August 1, 2012.
On March 19, 2012, the Company entered into an agreement with California Gold Corp. (“California Gold”), pursuant to which the Company agreed to provide California Gold with a geological review on or prior to March 30, 2012, of the Company’s certain uranium properties in consideration for $125,000 (see Note 9). David Rector, the Company’s former director, is a member of California Gold’s board of directors.
The Company’s principal place of business was located in a building owned by Silver Hawk Ltd., a Colorado corporation. George Glasier, the Company’s former Chief Executive Officer, is the President and Chief Executive Officer of Silver Hawk Ltd. The Company leased its office space on a month to month basis at a monthly rate of $850 pursuant to a lease effective January 1, 2012. Under the terms of the Rescission Agreement, the Company’s lease for such office space was terminated.
Between June 2012 and July 2012, the Company loaned $147,708 to an affiliated company in exchange for a secured promissory note. The note bore 6% interest per annum and shall become due and payable on or before June 29, 2013. This note was secured by a real estate property owned by the affiliated company. In November 2012, the Company collected a total of $218,218 from the affiliated company and such payment was applied towards the principal amount of $147,708 and interest of $70,510. The Company recognized interest income of $70,510 during the year ended December 31, 2012 and is included in the loss from discontinued operations as this transaction relates to the Company’s real estate business. Barry Honig, the President of the affiliated company, is a shareholder of the Company. Additionally, in August 2012, the Company issued 302,970 shares of common stock in connection with the exercise of 600,000 stock warrants on a cashless basis. The warrant holder was Barry Honig who purchased 600,000 warrants from a third party in June 2012.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 7 – RELATED PARTY TRANSACTIONS (continued)
In August 2012, the Company issued 302,970 shares of common stock in connection with the exercise of 600,000 stock warrants on a cashless basis. The warrant holder was Melechdavid Inc. who purchased 600,000 warrants from a third party in June 2012. The Company’s former Chief Executive Officer is the President of Melechdavid Inc. Additionally, in November 2012, the Company received a notice from the former Chief Executive Officer that the former Chief Executive Officer had violated Section 16(b) of the Exchange Act as a result of certain purchases and sales of shares of the Company’s common stock made by the former Chief Executive Officer within a period of less than six months that generated short-swing profits under Section 16(b). In December 2012, the former Chief Executive Officer made a $50,000 payment to the Company in disgorgement of the short-swing profits.
NOTE 8 – COMMITMENTS AND CONTINGENCIES
Mining Lease Agreements
In November 2011, the Company, through its wholly owned subsidiary, Amicor, entered into several mining lease agreements with certain officers of Amicor and affiliated companies owned by the officers of Amicor (collectively the “Lessors”). Such mining lease agreements granted and leased to the Company mineral properties located in the County of San Juan, Utah, County of Montrose, Colorado and County of San Miguel, Colorado. The term of the mining lease agreements was for the period of 20 years. The Company was required to pay the annual Federal Bureau of Land Management maintenance fees and other fees required to hold the mineral properties. If the Company fails to keep or perform according to the terms of this agreement shall constitute an event of default and as such the Company shall have 10 days after receipt of default notice to make good or cure the default. Upon failure to cure the default, such mining lease agreements shall be terminated by the Lessors. The Company shall be under no further obligation or liability to the Lessors from and after the termination except for the performance of obligations and satisfaction of accrued liabilities to Lessors or third parties prior to such termination. On June 11, 2012, the Company terminated the leases in connection with the Rescission Agreement (see Note 1).
In December 2011, the Company, entered into a Lease Assignment and Acceptance Agreement with an affiliated company owned by the former officers of Amicor whereby the affiliated company agreed to assign its mineral rights and interests to the Company under a Surface and Mineral Lease Agreement dated in October 2011 with J.H. Ranch, Inc. located in San Juan County, Utah. The Company agreed to perform all of the affiliated company’s obligation under the Surface and Mineral Lease Agreement, including the payment of all lease payments, annual rents, advanced royalties, production royalties and other compensation as defined in the 20 year term Agreement.
The following schedule consists of the lease payment to Lessor based from the Agreement:
Due Date of Lease Payments from October 2011 | | Amount of Lease Payment | |
| | | |
On or before the 30th day after the 1st Anniversary - paid | | $ | 42,500 | |
On or before the 30th day after the 2nd Anniversary | | $ | 70,000 | |
On or before the 30th day after the 3rd Anniversary | | $ | 87,500 | |
On or before the 30th day after the 4th Anniversary as the 5th and final payment | | $ | 87,500 | |
The Company is required under the terms of the Agreement to make annual rent payments commencing on or before the 30th day after the 5th anniversary and each year thereafter and shall pay $10 for each acre of land contained within the lease premises.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 8 – COMMITMENTS AND CONTINGENCIES (continued)
The following schedule consists of the advance royalty payments to Lessor based from the Agreement:
Due Date of Advance Royalty Payments from October 2011 | | Amount of Advance Royalty Payment | |
| | | |
On or before the 30th day after the 1st Anniversary - paid | | $ | 42,500 | |
On or before the 30th day after the 2nd Anniversary | | $ | 70,000 | |
On or before the 30th day after the 3rd Anniversary | | $ | 87,500 | |
On or before the 30th day after the 4th Anniversary as the 5th and final payment | | $ | 87,500 | |
The Company shall pay a production royalty of 6.25% of the fair market value of all crude ores containing uranium, canadium and associated and related minerals mined and sold from the leased deposits. When production royalty payments from the sales of ores from the leased premises equal the cumulative amount due to Lessor as advanced royalty payment, the Company shall pay Lessor 12.5% of the fair market value as defined in the Agreement. In November 2012, the Company paid the lease payment and advance royalty payment due on the 1st anniversary of the agreement for a total of $85,000.
On January 30, 2012, the Company entered into a Mining Claim and Lease Sale/Purchase Agreement with Robert A. Larson whereby Mr. Larson sold and quitclaimed certain claims to the Company under a quitclaim deed and assigned the lease to the Company pursuant to a lease assignment in consideration for an aggregate purchase price One Hundred and Fifty Thousand Dollars ($150,000). Pursuant to the terms of the agreement and the Quitclaim Deed, the Company shall pay to Mr. Larson a Production Royalty, on a quarterly basis, equal to 5% of the fair market value (calculated pursuant to the terms of the Quitclaim Deed) of all crude ores containing uranium, vanadium and associated and related minerals mined and shipped or sold from the Claims or fed to “Initial Process” defined in the Quitclaim Deed as “any processing or milling procedure to up-grade, concentrate or refine crude ores, including custom milling or other processing arrangement whereby title to the crude ore and all products derived therefrom is retained by the Company. Such property is located in San Miguel County, Colorado consisting of 320 acres more or less. The term of the assigned lease shall be for a period of 10 years and the Company shall have the right to renew and extend for an additional 10 year period. Under the lease, the Company shall pay annual rent payments of $10 for each acre of land contained within the property. Once development, mining and/or production has commenced and defined areas for mining has been designated, the annual rent payment for that portion shall be $25 for each acre designated with the remaining acreage shall continue to be paid at $10 for each acre. The Company shall also pay surface damage as defined in the Lease.
Agreements Purchased from Pershing Gold Corporation
On June 11, 2012, the Company and Pershing executed the exercise of the Option, through the assignment of Pershing’s wholly owned subsidiary, Acquisition Sub (see Note 5). As a result of the assignment, Acquisition Sub became a wholly owned subsidiary of the Company and the Company acquired all of Pershing’s uranium assets including certain lease agreements in uranium mining claims in Arizona, California and North Dakota.
Uranium Lease Agreements
The Company acquired the following Uranium lease agreements:
| 1) | Slope County, North Dakota, Lease 1 and 2 |
On June 28, 2007, through Acquisition Sub’s majority owned subsidiary, Secure Energy, LLC, signed a 20 year mining lease to develop and operate 472.8 acres of uranium mining properties in the Slope County, North Dakota. The Company prepaid the annual payment of $10 per net acre for eight years amounting to $36,717 at the date of signing. The Company will pay a production royalty of $0.75 per pound of all uranium sales.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 8 – COMMITMENTS AND CONTINGENCIES (continued)
| 2) | Slope County, North Dakota, Lease 3 |
On November 23, 2007, through Acquisition Sub’s majority owned subsidiary, Secure Energy, LLC, the Company signed a 10 year mining lease, with the right to extend an additional 10 years, to develop and operate 554.24 acres of uranium mining properties in the Slope County, North Dakota. The Company prepaid the annual payment of $10 per net acre for ten years amounting to $53,775 at the date of signing. The Company will pay a production royalty of $0.75 per pound of all uranium sales or 5% of net proceeds from the sale of uranium bearing ores.
Royalty agreements
On June 11, 2012, through the assignment of Acquisition Sub, the Company purchased a 100% interest in 86 unpatented lode mining claims located in Mohave County, Arizona. The Company will pay a 3% net smelter returns royalty on all uranium sales. The Company shall have the right to reduce the royalty from 3% to 0% by paying the aggregate sum of $1,500,000 ($500,000 for each 1%).
On June 11, 2012, through the assignment of Acquisition Sub, the Company assumed the purchase and sale agreement with Absaroka Stone LLC to purchase certain unpatented mining claims commonly known as the “Uinta County (Carnotite) Uranium Prospect” located in the Uinta County of Wyoming. Pursuant to the terms of the agreement, Absaroka Stone LLC agreed not to stake for its own account any additional mining claims within a 15 mile radius of the property. Any additional mining claims to be located within a 15 mile radius of the property (the “Claim Body”) were to be located, staked and filed by the Company, at its expense and held in its name. Such agreement requires a minimum of $200,000 relating to location, maintenance, exploration, development or equipping any one or more of the mining claims that comprise the Claim Body for commercial production within 24 months from the date of the agreement in May 2011. If the Company fails to incur a minimum of $200,000 in expenses related to the foregoing within 24 months, the Company shall pay an aggregate sum of $50,000 to Absaroka Stone LLC. Pursuant to the terms of the agreement,
the Company would pay a 1% gross royalty to Absaroka Stone LLC on any revenues derived from the sale of all uranium-vanadium, gold, silver, copper and rare earth ores or concentrates produced from the Claim Body, up to an aggregate of $1,000,000. The Company has the option to eliminate the royalty obligations by paying Absaroka Stone LLC an aggregate payment of $1,000,000.
NOTE 9 – MARKETABLE SECURITIES
Marketable securities at December 31, 2012 consisted of the following:
| | Cost | | | Gross Unrealized Gains/(losses) | | | Gross Realized Gains/(losses) | | | Fair Value | |
| | | | | | | | | | | | |
Publicly traded equity securities – available for sale | | $ | 125,000 | | | | — | | | | (112,500 | ) | | $ | 12,500 | |
Available for sale securities are carried at fair value. Unrealized gains or losses on marketable securities - available for sale are recognized on a periodic basis as an element of comprehensive income based on changes in the fair value of the security. Once liquidated, realized gains or losses on the sale of marketable securities available for sale will be reflected in the Company’s net loss for the period in which the security are liquidated. At the end of each period, the Company evaluates the carrying value of the marketable securities for a decrease in value. The Company evaluates the company underlying these marketable securities to determine whether a decline in fair value below the amortized cost basis is other than temporary. If the decline in fair value is judged to be “other- than- temporary”, the cost basis of the individual security shall be written down to fair value as a new cost basis and the amount of the write-down is charged to earnings.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 9 – MARKETABLE SECURITIES (continued)
On March 19, 2012, the Company entered into an agreement with California Gold, pursuant to which the Company agreed to provide California Gold with a geological review (the “Report”) on or prior to March 30, 2012, of the Company’s certain uranium properties pursuant to which California Gold may determine and identify the approximate locations and scope of geologic formations that could contain potential gold deposits on these properties.
In consideration for delivery of the Report, California Gold agreed to pay the Company $125,000, which payment may, at the election of California Gold, be paid in cash or in unregistered shares of California Gold common stock, par value $0.001 per share (the “California Gold Common Stock”), issued by California Gold. In the event that California Gold elects to deliver the California Gold Common Stock, it shall deliver such number of shares of California Gold Common Stock that shall be equal to the number which results from dividing $125,000 by the lesser of: (i) the closing price of a share of the California Gold Common Stock as quoted on the Over the Counter Bulletin Board on March 19, 2012 or (ii)
the purchase price per share of California Gold Common Stock paid by investors in California Gold sold in California Gold’s next financing, if any, on or before March 30, 2012. In March 2012, the Company received 1,250,000 restricted shares of California Gold.
At the time of issuance, the Company valued the shares of California Gold and recorded the cost of investment at the fair market value (based on the closing price pursuant to the agreement) of the shares at $0.10 per share or $125,000 and was recorded as other income during the year ended December 31, 2012 as reflected in the accompanying consolidated statement of operations.
The Company evaluated these marketable securities and determined that the fair value is deemed to be other- than- temporary, the cost basis of the individual security shall be written down to fair value as a new cost basis and the amount of the write-down is charged to earnings. During the year ended December 31, 2012, as a result of the evaluation, the Company has recorded a realized loss on other than temporary decline of $112,500.
NOTE 10 - INCOME TAXES
The Company accounts for income taxes under ASC Topic 740: Income Taxes which requires the recognition of deferred tax assets and liabilities for both the expected impact of differences between the financial statements and the tax basis of assets and liabilities, and for the expected future tax benefit to be derived from tax losses and tax credit carryforwards. ASC Topic 740 additionally requires the establishment of a valuation allowance to reflect the likelihood of realization of deferred tax assets. The Company has a net operating loss carryforward for tax purposes totaling approximately $1,227,000 at December 31, 2012, expiring through the year 2032. Internal Revenue Code Section 382 places a limitation on the amount of taxable income that can be offset by carryforwards after certain ownership shifts.
The table below summarizes the differences between the Company’s effective tax rate and the statutory federal rate as follows for the year ended December 31, 2012 and 2011:
| | December 31, 2012 | | | December 31, 2011 | |
Tax benefit computed at "expected" statutory rate | | $ | (2,359,025 | ) | | $ | (37,169 | ) |
State income taxes, net of benefit | | | (60,884 | ) | | | (492 | ) |
Permanent differences : | | | | | | | | |
Impairment expense | | | 437,324 | | | | 33,820 | |
Stock based compensation and consulting | | | 1,508,371 | | | | - | |
Other permanent differences | | | (681) | | | | - | |
| | | | | | | | |
Increase in valuation allowance | | | 474,895 | | | | 3,841 | |
Net income tax benefit | | $ | - | | | $ | - | |
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 10 - INCOME TAXES (continued)
The table below summarizes the differences between the Companies’ effective tax rate and the statutory federal rate as follows for the period ended:
| December 31, 2012 | December 31, 2011 |
| | |
Computed "expected" tax expense (benefit) | (34.0)% | (34.0)% |
State income taxes | (5.0)% | (5.0)% |
Permanent differences | 31.0% | - |
Change in valuation allowance | 8.0% | 39.0% |
| | |
Effective tax rate | 0.0% | 0.0% |
The Companies have a deferred tax asset which is summarized as follows at:
Deferred tax assets: | | December 31, 2012 | | | December 31, 2011 | |
Net operating loss carryover | | $ | 478,736 | | | $ | 3,841 | |
Less: valuation allowance | | | (478,736 | ) | | | (3,841 | ) |
Net deferred tax asset | | $ | - | | | $ | - | |
After consideration of all the evidence, both positive and negative, management has recorded a full valuation allowance at December 31, 2012, due to the uncertainty of realizing the deferred income tax assets. The valuation allowance was increased by $474,895.
NOTE 11 – SUBSEQUENT EVENTS
On January 28, 2013, the Company entered into an employment agreement with John Stetson, the Company’s Chief Financial Officer and Secretary (the “Stetson Employment Agreement”) whereby Mr. Stetson agreed to serve as the Company's Chief Financial Officer for a period of one year, subject to renewal, in consideration for an annual salary of $75,000 Additionally, Mr. Stetson shall be eligible for an annual bonus if the Company meets certain criteria, as established by the Board of Directors, subject to standard “claw-back rights” in the event of any restatement of any prior period earnings or other results as from which any annual bonus shall have been determined. As further consideration for his services, Mr. Stetson shall receive a ten year option award to purchase an aggregate of 500,000 shares of the Company’s common stock with an exercise price of $0.50 per share, subject to adjustment, which shall vest in three (3) equal annual installments on the beginning on the first annual anniversary of the date of the Stetson Employment Agreement, provided Mr. Stetson is still employed by the Company. In the event of Mr. Stetson’s termination prior to the expiration of his employment term under his employment agreement, unless he is terminated for Cause (as defined in the Stetson Employment Agreement), or in the event Mr. Stetson resigns without Good Reason (as defined in the Stetson Employment Agreement), the Company shall pay to him a lump sum in an amount equal to the sum of his (i) base salary for the prior 12 months plus (ii) his annual bonus amount during the prior 12 months.
On February 15, 2013, the Company filed the Certificate with the Secretary of State of the State of Nevada in order to effectuate the Name Change to Marathon Patent Group, Inc. (see Note 1). The Name Change will be effective for the principal market for the Shares, the Over-the-Counter Bulletin Board, upon approval by the Financial Industry Regulatory Authority (“FINRA”) at which time the new trading symbol “MARA” will also become effective.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 11 – SUBSEQUENT EVENTS (continued)
On March 1, 2013, Mr. Nathaniel Bradley was appointed as the Company’s Chief Technology Officer and President of IP Services. Pursuant to the Employment Agreement between the Company and Mr. Bradley dated March 1, 2013 (“Bradley Employment Agreement”), Mr. Bradley shall serve as the Company’s Chief Technology Officer and President of IP Services for two (2) years. The Bradley Employment Agreement shall be automatically renewed for successive one (1) year periods thereafter. Mr. Bradley shall be entitled to a base salary at an annual rate of $195,000, with such upward adjustments as shall be determined by the Board in its sole discretion. Mr. Bradley shall also be entitled to an annual bonus if the Company meets or exceeds criteria adopted by the Compensation Committee of the Board for earning bonuses. Mr. Bradley shall be awarded five (5) year stock options to purchase an aggregate of one million (1,000,000) shares of the Company’s common stock, with a strike price based on the closing price of the Company’s common stock on March 1, 2013 as reported by the OTC Bulletin Board, vesting in twenty-four (24) equal installments on each monthly anniversary of March 1, 2013, provided Mr. Bradley is still employed by the Company on each such date.
On March 1, 2013, Mr. James Crawford was appointed as the Company’s Chief Operating Officer. Pursuant to the Employment Agreement between the Company and Mr. Crawford dated March 1, 2013 (“Crawford Employment Agreement”), Mr. Crawford shall serve as the Company’s Chief Operating Officer for two (2) years. The Crawford Employment Agreement shall be automatically renewed for successive one (1) year periods thereafter. Mr. Crawford shall be entitled to a base salary at an annual rate of $185,000, with such upward adjustments as shall be determined by the Board in its sole discretion. Mr. Crawford shall also be entitled to an annual bonus if the Company meets or exceeds criteria adopted by the Compensation Committee of the Board for earning bonuses. Mr. Crawford shall be awarded five (5) year stock options to purchase an aggregate of five hundred thousand (500,000) shares of the Company’s common stock, with a strike price based on the closing price of the Company’s common stock on March 1, 2013 as reported by the OTC Bulletin Board, vesting in twenty-four (24) equal installments on each monthly anniversary of March 1, 2013, provided Mr. Crawford is still employed by the Company on each such date.
On March 8, 2013, Mr. Joshua Bleak and Mr. David Rector tendered their resignations as members of the Board of the Company.
On March 8, 2013, the Board appointed Mr. Craig Nard and Mr. William Rosellini to fill the vacancies created by the resignation of Mr. Bleak and Mr. Rector. Pursuant to the Independent Director Agreement between the Company and Mr. Nard and Mr. Rosellini dated March 8, 2013. Each director shall be granted five (5) year stock options to purchase an aggregate of one hundred thousand (100,000) shares of the Company’s common stock, with a strike price based on the closing price of the Company’s common stock on March 8, 2013 as reported by the OTC Bulletin Board. The options shall vest as follows: 33% the first anniversary hereof; 33% on the second anniversary and 34% on the third anniversary, and shall be subject to the Company’s stock plan as in effect from time to time, including any clawback and termination provisions therein. The option agreements shall provide for cashless exercise features. Such agreement shall be terminated upon resignation or removal of Mr. Nard and Mr. Rosellini as members of the Board.
In February 2013, the Company sold 2 real estate properties generating revenues of approximately $440,000. The Company intends to sell and dispose its remaining real estate holdings during fiscal 2013.
On March 6, 2013, the Company entered into an Asset Purchase Agreement (the “Agreement”) with Augme Technologies (“Seller”) whereby Seller agreed to sell to the Company certain office equipment, data, documentation, and business information related to the Seller’s business and assign agreements and prospective clients and business opportunities to the Company. In consideration for the assets and assigned agreements, the Company shall pay $10,000 at closing and provide litigation assistance as defined in the Agreement. As additional consideration, the Company also entered into a 2 year Service Agreement (the “Service Agreement”) with the Seller whereby the Seller shall engage the Company to provide consulting services including patent litigation matters, sale, license involving the Seller’s intellectual property and general consulting services to continue the Seller’s business operations.
MARATHON PATENT GROUP, INC.
(FORMERLY AMERICAN STRATEGIC MINERALS CORPORATION)
(DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012
NOTE 11 – SUBSEQUENT EVENTS (continued)
The Company shall provide certain fixed hours of services per month without additional compensation to the Company pursuant to the Service Agreement. In the event the Seller request for additional hours of the Company’s services, the Seller shall be billed $350 for each additional hour of services provided by the Company. Pursuant to the Agreement, the Company shall also assume certain office lease agreement in connection with an office located in Tucson, Arizona. The term of the office lease is currently set to expire on July 31, 2013 and the base rent of the office lease is $4,774 per month.
CYBERFONE SYSTEMS, LLC
FINANCIAL STATEMENTS
MARCH 31, 2013
CYBERFONE SYSTEMS, LLC
FINANCIAL STATEMENTS
INDEX TO FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm | F-2 |
| |
Balance Sheets at March 31, 2013 (Unaudited) and December 31, 2012 | F-3 |
| |
Statements of Operations – | |
For the three months ended March 31, 2013 and 2012 (Unaudited) | F-4 |
| |
Statements of Changes in Members’ Equity – | |
For the period from inception (July 25, 2011) to the period | |
ended March 31, 2013 (Unaudited) | F-5 |
| |
Statements of Cash Flows – | |
For the three months ended March 31, 2013 and 2012 (Unaudited) | F-6 |
| |
Notes to Unaudited Consolidated Financial Statements | F-7 |
Report of Independent Registered Public Accounting Firm
To the Members
CyberFone Systems, LLC
We have reviewed the accompanying balance sheets of CyberFone Systems, LLC (the "Company") as of March 31, 2013, and the related statements of operations, changes in members’ equity, and cash flows for the three months ended March 31, 2013 and 2012. These interim financial statements are the responsibility of the Company’s management.
We conducted the reviews in accordance with standards of the Public Company Accounting Oversight Board (United States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim consolidated financial statements for them to be in conformity with U.S. generally accepted accounting principles.
/s/KBL, LLP
New York, NY
June 24, 2013
F - 2
CYBERFONE SYSTEMS, LLC |
BALANCE SHEETS |
| | March 31, 2013 | | | December 31, 2012 | |
| | (Unaudited) | | | | |
| | | | | | |
ASSETS | | | | | | |
| | | | | | |
Current assets: | | | | | | |
Cash | | $ | 2,390,207 | | | $ | 9,167 | |
Accounts receivable - current portion | | | 690,000 | | | | 527,480 | |
| | | | | | | | |
Total current assets | | | 3,080,207 | | | | 536,647 | |
| | | | | | | | |
Other assets: | | | | | | | | |
Accounts receivable - long term portion | | | 180,000 | | | | 180,000 | |
Intangible assets, net | | | 1,165,265 | | | | 1,284,278 | |
Total other assets | | | 1,345,265 | | | | 1,464,278 | |
| | | | | | | | |
Total assets | | $ | 4,425,472 | | | $ | 2,000,925 | |
| | | | | | | | |
LIABILITIES AND MEMBERS' EQUITY | | | | | | | | |
| | | | | | | | |
Current liabilities: | | | | | | | | |
Accounts payable and accrued expenses | | $ | 319,774 | | | $ | 135,316 | |
Total liabilities | | | 319,774 | | | | 135,316 | |
| | | | | | | | |
Members' equity | | | 4,105,698 | | | | 1,865,609 | |
| | | | | | | | |
Total liabilities and Members' equity | | $ | 4,425,472 | | | $ | 2,000,925 | |
See accompanying notes to unaudited financial statements.
F - 3
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF OPERATIONS |
| | FOR THE THREE | | | FOR THE THREE | |
| | MONTHS ENDED | | | MONTHS ENDED | |
| | MARCH 31, 2013 | | | MARCH 31, 2012 | |
| | (Unaudited) | | | (Unaudited) | |
| | | | | | |
Net revenues | | $ | 5,900,000 | | | $ | 1,395,000 | |
| | | | | | | | |
Operating expenses: | | | | | | | | |
Cost of revenues | | | 3,032,680 | | | | 851,470 | |
General and administrative | | | 1,627 | | | | 11,072 | |
Total operating expenses | | | 3,034,307 | | | | 862,542 | |
| | | | | | | | |
Net income | | $ | 2,865,693 | | | $ | 532,458 | |
See accompanying notes to unaudited financial statements.
F - 4
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF CHANGES IN MEMBERS' EQUITY |
FOR THE PERIOD FROM INCEPTION (JULY 25, 2011) TO THE PERIOD ENDED MARCH 31, 2013 |
| | Members' | |
| | Equity | |
| | | |
Balance at July 25, 2011 | | $ | - | |
| | | | |
Member Contributions | | | 1,526,364 | |
| | | | |
Net income for the period ended December 31, 2011 | | | 888,177 | |
| | | | |
Balance at December 31, 2011 | | | 2,414,541 | |
| | | | |
Member Distributions | | | (3,713,670 | ) |
| | | | |
Net income for the year ended December 31, 2012 | | | 3,164,738 | |
| | | | |
Balance at December 31, 2012 | | | 1,865,609 | |
| | | | |
Member Distributions | | | (625,604 | ) |
| | | | |
Net income for the three months ended March 31, 2013 | | | 2,865,693 | |
| | | | |
Balance at March 31, 2013 | | $ | 4,105,698 | |
See accompanying notes to unaudited financial statements.
F - 5
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF CASH FLOWS |
| | FOR THE THREE | | | FOR THE THREE | |
| | MONTHS ENDED | | | MONTHS ENDED | |
| | MARCH 31, 2013 | | | MARCH 31, 2012 | |
| | (Unaudited) | | | (Unaudited) | |
| | | | | | |
Cash flows from operating activities: | | | | | | |
Net income | | $ | 2,865,693 | | | $ | 532,458 | |
Adjustments to reconcile net income to net cash provided by operating activities: | | | | | | | | |
Amortization | | | 119,013 | | | | 119,013 | |
| | | | | | | | |
Changes in operating assets and liabilities: | | | | | | | | |
Accounts receivable - current portion | | | (162,520 | ) | | | (520,000 | ) |
Accounts receivable - long term portion | | | - | | | | (180,000 | ) |
Accounts payable and accrued expenses | | | 184,458 | | | | 324,286 | |
| | | | | | | | |
Net cash provided by operating activities | | | 3,006,644 | | | | 275,757 | |
| | | | | | | | |
Cash flows from investing activities: | | | | | | | | |
Acquisition of patents | | | - | | | | (143,465 | ) |
Net cash used in investing activities | | | - | | | | (143,465 | ) |
| | | | | | | | |
Cash flows from financing activities: | | | | | | | | |
Member distributions | | | (625,604 | ) | | | (469,634 | ) |
Net cash used in financing activities | | | (625,604 | ) | | | (469,634 | ) |
| | | | | | | | |
Net increase (decrease) in cash | | | 2,381,040 | | | | (337,342 | ) |
| | | | | | | | |
Cash at beginning of period | | | 9,167 | | | | 835,000 | |
| | | | | | | | |
Cash at end of period | | $ | 2,390,207 | | | $ | 497,658 | |
| | | | | | | | |
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | | | | | | | | |
Cash paid for: | | | | | | | | |
Interest | | $ | - | | | $ | - | |
Income taxes | | $ | - | | | $ | - | |
See accompanying notes to unaudited financial statements.
F - 6
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS
Organization
CyberFone Systems, LLC (the “Company”) formerly TDH Venture 1, LLC was incorporated under the laws of the State of Texas on July 25, 2011. The Company is engaged in the innovation, licensing and protection of intellectual property worldwide. The intellectual property covers claims that provide the right to practice specific transactional data processing, telecommunications, networks and database inventions, including financials transactions. The Company actively pursues licensing revenues by providing a license to its intellectual property to those entities that wish to acquire a right to use the technology. The patents and patent applications have been acquired from a third party and include US issued patents and applications and foreign issued patents and applications.
On November 23, 2011, the Company entered into an Interest Sale Agreement (the “Interest Sale Agreement”) with LVL Patent Group, LLC (“LVL”) whereby LVL transferred and assigned all of the issued and outstanding membership interests of its subsidiary which holds certain intellectual property rights to the Company in exchange for $250,000 less certain assumed liabilities as defined in the Interest Sale Agreement. In addition, the Company assumed the obligation under a certain Asset Purchase Agreement dated August 2011 between LVL and a third party including the payment of $1,550,000 and the assumption of certain contracts and agreements as further set forth in the Interest Sale Agreement (see Note 3).
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The financial statements of the Company have been prepared in accordance with generally accepted accounting principles in the United States of America. All adjustments (consisting of normal recurring items) necessary to present fairly the Company's financial position as of March 31, 2013, and the results of operations and cash flows for the three months ended March 31, 2013 have been included.
Use of Estimates and Assumptions
The preparation of the financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates made by management include, but are not limited to, the useful life of intangible assets.
Fair Value of Financial Instruments
The Company adopted Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 820, “Fair Value Measurements and Disclosures”, for assets and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for fair value to be applied to existing US GAAP that require the use of fair value measurements which establishes a framework for measuring fair value and expands disclosure about such fair value measurements.
ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
These inputs are prioritized below:
| Level 1: | Observable inputs such as quoted market prices in active markets for identical assets or liabilities |
| Level 2: | Observable market-based inputs or unobservable inputs that are corroborated by market data |
| Level 3: | Unobservable inputs for which there is little or no market data, which require the use of the reporting entity’s own assumptions. |
The carrying amounts reported in the balance sheet for accounts receivable, accounts payable and accrued liabilities approximate their estimated fair market value based on the short-term maturity of this instrument.
In addition, FASB ASC 825-10-25 “Fair Value Option” was effective for January 1, 2008. ASC 825-10-25 expands opportunities to use fair value measurements in financial reporting and permits entities to choose to measure many financial instruments and certain other items at fair value.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less when acquired to be cash equivalents. The Company places its cash with a high credit quality financial institution. The Company’s account at this institution is insured by the Federal Deposit Insurance Corporation ("FDIC") up to $250,000. At March 31, 2013, the Company has reached bank balances exceeding the FDIC insurance limit on interest bearing accounts. To reduce its risk associated with the failure of such financial institution, the Company evaluates at least annually the rating of the financial institution in which it holds deposits.
Intangible assets
Intangible assets include patents purchased and recorded based on the cost to acquire them. These assets are amortized over their remaining estimated useful lives. Useful lives of intangible assets are periodically evaluated for reasonableness and the assets are tested for impairment whenever events or changes in circumstances indicate that the carrying amount may no longer be recoverable.
Revenue Recognition
The Company recognizes revenue in accordance with ASC Topic 605, “Revenue Recognition”. Revenue is recognized when (i) persuasive evidence of an arrangement exists, (ii) all obligations have been substantially performed, (iii) amounts are fixed or determinable and (iv) collectability of amounts is reasonably assured.
The Company considers its licensing and enforcement activities as one unit of accounting under ASC 605-25, “Multiple-Element Arrangements” as the delivered items do not have value to customers on a standalone basis, there are no undelivered elements and there is no general right of return relative to the license. Under ASC 605-25, the appropriate recognition of revenue is determined for the combined deliverables as a single unit of accounting and revenue is recognized upon delivery of the final elements, including the license for past and future use and the release. Also due to the fact that the settlement element and license element for past and future use are the major central business, the Company does not present these two elements as different revenue streams in its statement of operations. The Company does not expect to provide licenses that do not provide some form of settlement or release. Revenues from patent enforcement activities accounted for 100% of revenues for the three months ended March 31, 2013 and 2012.
Cost of revenue
Cost of revenues mainly includes expenses incurred in connection with the Company’s patent enforcement activities, such as legal fees, consulting costs, patent maintenance, royalty fees for acquired patents and other related expenses, as well as, the amortization of acquired patents. Cost of revenue does not include expenses related to product development, integration or support, as these are included in general and administrative expenses.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Accounts Receivable
The Company has a policy of reserving for questionable accounts based on its best estimate of the amount of probable credit losses in its existing accounts receivable. The Company periodically reviews its accounts receivable to determine whether an allowance is necessary based on an analysis of past due accounts and other factors that may indicate that the realization of an account may be in doubt. Account balances deemed to be uncollectible are charged to the bad debt expense after all means of collection have been exhausted and the potential for recovery is considered remote. At March 31, 2013 and 2012, there was no allowance for bad debt. Accounts receivable- current portion at March 31, 2013 and December 31, 2012, amounted to $690,000 and $527,480, respectively. Accounts receivable – long term portion at March 31, 2013 and December 31, 2012, amounted to $180,000 and represents amounts that will be collected after 1 year.
Concentration of revenue and geographic area
Patent license revenue from enforcement activities is considered United States revenue as payments are for licenses for United States operations irrespective of the location of the licensee's or licensee's parent home domicile.
As of March 31, 2013, three customers accounted for 100% of total accounts receivable. Revenues from four customers accounted for approximately 100% of revenues for the three months ended March 31, 2013. As of March 31, 2012, two customers accounted for 100% of total accounts receivable. Revenues from four customers accounted for 100% of revenues for the three months ended March 31, 2012.
Income Taxes
The Company is treated as a disregarded entity for federal and state income tax reporting purpose and, thus no federal or state income tax expense has been recorded in the financial statements. Taxable income of the Company is passed through to its members and reported on their individual tax return. The federal and state income tax returns of the individual are subject to examination by the IRS and state taxing authorities, generally for three years after they were filed.
Impairment of Long-lived Assets
The Company accounts for the impairment or disposal of long-lived assets, such as property and equipment and purchased intangible assets subject to amortization, are reviewed for impairment. The Company continually monitors events and changes in circumstances that could indicate that the carrying amounts of long-lived assets may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to the estimated future net undiscounted cash flows expected to be generated by the asset. When necessary, impaired assets are written down to estimated fair value based on the best information available. Estimated fair value is generally based on either appraised value or measured by discounting estimated future cash flows. Considerable management judgment is necessary to estimate discounted future cash flows. Accordingly, actual results could vary significantly from such estimates. The Company recognizes an impairment loss when the sum of expected undiscounted future cash flows is less than the carrying amount of the asset. The Company did not consider it necessary to record any impairment charges during the three months ended March 31, 2013 and 2012.
Recent Accounting Pronouncements
In July 2012, the FASB issued Accounting Standards Update (“ASU”) 2012-02, Balance Sheet (Topic 350) “Intangibles-Goodwill and Other”, which allows an organization to first assess qualitative factors to determine whether it is necessary to perform the quantitative impairment test for indefinite-lived intangible assets. An organization that elects to perform a qualitative assessment is required to perform the quantitative impairment test for an indefinite-lived intangible asset if it is more likely than not that the asset is impaired. This is effective for annual and interim impairment tests performed for fiscal years beginning after September 15, 2012. Early adoption is permitted. The
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Company does not expect the adoption of ASU 2012-02 to have a material impact on its financial position, results of operations nor cash flows.
In April 2013, the FASB ASU 2013-07, “Presentation of Financial Statements: Topic Liquidation Basis of Accounting”. ASU 2013-07 requires an entity to prepare its financial statements using the liquidation basis of accounting when liquidation is imminent. Liquidation is considered imminent when the likelihood is remote that the organization will return from liquidation and either: (a) a plan for liquidation is approved by the person or persons with the authority to make such a plan effective and the likelihood is remote that the execution of the plan will be blocked by other parties; or (b) a plan for liquidation is being imposed by other forces. ASU 2013-07 will be effective for the Company beginning on January 1, 2014. The Company does not expect the adoption of ASU 2013-07 to have a material impact on its financial position, results of operations nor cash flows.
Commitments and Contingencies
Liabilities for loss contingencies arising from assessments, estimates or other sources are to be recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. Legal costs expected to be incurred in connection with a loss contingency are expensed as incurred.
NOTE 3 – INTANGIBLE ASSETS
Intangible assets were acquired upon the closing of the Interest Sale Agreement (see Note 1) and consisted of the following:
| | | | | | |
| | March 31, 2013 (unaudited) | | | December 31, 2012 | | | Weighted average amortization period (years) | |
Patents | | | 1,800,000 | | | | 1,800,000 | | | | 3.92 | |
Less: accumulated amortization | | | (634,735 | ) | | | (515,722 | ) | | | | |
| | | 1,165,265 | | | | 1,284,278 | | | | | |
Intangible assets are comprised of patents with estimated useful lives between approximately 3 to 6 years (20-year life of underlying patent, less the approximate 14 to 17 years elapsed since original patent application). Once placed in service, the Company will amortize the costs of intangible assets over their estimated useful lives on a straight-line basis. Costs incurred to acquire patents, including legal costs, are also capitalized as long-lived assets and amortized on a straight-line basis with the associated patent. The Company assesses fair market value for any impairment to the carrying values. As of March 31, 2013 and December 31, 2012 management concluded that there was no impairment to the acquired assets.
Amortization expense for the three months ended March 31, 2013 and 2012 was $119,013 and $119,013, respectively. Future amortization of intangible assets, net is as follows:
2013 | | | 357,038 | |
2014 | | | 476,051 | |
2015 and thereafter | | | 332,176 | |
Total | | $ | 1,165,265 | |
During the period from inception (July 25, 2011) to December 31, 2011, the Company paid in cash a total of $1,656,535 in connection with the acquisition of the patents and recorded a patent purchase payable of $143,465 at December 31, 2011 for a total purchase price of $1,800,000. The Company paid such patent purchase payable in January 2012.
NOTE 4 – RELATED PARTY TRANSACTIONS
Parties are considered to be related to the Company if the parties, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal with if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. The Company discloses all related party transactions.
In December 2011, on behalf of the Company, TechDev Holdings, LLC, a member of the Company, entered into an Advisory Services Agreement with IP Navigation Group, LLC (“IPNav”), a company founded and associated with a member of the Company. IPNav provides strategic advisory services relating to licensing, patent monetization, enforcement, settlement and support services with respect to the intellectual property rights owned by the Company. The Company shall pay 20% of the gross consideration collected in connection with licensing fees, litigation settlement fee, payment of damages or any other consideration generated from the monetization of its intellectual property rights effective January 2012. Pursuant to this agreement, during the three months ended March 31, 2012, the Company paid a total of $279,000 to IPNav in connection with the litigation settlement fees generated from the monetization of the Company’s intellectual property rights.
In January 2013, the Company directly entered into an Advisory Services Agreement with IPNav. The Company shall pay 20% of the gross consideration collected by the Company in connection with licensing fees, litigation settlement fee, payment of damages or any other consideration generated from the monetization of the Company’s intellectual property rights. Pursuant to this agreement, during the three months ended March 31, 2013, the Company paid a total of $1,180,000 to IPNav in connection with the litigation settlement fees generated from the monetization of the Company’s intellectual property rights.
NOTE 5 – COMMITMENTS AND CONTINGENCIES
Royalty fee
In connection with the execution of the Interest Sale Agreement (see Note 1), the Company assumed obligations under a certain Asset Purchase Agreement dated August 2011, whereby the Company was required to pay 6% of recoveries from litigation settlement fees to the inventor who sold the intellectual property rights which were assigned to the Company. In July 2012, such Asset Purchase Agreement was amended to increase the fee from 6% to 8.5% of gross recoveries. During the three months ended March 31, 2013 and 2012, the Company recorded $501,500 and $83,700 respectively, in royalty fees which have been included in cost of revenues as reflected in the accompanying statements of operations.
Contingency fees
In connection with the execution of the Interest Sale Agreement (see Note 1), the Company assumed a certain agreement for patent enforcement related services under the Asset Purchase Agreement dated August 2011, whereby the Company is required to pay a total of 20% of the gross recoveries from litigation settlement fees to certain lawyers. During the three months ended March 31, 2013 and 2012, the Company recorded $1,180,000 and $279,000 respectively, in contingency fees which have been included in cost of revenues as reflected in the accompanying statements of operations.
Litigations
In the ordinary course of business, the Company actively pursues legal remedies to enforce its intellectual property rights and to stop unauthorized use of its technology. Other than ordinary routine litigation incidental to the business, the Company knows of no material, active or pending legal proceedings against the Company, nor is the Company involved as a plaintiff in any material proceedings or pending litigation.
NOTE 6 - SUBSEQUENT EVENTS
On April 22, 2013, the Company and the members of the Company (the “Seller”) entered into a Merger Agreement (the “Merger Agreement”) with CyberFone Acquisition Corp. (“Acquisition Corp.”), a Texas corporation and a wholly owned subsidiary of Marathon Patent Group, Inc. (“Marathon”). Pursuant to the terms of the Merger Agreement, the Company merged with and into Acquisition Corp with the Company surviving the merger as the wholly owned subsidiary of Marathon (the “Merger”). In connection with the Merger, Marathon (i) issued 6,000,000 shares of its common stock to the Seller (the “Merger Shares”), (ii) paid the Seller $500,000 cash and (iii) issued a $500,000 promissory note to a member of the Company (the “Note”). The Note is non-interest bearing and becomes due June 22, 2013, subject to acceleration in the event of default. Marathon may prepay the Note at any time without premium or penalty. On June 21, 2013, the Company paid $500,000 in satisfaction of the Note. The transaction resulted in a business combination and caused the Company to become a wholly-owned subsidiary of Marathon. Mr. Doug Croxall is the Chief Executive Officer of both Marathon and LVL (see note 1).
In addition to the payments described above, within 30 days following the end of each calendar quarter (commencing with the first full calendar quarter following the calendar quarter in which the Company recovers $4 million from licensing or enforcement activities related to the patents), the Company will be required to pay out 7.5% of such recoveries to the Seller.
In connection with the Merger and pursuant to a license agreement (the “License Agreement”), the Company granted the Seller a non-exclusive license-back to the patents owned by the Company and the inventors retain commercialization rights previously granted by the Company or its predecessors.
CYBERFONE SYSTEMS, LLC
FINANCIAL STATEMENTS
INDEX TO FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM | F-2 |
| |
BALANCE SHEETS | F-3 |
| |
STATEMENTS OF OPERATIONS | F-4 |
| |
STATEMENTS OF CHANGES IN MEMBERS’ EQUITY | F-5 |
| |
STATEMENTS OF CASH FLOWS | F-6 |
| |
NOTES TO FINANCIAL STATEMENTS | F-7 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Members
CyberFone Systems, LLC
We have audited the accompanying balance sheets of CyberFone Systems, LLC (the "Company") as of December 31, 2012 and 2011 and the related statements of operations, changes in members’ equity, and cash flows for the year ended December 31, 2012 and for the period from inception (July 25, 2011) to December 31, 2011. 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 audits.
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 includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes 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 CyberFone Systems, LLC as of December 31, 2012 and 2011, and the results of its operations and its cash flows for the year ended December 31, 2012 and for the period from inception (July 25, 2011) to December 31, 2011 in conformity with accounting principles generally accepted in the United States of America.
/s/ KBL, LLP
New York, New York
June 24, 2013
F-2
CYBERFONE SYSTEMS, LLC |
BALANCE SHEETS |
| | December 31, | |
| | 2012 | | | 2011 | |
| | | | | | |
ASSETS | | | | | | |
| | | | | | |
Current assets: | | | | | | |
Cash | | $ | 9,167 | | | $ | 835,000 | |
Accounts receivable - current portion | | | 527,480 | | | | - | |
| | | | | | | | |
Total current assets | | | 536,647 | | | | 835,000 | |
| | | | | | | | |
Other assets: | | | | | | | | |
Accounts receivable - long term portion | | | 180,000 | | | | - | |
Intangible assets, net | | | 1,284,278 | | | | 1,760,329 | |
Total other assets | | | 1,464,278 | | | | 1,760,329 | |
| | | | | | | | |
Total assets | | $ | 2,000,925 | | | $ | 2,595,329 | |
| | | | | | | | |
LIABILITIES AND MEMBERS' EQUITY | | | | | | | | |
| | | | | | | | |
Current liabilities: | | | | | | | | |
Accounts payable and accrued expenses | | $ | 135,316 | | | $ | 37,323 | |
Patent purchase payable | | | - | | | | 143,465 | |
Total liabilities | | | 135,316 | | | | 180,788 | |
| | | | | | | | |
Members' equity | | | 1,865,609 | | | | 2,414,541 | |
| | | | | | | | |
Total liabilities and Members' equity | | $ | 2,000,925 | | | $ | 2,595,329 | |
See accompanying notes to financial statements.
F - 3
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF OPERATIONS |
| | FOR THE YEAR | | | FOR THE PERIOD FROM | |
| | ENDED | | | INCEPTION (JULY 25, 2011) TO | |
| | DECEMBER 31, 2012 | | | DECEMBER 31, 2011 | |
| | | | | | |
| | | | | | |
Net revenues | | $ | 8,184,950 | | | $ | 1,500,000 | |
| | | | | | | | |
Operating expenses: | | | | | | | | |
Cost of revenues | | | 5,006,426 | | | | 525,087 | |
General and administrative | | | 13,786 | | | | 86,736 | |
Total operating expenses | | | 5,020,212 | | | | 611,823 | |
| | | | | | | | |
Net income | | $ | 3,164,738 | | | $ | 888,177 | |
See accompanying notes to financial statements.
F - 4
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF CHANGES IN MEMBERS' EQUITY |
FOR THE PERIOD FROM INCEPTION (JULY 25, 2011) TO THE YEAR ENDED DECEMBER 31, 2012 |
| | Members' | |
| | Equity | |
| | | |
Balance at July 25, 2011 | | $ | - | |
| | | | |
Member Contributions | | | 1,526,364 | |
| | | | |
Net income for the period ended December 31, 2011 | | | 888,177 | |
| | | | |
Balance at December 31, 2011 | | | 2,414,541 | |
| | | | |
Member Distributions | | | (3,713,670 | ) |
| | | | |
Net income for the year ended December 31, 2012 | | | 3,164,738 | |
| | | | |
Balance at December 31, 2012 | | $ | 1,865,609 | |
See accompanying notes to financial statements.
F - 5
CYBERFONE SYSTEMS, LLC |
STATEMENTS OF CASH FLOWS |
| | FOR THE YEAR | | | FOR THE PERIOD FROM | |
| | ENDED | | | INCEPTION (JULY 25, 2011) TO | |
| | DECEMBER 31, 2012 | | | DECEMBER 31, 2011 | |
| | | | | | |
| | | | | | |
Cash flows from operating activities: | | | | | | |
Net income | | $ | 3,164,738 | | | $ | 888,177 | |
Adjustments to reconcile net income to net cash provided by operating activities: | | | | | | | | |
Amortization | | | 476,051 | | | | 39,671 | |
| | | | | | | | |
Changes in operating assets and liabilities: | | | | | | | | |
Accounts receivable - current portion | | | (527,480 | ) | | | - | |
Accounts receivable - long term portion | | | (180,000 | ) | | | - | |
Accounts payable and accrued expenses | | | 97,993 | | | | 37,323 | |
| | | | | | | | |
Net cash provided by operating activities | | | 3,031,302 | | | | 965,171 | |
| | | | | | | | |
Cash flows from investing activities: | | | | | | | | |
Acquisition of patents | | | (143,465 | ) | | | (1,656,535 | ) |
Net cash used in investing activities | | | (143,465 | ) | | | (1,656,535 | ) |
| | | | | | | | |
Cash flows from financing activities: | | | | | | | | |
Member distributions | | | (3,713,670 | ) | | | - | |
Member contributions | | | - | | | | 1,526,364 | |
Net cash provided by (used in) financing activities | | | (3,713,670 | ) | | | 1,526,364 | |
| | | | | | | | |
Net (decrease) increase in cash | | | (825,833 | ) | | | 835,000 | |
| | | | | | | | |
Cash at beginning of period | | | 835,000 | | | | - | |
| | | | | | | | |
Cash at end of year | | $ | 9,167 | | | $ | 835,000 | |
| | | | | | | | |
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | | | | | | | | |
Cash paid for: | | | | | | | | |
Interest | | $ | - | | | $ | - | |
Income taxes | | $ | - | | | $ | - | |
| | | | | | | | |
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | | | | | | | | |
| | | | | | | | |
Patent purchase payable in connection with the acquisition of patents | | $ | - | | | $ | 143,465 | |
See accompanying notes to financial statements.
F - 6
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS
Organization
CyberFone Systems, LLC (the “Company”) formerly TDH Venture 1, LLC was incorporated under the laws of the State of Texas on July 25, 2011. The Company is engaged in the innovation, licensing and protection of intellectual property worldwide. The intellectual property covers claims that provide the right to practice specific transactional data processing, telecommunications, networks and database inventions, including financials transactions. The Company actively pursues licensing revenues by providing a license to its intellectual property to those entities that wish to acquire a right to use the technology. The patents and patent applications have been acquired from a third party and include US issued patents and applications and foreign issued patents and applications.
On November 23, 2011, the Company entered into an Interest Sale Agreement (the “Interest Sale Agreement”) with LVL Patent Group, LLC (“LVL”) whereby LVL transferred and assigned all of the issued and outstanding membership interests of its subsidiary which holds certain intellectual property rights to the Company in exchange for $250,000 less certain assumed liabilities as defined in the Interest Sale Agreement. In addition, the Company assumed the obligation under a certain Asset Purchase Agreement dated August 2011 between LVL and a third party including the payment of $1,550,000 and the assumption of certain contracts and agreements as further set forth in the Interest Sale Agreement (see Note 3).
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The financial statements of the Company have been prepared in accordance with generally accepted accounting principles in the United States of America.
Use of Estimates and Assumptions
The preparation of the financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates made by management include, but are not limited to, the useful life of intangible assets.
Fair Value of Financial Instruments
The Company adopted Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 820, “Fair Value Measurements and Disclosures”, for assets and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for fair value to be applied to existing US GAAP that require the use of fair value measurements which establishes a framework for measuring fair value and expands disclosure about such fair value measurements.
ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. These inputs are prioritized below:
| Level 1: | Observable inputs such as quoted market prices in active markets for identical assets or liabilities |
| Level 2: | Observable market-based inputs or unobservable inputs that are corroborated by market data |
| Level 3: | Unobservable inputs for which there is little or no market data, which require the use of the reporting entity’s own assumptions. |
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
The carrying amounts reported in the balance sheet for accounts receivable, accounts payable and accrued liabilities approximate their estimated fair market value based on the short-term maturity of this instrument.
In addition, FASB ASC 825-10-25 “Fair Value Option” was effective for January 1, 2008. ASC 825-10-25 expands opportunities to use fair value measurements in financial reporting and permits entities to choose to measure many financial instruments and certain other items at fair value.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less when acquired to be cash equivalents. The Company places its cash with a high credit quality financial institution. The Company’s account at this institution is insured by the Federal Deposit Insurance Corporation ("FDIC") up to $250,000. In addition to the basic insurance deposit coverage, the FDIC was providing temporary unlimited coverage for non-interest bearing transaction accounts through December 31, 2012. At December 31, 2012 and 2011, the Company has not reached bank balances exceeding the FDIC insurance limit on interest bearing accounts. To reduce its risk associated with the failure of such financial institution, the Company evaluates at least annually the rating of the financial institution in which it holds deposits.
Intangible assets
Intangible assets include patents purchased and recorded based on the cost to acquire them. These assets are amortized over their remaining estimated useful lives. Useful lives of intangible assets are periodically evaluated for reasonableness and the assets are tested for impairment whenever events or changes in circumstances indicate that the carrying amount may no longer be recoverable.
Revenue Recognition
The Company recognizes revenue in accordance with ASC Topic 605, “Revenue Recognition”. Revenue is recognized when (i) persuasive evidence of an arrangement exists, (ii) all obligations have been substantially performed, (iii) amounts are fixed or determinable and (iv) collectability of amounts is reasonably assured.
The Company considers its licensing and enforcement activities as one unit of accounting under ASC 605-25, “Multiple-Element Arrangements” as the delivered items do not have value to customers on a standalone basis, there are no undelivered elements and there is no general right of return relative to the license. Under ASC 605-25, the appropriate recognition of revenue is determined for the combined deliverables as a single unit of accounting and revenue is recognized upon delivery of the final elements, including the license for past and future use and the release. Also due to the fact that the settlement element and license element for past and future use are the major central business, the Company does not present these two elements as different revenue streams in its statement of operations. The Company does not expect to provide licenses that do not provide some form of settlement or release. Revenues from patent enforcement activities accounted for 100% of revenues for the year ended December 31, 2012 and for the period from inception (July 25, 2011) to December 31, 2011.
Cost of revenue
Cost of revenues mainly includes expenses incurred in connection with the Company’s patent enforcement activities, such as legal fees, consulting costs, patent maintenance, royalty fees for acquired patents and other related expenses, as well as, the amortization of acquired patents. Cost of revenue does not include expenses related to product development, integration or support, as these are included in general and administrative expenses.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Accounts Receivable
The Company has a policy of reserving for questionable accounts based on its best estimate of the amount of probable credit losses in its existing accounts receivable. The Company periodically reviews its accounts receivable to determine whether an allowance is necessary based on an analysis of past due accounts and other factors that may indicate that the realization of an account may be in doubt. Account balances deemed to be uncollectible are charged to the bad debt expense after all means of collection have been exhausted and the potential for recovery is considered remote. At December 31, 2012 and 2011, there was no allowance for bad debt. Accounts receivable- current portion at December 31, 2012 and 2011, amounted to $527,480 and $0, respectively. Accounts receivable – long term portion at December 31, 2012 and 2011, amounting to $180,000 and $0 and represents amounts that will be collected after 1 year.
Concentration of revenue and geographic area
Patent license revenue from enforcement activities is considered United States revenue as payments are for licenses for United States operations irrespective of the location of the licensee's or licensee's parent home domicile.
As of December 31, 2012, three customers accounted for 100% of total accounts receivable. Revenues from five customers accounted for approximately 40% of revenues for the year ended December 31, 2012. As of December 31, 2011, there was no accounts receivable. Revenues from five customers accounted for 100% of revenues for the period from inception (July 25, 2011) to December 31, 2011.
Income Taxes
The Company is treated as a disregarded entity for federal and state income tax reporting purpose and, thus no federal or state income tax expense has been recorded in the financial statements. Taxable income of the Company is passed through to its members and reported on their individual tax return. The federal and state income tax returns of the individual are subject to examination by the IRS and state taxing authorities, generally for three years after they were filed.
Impairment of Long-lived Assets
The Company accounts for the impairment or disposal of long-lived assets, such as property and equipment and purchased intangible assets subject to amortization, are reviewed for impairment. The Company continually monitors events and changes in circumstances that could indicate that the carrying amounts of long-lived assets may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to the estimated future net undiscounted cash flows expected to be generated by the asset. When necessary, impaired assets are written down to estimated fair value based on the best information available. Estimated fair value is generally based on either appraised value or measured by discounting estimated future cash flows. Considerable management judgment is necessary to estimate discounted future cash flows. Accordingly, actual results could vary significantly from such estimates. The Company recognizes an impairment loss when the sum of expected undiscounted future cash flows is less than the carrying amount of the asset. The Company did not consider it necessary to record any impairment charges during the year ended December 31, 2012 and for the period from inception (July 25, 2011) to December 31, 2011.
Recent Accounting Pronouncements
In July 2012, the FASB issued Accounting Standards Update (“ASU”) 2012-02, Balance Sheet (Topic 350) “Intangibles-Goodwill and Other”, which allows an organization to first assess qualitative factors to determine whether it is necessary to perform the quantitative impairment test for indefinite-lived intangible assets. An organization that elects to perform a qualitative assessment is required to perform the quantitative impairment test for an indefinite-lived intangible asset if it is more likely than not that the asset is impaired. This is effective for annual and interim impairment tests performed for fiscal years beginning after September 15, 2012. Early adoption is permitted. The Company does not expect the adoption of ASU 2012-02 to have a material impact on its financial position, results of operations nor cash flows.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
In April 2013, the FASB ASU 2013-07, “Presentation of Financial Statements: Topic Liquidation Basis of Accounting”. ASU 2013-07 requires an entity to prepare its financial statements using the liquidation basis of accounting when liquidation is imminent. Liquidation is considered imminent when the likelihood is remote that the organization will return from liquidation and either: (a) a plan for liquidation is approved by the person or persons with the authority to make such a plan effective and the likelihood is remote that the execution of the plan will be blocked by other parties; or (b) a plan for liquidation is being imposed by other forces. ASU 2013-07 will be effective for the Company beginning on January 1, 2014. The Company does not expect the adoption of ASU 2013-07 to have a material impact on its financial position, results of operations nor cash flows.
Commitments and Contingencies
Liabilities for loss contingencies arising from assessments, estimates or other sources are to be recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. Legal costs expected to be incurred in connection with a loss contingency are expensed as incurred.
NOTE 3 – INTANGIBLE ASSETS
Intangible assets were acquired upon the closing of the Interest Sale Agreement (see Note 1) and consisted of the following:
| | As of December 31, | | | Weighted average amortization period | |
| | 2012 | | | 2011 | | | (years) | |
Patents | | | 1,800,000 | | | | 1,800,000 | | | | 3.92 | |
Less: accumulated amortization | | | (515,722 | ) | | | (39,671 | ) | | | | |
| | | 1,284,278 | | | | 1,760,329 | | | | | |
Intangible assets are comprised of patents with estimated useful lives between approximately 3 to 6 years (20-year life of underlying patent, less the approximate 14 to 17 years elapsed since original patent application). Once placed in service, the Company will amortize the costs of intangible assets over their estimated useful lives on a straight-line basis. Costs incurred to acquire patents, including legal costs, are also capitalized as long-lived assets and amortized on a straight-line basis with the associated patent. The Company assesses fair market value for any impairment to the carrying values. As of December 31, 2012 and 2011 management concluded that there was no impairment to the acquired assets.
Amortization expense for the year ended December 31, 2012 and for the period from inception (July 25, 2011) to December 31, 2011 was $476,051 and $39,671, respectively. Future amortization of intangible assets, net is as follows:
2013 | | | 476,051 | |
2014 | | | 476,051 | |
2015 and thereafter | | | 332,176 | |
| | | | |
| | | | |
Total | | $ | 1,284,278 | |
During the period from inception (July 25, 2011) to December 31, 2011, the Company paid in cash a total of $1,656,535 in connection with the acquisition of the patents and recorded a patent purchase payable of $143,465 at December 31, 2011 for a total purchase price of $1,800,000. The Company paid such patent purchase payable in January 2012.
NOTE 4 – RELATED PARTY TRANSACTIONS
Parties are considered to be related to the Company if the parties, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal with if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. The Company discloses all related party transactions.
During the period from inception (July 25, 2011) to December 31, 2011, the Company paid consulting fees to a member of the Company amounting to $75,000 which has been included in general and administrative expenses as reflected in the accompanying statements of operations.
In December 2011, on behalf of the Company, TechDev Holdings, LLC, a member of the Company, entered into an Advisory Services Agreement with IP Navigation Group, LLC (“IPNav”), a company founded and associated with a member of the Company. IPNav provides strategic advisory services relating to licensing, patent monetization, enforcement, settlement and support services with respect to the intellectual property rights owned by the Company. The Company shall pay 20% of the gross consideration collected in connection with licensing fees, litigation settlement fee, payment of damages or any other consideration generated from the monetization of its intellectual property rights effective January 2012. Pursuant to this agreement, during the year ended December 31, 2012, the Company paid a total of $1,636,990 to IPNav in connection with the litigation settlement fees generated from the monetization of the Company’s intellectual property rights. In January 2013, the Company directly entered into an Advisory Service Agreement with IPNav (see note 6).
NOTE 5 – COMMITMENTS AND CONTINGENCIES
Royalty fee
In connection with the execution of the Interest Sale Agreement (see Note 1), the Company assumed obligations under a certain Asset Purchase Agreement dated August 2011, whereby the Company was required to pay 6% of recoveries from litigation settlement fees to the inventor who sold the intellectual property rights which were assigned to the Company. In July 2012, such Asset Purchase Agreement was amended to increase the fee from 6% to 8.5% of gross recoveries. During the period from inception (July 25, 2011) to December 31, 2011 and for the year ended December 31, 2012, the Company recorded $90,000 and $600,396, respectively, in royalty fees which have been included in cost of revenues as reflected in the accompanying statements of operations.
Contingency fees
In connection with the execution of the Interest Sale Agreement (see Note 1), the Company assumed a certain agreement for patent enforcement related services under the Asset Purchase Agreement dated August 2011, whereby the Company is required to pay a total of 20% of the gross recoveries from litigation settlement fees to certain lawyers. During the period from inception (July 25, 2011) to December 31, 2011 and for the year ended December 31, 2012, the Company recorded $1,636,985 and $300,000, respectively, in contingency fees which have been included in cost of revenues as reflected in the accompanying statements of operations.
Litigations
In the ordinary course of business, the Company actively pursues legal remedies to enforce its intellectual property rights and to stop unauthorized use of its technology. Other than ordinary routine litigation incidental to the business, the Company knows of no material, active or pending legal proceedings against the Company, nor is the Company involved as a plaintiff in any material proceedings or pending litigation.
NOTE 6 - SUBSEQUENT EVENTS
In January 2013, the Company directly entered into an Advisory Services Agreement with IPNav (see note 4). IPNav provides strategic advisory services relating to licensing, patent monetization, enforcement, settlement and support services with respect to the intellectual property rights owned by the Company. The Company shall pay 20% of the gross consideration collected by the Company in connection with licensing fees, litigation settlement fee, payment of damages or any other consideration generated from the monetization of the Company’s intellectual property rights.
On April 22, 2013, the Company and the members of the Company (the “Seller”) entered into a Merger Agreement (the “Merger Agreement”) with CyberFone Acquisition Corp. (“Acquisition Corp.”), a Texas corporation and a wholly owned subsidiary of the Marathon Patent Group, Inc. (“Marathon”). Pursuant to the terms of the Merger Agreement, the Company merged with and into Acquisition Corp with the Company surviving the merger as the wholly owned subsidiary of Marathon (the “Merger”). In connection with the Merger, Marathon (i) issued 6,000,000 shares of its common stock to the Seller (the “Merger Shares”), (ii) paid the Seller $500,000 cash and (iii) issued a $500,000 promissory note to a member of the Company (the “Note”). The Note is non-interest bearing and becomes due June 22, 2013, subject to acceleration in the event of default. Marathon may prepay the Note at any time without premium or penalty. On June 21, 2013, Marathon paid $500,000 in satisfaction of the Note. The transaction resulted in a business combination and caused the Company to become a wholly-owned subsidiary of Marathon. Mr. Doug Croxall is the Chief Executive Officer of both Marathon and LVL (see note 1).
In addition to the payments described above, within 30 days following the end of each calendar quarter (commencing with the first full calendar quarter following the calendar quarter in which the Company recovers $4 million from licensing or enforcement activities related to the patents), the Company will be required to pay out 7.5% of such recoveries to the Seller.
In connection with the Merger and pursuant to a license agreement (the “License Agreement”), the Company granted the Seller a non-exclusive license-back to the patents owned by the Company and the inventors retain commercialization rights previously granted by the Company or its predecessors.
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
PRO FORMA COMBINED FINANCIAL INFORMATION
(UNAUDITED)
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
Index to Unaudited Pro Forma Combined Financial Information
| | Pages |
| | |
| | |
Unaudited Pro Forma Combined Balance Sheet – March 31, 2013 | | F-2 |
| | |
Unaudited Pro Forma Combined Statement of Operations – March 31, 2013 | | F-3 |
| | |
Unaudited Pro Forma Combined Statement of Operations – December 31, 2012 | | F-4 |
| | |
Notes to Unaudited Pro Forma Combined Financial Information | | F-5 |
F-1
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
| | Marathon Patent Group, Inc. | | | | | | | | | | | | | | | | | | | |
| | and Subsidiaries | | | CyberFone Systems, LLC | | | | | | | | | | | | | | | | |
| | March 31, 2013 | | | March 31, 2013 | | | | | | Pro Forma Adjustments | | | Pro Forma | |
| | Historical | | | Historical | | | | | | Dr | | | | | | Cr. | | | Balances | |
| | (Unaudited) | | | (Unaudited) | | | | | | | | | | | | | | | (Unaudited) | |
ASSETS | | | | | | | | | | | | | | | | | | | | | |
CURRENT ASSETS: | | | | | | | | | | | | | | | | | | | | | |
Cash | | $ | 2,916,476 | | | $ | 2,390,207 | | | | | | $ | - | | | | (1 | ) | | $ | 2,890,207 | | | $ | 2,416,476 | |
Accounts receivable - current portion | | | - | | | | 690,000 | | | | | | | - | | | | (1 | ) | | | 690,000 | | | | - | |
Marketable securities - available for sale securities | | | 6,250 | | | | - | | | | | | | - | | | | | | | | - | | | | 6,250 | |
Prepaid expenses | | | 30,666 | | | | - | | | | | | | - | | | | | | | | - | | | | 30,666 | |
Assets of discontinued operations - current portion | | | 53,395 | | | | - | | | | | | | - | | | | | | | | - | | | | 53,395 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Current Assets | | | 3,006,787 | | | | 3,080,207 | | | | | | | - | | | | | | | | 3,580,207 | | | | 2,506,787 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Goodwill | | | - | | | | - | | | | (1 | ) | | | 2,114,735 | | | | | | | | - | | | | 2,114,735 | |
Accounts receivable - long term portion | | | - | | | | 180,000 | | | | | | | | - | | | | (1 | ) | | | 180,000 | | | | - | |
Property and equipment, net | | | 9,722 | | | | - | | | | | | | | - | | | | | | | | - | | | | 9,722 | |
Intangible assets, net | | | 474,605 | | | | 1,165,265 | | | | | | | | - | | | | | | | | - | | | | 1,639,870 | |
Assets of discontinued operations - long term portion | | | 230,088 | | | | - | | | | | | | | - | | | | | | | | - | | | | 230,088 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Assets | | $ | 3,721,202 | | | $ | 4,425,472 | | | | | | | $ | 2,114,735 | | | | | | | $ | 3,760,207 | | | $ | 6,501,202 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
LIABILITIES AND STOCKHOLDERS' EQUITY | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
CURRENT LIABILITIES: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable and accrued expenses | | $ | 153,169 | | | $ | 319,774 | | | | (1 | ) | | $ | 319,774 | | | | | | | $ | - | | | $ | 153,169 | |
Liabilities of discontinued operations | | | 30,664 | | | | - | | | | | | | | - | | | | | | | | - | | | | 30,664 | |
Note payable | | | - | | | | - | | | | | | | | - | | | | (1 | ) | | | 500,000 | | | | 500,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Liabilities | | | 183,833 | | | | 319,774 | | | | | | | | 319,774 | | | | | | | | 500,000 | | | | 683,833 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Commitments and Contingencies | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
STOCKHOLDERS' EQUITY: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Preferred stock, $.0001 par value, 50,000,000 shares | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
authorized: none issued and outstanding | | | - | | | | - | | | | | | | | - | | | | | | | | - | | | | - | |
Common stock, ($.0001 par value; 200,000,000 shares authorized; | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
45,546,345 shares issued and outstanding prior to acquisition; 51,546,345 shares | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
issued and outstanding after the acquisition) | | | 4,555 | | | | - | | | | | | | | - | | | | (1 | ) | | | 600 | | | | 5,155 | |
Additional paid-in capital | | | 11,192,230 | | | | - | | | | | | | | - | | | | (1 | ) | | | 2,279,400 | | | | 13,471,630 | |
Accumulated other comprehensive income - marketable securities available for sale | | | (6,250 | ) | | | - | | | | | | | | - | | | | | | | | - | | | | (6,250 | ) |
Retained earnings (accumulated deficit) | | | (7,642,670 | ) | | | 4,105,698 | | | | (1 | ) | | | 4,105,698 | | | | | | | | - | | | | (7,642,670 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Marathon Patent Group, Inc. equity | | | 3,547,865 | | | | 4,105,698 | | | | | | | | 4,105,698 | | | | | | | | 2,280,000 | | | | 5,827,865 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-Controlling Interest in Subsidiary | | | (10,496 | ) | | | - | | | | | | | | - | | | | | | | | - | | | | (10,496 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Stockholders' Equity | | | 3,537,369 | | | | 4,105,698 | | | | | | | | 4,105,698 | | | | | | | | 2,280,000 | | | | 5,817,369 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total Liabilities and Stockholders' Equity | | $ | 3,721,202 | | | $ | 4,425,472 | | | | | | | $ | 4,425,472 | | | | | | | $ | 2,780,000 | | | $ | 6,501,202 | |
See accompanying notes to unaudited pro forma combined financial information.
F-2
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
| | Marathon Patent Group, Inc. | | | | | | | | | | | | | |
| | and Subsidiaries | | | CyberFone Systems, LLC | | | | | | | | | | |
| | | | | | | | | | | | | | | |
| | For the Three Months | | | For the Three Months | | | | | | | | | | |
| | Ended March 31, | | | Ended March 31, | | | | | | | | | | |
| | 2013 | | | 2013 | | | Pro Forma Adjustments | | | Pro Forma | |
| | | | | | | | Dr | | | Cr. | | | Balances | |
| | (Unaudited) | | | (Unaudited) | | | | | | | | | (Unaudited) | |
| | | | | | | | | | | | | | | |
Net revenues | | $ | - | | | $ | 5,900,000 | | | $ | - | | | $ | - | | | $ | 5,900,000 | |
| | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
Operating Expenses: | | | | | | | | | | | | | | | | | | | | |
Cost of revenues | | | - | | | | 3,032,681 | | | | - | | | | - | | | | 3,032,681 | |
Compensation and related taxes | | | 426,675 | | | | - | | | | - | | | | - | | | | 426,675 | |
Consulting fees | | | 45,224 | | | | - | | | | - | | | | - | | | | 45,224 | |
Professional fees | | | 158,472 | | | | - | | | | - | | | | - | | | | 158,472 | |
General and administrative expenses | | | 84,006 | | | | 1,626 | | | | - | | | | - | | | | 85,632 | |
| | | | | | | | | | | | | | | | | | | | |
Total Operating Expenses | | | 714,377 | | | | 3,034,307 | | | | - | | | | - | | | | 3,748,684 | |
| | | | | | | | | | | | | | | | | | | | |
Loss from Operations | | | (714,377 | ) | | | 2,865,693 | | | | - | | | | - | | | | 2,151,316 | |
| | | | | | | | | | | | | | | | | | | | |
Other Income (Expense) | | | | | | | | | | | | | | | | | | | | |
Interest income | | | 291 | | | | - | | | | - | | | | - | | | | 291 | |
Interest expense | | | (230 | ) | | | - | | | | - | | | | - | | | | (230 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total Other (Expense) - net | | | 61 | | | | - | | | | - | | | | - | | | | 61 | |
| | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations before provision for income taxes | | | (714,316 | ) | | | 2,865,693 | | | | - | | | | - | | | | 2,151,377 | |
| | | | | | | | | | | | | | | | | | | | |
Provision for income taxes | | | - | | | | - | | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations | | | (714,316 | ) | | | 2,865,693 | | | | - | | | | - | | | | 2,151,377 | |
| | | | | | | | | | | | | | | | | | | | |
Discontinued operations: | | | | | | | | | | | | | | | | | | | | |
Gain (loss) from discontinued operations, net of tax | | | 108,780 | | | | - | | | | - | | | | - | | | | 108,780 | |
| | | | | | | | | | | | | | | | | | | | |
Net loss | | | (605,536 | ) | | | 2,865,693 | | | | - | | | | - | | | | 2,260,157 | |
| | | | | | | | | | | | | | | | | | | | |
Less: Net loss attributable to non-controlling interest | | | - | | | | - | | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | | | | | | | | |
Net loss attributable to Marathon Patent Group, Inc. | | $ | (605,536 | ) | | $ | 2,865,693 | | | $ | - | | | $ | - | | | $ | 2,260,157 | |
| | | | | | | | | | | | | | | | | | | | |
Loss per common share, basic and diluted: | | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations | | $ | (0.02 | ) | | | | | | | | | | | | | | $ | 0.05 | |
Loss from discontinued operations | | | 0.00 | | | | | | | | | | | | | | | | 0.00 | |
| | $ | (0.02 | ) | | | | | | | | | | | | | | $ | 0.05 | |
| | | | | | | | | | | | | | | | | | | | |
Weighted average shares outstanding: | | | | | | | | | | | | | | | | | | | | |
Basic and Diluted | | | 45,546,345 | | | | | | | | | | | | | | | | 45,546,345 | |
See accompanying notes to unaudited pro forma combined financial statements.
F-3
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
| | Marathon Patent Group, Inc. | | | | | | | | | | | | | |
| | and Subsidiaries | | | CyberFone Systems, LLC | | | | | | | | | | |
| | | | | | | | | | | | | | | |
| | For the Year | | | For the Year | | | | | | | | | | |
| | Ended December 31, | | | Ended December 31, | | | | | | | | | | |
| | 2012 | | | 2012 | | | Pro Forma Adjustments | | | Pro Forma | |
| | | | | | | | Dr | | | Cr. | | | Balances | |
| | (Unaudited) | | | (Unaudited) | | | | | | | | | (Unaudited) | |
| | | | | | | | | | | | | | | |
Net revenues | | $ | - | | | $ | 8,184,950 | | | $ | - | | | $ | - | | | $ | 8,184,950 | |
| | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
Operating Expenses: | | | | | | | | | | | | | | | | | | | | |
Cost of revenues | | | - | | | | 5,006,426 | | | | - | | | | - | | | | 5,006,426 | |
Compensation and related taxes | | | 2,676,462 | | | | - | | | | - | | | | - | | | | 2,676,462 | |
Consulting fees | | | 2,042,144 | | | | - | | | | - | | | | - | | | | 2,042,144 | |
Professional fees | | | 510,112 | | | | - | | | | - | | | | - | | | | 510,112 | |
General and administrative expenses | | | 312,244 | | | | 13,786 | | | | - | | | | - | | | | 326,030 | |
| | | | | | | | | | | | | | | | | | | | |
Total Operating Expenses | | | 5,540,962 | | | | 5,020,212 | | | | - | | | | - | | | | 10,561,174 | |
| | | | | | | | | | | | | | | | | | | | |
Loss from Operations | | | (5,540,962 | ) | | | 3,164,738 | | | | - | | | | - | | | | (2,376,224 | ) |
| | | | | | | | | | | | | | | | | | | | |
Other Income (Expense) | | | | | | | | | | | | | | | | | | | | |
Other income | | | 125,000 | | | | - | | | | | | | | | | | | 125,000 | |
Realized loss other than temporary decline - available for sale | | | (112,500 | ) | | | - | | | | | | | | | | | | (112,500 | ) |
Interest income | | | 978 | | | | - | | | | - | | | | - | | | | 978 | |
Interest expense | | | (153 | ) | | | - | | | | - | | | | - | | | | (153 | ) |
| | | | | | | | | | | | | | | | | | | | |
Total Other (Expense) - net | | | 13,325 | | | | - | | | | - | | | | - | | | | 13,325 | |
| | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations before provision for income taxes | | | (5,527,637 | ) | | | 3,164,738 | | | | - | | | | - | | | | (2,362,899 | ) |
| | | | | | | | | | | | | | | | | | | | |
Provision for income taxes | | | - | | | | - | | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations | | | (5,527,637 | ) | | | 3,164,738 | | | | - | | | | - | | | | (2,362,899 | ) |
| | | | | | | | | | | | | | | | | | | | |
Discontinued operations: | | | | | | | | | | | | | | | | | | | | |
Gain (loss) from discontinued operations, net of tax | | | (1,410,671 | ) | | | - | | | | - | | | | - | | | | (1,410,671 | ) |
| | | | | | | | | | | | | | | | | | | | |
Net loss | | | (6,938,308 | ) | | | 3,164,738 | | | | - | | | | - | | | | (3,773,570 | ) |
| | | | | | | | | | | | | | | | | | | | |
Less: Net loss attributable to non-controlling interest | | | 10,496 | | | | - | | | | - | | | | - | | | | 10,496 | |
| | | | | | | | | | | | | | | | | | | | |
Net loss attributable to Marathon Patent Group, Inc. | | $ | (6,927,812 | ) | | $ | 3,164,738 | | | $ | - | | | $ | - | | | $ | (3,763,074 | ) |
| | | | | | | | | | | | | | | | | | | | |
Loss per common share, basic and diluted: | | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations | | $ | (0.15 | ) | | | | | | | | | | | | | | $ | (0.07 | ) |
Loss from discontinued operations | | | (0.04 | ) | | | | | | | | | | | | | | | (0.04 | ) |
| | $ | (0.19 | ) | | | | | | | | | | | | | | $ | (0.11 | ) |
| | | | | | | | | | | | | | | | | | | | |
Weighted average shares outstanding: | | | | | | | | | | | | | | | | | | | | |
Basic and Diluted | | | 36,238,712 | | | | | | | | | | | | | | | | 36,238,712 | |
See accompanying notes to unaudited pro forma combined financial statements.
F-4
MARATHON PATENT GROUP, INC. AND SUBSIDIARIES
Notes to Unaudited Pro Forma Combined Financial Information
The following unaudited pro forma combined financial information is presented to illustrate the estimated effects of our acquisition of CyberFone Systems, LLC (“CyberFone Systems”). On April 22, 2013, CyberFone Acquisition Corp. (“Acquisition Corp.”), a Texas corporation and newly formed wholly owned subsidiary of the Company entered into a merger agreement (the “Agreement”) with CyberFone Systems, TechDev Holdings LLC (“TechDev”) and The Spangenberg Family Foundation for the Benefit of Children’s Healthcare and Education (“Spangenberg Foundation”). TechDev and Spangenberg Foundation owned 100% of the membership interests of CyberFone Systems (collectively, the “CyberFone Sellers”).
Pursuant to the terms of the Merger Agreement, CyberFone Systems merged with and into Acquisition Corp with CyberFone Systems surviving the merger as the wholly owned subsidiary of the Company (the “Merger”). In connection with the merger, the Company (i) issued 6,000,000 shares of common stock to the CyberFone Sellers (the “Merger Shares”), (ii) paid the CyberFone Sellers $500,000 cash and (iii) issued a $500,000 promissory note to TechDev (the “Note”). The Note is non-interest bearing and becomes due June 22, 2013, subject to acceleration in the event of default. The Company may prepay the Note at any time without premium or penalty. On June 21, 2013, we paid $500,000 to TechDev in satisfaction of the note. The transaction resulted in a business combination and caused CyberFone Systems to become a wholly-owned subsidiary of the Company. Pursuant to ASC 805 “Business Combinations”, the Company shall apply push–down accounting and adjust to fair value all of the assets and liabilities directly on the financial statements of the wholly-owned subsidiary, CyberFone Systems.
The Unaudited Pro Forma Combined Financial Information has been prepared using the purchase method of accounting for the CyberFone Systems acquisition. We have derived our historical financial data for the three months ended March 31, 2013 from our unaudited financial statements and our historical financial data for the year ended December 31, 2012. The unaudited pro forma combined balance sheet is prepared as though the transactions occurred at the close of business on March 31, 2013. The pro forma combined statement of operations gives effect to the transactions as though they occurred on January 1, 2012.
The information presented in the unaudited pro forma combined financial information does not purport to represent what our financial position would have been had the transaction occurred as of the dates indicated, nor is it indicative of our future financial position for any period. You should not rely on this information as being indicative of the historical results that would have been achieved had the companies always been consolidated or the future results that the consolidated company will experience after the transaction.
The pro forma adjustments are based upon available information and certain assumptions that we believe are reasonable under the circumstances. The unaudited pro forma combined financial information should be read in conjunction with the historical financial statements and related notes of the Company.
F-5
Unaudited pro forma adjustments reflect the following transaction:
1) | | |
| | |
Goodwill | 2,114,735 | |
Accounts payable and accrued expenses - CyberFone Systems | 319,774 | |
Retained earnings – CyberFone Systems | 4,105,698 | |
Cash | | 500,000 |
Note payable | | 500,000 |
Common stock, at par | | 600 |
Additional paid-in capital | | 2,279,400 |
Cash – CyberFone Systems | | 2,390,207 |
Accounts receivable – current portion- CyberFone Systems | | 690,000 |
Accounts receivable – long term portion- CyberFone Systems | | 180,000 |
This adjustment reflects the effect of applying purchase accounting to the acquisition of CyberFone Systems. In connection with the merger, the Company (i) issued 6,000,000 shares of common stock to the CyberFone Sellers, (ii) paid the CyberFone Sellers $500,000 cash and (iii) issued a $500,000 promissory note to TechDev. The Company valued these common shares at the fair market value on the date of grant at $0.38 per share or $2,280,000. In addition, the adjustment reflects the elimination of CyberFone System’s certain assets and liabilities as of March 31, 2013 not assumed by the Company on the date of acquisition on April 22, 2013.
F-6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
We are paying all of the selling stockholders’ expenses related to this offering, except that the selling stockholders will pay any applicable underwriting discounts and commissions. The fees and expenses payable by us in connection with this Registration Statement are estimated as follows:
Securities and Exchange Commission Registration Fee | | $ | 485.20 | |
Accounting Fees and Expenses | | | 5,000.00 | |
Legal Fees and Expenses | | | 50,000.00 | |
Miscellaneous Fees and Expenses | | | 0.00 | |
Total | | $ | 55,485.20 | |
Item 14. Indemnification of Directors and Officers.
Neither our articles of incorporation nor bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under the Nevada Revised Statute ("NRS"(“NRS”). NRS Section 78.7502, provides that a corporation may indemnify any director, officer, employee or agent of a corporation against expenses, including attorneys'attorneys’ fees, actually and reasonably incurred by him in connection with any defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.
NRS 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys'attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
NRS Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys'attorneys’ fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS Section 78.747 provides that except as otherwise provided by specific statute, no director or officer of a corporation is individually liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation. The court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby in the Securities Act and we will be governed by the final adjudication of such issue.
Item 15. Recent Sales of Unregistered Securities.
We completed an offering of 3,000,000 shares of our common stock at a price of $0.003 per share to 10 purchasers on July 5, 2010. The total amount received from this offering was $9,000. We completed this offering pursuant to Regulation S of the Securities Act.
We completed an offering of 2,550,000 shares of our common stock at a price of $0.005 per share to ten purchasers in September, 2010. The total amount received from this offering was $12,750. We completed this offering pursuant to Regulation S of the Securities Act.
On January 26, 2012, we entered into a Share Exchange Agreement (the “Amicor Exchange Agreement”) with Amicor and the shareholders of Amicor (the “Amicor Shareholders”). Upon closing of the transaction contemplated under the Amicor Exchange Agreement (the “Amicor Share Exchange”), on January 26, 2012, the Amicor Shareholders (nine persons) transferred all of the issued and outstanding capital stock of Amicor to us in exchange for an aggregate of 10,000,000 shares of our Common Stock. Such exchange caused Amicor to become our wholly-owned subsidiary. Additionally, as further consideration for entering into the Amicor Exchange Agreement, certain Amicor Shareholders received ten-year warrants to purchase an aggregate of 6,000,000 shares of our Common Stock with an exercise price of 0.50 per share (the “Amicor Share Exchange Warrants”). The Amicor Share Exchange Warrants are exercisable on a cashless basis after twelve months in the absence of an effective registration statement covering the resale of the shares of Common Stock underlying the Amicor Share Exchange Warrants. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.offering.
On January 26, 2012, contemporaneously with the Amicor Exchange Agreement, we also entered the Option Agreement with Pershing Gold Corporation, a Nevada corporation (“Pershing”), pursuant to which we obtained the option (the “Pershing Option”) to acquire certain uranium exploration rights and properties held by Pershing (the “Pershing Properties”). In consideration for issuance of the Pershing Option, we issued to Pershing (i) a $1,000,000 promissory note payable in installments upon satisfaction of certain conditions (the “Pershing Note”), expiring six months following issuance and (ii) 10,000,000 shares of our Common Stock. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On January 26, 2012, we entered into agreements with certain consultants, pursuant to which such consultants will provide services to us in consideration for which we issued the consultants warrants to purchase an aggregate of 3,500,000 shares of our common stock with an exercise price of $0.50 per share (“Consulting Warrants”). The Consulting Warrants have a term of ten years and are exercisable on a cashless basis after twelve months if the shares of Common Stock underlying the Consulting Warrants are not registered with the Securities and Exchange Commission. We also issued a ten-year to purchase an aggregate of 300,000 shares of Common Stock with an exercise price of $0.50 per share to another outside consultant which vests in three equal annual installments with the first installment vesting one year from the date of issuance (the “Additional Consulting Warrant”). The Additional Consulting Warrant is exercisable on a cashless basis after twelve months if the shares of Common Stock underlying the Additional Consulting Warrants are not registered with the Securities and Exchange Commission. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
Following the closing of the Amicor Share Exchange, we issued warrants to purchase an aggregate of 2,700,000 shares at an exercise price of $0.50 per share to Stuart Smith, David Rector, Joshua Bleak and George Glasier in consideration for their services as directors of the Company (“Director Warrants”). The Director Warrants have a term of ten years and are exercisable on a cashless basis after twelve months if the shares of common stock underlying the Director Warrants are not registered with the Securities and Exchange Commission. The Director Warrants issued to Stuart Smith, David Rector and Joshua Bleak vest in three equal installments over a period of three years with the first installment becoming exercisable one year from the original date of issuance of the Director Warrants. The Director Warrants issued to George Glasier are immediately exercisable. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On January 26, 2012, we entered into subscription agreements with certain investors whereby we sold an aggregate of 10,029,930 shares of our common stock at a per share price of $0.50 per share with gross proceeds of $5,014,965, which includes an aggregate of $100,000 advanced to Amicor for general working capital purposes prior to the closing of the Amicor Share Exchange which was converted into an aggregate of 200,000 shares of Common Stock in the private placement and an aggregate of $75,000 in debt owed by Amicor which was converted into an aggregate 150,000 shares of common stock in the private placement. On January 30, 2012, we sold an additional 600,000 shares of common stock in the Private Placement with gross proceeds to us of $300,000. The above referenced securities were offered and sold in reliance on the exemption from registration afforded by Section 4(2) and Regulation D (Rule 506) under the Securities Act and corresponding provisions of state securities laws.
On February 13, 2012 and February 14, 2012, we entered into subscription agreements with certain investors whereby we sold an aggregate of 860,000 shares of our common stock at a price of $0.50 per share with gross proceeds of $430,000. We used the proceeds as payment towards the outstanding principal balance of the promissory note issued to Pershing on January 26, 2012 in the principal amount of $1,000,000. The above referenced securities were offered and sold in reliance on the exemption from registration afforded by Section 4(2) and Regulation D (Rule 506) under the Securities Act and corresponding provisions of state securities laws.
In March 2012, we issued a total of 3,888,889 shares of common stock, including 1,166,667 shares of common stock issued to George Glasier, our former President and Chief Executive Officer, in connection with a cashless exercise of outstanding warrants originally issued on January 26, 2012. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering..offering .
On March 12, 2012 and March 22, 2012, we entered into subscription agreements with certain investors whereby we sold an aggregate of 440,000 shares of our common stock at a price of $0.50 per share with gross proceeds of $220,000. The above referenced securities were offered and sold in reliance on the exemption from registration afforded by Section 4(2) and Regulation D (Rule 506) under the Securities Act and corresponding provisions of state securities laws.
Between July 17, 2012 and August 27, 2012, we issued 605,940 shares of common stock as a result of the cashless exercise of outstanding warrants. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering..offering.
On November 14, 2012, we entered into a Share Exchange Agreement with Sampo and the members of Sampo. Upon closing of the transaction contemplated under the Exchange Agreement, on November 14, 2012, the Sampo Members (six members) transferred all of the issued and outstanding membership interests of Sampo to us in exchange for an aggregate of 9,250,000 shares of our Common Stock. Such exchange caused Sampo to become our wholly-owned subsidiary. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On November 14, 2012, under the terms of the employment agreement with Doug Croxall, our Chief Executive Officer and Chairman, we issued to Mr. Croxall a ten year option award to purchase an aggregate of 2,000,000 shares of the Company’s common stock with an exercise price of $0.50 per share, which shall vest in twenty-four (24) equal monthly installments on each monthly anniversary of the date of the employment agreement. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On November 14, 2012, we issued 1,000,000 shares of our common stock to C&H Capital, Inc. (“C&H”) pursuant to a consulting agreement with C&H The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
From December 2012 through March 2013, we sold an aggregate of 1,120,359 units with gross proceeds of $896,287.20 to certain accredited investors pursuant to a subscription agreement. Each unit was sold for a purchase price of $0.80 per unit and consists of: (i) two shares of our Common Stock and (ii) a five-year warrant to purchase an additional share of Common Stock at an exercise price of $0.60 per share, subject to adjustment upon the occurrence of certain events such as stock splits and dividends. The sale of units includes the conversion of unpaid salaries and certain outstanding amounts for unpaid fees and expenses into units at the per unit offering price totaling $123,287. The warrants may be exercised on a cashless basis. We paid placement agent fees of $5,000 in cash to a broker-dealer in connection with the sale of the units. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On January 28, 2013, we issued to our Chief Financial Officer and Secretary, Mr. John Stetson a ten (10) year option to purchase an aggregate of 500,000 shares of our common stock with an exercise price of $0.50 per share, subject to adjustment, which shall vest in three (3) equal annual installments on the beginning on the first annual anniversary of the date of his employment agreement. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On March 1, 2013, we issued to our then Chief Technology Officer, Mr. Nathaniel Bradley, and Chief Operating Officer, Mr. James Crawford, five (5) year stock options to purchase an aggregate of 1,500,000 shares of our common stock with an exercise price of the options is $0.85 which shall vest in twenty-four (24) equal installments on each monthly anniversary of March 1, 2013. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On March 8, 2013, we issued to our directors, Mr. Craig Nard and Mr. William Rosellini, five (5) year stock options to purchase an aggregate of 200,000 shares of common stock pursuant to the terms of their independent director agreements. The exercise price of the options is $0.50 per share and shall vest as follows: 33% the first anniversary hereof; 33% on the second anniversary and 34% on the third anniversary. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On April 22, 2013, CyberFone Acquisition Corp., entered into the CyberFone Merger Agreement with CyberFone Systems, TechDev and Spangenberg Foundation. Pursuant to the terms of the Merger Agreement, CyberFone Systems merged with and into CyberFone Acquisition Corp with CyberFone Systems surviving the merger as our wholly owned subsidiary. We (i) issued 6,000,000 shares of common stock to the CyberFone Sellers (the “CyberFone Merger Shares”), (ii) paid the CyberFone Sellers $500,000 cash and (iii) issued a $500,000 promissory note to TechDev (the “TechDev Note”). The TechDev Note is non-interest bearing and becomes due June 22, 2013, subject to acceleration in the event of default. We may prepay the TechDev Note at any time without premium or penalty. The transaction did not involve any underwriters, underwriting discounts or commissions, or any public offering. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On May 31, 2013, we sold an aggregate of 13,000,000 units representing gross proceeds of $5,200,000 to certain accredited investors pursuant to a securities purchase agreement. Each unit was subscribed for a purchase price of $0.40 per unit and consists of: (i) one share of our common stock, and (ii) a three (3) year warrant to purchase one half share of our common stock at an exercise price of $0.50 per share, subject to adjustment upon the occurrence of certain events such as stock splits and stock dividends and similar events. The warrants contain limitations on the holders’ ability to exercise the warrants in the event such exercise causes the holder to beneficially own in excess of 9.99% of our issued and outstanding common stock. We paid pay placement agent fees of $140,000 to two broker-dealers in connection with the sale of the units. The above referenced securities were offered and sold in reliance on the exemption from registration afforded by Section 4(2) and Regulation D (Rule 506) under the Securities Act and corresponding provisions of state securities laws.
On June 11, 2013, we issued options to purchase 2,300,000 shares of common stock and 1,250,000 shares of restricted stock to certain officers and directors. The options are exercisable at $0.4050 per share. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
On June 19, 2013, we issued options to purchase 800,000 shares of our common stock to certain employees, including 500,000 options to Mr. James Crawford, the Company'sCompany’s Chief Operating Officer. The stock options have an exercise price of $0.38 per share. The options issued to Mr. Crawford are conditioned upon the cancellation of the stock options granted to him on March 1, 2013 under his employment agreement. The issuance of these securities was deemed to be exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof, as a transaction by an issuer not involving a public offering.
Item 16. Exhibits and Financial Statement Schedules.
The following exhibits are filed as part of this Registration Statement.
Exhibit No. | Description |
3.1 | Amended and Restated Articles of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on December 9, 2011) |
3.2 | Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on December 9, 2011) |
3.3 | Certificate of Amendment to Articles of Incorporation (Incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on February 20, 2013) |
5.1 | Opinion of Sichenzia Ross Friedman Ference LLP** |
10.1 | Form of Option Agreement (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.2 | Form of Promissory Note (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on January 30, 2012) |
10.3 | Share Exchange Agreement (Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.4 | Form of Warrant (Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.5 | Agreement of Conveyance, Transfer and Assignment of Assets and Assumptions of Obligations (Incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.6 | Stock Purchase Agreement for Split-Off (Incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.7 | Form of Subscription Agreement (Incorporated by reference to Exhibit 10.7 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.8 | Employment Agreement between the Company and George Glasier (Incorporated by reference to Exhibit 10.7 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.9 | Form of Consulting Agreement (Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.10 | Form of Director Warrant (with vesting) (Incorporated by reference to Exhibit 10.10 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.11 | Form of Directors and Officers Indemnification Agreement (Incorporated by reference to Exhibit 10.11 to the Current Report on Form 8-K filed with the SEC on January 31, 2012) |
10.12 | Mining Lease Agreement by and between Kyle Kimmerle and the Company, dated November 2, 2011 (Incorporated by reference to Exhibit 10.12 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.13 | Mining Lease Agreement by and between Charles Kimmerle and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.13 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.14 | Mining Lease Agreement by and between Kimmerle Mining LLC and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.14 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.15 | Mining Lease Agreement by and among Kyle Kimmerle, David Kimmerle and Charles Kimmerle and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.15 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.16 | Mining Lease Agreement by and among Kyle Kimmerle, Kimmerle Mining LLC and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed with the SEC on March 16, 2011) |
10.17 | Mining Lease Agreement by and between David Kimmerle and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.17 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.18 | Mining Lease Agreement by and between B-Mining Company and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.18 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.19 | Mining Lease Agreement by and between Carla Rosas Zepeda and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.19 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.20 | Mining Lease Agreement by and between Andrews Mining LLC and the Company, dated November 2, 2011(Incorporated by reference to Exhibit 10.20 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.21 | Lease Assignment/Acceptance Agreement by and between Nuclear Energy Corporation LLC and the Company, dated December 28, 2011(Incorporated by reference to Exhibit 10.21 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.22 | Rental Agreement by and between the Company and Silver Hawk Ltd., dated January 1, 2012 (Incorporated by reference to Exhibit 10.22 to the Current Report on Form 8-K filed with the SEC on March 14, 2011) |
10.23 | Mining Claim & Lease Sale/Purchase Agreement (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 14, 2012) |
10.24 | Option Agreement for Purchase of Mining Claims (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 15, 2012) |
10.25 | Forms of Quitclaim Deed (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on March 15, 2012) |
10.26 | Agreement with California Gold Corp., dated March 19, 2012 (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2012) |
10.27 | Consulting Agreement, dated January 26, 2012 (Incorporated by reference to Exhibit 10.23 to the Current Report on Form 8-K filed with the SEC on April 10, 2012) |
10.28 | Amendment No. 1 to Option Agreement (Incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed with the SEC on May 15, 2012) |
10.29 | Amendment No. 2 to Option Agreement (Incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q filed with the SEC on May 15, 2012) |
10.30 | Rescission Agreement dated as of June 11, 2012 (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on June 15, 2012) |
10.31 | Assignment Agreement dated as of June 11, 2012 (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on June 15, 2012) |
10.32 | Employment Agreement between the Company and John Stetson dated August 3, 2012 (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on Augst 7, 2012) |
10.33 | Employment Agreement between the Company and Mark Groussman dated August 3, 2012 (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on Augst 7, 2012) |
10.34 | Share Exchange Agreement (Incorporated by reference to Exhibit 10.1 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on November 20, 2012) |
10.35 | Employment Agreement between the Company and Doug Croxall (Incorporated by reference to Exhibit 10.2 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on November 20, 2012) |
10.36 | Consulting Agreement with C&H Capital, Inc. (Incorporated by reference to Exhibit 10.3 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on November 20, 2012) |
10.37 | Form of Indemnification Agreement between the Company and Doug Croxall (Incorporated by reference to Exhibit 10.4 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on November 20, 2012) |
10.38 | Form of Subscription Agreement (Incorporated by reference to Exhibit 10.1 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on December 28, 2012) |
10.39 | Form of Warrant (Incorporated by reference to Exhibit 10.2 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on December 28, 2012) |
10.40 | Form of Registration Rights Agreement (Incorporated by reference to Exhibit 10.3 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on December 28, 2012) |
10.41 | Employment Agreement between the Company and John Stetson dated January 28, 2013 (Incorporated by reference to Exhibit 10.1 to the Company'sCompany’s Current Report on Form 8-K, filed with the SEC on January 29, 2013) |
10.42 | Employment Agreement between the Company and Nathaniel Bradley dated March 1, 2013 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on March 6, 2013) |
10.43 | Employment Agreement between the Company and James Crawford dated March 1, 2013 (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on March 6, 2013) |
10.44 | Independent Director Agreement between the Company and Craig Nard dated March 8, 2013 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on March 11, 2013) |
10.45 | Independent Director Agreement between the Company and William Rosellini dated March 8, 2013 (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on March 11, 2013) |
10.46 | Merger Agreement dated as of April 22, 2013 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on April 26, 2013) |
10.47 | Form of Promissory Note (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on April 26, 2013) |
10.48 | Form of Registration Rights Agreement (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed with the SEC on April 26, 2013) |
10.49 | License Agreement (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K, filed with the SEC on April 26, 2013) |
10.50 | Merger Agreement dated as of May 1, 2013 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on May 3, 2013) |
10.51 | Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 3, 2013) |
10.52 | Form of Warrant (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on June 3, 2013) |
10.53 | Form of Registration Rights Agreement (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed with the SEC on June 3, 2013) |
10.54 | Separation and Release Agreement between the Company and Nathaniel Bradley dated June 19, 2013 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 24, 2013) |
21.1 | List of Subsidiaries*Subsidiaries (Incorporated by reference to Exhibit 21.1 to the Company’s Registration Statement on Form S-1, filed with the SEC on June 25, 2013) |
23.1 | Consent of KBL LLP* |
23.2 | Consent of Sichenzia Ross Friedman Ference LLP (included in Exhibit 5.1)** |
EX-101.INS | XBRL Instance Document * |
EX-101.SCH | XBRLTaxonomy Extension Schema Document * |
EX-101.CAL | XBRL Taxonomy Extension Calculation Linkbase * |
EX-101.DEF | XBRL Taxonomy Extension Definition Linkbase * |
EX-101.LAB | XBRL Taxonomy Extension Labels Linkbase * |
EX-101.PRE | XBRL Taxonomy Extension Presentation Linkbase * |
* Filed herein.
**To be filed by amendment.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the undersigned registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424 (§ 230.424 of this chapter); |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
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| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
For the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§ 230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, on June 25,July 17 , 2013.
| MARATHON PATENT GROUP, INC. |
| |
By: | /s/ Doug Croxall |
| Name: Doug Croxall |
| Title: Chief Executive Officer and Chairman |
| (Principal Executive Officer) |
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By: | /s/ John Stetson |
| Name: John Stetson |
| Title: Chief Financial Officer, Secretary and Director |
| (Principal Financial and Accounting Officer) |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of Marathon Parent Group, Inc., a Nevada corporation that is filing a registration statement on Form S-1 with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, hereby constitute and appoint Doug Croxall their true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to the registration statement, including a prospectus or an amended prospectus therein, and all other documents in connection therewith to be filed with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all interests and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney. In accordance with the requirements of the Securities Act of 1933, as amended, this registration statement was signed by the following persons in the capacities and on the dates stated:
Signature | | Title | | Date |
| | | | |
/s/ Doug Croxall | | Chief Executive Officer and Chairman (Principal Executive Officer) | | Date: June 25,July 17 , 2013 |
Doug Croxall | | | | |
| | | | |
/s/ John Stetson | | Chief Financial Officer ,Secretary and Director (Principal Financial and Accounting Officer) | | Date: June 25,July 17 , 2013 |
John Stetson | | | | |
| | | | |
/s/ Stuart Smith* | | Director | | Date: June 25,July 17 , 2013 |
Stuart Smith | | | | |
| | | | |
/s/ Craig Nard* | | Director | | Date: June 25,July 17 , 2013 |
Craig Nard | | | | |
| | | | |
/s/ William Rosellini* | | Director | | Date: June 25,July 17 , 2013 |
William Rosellini | | | | |
* Executed on July 17 , 2013 by Doug Croxall as attorney-in-fact under power of attorney granted in the Registration Statement previously filed on June 25, 2013.