UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.
FOR THE YEAR ENDED JUNE 30, 2018
COMMISSION FILE NO. 000-30202
Amendment No. 1 to
FORM 10-K
mPhase Technologies, Inc.
(Exact name of registrant as specified in its charter)
NEW JERSEY | 22-2287503 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) | |
587 CONNECTICUT AVE., NORWALK, CT | 06854-1711 | |
(Address of principal executive offices) | (Zip Code) |
(203) 838-2741
ISSUER’S TELEPHONE NUMBER
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 SHORTER PERIOD THAT THE REGISTRANT WAS REQUIRED TO FILE SUCH REPORT), AND (2) HAS BEEN SUBJECT TO SUCH FILING REQUIREMENTS FOR THE PAST 90 DAYS.
YES ☒ NO ☐
THE NUMBER OF SHARES OUTSTANDING OF EACH OF THE REGISTRANT’S CLASSES OF COMMON STOCK AS OF OCTOBER 25, 2018 IS 39,537,976,113 SHARES, ALL OF ONE CLASS OF $.001 PAR VALUE COMMON STOCK.
EXPLANATORY NOTE
This Amendment includes certain information, made available to the Company on November 6, 2018 by Mr. Abraham Biderman, an outside Director of the Company.
This Amendment also include an edit to total accounts payable for June 30, 2018 in footnote table on page F-10 to $545,564 from $421,056. This change had no effect on Net Income, Total Assets and Liabilities, Shareholder’s Deficit or Statement of Cash Flows for any periods presented.
There are no other changes to the original Form 10-K filing.
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Page 33 of the Form 10K is replaced, in its entirety by the following information:
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Executive officers are selected by the Board of Directors. No family relationships exist between any of the executive officers or directors. The following table sets forth certain information with respect to each person who is an executive officer or director. mPhase’s executive officers and directors as of June 30, 2018 are as follows:
NAME | AGE | POSITION(S) | ||
Ronald A. Durando | 61 | Chief Executive Officer and Director | ||
Gustave T. Dotoli (2) | 83 | Chief Operating Officer and Director | ||
Martin Smiley | 70 | Chief Financial Officer | ||
OUTSIDE DIRECTORS | ||||
Abraham Biderman (1)(2) | 70 | Director | ||
Dr. Victor Lawrence | 69 | Director |
(1) | Member of the Audit Committee |
(2) | Member of the Compensation Committee |
RONALD A. DURANDO is a co-founder of mPhase and has served as the Company’s President, Chief Executive Officer and Director since its inception in October 1996. Since 1994 through February 2015, Mr. Durando had been an Officer of Microphase Corporation. Mr. Durando was a Director of Microphase Corporation and since February 2015, Mr. Durando has been employed as a Strategic Advisor to Microphase Corporation. From 1986-1994, Mr. Durando was President and Chief Executive Officer of Nutley Securities, Inc., a registered broker-dealer. Mr. Durando also served as president of PacketPort until his resignation in February, 2008, when PacketPort merged with Wyndstorm Corporation.
GUSTAVE T. DOTOLI has served as mPhase’s Chief Operating Officer as well as a Director since October 1996. Prior to joining the Company, Mr. Dotoli was President and CEO of State Industrial Safety, Inc. from 1986-1996. In addition, Mr. Dotoli previously servedas the Vice President of Corporate Development of Microphase Corporation. Mr. Dotoli was also a Director and Vice President of Packet Port. He was formerly the President and Chief Executive Officer of the following corporations: Imperial Electro- Plating, Inc., World Imports USA, Industrial Chemical Supply, Inc., SISCO Beverage, Inc., and Met Pack, Inc. Mr. Dotoli received a B.S. in Industrial Engineering from Fairleigh Dickenson University in 1959.
ABRAHAM BIDERMAN has been a member of the Board since August 3, 2000. He currently is the Managing Director of Eagle Advisers, Inc, a small investment banking firm. From 1990 through September 30, 2003, Mr. Biderman had been employed by Lipper & Co. as Executive Vice President; Executive Vice President, Secretary and Treasurer of the Lipper Funds; and Co-Manager of Lipper Convertibles, L.P. Prior to joining Lipper & Co. in 1990, Mr. Biderman was Commissioner of the New York City Department of Housing, Preservation and Development from 1988 to 1989 and Commissioner of the New York City Department of Finance from 1986 to 1987. He was Chairman of the New York City Retirement System from 1986 to 1989. Mr. Biderman was Special Advisor to former Mayor Edward I. Koch from 1985 to 1986 and assistant to former Deputy Mayor Kenneth Lipper from 1983 to 1985. Mr. Biderman is a Director of the Municipal Assistance Corporation for the City of New York. Mr. Biderman graduated from Brooklyn College and is a certified public accountant. Effective July 2, 2018 FINRA, accepted a Letter of Acceptance, Waiver and Consent (“AWC”) from Mr. Biderman in connection with his termination of employment as a Principal of Palladium Capital Advisors LLC. In February of 2018 Palladium filed a Uniform Termination Notice for Securities Industry Registration for possible violations of the Firm’s procedures. In connection with the AWC FINRA has barred Mr. Biderman from being associated with any FINRA member. mPhase, with the consent of Mr. Biderman, has cancelled approximately $7,500 in fees previously accrued since February of 2018.
MARTIN SMILEY was elected on June 28, 2006 to the Board of Directors. He joined mPhase as Executive Vice President, Chief Financial Officer and General Counsel in August 2000. Mr. Smiley has over forty years of experience as a corporate finance and securities attorney and as an investment banker. Prior to joining the company, Mr. Smiley served as a Principal at Morrison & Kibbey, Ltd., a mergers and acquisitions and investment banking firm, from 1998 to 2000, and as a Managing Director for CIBC Oppenheimer Securities from 1994 to 1998. He served as a Vice President of Investment Banking at Chase Manhattan Bank from 1989 to 1994, and as a Vice President and Associate General Counsel for Chrysler Capital Corporation from 1984 to 1989. Mr. Smiley graduated with a B.A. in Mathematics from the University of Pennsylvania and earned his law degree from the University of Virginia, School of Law.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2018
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - (Continued)
DISCONTINUED OPERATIONS
The Company has classified the operating results and associated assets and liabilities from its Jump line of products, which ceased having material sales in the first quarter of Fiscal 2017, as Discontinued Operations in the Consolidated Financial Statements for the Fiscal Years ended June 30, 2018 and 2017.
THE ASSETS AND LIABILITIES ASSOCIATED WITH DISCONTINUED OPERATIONS INCLUDED IN OUR CONSOLIDATED BALANCE SHEET WERE AS FOLLOWS:
June 30, 2018 | June 30, 2017 | |||||||||||||||||||||||
Total | Discontinued | Continuing | Total | Discontinued | Continuing | |||||||||||||||||||
ASSETS | ||||||||||||||||||||||||
CURRENT ASSETS | ||||||||||||||||||||||||
Cash | $ | 261 | $ | - | $ | 261 | $ | 4,163 | $ | - | $ | 4,163 | ||||||||||||
Inventory, net | - | - | 3,477 | 3,477 | ||||||||||||||||||||
Prepaid and other current assets | - | - | 1,050 | 1,050 | ||||||||||||||||||||
TOTAL CURRENT ASSETS | 261 | - | 261 | 8,690 | 4,527 | 4,163 | ||||||||||||||||||
Property and equipment, net | - | - | - | 683 | 683 | |||||||||||||||||||
Other assets | 800 | - | 800 | 800 | - | 800 | ||||||||||||||||||
TOTAL ASSETS | $ | 1,061 | $ | - | $ | 1,061 | $ | 10,173 | $ | 4,527 | $ | 5,646 | ||||||||||||
LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||||||||||||||||||
CURRENT LIABILITIES | ||||||||||||||||||||||||
Accounts payable | $ | 545,564 | $ | 124,508 | $ | 421,056 | $ | 839,825 | $ | 397,078 | $ | 442,746 | ||||||||||||
Accrued expenses | 1,273,569 | 142,195 | 1,131,374 | 1,037,124 | 142,195 | 894,930 | ||||||||||||||||||
Due to related parties | 226,045 | - | 226,045 | 217,045 | - | 217,045 | ||||||||||||||||||
Notes payable, Officers’ | 777,912 | - | 777,912 | 658,311 | - | 658,311 | ||||||||||||||||||
Notes payable, Director & Investor | 133,274 | - | 133,274 | 123,609 | - | 123,609 | ||||||||||||||||||
Note Payable, Finance Company | 39,468 | 39,468 | - | 27,936 | 27,936 | - | ||||||||||||||||||
Current Portion, Long term convertible debentures | 997,698 | - | 997,698 | 1,615,266 | - | 1,615,266 | ||||||||||||||||||
TOTAL LIABILITIES | 3,993,530 | 306,171 | 3,687,359 | 4,519,116 | 567,209 | 3,951,907 |
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant, has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
mPHASE TECHNOLOGIES, INC. | ||
Dated: November 9, 2018 | By: | /s/ Martin S. Smiley |
Martin S. Smiley | ||
Executive Vice President Chief Financial Officer and General Counsel |
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Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Ronald A. Durando, certify that:
1. | I have reviewed this annual report on Form 10K/A of mPhase Technologies, Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: | |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
c. | evaluated the effectiveness of the 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 | |
d. | 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. | The registrant’s other certifying officer(s) 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 (or persons performing the equivalent functions): | |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the 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. |
Date: November 9, 2018
/s/ Ronald A. Durando | |
Ronald A. Durando | |
President and CEO |
Exhibit 31.2
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Martin S. Smiley, certify that:
1. | I have reviewed this annual report on Form 10K/A of mPhase Technologies, Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: | |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
c. | evaluated the effectiveness of the 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 | |
d. | 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. | The registrant’s other certifying officer(s) 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 (or persons performing the equivalent functions): | |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the 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. |
Date: November 9, 2017
/s/ Martin S. Smiley | |
Martin S. Smiley | |
EVP, Chief Financial Officer |
Exhibit 32.1
CERTIFICATIONS PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C. SECTION 1350)
In connection with the Annual Report of mPhase Technologies, Inc., a New Jersey corporation (the “Company”), on Form 10K/A for the year ended June 30, 2018 as filed with the Securities and Exchange Commission (the “Report”), I, Ronald A. Durando, Chief Executive Officer of the Company certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350), that to his knowledge:
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ Ronald A. Durando | |
Ronald A. Durando | |
Chief Executive Officer | |
November 9, 2018 |
Exhibit 32.2
CERTIFICATIONS PURSUANT
TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C. SECTION 1350)
In connection with the Annual Report of mPhase Technologies, Inc., a New Jersey corporation (the “Company”), on Form 10K/A for the year ended June 30, 2018 as filed with the Securities and Exchange Commission (the “Report”), I, Martin Smiley, Chief Financial Officer of the Company certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350), that to his knowledge:
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ Martin Smiley | |
Martin Smiley | |
Chief Financial Officer | |
November 9, 2018 |