AIRBORNE WIRELESS NETWORK (NASDAQ:ABWN) Files An 8-K Change in Shell Company Status
Item 5.06-Change in Shell Company Status of a Current Report on
Form 8-K, for purposes of this Current Report, we shall identify
the filings in which certain information required to be disclosed
as Form 10 Information is included instead of disclosing that
information in this Current Report; provided, however, this
Current Report shall supplement the information disclosed in such
filings.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This Current Report contains certain forward-looking statements
within the meaning of the Private Securities Litigation Reform
Act of 1995, Section27A of the Securities Act of 1933, as amended
(the Securities Act) and Section21E of the Exchange Act,
which statements involve substantial risks and uncertainties. In
some cases, it is possible to identify forward-looking statements
because they contain words such as anticipates, believes,
contemplates, continue, could, estimates, expects, future,
intends, likely, may, plans, potential, predicts, projects, seek,
should, target or will, or the negative of these words or other
similar terms or expressions that concern our expectations,
strategy, plans or intentions. Many factors could cause our
actual operations or results to differ materially from the
operations and results anticipated in those forward-looking
statements. These factors include, but are not limited to:
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We have based the forward-looking statements contained in this
Current Report primarily regarding our current expectations and
projections about future events and trends that we believe may
affect our business, financial condition, results of operations
and prospects. The outcome of the events described in these
forward-looking statements are subject to risks, uncertainties,
assumptions, and other factors including those described in the
section of this Current Report entitled Risk Factors. Moreover,
we operate in a rapidly changing environment. New risks and
uncertainties emerge from time to time, and it is not possible
for us to predict all risks and uncertainties that could have an
impact on the forward-looking statements used herein.
You should not rely on forward-looking statements as predictions
of future events. Except as required by law, neither we nor any
other person assumes responsibility for the accuracy and
completeness of those forward-looking statements, and we
undertake no obligation to update any forward-looking statements
to reflect events or circumstances after the date of such
statements.
As used in this Current Report, the terms the Company, we, us,
and our refer to Airborne Wireless Network, a Nevada corporation.
Business
Airborne Wireless Network was formed as a Nevada corporation on
January 5, 2011, with the name Ample-Tee to engage in the
business of promoting, marketing, selling, and distributing hard
to find ergonomic products for the physically disabled.
On September 31, 2011, we changed our name to Ample-Tee,
Inc.
On May 19, 2016, we changed our name to Airborne Wireless
Network. We changed our name to Airborne Wireless
Network to better associate us with the aviation industry.
On August 3, 2016, we acquired from Apcentive, Inc., a Nevada
corporation (Apcentive), all of Apcentives right, title and
interest in and to U.S. Patent No. 6,285,878 B1 and all related
support materials, continuations, amendments, updates, and
contemplated updates and amendments (collectively, the Patent).
The Patent relates to a new use for already existing fleets of
commercial aircraft to replace low-earth orbit communication
satellites.
On August 3, 2016, we acquired from Apcentive the trademark
Infinitus Super Highway (the Trademark).
We are a developmental stage company with a principal business of
developing, marketing and licensing a wholesale fully meshed high
speed broadband airborne wireless network by linking commercial
aircraft in flight, which will be the first and only fully-meshed
true airborne broadband system, and which is known as the
(Infinitus). Infinitus will use commercial aircraft as hubs or
mini-satellites, rather than traditional satellites or
terrestrial systems. We believe that Infinitus will become the
future of airborne communications networks.
We have not been involved in any bankruptcy, receivership or
similar proceedings since its incorporation nor has it been
involved in any reclassification, merger or consolidation.
Our business plan contemplates the development, promotion and
licensing of Infinitus, a wholesale fully-meshed broadband
digital carrier network, which is the first and only true
airborne broadband network providing connectivity for worldwide
broadband carrier services using commercial aircraft, which is an
effort to reduce significantly Internet problems associated with
traditional air-to-ground and satellite based airborne
communications providers. Infinitus is the first broadband fully
meshed network using high level patented technology to bring
speed and reliability in the air.
We intend to become a significant global wholesale communication
carrier. We intend to sell wholesale bandwidth to the worlds top
telecom and internet services providers using Infinitus, which
will enable participating aircraft to act as airborne repeaters
or routers, sending and receiving broadband signals from one
aircraft to the next, which will create a digital superhighway in
the sky. We do not intend to become a service provider to
individual airline passengers.
We anticipate that our revenues would come from facilitating
global high-speed data communications using Infinitus. We
anticipate that our primary customers will be global
communication, wholesalers, data wholesalers, VOIP carriers, and
government agencies (FAA, DOD, TSA, etc.). As of the date of this
Current Report, we have not licensed Infinitus.
Infinitus is for use on existing aircraft to replace low-earth
orbit communication satellites. Infinitus will provide a
low-cost, broadband wireless communication infrastructure, by
using and modifying existing, small, lightweight low-power,
low-cost microwave relay station equipment onboard aircraft. Each
equipped aircraft would have a broadband wireless communication
link to one or more neighboring aircraft or ground stations and
be a part of of seamless airborne repeaters, providing broadband
wireless communication gateways along a flight path. Those
broadband wireless communication services will provide Internet
access for customers onboard in-flight aircraft.
Currently, we have 6 employees.
Jobs Act of 2012
We are electing to not opt out of the JOBS Act of 2012 (JOBS Act)
extended accounting transition period. This may make our
financial statements more difficult to compare to other
companies.
to the JOBS Act, as an emerging growth company, we can elect to
opt out of the extended transition period for any new or revised
accounting standards that may be issued by the Public Company
Accounting Oversight Board (PCAOB) or the Securities and Exchange
Commission (the SEC). We have elected not to opt out of such
extended transition period, which means that when a standard is
issued or revised and it has different application dates for
public or private companies, we, as an emerging growth company,
can adopt the standard for a private company. This may make
comparison of our financial statements with any other public
company which is not either an emerging growth company nor an
emerging growth company which has opted out of using the extended
transition period difficult or impossible, as possible different
or revised standards may be used.
The JOBS Act of 2012 is intended to reduce the regulatory burden
on emerging growth companies. We meet the definition of an
emerging growth company, and as long as we qualify as an emerging
growth company, we will, among other things:
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be temporarily exempted from the internal control audit requirements Section 404(b) of the Sarbanes-Oxley Act; |
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be temporarily exempted from various existing and forthcoming executive compensation-related disclosures, for example: say-on-pay, pay-for- performance, and CEO pay ratio; |
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be temporarily exempted from any rules that might be adopted by the Public Company Accounting Oversight Board requiring mandatory audit firm rotation or supplemental auditor discussion and analysis reporting; |
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be temporarily exempted from having to solicit advisory say-on-pay, say- on-frequency and say-on-golden-parachute shareholder votes regarding executive compensation to Section 14A of the Exchange Act. |
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be permitted to comply with the SECs detailed executive compensation disclosure requirements on the same basis as a smaller reporting company; and |
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be permitted to adopt any new or revised accounting standards using the same timeframe as private companies (if the standard applies to private companies). |
We will continue to be an emerging growth company until the
earliest of:
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the last day of the fiscal year during which we have annual total gross revenues of $1 billion or more; |
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the last day of the fiscal year following the fifth anniversary of the first sale of our common equity securities in an offering registered to the Securities Act. |
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the date on which we issue more than $1 billion in non-convertible debt securities during a previous three-year period; or |
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the date on which we become a large accelerated filer, which generally is a company with a public float of at least $700 million (Exchange Act Rule 12b-2). |
Licenses and Regulation
Federal Aviation Administration
The Federal Aviation Administration (the FAA) prescribes
standards and certification requirements for the manufacturing of
aircraft and aircraft components, and certifies and rates repair
stations to perform aircraft maintenance, preventive maintenance
and alterations, including the installation and maintenance of
aircraft components. Each type of aircraft operated in the United
States under an FAA-issued standard airworthiness certificate
must possess an FAA Type Certificate, which constitutes approval
of the design of the aircraft type based on applicable
airworthiness standards. When a party other than the holder of
the Type Certificate develops a major modification to an aircraft
already type-certificated, that party must obtain an FAA-issued
Supplemental Type Certification (STC) approving the design of the
modified aircraft type. We will obtain an STC for each aircraft
type operated by each airline partner on whose aircraft our
equipment will be installed and separate STCs typically are
required for different configurations of the same aircraft type,
such as when they are configured differently for different
airlines.
After obtaining an STC, a manufacturer desiring to manufacture
components to be used in the modification covered by the STC must
apply to the FAA for a Parts Manufacturing Authority (PMA), which
permits the holder to manufacture and sell components
manufactured in conformity with the PMA and its approved design
and data package. In general, each initial PMA is an approval of
a manufacturing or modification facilitys production quality
control system. PMA supplements are obtained to authorize the
manufacture of a particular part in accordance with the
requirements of the pertinent FAA regulations which are included
its production quality control system. We will routinely apply
for, anticipate receiving, such PMAs and supplements. We will
utilize qualified and approved suppliers. We will be the sole
owner of the design, and responsible for the quality, of each
component in accordance with the applicable PMA.
Although certain components would probably be manufactured by
third parties, which are experts in their respective fields, such
manufacturing would be done on an original equipment
manufacturers basis, to our strict specifications. We will be the
owner of the design of such components and responsible ultimately
for the quality of each component and, except when required by
the FAA rules, responsible with compliance for the applicable
PMA.
Our business depends on our continuing access to, or use of,
applicable FAA certifications, authorizations and other
approvals, and our employment of, or access to, FAA-certified
individual engineering and other professionals.
In accordance with these certifications, authorizations and other
approvals, the FAA requires that we maintain, review and document
our quality assurance processes. The FAA may also visit our
facilities at any time as part of our agreement for certification
as a manufacturing facility to ensure that our facilities,
procedures, and quality control systems meet FAA approvals we
hold. In addition, we are responsible for informing the FAA of
significant changes to our organization and operations, product
failures or defects, and any changes to our operational
facilities or FAA-approved quality control systems. Other FAA
requirements include training procedures and drug and alcohol
screening for safety-sensitive employees working at our
facilities.
Foreign Aviation Regulation
According to international aviation convention, the airworthiness
of FAA-certified Infinitus equipment installed on U.S.-registered
aircraft should be recognized by civil aviation authorities
(CAAs) worldwide. As a result, we do not expect to require
further airworthiness certification formalities in countries
outside of the United States for U.S.-registered aircraft that
already have an STC issued by the FAA covering Infinitus
equipment. For aircraft registered with a CAA other than the
United States, the installation of Infinitus equipment requires
airworthiness certification from an airworthiness certification
body. Typically, the CAA of the country in which the aircraft is
registered is responsible for ensuring the airworthiness of any
aircraft modifications under its authority.
The FAA holds bilateral agreements with a number of certification
authorities around the globe. Bilateral agreements facilitate the
reciprocal airworthiness certification of civil aeronautical
products that are imported/exported between two signatory
countries. A Bilateral Airworthiness Agreement (BAA) or Bilateral
Aviation Safety Agreement (BASA) with Implementation Procedures
for Airworthiness (IPA) provides for airworthiness technical
cooperation between the FAA and its counterpart civil aviation
authorities. Under a BAA or BASA, the CAA of the aircrafts
country of registration generally validates STCs issued by the
FAA and then issues a Validation Supplemental Type Certificate
(VSTC). For countries with which the FAA does not have a BAA or
BASA, we must apply for certification approval with the CAA of
the country in which the aircraft is registered. In order to
obtain the necessary certification approval, Infinitus will be
required to comply with the airworthiness regulations of the
country in which the aircraft is registered. Failure to address
all foreign airworthiness and aviation regulatory requirements at
the commencement of each airline partners service in any country
in which such partner registers aircraft when there are no
applicable bilateral agreements may lead to significant
additional costs related to certification and could impact the
timing of our ability to provide our service on our airline
partners fleet.
Memorandum of Understanding with Electric Lightwave
Holdings, Inc.
On December 12, 2016, we entered into and executed a written
Memorandum of Understanding with Electric Lightwave Holdings,
Inc., a fiber based network services provider in the western
United States (Lightwave). to the provisions of that Memorandum
of Understanding and the final definitive agreement contemplated
thereby, the ground segment of our contemplated Infinitus Super
Highway will be supported by Lightwaves 12,500 mile fiber optics
cable and data centered network, which is located throughout the
western United States, including an undersea cable link to the
Hawaiian Islands.
A copy of that Memorandum of Understanding is attached as an
exhibit to that Current Report on Form 8-K filed with the SEC on
December 27, 2016.
Other relevant information regarding our business is specified in
ITEM 1-BUSINESS of that certain Annual Report on Form 10-K filed
with the Securities and Exchange Commission (SEC) on December 13,
2016 (the Annual Report).
Risk Factors
You should consider and read carefully all of the
risks and uncertainties described below, as well as other
information included in this Current Report. The risks described
below are not the only ones facing us. The occurrence of any of
the following risks or additional risks and uncertainties not
presently known to us or that we currently believe to be
immaterial could materially and adversely affect our business,
financial condition and results of operations. This Current
Report also contains forward-looking statements and estimates
that involve risks and uncertainties. Our actual results could
differ materially from those anticipated in the forward-looking
statements as a result of specific factors, including the risks
and uncertainties described below.
Risks Related to Our Business and Industry
We are dependent on agreements with our prospective
airline partners and the end users of Infinitus, who shall be our
customers. We expect payments from our customers from the use of
Infinitus to provide a significant portion of our revenue. Our
failure to execute agreements with those airlines partners or
realize the anticipated benefits from these agreements on a
timely basis or to renew any agreements upon expiration or
termination could have a material adverse effect on our financial
condition and results of operations.
Our growth is dependent on our ability to have our equipment
installed on aircraft, which will enable the operation of
Infinitus, and use by the market of Infinitus, which will provide
revenue to us. Any delays in installations after receiving the
appropriate approvals may negatively affect our ability to
generate revenue. In addition, we have no assurance that any of
our prospective airline partners and/or customers will renew
their existing contracts with us upon expiration, or that they
will not terminate their contracts prior to expiration upon the
occurrence of certain contractually stipulated events. We
anticipate that contractual termination events will include our
bankruptcy and our material breach of contract, and/or failure to
achieve certain certification, equipment delivery, installation
or other milestones within agreed-upon time frames. We anticipate
that contracts with certain of our prospective airline partners
and/or customers will allow those airlines and customers to
terminate a portion or all of their respective agreements after a
specified time period upon the payment of a termination fee. To
the extent that our prospective airline partners and/or customers
terminate or fail to renew their contracts with us for any
reason, our business prospects, financial condition and results
of operations would be materially adversely affected.
A failure to maintain satisfaction with our equipment
could have a material adverse effect on our revenue and results
of operations.
Our relationships with our prospective airline partners and
customers will be critical to the growth and success of our
business. If those airline partners are not satisfied with our
equipment for any reason, those airlines may have the right to
terminate their contracts with us. In addition, airline or
customer dissatisfaction with us for any reason, including delays
in obtaining certification for or installing our equipment or
meeting our service level obligations, could negatively affect
our ability to operate Infinitus or lead to claims for damages,
which may be material, or termination rights under contracts with
our airline partners.
Our business is highly dependent on the airline
industry, which is itself affected by factors beyond the airlines
control. The airline industry is highly competitive and sensitive
to changing economic conditions.
Our business is directly affected by the financial condition of
the airlines and other economic factors. If consumer demand for
air travel declines, including due to increased use of technology
such as videoconferencing for business travelers, or the number
of aircraft and flights shrinks, our business and results of
operations may be affected adversely. Unfavorable general
economic conditions and other events that are beyond the airlines
control, including higher unemployment rates, higher interest
rates, reduced stock prices, reduced consumer and business
spending, outbreaks of communicable diseases and terrorist
attacks or threats could have a material adverse effect on the
airline industry. A general reduction or shift in discretionary
spending could result in decreased demand for leisure and
business travel and lead to a reduction in airline flights
offered and the number of passengers flying. Consolidation within
the airline industry could also adversely affect our
relationships with our airline partners.
Further, unfavorable economic conditions could also limit
airlines ability to counteract increased fuel, labor or other
costs though raised prices. Our prospective airline partners
operate in a highly competitive business market and, as a result,
continue to face pressure on offerings and pricing. These
unfavorable conditions and the competitiveness of the air travel
industry could cause one or more of our prospective airline
partners to reduce expenditures on passenger services or file for
bankruptcy. If one or more of our prospective airline partners
were to file for bankruptcy, bankruptcy laws could give them
rights to terminate their contracts with us, they could reduce
their total fleet size and capacity and/or their total number of
flights. Any of these events could have a material adverse effect
on our business prospects, financial condition and results of
operations.
We may not be able to successfully negotiate
agreements with airlines and/or customers.
Negotiations with prospective airline partners and customers
require substantial time, effort and resources. The time required
to reach a final agreement with an airline and/or customers is
unpredictable and may lead to variances in our operating results
from quarter to quarter. We may ultimately fail in our
negotiations and any such failure could harm our results of
operations due to, among other things, a diversion of our focus
and resources, actual costs and opportunity costs of pursuing
these opportunities. To the extent that any negotiations with
potential airline partners and/or customers are unsuccessful our
operations could be materially and adversely affected.
Our business has no operating history, which may make
it difficult to evaluate our current business and predict our
future performance.
The lack of operating history of our business may make it
difficult to accurately evaluate our business and predict our
future performance. Any assessments of our current business and
predictions that we or you make about our future success or
viability may not be as accurate as they could be if we had an
operating history. We have encountered and will continue to
encounter risks and difficulties frequently experienced by
growing companies in rapidly changing industries, and the size
and nature of our market opportunity may change as we scale our
business and begin deployment of the Infinitus service. If we do
not address any of the foregoing risks, our business could be
harmed.
We may be unsuccessful or delayed in deploying our
Infinitus technology.
As our Infinitus service is currently in the testing phase and
has yet to be deployed for commercial use, there can be no
assurance that such technology will perform as expected or be
deployed on our current timeline, due to, among other things, the
failure of any Infinitus-related technology and equipment to
perform as expected, problems arising in the manufacturing
process, our reliance on single-source suppliers to provide
certain necessary components and delays in obtaining or failures
to obtain the required regulatory approvals for installation and
operation of such equipment and the provision of service to our
airline partners. We currently have no agreements to provide our
equipment to any airlines fleets. In the event we enter into any
such agreements, the failure of Infinitus to perform as expected,
or significant delays in our ability to deploy it, could result
in material breaches of such agreements, which could in turn
result in termination of such agreements and liability to us. If
Infinitus fails to perform as expected or its commercial
availability is significantly delayed as compared to the
timelines for which we have contracted, our business, business
prospects and results of operations may be materially adversely
affected.
We face specific risks related to equipment
suppliers.
We may have agreements with one or more third parties to provide
the equipment, including, but not limited to, radomes, antennas
and modems, necessary for us to supply our Infinitus Super
Highway.
If any of our supplier agreements are terminated for any reason
or expire and not renewed, or equipment was not provided for in a
timely basis or of a reliable quality, we may not be able to find
alternative equipment providers on terms that are acceptable to
us, or at all, which could delay our ability to roll out our
Infinitus service and adversely impact our business and results
of operations.
Our agreements with equipment suppliers may contain terms, such
as those related to termination, pricing and service levels that
are not consistent with our obligations under agreements with
airline partners that rely on such equipment for connectivity.
Such misalignment could cause us to be in breach of such
agreements, and we may be unable to seek indemnification for such
losses from our equipment providers. Further, if our equipment
providers were to increase the fees they charge us and we could
not pass these increased costs, it would increase our cost of
service revenue and adversely impact our business and results of
operations.
We could be adversely affected if we suffer service
interruptions or delays, technology failures or damage to our
equipment.
Our brand, reputation and ability to attract, retain and serve
our airline partners and customers depend upon the reliable
performance of our network infrastructure. We may experience
service interruptions, service delays or technology or systems
failures in the future, which may be due to factors beyond our
control. If we experience significant system or network failures,
our reputation, brand and airline partner and customer retention
could be harmed and our airline partners and customers may have
the right to terminate their contracts with us or pursue other
remedies.
Our operations and services depend upon the extent to which our
equipment and the equipment of third-party network providers is
protected against damage or interruption from fire, floods,
earthquakes, tornados, power loss, solar flares,
telecommunication failures, break-ins, acts of war or terrorism
and similar events. The capacity, reliability and security of our
network infrastructure are important to the operation of our
business, which would suffer in the event of system disruptions
or failures, such as computer hackings, cyber-attacks, computer
viruses, worms or other destructive or disruptive software,
process breakdowns, denial of service attacks or other malicious
activities. Our networks and those of third-party service
providers may be vulnerable to these attacks and unauthorized
access. In addition, the aircraft upon which we will rely for
future services are and will be subject to significant
operational risks while in flight. These risks include
malfunctions, which may occur as a result of various factors,
such as design and manufacturing defects, problems with power or
control systems and general operational failures. Damage to our
or third parties networks could cause interruptions in the
services that we provide. Such interruptions in our services
could have a material adverse effect on our revenue, our
reputation and our ability to attract or retain airline partners.
We may rely on single source service providers for
certain critical components of our network and
operations.
We may rely on single source suppliers for a number of critical
components of our Infinitus network and operations. If we are
required to find one or more alternative suppliers for any
component for which we may rely on a single source supplier, we
may not be able to contract with such suppliers on a timely
basis, on commercially reasonable terms, or at all.
Additionally, we may be subject to worldwide shortages of
critical components, which happens occasionally in the
semiconductor industry, which could result in delays beyond our
control and require a redesign and related certification of
replacement critical components.
Delays in finding and contracting with alternative suppliers
would significantly delay or suspend our ability to roll out our
Infinitus service and adversely impact our business, financial
condition and results of operations.
In addition, if we are required to find one or more alternative
suppliers for any single-provider components, we may not be able
to contract with such suppliers on a timely basis, on
commercially reasonable terms, or at all, which could adversely
impact our ability to roll out our Infinitus service. The lack of
alternative suppliers could lead to higher prices and a failure
by any of our single source providers to continue to produce the
component, or to otherwise fulfill its obligations, could have a
material adverse effect on our business, results of operations,
and financial condition.
Assertions by third parties of infringement,
misappropriation or other violations by us of their intellectual
property rights could result in significant costs and
substantially harm our business and operating
results.
In recent years, there has been significant litigation involving
intellectual property rights in many technology-based industries,
including the wireless communications industry. We may face from
time to time in the future, allegations that we or a supplier or
customer have violated the rights of third parties, including
patent, trademark and other intellectual property rights.
If, with respect to any claim against us for violation of third
party intellectual property rights, we are unable to prevail in
the litigation or retain or obtain sufficient rights or develop
non-infringing intellectual property or otherwise alter our
business practices on a timely or cost-efficient basis, our
business and competitive position may be materially adversely
affected. Many companies may be devoting significant resources to
obtaining patents that could potentially cover aspects of our
business. We have not exhaustively searched patents relevant to
our technologies and business and, therefore, it is possible that
we may be unknowingly infringing the patents of others.
Any infringement, misappropriation or related claims, whether or
not meritorious, are time-consuming, divert technical and
management personnel and are costly to resolve. As a result of
any such dispute, we may have to develop non-infringing
technology, pay damages, enter into royalty or licensing
agreements, cease providing certain products or services, adjust
our marketing activities or take other actions to resolve the
claims. These actions, if required, may be costly or unavailable
on terms acceptable to us. We anticipate that to contracts with
our prospective airline partners, we may be required to agree to
indemnify our airline partners against such claims and lawsuits,
and, in some cases, those contracts may not limit our
indemnification obligations, which, in addition to obligating us
to pay defense costs, could result in significant indemnification
obligations in the event of an adverse ruling in such an action.
In addition, certain of our suppliers may not indemnify us for
third party infringement or misappropriation claims arising from
our use of supplier technology. As a result, we may be liable in
the event of such claims. Any of these events could result in
increases in operating expenses, limit our offering of Infinitus
or result in a loss of business, if we are unable to meet our
indemnification obligations and our airline partners terminate or
fail to renew their contracts.
We or our technology suppliers may be unable to
support and/or maintain our products and/or services that may be
required to operate Infinitus.
Our future success will depend, in part, on our and our suppliers
ability to support and maintain our technology and services,
including operational requirements of commercial airlines and
business aircraft owners and operators and applications that meet
our needs and enhance operational efficiency on a timely and
cost-effective basis. If we or our suppliers fail to adapt
quickly enough to changing technology and/or industry standards,
our products and services offerings may fail to meet airline and
aircraft operator needs or regulatory requirements. We may have
to invest significant capital to keep pace with innovation and
changing technology, which could negatively impact our results of
operations.
We may not be able to protect our intellectual
property rights.
We regard our intellectual property as important to our success.
We will rely on trademark, copyright and patent law, trade secret
protection, and confidentiality agreements with our employees,
vendors, airline partners, consultants and others to protect our
proprietary rights. We have sought and obtained patent protection
for the patent for Infinitus and the trade name Infinitus Super
Highway in the United States. There can be no assurance that the
efforts we have taken to protect our proprietary rights will be
sufficient or effective, that any pending or future patent and
trademark applications will lead to issued patents and registered
trademarks in all instances, that others will not develop or
patent similar or superior technologies, products or services, or
that our patents, trademarks and other intellectual property will
not be challenged, invalidated, misappropriated or infringed by
others. Furthermore, the intellectual property laws and
enforcement practices of other countries may not protect our
products and intellectual property rights to the same extent as
the laws of the United States. If we are unable to protect our
intellectual property from unauthorized use, our ability to
exploit our proprietary technology or our brand may be harmed
and, as a result, our business and results of operations may
suffer.
The failure of our equipment or material defects or
errors in our software may damage our reputation, result in
claims against us that exceed our insurance coverage, thereby
requiring us to pay significant damages, and impair our ability
to sell our service.
Our equipment contains complex systems and components that could
contain errors or defects, particularly when we incorporate new
technology. If any of our equipment is defective, we could be
required to redesign or recall that equipment operations or pay
substantial damages or warranty claims. Such events could result
in significant expenses, disrupt that equipment operations and
affect our reputation and that of our equipment. If our on-board
equipment has a malfunction, or there is a problem with the
equipment installation, which damages an airplane or impairs its
on-board electronics or avionics, significant property loss and
serious personal injury or death could result. Any such failure
could expose us to substantial personal injury claims, product
liability claims or costly repair obligations. In particular, the
passenger jets operated by our prospective airline partners are
very costly to repair and, therefore, the damages in any product
liability claims could be material. We intend to carry aircraft
and non-aircraft product liability insurance in amounts that
exceed that of our suppliers coverage, consistent with industry
norms. However, this insurance coverage may not be sufficient to
fully cover the payment of any claims. An operations recall or a
product liability claim not covered by insurance could have a
material adverse effect on our business, financial condition and
results of operations. Our business, financial condition and
results of operations would also be materially adversely affected
should we be required by the FAA or otherwise to cease providing
the Infinitus service, even on a temporary basis, as a result of
an equipment malfunction or defect.
The software underlying our services is inherently complex and
may contain material defects or errors, particularly when the
software is first introduced or when new versions or enhancements
are released. We may from time to time coverage, find defects or
errors in our software, and undetected defects or errors may be
detected in the future. Any defects or errors that cause
interruptions to the availability of our services could result
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The costs incurred in correcting any material defects or errors
in our software may be substantial and could harm our results of
operations.
Regulation by United States and foreign government
agencies, including the FCC, which is responsible for issuing our
spectrum license, and the FAA, which regulates the civil aviation
manufacturing and repair industries in the United States, may
increase our costs of providing service or require us to change
our services.
We are subject to various regulations, including those
regulations promulgated by various federal, state and local
regulatory agencies and legislative bodies and comparable
agencies outside the United States where we may do business. The
two U.S. government agencies that have primary regulatory
authority over our operations are the Federal Communications
Commission (the FCC) and the FAA.
We are reasonably certain that we would receive the appropriate
license from the FCC; provided, however, we cannot provide any
assurance or guarantee regarding when we will receive such a
license or if will receive such a license at all.
The FCC regulates our use of the spectrum that would be licensed
to us and the licensing, construction, modification, operation,
ownership, sale and interconnection of wireless
telecommunications systems. Any breach of the terms of our
anticipated spectrum license or other licenses and authorizations
obtained by us from time to time, or any violation of the
Communications Act of 1934 (the Communications Act)or the FCCs
rules, could result in the revocation, suspension, cancellation
or reduction in the term of a license or the imposition of fines.
From time to time, the FCC may monitor or audit compliance with
the Communications Act and the FCCs rules or with our licenses,
including if a third party were to bring a claim of breach or
noncompliance. In addition, the Communications Act, from which
the FCC obtains its authority, may be amended in the future in a
manner that could be adverse to us. The FCC is currently
conducting rulemaking proceedings to consider the service rules
for certain aeronautical services and recently granted a petition
and issued a notice of proposed rulemaking in connection with a
request to designate certain spectrum. The timetable and ultimate
outcome of such rulemaking processes are unknown, and we are
unable to determine whether they would have an effect on our
business.
The commercial and private aviation industries, including civil
aviation manufacturing and repair industries, are highly
regulated in the United States by the FAA. FAA certification is
required for all equipment we install on commercial aircraft and
type certificated business aircraft, and certain of our operating
activities require that we obtain FAA certification as a parts
manufacturer. FAA approvals required to operate our business
include STCs and PMA. Obtaining STCs and PMAs is an expensive and
time-consuming process that requires significant focus and
resources. Any inability to obtain, delay in obtaining, or change
in, needed FAA certifications, authorizations, or approvals,
could have an adverse effect on our ability to meet our
installation commitments, manufacture and sell parts for
installation on aircraft, or expand our business and could,
therefore, materially adversely affect our growth prospects,
business and operating results. The FAA will closely regulate
many of our operations. If we fail to comply with the FAAs many
regulations and standards that apply to our activities, we could
lose the FAA certifications, authorizations, or other approvals
on which our manufacturing, installation, maintenance, preventive
maintenance, and alteration capabilities are based. In addition,
from time to time, the FAA or comparable foreign agencies adopt
new regulations or amend existing regulations. The FAA could also
change its policies regarding the delegation of inspection and
certification responsibilities to private companies, which could
adversely affect our business. To the extent that any such new
regulations or amendments to existing regulations or policies
apply to our activities, those new regulations or amendments to
existing regulations could generally increase our costs of
compliance.
In addition to these U.S. agencies, we may also be subject to
regulation by foreign government agencies that choose to assert
jurisdiction over us as a result of the service we intend to
provide on aircraft that fly international routes. Adverse
decisions or regulations of these U.S. and foreign regulatory
bodies could negatively impact our operations and costs of doing
business and could delay the roll-out of Infinitus and have other
adverse consequences for us. Our ability to obtain certain
regulatory approvals to offer Infinitus internationally may also
be the responsibility of a third party, and, therefore, may be
out of our control. We are unable to predict the scope, pace or
financial impact of regulations and other policy changes that
could be adopted by the various governmental entities that
oversee portions of our business.
We cannot be certain what positions regulators may take regarding
our compliance with, or lack of compliance with, current and
future legal and regulatory requirements or what positions
regulators may take regarding any past or future actions we have
taken or may take in any jurisdiction. Regulators may determine
that we are not in compliance with legal and regulatory
requirements, and impose penalties, or we may need to make
changes to the Infinitus platform, which could be costly and
difficult. Any of these events would adversely affect our
operating results and business.
We have incurred operating losses in every quarter
and may continue to incur quarterly operating losses, which could
negatively affect our stock price.
We have incurred operating losses in every quarter since we were
incorporated on January 5, 2011, and we may not be able to
generate sufficient revenue in the future to generate operating
income. We also expect our costs to increase materially in future
periods, which could negatively affect our future operating
results. We expect to continue to expend substantial financial
and other resources on the continued roll-out of our technology
roadmap. The amount and timing of these costs are subject to
numerous variables and such initiatives may require additional
funding. Such variables include, for our technology roadmap, the
availability of and costs associated with the licensing of
spectrum and the timing of the roll-out of improvements to our
technologies in the future, as well as costs incurred to develop
and implement changes to ground and airborne software and
hardware. In addition, we may incur significant costs in
connection with our pursuit of possible next generation air to
air technology or other new technologies not included in our
current roadmap. In addition, we expect to incur additional
general and administrative expenses, including legal and
accounting expenses, related to being a public company. These
investments may not result in increased revenue or growth in our
business. If we fail to grow our revenue and overall business, it
could adversely affect our financial condition and results of
operations.
We will likely need additional financing to execute
our business plan or new initiatives, which we may not be able to
secure on acceptable terms, or at all.
We will require additional financing in the near or long term to
fully execute our business plan, including our technology
roadmap. Our success may depend on our ability to raise such
additional financing on reasonable terms and on a timely basis.
The amount and timing of our capital needs will depend in part on
the extent of the acceptance of our service by prospective
airline partners and other factors that could adversely affect
our business. In addition, we are currently exploring various
options with respect to developing and implementing our Infinitus
technology and may actively consider from time to time other
significant technological, strategic and operational initiatives.
In order to execute on any of these initiatives, we would require
additional financing. Conditions in the economy and the financial
markets may make it more difficult for us to obtain necessary
additional capital or financing on acceptable terms, or at all.
If we cannot secure sufficient additional financing, we may be
forced to forego strategic opportunities or delay, scale back or
eliminate additional service deployment, operations and
investments or employ internal cost savings measures.
Increased costs and other demands associated with our
growth could impact our ability to achieve profitability over the
long term and could strain our personnel, technology and
infrastructure resources.
We expect our costs to increase in future periods, which could
negatively affect our future operating results. We continue to
experience growth in our personnel and operations, which will
place significant demands on our management, administrative,
technological, operational and financial infrastructure.
Anticipated future growth, the roll-out of our technology roadmap
and other network enhancements, will require the outlay of
significant operating and capital expenditures and will continue
to place strains on our personnel, technology and infrastructure.
Our success will depend in part upon our ability to contain costs
with respect to growth opportunities. To successfully manage the
expected growth of our operations, on a timely and cost-effective
basis we will need to continue to improve our operational,
financial, technological and management controls and our
reporting systems and procedures. In addition, as we continue to
grow, we must effectively integrate, develop and motivate new
employees, and we must maintain the beneficial aspects of our
corporate culture. If we fail to successfully manage our growth,
it could adversely affect our business, financial condition and
results of operations.
Adverse economic conditions may have a material
adverse effect on our business.
Macro-economic challenges are capable of creating volatile and
unpredictable environments for doing business. We cannot predict
the nature, extent, timing or likelihood of any economic slowdown
or the strength or sustainability of any economic recovery,
worldwide, in the United States or in the airline industry. For
many travelers, air travel is a discretionary purchase that they
can eliminate in difficult economic times. Additionally, a weaker
business environment may lead to a decrease in overall business
travel.
These conditions may make it more likely that airlines and other
aircraft operators will have fewer aircraft in flight. If
economic conditions in the United States or globally deteriorate
further or do not show improvement, we may experience material
adverse effects to our business, cash flow and results of
operations.
Our operating results may fluctuate unpredictably and
may cause us to fail to meet the expectations of investors,
adversely affecting our stock price.
Our revenue and operating results may vary from quarter to
quarter due to many factors, many of which are not within our
control. As a result, comparing our operating results on a
period-to-period basis may not be meaningful. Further, it is
difficult to accurately forecast our revenue, margin and
operating results, and if we fail to match our expected results
or the results expected by financial analysts or investors, the
trading price of our common stock may be adversely affected.
We may depend upon one or more third parties to
manufacture equipment components, provide services for our
network and install our equipment.
We will rely on third-party suppliers for equipment components
and services that we use to provide Infinitus. The supply of
third party components and services could be interrupted or
halted by a termination of our relationships, a failure of
quality control or other operational problems at such suppliers
or a significant decline in their financial conditions. We will
also rely on one ore more third parties to provide the links
between our ground network. If we are not able to continue to
engage suppliers with the capabilities or capacities required by
our business, or if such suppliers fail to deliver quality
products, parts, equipment and services on a timely basis
consistent with our schedule, our business prospects, financial
condition and results of operations could be adversely affected.
Installation of our equipment will be performed by employees of
one or more third parties service providers with whom we will
contract, and our prospective airline partners may have the right
to have their own employees or a third-party service provider of
their choice install our equipment directly. Having third parties
install our equipment reduces our control over the installation
process, including the timeliness and quality of the
installation. If there is an equipment failure, including due to
problems with the installation process, our reputation and our
relationships with our airline partners could be harmed. The
passenger jets operated by our prospective airline partners are
very costly to repair and, therefore, damages in any claims
related to faulty installation could be material. Additionally,
we may be forced to pay significant remediation costs to cover
equipment failure due to installation problems, and we may not be
able to be indemnified for a portion or all of these costs.
We may fail to recruit, train and retain the highly
skilled employees that are necessary to execute our growth
strategy. The loss of one or more of our key personnel could harm
our business.
Competition for key technical personnel in high-technology
industries such as ours is intense. We believe that our future
success depends in large part on our ability to hire, train,
retain and leverage the skills of qualified engineers and other
highly skilled personnel needed to maintain and grow our network
and related technology and develop and successfully deploy our
technology roadmap and products and technology. We may not be as
successful as our competitors at recruiting, training, retaining
and utilizing these highly skilled personnel. In particular, we
may have more difficulty attracting or retaining highly skilled
personnel during periods of poor operating performance. Any
failure to recruit, train and retain highly skilled employees
could negatively impact our business and results of operations.
We depend on the continued service and performance of our key
personnel, including J. Edward Daniels, our President; Marius de
Mos, our Vice President of Technical Affairs and Development;
Charles Neal Monte, our FAA Designated Engineering
Representative; Jason T. de Mos, our Vice President of Business
Development; Alex Sandel, Chairman of our Advisory Board; and
Earle Olson, our Vice President of Industry Relations. Such
individuals have acquired specialized knowledge and skills with
respect to Infinitus and its operations. As a result, if any of
these individuals were to leave us, we could face substantial
difficulty in hiring qualified successors and could experience a
loss of productivity while any such successor obtains the
necessary training and expertise. We do not maintain key man
insurance on any of our officers or key employees. In addition,
much of our key technology and systems are custom-made for our
business by our personnel. The loss of key personnel, including
key members of our management team, as well as certain of our key
technology personnel, could disrupt our operations and have an
adverse effect on our ability to grow our business.
Expenses or liabilities resulting from litigation
could adversely affect our results of operations and financial
condition.
From time to time, we may be subject to claims or litigation in
the ordinary course of our business, including for example,
claims related to employment matters. Our operations are
characterized by the use of new technologies and services across
multiple jurisdictions that implicate a number of statutory
schemes and a range of rules and regulations that may be subject
to broad or creative interpretation, which may subject us to
litigation, the outcome of which may be difficult to assess or
quantify due to the potential ambiguity inherent in these
regulatory schemes and/or the nascency of our technologies and
services. Plaintiffs in these types of litigation may seek
recovery of very large or indeterminate amounts, and the
magnitude of the potential loss relating to such lawsuits may
remain unknown for substantial periods of time. Any such claims
or litigation may be time-consuming and costly, divert management
resources, require us to change our products and services, or
have other adverse effects on our business. Any of the foregoing
could have a material adverse effect on our results of operations
and could require us to pay significant monetary damages. In
addition, costly and time consuming litigation could be necessary
to enforce our contracts and, even if successful, could have an
adverse effect on us. In addition, prolonged litigation against
any airline partner or supplier could have the effect of
negatively impacting our reputation and goodwill with existing
and potential airline partners and suppliers.
We will have future capital needs and may not be able
to obtain additional financing to fund our capital needs on
acceptable terms, or at all.
We have relied primarily on private placements of our equity
securities to fund our operations, capital expenditures and
expansion. The market conditions and the macroeconomic conditions
that affect the markets in which we operate could have a material
adverse effect on our ability to secure financing on acceptable
terms, if at all. We may be unable to secure additional financing
on favorable terms or at all or our operating cash flow may be
insufficient to satisfy our financial obligations. The terms of
additional financing may limit our financial and operating
flexibility. Our ability to satisfy our financial obligations
will depend upon our future operating performance, the
availability of credit generally, economic conditions and
financial, business and other factors, many of which are beyond
our control. Furthermore, if financing is not available when
needed, or is not available on acceptable terms, we may be unable
to take advantage of business opportunities or respond to
regulatory pressures, any of which could have a material adverse
effect on our business, financial condition and results of
operations.
We have from time to time evaluated, and we continue to evaluate,
our potential capital needs. We may utilize one or more types of
capital raising in order to fund any initiative in this regard,
including the issuance of new equity securities and new debt
securities, including debt securities convertible into our common
stock. If we raise additional funds through further issuances of
equity, convertible debt securities or other securities
convertible into equity, our existing stockholders could suffer
significant dilution in their percentage ownership of our
company. In addition, any new securities we issue could have
rights, preferences and privileges senior to those of holders of
our common stock, and we may grant holders of such securities
rights with respect to the governance and operations of our
business. If we are unable to obtain adequate financing or
financing on terms satisfactory to us, if and when we require it,
our ability to grow or support our business and to respond to
business challenges could be significantly limited.
As we have elected to use the extended transition
period for complying with new or revised accounting standards to
the JOBS Act of 2012, our financial statements may not be
comparable to public companies that are not emerging growth
companies.
Section 107 of the JOBS Act provides that an emerging growth
company can take advantage of the extended transition period
provided in Section 7(a)(2)(B) of the Securities Act for
complying with new or revised accounting standards. An emerging
growth company can, therefore, delay the adoption of certain
accounting standards until those standards would otherwise apply
to private companies. We have elected to take advantage of the
benefits of this extended transition period. Our financial
statements may, therefore, not be comparable to those of public
companies that comply with such new or revised accounting
standards.
As a smaller reporting company, certain reduced
disclosure and other requirements will be available to us after
we are no longer an emerging growth company.
We are, also, a smaller reporting company to the Securities
Exchange Act of 1934. Some of the reduced disclosure and other
requirements available to us as a result of the JOBS Act may
continue to be available to us after we are no longer an emerging
growth company to the JOBS Act but remain a smaller reporting
company to the Securities Exchange Act. As a smaller reporting
company we are not required to:
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Our auditor has expressed substantial doubt about our
ability to continue as a going concern.
Our financial statements have been prepared on a going concern
basis. We may not be able to generate profitable operations in
the future and/or obtain the necessary financing to meet our
obligations and pay liabilities arising from normal business
operations when they come due. The outcome of these matters
cannot be predicted with any certainty at this time. These
factors raise substantial doubt that we will be able to continue
as a going concern. We plan to continue to provide for our
capital needs through sales of our securities and/or related
party advances. Our financial statements do not include any
adjustments to the amounts and classification of assets and
liabilities that may be necessary should we be unable to continue
as a going concern.
We may not maintain sufficient insurance coverage for
the risks associated with our business operations.
Risks associated with our business and operations include, but
are not limited to, claims for wrongful acts committed by our
officers, directors, and other representatives, the loss of
intellectual property rights, the loss of key personnel and risks
posed by natural disasters. Any of these risks may result in
significant losses. We do not carry business interruption
insurance. In addition, we cannot provide any assurance that our
insurance coverage is sufficient to cover any losses that we may
sustain, or that we will be able to successfully claim our losses
under our insurance policies on a timely basis or at all. If we
incur any loss not covered by our insurance policies, or the
compensated amount is significantly less than our actual loss or
is not timely paid, our business, financial condition and results
of operations could be materially and adversely affected.
We do not have key man life insurance policies for any of our key
personnel. If we were to obtain key man insurance for our key
personnel, of which there can be no assurance, the amounts of
such policies may not be sufficient to pay losses experienced by
us as a result of the loss of any of those personnel.
Material weaknesses in our internal controls and
financial reporting may limit our ability to prevent or detect
financial misstatements or omissions. As a result, our financial
reports may not be in compliance with U.S. GAAP. Any material
weakness, misstatement or omission in our financial statements
will negatively affect the market and the price of our stock,
which could result in significant loss to our
investors.
Our current management has no experience managing and operating a
public company, and we rely in many instances on the professional
experience and advice of third parties. Therefore, we may, in
turn, experience weakness and potential problems in implementing
and maintaining adequate internal controls as required under
Section 404 of the Sarbanes-Oxley Act. This weakness also
includes a deficiency, or combination of deficiencies, in
internal controls over financial reporting, such that there is a
reasonable possibility that a material misstatement of our annual
or interim financial statements will not be prevented or detected
on a timely basis. If we fail to achieve and maintain the
adequacy of our internal controls, as such requirements are
modified, supplemented or amended from time to time, we may not
be able to ensure that we can conclude on an ongoing basis that
we have effective internal controls over financial reporting in
accordance with Section 404 of the Sarbanes-Oxley Act. Moreover,
effective internal controls, particularly those related to
revenue recognition, are necessary for us to produce reliable
financial reports and are important to help prevent financial
fraud. If we cannot provide reliable financial reports or prevent
fraud, our business and operating results could be harmed,
investors could lose confidence in our reported financial
information, and the trading price of our common stock could drop
significantly.
to Section 404 of the Sarbanes-Oxley Act, we are required to
include in our annual reports our assessment of the effectiveness
of our internal control over financial reporting as of the end of
our fiscal years. We have not yet completed any assessment of the
effectiveness of our internal control over financial reporting.
We expect to incur additional expenses and diversion of
managements time as a result of performing the system and process
evaluation, testing and remediation required in order to comply
with the management certification.
As we are an emerging growth company and have elected not to opt
out of the extended transition period created by the provisions
of the JOBS Act, during that transition period, our independent
auditor shall not attest to, and report on, the assessment made
by our management regarding the effectiveness of our internal
control structure and procedures for financial reporting.
Until we register a class of our securities to
Section 12 of the Securities Exchange Act of 1934 (the Exchange
Act), we will only be subject to the periodic reporting
obligations imposed by Section 15(d) of the Exchange
Act.
Until such time as we register a class of our securities to
Section 12 of the Exchange Act, we will only be subject to the
periodic reporting obligations imposed by Section 15(d) of the
Exchange Act. Accordingly, we will not be subject to the proxy
rules, short-swing profit provisions, going-private regulation,
beneficial ownership reporting, the majority of the tender offer
rules and the reporting requirements of the Exchange Act.
We are subject to the periodic reporting requirements
of the Exchange Act, which requires us to incur audit fees and
legal fees in connection with preparation of reports. These
additional costs could reduce or eliminate our ability to operate
profitability.
We are required to file periodic reports with the SEC to the
Exchange Act and the rules and regulations promulgated
thereunder. In order to comply with these requirements, our
independent registered public accounting firm is required to
review our financial statements on a quarterly basis and audit
our financial statements on an annual basis. Moreover, our legal
counsel is required to review and assist in the preparation of
such reports. In order for us to be compliant with our reporting
requirements of the Exchange Act, we require future revenues to
pay the costs of the required filings, which could comprise a
substantial portion of our available cash resources.
Our reporting obligations to Section 15(d) of the
Exchange Act may be suspended automatically if we have fewer than
300 shareholders of record on the first day of our fiscal
year.
As long as our common stock is not registered to the Exchange
Act, our obligations to file reports to Section 15(d) of the
Exchange Act will be automatically suspended if, on the first day
of any fiscal year (other than a fiscal year in which a
registration statement to the Securities Act of 1933 has been
declared effective), we have fewer than 300 shareholders of
record. This suspension is automatic and does not require any
filing with the SEC. In such event, we may cease providing
periodic reports, and current or periodic information, including
operational and financial information, may not be available with
respect to our results of operations. Additionally, as a result,
if the prices of our common stock are then quoted on the OTC
Bulletin Board, those prices will cease to be so quoted, which
would have a material adverse effect on our investors ability to
sell shares of our common stock and our ability to attract new
investors.
Risks Related to our Common Stock
We are an emerging growth company, and any decision
on our part to comply with certain reduced disclosure
requirements applicable to emerging growth companies could make
our common stock less attractive to investors. When we lose that
status, there will be an increase in the costs and demands placed
upon management.
We are an emerging growth company, as defined in the JOBS ACT,
and, for as long as we continue to be an emerging growth company,
we may choose to take advantage of exemptions from various
reporting requirements applicable to other public companies,
including, but not limited to, not being required to comply with
the auditor attestation requirements of Section 404 of the
Sarbanes-Oxley Act of 2002, reduced disclosure obligations
regarding executive compensation in our periodic reports and
proxy statements, and exemptions from the requirements of holding
a nonbinding advisory vote regarding executive compensation, and
stockholder approval of any golden parachute payments not
previously approved. In addition, Section 107 of the JOBS Act
also provides that an emerging growth company can take advantage
of the extended transition period provided in Section 7(a)(2)(B)
of the Securities Act for complying with new or revise accounting
standards.
An emerging growth company can, therefore, delay the adoption of
certain accounting standards until those standards would
otherwise apply to private companies. We have elected to take
advantage of the benefits of this extended transition period. Our
financial statements may, therefore, not be comparable to those
of companies that comply with such new or revised accounting
standards. We could be an emerging growth company for up to five
years, although, if the market value of our common stock that is
held by non-affiliates exceeds $700 million during that five-year
period or we issue more than $1 billion of non-convertible debt
during a 3 year period, we would cease to be an emerging growth
company. We cannot predict if investors will determine that our
common stock is less desirable, if we choose to rely on these
exemptions. If some investors determine that our common stock
less desirable, as a result of any choices to reduce future
disclosure, there may be a less active trading market for our
common stock and our stock price may be more volatile.
When we lose emerging growth company status, we expect the costs
and demands placed upon management to increase, as we would have
to comply with additional disclosure and accounting requirements,
particularly if our public float should exceed $75 million.
Volatility in our common share price may subject us
to securities litigation.
The market for our common stock may be characterized by
significant price volatility, and we expect that our share price
may 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 our management’s attention and resources.
Certain provisions of Nevada law provide for
indemnification of our officers and directors at our expense and
limit their liability, which may result in a major cost to us and
damage the interests of our shareholders, because our resources
may be expended for the benefit of our officers and/or
directors.
Applicable Nevada law provides for the indemnification of our
directors, officers, employees, and agents, under certain
circumstances, for attorneys fees and other expenses incurred by
them in any litigation to which they become a party resulting
from their association with us or activities on our behalf. We
will also pay the expenses of such litigation for any of our
directors, officers, employees, or agents, upon such persons
promise to repay us, if it is ultimately determined that any such
person shall not have been entitled to indemnification. This
indemnification policy could result in substantial expenditures
by us, which we will be unable to recover.
We have been advised that, in the opinion of the SEC,
indemnification for liabilities occurring to federal securities
laws is against public policy as expressed in the Securities Act
and, therefore, unenforceable. In the event that a claim for
indemnification against these types of liabilities, other than
the payment by us of expenses incurred or paid by a director,
officer, or controlling person in the successful defense of any
action, lawsuit, or proceeding, is asserted by a director,
officer, or controlling person in connection with our securities
being registered, we will (unless in the opinion of our counsel,
the matter has been settled by controlling precedent) submit to a
court of appropriate jurisdiction, the issue of whether such
indemnification by us is against public policy as expressed in
the Securities Act, and we will be governed by the final
adjudication of such issue. The legal process relating to this
matter, if it were to occur, probably will be very costly and may
result in us receiving negative publicity, either of which
factors would probably materially reduce the market and price for
our common stock.
The market for our common stock is subject to the
penny stock restrictions, which results in lack of liquidity and
make trading difficult or impossible.
SEC Rule 15g-9 establishes the definition of a penny stock, for
purposes relevant to us, as an equity security that has a market
price of less than $5.00 per share or with an exercise price of
less than $5.00 per share, subject to a limited number of
exceptions. It is probable that our common stock will be
considered to be a penny stock for the immediately foreseeable
future. This classification severely and adversely affects the
market liquidity for our common stock. For any transaction
involving a penny stock, unless exempt, the penny stock rules
require that a broker-dealer approve a persons account for
transactions in penny stocks, and the broker-dealer receive from
the investor a written agreement to the transaction setting forth
the identity and quantity of the penny stock to be purchased.
To approve a persons account for transactions in penny stocks,
the broker-dealer must obtain financial information, investment
experience and objectives of that person and make a reasonable
determination that transactions in penny stocks are suitable for
that person and that person has sufficient knowledge and
experience in financial matters to be capable of evaluating the
risks of transactions in penny stocks.
The broker-dealer must, also, deliver, prior to any transaction
in a penny stock, a disclosure schedule prepared by the SEC
relating to the penny stock market, which, in highlight form,
sets forth:
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Disclosure, also, has to be made about the risks of investing in
penny stock in both public offerings and in secondary trading and
commissions payable to, both, the broker-dealer and the
registered representative, current quotations for the securities,
and the rights and remedies available to an investor in cases of
fraud in penny stock transactions. Finally, monthly statements
must be sent disclosing recent price information for the penny
stock held in the account and information on the limited market
in penny stocks.
Because of these regulations, broker-dealers may desire to not
engage in the necessary paperwork and disclosures and encounter
difficulties in their attempt to sell our common stock, which may
affect the ability of the selling shareholders or other holders
to sell our common stock in the secondary market and have the
effect of reducing trading activity in the secondary market of
our common stock. These additional sales practice and disclosure
requirements could impede the sale of our common stock, if and
when our common stock becomes publicly traded. In addition, the
liquidity of our common stock may decrease, with a corresponding
decrease in the price of our common stock. Our common stock, in
all probability, will be subject to such penny stock rules for
the foreseeable future and our shareholders will, quite probably,
have difficulty selling our common stock.
We intend to not pay dividends on our common
stock.
We have not paid any dividends on our common stock, and we have
no plans to pay dividends on our common stock in the foreseeable
future.
We intend to retain earnings, if any, to provide funds for the
operation of our business. Therefore, there can be no assurance
that holders of our common stock will receive any additional
cash, stock or other dividends on their shares of our common
stock until we have funds which our board of directors determines
can be allocated to dividends. Investors that require liquidity
should also not invest in our common stock. The trading market
for our common stock may be volatile and subject to minimal
trading volumes.
Sales of our common stock in reliance on Rule 144 may
reduce prices in that market by a material amount.
A significant number of the outstanding shares of our common
stock are restricted securities within the meaning of Rule 144
under the Securities Act. As restricted securities, those shares
may be resold only to an effective registration statement or to
the requirements of Rule 144 or other applicable exemptions from
registration under that act and as required under applicable
state securities laws. Rule 144 provides in essence that an
affiliate (i.e., an officer, director, or control person) who has
held restricted securities for a prescribed period may, under
certain conditions, sell every three months, in brokerage
transactions, a number of shares that does not exceed 1.0% of the
issuers outstanding common stock. The alternative average weekly
trading volume during the four calendar weeks prior to the sale
is not available to our shareholders, as the OTCBB (if and when
the prices of our common stock are quoted thereon) is not an
automated quotation system and, accordingly, market based volume
limitations are not available for securities quoted only on the
OTCBB.
to the provisions of Rule 144, there is no limit on the number of
restricted securities that may be sold by a non-affiliate (i.e.,
a stockholder who has not been an officer, director or control
person for at least 90 consecutive days before the date of the
proposed sale) after the restricted securities have been held by
the owner for a prescribed period. A sale under Rule 144 or under
any other exemption from the Securities, if available, or to
registration of shares of our common stock held by our
stockholders, may reduce the price of our common stock in any
market that may develop.
The trading market for our common stock may be
restricted, because of state securities Blue Sky laws which
prohibit trading absent compliance with individual state
laws.
Transfers of our common stock may be restricted under the
securities laws promulgated by various states and foreign
jurisdictions, commonly referred to as Blue Sky laws. Absent
compliance with such laws, our common stock may not be traded in
such jurisdictions. Because the shares of our common stock
registered hereunder have not been registered for resale under
the Blue Sky laws of any state, the holders of such shares and
persons who desire to purchase such shares in any trading market
that might develop in the future, should be aware that there may
be significant state Blue Sky law restrictions upon the ability
of investors to sell and purchasers to purchase such shares.
These restrictions prohibit the secondary trading our common
stock. We currently do not intend and may not be able to qualify
securities for resale in those states which do not offer manual
exemptions and require securities to be qualified before they can
be resold by our shareholders. Accordingly, investors should
consider the secondary market for our securities to be limited.
We may be exposed to liabilities under the Foreign
Corrupt Practices Act.
We are subject to the U.S. Foreign Corrupt Practices Act (FCPA),
and other laws that prohibit improper payments or offers of
payments to foreign governments and their officials and political
parties by U.S. persons and issuers as defined by the statute for
the purpose of obtaining or retaining business.
Although we believe to date we have complied in all material
aspects with the provisions of the FCPA, our existing safeguards
and any future improvements may prove to be less than effective,
and the employees, consultants or agents of the Company may
engage in conduct for which we might be held responsible.
Violations of the may result in severe criminal or civil
sanctions including personal liability for management, and we may
be subject to other liabilities, which could negatively affect
our business, operating results and financial condition. In
addition, the government may seek to hold the Company liable for
successor liability FCPA violations committed by companies in
which we invest or that we acquire.
Risks Relating to Our Common Stock
The price of our common stock may be volatile and the
value of our common stock could decline.
The trading price of our common stock has been volatile. The
trading price of our common stock may fluctuate widely in
response to various factors, many of which are beyond our
control. They include:
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In addition, the stock markets have experienced extreme price and
volume fluctuations in recent years that have affected and
continue to affect the market prices of equity securities of many
technology companies. Stock prices of many such companies have
fluctuated in a manner unrelated or disproportionate to the
operating performance of those companies. These broad market
fluctuations may adversely affect the trading price of our common
stock. In the past, following periods of volatility in the market
price of a companys securities, class action litigation has often
been instituted against such company. Any litigation of this type
brought against us could result in substantial costs and a
diversion of our managements attention and resources, which would
harm our business, operating results and financial condition.
Future stock issuances could cause substantial
dilution and a decline in our stock price.
We may issue additional shares of common stock or other equity or
debt securities convertible into common stock in connection with
a financing, acquisition, litigation, settlement or employee
arrangement or otherwise. In addition, a certain number of shares
of our common stock are reserved for issuance upon the exercise
of stock options and other equity incentives. We may reserve
additional shares of our common stock for issuance upon the
exercise of stock options or other similar forms of equity
incentives. We cannot predict the size of future issuances or the
effect, if any, that they may have on the market price for our
common stock. Any of these issuances could result in substantial
dilution to our existing stockholders and could cause the trading
price of our common stock to decline.
If securities or industry analysts do not publish
research or publish misleading or unfavorable research about our
business, our stock price and trading volume could
decline.
The trading market for our common stock depends in part on the
research and reports that securities or industry analysts publish
about us or our business. If securities or industry analysts
covering our operations downgrade our stock or publish misleading
or unfavorable research about our business, our stock price would
likely decline. If one or more of these analysts ceases coverage
of the Company or fails to publish reports on us regularly,
demand for our stock could decrease, which could cause our stock
price or trading volume to decline.
Our significant stockholder could exert influence
over our company, and if the ownership of our common stock
continues to be concentrated, or becomes more concentrated in the
future, it could prevent our other stockholders from influencing
significant corporate decisions.
Apcentive, Inc., a Nevada corporation (Apcentive) owns
approximately 54% of the outstanding shares of our common stock.
As a result, Apcentive will be able to exercise influence over
all matters requiring stockholder approval for the foreseeable
future, including approval of significant corporate transactions,
which may reduce the market price of our common stock.
The interests of Apcentive may conflict with the interests of our
other stockholders. Our corporate governance guidelines address
potential conflicts between a directors interests and our
interests, and requires our employees and directors to avoid
actions or relationships that might conflict or appear to
conflict with their job responsibilities or our interests and to
disclose their outside activities, financial interests or
relationships that may present a possible conflict of interest or
the appearance of a conflict to management or corporate counsel.
These corporate governance guidelines and code of business ethics
do not, by themselves, prohibit transactions with Apcentive.
Regulations related to conflict minerals may force us
to incur additional expenses and may make our supply chain more
complex.
We are subject to the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010, which requires us to diligence, disclose
and report whether or not our products contain certain minerals
and metals, known as conflict minerals. These new requirements
could adversely affect the sourcing, availability and pricing of
certain of the materials used in the manufacture of components in
our products and equipment. In addition, we will incur additional
costs to comply with the disclosure requirements, including costs
related to conducting diligence procedures to determine the
sources of conflict minerals that may be used or necessary to the
production of our products and, if applicable, potential changes
to products, processes or sources of supply as a consequence of
such verification activities.
Financial Information
Relevant financial information is specified as ITEM 7. MANAGEMENT
DISCUSSION AND ANALYSIS OF FINANICAL CONDITION AND RESULTS OF
OPERATIONS and ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY
DATA of the Annual Report.
Properties
Relevant information regarding our properties is specified in
ITEM 2. PROPERTIES of the Annual Report.
Security Ownership of Certain Beneficial Owners and
Management
Relevant information regarding security ownership of certain
beneficial owners and management is specified in ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS of the Annual Report.
Directors and Executive Officers
Relevant information regarding our directors and executive
officers is included in Item 9B. OTHER INFORMATION AND SUBSEQUENT
EVENTS and Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE of the Annual Report.
Executive Compensation
Relevant information regarding executive compensation is
specified in Item 9B. OTHER INFORMATION AND SUBSEQUENT EVENTS and
ITEM 11. EXECUTIVE COMPENSATION of the Annual Report.
Certain Relationships and Related Transactions, and
Director Independence
Relevant information regarding certain relationships and related
transactions, and director independence is included in ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE of the Annual Report.
Legal Proceedings
Relevant information regarding legal proceedings is specified in
ITEM 3. LEGAL PROCEEDINGS specified in the Annual Report.
Market Price of and Dividends on our Common Equity and
Related Stockholder Matters
Relevant information regarding the market price of and dividends
on our common equity and related stockholder matters is specified
in ITEM 5. MARKET FOR REGISTRANTS COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES,
Item 9B. OTHER INFORMATION AND SUBSEQUENT EVENTS and ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS specified in the Annual Report.
Recent Sales of Unregistered Securities.
Relevant information regarding recent sale of unregistered
securities is specified in ITEM 5. MARKET FOR REGISTRANTS COMMON
EQUITY AND RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES and Item 9B. OTHER INFORMATION AND SUBSEQUENT
EVENTS of the Annual Report.
Description of our Securities
Relevant information regarding our securities is specified in
ITEM 5. MARKET FOR REGISTRANTS COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES of
the Annual Report.
Indemnification of Directors and Officers
Our Articles of Incorporation provide that the liability of our
officers and directors for monetary damages shall be eliminated
to the fullest extent permissible under Nevada law.
Applicable Nevada law provides for the indemnification of our
directors, officers, employees, and agents, under certain
circumstances, for attorneys fees and other expenses incurred by
them in any litigation to which they become a party resulting
from their association with us or activities on our behalf. We
will also pay the expenses of such litigation for any of our
directors, officers, employees, or agents, upon such persons
promise to repay us, if it is ultimately determined that any such
person shall not have been entitled to indemnification. This
indemnification policy could result in substantial expenditures
by us, which we will be unable to recover.
Disclosure of Securities and Exchange Commissions
Position on Indemnification for Securities Act
Liabilities
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors,
officers and controlling persons to the provisions above, or
otherwise, we have been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933,
and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities, other than the payment by us of expenses incurred or
paid by one of our directors, officers, or controlling persons in
the successful defense of any action, suit or proceeding, is
asserted by one of our directors, officers, or controlling person
in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled
by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification is against
public policy as expressed in the Securities Act of 1933, and we
will be governed by the final adjudication of such issue.
Financial Statements and Supplementary Data
Our financial statements and supplementary data are specified in
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA of the Annual
Report.
Changes and Disagreements with Accountants on Accounting
and Financial Disclosure
Relevant information regarding changes and disagreements with
accountants on accounting and financial disclosure is specified
in ITEM 9. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE of the Annual Report.
Financial Statements and Exhibits
(a) The financial statements included in the Annual Report are:
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Audited balance sheets as of August 31, 2016, and August 31, 2015. |
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Audited Statements of Operations for the fiscal years ended August 31, 2016, and August 31, 2015. |
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Audited Statement of Stockholder Deficit for the years ended August 31, 2016, and August 31, 2015. |
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Audited Statements of Cash Flow for the years ended August 31, 2016, and August 31, 2015. |
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Notes to the audited financial statements for the years ended August 31, 2016, and August 31, 2015. |
(b) The exhibits required by Item 601 of Regulation S-K are
identified in ITEM 15. EXHIBITS of the Annual Report.
ITEM 5.06 CHANGE IN SHELL COMPANY STATUS
As a result of the change in the nature of our assets and
operations, we have ceased to be a shell company (as defined in
Rule 12b-2 of the Exchange Act).
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