U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended August 31, 2009
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT
For the transition period from N/A to N/A
Commission File No. 333-136247
DoMark International, Inc.
(Name of small business issuer as specified in its charter)
Nevada 20-4647578
State of Incorporation IRS Employer Identification No.
3551 W Lake Mary Blvd, Ste 209
Lake Mary, FL 32746
(Address of principal executive offices)
877-700-7369
(Issuer's telephone number)
Securities registered under Section 12(b) of the Exchange Act:
None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, $0.0001 par value per share
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the Registrant was required
to file such reports) and (2) has been subject to such filing requirements for
the past 90 days: Yes [X] No [ ]
Indicate by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See definition of "accelerated
filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. (Check
one):
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 (ss.232.405 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 [X]
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Small Business Issuer [X]
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
Transitional Small Business Disclosure Format (check one): 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.
Class Outstanding at August 31, 2009
----- ------------------------------
Common stock, $0.001 par value 37,312,605
DOMARK INTERNATIONAL, INC.
INDEX TO FORM 10-Q FILING
FOR THE THREE MONTHS ENDED AUGUST 31, 2009
TABLE OF CONTENTS
PAGE
----
PART I - FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements (unaudited)
Condensed Consolidated Balance Sheets 3
Condensed Consolidated Statements of Income 5
Condensed Consolidated Statement of Cash Flows 6
Notes to Condensed Consolidated Financial Statements 7
Item 2. Management Discussion & Analysis of Financial Condition and
Results of Operations 13
Item 3 Quantitative and Qualitative Disclosures About Market Risk 17
Item 4. Controls and Procedures 17
PART II - OTHER INFORMATION
Item 1A. Legal Proceedings 18
Item 1B. Risk Factors 18
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 19
Item 3. Defaults Upon Senior Securities 19
Item 4. Submission of Matters to a Vote of Security Holders 19
Item 5 Other information 19
Item 6. Exhibits 19
2
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
DOMARK INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
As of August 31, 2009 and May 31, 2008
ASSETS
8/31/2009 5/31/2009
--------- ---------
CURRENT ASSETS
Cash $ 147,716 $ 24,451
Accounts Receivable 592,636 1,262,334
Loans and Notes Receivable 23,222 3,352
Prepaid Expenses 1,853 16,023
Inventory 569,874 534,355
---------- ----------
Total Current Assets 1,335,301 1,840,515
---------- ----------
FIXED ASSETS
Property & Equipment, Net 180,133 184,218
---------- ----------
Total Fixed Assets 180,133 184,218
---------- ----------
OTHER ASSETS
Deposits 4,708 6,608
Due From Affiliate 106,561 106,561
Prepaid Media -- 1,002,866
Investment in unconsolidated subsidiary -- --
Goodwill 96,900 2,746,900
---------- ----------
Total Other Assets 208,169 3,862,935
---------- ----------
TOTAL ASSETS $1,723,603 $5,887,668
========== ==========
The accompanying notes are an integral part of these financial statements.
3
DOMARK INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
As of August 31, 2009 and May 31, 2008
LIABILITIES AND STOCKHOLDERS' EQUITY
8/31/2009 5/31/2009
------------ ------------
CURRENT LIABILITIES
Accounts Payable and Accrued Expenses $ 433,219 $ 968,869
Payroll Liabilities 7,524 8,903
Due to Affiliate and Shareholder 100,064 44,000
Notes payable and Line of Credit 479,587 389,857
------------ ------------
Total Current Liabilities 1,020,394 1,411,629
------------ ------------
LONG-TERM LIABILITIES
Convertible Notes Payable -- --
Bond Payable -- --
------------ ------------
Total Long-Term Liabilities -- --
------------ ------------
TOTAL LIABILITIES 1,020,394 1,411,629
------------ ------------
MINORITY INTEREST IN SUBSIDIARY -- --
------------ ------------
STOCKHOLDERS' EQUITY
Convertible Preferred stock series A, $.001 par value,
Authorized: 2,000,000
Issued: None -- --
Common Stock
Authorized: 200,000,000
Issued: 141,695,383 and 8,500,000, respectively 30,056 141,695
Additional paid in capital 13,632,835 17,036,196
Common Stock subscribed, not issued -- --
Accumulated income/(deficit) (12,959,682) (12,701,852)
------------ ------------
Total Stockholders' Equity 703,209 4,476,039
------------ ------------
TOTAL LIABILITIES AND EQUITY $ 1,723,603 $ 5,887,668
============ ============
The accompanying notes are an integral part of these financial statements.
4
DOMARK INTERNATIONAL, INC.
STATEMENTS OF OPERATIONS
For the three months ending August 31, 2009 and 2008
THREE THREE
MONTHS MONTHS
8/31/2009 8/31/2008
------------ ------------
REVENUE $ 987,525 $ 452,336
COST OF SERVICES 810,342 360,079
------------ ------------
GROSS PROFIT OR (LOSS) 177,183 92,257
GENERAL AND ADMINISTRATIVE EXPENSES 288,286 1,013,747
IMPAIRMENT OF GOODWILL 100,000 --
------------ ------------
OPERATING INCOME/(LOSS) (211,103) (921,490)
INTEREST EXPENSE 6,727 37,878
IMPAIRMENT OF ASSET 40,000 --
------------ ------------
INCOME/(LOSS) BEFORE INCOME TAXES (257,830) (959,368)
PROVISION FOR INCOME TAXES
Federal -- --
State -- --
------------ ------------
CONSOLIDATED NET INCOME/(LOSS) $ (257,830) $ (959,368)
============ ============
EARNINGS (LOSS) PER SHARE, BASIC AND DILUTED $ (0.01) $ (0.05)
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING 30,055,789 18,051,352
The accompanying notes are an integral part of these financial statements.
4
DOMARK INTERNATIONAL, INC.
STATEMENTS OF CASH FLOWS
For the three months ending August 31, 2009 and 2008
THREE THREE
MONTHS MONTHS
8/31/2009 8/31/2008
----------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ (257,830) $ (959,368)
----------- -----------
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
ADJUSTMENTS FOR CHARGES NOT REQUIRING OUTLAY OF CASH:
Depreciation and Amortization 5,324 575
Impairment of Assets 40,000 --
Impairment of Goodwill 100,000
Common stock issued in a forward split -- 9,750
Common stock issued as compensation and for expenses -- 800,000
Cancellation of subscribed stock -- (2,812,300)
Common stock issued for assets -- 5,016,000
CHANGES IN OPERATING ASSETS AND LIABILITITES:
(Increase)/Decrease in Accounts Receivable 667,187 (1,362,574)
(Increase)/Decrease in Notes Receivable (21,211) --
(Increase)/Decrease in Inventory (32,773) (683,088)
(Increase)/Decrease Prepaid Exp and Other Current Assets 12,596 (1,058,156)
Deposits 1,900 (3,561)
Increase/(Decrease) in Notes Payable 102,500 443,111
Increase/(Decrease) in Accounts Payable (533,195) 720,207
Increase/(Decrease) in Accrued Expenses 2,001 30,192
----------- -----------
Total adjustments to net income 344,329 1,100,156
----------- -----------
Net cash provided by (used in) operating activities 86,499 140,788
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Cash Received/(Paid) Furniture & Equipment (1,239) (41,055)
----------- -----------
Net cash flows provided by (used in) investing activities (1,239) (41,055)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Repayment of Convertible notes -- 2,518
Cash Proceeds from stock issuance -- --
Cash Received/(Paid) from/(to) Affiliate 56,273 10,000
Cash Received/(Paid) on notes payable (18,268) --
----------- -----------
Net cash provided by (used in) financing activities 38,005 12,518
----------- -----------
CASH RECONCILIATION
Net increase (decrease) in cash and cash equivalents 123,265 112,251
Cash and cash equivalents - beginning balance 24,451 38,906
----------- -----------
CASH AND CASH EQUIVALENTS BALANCE END OF PERIOD $ 147,716 $ 151,157
=========== ===========
The accompanying notes are an integral part of these financial statements.
5
DOMARK INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THREE MONTHS ENDED AUGUST 31, 2009
NOTE 1 - DESCRIPTION OF BUSINESS
DOMARK INTERNATIONAL, INC. ("DoMark" or "Company") was incorporated under the
laws of the State of Nevada on March 30, 2006. The Company was formed to engage
in the acquisition and refinishing of aged furniture using exotic materials and
then reselling it through interior decorators, high-end consignment shops and
online sales. The Company abandoned its original business of exotic
furnituresales in May of 2008 and pursued the acquisition of entities to best
bring value to the company and its shareholders. We attempted to acquire
successfully operating subsidiaries and to deploy accounting, governance, risk
and compliance services, marketing, management and media assets to the
subsidiaries, to build the value of our Company during and subsequent to our
2009 operating period. These endeavors, mostly unsuccessful, further complicated
by litigation matters derived from our Victory Lane acquisition ( see legal )
have resulted in the rescissions of certain acquisitions. The Company is
reviewing its current business model in consideration of legal matters and is
seeking swift resolution in order to adequately pursue its business purpose.
NOTE 2 - GOING CONCERN
The accompanying financial statements have been prepared in conformity with
accounting principles generally accepted in the United States of America which
contemplate continuation of the Company as a going concern. The Company has
year-end losses from operations. During the year ended May 31, 2009 and 2008 the
Company incurred consolidated net losses of $13,825,546 and $1,422,478
respectively. Further, the Company has inadequate working capital to maintain or
develop its operations, and is dependent upon funds from private investors and
the support of certain stockholders.
These factors raise substantial doubt about the ability of the Company to
continue as a going concern. The financial statements do not include any
adjustments that might result from the outcome of these uncertainties. In this
regard, Management is planning to raise any necessary additional funds through
loans and additional sales of its common stock. There is no assurance that the
Company will be successful in raising additional capital.
NOTE 3 - BASIS OF PRESENTATION
INTERIM FINANCIAL STATEMENTS
The accompanying interim unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q and
Article 8 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In our opinion, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended August 31,
2009 are not necessarily indicative of the results that may be expected for the
year ending May 31, 2010. For further information, refer to the financial
statements and footnotes thereto included in our Form 10-K Report for the fiscal
year ended May 31, 2009.
6
NOTE 4 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
RECENT ACCOUNTING PRONOUNCEMENTS
DETERMINING WHETHER INSTRUMENTS GRANTED IN SHARE-BASED PAYMENT TRANSACTIONS ARE
PARTICIPATING SECURITIES
In June 2008, the FASB issued FSP Emerging Issues Task Force ("EITF") Issue No.
03-6-1, "Determining Whether Instruments Granted in Share-Based Payment
Transactions Are Participating Securities." The FSP addresses whether
instruments granted in share-based payment transactions are participating
securities prior to vesting and, therefore, need to be included in the earnings
allocation in computing earnings per share under the two-class method. The FSP
affects entities that accrue dividends on share-based payment awards during the
awards' service period when the dividends do not need to be returned if the
employees forfeit the award. This FSP is effective for fiscal years beginning
after December 15, 2008. The Company is currently assessing the impact of FSP
EITF 03-6-1 on its consolidated financial position and results of operations.
DETERMINING WHETHER AN INSTRUMENT (OR AN EMBEDDED FEATURE) IS INDEXED TO AN
ENTITY'S OWN STOCK
In June 2008, the FASB ratified EITF Issue No. 07-5, "Determining Whether an
Instrument (or an Embedded Feature) Is Indexed to an Entity's Own Stock" (EITF
07-5). EITF 07-5 provides that an entity should use a two step approach to
evaluate whether an equity-linked financial instrument (or embedded feature) is
indexed to its own stock, including evaluating the instrument's contingent
exercise and settlement provisions. It also clarifies on the impact of foreign
currency denominated strike prices and market-based employee stock option
valuation instruments on the evaluation. EITF 07-5 is effective for fiscal years
beginning after December 15, 2008. The Company is currently assessing the impact
of EITF 07-5 on its consolidated financial position and results of operations.
ACCOUNTING FOR CONVERTIBLE DEBT INSTRUMENTS THAT MAY BE SETTLED IN CASH UPON
CONVERSION ( INCLUDING PARTIAL CASH SETTLEMENT)
In May 2008, the FASB issued FSP Accounting Principles Board ("APB") Opinion No.
14-1, "Accounting for Convertible Debt Instruments That May Be Settled in Cash
upon Conversion (Including Partial Cash Settlement)." The FSP clarifies the
accounting for convertible debt instruments that may be settled in cash
(including partial cash settlement) upon conversion. The FSP requires issuers to
account separately for the liability and equity components of certain
convertible debt instruments in a manner that reflects the issuer's
nonconvertible debt (unsecured debt) borrowing rate when interest cost is
recognized. The FSP requires bifurcation of a component of the debt,
classification of that component in equity and the accretion of the resulting
discount on the debt to be recognized as part of interest expense in our
consolidated statement of operations. The FSP requires retrospective application
to the terms of instruments as they existed for all periods presented. The FSP
is effective as of January 1, 2009 and early adoption is not permitted. The
Company is currently evaluating the potential impact of FSP APB 14-1 upon its
consolidated financial statements.
7
THE HIERARCHY OF GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
In May 2008, the FASB issued SFAS No. 162, "The Hierarchy of Generally Accepted
Accounting Principles" (FAS No.162). SFAS No. 162 identifies the sources of
accounting principles and the framework for selecting the principles used in the
preparation of financial statements. SFAS No. 162 is effective 60 days following
the SEC's approval of the Public Company Accounting Oversight Board amendments
to AU Section 411, "The Meaning of Present Fairly in Conformity with Generally
Accepted Accounting Principles". The implementation of this standard will not
have a material impact on the Company's consolidated financial position and
results of operations.
DETERMINATION OF THE USEFUL LIFE OF INTANGIBLE ASSETS
In April 2008, the Financial Accounting Standards Board ("FASB") issued FASB
Staff Position on Financial Accounting Standard ("FSP FAS") No. 142-3,
"Determination of the Useful Life of Intangible Assets", which amends the
factors that should be considered in developing renewal or extension assumptions
used to determine the useful life of intangible assets under SFAS No. 142
"Goodwill and Other Intangible Assets". The intent of this FSP is to improve the
consistency between the useful life of a recognized intangible asset under SFAS
No. 142 and the period of the expected cash flows used to measure the fair value
of the asset under SFAS No. 141 (revised 2007) "Business Combinations" and other
U.S. generally accepted accounting principles. The Company is currently
evaluating the potential impact of FSP FAS No. 142-3 on its consolidated
financial statements.
DISCLOSURE ABOUT DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
In March 2008, the FASB issued SFAS No. 161, "Disclosure about Derivative
Instruments and Hedging Activities, an amendment of SFAS No. 133", (SFAS 161).
This statement requires that objectives for using derivative instruments be
disclosed in terms of underlying risk and accounting designation. The Company is
required to adopt SFAS No. 161 on January 1, 2009. The Company is currently
evaluating the potential impact of SFAS No. 161 on the Company's consolidated
financial statements.
DELAY IN EFFECTIVE DATE
In February 2008, the FASB issued FSP FAS No. 157-2, "Effective Date of FASB
Statement No. 157". This FSP delays the effective date of SFAS No. 157 for all
nonfinancial assets and nonfinancial liabilities, except those that are
recognized or disclosed at fair value on a recurring basis (at least annually)
to fiscal years beginning after November 15, 2008, and interim periods within
those fiscal years. The impact of adoption was not material to the Company's
consolidated financial condition or results of operations.
BUSINESS COMBINATIONS
In December 2007, the FASB issued SFAS No. 141(R) "Business Combinations" (SFAS
141(R)). This Statement replaces the original SFAS No. 141. This Statement
retains the fundamental requirements in SFAS No. 141 that the acquisition method
of accounting (which SFAS No. 141 called the PURCHASE METHOD) be used for all
business combinations and for an acquirer to be identified for each business
combination. The objective of SFAS No. 141(R) is to improve the relevance, and
8
comparability of the information that a reporting entity provides in its
financial reports about a business combination and its effects. To accomplish
that, SFAS No. 141(R) establishes principles and requirements for how the
acquirer:
a. Recognizes and measures in its financial statements the identifiable
assets acquired, the liabilities assumed, and any noncontrolling
interest in the acquiree.
b. Recognizes and measures the goodwill acquired in the business
combination or a gain from a bargain purchase.
c. Determines what information to disclose to enable users of the
financial statements to evaluate the nature and financial effects of
the business combination.
This Statement applies prospectively to business combinations for which the
acquisition date is on or after the beginning of the first annual reporting
period beginning on or after December 15, 2008 and may not be applied before
that date. The Company does not expect the effect that its adoption of SFAS No.
141(R) will have on its consolidated results of operations and financial
condition.
NONCONTROLLING INTERESTS IN CONSOLIDATED FINANCIAL STATEMENTS--AN AMENDMENT OF
ARB NO. 51
In December 2007, the FASB issued SFAS No. 160 "Noncontrolling Interests in
Consolidated Financial Statements - an amendment of ARB No. 51" (SFAS No. 160).
This Statement amends the original Accounting Review Board (ARB) No. 51
"Consolidated Financial Statements" to establish accounting and reporting
standards for the noncontrolling interest in a subsidiary and for the
deconsolidation of a subsidiary. It clarifies that a noncontrolling interest in
a subsidiary is an ownership interest in the consolidated entity that should be
reported as equity in the consolidated financial statements. This Statement is
effective for fiscal years and interim periods within those fiscal years,
beginning on or after December 15, 2008 and may not be applied before that date.
The does not expect the effect that its adoption of SFAS No. 160 will have on
its consolidated results of operations and financial condition.
PRINCIPLES OF CONSOLIDATION
The accompanying financial statements represent the consolidated financial
position and results of operations of the Company and include the accounts and
results of operations of the Company and its subsidiaries. The accompanying
financial statements include the active entity of DoMark International, Inc.,
Javaco, Inc., ECFO Corporation, and Executive Sports & Entertainment. The
Company has relied upon the guidance provided by Statements of Financial
Accounting Standards 94, 141(R) and 160.
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 disclosure of contingent assets and liabilities at the date of
the financial statements. These estimates and assumptions also affect the
reported amounts of revenues, costs and expenses during the reporting period.
Management evaluates these estimates and assumptions on a regular basis. Actual
results could differ from those estimates.
9
The primary management estimates included in these financial statements are the
impairment reserves applied to various long-lived assets, allowance for doubtful
accounts for gateway access fees and licensing fees, and the fair value of its
stock tendered in various non-monetary transactions.
RECLASSIFICATION
Certain prior period amounts have been reclassified to conform to current year
presentations.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with an original maturity of
three months or less to be cash equivalents. At May 31, 2009 and 2008, cash and
cash equivalents include cash on hand and cash in the bank.
PROPERTY AND EQUIPMENT
Property and equipment is recorded at cost and depreciated over the estimated
useful lives of the assets using principally the straight-line method. When
items are retired or otherwise disposed of, income is charged or credited for
the difference between net book value and proceeds realized thereon. Ordinary
maintenance and repairs are charged to expense as incurred, and replacements and
betterments are capitalized. The range of estimated useful lives used to
calculated depreciation for principal items of property and equipment are as
follow:
Depreciation/
Asset Category Amortization Period
-------------- -------------------
Computer Equipment 3 Years
Office equipment 5 Years
Vehicle 5 Years
Leasehold Improvements 15 Years
GOODWILL AND OTHER INTANGIBLE ASSETS
The Company adopted Statement of Financial Accounting Standard No.142, GOODWILL
AND OTHER INTANGIBLE ASSETS, effective July 1, 2002. As a result, the Company
discontinued amortization of goodwill, and instead annually evaluates the
carrying value of goodwill and other intangible assets for impairment, in
accordance with the provisions of SFAS No. 142. A reduction of the value of
goodwill is expensed as an impairment loss.
IMPAIRMENT OF LONG-LIVED ASSETS
In accordance with SFAS No. 144, long-lived assets, such as property, plant, and
equipment, and purchased intangibles, are reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable. Goodwill and other intangible assets are tested for
impairment annually. Recoverability of assets to be held and used is measured by
a comparison of the carrying amount of an asset to estimated undiscounted future
cash flows expected to be generated by the asset. If the carrying amount of an
asset exceeds its estimated future cash flows, an impairment charge is
recognized by the amount by which the carrying amount of the asset exceeds the
fair value of the asset.
10
CONCENTRATION OF CREDIT RISK
The Company maintains its operating cash balances in banks in Florida, Ohio and
Georgia. The Federal Depository Insurance Corporation (FDIC) insures accounts at
each institution up to $100,000.
Financial instruments that potentially subject the Company to concentrations of
credit risk are primarily trade accounts receivable. The trade accounts
receivable are due primarily from small business customers in numerous
geographical locations throughout the United States.
The Company estimates and provides an allowance for uncollectible accounts
receivable.
RECONCILING ADJUSTMENTS TO CASH FLOW
The Company is using the indirect method of reporting cash flow. Information
about all investing and financing activities of the Company that affect
recognized assets or liabilities but that do not result in cash receipts or cash
payments in the period are reported in the cash flow statement as adjustments
for charges not requiring outlay of cash and receipt of cash.
NOTE 5 - RECLASSIFICATIONS
Certain prior periods' balances have been reclassified to conform to the current
period's financial statement presentation. These reclassifications had no impact
on previously reported results of operations or stockholders' equity.
NOTE 6 - RELATED PARTY TRANSACTIONS
On August 12, 2009, the parties rescinded the Motivation Advantage transaction
and agreed to return any consideration issued.
On August 12, 2009, the parties rescinded the Crowley & Company transaction and
agreed to consider the stock issued as compensation for services rendered.
On August 12, 2009, Joseph Vittoria, resigned as a member of the Board of
Directors. There were no disagreements with Joseph Vittoria on any matter of
accounting principles or practices, financial statement disclosure or auditing
scope or procedure.
On August 13, 2009, Dr. Louis Corrnachia and Richard Smith resigned as members
of the Board of Directors. There were no disagreements with Louis Corrnachia or
Richard Smith, on any matter of accounting principles or practices, financial
statement disclosure or auditing scope or procedure.
On August 14, 2009, Greg Jaclin and Terry Carlson resigned as members of the
Board of Directors. There were no disagreements with Greg Jaclin or Terry
Carlson on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure.
11
On August 19, 2009, the parties rescinded the EGA transaction and agreed to
return any consideration issued.
On August 24, 2009, 310 Holdings, Inc.("310") and the company closed a
Securities Purchase Agreement whereby the 310 purchased 100% of the issued and
outstanding common shares of Javaco in exchange for $150,000 and the issuance of
2,500,000 shares of 310's common stock to Domark. We also entered into a
separate agreement and have assigned $9,997,134 of media credits in print and
radio to 310 Holdings in exchange for the issuance of 1,000,000 shares of 310
Holding's common stock.
On August 26, 2009, R. Thomas Kidd resigned as Chief Executive Officer and
President and as a member of the Board of Directors. There were no disagreements
with R. Thomas Kidd on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedure. R. Thomas Kidd
will remain in his position as Principal Financial Officer.
On August 26, 2009, in a Debt Settlement Agreement by and between the Company
and R. Thomas Kidd, any and all debt owed to Mr. Kidd for expenses, advances, or
loans has been settled. The Company agrees to pay Mr. Kidd $150,000 cash and
transfer 3.5 million shares of common stock of TRTN, OTCBB held by us.
Furthermore, the Company shall execute an assignment of all claims against
Victory Lane Financial Elite, et al as known or shall become known in the course
of the litigation entitled DOMK vs Victory Lane Elite, LLC, Costello, et al in
the US District Court, Middle District of Florida, and the case in Tattnall
County, Georgia. In addition, the parties shall execute an assignment of the
repurchase agreement entered into by and between the Company and TRTN, OTCBB.
Upon payment and assignment of TRTN shares and assignment of the Company's
claims, Mr. Kidd shall surrender 111,438,394 common shares of Domark, to be
returned to treasury and cancelled.
On August 26, 2009, Scott Sieck, a member of the Board of directors and Chief
Operating Officer, was appointed as our Chief Executive Officer.
On August 26,2009 the Company executed a Securities purchase agreement with R.
Thomas Kidd, whereby pursuant to the terms of the agreement, the Company agreed
to transfer its ownership of 100 Units of Victory lane LLC to R. Thomas Kidd in
exchange for 25 million shares of Domark common stock held by Mr. Kidd. The
trhansaction closed on October 15,2009, upon delivery to the Company of 25
million shares of common stock owned by Mr. Kidd.
The issuance of the securities above were effected in reliance on the exemptions
for private sales of securities not involving a public offering pursuant to in
Section 4(2) and Section 4(6) of the Securities Act.
On October 15, 2009, the Company entered into an agreement whereby the Company
and R Thomas Kidd settled outstanding debts to Mr. Kidd. Terms of the debt
settlement agreement relieved the Company of indebtedness to Mr. Kidd in the
amount of $16,491 in exchange for the transference of the website of Executive
Sports and Entertainment, Inc., representing ownership of that website, delivery
of the website framework for www.domarkinternational.com, the assignment of a
$100,000 promissory note payable to the Company, and assignment of all shares
related to MedQuest, Inc., a Nevada corporation formed by the Company in 2008.
12
NOTE 7 - ACCOUNTS RECEIVABLE
At the end of the three month period ending August 31, 2009, the Company's
accounts receivable balances are as follows:
Javaco $581,054
ECFO 11,582
--------
$592,636
========
NOTE 8 - GOODWILL AND OTHER INTANGIBLE ASSETS - Adoption of Statement 142
As of August 31, 2009
Gross Carrying Accumulated
Amount Amortization
------ ------------
Amortized intangible assets $ -- $ --
None -- --
-------- --------
Total $ -- $ --
======== ========
Unamortized intangible assets
Goodwill 96,900
--------
Total $ 96,900
========
The changes in the carrying amounts of goodwill for the year ended May 31, 2009
are as follows:
JAVACO ESE ECFO
----------- -------- ---------
Balance as of June 1, 2008 $ -- $ -- $ --
Goodwill acquired during year 4,348,750 69,900 408,000
Impairment Loss (2,698,750) -- (381,000)
Goodwill written off related
to sale of business unit -- -- --
----------- -------- ---------
Balance as of May 31, 2009 $ 1,650,000 $ 69,900 $ 27,000
=========== ======== =========
* JAVACO
The Company has adjusted the carrying amount of goodwill as of May 31, 2009
as a result of the subsequent sale of the Company's wholly owned subsidiary
on August 24, 2009. The amount of the impairment loss was determined by
adjusting the carrying amount to the quoted market price of the acquirer's
stock at the time of sale.
* ECFO
The Company has impaired the carrying amount of goodwill as of May 31, 2009
according to the guidance in FAS 142, GOODWILL AND OTHER INTANGIBLE ASSETS.
The amount of the impairment was determined by adjusting the carrying
amount to the present value of the reporting unit.
13
NOTE 9 - LIABILITIES
The Company is reporting loans and notes payable of $479,587. $478,737 reflects
the financing of operating capital in Javaco and $850 reflects the balance due
on a secured note payable in ECFO.
NOTE 10 - COMMITMENTS AND CONTINGENCIES
On April 13, 2009, the Company entered into a sponsorship agreement with
Executive Adventures, LLC. The Company has committed to $465,000 in total
sponsorship fees for the annual World Sailfish Championship events, for years
2009 - 2012. The agreement provides that the Company shall remit fees according
to the following payment schedule:
2009 Event 60,000 shares, due by April 14, 2009 *
2010 Event 105,000 net due January 15, 2010
2011 Event 110,000 net due January 15, 2011
2012 Event 115,000 net due January 15, 2012
- ----------
* On April 13, 2009, the Company issued 60,000 shares for a value of $120,000.
Terms of the Agreement include an option to pay stock shares in lieu of cash
payments based upon a mutually agreed upon arrangement that will be determined
on a yearly basis.
Due to the change in the business model of the Company, it is anticipated that
the company will terminate this agreement.
On May 13, 2009, we executed an Agreement for the Exchange of Common Stock with
Victory Lane LLC. Subsequent to closing, the Company has discovered certain
liabilities which were undisclosed at the time of closing. The amounts of those
liabilities are as follows:
* Legacy Development $3,157,000
* Executive Adventures 227,000
* Statewide Engineering 20,000
* Tattnall County 3,000
* Bob Barnard 140,000
* Davis Love Design 950,000
* Davis Love Design - Penalties 85,000
* Andrew Goggin 307,000
----------
TOTAL $4,889,000
==========
On August 10, 2009, the Company along with Victory Lane, LLC and R. Thomas Kidd
filed a lawsuit in the United States District Court, Middle District of Florida
Case Number 09-CV-1396-ORL-35-DAB against Victory Lane Financial Elite, LLC et
al, for the following causes of action: Fraud in the Inducement, Breach of
Contract, Rescission, Conspiracy, and Libel. The Company considers these
liabilities contingent until the court makes a ruling on the aforementioned
court case.
On August 10, 2009, the Company was made aware of an action filed in the
Superior Court of Tattnall County, Georgia, case number 2009-V-381-JS by Victory
Lane Financial Elite, LLC et al against the Company and its directors and
officers. The Company believes that the complaint is without merit and the
Company intends to defend said action and file substantial counterclaims against
Victory Lane Financial Elite, LLC, Patrick Costello and numerous other
defendants.
14
On September 25, 2009 the company amended its Case Number CV-1396-ORL-35-DAB
compliant to request certain complaints be heard in arbitration as called for in
the original acquisition agreement dated May 13, 2009. Both venues are
proceeding.
NOTE 11 - NET LOSS PER SHARE
Restricted shares and warrants are not included in the computation of the
weighted average number of shares outstanding during the periods. The net loss
per common share is calculated by dividing the consolidated loss by the weighted
average number of shares outstanding during the periods.
NOTE 12 - STOCKHOLDER'S EQUITY
Stock issued Stock issued
for Cash Cash Received for Assets
-------- ------------- ----------
Three months ended August 31, 2009 -- -- --
During the three months ended August 31, 2009, the Company cancelled 111,639,594
shares of its common stock as a result of rescissions of its subsidiaries and
debt settlements.
NOTE 13 - SUBSEQUENT EVENTS
On September 4, 2009, Richard Altmann resigned as member of the Board of
Directors.
On September 14, 2009, R. Thomas Kidd resigned as Principle Accounting Officer
of the Company to pursue other interests. Mr. Kidd has provided no written
disagreement with the Company on any matter related to the Company's operations,
policies or practices. Scott Sieck, our current Chief Executive Officer, has
been appointed as Principle Accounting Officer.
On September 18, 2009, Scott Sieck entered into an employment agreement with our
Company. The employment agreement provided that the Executive has agreed to
waive his compensation until such time as the Board of Directors determines the
Company has sufficient assets to repay the Executive or receive compensation in
equity and accepts from the corporation 100,000 shares it its authorized Series
"A" Preferred stock during the interim period. Subsequently, on September 21,
2009, Mr. Sieck choose to receive 100,000 shares of Series A Preferred Stock
which have a voting rights in all matters to be voted upon by shareholders of
common stock of 1,000 votes per share of Series A Preferred Stock.
On October 20, 2009, the Company executed an agreement to sell the stock of ECFO
Corporation back to ECFO's founding shareholder. Consideration for the 2000
shares of ECFO Corporation, representing all issued and outstanding shares of
ECFO Corporation, owned by the Company, is Ten Thousand Dollars ($10,000),
payable in the form of a one year promissory note. The transaction is a private
sale exempt from registration under Section 4(1) of the Securities Act of 1933,
as amended.
15
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Management's Discussion and Analysis contains various "forward looking
statements" within the meaning of Section 21E of the Securities Exchange Act of
1934, as amended, regarding future events or the future financial performance of
the Company that involve risks and uncertainties. Certain statements included in
this Form 10-QSB, including, without limitation, statements related to
anticipated cash flow sources and uses, and words including but not limited to
"anticipates", "believes", "plans", "expects", "future" and similar statements
or expressions, identify forward looking statements. Any forward-looking
statements herein are subject to certain risks and uncertainties in the
Company's business, including but not limited to, reliance on key customers and
competition in its markets, market demand, product performance, technological
developments, maintenance of relationships with key suppliers, difficulties of
hiring or retaining key personnel and any changes in current accounting rules,
all of which may be beyond the control of the Company. The Company adopted at
management's discretion, the most conservative recognition of revenue based on
the most astringent guidelines of the SEC in terms of recognition of software
licenses and recurring revenue. Management will elect additional changes to
revenue recognition to comply with the most conservative SEC recognition on a
forward going accrual basis as the model is replicated with other similar
markets (i.e. SBDC). The Company's actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including those set forth therein.
Forward-looking statements involve risks, uncertainties and other factors, which
may cause our actual results, performance or achievements to be materially
different from those expressed or implied by such forward-looking statements.
Factors and risks that could affect our results and achievements and cause them
to materially differ from those contained in the forward-looking statements
include those identified in the section titled "Risk Factors" in the Company's
Annual Report on Form 10-K for the transition period ended May 31, 2008, as well
as other factors that we are currently unable to identify or quantify, but that
may exist in the future.
In addition, the foregoing factors may affect generally our business, results of
operations and financial position. Forward-looking statements speak only as of
the date the statement was made. We do not undertake and specifically decline
any obligation to update any forward-looking statements.
RECENT DEVELOPMENTS
NONE
Revenues
ADDITIONAL INFORMATION
We file reports and other materials with the Securities and Exchange Commission.
These documents may be inspected and copied at the Securities and Exchange
Commission, Judiciary Plaza, 100 F Street, N.E., Room 1580, and Washington, D.C.
20549. You can obtain information on the operation of the Public Reference Room
by calling the Commission at 1-800-SEC-0330. You can also get copies of
documents that we file with the Commission through the Commission's Internet
site at www.sec.gov.
16
RESULTS OF OPERATIONS
Revenues for the three months ended August 31, 2009 were $987,525 as compared to
$452,336 for the three months ended August 31, 2008. The increase is due to
improved performance by our subsidiary, Javaco. Our future revenue plan is
dependent on our ability to effectively close new viable acquisitions.
General and administrative expenses for the three months ended August 31, 2009
increased to $288,286 from $958,956 for the three months ended August 28, 2008.
The decrease in general and administrative expenses relates to the proportionate
decrease due to rescission of our subsidiaries.
The Company realized net income (loss) of ($257,830), for the three months ended
August 31, 2009 compared to net income (loss) of ($959,368) for the three months
ended August 31, 2008, primarily as a result of decreased costs associated with
public reporting status and stock based compensation.
LIQUIDITY AND CAPITAL RESOURCES
The Company's net cash provided by (used in) operating activities for the three
months ending August 31, 2009 was $86,499 compared to $ 140,788 as of the year
ended May 31, 2009.
Accounts receivable decreased from $592,636 for the three months ending August
31, 2009 compared to $1,089,757 for the three months ended August 31, 2008.
On August 4, 2008, DoMark entered into an investment agreement and registration
rights agreement with Dutchess Private Equities, LTD. The investment agreement,
in the form of an equity funding commitment, provides for the right by the
company at its discretion to require Dutchess to purchase up to $50 million of
the Company's common stock at a seven percent discount to market over the 36
months following the registration statement being declared effective by the
Securities and Exchange Commission.
Our future revenues and profits, if any, will primarily depend upon our
abilityto execute our business model. At August 31, 2009 the Company had no
capital resources and will rely upon additional capital contributions from its
sole director to fund administrative expenses.
17
OFF-BALANCE SHEET ARRANGEMENTS
We do not have any off balance sheet arrangements that are reasonably likely to
have a current or future effect on our financial condition, revenues, and
results of operations, liquidity or capital expenditures.
OTHER CONSIDERATIONS
There are numerous factors that affect the business and the results of its
operations. Sources of these factors include general economic and business
conditions, federal and state regulation of business activities, the level of
demand for product services, the level and intensity of competition in the media
content industry, and the ability to develop new services based on new or
evolving technology and the market's acceptance of those new services, our
ability to timely and effectively manage periodic product transitions, the
services, customer and geographic sales mix of any particular period, and our
ability to continue to improve our infrastructure including personnel and
systems to keep pace with our anticipated rapid growth.
CRITICAL ACCOUNTING POLICIES
We prepare our consolidated financial statements in accordance with accounting
principles generally accepted in the United States of America. The preparation
of these financial statements requires the use of estimates and assumptions that
affect the reported amounts of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amount of revenues and expenses during the reporting period. Our
management periodically evaluates the estimates and judgments made. Management
bases its estimates and judgments on historical experience and on various
factors that are believed to be reasonable under the circumstances. Actual
results may differ from these estimates as a result of different assumptions or
conditions.
STOCK BASED COMPENSATION
In December 2004, the FASB issued a revision of SFAS No. 123 ("SFAS No. 123(R)")
that requires compensation costs related to share-based payment transactions to
be recognized in the statement of operations. With limited exceptions, the
amount of compensation cost will be measured based on the grant-date fair value
of the equity or liability instruments issued. In addition, liability awards
will be re-measured each reporting period. Compensation cost will be recognized
over the period that an employee provides service in exchange for the award.
SFAS No. 123(R) replaces SFAS No. 123 and is effective as of the beginning of
January 1, 2006. Based on the number of shares and awards outstanding as of
December 31, 2005 (and without giving effect to any awards which may be granted
in 2006), we do not expect our adoption of SFAS No. 123(R) in January 2006 to
have a material impact on the financial statements.
FSP FAS 123(R)-5 was issued on October 10, 2006. The FSP provides that
instruments that were originally issued as employee compensation and then
modified, and that modification is made to the terms of the instrument solely to
reflect an equity restructuring that occurs when the holders are no longer
employees, then no change in the recognition or the measurement (due to a change
in classification) of those instruments will result if both of the following
18
conditions are met: (a). There is no increase in fair value of the award (or the
ratio of intrinsic value to the exercise price of the award is preserved, that
is, the holder is made whole), or the antidilution provision is not added to the
terms of the award in contemplation of an equity restructuring; and (b). All
holders of the same class of equity instruments (for example, stock options) are
treated in the same manner. The provisions in this FSP shall be applied in the
first reporting period beginning after the date the FSP is posted to the FASB
website. The Company has adopted SP FAS 123(R)-5 but it did not have a material
impact on its consolidated results of operations and financial condition.
ACCOUNTING POLICIES AND ESTIMATES
The preparation of our financial statements in conformity with accounting
principles generally accepted in the United States of America requires our
management to make certain estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Our management periodically
evaluates the estimates and judgments made. Management bases its estimates and
judgments on historical experience and on various factors that are believed to
be reasonable under the circumstances. Actual results may differ from these
estimates as a result of different assumptions or conditions.
As such, in accordance with the use of accounting principles generally accepted
in the United States of America, our actual realized results may differ from
management's initial estimates as reported. A summary of significant accounting
policies are detailed in notes to the financial statements which are an integral
component of this filing.
ADDITIONAL INFORMATION
We file reports and other materials with the Securities and Exchange Commission.
These documents may be inspected and copied the Commission's Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain
information on the operation of the Public Reference Room by calling the
Commission at 1-800-SEC-0330. The Commission maintains a web site at
http://www.sec.gov that contains reports, proxy and information statements, and
other information regarding issuers that file electronically with the
Commission.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We do not hold any derivative instruments and do not engage in any hedging
activities. We attempted to acquire successfully operating subsidiaries and to
deploy accounting, governance, risk and compliance services, marketing,
management and media assets to the subsidiaries, to build the value of our
Company.
19
ITEM 4. CONTROLS AND PROCEDURES
a) Evaluation of Disclosure Controls and Procedures
Our Chief Executive Officer and Chief Financial Officer evaluated the
effectiveness of our disclosure controls and procedures as of the end of the
period covered by this report. Based on that evaluation, Chief Executive Officer
and Chief Financial Officer concluded that our disclosure controls and
procedures as of the end of the period covered by this report were effective
such that the information required to be disclosed by us in reports filed under
the Securities Exchange Act of 1934 is (i) recorded, processed, summarized and
reported within the time periods specified in the SEC's rules and forms and (ii)
accumulated and communicated to the Chief Executive Officer and Chief Financial
Officer, as appropriate to allow timely decisions regarding disclosure. A
controls system cannot provide absolute assurance, however, that the objectives
of the controls system are met, and no evaluation of controls can provide
absolute assurance that all control issues and instances of fraud, if any,
within a company have been detected.
Our Chief Executive Officer and Chief Financial Officer are 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 in accordance with 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, smaller reporting companies face
additional limitations. Smaller reporting companies employ fewer individuals and
find it difficult to properly segregate duties. Often, one or two individuals
control every aspect of the Company's operation and are in a position to
override any system of internal control. Additionally, smaller reporting
companies tend to utilize general accounting software packages that lack a
rigorous set of software controls.
Our Chief Executive Officer and Chief Financial Officer evaluated the
effectiveness of the Company's internal control over financial reporting as of
August 31, 2009. In making this assessment, our Chief Executive Officer and
Chief Financial Officer used the criteria set forth by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control
- -- Integrated Framework. Based on this evaluation, our Chief Executive Officer
and Chief Financial Officer concluded that, as of August 31, 2009, our internal
control over financial reporting was effective, except as follows:
Our accounting staff, for the filing of our amended 10-K for the year ended May
31, 2008, presented a Report of Independent Registered Public Accounting Firm to
the Board of Directors from the prior auditors for the financial statements for
the year ended May 31, 2008. Subsequent to the filing, the Board of Directors
learned that the Report of Independent Registered Public Accounting Firm from
the prior auditor was not filed with the approval of the prior auditors as
represented by our accounting staff. Consequently, the Board of Directors filed
the Form 10-K for the years ended May 31, 2009 and May 31, 2008 by the current
auditor.
As a consequence of this filing, our Chief Executive Officer has concluded that
our disclosure controls and procedures may not be effective due to possible
material weakness in our internal controls over financial reporting described
above and other factors related to the Company's financial reporting processes.
The Company is in the process of evaluating the internal controls and procedures
to ensure that the internal controls and procedures satisfy the criteria set
forth by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO) in Internal Control -- Integrated Framework. The Company and its
independent registered public accounting firm identified certain significant
internal control deficiencies that we considered to be, in the aggregate, a
material weakness relative to our financial reporting procedures. The primary
concern was the filing of our Form 10K/A without approval from our prior
independent auditors. Due to the size of our Company and the costs associated to
remediate these issues, we still consider these concerns to be relevant but we
believe that having our current auditor re-audit and publish the fiscal year
ended May 31, 2009 and May 31, 2008 rectifies this deficiency.
b) Changes in Internal Control over Financial Reporting.
During the Quarter ended August 31, 2009, there was not a change in our internal
control over financial reporting (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that has materially effected, or is reasonably likely to
materially effect, our internal control over financial reporting.
20
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company may become involved in various claims and legal actions arising in
the ordinary course of business. In the opinion of management, except as
discussed below, the ultimate disposition of these matters will not have a
material adverse effect on the Company's financial position, results of
operations, or liquidity except as follows:
On August 10, 2009, the Company along with Victory Lane, LLC and R. Thomas Kidd
filed a lawsuit in the United States District Court, Middle District of Florida
Case Number 09-CV-1396-ORL-35-DAB against Victory Lane Financial Elite, LLC et
al, for the following causes of action: Fraud in the Inducement, Breach of
Contract, Rescission, Conspiracy, and Libel.
On August 10, 2009, the Company was made aware of an action filed in the
Superior Court of Tattnall County, Georgia, case number 2009-V-381-JS by Victory
Lane Financial Elite, LLC et al against the Company and its directors and
officers. The Company believes that the complaint is without merit and the
Company intends to defend said action and file substantial counterclaims against
Victory Lane Financial Elite, LLC, Patrick Costello and numerous other
defendants.
Management is of the opinion that the action has no merit and intends to defend
the action aggressively.
On September 25, 2009 the company amended its Case Number CV-1396-ORL-35-DAB
compliant to request certain complaints be heard in arbitration as called for in
the original acquisition agreement dated May 13, 2009. Both venues are
proceeding.
ITEM 1A - RISK FACTORS
You should carefully consider the following risk factors before making an
investment decision. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially adversely
affected. In such cases, the trading price of our common stock could decline and
you may lose all or a part of your investment.
OUR COMMON STOCK IS SUBJECT TO PENNY STOCK REGULATION
Our shares are subject to the provisions of Section 15(g) and Rule 15g-9 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), commonly
referred to as the "penny stock" rule. Section 15(g) sets forth certain
requirements for transactions in penny stocks and Rule 15g-9(d)(1) incorporates
the definition of penny stock as that used in Rule 3a51-1 of the Exchange Act.
The Commission generally defines penny stock to be any equity security that has
a market price less than $5.00 per share, subject to certain exceptions. Rule
3a51-1 provides that any equity security is considered to be penny stock unless
that security is: registered and traded on a national securities exchange
meeting specified criteria set by the Commission; authorized for quotation on
the NASDAQ Stock Market; issued by a registered investment company; excluded
from the definition on the basis of price (at least $5.00 per share) or the
registrant's net tangible assets; or exempted from the definition by the
Commission. Since our shares are deemed to be "penny stock", trading in the
shares will be subject to additional sales practice requirements on
broker/dealers who sell penny stock to persons other than established customers
and accredited investors.
21
WE MAY NOT HAVE ACCESS TO SUFFICIENT CAPITAL TO PURSUE OUR BUSINESS AND
THEREFORE WOULD BE UNABLE TO ACHIEVE OUR PLANNED FUTURE GROWTH:
We intend to pursue a growth strategy that includes development of the Company
business and technology. Currently we have limited capital which is insufficient
to pursue our plans for development and growth. Our ability to implement our
growth plans will depend primarily on our ability to obtain additional private
or public equity or debt financing. We are currently seeking additional capital.
Such financing may not be available at all, or we may be unable to locate and
secure additional capital on terms and conditions that are acceptable to us. Our
failure to obtain additional capital will have a material adverse effect on our
business.
OUR LACK OF DIVERSIFICATION IN OUR BUSINESS SUBJECTS INVESTORS TO A GREATER RISK
OF LOSSES
All of our efforts are focused on the development and growth of our business and
its technology in an unproven area.
BECAUSE WE ARE QUOTED ON THE OTCBB INSTEAD OF AN EXCHANGE OR NATIONAL QUOTATION
SYSTEM, OUR INVESTORS MAY HAVE A TOUGHER TIME SELLING THEIR STOCK OR EXPERIENCE
NEGATIVE VOLATILITY ON THE MARKET PRICE OF OUR STOCK.
Our common stock is traded on the OTCBB. The OTCBB is often highly illiquid.
There is a greater chance of volatility for securities that trade on the OTCBB
as compared to a national exchange or quotation system. This volatility may be
caused by a variety of factors, including the lack of readily available price
quotations, the absence of consistent administrative supervision of bid and ask
quotations, lower trading volume, and market conditions. Investors in our common
stock may experience high fluctuations in the market price and volume of the
trading market for our securities. These fluctuations, when they occur, have a
negative effect on the market price for our securities. Accordingly, our
stockholders may not be able to realize a fair price from their shares when they
determine to sell them or may have to hold them for a substantial period of time
until the market for our common stock improves.
FAILURE TO ACHIEVE AND MAINTAIN EFFECTIVE INTERNAL CONTROLS IN ACCORDANCE WITH
SECTION 404 OF THE SARBANES-OXLEY ACT COULD HAVE A MATERIAL ADVERSE EFFECT ON
OUR BUSINESS AND OPERATING RESULTS.
It may be time consuming, difficult and costly for us to develop and implement
the additional internal controls, processes and reporting procedures required by
the Sarbanes-Oxley Act. We may need to hire additional financial reporting,
internal auditing and other finance staff in order to develop and implement
appropriate additional internal controls, processes and reporting procedures. If
we are unable to comply with these requirements of the Sarbanes-Oxley Act, we
may not be able to obtain the independent accountant certifications that the
Sarbanes-Oxley Act requires of publicly traded companies.
22
If we fail to comply in a timely manner with the requirements of Section 404 of
the Sarbanes-Oxley Act regarding internal control over financial reporting or to
remedy any material weaknesses in our internal controls that we may identify,
such failure could result in material misstatements in our financial statements,
cause investors to lose confidence in our reported financial information and
have a negative effect on the trading price of our common stock.
Pursuant to Section 404 of the Sarbanes-Oxley Act and current SEC regulations,
beginning with our annual report on Form 10-K for our fiscal period ending May
31, 2008, we will be required to prepare assessments regarding internal controls
over financial reporting and beginning with our annual report on Form 10-K for
our fiscal period ending May 31, 2009, furnish a report by our management on our
internal control over financial reporting. We have begun the process of
documenting and testing our internal control procedures in order to satisfy
these requirements, which is likely to result in increased general and
administrative expenses and may shift management time and attention from
revenue-generating activities to compliance activities. While our management is
expending significant resources in an effort to complete this important project,
there can be no assurance that we will be able to achieve our objective on a
timely basis. There also can be no assurance that our auditors will be able to
issue an unqualified opinion on management's assessment of the effectiveness of
our internal control over financial reporting. Failure to achieve and maintain
an effective internal control environment or complete our Section 404
certifications could have a material adverse effect on our stock price.
In addition, in connection with our on-going assessment of the effectiveness of
our internal control over financial reporting, we may discover "material
weaknesses" in our internal controls as defined in standards established by the
Public Company Accounting Oversight Board, or the PCAOB. A material weakness is
a significant deficiency, or combination of significant deficiencies, that
results in more than a remote likelihood that a material misstatement of the
annual or interim financial statements will not be prevented or detected. The
PCAOB defines "significant deficiency" as a deficiency that results in more than
a remote likelihood that a misstatement of the financial statements that is more
than inconsequential will not be prevented or detected.
In the event that a material weakness is identified, we will employ qualified
personnel and adopt and implement policies and procedures to address any
material weaknesses that we identify. However, the process of designing and
implementing effective internal controls is a continuous effort that requires us
to anticipate and react to changes in our business and the economic and
regulatory environments and to expend significant resources to maintain a system
of internal controls that is adequate to satisfy our reporting obligations as a
public company. We cannot assure you that the measures we will take will
remediate any material weaknesses that we may identify or that we will implement
and maintain adequate controls over our financial process and reporting in the
future.
Any failure to complete our assessment of our internal control over financial
reporting, to remediate any material weaknesses that we may identify or to
implement new or improved controls, or difficulties encountered in their
implementation, could harm our operating results, cause us to fail to meet our
reporting obligations or result in material misstatements in our financial
statements. Any such failure could also adversely affect the results of the
periodic management evaluations of our internal controls and, in the case of a
failure to remediate any material weaknesses that we may identify, would
adversely affect the annual auditor attestation reports regarding the
effectiveness of our internal control over financial reporting that are required
under Section 404 of the Sarbanes-Oxley Act. Inadequate internal controls could
also cause investors to lose confidence in our reported financial information,
which could have a negative effect on the trading price of our common stock.
23
OPERATING HISTORY AND LACK OF PROFITS WHICH COULD LEAD TO WIDE FLUCTUATIONS IN
OUR SHARE PRICE. THE PRICE AT WHICH YOU PURCHASE OUR COMMON SHARES MAY NOT BE
INDICATIVE OF THE PRICE THAT WILL PREVAIL IN THE TRADING MARKET. YOU MAY BE
UNABLE TO SELL YOUR COMMON SHARES AT OR ABOVE YOUR PURCHASE PRICE, WHICH MAY
RESULT IN SUBSTANTIAL LOSSES TO YOU. THE MARKET PRICE FOR OUR COMMON SHARES IS
PARTICULARLY VOLATILE GIVEN OUR STATUS AS A RELATIVELY UNKNOWN COMPANY WITH A
SMALL AND THINLY TRADED PUBLIC FLOAT, LIMITED
The market for our common shares is characterized by significant price
volatility when compared to seasoned issuers, and we expect that our share price
will continue to be more volatile than a seasoned issuer for the indefinite
future. The volatility in our share price is attributable to a number of
factors. First, as noted above, our common shares are sporadically and thinly
traded. As a consequence of this lack of liquidity, the trading of relatively
small quantities of shares by our shareholders may disproportionately influence
the price of those shares in either direction. The price for our shares could,
for example, decline precipitously in the event that a large number of our
common shares are sold on the market without commensurate demand, as compared to
a seasoned issuer which could better absorb those sales without adverse impact
on its share price. Secondly, we are a speculative or "risky" investment due to
our limited operating history and lack of profits to date, and uncertainty of
future market acceptance for our potential products. As a consequence of this
enhanced risk, more risk-adverse investors may, under the fear of losing all or
most of their investment in the event of negative news or lack of progress, be
more inclined to sell their shares on the market more quickly and at greater
discounts than would be the case with the stock of a seasoned issuer. Many of
these factors are beyond our control and may decrease the market price of our
common shares, regardless of our operating performance. We cannot make any
predictions or projections as to what the prevailing market price for our common
shares will be at any time, including as to whether our common shares will
sustain their current market prices, or as to what effect that the sale of
shares or the availability of common shares for sale at any time will have on
the prevailing market price.
Shareholders should be aware that, according to SEC Release No. 34-29093, the
market for penny stocks has suffered in recent years from patterns of fraud and
abuse. Such patterns include (1) control of the market for the security by one
or a few broker-dealers that are often related to the promoter or issuer; (2)
manipulation of prices through prearranged matching of purchases and sales and
false and misleading press releases; (3) boiler room practices involving
high-pressure sales tactics and unrealistic price projections by inexperienced
sales persons; (4) excessive and undisclosed bid-ask differential and markups by
selling broker-dealers; and (5) the wholesale dumping of the same securities by
promoters and broker-dealers after prices have been manipulated to a desired
level, along with the resulting inevitable collapse of those prices and with
consequent investor losses. Our management is aware of the abuses that have
occurred historically in the penny stock market. Although we do not expect to be
in a position to dictate the behavior of the market or of broker-dealers who
participate in the market, management will strive within the confines of
practical limitations to prevent the described patterns from being established
with respect to our securities. The occurrence of these patterns or practices
could increase the volatility of our share price.
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VOLATILITY IN OUR COMMON SHARE PRICE MAY SUBJECT US TO SECURITIES LITIGATION,
THEREBY DIVERTING OUR RESOURCES THAT MAY HAVE A MATERIAL EFFECT ON OUR
PROFITABILITY AND RESULTS OF OPERATIONS.
As discussed in the preceding risk factors, the market for our common shares is
characterized by significant price volatility when compared to seasoned issuers,
and we expect that our share price will continue to be more volatile than a
seasoned issuer for the indefinite future. In the past, plaintiffs have often
initiated securities class action litigation against a company following periods
of volatility in the market price of its securities. We may in the future be the
target of similar litigation. Securities litigation could result in substantial
costs and liabilities and could divert management's attention and resources.
As of August 31, 2009, we had 30,695,789 shares of common stock issued and
outstanding.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS SECURITIES
NONE
The offer and sale of such shares of our common stock were effected in reliance
on the exemptions for sales of securities not involving a public offering, as
set forth in Rule 506 promulgated under the Securities Act and in Section 4(2)
of the Securities Act, based on the following: (a) the investors confirmed to us
that they were "accredited investors," as defined in Rule 501 of Regulation D
promulgated under the Securities Act and had such background, education and
experience in financial and business matters as to be able to evaluate the
merits and risks of an investment in the securities; (b) there was no public
offering or general solicitation with respect to the offering; (c) the investors
were provided with certain disclosure materials and all other information
requested with respect to our company; (d) the investors acknowledged that all
securities being purchased were "restricted securities" for purposes of the
Securities Act, and agreed to transfer such securities only in a transaction
registered under the Securities Act or exempt from registration under the
Securities Act; and (e) a legend was placed on the certificates representing
each such security stating that it was restricted and could only be transferred
if subsequent registered under the Securities Act or transferred in a
transaction exempt from registration under the Securities Act.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
There were no defaults upon senior securities of during the period ended August
31, 2009.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to the vote of securities holders during the
period ended August 31, 2009.
ITEM 5. OTHER INFORMATION
There is no information with respect to which information is not otherwise
called for by this form, except for the following:
On October 20, 2009, the Company executed an agreement to sell the stock of ECFO
Corporation back to ECFO Corporation founding shareholder. Consideration for the
2000 shares of ECFO Corporation, representing all issued and outstanding shares
of ECFO Corporation, owned by the Company, is Ten Thousand Dollars ($10,000),
payable in the form of a one year promissory note. The transction is a private
sale exempt from registration under Section 4(1) of the Securities Act of 1933,
as amended.
Our accounting staff, for the filing of our amended 10-K for the year ended May
31, 2008, presented a Report of Independent Registered Public Accounting Firm to
the Board of Directors from the prior auditors for the financial statements for
the year ended May 31, 2008. Subsequent to the filing, the Board of Directors
learned that the Report of Independent Registered Public Accounting Firm from
the prior auditor was not filed with the approval of the prior auditors as
represented by our accounting staff. Consequently, the Board of Directors filed
the Form 10-K for the years ended May 31, 2009 and May 31, 2008 by the current
auditor. As a consequence of this filing, our Chief Executive Officer has
concluded that our disclosure controls and procedures may not be effective due
to possible material weakness in our internal controls over financial reporting
described above and other factors related to the Company's financial reporting
processes. The Company is in the process of evaluating the internal controls and
procedures to ensure that the internal controls and procedures satisfy the
criteria set forth by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO) in Internal Control -- Integrated Framework. The Company and
its independent registered public accounting firm identified certain significant
internal control deficiencies that we considered to be, in the aggregate, a
material weakness relative to our financial reporting procedures. The primary
concern was the filing of our Form 10K/A without approval from our prior
independent auditors. Due to the size of our Company and the costs associated to
remediate these issues, we still consider these concerns to be relevant but we
believe that having our current auditor re-audit and publish the fiscal year
ended May 31, 2009 and May 31, 2008 rectifies this deficiency.
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ITEM 6. EXHIBITS
31.1 Certification of Chief Executive Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act
31.2 Certification of Chief Financial Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act.
32.2 Certification of Chief Executive Officer Pursuant to Section 906 of the
Sarbanes-Oxley Act.
32.2 Certification of Chief Financial Officer Pursuant to Section 906 of the
Sarbanes-Oxley Act.
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 on its
behalf by the undersigned, thereunto duly authorized.
DoMark International, Inc.
Registrant
Date: October 20, 2009 By: /s/ Scott Sieck
--------------------------------------------
Scott Sieck
Chief Executive Officer (Principal Executive
Officer, Principal Financial Officer)
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