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UNITED STATES OF AMERICA
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In the Matter of SECURE SIGN, INC. (FORMERLY
Respondents. |
: |
ORDER MAKING FINDINGS, |
I.
On September 27, 2000 the Securities and Exchange Commission (the "Commission") instituted public cease-and-desist proceedings against respondent Pakie V. Plastino ("Plastino") pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") to determine whether he violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
In response to the institution of these proceedings, Plastino has submitted an Offer of Settlement ("Offer"), which the Commission has determined to accept. Solely for the purpose of this proceeding and any other proceedings brought by or on behalf of the Commission or in which the Commission is a party, and without admitting or denying the findings contained herein, except that he admits the jurisdiction of the Commission over him and over the subject matter of this proceeding, Plastino consents to the issuance of this Order Making Findings, Issuing a Cease-and-Desist Order and Ordering Remedial Sanctions Against Pakie V. Plastino ("Order").
II.
On the basis of this Order and the Offer, the Commission makes the following findings:
A. Nature of Proceeding
1. This matter involves fraud by Consolidated Data, Inc. ("Consolidated" or "the Company"), an Internet-related software company based near Seattle, Washington, and its Chief Executive Officer, Pakie V. Plastino.1 The action is based on Consolidated's substantial inflation of the value of its primary asset, an Internet banking software program called YourBankOnline (the "software"), in a press release and registration statement.
2. In March 1999, Consolidated - a small software company with minimal operations at the time - acquired the software in exchange for restricted shares of Consolidated stock. Shortly thereafter, Consolidated issued a press release claiming that it had just acquired a new software program for $10,000,000 in cash and stock. In fact, the stock Consolidated exchanged for the software had a substantially lower value at the time of the acquisition; moreover, the company which sold the software to Consolidated had acquired the software for $410,000 just six months earlier. This press release, which was followed by a series of additional releases touting the software, caused Consolidated's stock price to climb from under $1 to a high of $32 per share in the two weeks following the initial announcement.
3. In August 1999, Consolidated filed with the Commission a registration statement on Form 10-SB incorporating audited financial statements reporting a substantially inflated asset value for the software. The software represented nearly 99% of the Company's assets.
4. Plastino and Consolidated had no legitimate basis for the valuation given to the software in the March press release and the August registration statement.
B. Respondent
5. Pakie V. Plastino, 51, is a resident of Palm Springs, California (with a business residence in Seattle, Washington). Plastino was Consolidated's Chairman and Chief Executive Officer during the relevant period. As of March 31, 1999, Plastino held approximately 4.9 million shares of Consolidated common stock (45% of the outstanding shares).
C. Background
Plastino And The Formation Of Consolidated Data
6. In 1997, Plastino formed Contractors Directory, a company involved in developing an Internet database of building contractors and subcontractors. Contractors Directory generated $17,515 in revenue for the fiscal year ended September 30, 1998 and $13,970 in revenue for the six months ended March 31, 1999.
7. In April 1997, Contractors Directory entered into a reverse merger with a public shell company that had no operations. The entity changed its name to Consolidated Data in November 1998, and began trading on the OTC Bulletin Board under the ticker symbol CSDD. Between November 1998 and March 1999, Consolidated's stock traded at approximately $0.25 per share on minimal volume.
Development Of The YourBankOnline Software
8. The YourBankOnline software program was developed in 1998 by a California bank (the "bank"). The software allows small financial institutions to provide Internet-based banking services to their customers. The bank originally planned to sell the rights to the program to a larger institution (the "licensee") for licensing to end users. In September 1998, as the result of delays in the negotiations between the bank and the licensee, the bank instead sold the software to a third party (the "owner") for $410,000. The owner intended to license the software to the licensee for a profit, while retaining the right to license the YourBankOnline software to other financial institutions as well.
9. In early 1999, the owner licensed the non-exclusive rights to the software to the licensee in exchange for 50% of any revenues generated by the licensee's licensing of the software to end-users, up to a maximum of $1.3 million in revenues (i.e. $650,000 maximum payable to the owner). No cash changed hands in this transaction.
Consolidated's Acquisition Of The YourBankOnline Software
10. The owner of the software was unsuccessful in its efforts to license the software rights to any other financial institutions. In February 1999, the owner contacted Consolidated and offered to sell the software for $10,000,000. According to the company's August 1999 Form 10-SB, as of March 31, 1999 Consolidated had a total of $138 in cash (as well as property and equipment valued at $7,004).
11. Consolidated agreed to a deal which on paper appeared to represent a sale of the software for $10,000,000. According to the contract, executed on March 10, 1999, Consolidated purchased the YourBankOnline software from the owner under the following terms. First, Consolidated would immediately issue the owner two million shares of restricted stock at an assigned value of $2 per share. Second, Consolidated would pay the owner $6,000,000 in cash or 1.2 million shares of restricted stock assigned a value of $5 per share. The latter payment would be made at a rate of $10,000 per software license issued by Consolidated, with the remainder payable in stock at the end of twelve months.
12. Pursuant to the agreement, Consolidated issued two million shares of restricted stock to the owner in March 1999; the remaining 1.2 million shares were issued, at the owner's request, in April 1999.
D. Consolidated Issued a False And Misleading Press Release On March 30, 1999, Which Materially Overstated The Value Of The YourBankOnline Software.
13. On March 30, 1999, Consolidated issued a press release, drafted by Plastino, announcing that Consolidated "has finalized an agreement with [the owner] to purchase its proprietary software YourBankOnline.com. The ten million ($10,000,000) purchase price is to be paid in a combination of cash and stock." This press release was disseminated over the Internet and discussed on Internet stock discussion boards.
14. The following day, the Company's stock price closed at $3 3/8 (a 100% increase over the prior day's close, and nearly ten times the price which had prevailed through most of March) on record volume.
15. Consolidated followed this press release with a flurry of additional releases - nearly a dozen in April alone - each touting a different technical aspect of the YourBankOnline software. Many of these press releases were characterized by "ticker spamming," the practice of including the names and ticker symbols of numerous well-known technology companies so that investors searching for news on the bigger companies are more likely to come across the press release.
16. Consolidated's promotional efforts resulted in a substantial run-up in the stock price. The price went as high as $32 in intraday trading on April 12, and then steadily declined to $3 by August 1999.
17. The March 30 press release was materially misleading. The Company did not, in fact, pay $10,000,000 in cash and stock for the software. The $10,000,000 price was based on the $2 and $5 assigned valuations used in the agreement between Consolidated and the owner. However, Consolidated was, at the time of the agreement, a thinly traded OTC Bulletin Board stock trading in the range of $0.20 to $0.50 per share, and these valuations were thus entirely speculative. The stock that Consolidated exchanged for the software had a market value far below $10,000,000 at the time the software purchase was announced (particularly since the stock issued to the owner was restricted and could not be freely traded).
18. In addition, just one week before signing the contract, Consolidated had hired an outside consulting firm to help draft a registration statement and business plan for Consolidated. Under the contract between Consolidated and the firm, Consolidated issued the firm 300,000 shares of common stock in exchange for services valued at $60,000 - the equivalent of $0.20 per share. This stock, unlike the stock issued to the owner, was unrestricted.
19. Despite the press release's claim that Consolidated had purchased the software for $10,000,000 in "cash and stock," Consolidated had no financial ability to make cash payments at the time of the contract. The press release gave the false impression that Consolidated had the financial strength to acquire a valuable new software program for $10,000,000, when in fact the Company had a total of $138 in the bank, the consideration it exchanged for the software was worth far less than $10,000,000, and the same asset had been purchased by the owner from the bank that designed the program for $410,000 just six months earlier.
20. In May 1999, following the dissemination of the misleading press release and the resulting inflation of the stock price, Plastino entered into a private sale of Consolidated stock. In a contract executed on May 21, 1999, Plastino entered into an option agreement to purchase real estate for $600,000 in cash and 30,000 shares of Consolidated stock. Plastino ultimately delivered the stock in May 2000, when the stock was trading at $2.625 per share.
21. During the relevant period, Plastino owned 4.9 million shares (or 45% of the Consolidated's outstanding common stock after the issuance of the stock to the owner), and thus further benefited by the increase in Consolidated's stock price. Furthermore, Consolidated, an OTC Bulletin Board company, sought to be listed on the NASDAQ exchange, and the Company's stock price and asset value were both essential to Consolidated's ability to satisfy NASDAQ's listing requirements.
22. Plastino knew, or was reckless in not knowing, that the March 30 press release was materially false and misleading. Based on the foregoing, Plastino violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
E. Consolidated Filed A Registration Statement Which Incorporated Financial Statements Reflecting The Inflated Software Valuation.
23. On August 9, 1999, Consolidated filed a registration statement on Form 10-SB, signed by Plastino. The registration statement incorporated audited financial statements for the fiscal year ended March 31, 1999. Consolidated reported total assets of $4.1 million, of which $4 million consisted of the YourBankOnline software. (Because the financial statements covered the period ending March 31, and the final 1.2 million shares of Consolidated stock were not delivered to the owner until April, Consolidated chose to include only the 2 million shares paid to the owner in March in calculating the software's asset value.)
24. This registration statement was false and misleading. There was no basis for the $4 million asset valuation. The stock issued in exchange for the software was worth far less than $2 per share at the time of the software purchase, and the same software had recently been purchased for only $410,000 by the owner.
25. The Company's use of the $2 per share stock price in calculating the asset value was not in conformity with generally accepted accounting principles ("GAAP"). Under GAAP, assets received by a corporation in return for stock must be recorded at fair value; the fair value may be determined by reference either to the value of the assets received or the stock issued, whichever is more clearly evident. Here, on the date of the software purchase, Consolidated's stock was trading at $0.50, with minimal historical trading volume. The restricted nature of the stock issed by Consolidated added further uncertainty to its fair value. The use of an assigned $2 per share stock value by Consolidated was arbitrary and inappropriate.
26. In the absence of a clear fair value for the restricted stock issued to the owner, Consolidated should have recorded the asset at the value of the software itself. At the time of the transaction, Consolidated had no appraisal of the value of the software, and no customers for the product. The only evident and objective value of the asset was the price the owner had agreed to pay to the bank that had designed the software ($410,000). At most, Consolidated could have considered the price the licensee agreed to pay the owner for the software licensing rights (a maximum of $650,000). By recording the asset at $4,000,000, Consolidated materially overstated its assets by approximately $3.35 million.
27. Plastino knew, or was reckless in not knowing, that the financial statements included in the Form 10-SB were materially false and misleading. Based on the foregoing, Plastino violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
III.
Based on the foregoing, the Commission deems it appropriate to accept the Offer submitted by Plastino. Accordingly, IT IS HEREBY ORDERED pursuant to Section 21C of the Exchange Act that:
A) Plastino shall cease and desist from committing or causing any violations or any future violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder; and
B) Plastino shall, within six months of the entry of the Order, pay disgorgement and prejudgment interest in the total amount of $72,750, plus postjudgment interest calculated in accordance with Rule 600 of the Commission's Rules of Practice from the date of entry of the Order, to the United States Treasury. Such payment shall be: (1) made by United States postal money order, certified check, bank cashier's check or bank money order; (2) made payable to the Securities and Exchange Commission; (3) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Alexandria, Stop 0-3, VA 22312; and (4) submitted under cover letter that identifies Plastino as a respondent in these proceedings, the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to the District Administrator, San Francisco District Office, Securities and Exchange Commission, 44 Montgomery Street, Suite 1100, San Francisco, CA 94104.
By the Commission.
Jonathan G. Katz
Secretary
| 1 | During the relevant period, the Company operated under the name Consolidated Data, Inc. In February 2000, the Company changed its name to YourBankOnline.com, the name under which this proceeding was initiated. The Company changed its name to Secure Sign, Inc. in November 2000. For purposes of clarity, the company is referred to as "Consolidated" or "the Company" in the Offer and the Order. |
http://www.sec.gov/litigation/admin/34-44510.htm
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