RICHARDSON
& ASSOCIATES
ATTORNEYS AT LAW
- --------------------------------------------------------------------------------
December 3, 2009
VIA FACSIMILE & EDGAR
- ---------------------
(703) 813-6986
United States Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Attn: Larry Spirgel, Assistant Director
Mail Stop 3720
RE: MACHINETALKER, INC.
FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008
FILED JULY 15, 2009
FORM 10-Q FOR THE QUARTERLY PERIODS ENDED MARCH 31, 2009 AND JUNE 30,
2009
FILED SEPTEMBER 10, 2009 AND SEPTEMBER 24, 2009
FILE NO. 000-49805
-----------------------------------------------------------------------
Dear Mr. Spirgel:
We have received your comment letter addressed to Roland Bryan, Chief
Executive Officer of MachineTalker, Inc. (the "Company"), dated November 16,
2009, relating to the above referenced reports filed by the Company. Enclosed
with this letter is a copy of our amended Report on Form 10-KA for the fiscal
year ended December 31, 2008, our amended Report on Form 10-QA for the fiscal
quarter ended March 31, 2009, and our amended Report on Form 10-QA for the
fiscal quarter ended June 30, 2009, which are concurrently being filed with the
Securities and Exchange Commission. The following are responses to your comments
on the above referenced reports:
(I) Form 10-K for the Fiscal Year Ended December 31, 2008
Item 9A(T). Controls and Procedures, Page 36.
Evaluation of Disclosure Controls and Procedures, Page 36.
--------------------------------------------------------------
1. The Company has replaced "disclosure controls and
procedure: in the second paragraph under Management's
Annual Report on Internal Control over Financial
Reporting with "internal control of financial
reporting" in accordance with your comment.
(II) Form 10-K for the Fiscal Year Ended December 31, 2008
Item 9A(T) Controls and Procedures, page 36
Form 10-Q for the Quarterly Period Ended March 31, 2009
Form 10-Q for the Quarterly Period Ended June 30, 2009
Item 4T Controls and Procedures
--------------------------------------------------------------
1453 THIRD STREET PROMENADE, SUITE 315, SANTA MONICA, CALIFORNIA 90401
TELEPHONE (310) 393-9992 FACSIMILE (310) 393-2004
United States Securities and Exchange Commission
Attn: Larry Spirgel, Assistant Director
December 3, 2009
Page 2 of 2
2. The Company has amended its Reports on Form 10-QA for
the fiscal quarter ended March 31, 2009, Form 10-QA
for the fiscal quarter ended June 30, 2009, and Form
10-KA for the fiscal year ended December 31, 2008, to
indicate in Item 4T, Item 4T and Item 9T,
respectively, that management has concluded that the
Company's disclosure controls and procedures were not
effective for the periods covered by those reports
because the reports were not filed within the time
periods specified in the Commission's rules and
forms.
Please direct any additional correspondence that you may have to the
undersigned.
Very truly yours,
/s/ Richardson & Associates
Richardson & Associates
Mark J. Richardson
Cc: Roland Bryan, Chief Executive Officer
1453 THIRD STREET PROMENADE, SUITE 315, SANTA MONICA, CALIFORNIA 90401
TELEPHONE (310) 393-9992 FACSIMILE (310) 393-2004
MACHINETALKER, INC.
513 DE LA VINA STREET
SANTA BARBARA, CALIFORNIA 93101
TELEPHONE: (805) 957-1680
FACSIMILE: (805) 957-1740
- --------------------------------------------------------------------------------
December 3, 2009
VIA FACSIMILE & EDGAR
- ---------------------
(703) 813-6986
United States Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Attention: Larry Spirgel
RE: MACHINETALKER, INC.
Form 10-K for the Fiscal Year Ended December 31, 2008
Filed July 15, 2009
Form 10-Q for the Quarterly Periods Ended March 31, 2009 and
June 30, 2009
Filed September 10, 2009 and September 24, 2009
File No. 000-49805
--------------------------------------------------------------
Dear Mr. Spirgel:
In connection with responding to your letter to us dated November 16,
2009, we (the "Company") acknowledge the following:
1. We acknowledge that the Company is responsible for the
adequacy and accuracy of the disclosure in its filings with
the Securities and Exchange Commission ("SEC").
2. We acknowledge that SEC staff comments or changes to
disclosure in response to staff comments do not foreclose the
SEC from taking any action with respect to the Company's
filings.
3. We acknowledge that the Company may not assert SEC staff
comments as a defense in any proceeding initiated by the SEC
or any person under the federal securities laws of the United
States.
Please direct any additional correspondence that you may have to the
undersigned.
Very truly yours,
/s/ Roland Bryan
Roland Bryan, Chief Executive Officer of
MachineTalker, Inc.
FORM 10-KA
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: December 31, 2008
COMMISSION FILE NUMBER 000-49805
MACHINETALKER, INC.
------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 01-05922991
---------------------- ----------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
513 DE LA VINA STREET, SANTA BARBARA, CALIFORNIA 93101
------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(805) 957-1680
--------------
Registrant's telephone number, including area code
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NAME OF EACH EXCHANGE ON
TITLE OF EACH CLASS WHICH REGISTERED
--------------------- ------------------------
COMMON STOCK OTC
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 filed
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 if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K 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.
|X|
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 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 [___] Smaller reporting company [_X_]
(Do not check if a smaller
reporting company)
Indicate by check mark whether the Registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act).
Yes |_| No |X|
The aggregate market value of voting stock held by non-affiliates of
the registrant was approximately $1,025,725 as of March 31, 2009 (computed by
reference to the last sale price of a share of the registrant's Common Stock on
that date as reported by OTC Bulletin Board).
There were 181,976,793 shares outstanding of the registrant's Common
Stock as of May 31, 2009.
TABLE OF CONTENTS
PART II
ITEM 9A(T) Controls and Procedures 2
SIGNATURES 4
-1-
ITEM 9A(T). CONTROLS AND PROCEDURES
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
Disclosure controls and procedures are controls and other procedures
that are designed to ensure that information required to be disclosed by
MachineTalker is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Securities and Exchange
Commission. The Company's Chief Executive Officer and Chief Financial Officer is
responsible for establishing and maintaining controls and procedures for the
Company.
Management has evaluated the effectiveness of the Company's disclosure
controls and procedures as of December 31, 2008 (under the supervision and with
the participation of the Company's Chief Executive Officer and Chief Financial
Officer) pursuant to Rule 13a-15(e) under the Securities Exchange Act of 1934,
as amended. As part of such evaluation, management considered the matters
discussed below relating to internal control over financial reporting. Based on
this evaluation, the Company's Chief Executive Officer and Chief Financial
Officer has concluded that the disclosure controls and procedures were not
effective as of December 31, 2008 because the Company was late in making the
filing of its annual report on Form 10-K for the fiscal year ending December 31,
2008.
The term "internal control over financial reporting" is defined as a
process designed by, or under the supervision of, the registrant's principal
executive and principal financial officers, or persons performing similar
functions, and effected by the registrant's board of directors, management and
other personnel, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles and
includes those policies and procedures that:
o pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of the
assets of the registrant;
o provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles, and that receipts and
expenditures of the registrant are being made only in accordance with
authorizations of management and directors of the registrant; and
o provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the registrant's
assets that could have a material effect on the financial statements.
MANAGEMENT'S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company's management is responsible for establishing and
maintaining adequate internal control over financial reporting, (as defined in
Rule 13a-15(f) under the Securities Exchange Act of 1934). The Company's
internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes of accounting
principles generally accepted in the United States. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect
misstatements. Therefore, even those systems determined to be effective can
provide only reasonable assurance of achieving their control objectives.
Furthermore, projections of any evaluation of effectiveness to future periods
are subject to the risk that controls may become inadequate due to change in
conditions, or the degree of compliance with the policies or procedures may
deteriorate.
Under the supervision and with the participation of the Company's Chief
Executive Officer and Chief Financial Officer, the Company conducted an
evaluation of the effectiveness of its control over financial reporting as of
December 31, 2008. In making this assessment, management used the criteria set
-2-
forth by the Committee of Sponsoring Organizations of the Treadway Commission
("COSO") in internal control-integrated framework. Based on this evaluation, the
Company's Chairman, Chief Executive Officer, and Chief Financial Officer has
concluded that the internal control over financial reporting is effective.
AUDITOR'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
This annual report does not include an attestation report of the
Company's registered public accounting firm regarding internal control over
financial reporting. Management's report was not subject to attestation by the
Company's registered public accounting firm pursuant to temporary rules of the
Securities and Exchange Commission that permit the Company to provide only
management's report in this annual report.
CHANGES IN INTERNAL CONTROLS OVER FINANCIAL REPORTING
There have been no changes in the Company's internal control over
financial reporting that occurred during the Company's fiscal year that have
materially affected, or are reasonably likely to materially affect, the
Company's internal control over financial reporting. Prior to the fourth
quarter, MachineTalker completed procedures to achieve Sarbanes-Oxley 404
compliance, which were tested during and since the fourth quarter.
INHERENT LIMITATIONS ON EFFECTIVENESS OF CONTROLS
The Company's management does not expect that its disclosure controls
or its internal control over financial reporting will prevent or detect all
error and all fraud. A control system, no matter how well designed and operated,
can provide only reasonable, not absolute, assurance that the control system's
objectives will be met. The design of a control system must reflect the fact
that there are resource constraints, and the benefits of controls must be
considered relative to their costs. Further, because of the inherent limitations
in all control systems, no evaluation of controls can provide absolute assurance
that misstatements due to error or fraud will not occur or that all control
issues and instances of fraud, if any, within the Company have been detected.
These inherent limitations include the realities that judgments in decision
making can be faulty and that breakdowns can occur because of simple error or
mistake. Controls can also be circumvented by the individual acts of some
persons, by collusion of two or more people, or management override of the
controls. The design of any system of controls is based in part on certain
assumptions about the likelihood of future events, and there can be no assurance
that any design will succeed in achieving its stated goals under all potential
future conditions. Projections of any evaluation of controls effectiveness to
future periods are subject to risks. Over time, controls may become inadequate
because of changes in conditions or deterioration in the degree of compliance
with policies or procedures.
-3-
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: December 3, 2009 MACHINETALKER, INC.
By: /s/ Roland Bryan
--------------------------------------
Roland Bryan, Chairman of the Board, Chief
Executive Officer, President (Principal
Executive Officer), and Chief Financial
Officer (Chief Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
By: /s/ Roland Bryan Dated: December 3, 2009
-----------------------------------------------------
Roland Bryan, Chairman of the Board, Chief Executive
Officer, President (Principal Executive Officer), and
Chief Financial Officer (Chief Accounting Officer)
By: /s/ Mark J. Richardson Dated: December 3, 2009
----------------------------------------------------
Mark J. Richardson, Director
-4-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QA
(Mark One)
[ X ] QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For Quarterly Period Ended March 31, 2009
or
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the Transition period from _______________ to ______________
Commission File Number 000-49805
MACHINETALKER, INC.
------------------------------------------
(Name of registrant in its charter)
DELAWARE 01-05922991
-------- -----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
513 DE LA VINA STREET, SANTA BARBARA, CALIFORNIA 93101
---------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Issuer's telephone Number: (805) 957-1680
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 proceeding 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[__] No[_X_]
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 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 [___] Smaller reporting company [_X_]
(Do not check if a smaller
reporting company)
Indicate by check mark whether the Registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act).
Yes[__] No[_X_]
Indicate the number of shares outstanding of each of the issuer's
classes of common stock as of the latest practicable date.
The number of shares of registrant's common stock outstanding as of
September 1, 2009 was 181,976,793.
TABLE OF CONTENTS
ITEM 4T. CONTROLS AND PROCEDURES 2
PART II - OTHER INFORMATION
SIGNATURES 3
-1-
ITEM 4T. CONTROLS AND PROCEDURES.
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company is recorded,
processed, summarized, and reported within the time periods specified in the
rules and forms of the Securities and Exchange Commission.
Our management, under the direction of our Chief Executive Officer and
Principal Financial Officer, has evaluated the effectiveness of the design and
operation of our disclosure controls and procedures (as such terms are defined
in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of March 31, 2009.
As part of such evaluation, management considered the matters discussed below
relating to internal control over financial reporting. Based on this evaluation
our management, including the Company's Chief Executive Officer and Principal
Financial Officer, has concluded that the Company's disclosure controls and
procedures were not effective as of March 31, 2009 because the Company was late
in filing the original Quarterly Report on Form 10-Q for the Company's fiscal
quarter ended March 31, 2009.
INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company's Chief Executive Officer and Principal Financial Officer,
is responsible for establishing and maintaining adequate internal control over
financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Our
internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes of accounting
principles generally accepted in the United States. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect
misstatements. Therefore, even those systems determined to be effective can
provide only reasonable assurance of achieving their control objectives.
CHANGES IN INTERNAL CONTROLS OVER FINANCIAL REPORTING
There were no changes in the Company's internal control over financial
reporting identified in connection with the evaluation of it that occurred
during the quarter ended March 31, 2009 that materially affected or are
reasonably likely to materially affect the Company's internal control over
financial reporting.
-2-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
MACHINETALER, INC.
Dated: December 3, 2009 By: /s/Roland F. Bryan
---------------------------------------
Roland F. Bryan, Chairman of the Board and
Chief Executive Officer (Principal Executive
Officer)
Dated: December 3, 2009 By: /s/Roland F. Bryan
---------------------------------------
Roland F. Bryan, Chief Financial Officer
(Principal Financial Officer)
-3-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QA
(Mark One)
[ X ] QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For Quarterly Period Ended June 30, 2009
or
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the Transition period from _______________ to ______________
Commission File Number: 000-49805
MACHINETALKER, INC.
------------------------------------------
(Name of registrant in its charter)
DELAWARE 01-05922991
-------- -----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
513 DE LA VINA STREET, SANTA BARBARA, CALIFORNIA 93101
---------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Issuer's telephone Number: (805) 957-1680
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 proceeding 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[__] No[_X_]
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 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 [___] Smaller reporting company [_X_]
(Do not check if a smaller
reporting company)
Indicate by check mark whether the Registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act).
Yes[__] No[_X_]
Indicate the number of shares outstanding of each of the issuer's
classes of common stock as of the latest practicable date.
The number of shares of registrant's common stock outstanding as of September
18, 2009 was 181,976,794.
TABLE OF CONTENTS
PART I - FINANCIAL INFORMATION
ITEM 4T. CONTROLS AND PROCEDURES 2
SIGNATURES 3
-1-
ITEM 4T. CONTROLS AND PROCEDURES.
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company is recorded,
processed, summarized, and reported within the time periods specified in the
rules and forms of the Securities and Exchange Commission.
Our management, under the direction of our Chief Executive Officer and
Principal Financial Officer, has evaluated the effectiveness of the design and
operation of our disclosure controls and procedures (as such terms are defined
in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of June 30, 2009. As
part of such evaluation, management considered the matters discussed below
relating to internal control over financial reporting. Based on this evaluation
our management, including the Company's Chief Executive Officer and Principal
Financial Officer, has concluded that the Company's disclosure controls and
procedures were not effective as of June 30, 2009 because the Company was late
in filing the original Quarterly Report on Form 10-Q for the Company's fiscal
quarter ended June 30, 2009.
INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company's Chief Executive Officer and Principal Financial Officer,
is responsible for establishing and maintaining adequate internal control over
financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Our
internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes of accounting
principles generally accepted in the United States. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect
misstatements. Therefore, even those systems determined to be effective can
provide only reasonable assurance of achieving their control objectives.
CHANGES IN INTERNAL CONTROLS OVER FINANCIAL REPORTING
There were no changes in the Company's internal control over financial
reporting identified in connection with the evaluation of it that occurred
during the quarter ended June 30, 2009 that materially affected or are
reasonably likely to materially affect the Company's internal control over
financial reporting.
-2-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
MACHINETALKER, INC.
Dated: December 3, 2009 By: /s/Roland F. Bryan
--------------------------------------------
Roland F. Bryan, Chairman of the Board and
Chief Executive Officer (Principal Executive
Officer)
Dated: December 3, 2009 By: /s/ROland F. Bryan
--------------------------------------------
Roland F. Bryan, Chief Financial Officer
(Principal Financial Officer)
-3-