SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q/A
(Amendment No. 3)
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 2012
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to _____
Commission file number 001-33720
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REMARK MEDIA, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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33-1135689 |
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(State of Incorporation) |
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(I.R.S. Employer |
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Identification Number) |
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Six Concourse Parkway, Suite 1500 Atlanta, Georgia 30328 |
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(Address of principal executive offices, including zip code) |
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770-821-6670 |
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(Registrant’s telephone number, including area code) |
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer o |
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Smaller reporting company x |
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(Do not check if a smaller reporting company) |
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x
At November 8, 2012, the number of common shares outstanding was 7,117,744.
Explanatory Note
The sole purpose of this Amendment No. 3 (this “Amendment”) to Remark Media, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, filed with the Securities and Exchange Commission on November 26, 2012 (the “Form 10-Q”), is to furnish a corrected final redacted Exhibit 10.1 below pursuant to requested changes to such originally filed Form 10-Q from the Securities and Exchange Commission.
No other modifications or changes have been made to the Form 10-Q. This Amendment speaks as of the original filing date of the Form 10-Q, does not reflect events that may have occurred subsequent to the original filing date and does not modify or update in any way disclosures made in the original Form 10-Q.
Item 6. Exhibits
For a list of exhibits filed with this report, refer to the Exhibit Index on the page immediately preceding the exhibits, which Exhibit Index is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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REMARK MEDIA, INC.
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May 9, 2013 |
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By: /s/ Shing Tao |
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Shing Tao |
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Chief Executive Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
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Exhibit Number |
Description of Exhibit |
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10.1* |
Agreement between Remark Media, Inc. and TheStreet, Inc. dated November 13, 2012 and effective November 15, 2012 |
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31.1 |
Certification by the Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer pursuant to Section 240.13a-14 or section 240.15d-14 of the Securities and Exchange Act of 1934, as amended |
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32.1 |
Certification by the Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer pursuant to 18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
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* Confidential treatment has been granted as to a portion of this exhibit, which portion had been omitted and filed separately with the Securities and Exchange Commission.
Confidential Treatment Requested and appropriate disclosure that a certain portion of the Exhibit has been omitted based upon a request for confidential treatment. A confidential portion of this document have been redacted and has been separately filed with the Commission.
SERVICES AGREEMENT
This Agreement (the “Agreement”) is entered into as of November 13, 2012, and effective as of November 15, 2012, between TheStreet, Inc., a Delaware corporation with its principal place of business at 14 Wall Street, 15th Floor, New York, New York 10005 (“TheStreet”) and Remark Media, a Delaware corporation with its principal place of business at 6 Concourse Parkway, Atlanta, GA 30328 (“Remark”, and collectively with TheStreet, the “Parties”) .
1. License Grant by Remark. Remark grants to TheStreet an exclusive, worldwide, royalty free, during the Term, right and license to use, reproduce, distribute, exhibit, display certain materials made available by Remark to TheStreet (“Remark Materials”), including but not limited to the Remark Sites (“Sites”) listed on Exhibit A, and all trademarks, logos, service marks, other brand elements and content pertaining to the Sites, other than content that requires a third party’s consent to sub-license. With respect to Remark Materials consisting of trademarks, logos, trade names and service marks (“Marks”), TheStreet will use such Marks according to Remark’s reasonable usage guidelines and instructions made available to TheStreet from time to time, and Remark may terminate this license for material breach if TheStreet violates such usage guidelines, following written notice detailing such violation and subject to the cure period described below.
2. Sites. Remark will host the Sites, provided that TheStreet may take over hosting of the Sites and thereby reduce costs upon mutual consent. The Parties will execute any documentation that reasonably may be required by Nielsen, comScore or other Web traffic measurement companies to report the Web traffic of the Sites as being traffic on TheStreet’s network.
3. Advertising. TheStreet has the exclusive right to sell and serve advertisements and e-commerce on the Sites and may display advertising promoting TheStreet’s premium subscription products (“Premium Product Advertising” and collectively with display and other Advertising for the Sites, “Advertising”), subject to the guidelines and revenue share set forth in the business plan listed on Exhibit B (the “Business Plan“)
4. Support by TheStreet. TheStreet shall provide to the Sites at least:
(a) ******** articles of personal finance content ******** (“TheStreet Content”), as well as edit support for content supplied to Remark by its partners;
(b) reasonable promotional advertisements and links on TheStreet’s sites to drive traffic to the Sites;
(c) ******** support from TheStreet’s marketing and promotions departments; and
(d) financial record-keeping for the revenue and costs of the Sites.
5. ********
**********THIS PORTION OF THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
6. Audit Right. Remark shall have the right to visit TheStreet’s offices during normal business hours and review the financial record-keeping for the revenues and costs of the Sites. TheStreet shall have the
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right to visit Remark’s offices during normal business hours and review the financial record-keeping for the Direct Revenue (as such term is defined in the Business Plan).
7. Representations, Warranties, and Covenants. Each party represents, warrants and covenants that: (a) it has the right, including all necessary licenses and consents, to perform its obligations hereunder and to grant the rights granted herein; (b) with respect to Remark, the Remark Materials, and with respect to TheStreet, TheStreet Content and the Advertising, do not infringe, violate or misappropriate the copyright, trademark, patent or other proprietary or personal right of any third party, are not lewd, pornographic or obscene, do not contain or promote illegal activity, do not promote or sell products or services pertaining to alcohol, tobacco, gambling, firearms or pornography, and do not solicit end users through the use of unsolicited commercial electronic messages; and (c) with respect to Remark, the Remark Materials, and with respect to TheStreet, TheStreet Content and the Advertising do not contain material that is libelous, defamatory or an infringement of any right of privacy or that is otherwise contrary to law.
8. DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
9. Mutual Indemnification. Each party shall defend, indemnify, and hold harmless the other party, its current and former affiliates, its and their respective current and former officers, directors, employees, representatives, and the successors and assigns, from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) associated with or incurred as a result of any claim, action, or proceeding brought by a third party arising out of or relating to (i) any breach of such Party’s representations, warranties, covenants and obligations under this Agreement; (ii) with respect to TheStreet, its unauthorized use or modification of the Remark Materials; (iii) such Party’s gross negligence or willful misconduct in performing its obligations under this Agreement; or (iv) such Party’s failure or alleged failure to comply with all applicable laws; provided each Party shall promptly notify the other Party in writing of any such claim, action or proceeding, promptly give the other Party the opportunity to assume sole control of the defense or settlement of such claim, action or proceeding and give the other Party all necessary information and assistance (at the other Party’s sole expense) in connection with such defense and settlement. Either Party shall have the right to retain counsel and participate in such defense or settlement. Neither Party shall settle any matter subject to indemnification without the prior written consent of the other Party; provided, however, that such consent shall not be required if the settlement will not impose any restriction or liability on the other Party that is not fully discharged.
10. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE GREATER OF (A) $50,000 AND (B) THE TOTAL AMOUNT PAID BY THESTREET TO REMARK UNDER THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE INCIDENT FIRST GIVING RISE TO SUCH LIABILITY, PROVIDED THAT SUCH LIMITATION WILL NOT APPLY TO A PARTY’S: (A) BREACH OF CONFIDENTIALITY, (B) INDEMNIFICATION OBLIGATIONS, OR (C) WILLFUL AND KNOWING MISCONDUCT.
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11. Term and Termination. The term of this Agreement expires on December 31, 2014. Commencing on May 31, 2013, either Party may terminate this Agreement (i) upon 60 days written notice for any reason; and (ii) upon 30 days written notice in the case of an uncured material breach. Within 15 days of the end of the calendar month in which the effective date of termination occurs, TheStreet shall remit payments owed to Remark through the effective date of termination and each Party shall return or destroy all Confidential Information of the other Party. Written notice shall be provide to:
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12. Confidentiality. Unless required by law, neither Party will disclose Confidential Information (as defined below) to third parties nor use it for any purpose other to perform its duties or enforce its rights under this Agreement. “Confidential Information” means any confidential or proprietary information, including, without limitation, the terms of this Agreement, business and financial information, customer lists, advertiser lists and advertising rates and any information that is of a nature or disclosed under circumstances that a reasonable person would know to treat as confidential. Confidential Information excludes information in the public domain, independently developed without the use of the other’s confidential information, or provided by a third party who is not bound by obligations of confidentiality. If either party is requested to disclose Confidential Information (by subpoena or regulatory body or other request), such party will (i) notify the other before making disclosures, (ii) cooperate with the other to limit or afford confidential protection to such disclosures, and (iii) only disclose such amounts of Confidential Information as it is required to disclose by law.
13. Miscellaneous. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, representations, negotiations and agreements, whether oral or written, regarding such subject matter. This Agreement shall be construed in accordance with the internal substantive laws of the State of New York, without regard to its conflict of laws provisions. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT SUCH PARTY HAVE TO OBTAIN A TRIAL BY JURY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
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THESTREET, INC. |
REMARK MEDIA |
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By: |
_____________________________ |
By: |
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Name: |
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Name: |
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Title: |
_____________________________ |
Title: |
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Date: |
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Date: |
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**********THIS PORTION OF THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
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Exhibit A
Remark Sites
Dimespring.com
Banks.com
Irs.com
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Exhibit B
Business Plan
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********* |
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Advertising Revenue Share and Guidelines. ******** |
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TheStreet Content. ******** |
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******** |
**********THIS PORTION OF THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
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Certification pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Shing Tao, certify that:
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I have reviewed this quarterly report on Form 10-Q of Remark Media, Inc.; |
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. I am 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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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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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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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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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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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 |
b) 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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Date: May 9, 2013 |
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/s/ Shing Tao |
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Shing Tao |
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Chief Executive Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
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A signed original of this written statement required by Section 302, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 302, has been provided to Remark Media and will be retained by Remark Media, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
CERTIFICATION PURSUANT TO
RULE 13a-14(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934
AND 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of Remark Media, Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2012, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Shing Tao, Chief Executive Officer of the Company, certify, to the best of my knowledge, pursuant to Rule 13a-14(g) under the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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May 9, 2013 |
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By: |
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Shing Tao |
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Chief Executive Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
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The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section 1350 and is not being filed as part of the Report or as a separate disclosure document. This certification shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (“Exchange Act”) or otherwise subject to liability under that section. This certification shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Exchange Act except to the extent this Exhibit 32 is expressly and specifically incorporated by reference in any such filing.
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Remark Media, Inc. and will be retained by Remark Media, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.