UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2008
OR
o | 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: 333-131651
BETAWAVE CORPORATION
(Exact name of registrant as specified in its charter)
Nevada | 20-2471683 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
706 Mission Street, 10th Floor, San Francisco, California | 94103 |
(Address of principal executive offices) | (Zip Code) |
(415) 738-8706
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
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 þ No
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 þ No
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.
þ Yes ¨ 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 (§ 229.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
¨ Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) 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. þ
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 þ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
¨ Yes þ No
The aggregate market value of the voting stock held by non-affiliates of the registrant, based on the last sales price on the OTC Bulletin Board of the National Association of Securities Dealers, Inc. (“NASD”) on June 30, 2008, was approximately $7,915,518. For purposes of this calculation, the registrant has assumed that only shares beneficially held by executive officers and directors of the registrant are deemed shares held by affiliates of the registrant. This assumption of affiliate status is not necessarily a conclusive determination of affiliate status for any other purpose.
The number of shares outstanding of the registrant’s common stock, $0.001 par value per share, as of July 16, 2009 was 29,229,284.
DOCUMENTS INCORPORATED BY REFERENCE
Documents incorporated by reference: None.
TABLE OF CONTENTS
Page | ||
PART IV | ||
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES. | 2 | |
SIGNATURES | S-1 | |
EXHIBIT INDEX |
1
EXPLANATORY NOTE
We are filing this Amendment No. 1 (this “Amendment No. 1”) to Betawave Corporation’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (the “2008 Form 10-K”), which was originally filed on March 31, 2009, for the sole purpose of re-filing Exhibit 10.12 in response to comments received from the staff of the Securities and Exchange Commission. No other revisions or amendments have been made to Item 15 or to any other portion of the 2008 Form 10-K. This Amendment No. 1 does not reflect events occurring after the date of the original filing of the 2008 Form 10-K or modify or update those disclosures that may have been affected by subsequent events. This Amendment No. 1 consists solely of the preceding cover page, this explanatory note, Item 15 (as amended), the signature page, Exhibit 10.12 and the certifications required to be filed as Exhibits 31.1 and 31.2 hereto.
PART IV
ITEM 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES. |
The exhibits filed as part of this Annual Report on Form 10-K are listed in the Exhibit Index immediately preceding such exhibits, which Exhibit Index is incorporated herein by reference.
2
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly authorized.
BETAWAVE CORPORATION | ||
By: | /s/ Matt Freeman | |
Matt Freeman | ||
Chief Executive Officer | ||
Date: July 23, 2009 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Matt Freeman | Chief Executive Officer and Director | July 23, 2009 | ||
Matt Freeman | (Principal Executive Officer) | |||
/s/ Tabreez Verjee | President and Director | July 21, 2009 | ||
Tabreez Verjee | ||||
/s/ Lennox L. Vernon | Chief Accounting Officer and Director of Operations | July 21, 2009 | ||
Lennox L. Vernon | (Principal Financial and Accounting Officer) | |||
* | Director | July 21, 2009 | ||
John Durham | ||||
* | Director | July 21, 2009 | ||
Michael Jung | ||||
* | Director | July 21, 2009 | ||
Richard Ling | ||||
* | Director | July 21, 2009 | ||
Mark Menell | ||||
* | Executive Chairman and Director | July 21, 2009 | ||
James Moloshok | ||||
* | Director | July 21, 2009 | ||
Riaz Valani |
*By: | /s/ Tabreez Verjee |
Tabreez Verjee | |
Attorney-in-Fact |
S-1
EXHIBIT INDEX
Exhibit No. | Description | Reference |
2.1 | Agreement and Plan of Merger and Reorganization, dated as of October 27, 2006, by and among the Registrant, GF Acquisition Corp., GoFish Technologies, Inc., ITD Acquisition Corp. and Internet Television Distribution Inc. | Incorporated by reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
3.1 | Amended and Restated Articles of Incorporation of the Registrant filed with the Nevada Secretary of State on December 12, 2008 | Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K dated December 12, 2008 filed with the Securities and Exchange Commission on December 18, 2008 (File No. 333-131651) |
3.2 | Certificate of Amendment to the Amended and Restated Articles of Incorporation of the Registrant filed with the Nevada Secretary of State on January 20, 2009 | Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K dated January 16, 2009 filed with the Securities and Exchange Commission on January 21, 2009 (File No. 333-131651) |
3.3 | Bylaws of the Registrant | Incorporated by reference to Exhibit 3.2 to Registrant’s Registration Statement on Form SB-2 filed with the Securities and Exchange Commission on February 7, 2006 (File No. 333-131651) |
3.4 | First Amendment to Bylaws of the Registrant | Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K dated December 3, 2008 filed with the Securities and Exchange Commission on December 9, 2008 (File No. 333-131651) |
4.1 | Form of Warrant of the Registrant issued in private offering completed October 27, 2006 | Incorporated by reference to Exhibit 4.1 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
4.2 | Purchase Agreement, dated as of June 7, 2007, by and among the Registrant and the investors identified on the signature pages thereto | Incorporated by referenced to Exhibit 4.1 to Registrant’s Current Report on Form 8-K dated June 7, 2007 filed with the Securities and Exchange Commission on June 8, 2007 (File No. 333-131651) |
4.3 | Registration Rights Agreement dated as of June 7, 2007, by and among the Registrant and the investors identified on the signature pages thereto | Incorporated by referenced to Exhibit 4.2 to Registrant’s Current Report on Form 8-K dated June 7, 2007 filed with the Securities and Exchange Commission on June 8, 2007 (File No. 333-131651) |
4.4 | Form of the June 2007 Notes | Incorporated by referenced to Exhibit 4.3 to Registrant’s Current Report on Form 8-K dated June 7, 2007 filed with the Securities and Exchange Commission on June 8, 2007 (File No. 333-131651) |
4.5 | Form of the June 2007 Warrants | Incorporated by referenced to Exhibit 4.4 to Registrant’s Current Report on Form 8-K dated June 7, 2007 filed with the Securities and Exchange Commission on June 8, 2007 (File No. 333-131651) |
4.6 | Subscription Agreement, dated as of April 18, 2008, by and among the Registrant and the subscribers identified on the signature page thereto | Incorporated by referenced to Exhibit 4.1 to Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 14, 2008 |
4.7 | Accession Agreement, dated as of June 30, 2008, by and among the Registrant and the subscribers identified on the signature page thereto | Incorporated by referenced to Exhibit 4.2 to Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 14, 2008 |
4.8 | Form of the 2008 Notes | Incorporated by referenced to Exhibit 4.3 to Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 14, 2008 |
4.9 | Form of the 2008 Warrants | Incorporated by referenced to Exhibit 4.4 to Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 14, 2008 |
4.10 | Certificate of Designation of Rights, Preferences, Privileges and Restrictions of Series A Preferred Stock of the Registrant | Incorporated by reference to Exhibit 4.1 to Registrant’s Current Report on Form 8-K dated December 3, 2008 filed with the Securities and Exchange Commission on December 9, 2008 (File No. 333- 131651) |
10.1 | Split Off Agreement, dated as of October 27, 2006, by and among the Registrant, Dianxiang Wu, Jianhua Xue, GoFish Technologies, Inc. and GF Leaseco, Inc. | Incorporated by reference to Exhibit 10.4 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
10.2† | Form of Indemnity Agreement by and between the Registrant and Outside Directors of the Registrant | Incorporated by reference to Exhibit 10.6 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
10.3† | 2006 Equity Incentive Plan | Incorporated by reference to Exhibit 10.7 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
10.4† | Form of Incentive Stock Option Agreement by and between the Registrant and participants under the 2006 Equity Incentive Plan | Incorporated by reference to Exhibit 10.8 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
10.5† | Form of Non-Qualified Stock Option Agreement by and between the Registrant and participants under the 2006 Equity Incentive Plan | Incorporated by reference to Exhibit 10.9 to Registrant’s Current Report on Form 8-K dated October 27, 2006 filed with the Securities and Exchange Commission on October 31, 2006 (File No. 333-131651) |
10.6† | Employment Agreement dated as of February 26, 2007 by and between the Registrant and Tabreez Verjee | Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K dated February 26, 2007 filed with the Securities and Exchange Commission on March 2, 2007 (File No. 333-131651) |
10.7† | Employment Agreement dated as of October 30, 2006 by and between the Registrant and Lennox L. Vernon | Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K dated October 30, 2006 filed with the Securities and Exchange Commission on November 3, 2006 (File No. 333-131651) |
10.8 | Separation Agreement and Mutual Release dated as of June 4, 2008, by and between the Registrant and Michael Downing | Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K dated June 4, 2008 filed with the Securities and Exchange Commission on June 9, 2008 (File No. 333-131651) |
10.9 | Independent Contractor Agreement dated as of June 4, 2008, by and between the Registrant and Michael Downing | Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K dated June 4, 2008 filed with the Securities and Exchange Commission on June 9, 2008 (File No. 333-131651) |
10.10† | 2007 Non-Qualified Stock Option Plan (as amended through February 5, 2008) | Incorporated by reference to Exhibit 10.29 to Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007 filed with the Securities and Exchange Commission on March 31, 2008 (File No. 333-131651) |
10.11* | Advertising Representation Agreement, dated as of December 10, 2007, between the Registrant and MiniClip | Incorporated by reference to Exhibit 10.30 to Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007 filed with the Securities and Exchange Commission on March 31, 2008 (File No. 333-131651) |
10.12* | Amendment to Advertising Representation Agreement, dated as of November 12, 2008, between the Registrant and MiniClip | Filed herewith |
10.13 | Stock and Warrant Issuance Agreement, dated as of December 10, 2007, between MiniClip Limited and the Registrant | Incorporated by reference to Exhibit 10.31 to Registrant’s Amendment to Annual Report on Form 10-KSB/A for the fiscal year ended December 31, 2007 filed with the Securities and Exchange Commission on April 1, 2008 (File No. 333-131651) |
10.14 | Stock Issuance and Participation Rights Agreement, dated as of December 12, 2007, between MTV Networks, a division of Viacom International Inc. and the Registrant | Incorporated by reference to Exhibit 10.31 to Registrant’s Amendment to Annual Report on Form 10-KSB/A for the fiscal year ended December 31, 2007 filed with the Securities and Exchange Commission on April 1, 2008 (File No. 333-131651) |
10.15† | Consulting Agreement, dated as of December 18, 2007, between the Registrant and James Moloshok | Incorporated by reference to Exhibit 10.33 to Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007 filed with the Securities and Exchange Commission on March 31, 2008 (File No. 333-131651) |
10.16† | 2008 Stock Incentive Plan | Incorporated by reference to Exhibit 10.4 to Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 9, 2008 |
10.17† | Form of Option Agreement by and between the Registrant and the participants under the 2008 Stock Incentive Plan | Incorporated by reference to Exhibit 10.23 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
10.18† | Employment Agreement dated as of June 5, 2008, by and between the Registrant and Matt Freeman | Incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 9, 2008 |
10.19 | Securities Purchase Agreement, dated as of December 3, 2008, by and among the Registrant and the investors listed on Schedules A-1, A-2 and A-3 thereto | Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K dated December 3, 2008 filed with the Securities and Exchange Commission on December 9, 2008 (File No. 333-131651) |
10.20 | Form of Warrant to Purchase Common Stock issued in private offering completed December 12, 2008 | Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K dated December 3, 2008 filed with the Securities and Exchange Commission on December 9, 2008 (File No. 333-131651) |
10.21 | Investors’ Rights Agreement, dated as of December 3, 2008, by and among the Registrant and the investors listed on Schedule A thereto | Incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K dated December 3, 2008 filed with the Securities and Exchange Commission on December 9, 2008 (File No. 333-131651) |
10.22 | Form of Lock-Up Agreement entered into by the Company pursuant to the Securities Purchase Agreement dated as of December 3, 2008, by and among the Registrant and the investors listed on Schedule A thereto | Incorporated by reference to Exhibit 10.28 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
10.23† | Employment Agreement dated as of December 3, 2008, by and between the Registrant and Matt Freeman | Incorporated by reference to Exhibit 10.29 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
10.24† | Amended and Restated Employment Agreement dated as of December 3, 2008, by and between the Registrant and Tabreez Verjee | Incorporated by reference to Exhibit 10.30 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
10.25† | Amended and Restated Employment Agreement dated as of December 10, 2008, by and between the Registrant and Lennox L. Vernon | Incorporated by reference to Exhibit 10.31 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
10.26† | Employment Agreement dated as of December 10, 2008, by and between the Registrant and James Moloshok | Incorporated by reference to Exhibit 10.32 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on February 13, 2009 (File No. 333-157352) |
21.1 | Subsidiaries of the Registrant | Incorporated by reference to Exhibit 21.1 to Amendment No. 2 to Registrant’s Registration Statement on Form SB-2 filed with the Securities and Exchange Commission on August 24, 2007 (File No. 333-142460) |
23.1 | Consent of Rowbotham and Company LLP | Previously filed |
24.1 | Power of Attorney (included on the signature page to this Annual Report on Form 10-K) | Previously filed |
31.1 | Certification of the Principal Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | Filed herewith |
31.2 | Certification of the Principal Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | Filed herewith |
32.1 | Certification of the Principal Executive Officer required by Rule 13a-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | Previously filed |
32.2 | Certification of the Principal Financial Officer required by Rule 13a-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | Previously filed |
† | Indicates management contract or compensatory plan. | |
* | Confidential treatment requested for certain portions of this exhibit, which portions are omitted and filed separately with the Securities and Exchange Commission. |