U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended September 30, 2005
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
POWERCHANNEL, INC.
(Exact name of small business issuer as specified in its charter)
Delaware 65-0952186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
16 North Main Street, Suite 395
New City, New York 10956
(Address of Principal Executive Offices)
(845)634-7979
(Issuer's telephone number)
(Former name, address and fiscal year, if changed since last report)
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the issuer was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes [X] No [
]
State the number of shares outstanding of each of the issuer's classes of common
equity, as of December 21, 2005: 26,669,829 shares of common stock outstanding,
$0.01 par value.
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act) Yes [X ] No [ ]
ITEM 1. FINANCIAL INFORMATION
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 2005
(Unaudited)
ASSETS
------
Current Assets:
Prepaid Consulting Fees $ 11,073
----------------
Total Current Assets 11,073
Property and Equipment, Net 15,690
----------------
$ 26,763
================
LIABILITIES AND STOCKHOLDERS' DEFICIT
-------------------------------------
Current Liabilities:
Accounts Payable $ 583,570
Accrued Liabilities 1,091,093
Convertible Notes Payable 44,305
Deposits Payable 70,000
Loan Payable - Other 55,061
----------------
Total Current Liabilities 1,844,029
----------------
Commitments and Contingencies
Minority Interest 630,398
----------------
Stockholders' Deficit:
Preferred Stock, Par Value $.01; Authorized 5,000,000 Shares,
Issued and Outstanding 0 Shares -
Common Stock, Par Value $.01; Authorized 95,000,000 Shares,
Issued and Outstanding 26,669,829 Shares 266,698
Additional Paid-In Capital 15,318,452
Common Stock to be Issued, 2,370,156 Shares 1,827,756
Deferred Stock-Based Compensation (203,787)
Accumulated Other Comprehensive Income 609,061
Deficit Accumulated in the Development Stage (20,265,844)
----------------
Total Stockholders' Deficit (2,447,664)
----------------
$ 26,763
================
The accompanying notes are an integral part of the financial statements.
2
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
For The Period
For the Three For the Nine August 10, 1998
Months Ended Months Ended (Inception)
September 30, September 30, To
------------------------ ----------------------- September 30,
2005 2004 2005 2004 2005
----------- ---------- ---------- ---------- ---------------
Revenues:
Gross License Fees - PowerChannel Europe, PLC $ - $ - - $ - $ 1,894,348
Expenses Reimbursed Pursuant to License Agreement - - - - (1,884,348)
----------- ---------- ---------- ---------- ---------------
Net License Income - - - - 10,000
Sales - Net (Returns of $84,420 for the Quarter Ended
June 30, 2004) - 37,500 3,305 185,866 277,724
Activation Fees - - - - 15,525
----------- ---------- ---------- ---------- ---------------
Total Revenues - 37,500 3,305 185,866 303,249
----------- ---------- ---------- ---------- ---------------
Costs and Expenses:
Cost of Sales - 15,000 260 151,462 167,709
Write-Down of Inventories 63,608 - 63,608 21,593 574,314
Selling, General and Administrative Expenses 56,441 467,408 353,858 1,443,455 8,099,576
Impairment Loss on Investment - - - - 573,887
Settlement of Debt - - - - 111,300
Equity-Based Compensation 340,879 982,969 1,011,523 4,692,530 8,712,290
Reversal of Equity Based Compensation Due to Cancellation and
Nullification of Contract - - - - (479,934)
----------- ---------- ---------- ---------- ---------------
Total Costs and Expenses 460,928 1,465,377 1,429,249 6,309,040 17,759,142
----------- ---------- ---------- ---------- ---------------
Loss Before Loss From Unconsolidated Affiliate
and Other Income (Expense) (460,928) (1,427,877) (1,425,944) (6,123,174) (17,455,893)
Loss from Unconsolidated Affiliate - - - (48,000) (2,636,913)
Minority Interest in Net Loss of Subsidiary 1,479 - 2,959 - 8,614
Interest Expense (1,994) (1,994) (6,005) (18,158) (181,652)
----------- ------------ ----------- ------------ ---------------
Net Loss $ (461,443) $(1,429,871)$(1,428,990) $(6,189,332) $(20,265,844)
=========== ============ =========== ============ ===============
Basic and Diluted Net Loss Per Share $ (.02) $ (.05) $ ( .05) $ ( .24)
=========== ============ =========== ============
Weighted Average Shares Outstanding - Basic and Diluted 26,669,829 26,669,829 26,669,829 25,288,737
=========== ============ =========== ============
Pro-Forma Net Loss Per Share (Basic and Diluted) $ (.02) $ (.05) $ (.03) $ (.23)
=========== ============ =========== ============
Pro-Forma Weighted Average Shares
Outstanding (Basic and Diluted) 29,039,985 29,039,985 29,039,985 27,456,422
=========== ============ =========== ============
The accompanying notes are an integral part of the financial statements.
3
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
For the Nine For The Period
Months Ended August 10, 1998
September 30, (Inception)
------------------------------ To
2005 2004 September 30, 2005
-------------- -------------- -------------------
Cash Flow From Operating Activities:
Net Loss $ (1,428,990) $ (6,189,332) $ (20,265,844)
Adjustments to Reconcile Net Loss to
Net Cash Used in Operating Activities:
Intrinsic Value of Beneficial Conversion Feature
of Convertible Notes - - 280,000
Equity-Based Compensation 1,011,523 4,692,530 8,331,808
Expense Recorded on Issuance of Common Stock
for Debt Settlement - - 111,300
Loss on Investment in PowerChannel Europe PLC - 48,000 2,328,587
Minority Interest in Net Loss of Subsidiary (2,959) - (8,614)
Reserve for Bad Debts - 68,376 110,831
Loss on Asset Disposal - - 20,456
Write-Down of Inventories 63,608 21,593 574,314
Depreciation 6,385 16,411 110,744
Impairment Loss on Investment in PowerChannel
Europe PLC - - 573,884
Change in Current Operating Assets and Liabilities:
(Increase) in Accounts Receivable - (129,831) (110,831)
(Increase) Decrease in Inventories 261 108,594 (574,314)
(Increase) Decrease in Prepaid Expenses 82,914 (116,311) (11,073)
(Increase) in Other Assets - (16,459) -
Increase (Decrease) in Due to PowerChannel Europe PLC,
Relating to Operations - (10,000) 639,632
Increase (Decrease) in Accounts Payable and Accrued
Liabilities 133,884 (106,320) 1,502,552
Increase in Deposits Payable - - 45,000
Other - - 13,509
-------------- -------------- -------------------
Net Cash (Used) in Operating Activities (133,374) (1,612,749) (6,328,059)
-------------- -------------- -------------------
Cash Flow From Investing Activities:
Purchase of Property and Equipment - (25,116) (146,890)
Net Liabilities Acquired in Reverse Merger, Net of Cash - - (16,851)
Advances to Related Party - (56,607) (64,935)
Repayments for Advances to Related Parties - 43,300 64,935
Loans to Related Party - - (278,027)
Repayments from Loans to Related Parties - - 278,027
Payments for PCE Stock - (40,000) (40,000)
-------------- -------------- -------------------
Net Cash (Used) in Investing Activities - (78,423) (203,741)
-------------- -------------- -------------------
The accompanying notes are an integral part of the financial statements.
4
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(Continued)
For the Nine For The Period
Months Ended August 10, 1998
September 30, (Inception)
------------------------------ To
2005 2004 September 30, 2005
-------------- -------------- -------------------
Cash Flow From Financing Activities:
Proceeds from Issuance of Common Stock - 2,187,500 3,832,864
Fees Paid on Sale of Common Stock - (265,000) (275,000)
Loans and Advances from Related Parties 71,138 - 2,844,212
Advances to Related Party - - (56,607)
Proceeds of Subscription Receivable - 300,000 -
Repayments of Advances to Related Party - - 43,300
Repayments of Loans and Advances from Related Parties (1,335) - (1,335)
Proceeds from Note Payable - - 112,000
Proceeds from Convertible Notes - - 280,000
Proceeds from Deposits Payable - 25,000 25,000
Proceeds from Loan Payable 55,061 - 55,061
Payments of Convertible Notes - (215,695) (215,695)
Payment of Note Payable - (112,000) (112,000)
-------------- -------------- -------------------
Net Cash Provided By Financing Activities 124,864 1,919,805 6,531,800
-------------- -------------- -------------------
Net Increase (Decrease) in Cash (8,510) 228,633 -
Cash - Beginning of Period 8,510 25,265 -
-------------- -------------- -------------------
Cash - End of Period $ - $ 253,898 $ -
============== ============== ===================
Supplemental Cash Flow Information:
Cash Paid For Interest $ - $ 94,753 $ 94,753
============== ============== ===================
Cash Paid For Income Taxes $ - $ - $ -
============== ============== ===================
Non-Cash Financing Activities:
Issuances of Common Stock as Fees for
Sales of Common Stock $ - $ - $ 10,500
============== ============== ===================
Issuance of Common Stock on Settlement of
Convertible Note Payable and Accrued Interest $ - $ - $ 25,200
============== ============== ===================
Deferred Stock-Based Compensation $ - $ 3,783,559 $ 7,280,243
============== ============== ===================
Issuance of Common Stock for Deferred Offering Costs $ - $ - $ 14,000
============== ============== ===================
Write-Off of Subscription Receivable $ - $ - $ 50,575
============== ============== ===================
Issuance of 250,000 Shares of Common Stock as Payment
for Accrued Salaries - Related Parties $ - $ 205,000 $ 205,000
============== ============== ===================
Issuance of 228,122 Shares of Common Stock as Payment
for Accrued Salaries and Fees $ - $ 187,060 $ 187,060
============== ============== ===================
Repayment of Advances to Related Party by Applying Accrued
Salaries $ - $ 13,307 $ 13,307
============== ============== ===================
The accompanying notes are an integral part of the financial statements.
5
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(Continued)
For The Period
For the Nine Months Ended August 10, 1998
September 30, (Inception)
------------------------------ To
2005 2004 September 30, 2005
-------------- -------------- -------------------
Issuance of 120,000 Shares of Common Stock as Payment for
Accrued Liabilities $ - $ 75,600 $ 75,600
============== ============== ===================
Issuance of 286,687 Shares of Common Stock as Consideration
for Purchase of PCE Shares from Related Parties $ - $ 77,455 $ 77,455
============== ============== ===================
Cancellation of 286,687 Shares of Common Stock by
Related Parties $ - $ 2,869 $ 2,869
============== ============== ===================
Additional Paid-In Capital Arising from Acquisition of PCE $ - $ 2,715,234 $ 1,407,300
============== ============== ===================
Payable on Purchase of PCE Stock $ - $ 14,898 $ 14,898
============== ============== ===================
Penalties Accrued and Charged Against Additional Paid-In
Capital Pursuant to Private Placement $ - $ 199,000 $ 298,500
============== ============== ===================
Minority Interest $ - $ 1,176,543 $ 639,012
============== ============== ===================
Conversion of Related Party Loans Payable into Contributed
Additional Paid-In Capital $ 69,803 $ - $ 69,803
============== ============== ===================
Conversion of Related Party Accrued Wages into Contributed
Additional Paid-In Capital $ 92,308 $ - $ 92,308
============== ============== ===================
The accompanying notes are an integral part of the financial statements.
6
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 - Basis of Presentation
---------------------
The accompanying unaudited condensed consolidated financial statements
include the accounts of PowerChannel, Inc. and its subsidiaries, which are both
wholly and majority owned. All significant inter-company accounts and
transactions have been eliminated in consolidation.
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with U.S. generally accepted accounting
principles for interim financial information and with instructions to Form
10-QSB. Accordingly, they do not include all of the information and footnotes
required by U.S. generally accepted accounting principles for complete financial
statements. In the opinion of the Company's management, the accompanying
consolidated financial statements reflect all adjustments (which include only
normal recurring adjustments) necessary to present fairly the consolidated
financial position and results of operations and cash flows for the periods
presented.
Results of operations for interim periods are not necessarily
indicative of the results of operations for a full year.
Certain items in these condensed consolidated financial statements
have been reclassified to conform to the current period presentation,
The condensed consolidated financial statements have been prepared on
a going concern basis, which contemplates the realization of assets and
satisfaction of liabilities in the normal course of business. The Company is a
development stage company and has incurred recurring losses from operations and
operating cash constraints that raises substantial doubt about the Company's
ability to continue as a going concern.
Our ultimate ability to continue as a going concern depends on the
market's acceptance of our products and our ability to raise additional funding
and to generate revenues, operating profits, and positive cash flow. We have an
urgent need for additional funding to provide near-term operating cash and
enable us to continue our operations and execute our plans to move toward
profitability. Although there can be no assurance, management believes that
future financings and additional sales that we hope to generate from our product
lines will be sufficient to allow us to continue in operation.
We have ceased our operations relating to the provision of low-cost
access to the Internet. We will attempt to locate and negotiate with a business
entity for the merger of that target business into our Company. In certain
instances, a target business may wish to become a subsidiary of our Company or
may wish to contribute assets to our Company rather than merge. No assurances
can be given that our Company will be successful in locating or negotiating with
any target business. If we are unsuccessful in merging or acquiring the assets
of a business entity we may cease all operations and all shareholders will lose
their investment in our stock.
7
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 2 - Property and Equipment
----------------------
Property and equipment consists of the following:
Office Equipment $ 85,949
Furniture and Fixtures 26,622
Leasehold Improvements 8,000
----------
120,571
Less: Accumulated Depreciation 104,881
----------
$ 15,690
==========
Depreciation expense amounted to $6,385 and $16,411 for the nine
months ended September 30, 2005 and 2004, respectively.
NOTE 3 - Related Party Transactions
--------------------------
Employment Agreement
--------------------
In February 2005, the Company extended its employment agreement with
its President and Chief Executive Officer for an additional year through
February 10, 2006. Effective as of July 1, 2005, pursuant to a settlement
agreement, this employment agreement was terminated. Compensation expense for
the nine months ended September 30, 2005 and September 30, 2004 was
approximately $80,000 and $166,000, respectively.
Advances from Related Party
---------------------------
Advances from related party represented funds advanced to the Company
by its President and Chief Executive Officer. Such advances were non-interest
bearing and had no specific repayment terms. At September 30, 2005 advances of
approximately $70,000 were converted into contributed additional paid-in capital
pursuant to a settlement agreement.
Accrued Liabilities
-------------------
Included in accrued liabilities were accrued wages owed to the
Company's President and Chief Executive Officer in the amount of approximately
$92,000. At September 30, 2005 such accrued wages were converted to contributed
additional paid-in capital pursuant to a settlement agreement.
NOTE 4 - Write-Down of Inventories
-------------------------
The Company has recognized a loss of $63,608 during the nine months
ended September 30, 2005 related to the write-down of its inventories to a net
realizable value of $0.
8
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 5 - Commitments and Contingencies
-----------------------------
Litigation
----------
Except for the following, the Company is currently not party to any
material legal proceedings.
In October 2003, a stockholder alleging investment fraud filed a claim
in the Civil Court of the City of New York seeking damages in the amount of
approximately $48,000.
In April 2003, a stockholder alleging investment fraud filed a claim
in the Supreme Court of Nassau County seeking damages in the amount of $25,000
plus interest. The plaintiff has withdrawn his claim but may commence this
action at a future point in time.
A stockholder has demanded the return of his $100,000 investment. The
Company intends to respond to this complaint shortly in the Supreme Court of the
State of New York, New York County.
In July 2004 the Company received a Notice of Motion seeking a default
judgment and attorneys' fees in connection with a complaint filed by AKW
Holdings, LLC against the Company in the Supreme Court of the State of New York
- - County of Rockland. AKW Holdings, LLC is seeking unpaid rents of approximately
$160,000 and attorneys' fees and interest. On April 19, 2005 an order and
judgment was filed in the Supreme Court of the State of New York - County of
Rockland against the Company in the amount of $199,676. The Company believes
this judgment is baseless and without merit and intends to vigorously defend
this lawsuit.
In December 2005, the Company received a Final Judgment against the
Company in the Miami-Dade County, Florida County Court in the amount of $13,277.
Such amount is included in accrued liabilities at September 30, 2005.
Antidilution Agreement
----------------------
Steven Lampert, the Company's President, entered into a Confidential
Antidilution Agreement dated July 1, 2003 with Michael Fasci, a former director
and officer of the Company. In consideration for Mr. Fasci agreeing to vote in
favor of the reverse merger the Company entered into in July 2003, Mr. Lampert
agreed to transfer to Mr. Fasci shares of his common stock in order for Mr.
Fasci's ownership would at all times be maintained at 10% of the outstanding
shares of the Company. The term of this agreement is for three years. As a
result, Mr. Lampert may be required to transfer all or a portion of his shares
to Mr. Fasci.
Lack of Insurance
-----------------
The Company, at September 30, 2005, did not maintain any liability
insurance, workers' compensation, or other forms of general insurance. Although
the Company is not aware of any claims resulting from absence of coverage, there
is no assurance that none exist.
Accrued Liabilities
-------------------
Included in accrued liabilities at September 30, 2005 are payroll
taxes payable of approximately $202,000 of which approximately $150,000 are
under federal tax liens. Such liens can result in enforcement action by the
Federal government to satisfy those liens.
9
POWERCHANNEL, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 5 - Commitments and Contingencies (Continued)
-----------------------------------------
Settlement Agreement
--------------------
On December 17, 2004 the Company entered into a settlement agreement
with a former consultant and other individuals. The settlement agreement calls
for, among other things, (1) the termination of certain consulting agreements
entered into between the Company and the former consultant on August 18, 2003
and December 12, 2003; (2) the termination of options for 1.5 million shares;
(3) the cancellation of 449,672 shares of common stock; (4) mutual general
releases; and (5) the cancellation of 699,672 shares of common stock.
Accordingly, the Company recorded a credit on the statement of
operations of $26,298 attributable to 2003 and $453,636 attributable to 2004
pertaining to the part of the consulting agreement relating to the stock option
cancellation for the year ended December 31, 2004.
Since the 449,672 and 699,672 shares of common stock have not yet been
returned to the Company for cancellation by the transfer agent, the effect of
the transaction has not been recognized for financial reporting purposes.
10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
BUSINESS SUMMARY
We have ceased our operations relating to the provision of low-cost access to
the Internet. We will attempt to locate and negotiate with a business entity
for the merger of that target business into our company. In certain instances,
a target business may wish to become a subsidiary of our company or may wish to
contribute assets to our company rather than merge. No assurances can be given
that our company will be successful in locating or negotiating with any target
business. If we are unsuccessful in merging or acquiring the assets of a
business entity we may cease all operations and all shareholders will lose their
investment in our stock.
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 2005 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
2004
REVENUES
During the nine months ended September 30, 2005 we had no sales. During the
nine months ended September 30, 2004, we had sales of $185,866, which is net of
returns of $84,420. The reason for the decrease in revenues was the cessation
of operations due to the lack of funding.
COSTS AND EXPENSES
Cost and expenses incurred for the nine months ended September 30, 2004,
aggregated $6,309,040 as compared to $1,429,249 for the nine months ended
September 30, 2005. Cost and expenses decreased by $4,879,791 for the nine
months ended September 30, 2005 when compared to the comparable period of the
prior year. This decrease resulted from the following:
- - Cost of sales of $151,462 during the nine months ended September 30,
2004 as compared to $260 for the nine months ended September 30, 2005;
- - write down of inventories of $21,593 during the nine months ended
September 30, 2004 as compared to $63,608 for the nine months ended
September 30, 2005, thereby reflecting a net relizable value of $0 as of
September 30, 2005;
- - selling, general and administrative expenses for the nine months ended
September 30, 2004 of $1,443,455, as compared to $353,858 during the nine
months ended September 30, 2005; and
- - stock based compensation in the amount of $4,692,530 during the nine
months ended September 30, 2004 as compared to $1,011,523 during the nine
months ended September 30, 2005.
NET LOSS
The net loss was $6,189,332 for the nine months ended September 30, 2004, as
compared to a net loss of $1,428,990 for the nine months ended September 30,
2005.
OFF-BALANCE SHEET ARRANGEMENTS
We had no off-balance sheet arrangements for the three months ending
September 30, 2005.
LIQUIDITY AND CAPITAL RESOURCES
FINANCIAL CONDITION
We generated no revenue during the nine months ended September 30, 2005.
Accordingly, we have ceased operations.
At September 30, 2005, we had total current assets of $11,073 and total
current liabilities of $1,844,029 resulting in a working capital deficit of
$1,832,956. In addition, we had a stockholders deficit of $2,447,664 at
September 30, 2005.
The Company is a development stage company that has a working capital deficit at
September 30, 2005 of $1,832,956 and for the period August 10, 1998 (inception)
to September 30, 2005 has incurred net losses aggregating $20,265,844. These
factors raise substantial doubt about the Company's ability to continue as a
going concern.
CAPITAL RESOURCES
We currently do not have any agreements or arrangements for financing. In
December 2005, we entered into an Agreement of Settlement with Steven Lampert,
an executive officer and director of the Company, pursuant to which Mr. Lampert
agreed to convert an aggregate amount of $162,111 of accrued wages and loans
payable into contributed additional paid in capital.
Since the merger in July 2003 through September 2005, our investors have
11
provided funding, net of expenses, of approximately $2,338,000 in cash, and
various parties have provided services valued at approximately $7,891,000, in
consideration for the issuance of securities issued or to be issued.
RELATED PARTY LOANS
During the quarter ended March 31, 2004, we made certain loans to the President
and CEO, aggregating $56,607. During this same period the loans were repaid
through the payment of cash in the amount of $43,300 and the application of
accrued salaries in the amount of $13,307. These loans made to Mr. Lampert
violate Section 402 of the Sarbanes Oxley Act of 2002. As a result, despite the
fact that such loans were repaid, our company and/or Mr. Lampert may be subject
to fines, sanctions and/or penalties. At this time, we are unable to determine
the amount of such fines, sanctions and/or penalties that may be incurred by our
company and/or Mr. Lampert. The purpose of such loan was for personal use.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
The accompanying discussion and analysis of our financial condition and results
of operations are based upon our consolidated financial statements, which have
been prepared in accordance with accounting principles generally accepted in the
United States of America ("US GAAP"). The preparation of these consolidated
financial statements requires us to make estimates and judgments that affect the
reported amounts of assets, liabilities, revenues and expenses, and related
disclosure of contingent assets and liabilities. These estimates form the basis
for making judgments about the carrying values of assets and liabilities that
are not readily apparent from other sources. We base our estimates and judgments
on historical experience and all available information. However, future events
are subject to change, and the best estimates and judgments routinely require
adjustment. US GAAP requires us to make estimates and judgments in several
areas, including those related to recording bad debt allowances, various
accruals (such as incentive compensation and restructuring costs), income taxes,
the useful lives of long-lived assets, such as property and equipment and
intangible assets, and potential losses from contingencies and litigation. We
believe the policies discussed below are the most critical to our consolidated
financial statements because they are affected significantly by management's
judgments, assumptions and estimates.
Accounts Receivable
- --------------------
Management determines the allowance for bad debts based on known troubled
accounts, historical experience, and other currently available evidence. The
Company has an allowance for bad debts of $110,831 at September 30, 2005.
Fair Value of Financial Instruments
- ---------------------------------------
The carrying amounts of cash, accounts payable, notes payable and other current
liabilities approximates fair value because of the immediate or short-term
maturity of these financial instruments.
Income Taxes
- ------------
The Company records deferred income taxes using the asset and liability method
as prescribed under the provisions of SFAS No. 109. Under the asset and
liability method, deferred tax assets and liabilities are recognized for the
expected future tax consequences of temporary differences between the financial
statement and income tax bases of the Company's assets and liabilities. An
allowance is recorded, based upon currently available information, when it is
more likely than not that any or all of the deferred tax assets will not be
realized. The provision for income taxes includes taxes currently payable, if
any, plus the net change during the year in deferred tax assets and liabilities
recorded by the Company.
Stock-Based Compensation
- -------------------------
As permitted under FAS No. 123, "Accounting for Stock-Based Compensation", the
Company has elected to follow Accounting Principles Board Opinion No. 25 (APB
No. 25), "Accounting for Stock Issued to Employees", and related interpretations
in accounting for stock-based awards to employees. Accordingly, compensation
cost for stock options and restricted stock grants is measured as the excess, if
any, of the market price of the Company's common stock at the date of grant over
the exercise price. Warrants and options issued to nonemployees are accounted
for using the fair value method of accounting as prescribed by FAS No. 123 and
Emerging Issues Task Force ("EITF") No. 96-18, "Accounting for Equity
Instruments That Are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods or Services". Compensation costs are amortized
in a manner consistent with Financial Accounting Standards Board Interpretation
No. 28 (FIN No. 28), "Accounting for Stock Appreciation Rights and Other
Variable Stock Option or Award Plans". The Company uses the Black-Scholes
option pricing model to value options, restricted stock grants and warrants
granted to nonemployees.
Basic and Diluted Earnings (Loss) Per Share
- -------------------------------------------------
Basic earnings (loss) per share is computed by dividing net income (loss) by the
weighted average number of shares of common stock outstanding during the period.
Because the Company is incurring losses, the effect of stock options and
warrants is antidilutive. Accordingly, the Company's presentation of diluted
net loss per share is the same as that of basic net loss per share.
12
Pro-forma weighted average shares outstanding includes the pro-forma issuance of
2,370,156 and 2,315,531 common shares at September 30, 2005 and September 30,
2004, respectively, reserved to be issued pending potential litigation (see Note
11 to Consolidated Financial Statements).
Use of Estimates
- ------------------
The preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosures 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 these estimates.
Recent Accounting Pronouncements
- ----------------------------------
In December 2004, the Financial Accounting Standards Board ("FASB") issued
Statement No. 123R ("SFAS 123R") "Share Based Payment," a revision of Statements
No. 123, "Accounting for Stock Based Compensation." This standard requires the
Company to measure the cost of employee services received in exchange for equity
awards based on grant date fair value of the awards. The Company is required to
adopt SFAS 123R effective January 1, 2006. The standard provides for a
prospective application. Under this method, the Company will begin recognizing
compensation cost for equity based compensation for all new or modified grants
after the date of adoption. In addition, the Company will recognize the unvested
portion of the grant date fair value of awards issued prior to the adoption
abased on the fair values previously calculated for disclosure purposes. At
December 31, 2004, the Company had no unvested options.
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities - an Interpretation of Accounting Research Bulletin
No. 51" ("FIN No. 46"). This interpretation provides guidance related to
identifying variable interest entities (previously known generally as special
purpose entities or SPEs) and determining whether such entities should be
consolidated. Certain disclosures are required when FIN No. 46 becomes effective
if it is reasonably possible that a company will consolidate or disclose
information about a variable interest entity when it initially applies FIN No.
46. This interpretation must be applied immediately to variable interest
entities created or obtained after January 31, 2003. For those variable interest
entities created or obtained on or before January 31, 2003, the Company must
apply the provisions of FIN No. 46 for the year ended December 31, 2003. FIN No.
46 did not have a significant impact on the Company's consolidated financial
position or results of operations.
On May 15, 2003, the FASB issued SFAS No. 150, "Accounting for Certain Financial
Instruments with Characteristics of both Liabilities and Equity," which
establishes standards for how financial instruments that have characteristics of
both liabilities and equity instruments should be classified on the balance
sheet. The requirements of SFAS No. 150 generally outline those financial
instruments that give the issuer a choice of settling an obligation with a
variable number of securities or settling an obligation with a transfer of
assets or any mandatory redeemable security should be classified as a liability
on the balance sheet. At December 31, 2004, the Company does not have any
instruments that are within the scope of SFAS No. 150.
RISK FACTORS
RISKS RELATED TO OUR BUSINESS
IF WE ARE UNABLE TO MERGE WITH A NEW BUSINESS, OUR STOCKHOLDERS WILL LOSE THEIR
ENTIRE INVESTMENT
Due to the cessation in business activity associated with our Intenet access
business, we will attempt to locate and negotiate with a business entity for the
merger of that target business into our company. In certain instances, a target
business may wish to become a subsidiary of our company or may wish to
contribute assets to our company rather than merge. No assurances can be given
that our company will be successful in locating or negotiating with any target
business. If we are unsuccessful in merging or acquiring the assets of a
business entity we may cease all operations and all shareholders will lose their
investment in our stock.
WE HAVE A HISTORY OF LOSSES SINCE OUR INCEPTION AND EXPECT TO INCUR LOSSES FOR
THE FORESEEABLE FUTURE.
For the nine months ended September 30, 2005 we incurred losses of $1,428,990
and $20,265,844 since inception. We have not had sales during the nine months
ended September 30, 2005. We have not yet achieved profitability and we can give
no assurances that we will achieve profitability within the foreseeable future
as we fund acquisitions, operating and capital expenditures in areas such as
establishment and expansion of markets, sales and marketing, operating equipment
and research and development. We cannot assure investors that we will ever
achieve or sustain profitability or that our operating losses will not increase
in the future.
OUR INDEPENDENT AUDITORS HAVE EXPRESSED SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO
CONTINUE AS A GOING CONCERN, WHICH MAY HINDER OUR ABILITY TO OBTAIN FUTURE
FINANCING.
For the year ended December 31, 2004, our independent auditors stated that our
financial statements for the year ended December 31, 2004 were prepared assuming
that we would continue as a going concern. Our ability to continue as a going
concern is an issue raised as a result of recurring losses from operations and
cash flow deficiencies from our inception. We continue to experience net losses.
Our ability to continue as a going concern is subject to our ability to generate
13
a profit and/or obtain necessary funding from outside sources, including
obtaining additional funding from the sale of our securities, increasing sales
or obtaining loans and grants from various financial institutions where
possible. Our continued net losses and stockholders' deficit increases the
difficulty in meeting such goals and there can be no assurances that such
methods will prove successful.
IN CONNECTION WITH THE FILING OF OUR FORM 10-KSB FOR THE YEAR ENDED DECEMBER 31,
2004, WE WERE UNABLE TO OBTAIN AN AUDIT REPORT ON OUR FINANCIAL STATEMENTS FOR
THE PERIOD COVERING AUGUST 10, 1998 (INCEPTION) TO DECEMBER 31, 2002, AND THE
INABILITY TO OBTAIN SUCH REPORT MAY AFFECT THE COMPANY' ABILITY TO PROVIDE THE
NECESSARY FINANCIAL INFORMATION REQUIRED TO MAINTAIN ITS STATUS AS A CURRENT
REPORTING ISSUER WHICH COULD RESULT IN THE COMPANY'S SECURITIES BEING DELISTED
FROM THE OVER THE COUNTER BULLETIN BOARD.
In connection with the filing of our Form 10-KSB for the year ended December 31,
2004, we were unable to obtain an audit report on our financial Statements for
the period covering August 10, 1998 (inception) to December 2002 from our
predecessor auditors, Yohalem Gillman & Company, LLP. The Company had previously
included such report in its prior filings, including its annual report on Form
10-KSB for the year ended December 31, 2003, as well as its registration
statement, as amended, on Form SB-2 (SEC file No. 333-112784). The Company
corresponded with the Securities and Exchange Commission regarding this issue
and was advised by the Commission that they would not object to the Company
presenting such information on an unaudited basis in its Form 10-KSB for the
year ended December 31, 2004. As a result, all required development stage
company financial statements and disclosures included in the Form 10-KSB,
pursuant to SFAS 7, covering the cumulative period from August 10, 1998
(inception) through December 31, 2004 was provided on an unaudited basis.
No assurance can be given that the Company will Commission will not object in
the future to the presentation of such information on an unaudited basis. Should
such information be required to be presented in future filings on an audited
basis, the failure to so provide such information may result in the Company
failing to maintain its status as a current reporting issuer which could result
in the Company's securities being delisted from the Over The Counter Bulletin
Board and/or the imposition of fines, sanctions and/or penalties.
OUR COMPANY AND/OR OUR PRESIDENT AND CEO MAY BE SUBJECT TO FINES, SANCTIONS
AND/OR PENALTIES OF AN INDETERMINABLE NATURE AS A RESULT OF VIOLATIONS OF THE
SARBANES-OXLEY ACT OF 2002 IN CONNECTION WITH LOANS MADE TO THE PRESIDENT AND
CEO.
During the quarter ended March 31, 2004, we made certain loans to Mr. Steven
Lampert, our President and CEO, aggregating $56,607. During this same period the
loans were repaid through the payment of cash in the amount of $43,300 and the
application of accrued salaries in the amount of $13,307. These loans made to
Mr. Lampert violate Section 402 of the Sarbanes Oxley Act of 2002. As a result,
despite the fact that such loans were repaid, our company and/or Mr. Lampert may
be subject to fines, sanctions and/or penalties. At this time, we are unable to
determine the amount of such fines, sanctions and/or penalties that may be
incurred by our company and/or Mr. Lampert. The purpose of such loan was for
personal use.
RISKS RELATED TO OUR STOCK
A FORMER CONSULTANT MAY BE ENTITLED TO RECEIVE 11.50% OF OUR COMPANY'S FULLY
DILUTED OUTSTANDING SHARES WHICH, IF WE ARE REQUIRED TO ISSUE THESE SHARES,
COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR FINANCIAL CONDITION AND RESULT IN
SUBSTANTIAL DILUTION TO OUR STOCKHOLDERS. FURTHER, WE WILL BE REQUIRED TO DEFEND
ANY ACTION BROUGHT BY THE CONSULTANT WHICH WILL RESULT IN SUBSTANTIAL EXPENSE TO
OUR COMPANY.
On June 23, 2003, we entered into an Engagement Letter which requires that we
issue to Knightsbridge Holdings LLC, or its designees, an amount of common stock
of our company, upon the closing of a merger/acquisition with a public company,
in an amount not less than 11.50% of the fully diluted shares of the post merger
company. The Engagement Letter further provides that such shares will have full
ratchet anti dilution provisions for the term of the Engagement Letter. We
believe that Knightsbridge failed to provide the consideration and services that
were contracted for, and, as a result, does not intend to issue any additional
shares to Knightsbridge. There can be no assurance that Knightsbridge will not
commence an action against us relating to its rights to receive the shares, or
if instituted, that such action will not be successful. Although we believe that
any action which may be commenced would be without merit, and we would
vigorously defend any such action, the cost of such litigation can be
substantial even if we were to prevail. Further, an unfavorable outcome could
have a material adverse effect on our revenues, profits, results of operations,
financial condition and future prospects.
THE ISSUANCE OF SHARES OF COMMON STOCK IN CONNECTION WITH THE CONVERSION OF
SERIES A CONVERTIBLE NOTES MAY HAVE NOT HAVE BEEN IN COMPLIANCE WITH CERTAIN
STATE AND FEDERAL SECURITIES LAWS AND ANY DAMAGES THAT WE MAY HAVE TO PAY AS A
RESULT OF SUCH ISSUANCE COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR REVENUES,
PROFITS, RESULTS OF OPERATIONS, FINANCIAL CONDITION AND FUTURE PROSPECTS.
On July 31, 2003, we entered into a Consulting Agreement pursuant to which we
engaged the consultant to provide certain advisory services for a one-year term,
for an aggregate fee of $250,000. In lieu of payment, the Consultant agreed to
accept in the form of a non-recourse assignment of $280,000 Series A Convertible
Notes. Following the execution and delivery of the Non-recourse Assignment, the
consultant or its assignees, converted $110,539 of the Series A Convertible
Notes into 855,000 shares of common stock. The issuance of the shares of common
stock in connection with the conversion of the Series A Convertible Notes may
not have been in compliance with certain state and federal securities laws due
to the fact that the consultant or its assignees, at the time of the conversion,
may not have been the lawful holder in due course of the notes by virtue of the
fact that the notes were assigned to them without the consent of the original
note holders. It should be noted that we subsequently settled with a majority of
the original note holders and we entered into a settlement with the consultant
whereby the remaining portion of the assigned note was cancelled.
In addition, any subsequent sale of the shares issuable upon conversion of the
14
notes, may have violated Rule 144 if the consultant sold the shares under Rule
144 and relied upon the holding period of the initial note holder to qualify for
such sale. As we have settled with the consultant, we do not plan to offer
rescission at this time. We are currently unable to determine the amount of
damages, if any, that it may incur as a result of this issuance, which include,
but are not limited to, damages that may result from the following
- - subsequent third party purchaser(s) of the shares that were resold by
the consultant and its assignees upon conversion of the Series A Notes,
and/or
- - other existing shareholders of our Company that may make a claim, on a
derivative basis, that these transactions and the shares issued, may have
resulted in a dilution of the value of their shareholdings.
The payment of damages could have a material adverse effect on our revenues,
profits, results of operations, financial condition and future prospects.
STEVEN LAMPERT, OUR SOLE OFFICER AND A DIRECTOR, ENTERED INTO AN AGREEMENT
WHEREBY HE MAY BE REQUIRED TO TRANSFER HIS SHARES OF COMMON STOCK OF OUR COMPANY
WHICH COULD RESULT IN A CHANGE IN CONTROL OF OUR COMPANY.
Steven Lampert has entered into a Confidential Antidilution Agreement dated July
1, 2003 with Michael Fasci, a former director and officer of our company. In
consideration for Mr. Fasci agreeing to vote in favor of the reverse merger, we
entered into in July 2003, Mr. Lampert agreed to transfer to Mr. Fasci shares of
his common stock so that Mr. Fasci's ownership would at all times be maintained
at 10% of the outstanding shares of our company. The term of this agreement is
for three years. As a result, Mr. Lampert may be required to transfer all or a
portion of his shares to Mr. Fasci. If Mr. Lampert is required to transfer all
or a portion of his shares this could result in a change in control and a change
in management.
WE HAVE ANTI-TAKEOVER PROVISIONS, WHICH COULD INHIBIT POTENTIAL INVESTORS OR
DELAY OR PREVENT A CHANGE OF CONTROL THAT MAY FAVOR YOU.
Some of the provisions of our certificate of incorporation, our bylaws and
Delaware law could, together or separately, discourage potential acquisition
proposals or delay or prevent a change in control. In particular, our board of
directors is authorized to issue up to 5,000,000 shares of preferred stock (less
any outstanding shares of preferred stock) with rights and privileges that might
be senior to our common stock, without the consent of the holders of the common
stock.
IF WE CANNOT OPERATE AS A GOING CONCERN, OUR STOCK PRICE WILL DECLINE AND YOU
MAY LOSE YOUR ENTIRE INVESTMENT.
Our auditors included an explanatory paragraph in their report on our financial
statements for the year ended December 31, 2004 which states that, due to
recurring losses from operations since inception of our company, there is
substantial doubt about our ability to continue as a going concern. Our
financial statements for the three months ended March 31, 2005 do not include
any adjustments that might result from our inability to continue as a going
concern. These adjustments could include additional liabilities and the
impairment of certain assets. If we had adjusted our financial statements for
these uncertainties, our operating results and financial condition would have
been materially and adversely affected.
OUR COMMON STOCK IS SUBJECT TO THE "PENNY STOCK" RULES OF THE SEC AND THE
TRADING MARKET IN OUR SECURITIES IS LIMITED, WHICH MAKES TRANSACTIONS IN OUR
STOCK CUMBERSOME AND MAY REDUCE THE VALUE OF AN INVESTMENT IN OUR STOCK.
The Securities and Exchange Commission has adopted Rule 15g-9 which establishes
the definition of a "penny stock," for the purposes relevant to us, as any
equity security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules require:
- - that a broker or dealer approve a person's account for transactions in
penny stocks; and
- - the broker or dealer receive from the investor a written agreement to
the transaction, setting forth the identity and quantity of the penny stock
to be purchased.
In order to approve a person's account for transactions in penny stocks, the
broker or dealer must:
- - obtain financial information and investment experience objectives of
the person; and
- - make a reasonable determination that the transactions in penny stocks
are suitable for that person and the person has sufficient knowledge and
experience in financial matters to be capable of evaluating the risks of
transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prescribed by the Commission relating to the penny
stock market, which, in highlight form:
- - sets forth the basis on which the broker or dealer made the
suitability determination; and
- - that the broker or dealer received a signed, written agreement from
the investor prior to the transaction.
Generally, brokers may be less willing to execute transactions in securities
subject to the "penny stock" rules. This may make it more difficult for
investors to dispose of our common stock and cause a decline in the market value
of our stock.
15
Disclosure also has to be made about the risks of investing in penny stocks in
both public offerings and in secondary trading and about the commissions payable
to both the broker-dealer and the registered representative, current quotations
for the securities and the rights and remedies available to an investor in cases
of fraud in penny stock transactions. Finally, monthly statements have to be
sent disclosing recent price information for the penny stock held in the account
and information on the limited market in penny stocks.
ITEM 3. CONTROLS AND PROCEDURES
a) Evaluation of Disclosure Controls and Procedures. As of the end of the period
covered by this report, we conducted an evaluation, under the supervision and
with the participation of our chief executive officer and chief financial
officer of our disclosure controls and procedures (as defined in Rule 13a-15(e)
and Rule 15d-15(e) of the Exchange Act). Based upon this evaluation, our chief
executive officer and chief financial officer concluded that our disclosure
controls and procedures are effective to ensure that information required to be
disclosed by us in the reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission's rules and forms.
(b) Changes in internal controls. There was no change in our internal controls
or in other factors that could affect these controls during our last fiscal
quarter that has materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
Except for the following, we are currently not a party to any material legal
proceedings.
- - In October 2003, a stockholder alleging investment fraud filed a claim
in the Civil Court of the City of New York seeking damages in the amount of
approximately $50,000;
- - In April 2003, a stockholder alleging investment fraud filed a claim
in the Supreme Court of Nassau County seeking damages in the amount of
$25,000 plus interest. The plaintiff has withdrawn his claim but may
commence this action at a future point in time;
- - In December 2004, a stockholder alleging investment fraud filed a
claim in the Supreme Court of the State of New York, County of New York
seeking damages in the amount of approximately $100,000;
- - On July 20, 2004, the Company filed a complaint In the Circuit Court
of the 11th Judicial Circuit in and for Miami-Dade County, Florida against
Knightsbridge Holdings, LLC, Advantage Fund I, LLC, Triple Crown Consulting
Co., Phoenix Capital Partners, LLC, Churchill Investments, Inc., Alyce B.
Schreiber, Robert Press, Benjamin Kaplan, Newbridge Securities Corporation
and Anslow & Jacklin, LLP, the Company's former attorneys. The Company is
seeking relief deemed appropriate by the court and to establish a
constructive trust over all securities held by the defendants and all
proceeds from the sale of such securities. The Company is also seeking to
rescind the Letter Agreement entered with Knightsbridge Holdings, LLC. In
its complaint, the Company alleged fraudulent inducement, breach of
contract, conspiracy and breach of fiduciary duty.
- - In July 2004 the Company received a Notice of Motion seeking a default
judgment and attorneys' fees in connection with a complaint filed by AKW
Holdings, LLC against the Company in the Supreme Court of the State of New
York - County of Rockland. AKW Holdings, LLC is seeking unpaid rents of
approximately $160,000 and attorneys' fees and interest. On April 19, 2005
an order and judgment was filed in the Supreme Court of the State of New
York - County of Rockland against the Company in the amount of $199,676.
The Company believes this judgment is baseless and without merit and
intends to vigorously defend this lawsuit.
- - In December 2005, the Company received a Final Judgment against the
Company in the Miami-Dade County, Florida County Court in the amount of
$13,276.53.
Management believes that the resolution of these claims will not have a material
effect on the financial position or results of operations of the Company.
ITEM 2. CHANGES IN SECURITIES.
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY NONE HOLDERS.
None
ITEM 5. OTHER INFORMATION.
In December 2005, we entered into an Agreement of Settlement with Steven
Lampert, an executive officer and director of the Company, pursuant to which Mr.
Lampert agreed to convert an aggregate amount of $162,111 of accrued wages and
loans payable into contributed additional paid in capital. Mr. Lampert also
agreed to terminate his employment agreement.
ITEM 6. EXHIBITS
Exhibit Number Description
- -------------- -----------
10.1 Agreement of Settlement entered by and between the
Company and Steven Lampert
31.1 Certification of CEO and CFO Pursuant to Section 302 of
the Sarbanes Oxley Act of 2002
32.1 Certification of CEO and CFO Pursuant to section 906 of
the Sarbanes Oxley Sarbanes Oxley Act of 2002
17
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed in its
behalf by the undersigned, thereunto duly authorized, on December 21, 2005.
POWERCHANNEL, INC.
Date: December 21, 2005 By: /s/ Steven Lampert
-------------------------
Steven Lampert
Chairman, CEO, CFO and
President
18