UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended: December 31, 2008
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
Commission File Number: 000-24379
ATLANTICA, INC.
(Exact Name of registrant as specified in its Charter)
Utah |
43-0976473 |
(State or other Jurisdiction of Incorporation or organization) |
(I.R.S. Employer Identification No.) |
c/o Richland, Gordon & Company
9330 Sears Tower
233 S. Wacker Drive
Chicago, Illinois 60606
(Address of Principal Executive Offices)
(312) 382-9330
(Registrants Telephone Number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $0.0001
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes [ ] No [X]
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act 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.
(1) Yes [X] No [ ] (2) Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrants knowledge, in definitive proxy or information statements incorporated by reference in Part IV of this Form 10-K or any amendment to this Form 10-K. [X]
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Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company:
|
|
Large accelerated filer [ ] |
Accelerated filed [ ] |
Non-accelerated filer [ ] |
Smaller reporting company [X] |
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ]
Aggregate Market Value of Non-Voting Common Stock Held by Non-Affiliates
State the aggregate market value of the voting and non-voting common stock held by non-affiliates computed by reference to the price at which the common stock was last sold, or the average bid and asked price of such common stock, as of the last business day of the Registrants most recently completed second quarter.
The market value of the voting and non-voting common stock is $49.17, based on 491,718 shares held by non-affiliates at the par value of $0.0001 per share on June 30, 2008. Due to the extremely limited trading market for the Registrants common stock, these shares have been arbitrarily valued at par value of $0.0001 per share.
Applicable Only to Registrants Involved in Bankruptcy Proceedings During the Preceding Five Years
Not applicable.
Outstanding Shares
As of April 15, 2009, the Registrant had 2,458,590 shares of common stock and no shares of preferred stock outstanding.
Documents Incorporated by Reference
See Part IV, Item 15.
PART I
FORWARD LOOKING STATEMENTS
In this Annual Report, references to Atlantica, Inc., Atlantica, the Company, we, us, our and words of similar import refer to Atlantica, Inc., the Registrant.
This Annual Report contains certain forward-looking statements, and for this purpose, any statements contained in this Annual Report that are not statements of historical fact may be deemed to be forward-looking statements. Without limiting the foregoing, words such as may, will, expect, believe, anticipate, estimate or continue or comparable terminology are intended to identify forward-looking statements. These statements by their nature involve substantial risks and uncertainties, and actual results may differ materially depending on a variety of factors, many of which are not within our control. These factors include but are not limited to economic conditions generally and in the markets in which we may participate, competition within our chosen industry, technological advances and failure by us to successfully develop business relationships.
ITEM 1. BUSINESS
Business Development
Our Company was organized pursuant to the laws of the State of Utah on March 3, 1938, under the name Red Hills Mining Company, with an authorized capital of $20,000 divided into 2,000,000 shares of common stock of a par value of $0.01 per share. Our Company was formed for the primary purpose of conducting the business of mining in all of its branches.
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On February 5, 1953, we changed our name to Allied Oil and Minerals Company, with our primary purpose continuing to be mining.
On January 8, 1971, we changed our name to Community Equities Corporation, we increased our authorized capital from $20,000 to $150,000, comprised of 15,000,000 at $.01 and our purpose also changed to the business of real estate development. We discontinued the real estate development operations in 1990.
Effective March 26, 1996, the corporate charter was reinstated, and we changed our corporate name to Atlantica, Inc.
On March 13, 1998, we increased our authorized capital from 15,000,000 shares of $.01 par value to 25,000,000 shares of $0.0001 par value common stock; and we authorized a reverse split of one share for every 20 shares. We also authorized the issuance of 24,000,000 shares to Gregory Aurre, President and a director, for services rendered and expenses paid. The Board also issued 25,000 shares each to Amerika Aurre, Vice President and a director and Gregory Aurre III, Secretary and a director, for services rendered. We also adopted new Bylaws.
On October 30, 2002, the Board of Directors resolved to appoint new officers and directors since Gregory Aurre II, Gregory Aurre III and Amerika Aurre all resigned, in seriatim, from any and all capacity as officers and directors. Thomas J. Howells was appointed as President and director, Terry Jenson as Vice President and director and Travis T. Jenson as Secretary and director.
On November 12, 2002, the 23,908,000 shares held by Gregory Aurre II, was foreclosed on to satisfy debt in the amount of $80,000, owed to Duane S. Jenson. Mr. Jenson had personally loaned Mr. Aurre the $80,000 which was secured solely by Mr. Aurres shares of the Company. Subsequent to foreclosing on the shares of Mr. Aurres that were held by Mr. Jenson as security for the loan, Mr. Jenson elected to gift a portion of those shares to his son, Travis T. Jenson, as well as to a business associate, Thomas J. Howells, and a long-time friend and legal counsel, Leonard W. Burningham, Esq.
On November 15, 2002, we were reinstated with the State of Utah.
On November 30, 2004 Thomas J. Howells resigned as President and a director and Travis T. Jenson resigned as Secretary and a director. Shelley Goff and Duane S. Jenson were appointed as Secretary and President, respectively. Mr. Jenson and Ms. Goff were also directors.
A copy of our Bylaws was attached to our Annual Report for the year ended December 31, 2001, and is incorporated herein by reference. See Part IV, Item 15.
A copy of our Articles of Incorporation, as amended, was attached to our initial Registration Statement on Form 10-SB and is incorporated herein by reference. See Part IV, Item 15.
On December 27, 2006 we filed a definitive Information Statement with the Securities and Exchange Commission regarding a one-for-10 (1:10) pro rata reverse split of our outstanding common stock (Proposal 1) and the adoption of Amended and Restated Articles of Incorporation (Proposal 2), to be voted upon at a special meeting of our shareholders (the Meeting). The Information Statement that was mailed to our stockholders was accompanied by a Notice of Special Meeting of Shareholders, both of which were mailed to our shareholders on or about January 5, 2007. Please see the Exhibit Index, Part IV, Item 15, for a copy of the Definitive Information Statement, as filed on December 27, 2006, which is incorporated herein by reference.
These resolutions were unanimously adopted by our Board of Directors. Duane S. Jenson, and his son, Travis T. Jenson, who, at that time, collectively, beneficially owned 16,000,683 shares of our common stock or approximately 65.1% of our outstanding voting securities, agreed to and intended to vote in favor of the Proposals at the Meeting. No other votes were required or necessary to adopt these Proposals.
The Meeting was held at 4685 South Highland Drive, #202, Salt Lake City, Utah, 84117, on January 26, 2007, at 11:00 oclock a.m., Mountain Standard Time. Present at the Meeting was Leonard W. Burningham, Esq., former counsel for the Company, Duane S. Jenson and Travis T. Jenson, representing 19,908,683 shares, or approximately 81%, of the 24,581,458 shares of our outstanding voting securities at that time.
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All shares represented at the Meeting voted in favor of both Proposals. The reverse split subsequently became effective on February 15, 2007. That stock split is reflected herein on a retroactive basis.
On June 29, 2007, pursuant to a Stock Purchase Agreement among Mirabella Holdings, LLC, (the Purchaser), Duane S. Jenson, Travis T. Jenson, Thomas J. Howells, Leonard W. Burningham (collectively with Duane S. Jenson, Travis T. Jenson and Thomas J. Howells, the Sellers), and Leonard W. Burningham, as the representative of the Sellers, the Purchaser acquired from the Sellers a total of 1,966,872 shares of the Companys common stock (the Acquisition), representing 80% of the Companys currently outstanding shares, for a purchase price of $525,000 in cash. Upon the closing of the Acquisition, Duane S. Jenson and Terry Jenson resigned as directors and executive officers, Shelley Goff resigned as a director, retained her office as the Companys Secretary and was elected the Companys Chief Financial Officer; and Alan D. Gordon was appointed as the Companys President and Chief Executive Officer. In connection with the Acquisition and effective July 16, 2007, Alan D. Gordon, Frederick G. Pierce, II and Richard F. Strup were appointed as directors, and Duane S. Jenson, Terry Jenson and Shelley Goff resigned as directors. See the 8-K Current Report dated June 29, 2007 and filed with the Securities and Exchange Commission on July 3, 2007, and see the Schedule 14F-1 Information Statement filed with the Securities and Exchange Commission on July 3, 2007 and mailed to our stockholders on or about July 5, 2007. See Part IV, Item 15 of this Report.
Description of Business
We are currently seeking potential assets, property or businesses to acquire, in a business combination, by reorganization, merger or acquisition. We have had no material business operations since March 7, 1997. Our plan of operation for the next 12 months is to: (i) consider guidelines of industries in which we may have an interest; (ii) adopt a business plan regarding engaging in the business of any selected industry; and (iii) to commence operations through funding and/or the acquisition or business combination with a going concern engaged in any industry selected. We are unable to predict the time as to when and if we may actually participate in any specific business endeavor, and we will be unable to do so until we determine any particular industry in which we may conduct business operations.
We are not currently engaged in any substantive business activity except the search for potential assets, property or businesses to acquire, and we have no current plans to engage in any other activity in the foreseeable future unless and until we complete any such acquisition. In our present form, we are deemed to be a shell company seeking to acquire or merge with a business or company. We do not intend to restrict our search for business opportunities to any particular business or industry, and the areas in which we will seek out business opportunities may include all lawful businesses. We recognize that the number of suitable potential business ventures that may be available to us will be extremely limited, and may be restricted to businesses or entities that desire to become a publicly-held company while avoiding what many may deem to be the adverse factors related to an initial public offering (IPO) as a method of going public. The most prevalent of these factors include the substantial time requirements, legal and accounting costs, the inability to obtain an underwriter who is willing to publicly offer and sell securities on behalf of the particular entity, the lack of or the inability to obtain the required financial statements for such an undertaking, state limitations on the amount of dilution to public investors in comparison to the stockholders of any such entity, along with other conditions or requirements imposed by various federal and state securities laws, rules and regulations and federal and state agencies that implement them.
Amendments to SEC Form 8-K regarding shell companies and transactions with shell companies require the filing of all information about an acquired company that would have been required to have been filed had any such company filed a Form 10 Registration Statement with the SEC, along with required audited, interim and proforma financial statements, within four business days of the closing of any such transaction (Item 5.01(a)(8) of Form 8-K); and the recent amendments to Rule 144 (Rule 144) of the Securities Act of 1933, as amended (the Securities Act) adopted by the SEC that were effective on February 15, 2008, that limit the resale of most securities of shell companies until 12 months after the filing of such information (the Form 10 Information), may eliminate many of the perceived advantages of going public transactions with shell companies. These types of transactions are customarily referred to as reverse reorganizations or mergers in which the acquired companys stockholders become the controlling stockholders in the acquiring company and the acquiring company becomes the successor to the business operations of the acquired company. Regulations governing shell companies also deny the use of SEC Form S-8 for the registration of securities and limit the use of SEC Form S-8 to a reorganized shell company until
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the expiration of 60 days from when any such entity is no longer considered to be a shell company. This prohibition could further restrict opportunities for us to acquire companies that may already have stock option plans in place that cover numerous employees. In such instances, there may be no exemption from registration for the issuance of securities in any business combination to these employees, thereby necessitating the filing of a registration statement with the SEC to complete any such reorganization, and incurring the time and expenses that are normally avoided by reverse reorganizations or mergers.
Recent amendments to Rule 144, adopted by the SEC and effective on February 15, 2008, codify the SECs prior position limiting the tradeability of certain securities of shell companies, including those issued by us in any business combination, and further limit the tradeability of additional securities of shell companies; these proposals will further restrict the availability of opportunities for us to acquire any business or enterprise that desires to utilize us as a means of going public. See the heading in Rule 144 Part II, Item 5, for a discussion of the general requirements of Rule 144 and the limitations of Rule 144 with respect to shell companies.
Any of these types of business combination transactions, regardless of the particular prospect, would require us to issue a substantial number of shares of our common stock that could amount to as much as 95% or more of our outstanding voting securities; accordingly, investments in the private enterprise, if available, would be much more favorable than any investment in us.
Management intends to consider a number of factors prior to making any decision to participate in any specific business endeavor, none of which may be determinative or provide any assurance of success. These may include, but will not be limited to, as applicable, an analysis of the quality of the particular business or entitys management and personnel; the anticipated acceptability of any new products or marketing concepts that any such business or company may have; the merits of any such businesss or companys technology or intellectual property; the present financial condition, projected growth potential and available technical, financial and managerial resources; working capital, history of operations and future prospects; the nature of present and expected competition; the quality and experience of any such businesss or companys management services and the depth of management; the business or the companys potential for further research, development or exploration; risk factors specifically related to the businesss or companys operations; the potential for growth, expansion and profit; the perceived public recognition or acceptance of products, or services offered and trademarks and name identification; and numerous other factors that are difficult, if not impossible, to properly or accurately quantify or analyze, let alone describe or identify, without referring to specific objective criteria of an identified business or company.
Regardless, the results of operations of any specific entity may not necessarily be indicative of what may occur in the future, by reason of changing market strategies, plant or product expansion, changes in product emphasis, future management personnel and changes in innumerable other factors. Further, in the case of a new business venture or one that is in a research and development mode, the risks will be substantial, and there will be no objective criteria to examine the effectiveness or the abilities of its management or its business objectives. Also, a firm market for its products or services may yet need to be established, and with no past track record, the profitability of any such business will be unproven and cannot be predicted with any certainty.
Our management will attempt to meet personally with management and key personnel of any entity providing a potential business opportunity for us, visit and inspect material facilities, obtain independent analysis or verification of information provided and gathered, check references of material personnel and conduct other reasonably prudent measures calculated to ensure a reasonably thorough review of any particular business opportunity; however, due to time constraints of management and limited capital, these activities may be limited.
We are unable to predict the time as to when and if we may actually participate in any specific business endeavor or if at all. We anticipate that proposed business ventures will be made available to us through personal contacts of directors, executive officers and principal stockholders, professional advisors, broker dealers in securities, venture capital personnel and others who may present unsolicited proposals. In certain cases, we may agree to pay a finders fee or to otherwise compensate the persons who submit a potential business endeavor in which we eventually participate. Such persons may include our directors, executive officers and beneficial owners of our securities or their affiliates. In this regard, see the description of our management services agreement with Richland, Gordon & Company contained in Part III, Item 13 of this Report, and a copy of that agreement included in Part IV, Item 15 of this Report, with respect to, among other things, certain cash fees that may be payable by us to Richland, Gordon in
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connection with future financings and business combinations by us. In this event, such fees may become a factor in negotiations regarding any potential venture and, accordingly, may present a conflict of interest for such individuals.
Although we currently have no plans to do so, depending on the nature and extent of services rendered, we may compensate members of our management in the future for services that they may perform for us. Because we currently have extremely limited resources, and we are unlikely to have any significant resources until we have determined a business or enterprise to engage in or have completed a business combination, management expects that any such compensation would take the form of an issuance of shares of our common stock to these persons; this would have the effect of further diluting the holdings of our other stockholders. There are presently no preliminary agreements or understandings between us and members of our management respecting such compensation. Any shares issued to members of our management would be required to be resold under an effective registration statement filed with the SEC or could not be publicly sold until 12 months after we file the Form 10 information about the business combination with the SEC as now required by SEC Form 8-K. These provisions could further inhibit our ability to complete any business combination where finders or others who may be subject to these resale limitations refuse to provide us with any introductions or to close any such transactions unless they are paid requested fees in cash rather than our shares or unless we agree to file a registration statement with the SEC that includes any shares that are to be issued to them, at no cost to them. These expenses could limit potential acquisition candidates, especially those in need of cash resources, and could affect the number of shares that our stockholders retain following any such transaction, by reason of the increased expense.
Substantial fees are also often paid in connection with the completion of all types of business combinations, ranging from a small amount to as much as $400,000 or more. These fees are usually divided among promoters or founders or finders, after deduction of legal, accounting and other related expenses, and it is not unusual for a portion of these fees to be paid to members of management or to principal stockholders as consideration for their agreement to retire a portion of their shares of common stock or as consideration to them to provide an indemnification for all of our prior liabilities. Members of management may also actively negotiate or otherwise consent to the purchase of all or any portion of their shares of common stock as a condition to, or in connection with, a proposed business combination. It is not anticipated that any such opportunity will be afforded to other stockholders or that such other stockholders will be afforded the opportunity to approve or consent to any particular stock buy-out transaction. In the event that any such fees are paid or shares are purchased, these requirements may become a factor in negotiations regarding any business combination with us and, accordingly, may also present a conflict of interest for such individuals. Any of these types of fees that are paid in shares of our common stock will also be subject to the resale limitations embodied in the recent amendments to Rule 144 that prohibit, among other requirements, the public resale of these shares until 12 months after the filing of the Form 10 information with the SEC. We have no present arrangements or understandings respecting any of these types of fees or opportunities, other than pursuant to our management services agreement with Richland, Gordon & Company. See the description of our management services agreement with Richland, Gordon & Company contained in Part III, Item 13 of this Report, and a copy of that agreement included in Part IV, Item 15 of this Report, with respect to, among other things, certain cash fees that may be payable by us to Richland, Gordon in connection with future financings and business combinations by us.
Competitive Business Conditions and Our Competitive Position in the Industry and Methods of Competition
Management believes that there are literally thousands of shell companies engaged in endeavors similar to those engaged in by us; many of these companies have substantial current assets and cash reserves. Competitors also include thousands of other publicly-held companies whose business operations have proven unsuccessful, and whose only viable business opportunity is that of providing a publicly-held vehicle through which a private entity may have access to the public capital markets via a reverse reorganization or merger. There is no reasonable way to predict our competitive position or that of any other entity in these endeavors; however, we, having limited assets and no cash reserves, will no doubt be at a competitive disadvantage in competing with shell companies that have significant cash resources and have recent operating histories when compared with our lack of any substantive operations for many years.
Effect of Existing or Probable Governmental Regulations on our Business
We are subject to the following regulations of the SEC and applicable securities laws, rules and regulations:
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Smaller Reporting Company
We are subject to the reporting requirements of Section 13 of the Securities Exchange Act of 1934, as amended (the Exchange Act), and subject to the disclosure requirements of Regulation S-K of the SEC, as a smaller reporting company. That designation will relieve us of some of the informational requirements of Regulation S-K applicable to larger companies.
Sarbanes/Oxley Act
We are also subject to the Sarbanes/Oxley Act of 2002. The Sarbanes/Oxley Act created a strong and independent accounting oversight board to oversee the conduct of auditors of public companies and strengthens auditor independence. It also requires steps to enhance the direct responsibility of senior members of management for financial reporting and for the quality of financial disclosures made by public companies; establishes clear statutory rules to limit, and to expose to public view, possible conflicts of interest affecting securities analysts; creates guidelines for audit committee members appointment, compensation and oversight of the work of public companies auditors; management's assessment of our internal controls; auditor attestation to managements conclusions about internal controls (anticipated to commence with the December 31, 2009, year end); prohibits certain insider trading during pension fund blackout periods; requires companies and auditors to evaluate internal controls and procedures; and establishes a federal crime of securities fraud, among other provisions. Compliance with the requirements of the Sarbanes/Oxley Act will substantially increase our legal and accounting costs.
Exchange Act Reporting Requirements
Section 14(a) of the Exchange Act requires all companies with securities registered pursuant to Section 12(g) of the Exchange Act to comply with the rules and regulations of the SEC regarding proxy solicitations, as outlined in Regulation 14A. Matters submitted to stockholders at special or annual meetings thereof or pursuant to a written consent will require us to provide our stockholders with the information outlined in Schedules 14A or 14C of Regulation 14; preliminary copies of this information must be submitted to the SEC at least 10 days prior to the date that definitive copies of this information are forwarded to our stockholders.
We are also required to file Annual Reports on SEC Form 10-K and Quarterly Reports on SEC Form 10-Q with the SEC on a regular basis, and will be required to timely disclose certain material events (e.g., changes in corporate control; acquisitions or dispositions of a significant amount of assets other than in the ordinary course of business; and bankruptcy) in a Current Report on SEC Form 8-K.
Number of Total Employees and Number of Full Time Employees
We have no employees.
ITEM 1A. RISK FACTORS
As a smaller reporting company, we are not required to provide risk factors.
ITEM 2: PROPERTIES
Our Company has no assets, property or business; its principal executive office address and telephone number are the office address and telephone number of Alan D. Gordon, who is our President and a director and an affiliate of Mirabella Holdings, LLC (our current majority stockholder), which are provided at no cost to the Company. See Part I, Item 1. Because the Company has had no business, its activities have been limited to keeping itself in good standing in the State of Utah. These activities have consumed an insignificant amount of managements time; accordingly, the costs to Mr. Gordon of providing the use of his office and telephone have been minimal.
ITEM 3: LEGAL PROCEEDINGS
We are not a party to any pending legal proceeding and, to the knowledge of our management; no federal, state or local governmental agency is presently contemplating any proceeding against us. No director, executive officer or affiliate of ours or owner of record or beneficially of more than 5% of our common stock is a party adverse to us or has a material interest adverse to us in any proceeding.
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ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
We have not submitted a matter to a vote of our shareholders during the fourth quarter of our fiscal year ended December 31, 2008.
PART II
ITEM 5: MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
There is no established trading market for our shares of common stock. Commencing on or about January 5, 2006, our shares of common stock were listed on the OTC Bulletin Board of the Financial Industry Regulatory Authority, Inc. (FINRA) under the symbol AIAN; we received a new symbol of ATTC in conjunction with the reverse split as discussed under the caption Business Development herein. However, management does not expect any established trading market to develop in our shares of common stock unless and until we have material operations. In any event, no assurance can be given that any market for our common stock will develop or be maintained. If a public market ever develops in the future, the sale of shares of our common stock that are deemed to be restricted securities pursuant to Rule 144 by members of management or others may have a substantial adverse impact on any such market.
Set forth below are the high and low closing bid prices for our common stock for each quarter of 2008 and 2007. These bid prices were obtained from Pink Sheets, LLC, formerly known as the National Quotation Bureau, LLC. All prices listed herein reflect inter-dealer prices, without retail mark-up, mark-down or commissions and may not represent actual transactions. Quotations for our common stock only commenced at the end of the third quarter of 2008.
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Closing Bid |
|||
|
|
High |
|
Low |
January 1 - March 31, 2007 |
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.40 |
|
.40 |
April 1 - June 30, 2007 |
|
.40 |
|
.40 |
July 1 - September 30, 2007 |
|
.40 |
|
.40 |
October 1 - December 31, 2007 |
|
.40 |
|
.40 |
January 1 - March 31, 2008 |
|
.40 |
|
.40 |
April 1 - June 30, 2008 |
|
.40 |
|
.40 |
July 1 - September 30, 2008 |
|
.40 |
|
.40 |
October 1 - December 31, 2008 |
|
.40 |
|
.40 |
Rule 144
The following is a summary of the current requirements of Rule 144:
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Affiliate or Person Selling on Behalf of an Affiliate |
Non-Affiliate (and has not been an Affiliate During the Prior Three Months) |
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Restricted Securities of Reporting Issuers |
During six-month holding period no resales under Rule 144 Permitted.
After Six-month holding period may resell in accordance with all Rule 144 requirements including: · Current public information, · Volume limitations, · Manner of sale requirements for equity securities, and · Filing of Form 144. |
During six- month holding period no resales under Rule 144 permitted.
After six-month holding period but before one year unlimited public resales under Rule 144 except that the current public information requirement still applies.
After one-year holding period unlimited public resales under Rule 144; need not comply with any other Rule 144 requirements. |
Restricted Securities of Non-Reporting Issuers |
During one-year holding period no resales under Rule 144 permitted.
After one-year holding period may resell in accordance with all Rule 144 requirements including: · Current public information, · Volume limitations, · Manner of sale requirements for equity securities, and · Filing of Form 144.
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During one-year holding period no resales under Rule 144 permitted.
After one-year holding period unlimited public resales under Rule 144; need not comply with any other Rule 144 requirements. |
Shell Companies
The following is an excerpt from Rule 144(i) regarding resales of securities of shell companies:
(i)
Unavailability to securities of issuers with no or nominal operations and no or nominal non-cash assets .
(1)
This section is not available for the resale of securities initially issued by an issuer defined below:
(i)
An issuer, other than a business combination related shell company, as defined in §230.405, or an asset-backed issuer, as defined in Item 1101(b) of Regulation AB (§229.1101(b) of this chapter), that has:
(A)
No or nominal operations; and
(B)
Either:
(1)
No or nominal assets;
(2)
Assets consisting solely of cash and cash equivalents; or
(3)
Assets consisting of any amount of cash and cash equivalents and nominal other assets; or
(ii)
An issuer that has been at any time previously an issuer described in paragraph (i)(1)(i).
(2)
Notwithstanding paragraph (i)(1), if the issuer of the securities previously had been an issuer described in paragraph (i)(1)(i) but has ceased to be an issuer described in paragraph (i)(1)(i); is subject to the reporting requirements of section 13 or 15(d) of the Exchange Act; has filed all reports and other materials required to be filed by section 13 or 15(d) of the Exchange Act, as applicable, during the preceding 12 months (or for such
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shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports (§249.308 of this chapter); and has filed current Form 10 information with the SEC reflecting its status as an entity that is no longer an issuer described in paragraph (i)(1)(i), then those securities may be sold subject to the requirements of this section after 12 months have elapsed from the date that the issuer filed Form 10 information with the SEC.
(3)
The term Form 10 information means the information that is required by Form 10 or Form 20-F (§249.220f of this chapter), as applicable to the issuer of the securities, to register under the Exchange Act each class of securities being sold under this rule. The issuer may provide the Form 10 information in any filing of the issuer with the SEC. The Form 10 information is deemed filed when the initial filing is made with the SEC.
Securities of a shell company cannot be publicly sold under Rule 144 in the absence of compliance with this subparagraph.
Section 4(1) of the Securities Act
Since we are a shell company as defined in subparagraph (i) of Rule 144, our shares of common stock that were issued while or after we became a shell company cannot be publicly resold under Rule 144 until we comply with the requirements outlined above under the heading Shell Companies. Until those requirements have been satisfied, any resales of our shares of common stock must be made in compliance with the provisions of the exemption from registration under the Securities Act provided in Section 4(1) thereof, applicable to persons other than an issuer, underwriter or a dealer. That will require that such shares of common stock be sold in routine trading transactions, which would include compliance with substantially all of the requirements of Rule 144, including the availability of current public information about us as required by subparagraph (c) (1) or (c)(2) of Rule 144, regardless of the Rules availability; and such resales may be limited to our non-affiliates. It has been the position of the SEC that the Section 4(1) exemption is not available for the resale of any securities of an issuer that is or was a shell company, by directors, executive officers, promoters or founders or their transferees. See NASD Regulation, Inc. , CCH Federal Securities Law Reporter, 1990-2000 Decisions, Paragraph No. 77,681, the so-called Worm-Wulff Letter. The current position of the SEC that is contained in Securities Act Release No. 33-8899, effective February 15, 2008, and that codified the position of the SEC set forth in the Worm-Wulff Letter and revised Rule 144 as outlined above, is that Rule 144 now defines what resales can be made under Section 4(1) of the Securities Act, and with limited exceptions, which are set forth in footnote 172 of that Release, shares of shell companies must be sold in compliance with Rule 144(i) that is quoted above.
Holders
We currently have 662 shareholders, not including an indeterminate number who may hold shares in street name.
Dividends
We have not declared any cash dividends with respect to our common stock, and do not intend to declare dividends in the foreseeable future. Our future dividend policy cannot be ascertained with any certainty, and if and until we determine to engage in any business or we complete any acquisition, reorganization or merger, no such policy will be formulated. There are currently no material restrictions limiting, or that are likely to limit, our ability to pay dividends on our securities.
Securities Authorized for Issuance Under Equity Compensation Plans
Plan Category |
Number of Securities to be issued upon exercise of outstanding options, warrants and rights |
Weighted-average exercise price of outstanding options, warrants and rights |
Number of securities remaining available for future issuance under equity compensation plans excluding securities reflected in column (a) |
|
(a) |
(b) |
(c) |
Equity compensation plans approved by security holders |
None |
None |
None |
10
Equity compensation plans not approved by security holders |
None |
None |
None |
Total |
None |
None |
None |
Recent Sales of Unregistered Securities; Use of Proceeds from Registered Securities
We have had no recent sales of restricted securities.
Use of Proceeds of Registered Securities
There were no proceeds received during the calendar year ended December 31, 2008, from the sale of registered securities.
Purchases of Equity Securities by Us and Affiliated Purchasers
During the last three fiscal years, there were no purchases of any equity securities of ours by us or any person on our behalf; nor were there any purchases of our equity securities by any affiliate of ours during the last three fiscal years.
ITEM 6: SELECTED FINANCIAL DATA
Not required for smaller reporting companies.
ITEM 7: MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION
Forward-looking Statements
Statements made in this Annual Report, which are not purely historical, are forward-looking statements with respect to the goals, plan objectives, intentions, expectations, financial condition, results of operations, future performance and our business, including, without limitation, (i) our ability to raise capital, and (ii) statements preceded by, followed by or that include the words may, would, could, should, expects, projects, anticipates, believes, estimates, plans, intends, targets or similar expressions.
Forward-looking statements involve inherent risks and uncertainties, and actual results may differ materially from those set forth in the forward-looking statements, depending upon a number of factors, many of which are beyond our control. These factors include, but are not limited to, the following : general economic or industry conditions; nationally and/or in the communities in which we may conduct business; changes in the interest rate environment; legislation or regulatory requirements; conditions of the securities markets; our ability to raise capital; changes in accounting principles, policies or guidelines; financial or political instability; acts of war or terrorism; and other economic, competitive, governmental, regulatory and technical factors affecting our current or potential business and related matters.
Accordingly, results actually achieved may differ materially from expected results in these statements. Forward-looking statements speak only as of the date they are made. We do not undertake, and specifically disclaim, any obligation to update any forward-looking statements to reflect events or circumstances occurring after the date of such statements.
Plan of Operation
Our plan of operation for the next 12 months is to: (i) consider guidelines of industries in which we may have an interest; (ii) adopt a business plan regarding engaging in the business of any selected industry; and (iii) commence such operations through funding and/or the acquisition of a going concern engaged in any industry selected.
During the next 12 months, our only foreseeable cash requirements will relate to maintaining our good standing; the payment of our SEC reporting filing expenses, including associated legal and accounting fees; costs incident to reviewing or investigating any potential business venture; and maintaining our good standing as a corporation in our
11
state of organization. We anticipate that these funds will be provided to us in the form of loans from Mirabella Holdings, LLC ("Mirabella"), our majority shareholder, although Mirabella is under no obligation to provide any such loans in the future. Currently, any such loans that may be provided to us from time to time by Mirabella are made pursuant to a demand promissory note that has been issued by us to Mirabella, which loans are unsecured, payable on demand and bear interest at a rate of 10% per annum, compounded quarterly. See the description of that demand promissory note contained in Part III, Item 13 of this Report, and a copy of that note included in Part IV, Item 15 of this Report.
Liquidity and Capital Resources
We have no current cash resources.
Results of Operations
Year Ended December 31, 2008, Compared to Year Ended December 31, 2007
Other than maintaining its good corporate standing in the State of Utah, compromising and settling its debts and seeking the acquisition of assets, properties or businesses that may benefit the Company and its stockholders, the Company has had no material business operations in the two most recent calendar years.
At December 31, 2008, the Company had no assets. See the Financial Statements and Supplementary Data, Item 8 of this Annual Report.
During the period ended December 31, 2008, the Company had a net loss of $202,225, resulting from operations, as compared to a net loss of $52,509 for the same period ended December 31, 2007. Cumulative income totaled $885,320 since our gain on extinguishment of debt. Primarily all of these losses are the result of attorneys fees of $62,708, accounting fees of $12,305 and management fees of $120,000. See the Financial Statements and Supplementary Data, Item 8 of this Report.
During calendar 2008, expenses were paid by Mirabella, the majority stockholder of the Company, in the aggregate amount of $16,923, and during calendar 2007 expenses were also paid by principal stockholders of the Company in the aggregate amount of $8,220, $6,945 of which, along with other payables of the Company due to one of those principal stockholders, was converted by that stockholder into contributions to the Companys capital, with appropriate adjustments made to the Companys additional paid-in capital account. The aggregate amount of $18,198 outstanding as of December 31, 2008, which includes the $1,275 of expenses paid by Mirabella during 2007 that were not coverted into a capital contribution, currently is unsecured, bears interest at the rate of 10% per annum, compounded quarterly, and is due and payable to Mirabella on demand. See the description of our demand promissory note issued to Mirabella contained in Part III, Item 13 of this Report, and a copy of that note included in Part IV, Item 15 of this Report
While Mirabella currently pays our limited operating and other expenses, on our behalf, Mirabella is not obligated to pay any of those expenses and we can provide no assurance that Mirabella will continue to pay any of those expenses in the future.
Off-Balance Sheet Arrangements
We had no Off-Balance Sheet arrangements of any kind for the year ended December 31, 2008.
ITEM 7A: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not required for smaller reporting companies.
ITEM 8: FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
FINANCIAL STATEMENTS
December 31, 2008
12
C O N T E N T S
Report of Independent Registered Public Accounting Firm 14
Notes to Audited Financial Statements 19 - 26
13
Report of Independent Registered Public Accounting Firm
To the Board of Directors
Atlantica, Inc.
(A Development Stage Company)
Chicago, Illinois
We have audited the accompanying balance sheets of Atlantica, Inc. (a development stage company) as of December 31, 2008 and 2007, and the related statements of operations, stockholders' equity (deficit), and cash flows for each of the years then ended and from inception of the development stage on January 1, 1997 through December 31, 2008. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Atlantica, Inc. (a development stage company) as of December 31, 2008 and 2007, and the results of its operations and its cash flows for each of the years then ended and from inception of the development stage on January 1, 1997 through December 31, 2008, in conformity with U.S. generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 7 to the financial statements, the Company has not established revenues sufficient to cover its operating costs and has a net capital deficiency which raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 7. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
We were not engaged to examine management's assessment of the effectiveness of Atlantica, Inc.'s (a development stage company) internal control over financial reporting as of December 31, 2008 and 2007, and accordingly, we do not express an opinion thereon.
/s/HJ & Associates, LLC
HJ & Associates, LLC
Salt Lake City, Utah
April 29, 2009
14
ATLANTICA, INC.
(A Development Stage Company)
The accompanying notes are an integral part of these financial statements.
15
ATLANTICA, INC.
(A Development Stage Company)
Statements of Operations
|
|
|
|
|
|
|
|
|
|
|
From Inception |
|
|||
|
|
|
|
|
|
|
|
|
|
|
of Development |
|
|||
|
|
|
|
For the |
|
|
Stage on |
|
|||||||
|
|
|
|
Year Ended |
|
|
January 1, 1997 |
|
|||||||
|
|
|
|
December 31, |
|
|
through |
|
|||||||
|
|
|
|
2008 |
|
|
|
2007 |
|
|
December 31, 2008 |
|
|||
REVENUES |
|
|
|
$ |
|
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXPENSES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and Administrative |
|
|
|
|
201,185 |
|
|
|
|
50,398 |
|
|
|
348,019 |
|
Interest Expense |
|
|
|
|
1,040 |
|
|
|
|
2,111 |
|
|
|
119,548 |
|
Total Expenses |
|
|
|
|
202,225 |
|
|
|
|
52,509 |
|
|
|
467,567 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LOSS BEFORE EXTRAORDINARY ITEMS |
|
|
|
|
(202,225 |
) |
|
|
|
(52,509 |
) |
|
|
(467,567 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXTRAORDINARY INCOME |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on extinguishment of debt |
|
|
|
|
|
|
|
|
|
|
|
|
|
1,352,887 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) |
|
|
|
$ |
(202,225 |
) |
|
|
$ |
(52,509 |
) |
|
$ |
885,320 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BASIC LOSS PER SHARE |
|
|
|
$ |
(0.08 |
) |
|
|
$ |
(0.02 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEIGHTED AVERAGE NUMBER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OF SHARES OUTSTANDING |
|
|
|
|
2,458,590 |
|
|
|
|
2,458,590 |
|
|
|
|
|
The accompanying notes are an integral part of these financial statements .
16
ATLANTICA, INC.
(A Development Stage Company)
Statements of Stockholders' Equity (Deficit)
|
Common Shares |
|
Common Stock Amount |
|
Additional Paid-in Capital |
|
Accumulated Deficit |
|||
Inception of development stage, January 1, 1997 |
53,590 |
|
$ |
6 |
|
$ |
(6) |
|
$ |
(1,256,700) |
Expenses paid on the Company's behalf |
- |
|
|
- |
|
|
39,957 |
|
|
- |
Net loss for the year ended December 31, 1997 |
- |
|
|
- |
|
|
- |
|
|
(93,057) |
Balance, December 31, 1997 |
53,590 |
|
|
6 |
|
|
39,951 |
|
|
(1,349,757) |
March 13, 1998, common stock issued for services at $0.0001 per share |
2,405,000 |
|
|
240 |
|
|
2,165 |
|
|
- |
Expenses paid on the Company's behalf |
- |
|
|
- |
|
|
6,856 |
|
|
- |
Net loss for the year ended December 31, 1998 |
- |
|
|
- |
|
|
- |
|
|
(62,361) |
Balance December 31, 1998 |
2,458,590 |
|
|
246 |
|
|
48,972 |
|
|
(1,412,118) |
Expenses paid on the Company's behalf |
- |
|
|
- |
|
|
10,013 |
|
|
- |
Net Income for the year ended December 31, 1999 |
- |
|
|
- |
|
|
- |
|
|
1,348,144 |
Balance, December 31, 1999 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(63,974) |
Net loss for the year ended December 31, 2000 |
- |
|
|
- |
|
|
- |
|
|
(3,651) |
Balance, December 31, 2000 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
67,625 |
Net loss for the year ended December 31, 2001 |
- |
|
|
- |
|
|
- |
|
|
(5,183) |
Balance, December 31, 2001 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(72,808) |
Net loss for the year ended December 31, 2002 |
- |
|
|
- |
|
|
- |
|
|
(6,666) |
Balance, December 31, 2002 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(79,474) |
Net loss for the year ended December 31, 2003 |
- |
|
|
- |
|
|
- |
|
|
(2,788) |
Balance, December 31, 2003 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(82,262) |
Net loss for the year ended December 31, 2004 |
- |
|
|
- |
|
|
- |
|
|
(1,987) |
Balance, December 31, 2004 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(84,249) |
Net loss for the year ended December 31, 2005 |
- |
|
|
- |
|
|
- |
|
|
(19,509) |
Balance, December 31, 2005 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(103,758) |
Net loss for the year ended December 31, 2006 |
- |
|
|
- |
|
|
- |
|
|
(12,888) |
Balance, December 31, 2006 |
2,458,590 |
|
|
246 |
|
|
58,985 |
|
|
(116,646) |
Expenses paid on the Company's behalf |
- |
|
|
- |
|
|
66,471 |
|
|
- |
Net loss for the year ended December 31, 2007 |
- |
|
|
- |
|
|
- |
|
|
(52,509) |
Balance, December 31, 2007 |
2,458,590 |
|
|
246 |
|
|
125,456 |
|
|
(169,155) |
Net loss for the year ended December 31, 2008 |
- |
|
|
- |
|
|
- |
|
|
(202,225) |
Balance, December 31, 2008 |
2,458,590 |
|
$ |
246 |
|
$ |
125,456 |
|
$ |
(371,380) |
Accumulated Deficit prior to development stage |
|
|
|
|
|
|
|
|
$ |
(1,256,700) |
Retained earnings from inception of development stage |
|
$ |
885,320 |
|||||||
Accumulated deficit |
|
$ |
(371,380) |
The accompanying notes are an integral part of these financial statements.
17
ATLANTICA, INC.
(A Development Stage Company)
Statements of Cash Flows
The accompanying notes are an integral part of these financial statements.
18
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
NOTE 1 - SUMMARY OF SIGNFICANT ACCOUNTING POLICIES
This summary of significant accounting policies of Atlantica, Inc. is presented to assist in understanding the Companys financial statements. The financial statements and notes are representations of the Companys management, which is responsible for their integrity and objectivity. These accounting policies conform to accounting principles generally accepted in the United States of America and have been consistently applied in the preparation of the financial statements.
a. Organization and Business Activities
The financial statements presented are those of Atlantica, Inc. (the Company). The Company was incorporated in the State of Utah on March 3, 1938. The Company name at that time was Red Hills Mining Company. On February 5, 1953, the Company changed its name to Allied Oil and Minerals Company. On January 8, 1971, the Company changed its name to Community Equities Corporation. On March 26, 1996, the Company changed its name to Atlantica, Inc.
The Company had two subsidiaries; Keys Equities, Inc. (Keys), a Florida corporation incorporated on July 31, 1996, and Allied Equities, Inc. (Allied), a Florida corporation incorporated on July 15, 1996. On March 1, 1998, the Company transferred its right, title and interest in a mining claim in Utah to Allied. The mining claim had a book value of $-0-. On March 1, 1998, the Company distributed the shares of the two subsidiaries to its shareholders in a liquidating dividend.
The Company has not engaged in any business operations since 1990, and it was reclassified as a development stage company as of January 1, 1997. The Companys only activity since that time has consisted of taking actions necessary to restore and preserve its good standing in the State of Utah. The Company presently has no assets. The Company intends to continue to seek out the acquisition of assets, property or a business that may be beneficial to the Company and its stockholders. In considering whether to complete any such acquisition, the Board of Directors will make the final determination and the approval of stockholders will not be sought unless required by applicable law, the articles of incorporation or bylaws of the Company or contract.
b. Accounting Method
The Companys financial statements are prepared using the accrual method of accounting. The Company has elected a December 31 year-end.
c. Estimates
The preparations 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 and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
d. Cash and Cash Equivalents
The Company considers all highly liquid investments with original maturities at the date of purchase of three months or less to be cash equivalents.
19
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
e. Income Taxes
The Company utilizes an asset and liability approach for financial accounting and reporting for income taxes. Deferred income taxes are provided for temporary differences in the bases of assets and liabilities as reported for financial statement and income tax purposes.
Due to the change in ownership provisions of the Tax Reform Act of 1986, net operating loss carry-forwards for Federal income tax reporting purposes are subject to annual limitations. Should a change in ownership occur, net operating loss carry-forwards may be limited as to use in the future.
Deferred income taxes are provided using the liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of the changes in tax laws and rates of the date of enactment.
When tax returns are filed, it is highly certain that some positions taken would be sustained upon examination by the taxing authorities, while others are subject to uncertainty about the merits of the position taken or the amount of the position that would be ultimately sustained. The benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, management believes it is more likely than not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits in the accompanying balance sheet along with any associated interest and penalties that would be payable to the taxing authorities upon examination.
Interest and penalties associated with unrecognized tax benefits are classified as additional income taxes in the statement of income.
f. Basic Income (Loss) Per Share
The computation of basic income (loss) per share of common stock is based on the weighted average number of shares outstanding during the period.
For the Year Ended December 31, 2008
|
Income |
|
Shares |
|
Per Share |
|
|
(Numerator) |
|
(Denominator) |
|
Amount |
|
$ |
(202,225 |
) |
2,458,590 |
|
(0.08 |
) |
For the Year Ended December 31, 2007
|
Income |
|
Shares |
|
Per Share |
|
|
(Numerator) |
|
(Denominator) |
|
Amount |
|
$ |
(52,509 |
) |
2,458,590 |
|
(0.02 |
) |
20
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
g. Revenue Recognition Policy
The Company currently has no source of revenues. Revenue recognition policies will be determined when principal operations begin.
h. Recent Accounting Pronouncements
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Liabilities (SFAS 159). SFAS 159 permits entities to choose to measure many financial instruments and certain other items at fair value that are not currently required to be measured at fair value. SFAS 159 also establishes presentation and disclosure requirements designed to facilitate comparisons between entities that choose different measurement attributes for similar types of assets and liabilities. SFAS 159 is effective as of the beginning of an entitys first fiscal year that begins after November 15, 2007. We are currently evaluating the impact the adoption of SFAS 159 may have on our financial statements.
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations (SFAS 141R) and SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements, an amendment of Accounting Research Bulletin No. 51 (SFAS 160). SFAS No. 141R requires an acquirer to measure the identifiable assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree at their fair values on the acquisition date, with goodwill being the excess value over the net identifiable assets acquired. SFAS No. 160 clarifies that a noncontrolling interest in a subsidiary should be reported as equity in the consolidated financial statements. The calculation of earnings per share will continue to be based on income amounts attributable to the parent. SFAS No. 141R and SFAS No. 160 are effective for financial statements issued for fiscal years beginning after December 15, 2008. Early adoption is prohibited. The Company has not yet determined the effect on its financial statements, if any, upon adoption of SFAS No. 141R or SFAS No. 160.
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133 (SFAS 161). SFAS 161 requires enhanced disclosures about an entitys derivative instruments and hedging activities including: (1) how and why an entity uses derivative instruments; (2) how derivative instruments and related hedged items are accounted for under SFAS 133 and its related interpretations; and (3) how derivative instruments and related hedged items affect an entitys financial position, financial performance and cash flows. SFAS 161 is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008, with earlier application encouraged. The Company has no derivative instruments so the adoption of SFAS 161 is not expected to have any impact on the Companys financial statements and it does not intend to adopt this standard early.
In April 2008, the FASB issued FASB Staff Position No. 142-3, Determination of the Useful Life of Intangible Assets (FSP No. 142-3) to improve the consistency between the useful life of a recognized intangible asset (under SFAS No. 142) and the period of expected cash flows used to measure the fair value of the intangible asset (under SFAS No. 141(R)). FSP No. 142-3 amends the factors to be considered when developing renewal or extension assumptions that are used to estimate an intangible assets useful life under SFAS No. 142. The guidance in the new staff position is to be applied prospectively to intangible assets acquired after December 31, 2008. In addition, FSP No. 142-3 increases the disclosure requirements related to renewal or extension assumptions. The Company does not believe implementation of FSP No. 142-3 will have a material impact on its financial statements.
21
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
h. Recent Accounting Pronouncements (Continued)
In May 2008, the FASB issued SFAS No. 162, The Hierarchy of Generally Accepted Accounting Principles (SFAS 162). SFAS 162 is intended to improve financial reporting by identifying a consistent framework, or hierarchy, for selecting accounting principles to be used in preparing financial statements in conformity with U.S. generally accepted accounting principles (GAAP) for nongovernmental entities. This Statement establishes that the GAAP hierarchy should be directed to entities because it is the entity (not its auditor) that is responsible for selecting accounting principles for financial statements that are presented in conformity with GAAP. This Statement is effective 60 days following the SECs approval of the Public Company Accounting Oversight Board Auditing amendments to AU Section 411, The Meaning of Present Fairly in Conformity with Generally Accepted Accounting Principles. The Company does not believe implementation of SFAS 162 will have a material impact on its financial statements.
In May 2008, the FASB issued SFAS No. 163, Accounting for Financial Guarantee Insurance Contracts - an interpretation of FASB Statement No. 60 (SFAS 163). SFAS 163 clarifies how Statement 60 applies to financial guarantee insurance contracts, including the recognition and measurement of premium revenue and claim liabilities. This Statement also requires expanded disclosures about financial guarantee insurance contracts. SFAS 163 is effective for fiscal years beginning on or after December 15, 2008, and interim periods within those fiscal years. The Company does not expect that the adoption of SFAS 163 will have a material impact on its financial statements.
In June 2008, the FASB issued FASB Staff Position Emerging Issues Task Force (EITF) No. 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities (FSP EITF No. 03-6-1). Under FSP EITF No. 03-6-1, unvested share-based payment awards that contain rights to receive nonforfeitable dividends (whether paid or unpaid) are participating securities, and should be included in the two-class method of computing EPS. FSP EITF No. 03-6-1 is effective for fiscal years beginning after December 15, 2008, and interim periods within those years, and is not expected to have a significant impact on the Companys financial statements.
The Company has reviewed all other recently issued, but not yet adopted, accounting standards in order to determine their effects, if any, on its results of operation, financial position or cash flows. Based on that review, the Company believes that none of these pronouncements will have a significant effect on its financial statements.
22
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
NOTE 2 - INCOME TAXES
Deferred taxes are provided using the asset and liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
Net deferred tax assets consist of the following components as of December 31, 2008 and 2007:
|
|
2008 |
|
2007 |
|
||
Deferred tax assets |
|
|
|
|
|
|
|
NOL Carryforward |
|
$ |
52,244 |
|
$ |
20,375 |
|
Related Party Accruals |
|
|
47,206 |
|
|
1,234 |
|
Deferred tax liabilities |
|
|
|
|
|
|
|
Valuation allowance |
|
|
(99,450 |
) |
|
(21,609 |
) |
Net deferred tax asset |
|
$ |
|
|
$ |
|
|
A valuation allowance is provided when it is more likely than not that all or a portion of the deferred tax asset will not be realized. The valuation allowance increased by $77,841 from $21,609 to $99,450 during the year ended December 31, 2008.
The income tax provision differs from the amount of income tax determined by applying the U.S. federal and state income tax rate of 39% to pretax income from continuing operations for the years ended December 31, 2008 and 2007 due to the following:
|
|
2008 |
|
2007 |
|
||
|
|
|
|
|
|
|
|
Book Income (Loss) |
|
$ |
(78,868 |
) |
$ |
(20,479 |
) |
Accrued Expenses-Related |
|
|
47,206 |
|
|
4,285 |
|
Other |
|
|
(18) |
|
|
- |
|
NOL Limitation |
|
|
- |
|
|
43,170 |
|
Change in Valuation allowance |
|
|
31,680 |
|
|
(29,976 |
) |
|
|
$ |
|
|
$ |
|
|
At December 31, 2008, the Company had net operating loss carryforwards of approximately $133,283 that may be offset against future taxable income from the year 2009 through 2028. No tax benefit has been reported in the December 31, 2008 financial statements since the potential tax benefit is offset by a valuation allowance of the same amount.
Due to the change in majority ownership that occurred under the Stock Purchase Agreement on June 29, 2007, described under Note 6 Change in Control of Issuer below, net operating loss carryforwards for Federal income tax reporting purposes are subject to annual limitations under provisions of the Tax Reform Act of 1986. The net operating loss carryforwards and the resulting deferred tax asset as of December 31, 2008 have been adjusted to reflect the limitations imposed.
23
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
NOTE 2 - INCOME TAXES (Continued
The Company or one of its subsidiaries files income tax returns in the U.S. federal jurisdiction, and the state of Utah jurisdiction. With few exceptions, the Company is no longer subject to U.S. federal, state and local, or non-U.S. income tax examinations by tax authorities for years before 2002.
The Company recognizes interest accrued related to unrecognized tax benefits in interest expense and penalties in operating expenses. During the years ended December 31, 2008, and 2006, the Company recognized no interest and penalties. The Company had no payments of interest and penalties accrued at December 31, 2008, and $6 in interest and $40 in penalties for 2007.
NOTE 3 - GAIN ON EXTINGUISHMENT OF DEBT
In 1990, the Company signed as a guarantor of a mortgage. The primary mortgager has defaulted on the loan so the Company recorded the liability on its books.
On February 18, 1999, the Company entered into negotiations with the City of Miami for a settlement agreement which would release the Company from the mortgage payable. Under the terms of the agreement, the City of Miami agreed to execute and deliver to the Company a release of lien. In return, a shareholder of the Company paid the City of Miami $10,010 and transferred to the City 25,000 shares of the Companys common stock owned personally by the shareholder.
As a result of the settlement, the Company recorded a gain on the extinguishment of debt totaling $1,352,887 ($885,000 principal and $477,900 accrued interest minus $10,013 for cash and common stock paid) for the year ended December 31, 1999. In addition, contributed capital of $10,013 was recorded which represented the cash paid by the shareholder to the City of Miami and the value of the 25,000 shares transferred.
NOTE 4 - COMMON STOCK
On March 13, 1998, the Company approved a one-for-20 (1:20) reverse stock split. After the split, the Company had authorized 25,000,000 shares and changed the par value from $0.01 to $0.0001. On this same date, 24,050,000 shares were issued to the directors of the Company for services rendered, valued at $0.0001 per share. The stock split is reflected on a retroactive basis.
On January 26, 2007, the majority stockholders of the Company voted in favor of amending and restating the Companys Articles of Incorporation to change the total number of shares which the corporation shall be authorized to issue to 60,000,000 shares of capital stock, such total number of shares shall consist of 50,000,000 shares of $0.0001 par value common voting stock and 10,000,000 shares of preferred stock, having a par value of $0.0001 per share. The majority stockholders also approved a one-for-ten (1:10) reverse stock split of the Companys issued and outstanding common shares, which became effective on February 15, 2007. The stock split is reflected on a retroactive basis.
24
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
NOTE 5 - RELATED PARTY TRANSACTIONS
Expenses incurred by the Company for legal and filing fees were paid out-of- pocket by a related party. On May 11, 1998, the shareholders of the Company completed a quasi-reorganization whereby the accumulated deficit of the Company was offset against paid-in capital to the extent possible. The quasi- reorganization has been reflected on a retroactive basis.
Expenses paid during the years ended December 31, 1999, 1998 and 1997 were paid by the Companys President and were recorded as additional paid-in capital. Expenses during the year ended December 31, 2006, 2005, 2004, 2003, 2002, 2001 and 2000 were paid by certain related parties and recorded as loans to shareholders totaling $46,010 at December 31, 2006. In conjunction with the closing of the transactions under the Stock Purchase Agreement entered into on June 29, 2007, described under Note 6 Change in Control of Issuer below, all such loans, along with an additional $6,945 of expenses of paid by certain related parties during the year ended December 31, 2007 and recorded as loans to shareholders, plus the Companys other related party payables, all of which totaled $66,471 in the aggregate, were converted by that related party into contributions to the Companys capital, with appropriate adjustments made to the Companys additional paid-in capital account. Other expenses during the years ended December 31, 2007 and 2008 were paid by Mirabella Holdings, LLC, the Company's majority shareholder, and recorded as loans by shareholders totaling $18,198 at December 31, 2008. The loans are evidenced by a promissory note, are unsecured, are due on demand and accrue interest at the rate of 10% per annum, compounded quarterly. No payments have been made during the year ended December 31, 2008. Accrued interest for the year ended December 31, 2007 was immaterial and has been accrued in the year ended December 31, 2008. The accrued interest related to this note totaled $1,040 as of December 31, 2008. The note was issued by the Company on April 29, 2009 and covers all loans made by Mirabella Holdings, LLC to the Company since November 6, 2007, as well as any such loans that may be made by Mirabella Holdings, LLC in the future. A copy of the note is filed as an exhibit to this Report; see Part IV, Item 15 of this Report.
On April 29, 2009, the Company entered into a management services agreement (the Management Services Agreement) with Richland, Gordon & Company (Richland), a private investment firm beneficially owned by Alan D. Gordon, the Companys President and Chief Executive Officer and one of the Companys directors. Pursuant to the Management Services Agreement, Richland provides certain financial and management consulting services to the Company, including, among other things, advice regarding the Company's operations, identification of potential businesses for the Company to acquire or other suitable business combinations for the Company, and advice regarding the Company's general preparation for its initial acquisition, other business combination or financing transaction that may occur in the future.
The Management Services Agreement has a
term of ten years and provides for the Company to pay to Richland an annual
management fee equal to the greater of (i) $120,000 and (ii) 5% of the Company's
consolidated EBITDA (as defined in the agreement). The management fee is
payable in quarterly installments in arrears, on April 15, July 15, October 15
and January 15 of each year, with respect to the immediately preceding calendar
quarter, equal to the greater of (i) $30,000 and (ii) 5% of the Company's
consolidated EBITDA for the immediately preceding calendar quarter, with such
payments commencing July 15, 2009 and covering services provided by Richland
during the period from January 1, 2008 (prior to the date of the agreement) and
continuing through the quarter ending June 30, 2009; however, the management
fees accrue and are not initially payable to Richland until the Companys
completion of its initial acquisition or financing that occurs subsequent to the
date of the agreement. Accordingly, we accrued management fees payable to
Richland totaling $120,000 during the year ended December 31, 2008, which fees,
along with any other management fees that may subsequently accrue, are due and
payable to Richland if and when such an acquisition or financing is completed by
the Company.
25
ATLANTICA, INC.
(A Development Stage Company)
Notes to Audited Financial Statements
December 31, 2008
NOTE 5 - RELATED PARTY TRANSACTIONS (Continued)
The Management
Services Agreement also provides for the Company to pay a separate, cash
transaction-based fee for investment banking services that Richland provides in
connection with future acquisitions and financing transactions that may be
completed by the Company. This transaction-based fee equals 1% of the
transaction value of any acquisitions or other business combinations or debt or
equity financings completed by the Company subsequent to the date of the
agreement; however, the amount of the initial transaction-based fee payable to
Richland is reduced by the amount of all prior management fees earned by
Richland under the agreement. To date, no transaction-based fee has
accrued or is otherwise payable by the Company to Richland.
Under the Management Services Agreement, the Company also reimburses Richland for all reasonable out-of-pocket expenses incurred by Richland in providing its services to the Company and indemnifies Richland and its agents and affiliates for any damages that they may suffer in connection with providing these services. This expense reimbursement is payable on April 15, July 15, October 15 and January 15 of each year, with respect to expenses incurred by Richland during the immediately preceding calendar quarter. To date, no such expenses have been incurred by Richland and, accordingly, no expenses have been reimbursed by the Company to Richland and no expense reimbursement obligation has been accrued or is otherwise payable by the Company.
A copy of the Management Services
Agreement is filed as an exhibit to this Report; see Part IV, Item 15 of this
Report.
NOTE 6 CHANGE IN CONTROL OF ISSUER
Pursuant to a Stock Purchase Agreement (the Stock Purchase Agreement) entered into on June 29, 2007, among Mirabella Holdings, LLC (the Purchaser), Duane S. Jenson, Travis T. Jenson, Thomas J. Howells, Leonard W. Burningham (collectively with Duane S. Jenson, Travis T. Jenson and Thomas J. Howells, the Sellers), and Leonard W. Burningham, as the representative of the Sellers (the Sellers Representative), the Purchaser acquired from the Sellers a total of 1,966,872 shares of the Companys Common Stock (the Acquired Shares), representing 80% of the Companys currently outstanding shares, for a purchase price of $525,000 in cash (the Purchase Price). Pursuant to an Escrow Agreement (the Escrow Agreement) entered into among the Purchaser, the Sellers Representative and the escrow agent thereunder, contemporaneously with the Stock Purchase Agreement, $75,000 of the Purchase Price was placed in escrow for a period of 12 months following the closing to fund any potential post-closing indemnification obligations of the Sellers to the Purchaser under the Stock Purchase Agreement. These escrow funds were released to the Sellers on July 29, 2008. The Stock Purchase Agreement provides that, at the time of the closing, the Company had no assets, no liabilities and no active business or operations.
In addition, pursuant to a Share Escrow and Reset Agreement (the Reset Agreement) entered into among the Purchaser, the Sellers Representative, the Sellers, the Company and the escrow agent thereunder contemporaneously with the Stock Purchase Agreement, the Sellers placed in escrow an additional 423,928 shares of the Companys Common Stock currently owned by them (the Escrow Shares), which represent all but 70 of the remaining shares of the Companys Common Stock owned by the Sellers. Pursuant to the Reset Agreement, upon the future acquisition by the Company, within the five-year period following June 29, 2007 (the Acquisition Period), of one or more companies having a combined enterprise value of at least $10 million (a Threshold Acquisition), the Escrow Shares will reset, at that time, to a number of newly-issued shares of the Companys Common Stock that will represent (collectively with the 70 shares previously retained by the Sellers) 5% of the Companys then fully-diluted Common Stock. In the event that a Threshold Acquisition does not occur within the Acquisition Period, all of the Escrow Shares will be released to the Sellers without any reissuance or adjustment in their amount. Also, pursuant to the Reset Agreement, in the event that, at any time during the period commencing on June 29, 2007 and ending on the earlier of (i) the second anniversary of a Threshold Acquisition that occurs within the Acquisition Period or (ii) June 29, 2012 (the Registration Right Period), the Company proposes to register any of the Acquired Shares then held by Richland, Gordon & Company or any of its affiliates (which would currently include the Purchaser), the Sellers Representative has the right, exercisable on one occasion during the
26
ATLANTICA, INC.
(A Development Stage Company)
Notes to Unaudited Financial Statements
December 31, 2008
NOTE 6 CHANGE IN CONTROL OF ISSUER (Continued)
Registration Right Period, to require the Company to use its commercially reasonable efforts to also register the Escrow Shares and the other shares of the Companys common stock that were held by the Sellers on June 29, 2007, subject to the terms and conditions contained in the Reset Agreement.
The Stock Purchase Agreement, the Escrow Agreement and the Reset Agreement were filed as exhibits to the Companys Form 8-K and 14F-1 Information Statement, both of which were filed with the Securities and Exchange Commission on July 3, 2007. See Part IV, Item 15.
NOTE 7 - GOING CONCERN
The Companys financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The Company has not established revenues sufficient to cover its operation costs. The Company is seeking the acquisition of, or merger with, an existing operating company.
The Company is relying on its principal shareholder to pay all of our operating and other expenses until we can complete a reorganization or merger. While the Company's principal stockholder currently pays the Company's limited operating and other expenses, on the Company's behalf, that principal stockholder is not obligated to pay any of those expenses and the Company can provide no assurance that such stockholder will continue to pay any of those expenses in the future. This stockholder paid a total of $16,923 in expenses for the Company in the year ended December 31, 2008.
27
ITEM 9: CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None; not applicable.
ITEM 9A(T): CONTROLS AND PROCEDURES
Our management, with the participation of our principal executive and principal financial officer, evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this Annual Report. Based on that evaluation, our President and CFO, concluded that our disclosure controls and procedures as of the end of the period covered by the Annual Report were effective and that the information required to be disclosed by us in reports filed under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms and (ii) accumulated and communicated to our management, including our President and our CFO, 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.
Managements Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes of accounting principles generally accepted in the United States.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance of achieving their control objectives.
Our management, with the participation of the President and our CFO, evaluated the effectiveness of our internal controls over financial reporting as of December 31, 2008. In making this assessment, management 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 management, with the participation of the President and CFO, concluded that, as of December 31, 2008, our internal controls over financial reporting were effective.
This Annual Report does not include an attestation report of our registered public accounting firm regarding our internal controls over financial reporting. Managements report was not subject to attestation by our registered public accounting firm pursuant to temporary rules of the SEC that permit us to provide only managements report in this Annual Report.
Changes in Internal Control Over Financial Reporting
There have been no changes in internal control over financial reporting.
ITEM 9B: OTHER INFORMATION
None; not applicable.
28
PART III
ITEM 10: DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE
Identification of Directors and Executive Officers
Our executive officers and directors and their respective ages, positions and biographical information are set forth below.
Name |
|
Positions Held |
|
Date of Election or Designation |
|
Alan D. Gordon |
|
President and Chief Executive Officer |
|
6/29/07 |
|
|
|
Director |
|
7/16/07 |
|
Shelley Goff |
|
Secretary |
|
11/30/04 |
|
|
|
Chief Financial Officer |
|
6/29/07 |
|
Frederick G. Pierce, II |
|
Director |
|
7/16/07 |
|
Richard F. Strup |
|
Director |
|
7/16/07 |
|
Background and Business Experience
Alan D. Gordon. Mr. Gordon is 53 years of age. Mr. Gordon has served as the Chairman and Chief Executive Officer of Richland, Gordon & Company, a private investment firm, since 1983.
Shelley Goff, Secretary and Chief Financial Officer, is 48 years of age. Ms. Goff graduated from the University of Utah in 1992 with a B.S. in Finance. Ms. Goff has been the sole proprietor of The Financial Organizer since 1990 and prepares documents for filing with the Securities and Exchange Commission for public companies on EDGAR.
Frederick G. Pierce, II. Mr. Pierce is 54 years of age. Mr. Pierce has been a private investor in real estate and private equity for the past five years.
Richard F. Strup. Mr. Strup is 56 years of age. Mr. Strup has served as the Executive Vice President, Corporate Strategy of Reyes Holdings since 2003 and from 1999 to 2003, he served as both the Managing Director of Miller International and as the Senior Vice President of Corporate Strategy for Miller Brewing Co.
Significant Employees
We do not employ any non-officers who are expected to make a significant contribution to its business.
Family Relationships
There are no family relationships between any of our officers or directors.
Involvement in Other Public Companies Registered Under the Exchange Act
None of our officers or directors currently are serving on the Board of Directors of any other public company.
Involvement in Certain Legal Proceedings
During the past five years, no present or former director, executive officer or person nominated to become a director or an executive officer of ours:
(1) was a general partner or executive officer of any business against which any bankruptcy petition was filed, either at the time of the bankruptcy or two years prior to that time;
29
(2) was convicted in a criminal proceeding or named subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
(3) was subject to any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; or
(4) was found by a court of competent jurisdiction (in a civil action), the SEC or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated.
Promoters and control person.
See the heading Transactions with Related Persons below.
Compliance With Section 16(a) of the Exchange Act
Our shares of common stock are registered under the Exchange Act, and therefore our officers, directors and holders of more than 10% of our outstanding shares are subject to the provisions of Section 16(a) which requires them to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and our other equity securities. Officers, directors and greater than 10% beneficial owners are required by SEC regulations to furnish us with copies of all Section 16(a) reports they file. There were no transactions that required disclosure on Forms 3 or 4 during the year ended December 31, 2008.
Code of Ethics
The Company adopted a Code of Ethics that was filed as an exhibit 14 to our Annual Report for the year ended December 31, 2001 and is incorporated herein by reference. See Part IV, Item 15 of this report.
Corporate Governance
Director Independence
Nominating Committee
We have not established a Nominating Committee because of our limited operations; and because we have only three directors and two executive officers, we believe that we are able to effectively manage the issues normally considered by a Nominating Committee. Following the entry into any business combination or the completion of any acquisition, merger or reorganization, a further review of this issue will no doubt be necessitated and undertaken by management.
Audit Committee
We have has not established an Audit Committee because of our limited operations; and because we have only three directors and two executive officers, we believe that we are able to effectively manage the issues normally considered by a Audit Committee. Following the entry into any business combination or the completion of any acquisition, merger or reorganization, a further review of this issue will no doubt be necessitated and undertaken by management.
30
ITEM 11: EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
Outstanding Equity Awards at Fiscal Year-End
Option Awards |
Stock Awards |
||||||||
Name |
Number of Securities Underlying Unexercised Options (#) Exercisable |
Number of Securities underlying Unexercised Options (#) Unexercisable |
Equity Incentive Plan Awards Number of Securities Underlying Unexercised Unearned Options (#) |
Option Exercise Price ($) |
Option Expiration Date |
Number of Shares or Units of Stock That Have Not Vested (#) |
Market Value of Shares or Units of Stock That Have Not Vested ($) |
Equity Incentive Plan Awards: Number of Unearned Shares, Vested Units or Other Rights That Have Not Vested (#) |
Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) |
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) |
(h) |
(i) |
(j) |
Alan D. Gordon |
None |
None |
None |
None |
None |
None |
None |
None |
None |
Shelley Goff |
None |
None |
None |
None |
None |
None |
None |
None |
None |
31
Frederick G. Pierce, II |
None |
None |
None |
None |
None |
None |
None |
None |
None |
Richard F. Strup |
None |
None |
None |
None |
None |
None |
None |
None |
None |
Compensation of Directors
There are no standard arrangements pursuant to which our Companys directors are compensated for any services provided as director. No additional amounts are payable to our Companys directors for committee participation or special assignments.
ITEM 12: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Security Ownership of Certain Beneficial Owners
The following table sets forth the shareholdings of those persons who own more than five percent of our Companys common stock as of December 31, 2008 and to the date hereof:
Ownership of Principal Shareholders
(1)
For purposes of this calculation, the number of shares of common stock outstanding is 2,458,590.
(2)
Includes 1,966,872 shares owned by Mirabella Holdings, LLC, a Delaware limited liability company owned by the Alan D. Gordon GS Trust. Mr. Gordon is the trustee of the Alan D. Gordon GS Trust and in such capacity may be deemed to have voting and dispositive power over the shares owned by Mirabella Holdings, LLC.
Security Ownership of Management
The following table sets forth the share holdings of our Companys directors and executive officers as of December 31, 2008 and to the date hereof:
Ownership of Management
Directors and Named Executive Officers |
|
|
Number of Shares of
|
|
Percent of Shares
|
||||
Alan D. Gordon, President and Chief Executive Officer, Director(2) |
|
|
1,966,872 |
(2) |
|
|
80.0% |
|
|
Shelley Goff, Chief Financial Officer and Secretary |
|
|
0 |
|
|
|
0.0% |
|
|
Fredrick G. Pierce II, Director |
|
|
0 |
|
|
|
0.0% |
|
|
Richard F. Strup, Director |
|
|
0 |
|
|
|
0.0% |
|
32
All current directors and executive officers as a group (4 persons) |
|
|
1,966,872 |
|
|
|
80.0% |
|
(1)
For purposes of this calculation, the number of shares of common stock outstanding was 2,458,590.
(2)
Includes 1,966,872 shares owned by Mirabella Holdings, LLC, a Delaware limited liability company owned by the Alan D. Gordon GS Trust. Mr. Gordon is the trustee of the Alan D. Gordon GS Trust and in such capacity may be deemed to have voting and dispositive power over the shares owned by Mirabella Holdings, LLC.
Changes in Control
There are no present arrangements or pledges of our securities which may result in a change in control of us.
Securities Authorized for Issuance under Equity Compensation Plans
Equity Compensation Plan Information
Plan Category |
Number of Securities to be issued upon exercise of outstanding options, warrants and rights |
Weighted-average exercise price of outstanding options, warrants and rights |
Number of securities remaining available for future issuance under equity compensation plans excluding securities reflected in column (a) |
|
(a) |
(b) |
(c) |
Equity compensation plans approved by security holders |
None |
None |
None |
Equity compensation plans not approved by security holders |
None |
None |
None |
Total |
None |
None |
None |
ITEM 13: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTORS INDEPENDENCE
Transactions with Related Persons
Pursuant to a Stock Purchase Agreement (the Stock Purchase Agreement) entered into on June 29, 2007, among Mirabella Holdings, LLC (the Purchaser), Duane S. Jenson, Travis T. Jenson, Thomas J. Howells, Leonard W. Burningham (collectively with Duane S. Jenson, Travis T. Jenson and Thomas J. Howells, the Sellers), and Leonard W. Burningham, as the representative of the Sellers (the Sellers Representative), the Purchaser acquired from the Sellers a total of 1,966,872 shares of the Companys Common Stock (the Acquired Shares), representing 80% of the Companys currently outstanding shares, for a purchase price of $525,000 in cash (the Purchase Price). Pursuant to an Escrow Agreement (the Escrow Agreement) entered into among the Purchaser, the Sellers Representative and the escrow agent thereunder, contemporaneously with the Stock Purchase Agreement, $75,000 of the Purchase Price was placed in escrow for a period of 12 months following the closing to fund any potential post-closing indemnification obligations of the Sellers to the Purchaser under the Stock Purchase Agreement. These escrow funds were released to the Sellers on July 29, 2008. The Stock Purchase Agreement provides that, at the time of the closing, the Company had no assets, no liabilities and no active business or operations.
In addition, pursuant to a Share Escrow and Reset Agreement (the Reset Agreement) entered into among the Purchaser, the Sellers Representative, the Sellers, the Company and the escrow agent thereunder contemporaneously with the Stock Purchase Agreement, the Sellers placed in escrow an additional 423,928 shares of the Companys Common Stock currently owned by them (the Escrow Shares), which represent all but 70 of the remaining shares of the Companys Common Stock owned by the Sellers. Pursuant to the Reset Agreement, upon the future acquisition by the Company, within the five-year period following June 29, 2007 (the Acquisition
33
Period), of one or more companies having a combined enterprise value of at least $10 million (a Threshold Acquisition), the Escrow Shares will reset, at that time, to a number of newly-issued shares of the Companys Common Stock that will represent (collectively with the 70 shares previously retained by the Sellers) 5% of the Companys then fully-diluted Common Stock. In the event that a Threshold Acquisition does not occur within the Acquisition Period, all of the Escrow Shares will be released to the Sellers without any reissuance or adjustment in their amount. Also, pursuant to the Reset Agreement, in the event that, at any time during the period commencing on June 29, 2007 and ending on the earlier of (i) the second anniversary of a Threshold Acquisition that occurs within the Acquisition Period or (ii) June 29, 2012 (the Registration Right Period), the Company proposes to register any of the Acquired Shares then held by Richland, Gordon & Company or any of its affiliates (which would currently include the Purchaser), the Sellers Representative has the right, exercisable on one occasion during the Registration Right Period, to require the Company to use its commercially reasonable efforts to also register the Escrow Shares and the other shares of the Companys common stock that were held by the Sellers on June 29, 2007, subject to the terms and conditions contained in the Reset Agreement.
The Stock Purchase Agreement, the Escrow Agreement and the Reset Agreement were filed as exhibits to the Companys Form 8-K and 14F-1 Information Statement, both of which were filed with the Securities and Exchange Commission on July 3, 2007. See Part VI, Item 15.
On April 29, 2009, the Company entered into a management services agreement (the Management Services Agreement) with Richland, Gordon & Company (Richland), a private investment firm beneficially owned by Alan D. Gordon, the Companys President and Chief Executive Officer and one of the Companys directors. Pursuant to the Management Services Agreement, Richland provides certain financial and management consulting services to the Company, including, among other things, advice regarding the Company's operations, identification of potential businesses for the Company to acquire or other suitable business combinations for the Company, and advice regarding the Company's general preparation for its initial acquisition, other business combination or financing that may occur in the future.
The Management Services Agreement has a term of ten
years and provides for the Company to pay to Richland an annual management fee
equal to the greater of (i) $120,000 and (ii) 5% of the Company's consolidated
EBITDA (as defined in the agreement). The management fee is payable in
quarterly installments in arrears, on April 15, July 15, October 15, and January
15 of each year with respect to the immediately preceding calendar quarter equal
to the greater of (i) $30,000 and (ii) 5% of the Companys consolidated
EBITDA for the immediately preceding calendar quarter, with such payments
commencing July 15, 2009 and covering services provided by Richland during the
period from January 1, 2008 (prior to the date of the agreement) and continuing
through the quarter ending June 30, 2009; however, the management fees accrue
and are not initially payable to Richland until the Companys completion of its
initial acquisition or financing that occurs subsequent to the date of the
agreement. Accordingly, we accrued management fees payable to Richland
totaling $120,000 during the year ended December 31, 2008, which fees, along
with any other management fees that may subsequently accrue, are due and payable
to Richland if and when such an acquisition or financing is completed by the
Company.
The Management Services Agreement also provides for
the Company to pay a separate, cash transaction-based fee for investment banking
services that Richland provides in connection with future acquisitions and
financing transactions that may be completed by the Company. This
transaction-based fee equals 1% of the transaction value of any acquisitions or
other business combinations or debt or equity financings completed by the
Company subsequent to the date of the agreement; however, the amount of the
initial transaction-based fee payable to Richland is reduced by the amount of
all prior management fees earned by Richland under the agreement. To date,
no transaction-based fee has accrued or is otherwise payable by the Company to
Richland.
Under the Management Services Agreement,
the Company also reimburses Richland for all reasonable out-of-pocket expenses
incurred by Richland in providing its services to the Company and indemnifies
Richland and its agents and affiliates for any damages that they may suffer in
connection with providing these services. This expense reimbursement is
payable on April 15, July 15, October 15 and January 15 of each year, with
respect to expenses incurred by Richland during the immediately preceding
calendar quarter. To date, no such expenses have been incurred by Richland
and, accordingly, no expenses have been reimbursed by the Company to Richland
and no expense reimbursement obligation has been accrued or is otherwise payable
by the Company.
A copy of the Management Services Agreement is filed
as an exhibit to this Report; see Part IV, Item 15 of this Report.
34
On April 29,
2009, the Company also issued to Mirabella Holdings, LLC
("Mirabella"), the Companys majority shareholder, a demand
promissory note to evidence all loans made from by Mirabella to the Company
since November 6, 2007 and all loans that may be made from time to time in the
future by Mirabella to the Company (the Mirabella Loans). The note is
unsecured and the Mirabella Loans bear interest at a rate of 10% per annum,
compounded quarterly, and are payable to Mirabella on demand. A copy of
the note is filed as an exhibit to this Report; see Part IV, Item 15 of this
Report.
Other than the transactions pursuant to the Stock Purchase Agreement, the Escrow Agreement, the Reset Agreement, the Mirabella Loans and the Management Services Agreement, there were no other material transactions, or series of similar transactions, during our Companys last fiscal year, or any currently proposed transactions, or series of similar transactions, to which our Company or any of our subsidiaries was or is to be a party, in which the amount involved exceeded the lesser of $120,000 or one percent of the average of the small business issuers total assets at year-end for the last three completed fiscal years and in which any director, executive officer or any security holder who is known to us to own of record or beneficially more than five percent of any class of our common stock, or any member of the immediate family of any of the foregoing persons, had an interest.
Promoters and Certain Control Persons
See the heading Transactions with Related Persons above.
Parents of the Smaller Reporting Company
We have no parents.
Director Independence
Currently two of our three directors satisfy the independence requirements of the New York Stock Exchanges listing standards. Alan Gordon is not considered independent because of, among other things, his position as President and Chief Executive Officer of the Company.
ITEM 14: PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following is a summary of the fees billed to us by our principal accountants during the fiscal years ended December 31, 2008, and 2007:
Fee Category |
|
2008 |
|
2007 |
|
Audit Fees |
$ |
12,000 |
|
$ |
10,700 |
Audit-related Fees |
$ |
0 |
|
$ |
0 |
Tax Fees |
$ |
0 |
|
$ |
0 |
All Other Fees |
$ |
0 |
|
$ |
0 |
Total Fees |
$ |
12,000 |
|
$ |
10,700 |
Audit Fees - Consists of fees for professional services rendered by our principal accountants for the audit of our annual financial statements and review of the financial statements included in our Forms 10-Q or services that are normally provided by our principal accountants in connection with statutory and regulatory filings or engagements.
Audit-related Fees - Consists of fees for assurance and related services by our principal accountants that are reasonably related to the performance of the audit or review of our financial statements and are not reported under Audit fees.
Tax Fees - Consists of fees for professional services rendered by our principal accountants for tax compliance, tax advice and tax planning.
All Other Fees - Consists of fees for products and services provided by our principal accountants, other than the services reported under Audit fees, Audit-related fees, and Tax fees above.
35
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Auditors
We have not adopted an Audit Committee; therefore, there is no Audit Committee policy in this regard. However, we do require approval in advance of the performance of professional services to be provided to us by our principal accountant. Additionally, all services rendered by our principal accountant are performed pursuant to a written engagement letter between us and the principal accountant.
PART IV
ITEM 15: EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)(1)(2) Financial Statements. See the audited financial statements for the year ended December 31, 2008 contained in Item 8 above which are incorporated herein by this reference.
(a)(3) Exhibits. The following exhibits are filed as part of this Annual Report:
Exhibit No.
Description of Exhibits
2.1
Stock Purchase Agreement, dated as of June 29, 2007, among Mirabella Holdings, LLC, Duane S. Jenson, Travis T. Jenson, Thomas J. Howells, Leonard W. Burningham, and Leonard W. Burningham, as the representative of the sellers thereunder (incorporated by reference to Exhibit 10.1 to the Companys Form 8-K report, filed on July 3, 2007).
3.1
Articles of Incorporation of the Company (incorporated herein by reference to Exhibits 99.B and 99.C to the Companys Form 10-SB Registration Statement, filed on June 3, 1998, as amended).
3.2
Amended Articles of Incorporation of the Company (incorporated by reference to the Companys DEF 14C Definitive Information Statement, filed on or about December 27, 2006).
3.3
By-Laws of the Company (incorporated by reference to Exhibit 3 of the Companys Form 10-KSB Annual Report for the year ended December 31, 2001, filed on June 28, 2005).
10.1
Escrow Agreement, dated as of June 29, 2007, among Mirabella Holdings, LLC, Leonard W. Burningham, as the representative of the sellers and the escrow agent thereunder (incorporated by reference to Exhibit 10.2 to the Companys Form 8-K report, filed on July 3, 2007).
10.2
Share Escrow and Reset Agreement, dated as of June 29, 2007, among Mirabella Holdings, LLC, Duane S. Jenson, Travis T. Jenson, Thomas J. Howells, Leonard W. Burningham, Leonard W. Burningham, as the representative of the sellers, the Company and the escrow agent thereunder (incorporated by reference to Exhibit 10.3 to the Companys Form 8-K report, filed on July 3, 2007).
10.3*
Management Services Agreement, dated April 29, 2009, between Atlantica, Inc. and Richland, Gordon & Company.
10.4*
Demand Promissory Note, dated April 29, 2009, issued by Atlantica, Inc. and payable to Mirabella Holdings, LLC.
14
Code of Ethics of the Company (incorporated by reference to Exhibit 14 of the Companys Form 10-KSB Annual Report for the year ended December 31,
36
2001, filed on June 28, 2005).
31.1*
Certification of Alan D. Gordon, the Companys President and Chief Executive Officer, pursuant to section 302 of the Sarbanes-Oxley Act of 2002.
31.2*
Certification of Shelley Goff, the Companys Secretary and Chief Financial Officer, pursuant to section 302 of the Sarbanes-Oxley Act of 2002.
32*
Certification of Alan D. Gordon and Shelley Goff pursuant to section 906 of the Sarbanes-Oxley Act of 2002.
Form 8-K as filed on January 9, 2006 (previously filed and incorporated herein by reference).
Schedule 14F-1 filed on July 3, 2007 (previously filed and incorporated herein by reference).
Numbers with (*) indicate exhibits that are filed herewith.
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.
ATLANTICA, INC.
Date: |
April 30, 2009 |
|
By: |
/s/Alan D. Gordon |
|
|
|
|
Alan D. Gordon |
|
|
|
|
President, Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Exchange Act of 1934 this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
ATLANTICA, INC.
Date: |
April 30, 2009 |
|
By: |
/s/Alan D. Gordon |
|
|
|
|
Alan D. Gordon |
|
|
|
|
President, Chief Executive Officer and Director |
Date: |
April 30, 2009 |
|
By: |
/s/Shelley Goff |
|
|
|
|
Shelley Goff |
|
|
|
|
Secretary and CFO |
Date: |
April 30, 2009 |
|
By: |
/s/Frederick G. Pierce, II |
|
|
|
|
Frederick G. Pierce, II |
|
|
|
|
Director |
Date: |
April 30, 2009 |
|
By: |
/s/Richard F. Strup |
|
|
|
|
Richard F. Strup |
|
|
|
|
Director |
37
Exhibit 10.3
Execution Copy
_______________________________
Management Services Agreement
_______________________________
RICHLAND, GORDON & COMPANY
9330 Sears Tower
233 South Wacker Drive
Chicago, IL 60093
April 29, 2009
Atlantica, Inc.
c/o Richland, Gordon & Company
9330 Sears Tower
233 South Wacker Drive
Chicago, IL 60093
Ladies and Gentlemen:
This letter agreement sets forth the terms and conditions on which Richland, Gordon & Company (the Manager ) will provide Atlantica, Inc. (the Company ) with certain financial and management consulting services.
Accordingly, we have agreed as follows:
1.
Definitions .
(a)
Claims is defined in Section 9.
(b)
Company is defined in the first paragraph of this agreement.
(c)
Consulting Event is defined in Section 3.
(d)
EBITDA means, for any period, the sum of the amounts for such period of (i) the net income (or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis, plus (ii) interest expense which has been deducted in the determination of the net income (or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis, plus (iii) federal, state and local taxes which have been deducted in determining the net income (or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis, plus (iv) depreciation and amortization expenses which have been deducted in determining the net income (or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis, plus (v) extraordinary losses which have been deducted in the determination of the net income (or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis, plus (vi) all other non-cash charges, minus (viii) extraordinary gains which have been included in the determination of the net income
(or loss) after taxes of the Company and its direct and indirect subsidiaries on a consolidated basis. Each item used in calculating EBITDA shall be determined in accordance with generally accepted accounting principles, consistent with that used in prior periods.
(e)
Initial Acquisition means the consummation by the Company of its initial acquisition (whether directly or indirectly, in any form, including through any of its subsidiaries) of, or other business combination with, any company or business occurring following the date hereof.
(f)
Initial Financing means the consummation by the Company of its initial debt or equity financing (whether directly or indirectly, in any form, including through any of its subsidiaries) occurring following the date hereof, but shall not include any loan made by Mirabella Holdings, LLC to the Company pursuant to the Demand Promissory Note issued on the date hereof.
(g)
Initial Transaction means the first to occur following the date hereof of the Initial Acquisition or the Initial Financing.
(h)
Liabilities is defined in Section 8.
(i)
Management Fee is defined in Section 3.
(j)
Manager is defined in the first paragraph of this agreement.
(k)
Manager Indemnitees is defined in Section 8.
2.
Services . The Manager will provide the Company and its direct and indirect subsidiaries with management and consulting services regarding the business of the Company and its direct and indirect subsidiaries and such other services relating to the Company and its direct and indirect subsidiaries as may from time to time be reasonably requested by the Board of Directors or executive officers of the Company. Without limiting the generality of the foregoing, the parties currently contemplate that these services shall include advice regarding improvements to the Companys financial reporting, accounting and management information systems and staffing, advice regarding the Companys general preparation for any Initial Transaction, and advice regarding the Companys execution of an Initial Transaction, if any. The Manager shall devote only so much time, and shall consult with and advise the officers and managers of the Company only to such extent and at such times and places as may be mutually convenient to the Company and the Manager.
3.
Compensation and Expenses .
(a)
For the services to be rendered by the Manager hereunder, the Manager shall receive an annual fee (the Management Fee ) equal to the greater of (i) $120,000 and (ii) 5% of EBITDA, computed without taking into consideration the fees payable under this Section 3, as determined by the Companys regular auditors, or in the absence thereof, by the Companys Board of Directors, with respect to each fiscal year. The Company shall pay the Management Fee in quarterly installments in arrears, on April 15, July 15, October 15 and January 15 of each year with respect to the immediately preceding calendar quarter, equal to the greater of (i)
-2-
$30,000 and (ii) 5% of EBITDA for the immediately preceding calendar quarter, commencing with respect to the calendar quarter ended March 31, 2008 (it being acknowledged and agreed by the parties that the Manager has been providing to the Company the services to be rendered hereunder since January 1, 2008), computed without taking into consideration the fees payable under this Section 3; provided , however , that all Management Fees earned by the Manager prior to the Initial Transaction shall accrue and not be paid to the Manager until the consummation of the Initial Transaction. For purposes of determining the amount of the Management Fee payable to the Manager with respect to any calendar quarter, the Companys Board of Directors may, at the time, make a reasonable good faith estimate of EBITDA with respect to such calendar quarter. Without limiting the foregoing, at the end of each fiscal year during the term of this agreement, the parties shall make appropriate adjustment to the aggregate amount of the Management Fee paid to date to the Manager with respect to such prior fiscal year based on any adjustments made to the calculation of EBITDA with respect to such prior fiscal year as a result of the audit of the Companys or its subsidiaries financial statements, or in the absence of such an audit as a result of the final determination of EBITDA with respect to such prior fiscal year by the Companys Board of Directors.
(b)
The Company shall reimburse the Manager for the cost of all reasonable out-of-pocket fees and expenses hereafter incurred by the Manager and its affiliates in the performance of the services hereunder and all matters related thereto. The aforementioned expenses will be payable by the Company to the Manager on a quarterly basis in arrears, on April 15, July 15, October 15 and January 15 of each year with respect to the immediately preceding calendar quarter, upon presentation by the Manager of invoices for such expenses.
(c)
In connection with additional management services required in connection with certain corporate events, the Manager shall also be entitled to additional customary and reasonable fees for management consulting services provided to the Company or to any of its direct or indirect subsidiaries or shareholders, including with respect to, without limitation, refinancings, restructurings, equity or debt offerings, acquisitions, mergers, consolidations, business combinations, sales and divestitures (each a Consulting Event ). In the event that at any time during the term hereof, there shall occur a Consulting Event involving the Company or any of the Companys direct or indirect subsidiaries or shareholders, the Company shall pay the Manager a management consulting fee, in cash, equal to 1% of the aggregate consideration (including assumed debt and long-term liabilities) paid to or by the Company or to or by any of its direct or indirect subsidiaries or shareholders in consideration for the Managers performance of management consulting services in connection with such Consulting Event; provided , however , that the amount of the management consulting fee payable to the Manager in connection with the Initial Transaction shall be reduced by the amount of all Management Fees payable to the Manager with respect to the period occurring prior to the consummation of the Initial Transaction.
4.
Activities of the Manager . The Manager shall be free to provide similar services to such other business enterprises or activities as the Manager may deem fit without any limitation or restriction whatsoever.
5.
Term . The term of this agreement shall commence as of the date hereof and shall terminate on the tenth anniversary of the date hereof.
-3-
6.
Relationship of the Parties . The Manager is providing services hereunder as an independent contractor, retaining control and responsibility for its operations and personnel. Nothing in this agreement shall be deemed to constitute the parties hereto joint venturers, partners or participants in an unincorporated business or other separate entity, nor in any manner create any employer-employee relationship between the Company and its direct and indirect subsidiaries on the one hand, and the Manager or any of the Managers employees on the other hand.
7.
Board of Directors and Officers . Nothing in this agreement shall be construed to relieve the directors or officers of the Company from the performance of their respective duties or limit the exercise of their powers in accordance with the Companys organizational documents, any applicable provisions of applicable law, or otherwise. The activities of the Company shall at all times be subject to the control and direction of its Board of Directors and officers. The Company reserves the right to make all decisions with regard to any matter upon which the Manager has rendered its advice and consultation.
8.
Limitation of Liability . Neither the Manager nor any of its affiliates, members, partners, managers, directors, officers, employees, agents and/or controlling persons, nor any successor by operation of law (including by merger) of any such person, nor any entity that acquires all or substantially all of the assets of any such person in a transaction or series of related transactions (all of the foregoing, collectively, the Manager Indemnitees ) shall be liable to the Company or any of its subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates for any loss, liability, damage, deficiency, diminution in value, action, suit, claim, proceeding, investigation, audit, demand, assessment, fine, judgment, cost or other expense (including, without limitation, legal fees and expenses) (collectively, Liabilities ) directly or indirectly (whether in contract, tort or otherwise) arising out of, related to, caused by, based upon or in connection with the performance of services contemplated by this agreement, unless such Liability shall be proven to result directly and primarily from the willful misconduct of such person. The Manager makes no representations or warranties, express or implied, in respect of the services provided by any Manager Indemnitee. In no event will any Manager Indemnitee be liable to the Company or any of its subsidiaries or affiliates (a) for special, indirect, punitive or consequential damages, including, without limitation, loss of profits or savings or lost business, whether or not such damages are foreseeable or such Manager Indemnitee has been advised of the possibility of such damages or (b) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as expressly set forth in Section 9. Under no circumstances will the aggregate liability of the Manager Indemnitees exceed, in the aggregate, the fees actually paid to the Manager hereunder.
9.
Indemnification . The Company shall reimburse, defend, indemnify and hold the Manager Indemnitees harmless from and against any Liabilities arising out of, related to, caused by, based upon or in connection with (a) any act or omission of, or on behalf of, the Company, any of its subsidiaries or the Manager, except to the extent proven to result directly and primarily from the willful misconduct of the person seeking indemnification, or (b) any act or omission made at the direction of the Company or any of its subsidiaries ( Claims ). The Company shall defend at its own cost and expense and any and all suits or actions (just or unjust) which may be brought against the Company, its subsidiaries or any of their affiliates, or any Manager Indemnitee or in which any Manager Indemnitee may be impleaded with others upon any
-4-
Claims, or upon any matter, directly or indirectly arising out of, related to, caused by, based upon or in connection with this agreement or the performance (or failure of performance) hereof by any Manager Indemnitee.
10.
Assignment . This agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company without the prior written consent of the Manager. This agreement and the rights, duties and obligations of the Manager hereunder may not be assigned or delegated by the Manager, other than to an affiliate of the Manager, without the prior written consent of the Company.
11.
Amendments . No amendment, supplement or waiver of any provision of this agreement shall be effective unless the same shall be in writing and signed by the Manager and the Company (in the case of an amendment or supplement) or by the waiving party (in the case of a waiver).
12.
Applicable Law . This agreement shall be governed by, and construed and enforced in accordance with, the laws of the state of New York that apply to contracts made and performed entirely within such state.
13.
Section Headings . The headings of each section are contained herein for convenience of reference only and shall not affect in any way the meaning or interpretation of this agreement.
14.
Entire Agreement . This agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes and replaces all prior negotiations, writings, agreements and understandings relating to the subject matter of this agreement.
15.
Severability . Any provision of this agreement that is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction shall be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof; provided , however , that the parties will attempt in good faith to reform this agreement in a manner consistent with the intent of any such ineffective provision for the purpose of carrying out such intent. If any provision is held void, invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
16.
Counterparts . This agreement may be executed in counterparts, each of which shall be an original, and both of which together shall constitute one and the same document. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an original.
[The next page is the signature page]
-5-
Please sign below to confirm that the foregoing sets forth our agreement as of the date first written above.
Very truly yours,
RICHLAND, GORDON & COMPANY
By: /s/Alan D. Gordon
Name: Alan D. Gordon
Title: President
Agreed:
ATLANTICA, INC.
By: /s/Shelley Goff
Name: Shelley Goff
Title: Secretary & Chief Financial Officer
[Management Services Agreement -- Signature Page]
Exhibit 10.4
DEMAND PROMISSORY NOTE
Issuance Date: April 29, 2009
Effective Date: November 6, 2007
Chicago, Illinois
FOR VALUE RECEIVED, Atlantica, Inc., a Utah corporation (the Debtor ), promises to pay to the order of Mirabella Holdings, LLC, a Delaware limited liability company (the Holder ), the aggregate amount that the Holder may from time to time, in its sole discretion, advance to the Debtor (any such amount that is advanced is referred to as a Loan and, collectively, as the Loans ), together with interest on the outstanding principal amount at the rate set forth below, all as further provided in this demand promissory note (this Note ). This Note is being issued by the Debtor on the Issuance Date set forth above, but is intended to be effective as of November 6, 2007 and apply to all Loans made by the Holder to the Debtor since the Effective Date.
1.
Repayment . The Debtor shall repay the principal amount outstanding under this Note, together with all accrued and unpaid interest hereon, in full ON DEMAND. Such principal and interest may be prepaid in full at any time, or in part from time to time, without prepayment premium or penalty. Any Loan or payment of principal under or pursuant to this Note and the principal balance of the Loans may be recorded by the Lender on the grid annexed hereto, which recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided , however , that the failure to so record any such information shall not affect the obligations of the Debtor in respect of this Note.
2.
Interest . Interest shall accrue on the unpaid principal amount of each Loan from the date of the advance giving rise to such Loan, at a rate of 10% per annum, compounded quarterly. Any payment of principal shall be accompanied by a payment of all interest accrued on the principal amount being paid.
3.
Payments . All payments under this Note shall be made to Holder in United States Dollars in immediately available funds, at the office of the Holder at its address as set forth on the books and records of the Debtor, or such other place as the Holder shall designate to the Debtor in writing. All amounts payable hereunder shall be made without set-off or counterclaim.
4.
Waiver of Presentment, Etc . The Debtor hereby expressly waives presentment for payment, demand for payment, notice of dishonor, protest, notice of protest, notice of non-payment, and all lack of diligence or delays in collection or enforcement of this Note.
5.
Expenses . The Debtor agrees to reimburse the Holder for any costs or expenses, including, but not limited to, attorneys fees, incurred in connection with collection or enforcement by the Holder of any of its rights under this Note, whether suit be brought or not.
6.
Governing Law . This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of New York that apply to contracts made and performed entirely in such state.
7.
Headings . The Section and other headings contained in this Note are inserted for convenience of reference only and will not affect the meaning or interpretation of this Note.
[The next page is the signature page]
The Debtor has executed and delivered this Demand Promissory Note on the Issuance Date first written above.
ATLANTICA, INC.
By: /s/Shelley Goff
Name: Shelley Goff
Title: Secretary & Chief Financial Officer
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Exhibit 31-1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Alan D. Gordon, certify that:
1. I have reviewed this Annual Report on Form 10-K of Atlantica, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the Registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the Registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the Registrants internal control over financial reporting that occurred during the Registrants most recent fiscal quarter (the Registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrants internal control over financial reporting; and
5. The Registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrants auditors and the audit committee of the Registrants board of directors (or persons performing the equivalent functions);
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrants internal control over financial reporting.
Date: |
April 30, 2009 |
|
By: |
/s/Alan D. Gordon |
|
|
|
|
Alan D. Gordon, President, Chief Executive Officer and Director |
1
Exhibit 31-2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Shelley Goff certify that:
1. I have reviewed this Annual Report on Form 10-K of Atlantica, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the Registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the Registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the Registrants internal control over financial reporting that occurred during the Registrants most recent fiscal quarter (the Registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrants internal control over financial reporting; and
5. The Registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrants auditors and the audit committee of the Registrants board of directors (or persons performing the equivalent functions);
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrants internal control over financial reporting.
Date: |
April 30, 2009 |
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By: |
/s/Shelley Goff |
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|
|
|
Shelley Goff, Secretary and Chief Financial Officer |
Exhibit 32
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Atlantica, Inc. (the Registrant) on Form 10-K for the period ending December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the Annual Report), we, Alan D. Gordon, President and Chief Executive Officer, and Shelley Goff, Secretary and Chief Financial Officer of the Registrant, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Annual Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Annual Report fairly presents, in all material respects, the financial condition and result of operations of the Registrant.
Date: |
April 30, 2009 |
|
By: |
/s/Alan D. Gordon |
|
|
|
|
Alan D. Gordon, President, Chief Executive Officer and Director |
Date: |
April 30, 2009 |
|
By: |
/s/Shelley Goff |
|
|
|
|
Shelley Goff, Secretary and Chief Financial Officer |