UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 3
(Mark One)
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
December 31, 2011 For the fiscal year ended: December 31, 2011
or
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 001-33074
BANKS.COM, INC.
(Exact name of registrant as specified in its charter)
| Florida | 59-3234205 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
425 Market Street, Suite 2200 San Francisco, California | 94105 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code: (415) 962-9700
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
| Common Stock, par value $.001 per share | OTCQB |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | x | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
The aggregate market value of the common stock, par value $.001 per share (“Common Stock”), held by non-affiliates of the registrant (assuming for these purposes, but without conceding that all executive officers, directors and greater than 5% shareholders are “affiliates” of the registrant) as of June 30, 2011 was approximately $1,342,952 based upon the last sale price for the Common Stock on the NYSE Amex on such date.
The number of shares of the registrant’s Common Stock outstanding as of March 30, 2012 was 26,003,009.
DOCUMENTS INCORPORATED BY REFERENCE
None
EXPLANATORY NOTE
Banks.com, Inc. (the “Company”) is filing this Amendment No. 3 on Form 10-K/A (the “Third Amendment”) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, filed with the Securities and Exchange Commission (the “SEC”) on March 30, 2012 (the “Original Filing”), to correct certain errors in the table, and introduction thereto, in the Section entitled “Audit and Non-Audit Fees” in Item 14 of Part III of Form 10-K, originally presented in Amendment No. 2 to the Original Filing, filed on Form 10-K/A with the SEC on April 30, 2012.
Pursuant to the rules of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) Rule 12b-15, the Company has also amended the Form 10-K to provide currently-dated certifications from the Company’s principal executive officer and principal financial officer, as required by Exchange Act Rule 13a-14(a) or Rule 15d-14(a), as adopted under Section 302 of the Sarbanes-Oxley Act of 2002, and Section 1350 of Title 18 of the United States Code, as adopted under Section 906 of the Sarbanes-Oxley Act of 2002.
Except for the items described in the first paragraph above, and the revised certifications, this Third Amendment does not modify or update any other items or disclosures contained in the Original Filing, or the Company’s previously filed Amendment No. 1 or Amendment No. 2 to the Original Filing, and does not reflect events occurring after the date of the Original Filing.
Item 14. | Principal Accountant Fees and Services | 1 | ||||
| PART IV | ||||||
Item 15. | Exhibits and Financial Statement Schedules | 3 | ||||
| SIGNATURES | ||||||
| Item 14. | Principal Accountant Fees and Services. |
AUDIT AND NON-AUDIT FEES
The following table sets forth the aggregate fees billed (a) by Burr Pilger Mayer, Inc. (“BPM”), our independent registered public accounting firm for the fiscal years ended December 31, 2011 and 2010, for professional audit services rendered by BPM for the audit of our annual financial statements for the years ended December 31, 2011 and 2010, (b) by BPM for other services provided by BPM for the years ended December 31, 2011 and 2010, and (c) by Hacker Johnson and Smith P.A. (“HJS”), our independent registered public accounting firm for the fiscal year ended December 31, 2009, for other services provided by HJS for the year ended December 31, 2010:
| Years Ended December 31, | ||||||||
| 2011 | 2010 | |||||||
Audit Fees | $ | 120,000 | $ | 120,000 | ||||
Audit-Related Fees(1) | — | 10,000 | ||||||
Tax Fees | 25,000 | 25,000 | ||||||
All Other Fees | — | — | ||||||
Total Fees Paid | $ | 145,000 | $ | 155,000 | ||||
| (1) | Represents fees for consent of HJS for inclusion of their audit opinion for fiscal 2009 in the Form 10-K for fiscal 2010. |
Audit Fees
Audit Fees consist of fees for the annual audit of our financial statements and for the review of our quarterly financial statements.
Audit-Related Fees
Audit-Related Fees consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements and are not reported under “Audit Fees.”
Tax Fees
Tax Fees consist of fees billed for professional services rendered for tax compliance, tax advice and tax planning.
All Other Fees
All Other Fees consist of fees for services other than the services reported above, including aggregate fees for services related to our acquisitions, registrations and compliance with Sarbanes-Oxley.
1
Pre-Approval Policies and Procedures
The Audit Committee pre-approves all services provided by our independent registered public accounting firm. Therefore, all services described above were pre-approved by the Audit Committee.
The Audit Committee’s policy is to pre-approve all audit and non-audit services provided by our independent registered public accounting firm. These services may include audit services, audit-related services, tax services and other services. Pre-approval for audit and non-audit related services in connection with our periodic reports is generally provided for up to one year and any pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. Pre-approval for all other services, including services related to registrations and acquisitions, is generally provided on a case-by case basis. The independent registered public accounting firm and management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval, and the fees for the services performed to date.
2
| Item 15. | Exhibits and Financial Statement Schedules. |
The following documents are filed as a part of this report:
3.Exhibits. See the Exhibit Index of the Original Filing and the exhibits listed in the Exhibit Index of this Third Amendment for a list of the exhibits being filed or furnished with, or incorporated by reference into this report.
3
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 1, 2012
| BANKS.COM, INC. | ||
| By: | /s/ DANIEL M. O’DONNELL | |
Daniel M. O’Donnell, President and Chief Executive Officer, and Duly Authorized Representative | ||
EXHIBIT INDEX
The following exhibits are included in this Third Amendment.
| Exhibit Number | Exhibit Description | |
| 31.1# | Certification by Principal Executive Officer and Principal Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
| 32.1# | Certification by Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted by Section 906 of the Sarbanes-Oxley Act of 2002 | |
| # | Filed herewith. |
