New York
|
11-3427886
|
(State of jurisdiction of
incorporation or organization)
|
(I.R.S. Employee
Identification Number)
|
457 Rockaway Avenue, Valley Stream, NY
|
11581
|
(Address of principal executive offices)
|
(Zip Code)
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Registrant's telephone number, including area code:
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(516) 256-7766
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Securities registered pursuant to Section 12 (b) of the Act:
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None
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Securities registered pursuant to Section 12 (g) of the Act:
|
Common Stock, $.0001 Par Value
|
|
•
Cost per Impression.
In the U.S., the cost per impression of a promotional product stayed virtually the same from 2008 to 2010, at .005 cents.
|
|
ü
|
When compared to other forms of media like television or radio, promotional products are very affordable and effective. For a modest investment, a small company can obtain the type of exposure normally reserved for large companies with significant advertising budgets.
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•
Product Usage.
Bags have the highest number of impressions in a month, over 1,000. In fact, over one-third (36%) of those with incomes under $50,000 own bags.
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ü
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Current global awareness of the importance of reusing, rather than throwing away, combined with high end-user needs for cost saving, make bags a better-than-ever way for advertisers to spread their message.
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•
Gender Preferences.
Males are more likely than females to own shirts and caps, while females are more likely to have bags, writing instruments, calendars and health and safety products than males. And as men age, they are even more likely to have received a cap in the last 12 months. As women age, they are more likely to have received writing instruments or calendars.
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|
ü
|
Knowing the likely recipient of a promotional product is paramount for an advertiser. Decorating items that have special appeal to the end-user will mean the item gets used more often and held longer, extending the product’s life span and increasing the number of impressions it makes.
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•
Positive Reinforcement.
Product preferences differ among voters. 75% of Independent voters prefer consumer-branded products – nearly 1.5 times more than Democrats or Republicans. Independents get more promotional T-shirts than either Democrats or Republicans, but are less inclined than Democrats or Republicans to take free pens.
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ü
|
Promotional products are unique during political campaigns in that they primarily emphasize the positive qualities of a candidate, while mass media focuses more on the negative aspects of the opposing candidate. A positive message on a useful product stands above the fray of negative campaign ads.
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•
Ability to Identify the Advertiser.
83% in the U.S. indicated they could identify the advertiser on a promotional item they owned, very similar to 2008 (84%).
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ü
|
Not only do promotional products make impressions to everyone who sees them, but messaging is reinforced every time the item is used, as it is making a contribution to the needs of the owner. No other form of media can allow the advertiser to so closely tie a benefit to the recipient of the message or brand.
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•
Ability to Influence User Opinions.
41% of U.S. respondents indicated their opinion of the advertiser was more favorable after receiving a promotional product. Among those who had not done business with the advertiser already in the U.S., 27% thought it likely they would
.
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ü
|
Because the promotional products benefit is so clear to the end-user, they are more aware of the sponsor on the product and they are able to create a positive impression of the sponsor, as they find value in the item each time it is used.
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•
Pass Along.
After receiving a promotional product they don’t plan to keep, nearly two-thirds (62%) of respondents in the U.S. indicated that they give the item to someone else. This is up 11 percentage points from two years ago.
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ü
|
Promotional product usefulness goes beyond the person who initially receives the item. Products are frequently passed along to others who might value them more.
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Rank 2010
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Rank
2008
|
|
Writing Instruments
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1
|
1
|
Shirts
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2
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2
|
Calendars
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3
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7
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Bags
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4
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4
|
Caps/Headwear
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5
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3
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Desk/Office/Business Accessories
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6
|
6
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Food Items
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7
|
n/a
|
Glassware/Ceramics (includes Mugs)
|
8
|
5
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Health and Safety Products
|
9
|
n/a
|
Jackets/Hoodies/Sweatshirts/Fleece
|
10
|
n/a
|
Electronics/Computer
|
11
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n/a
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Recognition-Awards/Trophies/Plaques
|
12
|
10
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Automotive
|
13
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n/a
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·
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Branding & Branded Merchandise;
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·
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Interactive Solutions/ Website Development;
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·
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Direct Relationship Marketing; and
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·
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Mobile Marketing / Proximity Marketing.
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·
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Better Services;
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·
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Consistency in Branding to protect Quality, and
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·
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Incredible cost savings when implemented as an aggregated buying program.
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·
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Established relationships with premium factories throughout the world
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·
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Customized product development and design service
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Factory Direct Pricing
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·
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Detailed Import Proposals F.O.B. USA
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·
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Prototyping and Pre-Production Samples
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·
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Detailed correspondence and foreign translation
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Overseas Inspection of finished goods
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On-site inspections – as needed
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·
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Letter of intent provided for overseas orders
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·
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·
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Cost Center Analysis
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·
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Mailing Services
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Credit Card Authorization
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Pick & Pack Services
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Drop shipping Inventory World-Wide
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·
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Assembly
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Inventory Storage
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Product Fulfillment
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·
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Inventory Consolidation
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·
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Shipping Manifest
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·
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Invoice Consolidation
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·
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Customized Reporting
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Optimized to display Web content effectively;
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Optimized for search engines used by mobile devices;
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Optimized for easy data-field entry from mobile devices;
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Customized High Quality and Visually pleasing design; and
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Strategically developed to deliver vital content.
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Retail E-Commerce;
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Online Company Stores;
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Enable customers to sell products and services to their clients and fans; and
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·
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Seamless integration with customer websites.
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Database Building;
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Easy-to-use Newsletter creation;
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Effective tracking & reporting; and
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Integration with client website.
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Fit our customers’ Price Point;
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·
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Engage our customers’ Target Audience; and
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·
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Deliver Measurable Results.
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·
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Brand Name Merchandise;
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·
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Gift Cards;
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·
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Travel Incentives; and
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·
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Debit Cards.
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·
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A dynamic, personalized, online video designed to uniquely engage consumers, while gathering data to build and enhance our customers targeted consumer database.
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An Integrated Enrollment Page allows individuals to enter personal information and participate in the personalized video experience.
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·
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Consumer’s personal information (name, age, sex, phone number, and favorite song) can be dynamically incorporated to personalize the video for them and their favorite store, product, celebrity, and sports team.
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o
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Personalized data can also be incorporated in the video or to a live action, pre-recorded phone call from their favorite celebrity, artist, athlete.
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Our Customers are immersed into a new and innovative video experience.
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Web based video with flexibility to reside anywhere on the internet
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o
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Websites, social media sites and blogs .
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·
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Data
- First, we’ll help our customers to analyze their customer data to develop an Ideal Customer Profile. Second, we’ll use the Ideal Customer Profile to identify “most likely prospects” within their target market.
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·
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Offer
- We’ll help our customers to develop offers that will get the attention of their existing and target customers.
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Delivery
- We’ll use multiple delivery methods: Direct Mail, Email, SMS Text & Personal Websites to communicate our customer offer to their target audience.
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Target consumers based on geographic, demographic, and psychographic data.
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Pre-screen the consumers’ financial ability to purchase a customer’s product or service.
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Target consumers who are more likely to purchase a customer’s product or service.
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Achieve a lower per-customer acquisition cost than traditional media.
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Flexible message format – change the content based on the demographic profile.
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Grabs the attention of a customer’s potential clients with personalized, relevant information.
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Our customer’s will have a greater understanding of their product/service because they’ll be more likely to engage with a clients message.
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Variable graphics and offer: deliver relevancy to a customer’s target; increasing response rates by increasing the perceived value to the consumer.
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Acquisition:
Find clients that resemble our customer’s current client and targeted client base by age, income, gender or lifestyle interest, eliminating those who are unlikely to respond to messages sent by our customer’s business
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·
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Retention:
Create specific messages for our customer’s current client base to deliver relevant offers to increase their loyalty and referrals. Attraction Marketing can help our customer append their current data to fill in gaps in their customer list, such as most recent address, income, presence of children in household, lifestyle interest and much more.
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Be personalized to the recipient; thereby increasing response rates by approximately 35%;
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Contain variable message, graphics and offer, all in the same press run; and
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Drive responders to personal VIP web site for data collection and increased response rates.
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Personalize variable messaging and graphics
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Increase response rates
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Provide immediate Feedback; and
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Obtain Response reporting.
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Build or refine their database of leads by collecting data from responders;
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Offer unique time based incentives to drive response;
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Drive qualified traffic to our customer’s website; and
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Expand message outside target through viral refer-a-friend feature.
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All missed calls are tracked, a message is immediately sent to our customer’s designated e-mail address with the information about the caller, ensuring our customer never loses a prospect call; and
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Valuable information about the caller is tracked (when and where the call was originated, how many times it rang before it was picked up, call outcomes, and much more).
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Our proprietary web-based reporting system combines all of the gathered information into one reporting engine for easy analysis.
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We deliver analytics for our customer’s to learn what campaigns were successful, and which ones need improvement; all to ensure future success.
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Our reporting systems can also track the effectiveness of our customer’s other media investments.
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Roosevelt Field - NY
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The Galleria – Houston
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Lenox Square – Atlanta
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Northbridge – Chicago
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Santa Monica Place – LA
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Copley Place – Boston
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We have created a suite of solutions for one stop shopping.
With its newly developed suite of solutions in place, Ace now offer its clients and potential clients the ability to work smarter in addressing their marketing needs by leveraging technology platforms. The services and technology platforms assembled within each of our four business verticals allow Ace to provide its clients with an exceptional mix of solutions for reaching their customers in ways that were previously impossible. Clients have the ability to choose a single solution within a vertical or a complete package of solutions working together seamlessly. By offering the entire suite of solutions, the need for multiple vendors has been eliminated, and Ace can be a single source provider of Branding, Interactive, Direct Relationship Marketing and Mobile Marketing Solutions.
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·
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We have partnered with leading companies for our proximity marketing business.
We have partnered with Blue Bite LLC. (“Blue Bite”), a premier provider of Proximity Marketing hardware and software solutions, and Eye Corp Pty Ltd., (“EyeCorp”) an out-of-home media company which operates the largest mall advertising display network in the United States, to roll-out an expansive network which comprises of retail, dining, transportation, sporting, music, and other high traffic venues. As a result of these relationships, in April 2011, we were able to enter into an exclusive rights agreement with the Simon Property Group to create a location-based mobile marketing network in top malls across the United States in the Simon Mall portfolio. This new alliance will give advertisers the opportunity to reach millions of mall visitors a month with mobile digital content and offers when they are most receptive to advertising messages.
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·
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Creating awareness of our products, services and facilities.
We have been in business since March 1998. Our revenues are derived from existing customers and new customers through word of mouth recommendations, attendance at trade shows, our sales representatives and advertising and promotion in trade journals.
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·
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Our company was built as a platform that could grow easily.
Scalability is the key and we have separate departments with defined roles which will allow this to occur and for our salesperson to sell. Our sales persons receive helpful support from us. In many other distributorships, the salesperson is often responsible for everything from answering phones, doing all their own research, processing orders, billing, tracking and collections. At our company, we provide complete backup to allow our sales persons to just sell. Since our technology is currently up to date, including in house servers to allow access to our systems from off-site, we have the ability to pick up salespeople from any location in the United States.
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·
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Providing generous incentives to our sales people to increase performance levels.
We offer competitive commissions in addition to back office support and research assistance to allow our independent sales representatives to optimize their sales time and to provide them with adequate incentives to sell promotional products to our customers rather than for our competitors. In the future, we may offer a stock option program for additional incentives.
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Maintain a competitive gross profit percentage on all sales orders.
For the years ended December 31, 2011 and 2010, our gross profit percentage was 25.5% and 29.4%, respectively.
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Provide research, consulting, design and fulfillment services to our customers to increase profitability.
We design promotional products for our customers and provide consulting services in connection therewith. We utilize licensed research software technology and order entry systems that are available to anyone in the industry for license to provide the best services to our customers in the timeliest fashion
possible
.
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·
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costs of developing new promotions and services;
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·
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costs related to acquisitions of businesses;
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·
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the timing and amount of sales and marketing expenditures;
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·
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general economic conditions, as well as those specific to the promotional product industry; and
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·
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our success in establishing additional business relationships.
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·
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costs of developing new promotions and services;
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·
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costs related to acquisitions of businesses;
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·
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the timing and amount of sales and marketing expenditures;
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·
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general economic conditions, as well as those specific to the promotional product industry; and
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·
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our success in establishing additional business relationships.
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·
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the publication of earnings estimates or other research reports and speculation in the press or investment community;
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·
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changes in our industry and competitors;
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·
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our financial condition, results of operations and prospects;
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·
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any future issuances of our common stock, which may include primary offerings for cash, and the grant or exercise of stock options from time to time;
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·
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general market and economic conditions; and
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·
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any outbreak or escalation of hostilities, which could cause a recession or downturn in our economy.
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·
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Authority of the board of directors to issue preferred stock; and
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·
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Prohibition on cumulative voting in the election of directors.
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Quarters Ended
|
High
|
Low
|
||||||
March 31, 2010
|
$ .65
|
.40
|
||||||
June 30, 2010
|
.62
|
.25
|
||||||
September 30, 2010
|
.65
|
.11
|
||||||
December 31, 2010
|
.80
|
.23
|
||||||
March 31, 2011
|
.40
|
.17
|
||||||
June 30, 2011
|
.70
|
.16
|
||||||
September 30, 2011
|
1.85
|
.50
|
||||||
December 31, 2011
|
1.30
|
.55
|
Date of Sale
|
Title of Security
|
Number Sold
|
Consideration Received
and Description of
Underwriting or Other
Discounts to Market
Price or Convertible
Security, Afforded to
Purchasers
|
Exemption from
Registration
Claimed
|
If Option, Warrant
or Convertible
Security, terms of
exercise or
conversion
|
January 2011
|
Common Stock
|
150,000 shares and 200,000
Class E warrants
|
Services rendered;
no commissions paid
|
Section 4(2)
|
Warrants exercisable at $.30 per share through August 31, 2013
|
March 2011
|
Common Stock and
Class E Warrants
|
2,516,666 shares and
2,516,666 warrants
|
$755,000; no commissions paid
|
Rule 506
|
Warrants exercisable at $.30 per share through August 31, 2013
|
April 2011
|
Common Stock and Class E warrants
|
100,000 shares and Class E
warrants to purchase 100,000 shares
|
Services rendered;
no commissions paid
|
Rule 506
|
Warrants exercisable at $.30 per share through August 31, 2013
|
May 1/ June 2011
|
Common Stock
and Class F
Warrants
|
1,025,000 shares,
Class F
Warrants to purchase 1,025,000 shares and Class G Warrants to purchase 900,000 shares, respectively.
|
$461,250; no commissions
Paid
|
Rule 506
|
Class F Warrants exercisable at $.50 per share through May 31, 2014, Class G Warrants exercisable at $.60 per share through May 31, 2014 August 31, 2013
|
July/August 2011
|
Common Stock and Class H
Warrants
|
1,950,000 shares, 1,980,000 Warrants (includes 30,000 Warrants issued to Placement Agent)
|
$975,000; $15,000 commission paid
|
Rule 506
|
Class H Warrants exercisable at $.60 per share through July 31, 2014
|
September 2011
|
Common Stock
|
159,810 shares
|
Cashless exercise of Warrants; no commissions paid
|
Section 3(a)(9)
|
Warrants exercised on cashless basis
|
August/
September 2011
|
Common Stock
|
325,000 shares
|
Services rendered; no commissions paid
|
Section 4(2)
|
Not applicable.
|
August 2011
|
Common Stock
|
65,000 shares
|
Services rendered; no
commissions paid
|
Section 4(2)
|
Not applicable.
|
December 2011
|
Common Stock
|
66,000
|
Services rendered; no
Commissions paid
|
Section 4(20
|
Not applicable.
|
January 2012
|
Common Stock and Class AAWarrants
|
958,338 shares, 191,671 Warrants (excludes 95,833 Warrants issued to Placement Agent)
|
$575,000; $51,750 commission paid;
$25,000 advisory fee
paid (exclusive of legal
and due diligence costs)
|
Rule 506
|
Class AAWarrants exercisable at $.60 per share through January 18, 2016
|
February 2012
|
Common Stock
|
150,000 shares
|
Services rendered; no
Commissions paid
|
Section 4(2)
|
Not applicable
|
|
·
|
Roosevelt Field - NY
|
|
·
|
The Galleria – Houston
|
|
·
|
Lenox Square – Atlanta
|
|
·
|
Northbridge – Chicago
|
|
·
|
Santa Monica Place – LA
|
|
·
|
Copley Place – Boston
|
Years Ended December 31
|
||||||||
2011
|
2010
|
|||||||
Revenue
|
$
|
3,243,318
|
$
|
3,170,035
|
||||
Cost of Revenues
|
2,417,834
|
2,237,396
|
||||||
Gross Profit
|
825,484
|
932,639
|
||||||
Operating Expenses
|
3,033,448
|
2,694,826
|
||||||
Loss from operations
|
(2,207,964
|
)
|
(1,762,187
|
)
|
||||
Net Loss
|
(2,209,508
|
)
|
(1,762,256
|
)
|
||||
Preferred Stock Dividend
|
--
|
--
|
||||||
Net Loss Allocable to Common Stockholders
|
(2,209,508
|
)
|
(1,762,256
|
)
|
||||
Net (Loss) per common Share
|
(.11
|
)
|
(.13
|
)
|
||||
Weighted average common Shares outstanding
|
20,566,33
|
13,520,411
|
CONTENTS
|
|
YEARS ENDED DECEMBER 31, 2011 AND 2010
|
PAGES
|
CONSOLIDATED FINANCIAL STATEMENTS
|
|
Reports of Independent Registered Public Accounting Firm
|
F-1
|
Consolidated Balance Sheets
|
F-2
|
Consolidated Statements of Operations
|
F-3
|
Consolidated Statement of Stockholders' Equity
|
F-4
|
Consolidated Statements of Cash Flows
|
F-5
|
Notes to Consolidated Financial Statements
|
F-6
|
Peter Messineo
Certified Public Accountant
1982 Otter Way Palm Harbor FL 34685
peter@pm-cpa.com
T 727.421.6268 F 727.674.0511
|
ACE MARKETING & | ||
PROMOTIONS, INC. | ||
Condensed Balance Sheets
|
2011
|
2010
|
|||||||
Assets
|
||||||||
Current Assets:
|
||||||||
Cash and cash equivalents
|
$ | 605,563 | $ | 763,581 | ||||
Accounts receivable, net of allowance for doubtful accounts of
$20,000 at December 31, 2010 and December 31, 2011
|
534,924 | 298,892 | ||||||
Prepaid expenses and other current assets
|
342,641 | 218,336 | ||||||
Total Current Assets
|
1,483,128 | 1,280,809 | ||||||
Property and Equipment, net
|
714,865 | 249,726 | ||||||
Other Assets
|
7,745 | 7,745 | ||||||
Total Assets
|
$ | 2,205,738 | $ | 1,538,280 | ||||
Liabilities and Stockholders' Equity
|
||||||||
Current Liabilities:
|
||||||||
Accounts payable
|
$ | 399,924 | $ | 243,795 | ||||
Accrued expenses
|
121,821 | 98,270 | ||||||
Total Current Liabilities
|
521,745 | 342,065 | ||||||
Commitments and Contingencies
|
||||||||
Stockholders' Equity:
|
||||||||
Preferred Stock, $.0001 par value; 5,000,000 shares authorized,
none issued
|
||||||||
Common stock, $.0001 par value; 100,000,000 shares authorized;
23,284,236 and 16,834,260 shares issued and outstanding
at December 31, 2011 and December 31, 2010, respectively
|
2,328 | 1,683 | ||||||
Additional paid-in capital
|
10,997,407 | 8,300,766 | ||||||
Accumulated deficit
|
(9,284,241 | ) | (7,074,733 | ) | ||||
1,715,494 | 1,227,716 | |||||||
Less: Treasury Stock, at cost, 23,334 shares
|
(31,501 | ) | (31,501 | ) | ||||
Total Stockholders' Equity
|
1,683,993 | 1,196,215 | ||||||
Total Liabilities and Stockholders' Equity
|
$ | 2,205,738 | $ | 1,538,280 | ||||
See notes to condensed financial statements.
|
ACE MARKETING &
|
|||
PROMOTIONS, INC.
|
|||
Condensed Statements of Operations
|
|||
Years Ended December 31,
|
2011
|
2010
|
|||||||
Revenues, net
|
$ | 3,243,318 | $ | 3,170,035 | ||||
Cost of Revenues
|
2,417,834 | 2,237,396 | ||||||
Gross Profit
|
825,484 | 932,639 | ||||||
Operating Expenses:
|
||||||||
Selling, general and administrative expenses
|
3,033,448 | 2,694,826 | ||||||
Total Operating Expenses
|
3,033,448 | 2,694,826 | ||||||
Loss from Operations
|
(2,207,964 | ) | (1,762,187 | ) | ||||
Other Income (Expense):
|
||||||||
Interest expense
|
(2,177 | ) | (818 | ) | ||||
Interest income
|
633 | 749 | ||||||
Total Other Income (Expense)
|
(1,544 | ) | (69 | ) | ||||
Net Loss
|
$ | (2,209,508 | ) | $ | (1,762,256 | ) | ||
Net Loss Per Common Share:
|
||||||||
Basic
|
$ | (0.11 | ) | $ | (0.13 | ) | ||
Diluted
|
$ | (0.11 | ) | $ | (0.13 | ) | ||
Weighted Average Common Shares Outstanding:
|
||||||||
Basic
|
20,566,338 | 13,520,411 | ||||||
Diluted
|
20,566,338 | 13,520,411 |
See notes to condensed financial statements.
|
ACE MARKETING & | |||||||||
PROMOTIONS, INC. | |||||||||
Statement of Stockholders' Equity
|
|||||||||
Years Ended December 31, 2010 and 2011
|
Total
|
Additional
|
|||||||||||||||||||||||||||
Stockholders' | Common Stock |
Paid-in
|
Treasury Stock
|
|||||||||||||||||||||||||
Equity
|
Shares
|
Amount
|
Capital
|
(Deficit)
|
Shares
|
Amount
|
||||||||||||||||||||||
Balance, at December 31, 2009
|
$ | 887,036 | 11,615,703 | $ | 1,163 | $ | 6,229,851 | $ | (5,312,477 | ) | 23,334 | $ | (31,501 | ) | ||||||||||||||
Stock Purchase
|
1,364,800 | 4,672,499 | 467 | 1,364,333 | ||||||||||||||||||||||||
Stock Warrant
|
15,064 | 15,064 | ||||||||||||||||||||||||||
Stock Grant
|
155,649 | 546,058 | 53 | 155,596 | ||||||||||||||||||||||||
Stock Compensation
|
535,922 | 535,922 | ||||||||||||||||||||||||||
Net Loss
|
(1,762,256 | ) | (1,762,256 | ) | ||||||||||||||||||||||||
Balance, at December 31, 2010
|
$ | 1,196,215 | 16,834,260 | $ | 1,683 | $ | 8,300,766 | $ | (7,074,733 | ) | 23,334 | $ | (31,501 | ) | ||||||||||||||
Stock Purchase
|
2,222,727 | 5,616,666 | $ | 562 | $ | 2,222,165 | ||||||||||||||||||||||
Stock Warrant
|
25,522 | 134,810 | $ | 13 | $ | 25,509 | ||||||||||||||||||||||
Stock Grant
|
141,153 | 698,500 | 70 | 141,083 | ||||||||||||||||||||||||
Stock Compensation
|
307,884 | 307,884 | ||||||||||||||||||||||||||
Net Loss
|
(2,209,508 | ) | $ | (2,209,508 | ) | |||||||||||||||||||||||
Balance, at December 31, 2011
|
$ | 1,683,993 | 23,284,236 | $ | 2,328 | $ | 10,997,407 | $ | (9,284,241 | ) | 23,334 | $ | (31,501 | ) |
See notes to condensed financial statements.
|
ACE MARKETING & | ||
PROMOTIONS, INC. | ||
Condensed Statements of Cash Flows
|
2011
|
2010
|
|||||||
Cash Flows from Operating Activities:
|
||||||||
Net loss
|
$ | (2,209,508 | ) | $ | (1,762,256 | ) | ||
Adjustments to reconcile net loss to
net cash used in operating activities:
|
||||||||
Depreciation and amortization
|
129,607 | 56,961 | ||||||
Stock-based compensation
|
474,556 | 706,635 | ||||||
Changes in operating assets and liabilities:
|
||||||||
(Increase) decrease in operating assets:
|
||||||||
Accounts receivable
|
(236,032 | ) | 234,663 | |||||
Prepaid expenses and other assets
|
(124,304 | ) | (60,756 | ) | ||||
Increase (Decrease) in operating liabilities:
|
||||||||
Accounts payable and accrued expenses
|
179,680 | (199,021 | ) | |||||
Total adjustments
|
423,507 | 738,482 | ||||||
Net Cash Used in Operating Activities
|
(1,786,001 | ) | (1,023,774 | ) | ||||
Cash Flows from Investing Activities:
|
||||||||
Acquisition of property and equipment
|
(594,744 | ) | (173,056 | ) | ||||
Net Cash (Used) in Provided by Investing Activities
|
(594,744 | ) | (173,056 | ) | ||||
Cash Flows from Financing Activities:
|
||||||||
Proceeds from issuance of common stock
|
2,222,727 | 1,364,800 | ||||||
Net Cash Provided by Financing Activities
|
2,222,727 | 1,364,800 | ||||||
Net Increase (decrease) in Cash and Cash Equivalents
|
(158,018 | ) | 167,970 | |||||
Cash and Cash Equivalents, beginning of period
|
763,581 | 595,611 | ||||||
Cash and Cash Equivalents, end of period
|
$ | 605,563 | $ | 763,581 |
See notes to condensed financial statements.
|
USEFUL LIVES
|
2011
|
2010
|
|||||||
Furniture and Fixtures
|
5 years
|
$
|
986,785
|
$
|
392,039
|
||||
Leasehold Improvements
|
5 years
|
8,919
|
8,919
|
||||||
995,704
|
400,958
|
||||||||
Less Accumulated Depreciation
|
280,839
|
151,232
|
|||||||
$
|
714,865
|
$
|
249,726
|
2011
|
2010
|
|||||||
Current:
|
||||||||
Federal
|
$
|
-
|
-
|
|||||
State
|
-
|
-
|
||||||
-
|
-
|
|||||||
Deferred:
|
||||||||
Federal
|
-
|
-
|
||||||
State
|
-
|
-
|
||||||
$
|
-
|
$
|
-
|
YEARS ENDED DECEMBER 31,
|
||||||||
2011
|
2010
|
|||||||
Deferred Tax Assets:
|
||||||||
Net operating loss carryforwards
|
$
|
2,808,000
|
$
|
1,924,000
|
||||
Stock based compensation
|
1,276,000
|
1,086,000
|
||||||
Allowance for doubtful accounts
|
8,000
|
8,000
|
||||||
Deferred Tax Assets
|
4,092,000
|
3,018,000
|
||||||
Less Valuation Allowance
|
4,092,000
|
3,018,000
|
||||||
Net Deferred Tax Asset
|
$
|
-
|
$
|
-
|
YEARS ENDED DECEMBER 31,
|
||||||||
2011
|
2010
|
|||||||
Federal Statutory Tax Rate
|
34.00%
|
34.00%
|
||||||
State Taxes, net of Federal benefit
|
6.00%
|
6.00%
|
||||||
Change in Valuation Allowance
|
(40.00%
|
)
|
(40.00%
|
)
|
||||
Total Tax Expense
|
0.00%
|
0.00%
|
Years Ended December 31,
|
||||||||
2011
|
2010
|
|||||||
Employee stock based compensation-option grants
|
$
|
89,963
|
$
|
267,180
|
||||
Employee stock based compensation-stock grants
|
28,500
|
42,514
|
||||||
Non-Employee stock based compensation-option grants
|
252,378
|
175,122
|
||||||
Non-Employee stock based compensation-stock grants
|
65,454
|
170,900
|
||||||
Non-Employee stock based compensation-stock warrant
|
38,264
|
50,921
|
||||||
$
|
474,559
|
$
|
706,635
|
Years Ended December 31,
|
||||||||
2011
|
2010
|
|||||||
Expected volatility
|
203.04%
|
123.48%
|
||||||
Expected dividend yield
|
-
|
-
|
||||||
Risk-free interest rate
|
1.88%
|
3.01%
|
||||||
Expected term (in years)
|
6.54
|
4.00
|
Weighted
|
||||||||||||||||
Weighted
|
Average
|
|||||||||||||||
Average
|
Remaining
|
Aggregate
|
||||||||||||||
Exercise
|
Contractual
|
Intrinsic
|
||||||||||||||
Share
|
Price
|
Term
|
Value
|
|||||||||||||
Outstanding, January 1, 2011
|
3,120,000
|
$
|
.97
|
5.23
|
||||||||||||
Granted
|
515,000
|
$
|
1.00
|
|||||||||||||
Exercised
|
-
|
-
|
||||||||||||||
Cancelled / Expired
|
(130,000
|
)
|
$
|
2.50
|
||||||||||||
Outstanding, December 31, 2011
|
3,505,000
|
$
|
.84
|
4.85
|
171,600
|
|||||||||||
Options exercisable, December 31, 2011
|
3,455,000
|
$
|
.83
|
4.51
|
-
|
Years Ended
|
||||||||
2011
|
2010
|
|||||||
Expected volatility
|
56.83%
|
132.18%
|
||||||
Expected dividend yield
|
--
|
--
|
||||||
Risk-free interest rate
|
1.07%
|
2.65%
|
||||||
Expected term (in years)
|
3.00
|
5.00
|
Weighted
|
||||||||||||||||
Weighted
|
Average
|
|||||||||||||||
Average
|
Remaining
|
Aggregate
|
||||||||||||||
Exercise
|
Contractual
|
Intrinsic
|
||||||||||||||
Share
|
Price
|
Term
|
Value
|
|||||||||||||
Outstanding, January 1, 2011
|
6,243,965
|
$
|
.54
|
|||||||||||||
Granted
|
7,021,666
|
$
|
.45
|
|||||||||||||
Exercised
|
(395,000
|
) |
--
|
|||||||||||||
Cancelled/Expired
|
(299,989
|
) |
--
|
|||||||||||||
Outstanding, December 31, 2011
|
12,570,642
|
$
|
.48
|
1.84
|
1,943,000
|
|||||||||||
Warrants exercisable, December 31, 2011
|
12,570,642
|
$
|
.48
|
1.84
|
--
|
2005 Stock Option Plan
|
3,355,000
|
Non Statutory Options
|
150,000
|
Warrants
|
551,600
|
Class D Warrants
|
2,062,377
|
Class E Warrants
|
5,851,665
|
Class F Warrants
|
1,225,000
|
Class G Warrants
|
900,000
|
Class H Warrants
|
1,980,000
|
2012
|
$ 26,000
|
YEARS ENDED DECEMBER 31,
|
||||||||
2011
|
2010
|
|||||||
Interest
|
$
|
2,177
|
$
|
818
|
||||
Income Taxes
|
$
|
-
|
$
|
-
|
Ace Marketing
& Promotions, Inc.
|
Mobiquity
Networks
Inc.
|
Total | ||||||||||
Net sales | $ |
3,239,951
|
4,000
|
$ |
3,243,951
|
|||||||
Operating (loss)
|
(1,040,190)
|
(1,038,168)
|
(2,078,358)
|
|||||||||
Interest income
|
633 | - | 633 | |||||||||
Interest (expense)
|
(2,177)
|
-
|
(2,177)
|
|||||||||
Depreciation and amortization
|
(6,442)
|
(123,164)
|
(129,606)
|
|||||||||
Exp Net Loss
|
(1,048,176)
|
(1,161,332)
|
(2,209,508)
|
|||||||||
Total assets at December 31, 2011
|
1,452,276
|
753,462
|
2,205,738
|
All intersegment sales and expenses have been eliminated from the table above.
|
|
a)
|
Management documented their policies and procedures as they related to the managing of operations for application and technology platforms. These policies were documented in 2010.
|
|
a)
|
Managements addressed the lack of review or evidence of review in the financial reporting process by instituting a checklist process where the CEO or an outside consultant reviews transactions created by the CFO.
|
|
b)
|
The database link was created in mid 2009 and will continue to be monitored and tested. Management believes the process has improved considerably and believes any outstanding issues were fully resolved in 2010.
|
FIRST BECAME DIRECTOR
|
||||||
NAME (1)
|
AGE
|
AND/OR OFFICER
|
POSITION
|
|||
Dean Julia (2)
|
44
|
1998
|
Chief Executive Officer/Secretary/Treasurer/Director/Co-Founder
|
|||
Michael Trepeta (2)
|
40
|
1998
|
President/Director/Co-Founder
|
|||
Sean McDonnell
|
51
|
2005
|
Chief Financial Officer
|
|||
Domenico Iannucci
|
56
|
2009
|
Director
|
|||
Thomas Arnost
|
65
|
2011
|
Director
|
|||
Sean Trepeta
|
44
|
2011
|
President of Mobiquity Networks
|
(1)
|
Directors are elected at the annual meeting of stockholders and hold office until the following annual meeting.
|
(2)
|
Michael Trepeta and Dean Julia will serve as Co-Chief Executive Officers of the Company effective on the day after filing of this Form 10-K.
|
|
·
|
being directly responsible for the appointment, compensation and oversight of our independent auditor, which shall report directly to the audit committee, including resolution of disagreements between management and the auditors regarding financial reporting for the purpose of preparing or issuing an audit report or related work;
|
|
·
|
annually reviewing and reassessing the adequacy of the committee’s formal charter;
|
|
·
|
reviewing the annual audited financial statements with our management and the independent auditors and the adequacy of our internal accounting controls;
|
|
·
|
reviewing analyses prepared by our management and independent auditors concerning significant financial reporting issues and judgments made in connection with the preparation of our financial statements;
|
|
·
|
reviewing the independence of the independent auditors;
|
|
·
|
reviewing our auditing and accounting principles and practices with the independent auditors and reviewing major changes to our auditing and accounting principles and practices as suggested by the independent auditor or its management;
|
|
·
|
reviewing all related party transactions on an ongoing basis for potential conflict of interest situations; and
|
|
·
|
all responsibilities given to the audit committee by virtue of the Sarbanes-Oxley Act of 2002, which was signed into law by President George W. Bush on July 30, 2002.
|
|
·
|
Honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;
|
|
·
|
Full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the SEC and in other public communications made by the Company;
|
|
·
|
Compliance with applicable governmental law, rules and regulations;
|
|
·
|
The prompt internal reporting of violations of the code of ethics to an appropriate pre-identified person; and
|
|
·
|
Accountability for adherence to the code of ethics.
|
Salary Compensation | ||||||||||||||||||||||||||||||
Name and
Principal
Position
|
Fiscal
Year
|
Salary ($)
|
Bonus
($)
|
Stock
Awards
|
Options
Awards
($)(1)
|
Non-Equity
Incentive Plan
Compensation
($)
|
Nonqualified
Deferred
Compensation
Earnings ($)
|
All Other
Compensation
($) (2)(3)
|
Total ($)
|
|||||||||||||||||||||
Dean L. Julia
|
2010
|
$
|
256,000
|
$ |
5,500
|
--
|
$
|
135,941
|
--
|
--
|
$
|
9,900
|
$
|
407,341
|
||||||||||||||||
Chief Executive Officer of the
Company
|
2011
|
$
|
282,986
|
$ |
6,000
|
--
|
$
|
21,383
|
--
|
--
|
$
|
24,993
|
$
|
335,362
|
||||||||||||||||
Michael D. Trepeta
|
2010
|
$
|
256,000
|
$ |
5,500
|
--
|
$
|
135,941
|
--
|
--
|
$
|
10,792
|
$
|
408,233
|
||||||||||||||||
President of
The Company
|
2011
|
$
|
282,986
|
$ |
6,000
|
--
|
$
|
21,383
|
--
|
--
|
$
|
21,728
|
$
|
332,097
|
||||||||||||||||
Sean Trepeta | 2010 | $ | -- | $ | -- | -- | $ | -- | -- | -- | $ | -- | $ | -- | ||||||||||||||||
President of Mobiquity Networks | 2011 | $ | 30,000 | $ | 5,300 | -- | $ | 14,789 | -- | -- | $ | 13,170 | $ | 63,259 |
(1)
|
The options and restricted stock awards presented in this table for 2011 and 2010 reflects the full grant date fair value, as if the total dollar amount were earned in the year of grant. The stock awards are valued based on the fair market value of such Shares on the date of grant and are charged to compensation expense over the related vesting period. The options are valued at the date of grant based upon the Black-Scholes method of valuation, which is expensed over the service period over which the options become vested. As a general rule, for time-in-service-based options, the Company will immediately expense any option or portion thereof which is vested upon grant, while expensing the balance on a pro rata basis over the remaining vesting term of the option.
|
|
(2)
|
Includes all other compensation not reported in the preceding columns, including (i) perquisites and other personal benefits, or property, unless the aggregate amount of such compensation is less than $10,000; (ii) any “gross-ups” or other amounts reimbursed during the fiscal year for the payment of taxes; (iii) discounts from market price with respect to securities purchased from the company except to the extent available generally to all security holders or to all salaried employees; (iv) any amounts paid or accrued in connection with any termination (including without limitation through retirement, resignation, severance or constructive termination, including change of responsibilities) or change in control; (v) contributions to vested and unvested defined contribution plans; (vi) any insurance premiums paid by, or on behalf of, the company relating to life insurance for the benefit of the named executive officer; and (vii) any dividends or other earnings paid on stock or option awards that are not factored into the grant date fair value required to be reported in a preceding column.
|
|
(3)
|
Includes compensation for service as a director described under Director Compensation, below.
|
Option Awards
|
Stock Awards
|
|||||||||||||||||||||||||||||||||||||
Name
|
Number of
Securities
Underlying
Unexercised
Options(#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options(#)
Unexercisable
|
Equity
Incentive Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
|
Option
Exercise
Price ($)
|
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,
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
|
|||||||||||||||||||||||||||||
Dean L. Julia
|
250,000 | — | — | $ | 1.00 |
01/03/15
|
— | — | — | — | ||||||||||||||||||||||||||||
(1) | 200,000 | — |
—
|
$ | 1.20 |
12/28/15
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||
150,000 | — | — | $ | 1.20 |
08/22/17
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | 1.20 |
03/01/13
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | .65 |
03/02/19
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | .54 |
03/25/20
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
200,000 |
—
|
—
|
$ | .50 | 04/07/20 |
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
100,000 |
—
|
—
|
$ | .26 |
02/28/21
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
100,000 |
—
|
—
|
$ | .61 | 02/28/22 |
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
Michael D.
|
||||||||||||||||||||||||||||||||||||||
Trepeta
|
250,000 | — | — | $ | 1.00 |
01/03/15
|
— | — | — | — | ||||||||||||||||||||||||||||
(1) | 200,000 | — | — | $ | 1.20 |
12/28/15
|
— | — | — |
—
|
||||||||||||||||||||||||||||
150,000 | — | — | $ | 1.20 |
08/22/17
|
— | — | — | — | |||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | 1.20 |
03/01/13
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | .65 |
03/02/19
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
50,000 |
—
|
—
|
$ | .54 |
03/25/20
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
200,000 |
—
|
—
|
$ | .50 | 04.07/20 |
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
100,000 |
—
|
—
|
$ | .26 |
02/28/21
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
100,000 |
—
|
—
|
$ | .61 | 02/28/21 | |||||||||||||||||||||||||||||||||
Sean | ||||||||||||||||||||||||||||||||||||||
Trepeta (2) | 100,000 |
—
|
|
$ | .30 | 08/13/12 |
—
|
—
|
—
|
—
|
|
(1)
|
All options contain cashless exercise provisions and are currently fully vested.
|
|
(2)
|
Sean Trepeta owns warrants issued on April 21, 2011 which are not granted under a compensation plan.
|
Name
|
Position
|
Monthly Salary (1)
|
Bonus (2)
|
||||
Dean L. Julia
|
Chief Executive Officer
|
$ 24,000
|
Annual bonus of at least 5% of pre-tax earnings
|
||||
Michael Trepeta
|
President
|
$ 24,000
|
Annual bonus of at least 5% of pre-tax earnings
|
(
1
)
|
Compensation of each executive officer named in the table above has his monthly base salary increased by $2,000 each subsequent March 1
st
during the term of the agreement and any extensions thereof. The next scheduled salary increase to $26,000 per month is March 1, 2012.
|
(2)
|
Annual bonuses are paid by us by the last business day of March for the preceding calendar (fiscal) year, except in the event of termination prior to the end of any fiscal year (other than termination for cause), a pro rata portion of the annual bonus shall be paid within 30 days of termination.
|
|
—
|
$2,000 per month pay raise on each March 1 during the term of the Agreement and any extension thereof;
|
|
—
|
The annual grant on March 1 of each year of ten-year stock options to purchase 100,000 shares at an exercise price equal to the then fair market value of our common stock as determined by the Board. ;
|
|
—
|
Election to the Board of Directors and during the term of employment, the Board’s nomination for re-election to the Board;
|
|
—
|
Paid disability insurance and term life insurance for the benefit of each Executive’s family in an amount fixed by the Board at a cost not to exceed $10,000 per annum;
|
|
—
|
Use of company automobile with all related costs paid for by us;
|
|
—
|
Health insurance;
|
|
—
|
Right to participate in any pensions of our company;
|
|
—
|
Termination pay of one-year base salary based upon the scheduled annual salary of each executive officer for the next contract year, plus the amount of bonuses paid or entitled to be paid to the executive for the current fiscal year or the preceding fiscal year, whichever is higher. In the event of termination, the executives will continue to receive all benefits included in the employment agreement through the scheduled expiration date of said employment agreement prior to the acceleration of the termination date thereof;
|
|
—
|
Health insurance; and
|
|
—
|
Right to participate in any pensions of our company.
|
DIRECTOR COMPENSATION
|
||||||||||||||||||||||||||||
Name and Principal Position
|
Fees Earned or Paid in Cash ($)
|
Stock Awards ($)
|
Option Awards
($) (1)
|
Non-Equity Incentive Plan Compensation
($) (2)
|
Nonqualified Deferred Compensation Earnings ($)
|
All Other Compensation
($) (3)
|
Total ($)
|
|||||||||||||||||||||
Thomas Arnost, Director (4)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Domenico Iannucci, Director (4)
|
—
|
$ 10,692
|
—
|
—
|
—
|
|
$ 10,692
|
Number of Shares
Subject to Options
|
Range of Exercise Price ($) per Share
|
Value of
Unexercised
Options at
Dec. 31, 2010 (1)
|
||||||||||
Dean L. Julia,
Chief
Executive Officer (2)
|
1,050,000 | $ | .26 - $1.20 | $ | 57,000 | |||||||
Michael D. Trepeta,
President (2)
|
1,050,000 | $ | .26 - $1.20 | $ | -0- | |||||||
Sean McDonnell,
Chief
Financial officer
|
50,000 | $ | 1.00 | $ | -0- | |||||||
Sean Trepeta (2)
President, Mobiquity Networks
|
-0- | N/A | N/A | |||||||||
Three Executive Officers
as a group
|
2,150,000 | $ | .26 - $1.20 | $ | 14,000 | |||||||
Thomas Arnost | 200,000 | $ | .60 | -0- | ||||||||
Domenico Iannucci | 200,000 | $ | .26 - $.50 | $ | 27,000 | |||||||
Non-Executive Officer,
Employees and
Consultants
|
955,000 | $ | .30-$ 2.5 | $ | -0- |
N/A
|
- Not applicable.
|
(1)
|
Value is normally calculated by multiplying (a) the difference between the market value per share at period end (i.e. $.60 based upon a last sale on (or the last trade date before) December 31, 2011) and the option exercise price by (b) the number of shares of Common Stock underlying the option.
|
(2)
|
Does not include warrants to purchase 100,000 shares granted outside of any compensation plan.
|
Name and Address of Beneficial Owner (1)
|
Number of Common
Shares
|
Percentage
|
Officers and Directors:
|
||
Michael D. Trepeta
457 Rockaway Avenue
Valley Stream, NY 11583(2)
|
2,166,402
|
8.5%
|
Dean L. Julia
457 Rockaway Avenue
Valley Stream, NY 11583 (2)
|
2,136,901
|
8.4%
|
Sean McDonnell
457 Rockaway Avenue
Valley Stream, NY 11583 (3)
|
50,000
|
0.2%
|
Domenico Iannucci
One Windsor Drive
Muttontown, NY 11753 (4)
|
739,650
|
3.0%
|
Sean Trepeta (5)
457 Rockaway Avenue
Valley Stream, NY 11583
|
700,000
|
2.9%
|
Thomas Arnost (6)
457 Rockaway Avenue
Valley Stream, NY 11583
|
1,200,000
|
4.8%
|
All Directors and Officers as a
Group (six persons) (7)
|
6,992,953
|
25.2%
|
(1)
|
Beneficial ownership is determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and is generally determined by voting powers and/or investment powers with respect to securities. Unless otherwise noted, all of such shares of common stock listed above are owned of record by each individual named as beneficial owner and such individual has sole voting and dispositive power with respect to the shares of common stock owned by each of them. Such person or entity’s percentage of ownership is determined by assuming that any options or convertible securities held by such person or entity, which are exercisable within sixty (60) days from the date hereof, have been exercised or converted as the case may be, but not for the purposes of determining the number of outstanding shares held by any other named beneficial owner.
|
(2)
|
Includes options to purchase 1,150,000 shares.
|
(3)
|
Includes options to purchase 50,000 shares.
|
(4)
|
Consists of 539,660 shares of Common Stock and options to purchase 200,000 shares.
|
(5)
|
Includes options to purchase 100,000 shares.
|
(6)
|
Includes options to purchase 200,000 shares and warrants to purchase 500,000 shares.
|
(7)
|
Includes options to purchase 2,850,000 shares and warrants to purchase 500,000 shares.
|
(a)
|
(b)
|
(c)
|
||||||||||||||||
Plan category
|
Number of shares of common stock to be issued upon exercise of outstanding options
|
Weighted average exercise price of outstanding options
|
Number of securities remaining available for future issuance under equity compensation plans (excluding shares reflected in column (a)
|
|||||||||||||||
2005 Equity
Compensation Plans (1)
|
3,505,000
|
$.8
|
4
|
268,000
|
||||||||||||||
2009 Equity
Compensation Plan
|
-0-
|
N/A
|
4,000,000
|
(1)
|
Options are exercisable at a price range of $.10 to $2.50 per share. The foregoing table does not reflect 227,000 shares of Common Stock issued pursuant to the 2005 Plan as restricted stock awards.
|
Year Ended December 31,
|
||||||
2011
|
|
2010
|
||||
Audit fees
|
$ |
18,000
|
|
$
|
18,000
|
|
Audit- related fees
|
6,000
|
|
-
|
|
||
Tax fees
|
-
|
|
-
|
|
||
All other fees
|
-
|
|
-
|
|||
|
||||||
Total fees
|
$ |
24,000
|
|
$
|
18,000
|
|
(a)
|
FINANCIAL STATEMENTS
|
(b)
|
EXHIBITS
|
Exhibit No.
|
Description
|
|
3.1
|
Articles of Incorporation filed March 26, 1998 (1)
|
|
3.2
|
Amendment to Articles of Incorporation filed June 10, 1999 (1)
|
|
3.3
|
Amendment to Articles of Incorporation approved by stockholders on February 9, 2005(1)
|
|
3.4
|
Amended By-Laws (1)
|
|
10.1
|
Employment Agreement - Michael Trepeta (2)
|
|
10.2
|
Employment Agreement - Dean Julia (2)
|
|
10.3
|
Amendments to Employment Agreement - Michael Trepeta (5)(7)
|
|
10.4
|
Amendments to Employment Agreement - Dean L. Julia (5)(7)
|
|
10.5
|
Joint Venture Agreement with Atrium Enterprises Ltd. (6)
|
|
10.6
|
Agreement with Aon Consulting (6)
|
|
10.7
|
Amendment to Exhibits 10.3 and 10.4 dated April 7, 2010 (10)
|
|
10.8
|
Office Lease for Garden City, NY (11)
|
|
11.1
|
Statement re: Computation of per share earnings. See Statement of Operations and Notes to Financial Statements
|
|
14.1
|
Code of Ethics/Code of Conduct (5)
|
|
21.1
|
Subsidiaries of the Issuer (11)
|
|
31.1
|
Principal Executive Officer Rule 13a-14(a)/15d-14(a) Certification (11)
|
|
31.2
|
Principal Financial Officer Rule 13a-14(a)/15d-14(a) Certification (11)
|
|
32.1
|
Principal Executive Officer Section 1350 Certification (11)
|
|
32.2
|
Principal Financial Officer Section 1350 Certification (11)
|
|
99.1
|
2005 Employee Benefit and Consulting Services Compensation Plan(2)
|
|
99.2
|
Form of Class A Warrant (2)
|
|
99.3
|
Form of Class B Warrant (2)
|
|
99.4
|
Amendment to 2005 Plan (4)
|
|
99.5
|
Form of Class C Warrant (8)
|
|
99.6
|
2009 Employee Benefit and Consulting Services Compensation Plan (3)
|
|
99.7
|
Form of Class D Warrant (3)
|
|
99.8
|
Form or Class E Warrant(9)
|
|
99.9
|
Form of Class F Warrant (9)
|
|
99.10
|
Form of Class G Warrant (9)
|
|
99.11
|
Form of Class H Warrant (9)
|
|
99.12
|
Form of Class AA Warrant (11)
|
|
99.13 | Press Release dated February 21, 2012 (11) | |
101.SCH
|
Document, XBRL Taxonomy Extension (11)
|
|
101.CAL
|
Calculation Linkbase, XBRL Taxonomy Extension Definition (11)
|
|
101.DEF
|
Linkbase, XBRL Taxonomy Extension Labels (11)
|
|
101.LAB
|
Linkbase, XBRL Taxonomy Extension (11)
|
|
101.PRE
|
Presentation Linkbase (11)
|
(1) | Incorporated by reference to Registrant's Registration Statement on Form 10-SB as filed with the Commission on February 10, 2005. | ||
(2)
|
Incorporated by reference to Registrant’s Registration Statement on Form 10-SB/A filed with the Commission March 18, 2005.
|
||
(3)
|
Incorporated by reference to Form 10-K filed for the fiscal year ended December 31, 2009.
|
||
(4)
|
Incorporated by reference to the Registrant's Form 10-QSB/A filed with the Commission on August 18, 2005.
|
||
(5)
|
Incorporated by reference to the Registrant's Form 10-KSB for its fiscal year ended December 31, 2005.
|
||
(6)
|
Incorporated by reference to the Registrant's Form 10-KSB for its fiscal year ended December 31, 2006.
|
||
(7)
|
Incorporated by reference to the Registrant's Form 8-K dated September 21, 2007.
|
||
(8)
|
Incorporated by reference to the Registrant's Form 10-QSB for its quarter ended September 30, 2006.
|
||
(9)
|
Incorporated by reference to the Registrant's Form 10-K for its fiscal year ended December 31, 2010.
|
||
(10)
|
Incorporated by reference to the Registrant’s Form 10-Q for the quarter ended March 31, 2011. | ||
(11)
|
Filed herewith.
|
(c)
|
FINANCIAL STATEMENT SCHEDULES
|
ACE MARKETING & PROMOTIONS, INC.
|
|||
By:
|
/s/ Dean L. Julia
|
||
Dean L. Julia, Chairman of the
|
|||
Board and Principal Executive Officer
|
|||
Signatures
|
Title
|
Date
|
|||
/s/ Dean L. Julia
|
Chairman of the Board
|
March 5, 2012
|
|||
Dean L. Julia
|
Principal Executive Officer
|
||||
/s/ Sean McDonnell
|
Principal Financial Officer
|
March 5, 2012
|
|||
Sean McDonnell
|
|||||
/s/ Michael D. Trepeta
|
President, Director
|
March 5, 2012
|
|||
Michael D. Trepeta
|
|||||
/s/ Sean Trepeta | Director | March 5, 2012 | |||
Sean Trepeta | |||||
Director
|
March 5, 2012
|
||||
Domenico Iannucci
|
Director
|
March 5, 2012
|
||||
Thomas Arnost
|
Rent
:
|
1
. Tenant shall pay the rent as above and as hereinafter provided.
|
Occupancy
:
|
2
. Tenant shall use and occupy the demised premises for general, executive and for no other purpose.
|
Tenant
|
Alterations
:
|
3
. Tenant shall make no changes in or to the demised premises of any nature without Owner's prior written consent. Subject to the prior written consent of Owner, and to me provisions of this article, Tenant, at Tenant's expense, may make alterations, installations, additions or improvements which are non-structural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premises, by using contractors or mechanics first approved in each instance by Owner. Tenant shall, before making any alterations, additions, installations or improvements, at its expense, obtain all permits, approval and certificates required by any governmental or quasi-governmental bodies and (upon completion) certificates of final approval thereof, and shall deliver promptly duplicates of all such permits, approvals and certificates to Owner and Tenant agrees to carry, and will cause Tenant's contractors and sub-contractors to carry, such worker's compensation, commercial general liability, personal and property damage insurance as Owner may require. If any mechanic's lien is filed against the demised premises, or the building of which the same forms a part, for work claimed to have been done for, or materials furnished to. Tenant, whether or not done pursuant to this article, the same shall be discharged by Tenant within thirty days thereafter, at Tenant's expense, by payment or filing a bond as permitted by law All fixtures and all paneling, partitions, railings and like installations, installed in the demised premises at any time, either by Tenant or by Owner on Tenant's behalf shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the demised premises as the termination of this lease, elects to relinquish Owner's right thereto and to have them removed by Tenant, in which event the same shall be removed to the demised premises by Tenant prior to the expiration of the lease, at Tenant's expense. Nothing in this article shall be construed to give Owner title to, or to prevent Tenant's removal of, trade fixtures, moveable office furniture and equipment, but upon removal of, same from the demised premises Or upon removal, of other installations as may be required by Owner, Tenant shall immediately, and at its expense, repair and restore the demised premises to the condition existing prior to any such installations, and repair any damage to the demised premises or the building due to such removal. All property permitted or required to be removed by Tenant at the end of the term remaining in the demised premises after Tenant's removal shall be deemed abandoned and may, at the election of Owner either be retained as Owner's property or may be removed from the demised premises by Owner, at Tenant's expense.
|
Maintenance
|
and
|
|
Repairs
:
|
4
. Tenant shall, throughout the term of this lease, take good care of the demised premises and the fixtures and appurtenances therein. Tenant shall be responsible injury to the demised premises or any other part of the building and the systems and equipment thereof, whether requiring structural or nonstructural repairs caused by or resulting from, carelessness, omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents, employees, invitees or licensees, or which arise out of any work, labor, service or equipment done for, or supplied to, Tenant or any subtenant, or arising out of the installation, use or operation of the property or equipment of Tenant or any subtenant. Tenant shall also repair all damage to the building and the demised premises caused by the moving of Tenant's fixtures, furniture and, equipment Tenant shall promptly make, at Tenant's expense, all repairs in ' and to the demised premises for which Tenant is responsible, using only the contractor for the trade or trades in question, selected from a list of at least two contractors per trade submitted by Owner. Any other repairs in or to the building or the facilities and systems thereof, for which Tenant is responsible, shall be performed by Owner at the Tenant's expense. Owner shall maintain in good working order and repair the exterior and the structural portions of the building, including the structural portions of the demised premises and the public portions of the building interior and the building plumbing, electrical, heating and ventilating systems (to the extent such systems presently exist) serving the demised premises. Tenant agrees to give prompt notice of any defective condition in the demised premises for which Owner may be responsible hereunder. There shall be no allowance to Tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner or others making repairs, alterations, additions or improvements in or to any portion of the building or the demised premises, or in and to the fixtures, appurtenances or equipment thereof. It is specifically agreed that Tenant shall not be entitled to any setoff or reduction of rent by reason of any failure of Owner to comply with the covenants of this or any other article of this lease. Tenant agrees that Tenant's sole remedy at law in such instance will be by way of an action for damages for breach of contract. The provisions of this Article 4 shall not apply in the case of fire or other casualty, which are dealt with in Article 9 hereof.
|
Cleaning
:
|
5
. Tenant will not clean nor require, permit, suffer or allow any window in the demised premises to be cleaned from the outside in violation of Section 202 of the Labor Law or any other applicable law, or of the Rules of the Board of Standards and Appeals, or of any other Board or body having or asserting jurisdiction.
|
Floor Loads:
|
6
. Prior to the commencement of the lease term, if Tenant is then in possession, and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall promptly comply with all present and future laws, orders and regulations of all state, federal municipal and local governments, departments, commissions and boards and any direction of any public officer pursuant to law, and all orders, rules and regulations of the New York Board of Fire Underwriters, Insurance Services Office, or any similar body which shall impose any premises, whether or not arising out of Tenant's use or manner of use thereof, (including Tenant's permitted use) or, with respect to the building if arising out of Tenant's use or manner of use of the demised premises or the building (including the use permitted under the ease). Nothing herein shall require Tenant to make structural repairs or alterations unless Tenant has, by its manner of use of the demised premises or method of operation therein, violated any such laws, ordinances, orders, rules, regulations or requirements with respect thereto. Tenant may, after securing Owner to Owner's satisfaction against all damages, interest, penalties and expenses, including, but not limited to, reasonable attorney's fees, by cash deposit or by surety bond in an amount and in a company satisfactory to Owner. contest and appeal any such laws, ordinances, orders, rules, regulations or requirements provided same is done with all reasonable promptness and provided such appeal shall not subject Owner to prosecution for a criminal offense, or constitute a default under any lease or mortgage under which Owner may be obligated, or cause the demised premises or any part thereof to be condemned or vacated. Tenant shall not do or permit any act or thing to be done in or to the demised premises which is contrary to law, or which will invalidate or be in conflict with public liability, fire or other policies of insurance at any time carried by or for the benefit of Owner with respect to the demised premises or the building of which the demised premises form a part, or which shall or might subject Owner to any liability or responsibility to any person, or for property damage. Tenant shall not keep anything in the demised premises, except as now or hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization or other authority having jurisdiction, and then only in such manner and such, quantify so as not to increase the rate for fire insurance applicable to the building, nor use the demised premises in a manner which will increase the insurance rate for the building or any properly located therein over that in effect prior to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or damages, which may be imposed upon Owner by reason of Tenant's failure to comply with the provisions of this article, and if by reason of such failure me fire insurance rate shall, at the beginning of this lease, or at any time thereafter, be higher than it otherwise would be, then, Tenant shall reimburse Owner, as additional rent hereunder, for that portion of all fire insurance premiums thereafter paid by Owner which shall have been charged because of such failure by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a schedule or "make-up" of rate for the building or the demised premises issued by the New York Fire Insurance Exchange, or other body making fire insurance rates applicable to said premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rates then applicable to said premises. Tenant shall not place a load upon any floor of the demised premises exceeding the floor load per square foot area which it was designed to carry and which is allowed by law. Owner reserves the right to prescribe the weight and position of all safes, business machines and mechanical equipment. Such installations shall be placed and maintained by Tenant at Tenant's expense, in settings sufficient in Owner's judgment to absorb and prevent vibration, noise and annoyance.
|
Subordination:
|
7
. This lease is subject and subordinate to all ground or underlying leases and to all mortgages which may now or hereafter affect such leases or the real property of which the demised premises are a part, and to all renewals, modifications, consolidations, replacements and extensions of any such underlying leases and mortgages. This clause shall be self-operative and no further instrument of subordination shall be required by any ground or underlying lessor or by any mortgagee, affecting any lease or me real property of which the demised premises are a part. In confirmation of such subordination, Tenant shall from time to time execute promptly any certificate that Owner may request
.
|
Indemnity:
|
8
. Owner or its agents shall not be liable for any damage to property of Tenant or of others entrusted to employees of the building, nor for loss of or damage to any property of Tenant by damage to persons or property resulting from any cause of whatsoever nature, unless caused by, or due to, the negligence of Owner, its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other tenants or persons in, upon or about said building, or caused by operations in construction of any private, public or quasi-public work. If at any time any windows of the demised premises are temporarily closed, darkened or bricked up (or permanently closed, darkened or bricked up, if required by law) for any reason whatsoever including, but not limited to, Owner's own acts, Owner shall not be liable for any damage Tenant may sustain thereby, and Tenant shall not be entitled to any compensation therefore, nor abatement or diminution of rent nor shall the same release Tenant from its obligations hereunder, nor constitute an eviction. Tenant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims; costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorneys' fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents, contractors, employees, invitees, or licensees, of any covenant or condition of this lease, or the carelessness, negligence or improper conduct of the Tenant Tenant's agents, contractors, employees, invitees or licensees. Tenant's liability under this lease extends to the acts and omissions of any subtenant and any agent, contractor, employee, invitee or licensee of any subtenant In case any action or proceeding is brought against Owner by reason of any such claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to be unreasonably withheld.
|
Casualty:
|
9
. (a) If the demised premises or any part thereof shall be damaged by fire or other casualty, Tenant shall give immediate notice thereof to Owner, and this lease shall continue in full force and effect except as hereinafter set form, (b) If the demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by, and at the expense of, Owner, and the rent and other items of additional rent until such repair shall be substantially completed, shall be apportioned from the day following the casualty, according to the part of the demised premises which is usable. (c) If the demised premises are totally damaged or rendered wholly unusable by fire or other casualty, then the rent and other items of additional rent, as hereinafter expressly provided, shall be proportionately paid up to the time of the casualty, and thenceforth shall cease until the date when the demised premises shall have been repaired and restored by Owner (or if sooner reoccupied in part by the Tenant then rent shall be apportioned as provided in subsection (b) above), subject to Owner's right to elect not to restore the same as hereinafter provided. (d) If the demised premises are rendered wholly unusable or (whether or not the demised premises are damaged in whole or in part) if the building shall be so damaged that Owner shall decide to demolish it or to rebuild it then, in any of such events, Owner may elect to terminate this lease by written notice to Tenant given within ninety (90) days after such fire or casualty, or thirty (30) days after adjustment of the insurance claim for such fire or casualty, whichever is sooner, specifying a date for the expiration of the lease, which date shall not be more than sixty (60) days after the giving of such notice, and upon the date specified in such notice the term of this lease shall expire as fully and completely as if such date were the date set forth above for the termination of this lease, and Tenant shall forthwith quit surrender and vacate the demised premises without prejudice however, to Landlord's rights and remedies against Tenant under the lease provisions in effect prior to such termination, and any rent owing shall be paid up to such date, and any payments of rent made by Tenant which were on account of any period subsequent to such date shall be returned to Tenant. Unless Owner shall serve a termination notice as provided for herein, Owner shall make the repairs and restorations under the conditions of (b) and (c) hereof, with all reasonable expedition, subject to delays due to adjustment of insurance claims, labor troubles and causes beyond Owner's control. After any such casualty, Tenant shall cooperate with Owner's restoration by removing from the demised premises as promptly as reasonably possible, all of Tenant's salvageable inventory and movable equipment furniture, and other property. Tenant's liability for rent shall resume five (5) days after written notice from Owner that the demised premises are substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability that may exist as a result of damage from fire or other casualty. Notwithstanding anything contained to the contrary in subdivisions (a) through (e) hereof, including Owner's obligation to restore under subparagraph (b) above, each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible, and to the extent permitted by law, Owner and Tenant each hereby releases and waives all right of recovery with respect to subparagraphs (b), (d), and (e) above, against the other, or any one claiming through or under each of them by way of subrogation or otherwise. The release and waiver herein referred to shall be deemed to include any loss or damage to the demised premises and/or to any personal property, equipment trade fixtures, goods and merchandise located therein. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance. If, and to the extent that such waiver can be obtained only by the payment of additional premiums, then the parry benefiting from the waiver shall pay such premium within ten days after written demand or shall be deemed to have agreed that the party obtaining insurance coverage shall be free of any further obligation under the provisions hereof with respect to waiver of subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's furniture and/or furnishings or any fixtures or equipment improvements, or appurtenances removable by Tenant and agrees that Owner will not be obligated to repair any damage thereto or replace the same, (f) Tenant hereby waives the provisions of section 227 of the Real Property Law and agrees that the provisions of this article shall govern and control in lieu thereof.
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Domain:
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10
. If the whole or any part of the demised premises shall be acquired or condemned by Eminent Domain for any public or quasi public use or purpose, then, and in that event the term of this lease shall cease and terminate from the date of title vesting in such proceeding, and Tenant shall have no claim for the value of any unexpired term of said lease, and assigns to Owner, Tenant's entire interest in any such award. Tenant shall have the right to make an independent claim to the condemning authority for the value of Tenant's moving expenses and personal property, trade fixtures and equipment provided Tenant is entitled pursuant to the terms of the lease to remove such property, trade fixtures and equipment at the end of the term, and provided further such claim does not reduce Owner's award.
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Etc.:
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11
. Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage or encumber this agreement nor underlet or suffer or permit the demised premises or any part thereof to be used by others, without the prior written consent of Owner in each instance. Transfer of the majority of the stock of a corporate Tenant or the majority interest in any partnership or other legal entity which is Tenant shall be deemed an assignment If this lease be assigned, or if the demised premises or any part thereof be underlet or occupied by anybody other than Tenant Owner may, after default by Tenant collect rent from the assignee, under-tenant or occupant and apply the net amount collected to "the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, undertenant or occupant as tenant or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained The consent by Owner to an assignment or underletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Owner to any further assignment or underletting. Tenant may assign or sublet the Lease to a related entity, but shall remain liable under the Lease.
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F
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12
. Rates and conditions in respect to submetering or rent inclusion, as the case may be, to be added in RIDER attached hereto. Tenant covenants and agrees that at all times its use of electric current shall not exceed the capacity of existing feeders to the building or the risers or wiring installation, and Tenant may not use any electrical equipment which, in Owner's opinion, reasonably exercised, will overload such installations or interfere with the use thereof by other tenants of the building. The change at any time of the character of electric service shall in no way make Owner liable or responsible to Tenant for any loss, damages or expenses which Tenant may sustain.
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Premises:
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13
. Owner or Owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to the demised premises or to any other portion of the building or which Owner may elect to perform. Tenant shall permit Owner to use and maintain and replace pipes, ducts, and conduits in and through the demised premises and to erect new pipes, ducts, and conduits therein, provided they are concealed within the walls, floor, or ceiling. Owner may, during the progress of any work in the demised premises, take all necessary materials and equipment into said premises without the same constituting an eviction, nor shall the Tenant be entitled to any abatement of rent while such work is in progress, nor to any damages by reason of loss or interruption of business or otherwise. Throughout the term hereof, Owner shall have the right to enter the demised premises at reasonable hours for the purpose of showing the same to prospective purchasers or mortgagees of the building, and during the last six months of the term, for the purpose of showing the same to prospective tenants. If Tenant is not present to open and permit an entry into the demised premises, Owner or Owner's agents may enter the same whenever such entry may be necessary or permissible by master key or forcibly, and provided reasonable care is exercised to safeguard Tenant's property, such entry shall not render Owner or its agents liable therefore, nor in any event shall the obligations of Tenant hereunder be affected. if during the last month of the term Tenant shall have removed all or substantially all of Tenant's property therefrom, Owner may immediately enter, alter, renovate or redecorate the demised premises without limitation or abatement of rent, or incurring liability to Tenant for any compensation, and such act shall have no effect on this lease or Tenant's obligations hereunder.
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Area:
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14
. No vaults, vault space or area, whether or not enclosed or covered, not within the property line of the building, is leased hereunder, anything contained in or indicated on any sketch, blue print or plan, or anything contained elsewhere in this lease to the contrary notwithstanding. Owner makes no representation as to the location of the property line of the building. All vaults and vault space and all such areas not within the property line of the building, which Tenant may be permitted to use and/or occupy, is to be used and/or occupied under a revocable license, and if any such license be revoked, or if the amount of such space or area be diminished or required by any federal, state or municipal authority or public utility, Owner shall not be subject to any liability, nor shall Tenant be entitled to any compensation or diminution or abatement of rent, nor shall such revocation, diminution or requisition be deemed constructive or actual eviction. Any tax, the or charge of municipal authorities for such vault or area shall be paid by Tenant.
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Occupancy:
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15
. Tenant will not at any time use or occupy the demised premises in violation of the certificate of occupancy issued for the building of which the demised premises are apart Tenant has inspected the demised premises and accepts them as is, subject to the riders annexed hereto with respect to Owner's work, if any. In any event, Owner makes no representation as to the condition of the demised premises, and Tenant agrees to accept the same subject to violations, whether or not of record.
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Bankruptcy:
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16
. (a) Anything elsewhere in this lease to the contrary notwithstanding, this lease may be cancelled by Owner by the sending of a written notice to Tenant within a reasonable time after the happening of any one or more of the following events: (1) the commencement of a case in bankruptcy or under the laws of any state naming Tenant (or a guarantor of any of Tenant's obligations under this lease) as the debtor; or (2) the making by Tenant (or a guarantor of any of Tenant's obligations under this lease) of an assignment or any other arrangement for the benefit of creditors under any state statute. Neither Tenant nor any person claiming through or under Tenant or by reason of any statute or order of court, shall thereafter be entitled to possession of the premises demised but shall forthwith quit and surrender the demised premises. If this lease shall be assigned in accordance with its terms, the provisions of this Article 16 shall be applicable only to the party then owning Tenant's interest in this lease.
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Default:
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17
. (1) If Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent; or if the demised premises become vacant or deserted; or if any execution or attachment shall be issued against Tenant or any of Tenant's property, whereupon the demised premises shall be taken or occupied by someone other than Tenant; or if this lease be rejected under §365 of Title 11 of the U.S. Code (Bankruptcy Code); or if Tenant shall have failed, after five (5) days written notice, to redeposit with Owner any portion of the security deposit hereunder which Owner has applied to the payment of any rent and additional rent due and payable hereunder, or if Tenant shall be in default with respect to any other lease between Owner and Tenant; or if Tenant shall fail to move into or take possession of the demised premises within thirty (30) days after the commencement of the term of this lease, then, in any one or more of such events, upon Owner serving a written fifteen (15) days notice upon Tenant specifying the nature of said default, and upon the expiration of said fifteen days, if Tenant shall have failed to comply with or remedy such default, or if the said default or omission complained of shall be of a nature that, the same cannot be completely cured or remedied within said fifteen (15) day period, and if Tenant shall not have diligently commenced curing such default within such fifteen 15) day period, and shall not thereafter with reasonable diligence and in good faith, proceed to remedy or cure such default, then Owner may serve a written five (5) days notice of cancellation of this lease upon Tenant and upon the expiration of said five (5) days this lease and the term thereunder shall end and expire as fully and completely as if the expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this lease and the term thereof, and Tenant shall then quit and surrender the demised premises to Owner, but Tenant shall remain liable as hereinafter provided.
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Redemption:
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18
. In case of any such default re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) the rent shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the demised premises or any part or parts thereof, either in the name of Owner or otherwise, for a term or terms, which may at Owner's option be less than or exceed the period which would otherwise have constituted the balance of the term of this lease, and may grant concessions or free rent or charge a higher rental than that in this lease, and/or (c) Tenant or the legal representatives of Tenant shall also pay to Owner as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount if any, of the rents collected on account of the lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease. The failure of Owner to re-let the demised premises, or any part or parts thereof, shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Owner may incur in connection with re-letting, such as legal expenses, reasonable attorney's fees, brokerage, advertising and for keeping the demised premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this lease, and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Owner to collect the deficiency for any subsequent month by a similar proceeding. Owner, in putting the demised premises in good order or preparing the same for re-rental may, at Owner's option, make such alterations, repairs, replacements, and/or decorations in the demised premises as Owner, in Owner's sole judgment considers advisable and necessary for the purpose of re-letting the demised premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. "Owner shall in no event be liable in any way whatsoever for failure to re-let the demised premises, or in the event that the demised premises are re-let for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rents collected over the sums payable by Tenant to Owner hereunder. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Owner shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease of any particular remedy, shall not preclude Owner from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Owner obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants and conditions of this lease, or otherwise.
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Expenses:
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19
. If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be observed or performed under, or by virtue of, any of the terms or provisions in any article of this lease, after notice, if required, and upon expiration of any applicable grace period, if any, (except in an emergency), then, unless otherwise provided elsewhere in this lease, Owner may immediately, or at any time thereafter and without notice, perform the obligation of Tenant thereunder. If Owner, in connection with the foregoing, or in connection with any default by Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs any obligations for the payment of money, including but not limited to reasonable attorneys fees, in instituting, prosecuting or defending any action or proceeding, and prevails in any such action or proceeding, then Tenant will reimburse Owner for such sums so paid, or obligations incurred, with interest and costs. The foregoing expenses incurred by reason of Tenant's default shall be deemed to be additional rent hereunder, and shall be paid by Tenant to Owner within ten (10) days of rendition of any bill or statement to Tenant therefore. If Tenant's lease term shall have expired at the time of making of such expenditures or incurring of such obligations, such sums shall be recoverable by Owner, as damages.
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Management:
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20
. Owner shall have the right at any time without the same constituting an eviction and without incurring liability to Tenant therefore, to change the arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets or other public parts of the building, and to change the name, number or designation by which the building may be known. There shall be no allowance to Tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner or other Tenants making any repairs in the building or any such alterations, additions and improvements. Furthermore, Tenant shall not have any claim against Owner by reason of Owner's imposition of such Controls of the manner of access to the building by Tenant's social or business visitors as the Owner may deem necessary for the security of the building and its occupants.
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Owner:
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21
. Neither Owner nor Owner's agents have made any representations or promises with respect to the physical condition of the building, the land upon which it is erected or the demised premises, the rents, leases, expenses of operation or any other matter or thing affecting or related to the demised premises, except as herein expressly set forth, and no rights, easements or licenses are acquired by Tenant by implication or otherwise, except as expressly set forth in the provisions of this lease. Tenant has inspected the building and the demised premises and is thoroughly acquainted with their condition and agrees to take the same "as-is", and acknowledges feat the taking of possession of the demised premises by Tenant shall be conclusive evidence that the said premises and the building of which the same form a part were in good and satisfactory condition at the time such possession was so taken, except as to latent defects. All understandings and agreements heretofore made between the parties hereto are merged in this contract, which alone fully and completely expresses the agreement between Owner and Tenant, and any executory agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part, unless such executory agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.
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Term:
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22
. Upon the expiration or other termination of the term of this lease, Tenant shall quit and surrender to Owner the demised premises, "broom-clean", in good order and condition, ordinary wear and damages which Tenant is not required to repair as provided elsewhere in this lease excepted, and Tenant shall remove all its property. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of this lease. If the last day of the term of this lease or any renewal thereof, falls on Sunday, this lease shall expire at noon on the preceding Saturday, unless it be a legal holiday, in which case it shall expire at noon on the preceding business day.
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Enjoyment:
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23
. Owner covenants and agrees wife Tenant that upon Tenant paving the rent and additional rent and observing and performing all the terms, covenants and conditions, on Tenant's part to be observed and performed, Tenant may peaceably and quietly enjoy the premises hereby demised, subject, nevertheless, to the terms and conditions of this lease including, but not limited to, Article 31 hereof; and to the ground leases, underlying leases and mortgages hereinbefore mentioned.
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Possession:
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24
. If Owner is unable to give possession of the demised premises on the date of the commencement of the term hereof because of the holding-over or retention of possession of any tenant, undertenant or occupants, or if the demised premises are located in a building being constructed, because such building has not been sufficiently completed to make the demised premises ready for occupancy, or because of the fact that a certificate of occupancy has not been procured, or for any other reason, Owner shall not be subject to any liability for failure to give possession on said date and the validity of the lease shall not be impaired under such circumstances, nor shall the same be construed in any way to extend the term of this lease, but the rent payable hereunder shall be abated (provided Tenant is not responsible for Owner's inability to obtain possession or complete construction) until after Owner shall have given Tenant written notice that the Owner is able to deliver possession in condition required by this lease. If permission is given to Tenant to enter into possession of the demises premises, or to occupy premises other than the demised premises, prior to the date specified as the commencement of the term of this lease, Tenant covenants and agrees that such possession and/or occupancy shall be deemed to be under all the terms, covenants, conditions and provisions of this lease, except the obligation to pay the fixed annual rent, set forth in the preamble to this lease. The provisions of this article are intended to constitute "an express provision to the contrary" within the meaning of Section 223-a of the New York Real Property Law.
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No Waiver:
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25
. The failure of Owner to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this lease or of any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent a subsequent act which would have originally constituted a violation from having all the force and effect of an original violation. The receipt by Owner of rent and/or additional rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach, and no provision of this lease shall be deemed to have been waived by Owner unless such waiver be in writing signed by Owner, No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to recover the balance of such rent or pursue any other remedy in this lease provided. No act or thing done by Owner or Owner's agents during the term hereby demised shall be deemed an acceptance of a surrender of the demised premises, and no agreement to accept such surrender shall be valid unless in writing signed by Owner. No employee of Owner or Owner's agent shall have any power to accept the keys of said premises prior to the termination of the lease, and the delivery of keys to any such agent or employee shall not operate as a termination of the lease or a surrender of the demised premises.
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Trial by Jury:
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26
. It is mutually agreed by and between Owner and Tenant that the respective parties hereto shall, and they hereby do, waive trial by jury in any action proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with, this lease, the relationship of Owner and Tenant, Tenant's use of, or occupancy of, the demised premises, and any emergency statutory or any other statutory remedy. It is further mutually agreed that in the event Owner commences any proceeding or action for possession, including a summary proceeding for possession of the demised premises, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding, including a counterclaim under Article 4, except for statutory mandatory counterclaims.
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Perform:
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27
. This lease and the obligation of Tenant to pay rent hereunder and perform all of the other covenants and agreements hereunder on part of Tenant to be performed shall in no way be affected, impaired or excused because Owner is unable to fulfill any of its obligations under this lease, or to supply, or is delayed in surviving, any service expressly or impliedly to be supplied, or is unable to make, or is delayed in making any repair, additions, alterations, or decorations, or is unable to supply, or is delayed in supplying, any equipment, fixtures, or other materials, if Owner is prevented or delayed from so doing by reason of strike or labor troubles or any cause whatsoever including, but not limited to, government preemption or restrictions, or by reason of any rule, order or regulation of any department or subdivision thereof of any government agency, or by reason of the conditions which have been or are affected, either directly or indirectly, by war or other emergency.
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Notices:
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28
. Except as otherwise in this lease provided, any notice, statement, demand or other communication required or permitted to be given, rendered or made by either party to the other, pursuant to this lease or pursuant to any applicable law or requirement of public authority, shall be in writing (whether or not so stated elsewhere in this lease) and shall be deemed to have been properly given, rendered or made, if sent by registered or certified mail (express mail, if available), return receipt requested, or by courier guaranteeing overnight delivery and furnishing a receipt in evidence thereof; addressed to the other party at the address hereinabove set forth (except feat after the date specified as the commencement of the term of this lease, Tenant's address, unless Tenant shall give notice to the contrary, shall be the building), and shall be deemed to have been given, rendered or made (a) on the date delivered, if delivered to Tenant personally, (b) on the date delivered, if delivered by overnight courier or (c) on the date which is two (2) days after being mailed. Either party may, by notice as aforesaid, designate a different address or addresses for notices, statements, demand or other communications intended for it Notices given by Owner's managing agent shall be deemed a valid notice if addressed and set in accordance wife the provisions of this Article. At Owner's option, notices and bills to Tenant may be sent by hand delivery.
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Owner:
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29
. Owner shall provide; (a) necessary elevator facilities on business days from 8 a.m. to 6 p.m. and have one elevator subject to call at all other times; (b) heat to the demised premises when and as required by law, on business days from 8 a.m. to 6 p.m.; (c) water for ordinary lavatory purposes, but if Tenant uses or consumes water for any other purposes or in unusual quantities (of which fact Owner shall be the sole judge), Owner may install a water meter at Tenant's expense, which Tenant shall thereafter maintain at Tenant's expense in good working order and repair, to register such water consumption, and Tenant shall pay for water consumed as shown on said meter as additional rent as and when bills are rendered. If, however, said premises are to be kept clean by Tenant, it shall be done at Tenant's sole expense, in a manner reasonably satisfactory to Owner, and no one other than persons approved by Owner shall be permitted to enter said premises or the building of which they are a part for such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's refuse and rubbish from the building; (e) if the demised premises are serviced by Owner's air conditioning/cooling and ventilating system, air conditioning/cooling will be furnished to Tenant from May 15th through September 30th on business days (Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 pm., and ventilation will be furnished on business days during the aforesaid hours except when air conditioning/cooling is being furnished as aforesaid. If Tenant requires air conditioning/cooling or ventilation for more extended hours on Saturdays, Sundays or on holidays, as defined under Owner's contract wife the applicable Operating Engineers contract Owner will furnish the same at Tenant's expense.
F
RIDER to be added in respect to rates and conditions for such additional service; (f) Owner reserves the right to stop services of the heating, elevators, plumbing, air-conditioning, electric, power systems or cleaning or other services, if any, when necessary by reason of accident or for repairs, alterations, replacements or improvements necessary or desirable in the judgment of Owner, for as long as may be reasonably required by reason thereof. If the building of which the demised premises are a part supplies manually operated elevator service, Owner at any time may substitute automatic control elevator service and proceed diligently wife alterations necessary therefor without in any way affecting this tease or the obligations of Tenant hereunder.
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Captions:
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30
. The Captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this lease nor the intent of any provisions thereof.
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Definitions:
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31
. The term "office", or "offices", wherever used in this lease, shall not be construed to mean premises used as a store or stores, for the sale or display, at any time, of goods, wares or merchandise, of any kind, or as a restaurant, shop, booth, bootblack or other stand, barber shop, or for other similar purposes, or for manufacturing. The term "Owner" means a landlord or lessor, and as used in this lease means only the owner, or the mortgagee in possession for the time being, of the land and building (or the owner of a lease of the building or of the land and building) of which the demised premises form a part, so that in the event of any sale or sales or conveyance, assignment or transfer of said land and building, or of said lease, or in the event of a lease of said building, or of the land and building, the said Owner shall be, and hereby is, entirely freed and relieved of all covenants and obligations of Owner hereunder, and it shall be deemed and construed without further agreement between the parties or their successors in interest or between the parties and the purchaser, at any such sale, or the said lessee of the building, or of the land and building, that the purchaser, grantee, assignee or transferee or the lessee of the building has assumed and agreed to carry out any and all covenants and obligations of Owner, hereunder. The words "re-enter" and '"re-entry'' as used in this lease are not restricted to their technical legal meaning. The term "business days" as used in this lease shall exclude Saturdays, Sundays and all days as observed by the State or Federal Government as legal holidays and those designated as holidays by the applicable building service union employees service contract or by the applicable Operating Engineers contract with respect to HVAC service. Wherever it is expressly provided in this lease that consent shall not be unreasonably withheld, such consent shall not be unreasonably delayed.
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Shoring:
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32
. If an excavation shall be made upon land adjacent to the demised premises, or shall be authorized to be made, Tenant shall afford to the person causing or authorized to cause such excavation, a license to enter upon the demised premises for the purpose of doing such work as said person shall deem necessary to preserve the wall or the building, of which demised premises form, a part, from injury or damage, and to support the same by proper foundations, without any claim for damages or indemnity against Owner, or diminution or abatement of rent.
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Regulations:
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33
. Tenant and Tenant's servants, employees, agents, visitors, and licensees shall observe faithfully, and comply strictly with, the Rules and Regulations and such other and further reasonable Rules and Regulations as Owner and Owner's agents may from time to time adopt Notice of any additional Rules or Regulations shall be given in such manner as Owner may elect In case Tenant disputes the reasonableness of any additional Rules or Regulations hereafter made or adopted by Owner or Owner's agents, the parties hereto agree to submit the question of the reasonableness of such Rules or Regulations for decision to the New York office of the American Arbitration Association, whose determination shall be final and conclusive upon the parties hereto, The right to dispute the reasonableness of any additional Rules or Regulations upon Tenant's part shall be deemed waived unless the same shall be asserted by service of a notice, in writing, upon Owner, within fifteen (15) days after the giving of notice thereof. Nothing in this lease contained shall be construed to impose upon Owner any duty or obligation to enforce the Rules and Regulations or terms, covenants or conditions in any other lease, as against any other tenant, and Owner shall not be liable to Tenant for violation of the same by any other tenant, its servants, employees, agents, visitors or licensees.
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F
Security:
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34
. Tenant has deposited with Owner the sum $22,891.00 as security for the faithful performance and observance by Tenant of the terms, provisions and conditions of this lease; it is agreed that in the event Tenant defaults in respect of any of the terms, provisions and conditions of this lease, including, but not limited to, the payment of rent and additional rent, Owner may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent, or any other sum as to which Tenant is in default or for any sum which Owner may expend or may be required to expend by reason of Tenant's default in respect of any of the terms, covenants and conditions of this lease, including but not limited to, any damages or deficiency in the re- letting of the demised premises, whether such damages or deficiency accrued before or after summary proceedings or other re-entry by Owner. In the case of every such use, application or retention, Tenant shall, within five (5) days after demand, pay to Owner the sum so used, applied or retained which shall be added to the security deposit so that the same shall be replenished to its former amount. In the event that Tenant
23
the security shall be returned to Tenant after the date fixed as the end of the lease and after delivery of entire possession of the demised premises to Owner. In the event of a sale of the land and building, or leasing of the building of which the demised premises form a part, Owner shall have the right to transfer the security to the vendee or lessee, and Owner shall thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the new Owner solely for the return of said security, and it is agreed mat the provisions hereof shall apply to every transfer or assignment made of the security to a new Owner. Tenant further covenants that it will not assign or encumber, or attempt to assign or encumber, the monies deposited herein as security, and that neither Owner nor its successors or assigns shall be bound by any such assignment encumbrance, attempted assignment or attempted encumbrance.
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Estoppel
Certificate:
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35
. Tenant, at any time, and from time to time, upon at least ten (10) days prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any other person, firm or corporation specified by Owner, a statement certifying that this lease is unmodified and in full force and effect (or, if mere have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent and additional rent have been paid, and stating whether or not there exists any default by Owner under this lease, and, if so, specifying each such default and such other information as shall be required of Tenant.
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and Assigns:
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36
. The covenants, conditions and agreements contained in this lease shall bind and inure to the benefit of Owner and Tenant and their respective heirs, distributees, executors, administrators, successors, and except as otherwise provided in this lease, their assigns. Tenant shall look only to Owner's estate and interest id the land and building, for the satisfaction of Tenant's remedies for the collection of a judgment (or other judicial process) against Owner in the event of any default by Owner hereunder, and no other property or assets of such Owner (or any partner, member, officer or director thereof, disclosed or undisclosed), shall be subject to levy, execution or other enforcement procedure for me satisfaction of Tenant's remedies under, or with respect to, this lease, the relationship of . Owner and Tenant hereunder, or Tenant's use and occupancy of the demised premises.
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Witness for Owner:
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SHELVIN PLAZA ASSOCIATES LLC
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/s/ Angela Ronan |
By:
/s/ Vincent Polimeni
Vincent Polimeni, Managing Member
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Witness for Tenant:
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ACE MARKETING & PROMOTIONS, INC.
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By /s/ Sean Trepeta
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Sean Trepeta Director
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NOTARY PUBLIC
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Address
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Premises
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Office
Lease
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Dated
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in the year
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Rent Per Year
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Rent Per Month
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Term
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From
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To
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Drawn by
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Checked by
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Entered by
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Approved by
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(a)
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That this lease is unmodified and in full force and effect (or, if there has been modification, that the same is in full force and effect as modified and stating the modifications);
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(b)
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Whether or not there are then existing any set-offs or defenses against the enforcement of any
of the agreements, terms, covenants or conditions hereof upon the part of Tenant to be performed or complied with (and, if so, specifying the same); and
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(c)
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The dates, if any, to which the rental and other charges hereunder have been paid in advance and/or to which Landlord may have consented, released or relieved Tenant from Tenant's obligations fully to perform all of the terms, covenants and conditions of the lease on Tenant's part to be performed; and
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(d)
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Any other information requested by Landlord, any mortgagee or purchaser.
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A.
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In
addition to the Base Rent and any other additional rent as set forth herein, the Tenant shall pay as additional rent the sum of $13,789.75 per annum payable in equal monthly installments on the first of each month of $1,149.15 for the electricity which the Landlord supplies to the Tenant for HVAC and for normal office consumption. Landlord shall not be liable in any way to Tenant for any failure or defect in the supply or character of electric energy furnished to the Demised Premises by reason of any requirement, act or omission of the Public Utility serving the Building with electricity or for any other reason not attributable to Landlord. Landlord shall furnish and install all replacement lighting tubes, lamps, bulbs and ballasts required in the Demised Premises, at Tenant's expense.
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B.
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Tenant covenants and agrees that, at all times, its use of electric current shall never exceed the
capacity of the feeders to the Demised Premises or the risers or wiring installation thereof.
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C.
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The Tenant shall also pay as additional rent any percentage increase in the electric charged by the Public Utility to the Landlord subsequent to the rate established and used by the Public Utility for the within building in the calendar year 2012, i.e. if the current rate plus fuel surcharge is $.05 per kilowatt hour for 2012 and increases to $.07 per kilowatt hour for 2013, the Tenant shall pay 40 percent increase over the per annum amount of $13,789.75. If there is more than one rate increase during a calendar year, said increase shall be pro-rated accordingly. Notwithstanding the foregoing, the electric charge shall be not less than $13,789.75 per annum at any time.
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D.
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The following occupancies for the Demised Premises shall not be exceeded: seven (7) occupants per every 1,000 rentable square feet.
In
the event the foregoing occupancy levels are exceeded, it shall be deemed a material default under this lease. Landlord shall notify Tenant of any such default and in the event Tenant does not cure same within ten
(1
0) days, Landlord shall have the right to terminate this lease upon fifteen (15) days' written notice to Tenant.
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E.
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Notwithstanding anything to the contrary contained in this Section 11, or elsewhere in this lease, Tenant agrees that Landlord shall not in any wise be liable or responsible to Tenant for any loss, damage, or expense that Tenant may sustain or incur if either the quantity or character of electrical service is changed, is no longer available, or is unsuitable for Tenant's requirements.
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F.
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Landlord shall not be responsible for the proper performance of any heating, ventilating and airconditioning
(H
V
AC) system if the Demised Premises (or any room or area thereof) shall be subjected to a greater population density than that set forth in paragraph D hereof.
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(i)
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Retain any or all wires, cables, and similar installations appurtenant thereto ("Wires") installed by Tenant within the Premises or anywhere in the Building outside the Premises, including, without limitation, the plenums or risers of the Building;
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(ii)
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Remove any or all of the Wires and restore the Premises or the Building, as the case may be, to their condition existing prior to the installation of the Wires ("Wire Restoration Work"). Landlord, at its option, may perform such Wire Restoration Work at Tenant's sole cost and expense; or
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(iii)
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Require Tenant to perform all or part of the Wire Restoration Work at Tenant's sole cost and expense.
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(i)
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Tenant shall be the sole owner of the Wires, Tenant shall have the sole right to surrender the Wires, and the Wires shall be free of all liens and encumbrances; and
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(ii)
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All Wires shall be left in good condition, working order, properly labeled and capped or
sealed at each end and in each telecommunications/electrical closet and junction box, and in safe condition.
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(i)
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Landlord elects to retain the Wires pursuant to paragraph a(i)
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(ii)
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Landlord elects to perform the Wire Restoration Work pursuant to Paragraph a(ii) and the
Wire Restoration Work is complete and Tenant has fully reimbursed Landlord for all costs related thereto; or
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(iii)
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Landlord elects to require Tenant to perform the Wire Restoration Work pursuant to Paragraph a(iii) and the Wire Restoration Work is complete and Tenant has paid for all costs related thereto.
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(i)
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neither it, nor its officers, directors, or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, "Specifically Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN");
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(ii)
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neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity, or nation; and
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(iii)
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neither it nor its officers, directors or controlling owners is in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto.
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•
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If
Tenant defaults in Year One of the Lease, Tenant shall pay to Landlord the amount of $160,000.00;
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•
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If
Tenant defaults in Year Two of the Lease, Tenant shall pay to Landlord the amount of $106,666.67;
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•
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If
Tenant defaults in Year Three of the Lease, Tenant shall pay to Landlord the amount of $53,333.33.
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WITNESS FOR LANDLORD:
/s/ ANGELA RONAN
WITNESS FOR TENANT:
_____________________________
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SHELVIN PLAZA ASSOCIATES LLC
By:
/s/Vincent Polimeni
Managing Member
ACE MARKETING & PROMOTIONS, INC.
BY:
/s/ Sean
Trepeta
Director
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a.
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Empty all waste paper baskets.
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b.
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Sweep and/or dustmop all hard surfaced flooring.
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c.
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Carpet sweep all areas requiring same. Said areas to be vacuumed clean twice weekly.
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d.
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Deposit all waste paper and other such rubbish in plastic bags (to be supplied by Contractor)
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e.
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Dust all desks and working surfaces which are free of clutter.
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f.
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Hand dust quarterly ventilating louvers.
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g.
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After cleaning, all electric lamps are to be extinguished and office doors securely locked.
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h.
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Do high dusting once per month.
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a.
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New Year's Day
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b.
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Martin Luther King, Jr.'s Birthday
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c.
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President's Day
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d.
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Memorial Day
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e.
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Independence Day
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f.
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Labor Day
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g.
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Columbus Day
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h.
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Election day
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i.
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Thanksgiving Day
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j.
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Christmas Day
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I.
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PARTITIONS:
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II.
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CLOSETS:
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III.
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DOORS:
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IV.
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HARDWARE:
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V.
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CEILNGS:
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VI.
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ELECTRICAL:
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VII.
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FLOORING:
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VIII.
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PAINTING:
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IX.
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HEATING
AND
AIR
CONDITIONING:
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X.
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SIGNS:
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XI.
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SUBSTITUTIONS:
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/s/ Peter Messineo, CPA
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Peter Messineo, CPA
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Palm Harbor, FL 34685
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I, Dean L. Julia certifies that:
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1.
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I have reviewed this annual report on Form 10-K of Ace Marketing & Promotions, Inc.;
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2
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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;
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3.
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Based on my knowledge, the consolidated 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;
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4.
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The registrant’s other certifying officer 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 Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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a)
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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;
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b)
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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 consolidated financial statements for external purposes in accordance with generally accepted accounting principles;
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c)
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Evaluated the effectiveness of the registrant’s 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
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d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors:
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a)
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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 registrant’s ability to record, process, summarize and report financial information; and
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b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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/s/ Dean L. Julia
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Dean L. Julia
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Principal Executive Officer
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I, Sean McDonnell certifies that:
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1.
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I have reviewed this annual report on Form 10-K of Ace Marketing & Promotions, Inc.;
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2
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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;
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3.
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Based on my knowledge, the consolidated 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;
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4.
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The registrant’s other certifying officer 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 Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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a)
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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;
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b)
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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 consolidated financial statements for external purposes in accordance with generally accepted accounting principles;
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c)
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Evaluated the effectiveness of the registrant’s 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
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d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors:
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a)
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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 registrant’s ability to record, process, summarize and report financial information; and
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b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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/s/ Sean McDonnell
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Sean McDonnell
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Principal Financial Officer
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/s/ Dean L. Julia
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Dean L. Julia
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Principal Executive Officer
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/s/ Dean L. Julia
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Dean L. Julia
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Principal Financial Officer
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Warrant No.__
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Class AA Warrants
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X = Y [(A-B)/A]
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where:
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X = the number of Warrant Shares to be issued to the Holder pursuant to the cashless exercise.
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Y = the number of Warrant Shares with respect to which this Warrant is being exercised (at the time of such calculation).
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A = the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Exercise Date.
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B = the Exercise Price (as adjusted to the date of such calculation).
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ACE MARKETING & PROMOTIONS, INC.
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By:
/s/ Dean L. Julia
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Dean L. Julia, Chief Executive Officer
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Dated:
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Signature: _______________________________
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(Signature must conform in all respects to
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name of holder as specified on the face of
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the Warrant Certificate.)
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Name:
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(Please typewrite or print in block letters)
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Address:
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Social Security Number/ Federal ID:
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______________________________
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Name of Registered Holder
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______________________________
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Signature
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______________________________
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Signature, if held jointly
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Contact Information:
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Ace Marketing & Promotions, Inc.
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Legend Securities, Inc.
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Thomas Wagner
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800-385-5790 800-385-5790
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718-233-2627 718-233-2627
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E:
twagner@legendsecuritiesinc.com
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