e20vf
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
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(Mark One) |
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
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OR
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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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For the Fiscal Year Ended December 31, 2010 |
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OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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For the transition period from to |
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OR
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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Date of event requiring this shell company report |
Commission file number: 0001-33800
SEARCHMEDIA HOLDINGS LIMITED
(Exact name of Registrant as specified in its charter)
Cayman Islands
(Jurisdiction of incorporation or organization)
Floor 13, Central Modern Building,
468 Xinhui Road, Shanghai, China, 200060
(Address of principal executive offices)
Wilfred Chow
Chief Financial Officer
Floor 13, Central Modern Building,
468 Xinhui Road, Shanghai, China, 200060
Tel: +86-21-6227-8018
Fax: 86-21-6227-8008
Email: smhl@searchmediaholdings.com
(Name, Telephone, E-mail and/or Facsimile number and Address of the Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
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Title of each class
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Name of each exchange on which registered |
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Ordinary Shares, $0.0001 Par Value
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NYSE Amex |
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Warrants
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NYSE Amex |
Securities registered or to be registered pursuant to Section 12(g) of the Act.
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuers classes of capital or common
stock as of the close of the period covered by the annual report.
20,889,897 Ordinary Shares
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act.
o Yes þ No
If this report is an annual or transition report, indicate by check mark if the registrant is not
required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
o Yes þ No
NoteChecking the box above will not relieve any registrant required to file
reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from
their obligations under those Sections.
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.
þ Yes o No
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).
o Yes þ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in
Rule 12b-2 of the Exchange Act. (Check one):
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Large Accelerated Filer o
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Accelerated Filer o
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Non-Accelerated Filer þ |
Indicate by check mark which basis of accounting the registrant has used to prepare the financial
statements included in this filing:
U.S. GAAP þ
International Financial Reporting Standards as issued by the International Accounting Standards
Board o
Other o
If Other has been checked in response to the previous question, indicate by check mark which
financial statement item the registrant has elected to follow.
Item 17 o
Item 18 o
If this is an annual report, indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act).
o Yes þ No
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDING DURING THE PAST FIVE YEARS.)
Indicate by check mark whether the registrant has filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
o Yes o No
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 20-F contains certain forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995 (PSLRA), Section 27A of the Securities Act
of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934,
as amended, (the Exchange Act), about our expectations, beliefs, or intentions regarding our
business, financial condition, results of operations, strategies, or prospects. You can identify
forward-looking statements by the fact that these statements do not relate strictly to historical
or current matters. Rather, forward-looking statements relate to anticipated or expected events,
activities, trends, or results as of the date they are made. Because forward-looking statements
relate to matters that have not yet occurred, these statements are inherently subject to risks and
uncertainties that could cause our actual results to differ materially from any future results
expressed or implied by the forward-looking statements. Many factors could cause our actual
activities or results to differ materially from the activities and results anticipated in
forward-looking statements. These factors include those contained in Part I, Item 3 Key
Information D. Risk Factors of this Annual Report on Form 20-F. We do not undertake any
obligation to update forward-looking statements. We intend that all forward-looking statements be
subject to the safe harbor provisions of PSLRA. These forward-looking statements are only
predictions and reflect our views as of the date they are made with respect to future events and
financial performance. The risks, uncertainties and other factors that our stockholders and
prospective investors should consider include the following:
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There is substantial doubt as to our ability to continue as a going concern, which
could adversely affect our ability to meet our ongoing financing needs as well as to
obtain third party financing. |
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We may not have sufficient liquidity to pay earn-out payments when they come due,
which could materially and adversely affect our operations. |
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We have a history of significant operating losses and our future revenue and
operating profitability are uncertain. |
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We have identified material weaknesses in our internal control over financial
reporting and we have had to restate our historical financial statements. |
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We are subject to ongoing securities litigation and a government inquiry in the
United States. |
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Deterioration of economic conditions and a resulting decrease in demand for
advertising services would materially and adversely affect our financial condition and
results of operations and limit our growth prospects. |
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A business strategy of making acquisitions subjects us to all of the risks inherent
in identifying, acquiring and operating newly acquired businesses. |
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Failure to manage our growth could strain our management, operational and other
resources, which could materially and adversely affect our business and growth
potential. |
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Future charges due to possible impairments of acquired assets may have a material
adverse effect on our financial condition and results of operations. |
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We face significant competition for advertising spending from operators of new and
traditional advertising networks. If we cannot successfully compete, our results of
operations would be materially and adversely affected. |
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We have a limited operating history which may make it difficult for you to evaluate
our business and prospects. |
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If we fail to develop and maintain relationships with site owners, managers and
sublessors that provide us access to desirable locations and network platforms, our
growth potential and our business could be harmed. |
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Failures to obtain site owners consents or objections from site owners to the
installations of our media products could lead to termination of our contracts or
installations, which would harm our results of operations. |
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If we are unable to obtain or retain desirable placement locations for our
advertising poster frames and outdoor billboards on commercially advantageous terms,
our operating margins and earnings could decrease and our results of operations could
be materially and adversely affected. |
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The shareholders of Jingli Shanghai may have potential conflicts of interest with
us. |
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Our business depends substantially on the continuing efforts of our senior
executives, and our business may be severely disrupted if we lose their services. |
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If we are unable to adapt to changing advertising trends of advertisers and
consumers, we will not be able to compete effectively and we will be unable to increase
or maintain our revenues, which may materially and adversely affect our business
prospects and revenues. |
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Our growth could suffer if we fail to expand our media networks to include new media
offerings, media platforms or enter into new markets. |
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If site managers or owners shut down our displays for site maintenance or other
reasons, our business could be adversely affected. |
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Unauthorized use of our intellectual property by third parties, and the expenses
incurred in protecting our intellectual property rights, may adversely affect our
business. |
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We rely on computer software and hardware systems in managing our operations; any
failure in these systems could adversely affect our business, financial condition and
results of operations. |
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We have no business liability, disruption or litigation insurance, and we could
incur substantial costs if our business is disrupted due to natural disasters,
litigation or other business interruptions. |
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Our operating results are difficult to predict and may fluctuate from period to
period. |
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If the PRC government determines that the contractual arrangements that establish
the structure for operating our China business do not comply with applicable PRC laws
and regulations, we could be subject to severe penalties. |
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We rely on contractual arrangements with Jingli Shanghai and its shareholders for
our China operations, which may not be as effective in providing operational control as
would be the case through ownership of a controlling equity interest in such operating
entities. |
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Adverse changes in economic and political policies of the PRC government could have
a material adverse effect on the overall economic growth of China, which could
adversely affect our business. |
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If advertising registration certificates are not obtained for advertisements on our
outdoor billboard or rapid transit networks, we may be subject to fines. |
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Our outdoor billboards, light boxes and neon signs are subject to municipal zoning
requirements, governmental approvals and administrative controls. If we are required to
tear down our billboards, light boxes or neon signs as a result of these requirements,
approvals or controls, our operations could be materially and adversely affected. |
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If we were deemed a resident enterprise by PRC tax authorities, we could be
subject to tax on our global income and our non-PRC shareholders could be subject to
certain PRC taxes. |
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Uncertainties with respect to the PRC legal system could adversely affect us. |
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We may be subject to, and may expend significant resources in defending against,
government actions and civil suits based on the content and services we provide through
our network. |
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Governmental control of currency conversion may materially and adversely affect the
value of your investment. Substantial limitations may be imposed on the removal of
funds from the PRC to the Company, or the infusion of funds by us to our subsidiaries
and affiliates located in the PRC. |
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PRC regulation of loans and direct investment by offshore holding companies to PRC
entities may prevent us from making loans or capital contributions to our PRC operating
subsidiaries and affiliated entities. |
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Fluctuation in the value of the Renminbi may have a material adverse effect on your
investment. |
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Any health epidemics and other outbreaks, or war, acts of terrorism and other man
-made or natural disasters could severely disrupt our business operations. |
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We are a Cayman Islands company and, because the rights of shareholders under Cayman
Islands law differ from those under U.S. law, you may have fewer protections as a
shareholder. |
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In the future, our Board of Directors may be subject to potential deadlock. |
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As a foreign private issuer, we will be exempt from certain SEC requirements that
provide stockholders with protections and information that must be made available to
stockholders of U.S. public companies. |
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Because we do not intend to pay dividends on our ordinary shares for the foreseeable
future, stockholders will benefit from an investment in our ordinary shares only if
those shares appreciate in value. |
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Voting control by executive officers, directors and other affiliates of the company
may limit your ability to influence the outcome of director elections and other matters
requiring shareholder approval. |
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The NYSE Amex may delist our securities from quotation on its exchange, which could
limit investors ability to make transactions in our securities and subject us to
additional trading restrictions. |
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A significant number of shares are eligible for future sale by our stockholders and
the sale of those shares could adversely affect the stock price. |
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There is a risk that we could be treated as a U.S. domestic corporation for U.S.
federal income tax purposes after the Business Combination, which could result in
significantly greater U.S. federal income tax liability to us. |
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There is a risk that we will be classified as a passive foreign investment company,
or PFIC, which could result in adverse U.S. federal income tax consequences to U.S.
holders of ordinary shares or warrants of SearchMedia. |
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If you acquire (directly, indirectly, or constructively) 10% or more of our shares,
you may be subject to taxation under the controlled foreign corporation, or CFC
rules. |
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We may choose to redeem our outstanding warrants at a time that is disadvantageous
to the warrant holders, preventing such holders from realizing the potential economic
value of their warrants. |
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Our warrant holders may not be able to exercise their warrants, which may
significantly reduce their economic value and create liability for us. |
Unless otherwise indicated or required by the context, all references in this Annual Report on Form
20-F to we, us, our, SearchMedia Holdings, or the Company refer to SearchMedia Holdings
Limited and its consolidated subsidiaries, and all references to SearchMedia International refer
to SearchMedia International Limited and its consolidated subsidiaries before completion of the
Business Combination on October 30, 2009 (as defined below).
4
PART I
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Item 1 |
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Identity of Directors, Senior Management and Advisers |
Not applicable.
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Item 2 |
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Offer Statistics and Expected Timetable |
Not applicable.
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A. |
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Selected Financial Data |
This annual report on Form 20-F contains the consolidated statements of operations data for our
company for the years ended December 31, 2008, 2009 and 2010 and the selected consolidated balance
sheet data for our company as of December 31, 2009 and 2010 have been derived from our audited
financial statements included elsewhere in this annual report.
The consolidated statements of operations data for our company for the years ended December 31,
2006 and 2007 have been omitted from the Selected Financial Data per the instructions to Item 3 of
Form 20-F. As previously disclosed in the Explanatory Note to our Annual Report on Form 10-K for
the year ended December 31, 2009 filed on November 1, 2010, the historical financial statements of
SearchMedia International for the years ended December 31, 2007 and December 31, 2008 were restated
as a result of the analysis of our financial statements for the year ended December 31, 2009.
After we completed the business combination pursuant to which we (1) redomiciled from Delaware to
the Cayman Islands, as a Cayman Islands exempt company and (2) completed the acquisition of Search
Media International, resulting in Search Media International becoming a wholly-owned subsidiary of
SearchMedia Holdings (the Business Combination) and in connection with our preparation of the
Annual Report on Form 10-K for the fiscal year ended December 31, 2009, we identified accounting
irregularities and potential financial and operational improprieties, relating to transactions and
financial reporting matters that occurred under the management of SearchMedia International before
the Business Combination, which were not previously identified as a result of material weaknesses
in our internal control over financial reporting. These material weaknesses related to, among other
things: (i) recording of various erroneous transactions by certain employees; (ii) recording of
certain assets and other accounting irregularities related to acquisitions; (iii) diligence and
approval of questionable transactions; and (iv) confirmation of payments related to acquisitions.
We have restated the consolidated financial statements of SearchMedia International Limited as of
and for the year ended December 31, 2008, but we omitted the consolidated Selected Financial
Information for the years ended December 31, 2006 and 2007 to avoid undue reliance on SearchMedia
International Limited financial information for these periods.
You should read the selected consolidated financial data in conjunction with those financial
statements and the accompanying notes and Item 5. Operating and Financial Review and Prospects.
5
Our consolidated financial statements are prepared and presented in accordance with U.S. GAAP. Our
historical results do not necessarily indicate our results expected for any future periods.
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For the Years Ended December 31 |
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2008 |
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2009 |
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2010 |
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(Amounts in thousands, except share data) |
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Selected consolidated statement of operations data |
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Net revenues |
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$ |
41,685 |
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$ |
37,741 |
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$ |
48,967 |
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Cost of revenues |
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(30,624 |
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(28,059 |
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(36,454 |
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Gross profit |
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11,061 |
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9,682 |
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12,513 |
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Operating expenses: |
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Sales and marketing |
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(6,117 |
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(3,384 |
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(4,462 |
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General and administrative |
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(13,135 |
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(13,832 |
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(12,203 |
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Loss from operations |
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(8,191 |
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(7,534 |
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(4,152 |
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Other income/(expense) |
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Interest income |
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131 |
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11 |
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24 |
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Interest expense |
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(2,717 |
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(1,962 |
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(45 |
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Decrease in fair value of liability warrant |
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824 |
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Gain/(loss) on extinguishment of notes |
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(4,400 |
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6,669 |
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Loss on impairment of goodwill and intangible
assets |
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(13,953 |
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(15,749 |
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(39,411 |
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Loss on abandonment of lease |
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(46 |
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(550 |
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(1,256 |
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Loss on impairment of fixed assets |
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(2,135 |
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Loss on disposal of fixed assets |
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(2,121 |
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(15 |
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(4 |
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Other income/ (expense), net |
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(368 |
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Foreign currency transaction loss, net |
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(167 |
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(24 |
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(7 |
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Total other expense |
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(25,408 |
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(10,796 |
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(41,067 |
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Loss before income taxes |
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(33,599 |
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(18,330 |
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(45,219 |
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Provision for income taxes |
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(1,481 |
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(4,319 |
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(1,420 |
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Net loss |
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$ |
(35,080 |
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$ |
(22,649 |
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$ |
(46,639 |
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Net loss from operations per share: |
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Basic and diluted |
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$ |
(0.0162 |
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$ |
(0.0044 |
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$ |
(0.0022 |
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Weighted average number of shares outstanding
Basic and diluted |
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2,169,269 |
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5,100,465 |
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20,796,789 |
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As of December 31, |
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2009 |
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2010 |
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(In thousands) |
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Selected consolidated balance sheet data |
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Cash and cash equivalents |
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$ |
29,398 |
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$ |
7,554 |
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Accounts receivable, net |
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12,996 |
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18,065 |
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Goodwill |
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45,891 |
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45,955 |
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Total assets |
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99,765 |
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86,871 |
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Acquisition consideration payable |
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16,381 |
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39,195 |
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Total liabilities |
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51,365 |
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86,408 |
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Net assets |
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48,400 |
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463 |
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Total equity |
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48,400 |
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463 |
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B. |
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Capitalization and Indebtedness |
Not applicable.
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C. |
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Reasons for the Offer and Use of Proceeds |
Not applicable.
Risk Related to Our Business and Operations
There is substantial doubt as to our ability to continue as a going concern, which could adversely
affect our ability to meet our ongoing financing needs as well as to obtain third party financing.
As indicated in the report on our financial
statements issued by our auditors, Marcum Bernstein & Pinchuk LLP, there is substantial doubt
about our ability to continue as a going
6
concern. As of December 31, 2010 our current liabilities exceeded our current assets by $39.4
million and our net shareholders equity was $0.5 million. Our cash and cash equivalent as of
December 31, 2010 was $7.6 million. We cannot assure you that our business will generate
sufficient cash flow from operations in the future to service our debts and make necessary capital
expenditures, in which case we may (i) seek additional financing, (ii) dispose of certain assets or
(iii) seek to refinance some or all of our debts. We are also taking a number of other actions to
address the issue, including amendment of earn-out agreements which provides for extension of the
payment time period, seeking funding from existing shareholders and adopting other cost-saving
strategies. We cannot assure you that any of the alternatives above can be implemented on
satisfactory terms, if at all. The inclusion of the substantial doubt language in the audit report
about our ability to continue as a going concern could affect our ability to obtain financing from
third parties or could result in increased costs of such financing.
We may not have sufficient liquidity to pay earn-out payments when they come due, which could
materially and adversely affect our operations.
We are obligated to pay earn-out payments over the next two to three years in connection with our
acquisitions of a number of advertising businesses. We estimate that $29.0 million is payable
within the next twelve months from the date of this Annual Report on Form 20-F and $10.2 million is
payable after the next twelve months. We also estimate that more than 50% of the earn-out payable
is payable in stock.
Based on the current cash position and forecast for the rest of the payment period we believe that
we currently do not have sufficient capital to pay the required cash earn-out payments over the
next twelve months. In addition, due to a variety of factors which cannot presently be ascertained,
including without limitation, the amount of working capital that we have available, and the
financial performance of both the company and the acquired companies entitled to receive an
earn-out payment, there can be no assurance that we will have sufficient liquidity to meet our
long-term earn-out obligations. If such failure cannot be remedied through renegotiation of the
terms of such earn-outs with the acquiring companies or the raising of the required proceeds on
reasonable terms, our operations are likely to be adversely and materially impacted.
We have a history of significant operating losses and our future revenue and operating
profitability are uncertain.
We recorded a net loss of $46.6 million for the year ended December 31, 2010 and we ended the year
with an accumulated deficit of $122.2 million. In addition, we recorded a net loss of approximately
$22.6 million for the year ended December 31, 2009. Loss from operations reduced from $7.5 million
in 2009 to $4.2 million in 2010. The greater net loss in 2010 was due to impairment charges which
were non-cash. We may continue to incur operating losses for the foreseeable future, and such
losses may be substantial. We will need to increase revenue in order to generate sustainable
operating profit. Given our history of operating losses, we cannot be certain that we will be able
to achieve operating profitability on an annual basis. Our failure to achieve profitability could
adversely affect the trading price of our common stock and our ability to raise additional capital.
We have identified material weaknesses in our internal control over financial reporting and we have
had to restate our historical financial statements.
In August 2010, we announced that we would restate the financial statements of SearchMedia
International as of and for the year ended December 31, 2008, to, among other things, correct an
overstatement of revenue $47.0 million in 2008. We restated our financial statements for the year
ended December 31, 2008, which was filed in our Annual Report on Form 10-K for the year ended
December 31, 2008, filed with the SEC on November 1, 2010.
After the Business Combination and in connection with our preparation of the Annual Report on Form
10-K filed November 1, 2010, we identified accounting irregularities and potential financial and
operational improprieties, relating to transactions and financial reporting matters that occurred
under the management of SearchMedia International before the Business Combination, which were not
previously identified as a result of material weaknesses in our internal control over financial
reporting. These material weaknesses relate to, among other things: (i) recording of various
erroneous transactions by certain employees; (ii) recording of certain assets and other accounting
irregularities related to acquisitions; (iii) diligence and approval of questionable transactions;
and (iv) confirmation of payments related to acquisitions.
7
We have implemented and we plan to further implement steps to address these material weaknesses and
improve our internal control over financial reporting. However, the implementation of these
measures may not fully address these control weaknesses, and to date these control weaknesses have
not been remediated in full. If we fail to implement and maintain the adequate internal control
procedures in a timely manner, we may not be able to conclude that we have effective internal
control over financial reporting. Furthermore, we cannot be certain we will effectively remediate
our control weaknesses or that restatements will not occur in the future. The preparation and
filing of restatements could create a significant strain on our internal resources and cause delays
in our filing of quarterly or annual financial results, increase our financial accounting and
related costs, and divert managements attention from the operation of our business.
We are subject to ongoing securities litigation and a government inquiry in the United States.
We and certain of our current and former directors and executive officers are defendants in a
federal securities class action in the United States. The amended complaint alleges that the
defendants violated Sections 10(b), 14(a) and 20(a) of the Securities Exchange Act of 1934 and
Rules 10b-5 and 14a-9 thereunder by making false and misleading statements regarding our
acquisition of SearchMedia International and by overstating SearchMedia Internationals financial
results during the period April 1, 2009 through August 20, 2010 (Proposed Class Period). The
Company and certain of its co-defendants have moved to dismiss the claims asserted against them. We
cannot predict the outcome of the motion to dismiss. Moreover, we cannot predict if the court will
certify a class.
In addition, we have been notified that the U.S. Securities and Exchange Commission, Los Angeles
Regional Office, is conducting a formal investigation regarding the issues that are the subject of
our restatement of financial results announced on August 20, 2010. We are cooperating fully with
the SEC during this investigation process. We cannot predict the cost or potential liabilities
associated with responding to the SEC investigation or any related investigations or litigation
that may arise from the matters under inquiry.
We have notified our insurance carriers of these matters. One carrier, which issued a directors
and officers liability policy that applies to part of the Proposed Class Period, has informed the
Company that it formed the view that its policy does not provide coverage for these matters.
Accordingly, there can be no assurance that our insurance carriers will cover all or part of the
defense costs, or any liabilities that may arise from these matters. Litigation and regulatory
actions or proceedings can be time consuming and expensive, and could divert management time and
attention from our business, which could have a material adverse effect on our revenues and results
of operations. We also may be subject to claims for indemnification related to these matters, and
we cannot predict the impact that indemnification claims may have on our business or financial
results. Finally, we cannot provide any assurance that the final outcome of these matters will not
have a material adverse effect on our business, results of operations, or financial condition.
Deterioration of economic conditions and a resulting decrease in demand for advertising services
would materially and adversely affect our financial condition and results of operations and limit
our growth prospects.
Demand for our advertising services, and the resulting advertising spending by our clients on our
network, is affected significantly by prevailing economic conditions. The current economic
downturns in global markets have impacted, and are expected to further impact, materially and
adversely, the advertising spending of our existing and potential multinational clients and, as the
crisis spreads to China, the advertising spending of our existing and potential domestic clients.
With a severe decline in economic conditions, clients who would normally spend on a broad range of
traditional and new media may curtail their overall spending or concentrate their advertising
spending on one medium. As we derive most of our revenues from our billboard and in-elevator
advertising networks, a decrease in demand for advertising media in general and for our advertising
media or advertising networks in particular would materially and adversely affect our financial
condition and results of operations and limit our growth prospects. In addition, our clients who
are adversely affected by the worsened economic conditions may delay paying the advertising fees to
us, which would adversely affect our liquidity and results of operations.
8
A business strategy of making acquisitions subjects us to all of the risks inherent in identifying,
acquiring and operating newly acquired businesses.
Our growth strategy includes acquiring new businesses to complement and expand our existing
operations. In the future, we may continue to make acquisitions of, or investments in, businesses
that we believe could complement or expand our current business or offer growth opportunities. To
that end, we may spend significant management time and resources in analyzing and negotiating
acquisitions or investments that are not consummated. The ongoing process of integrating these
businesses is distracting, time consuming, expensive, and requires continuous optimization and
allocation of resources. Additionally, if we use stock as consideration, this would have a dilutive
effect on existing stockholders. If we use cash, this would reduce our liquidity and impact our
financial flexibility. We may seek debt financing for particular acquisitions, which may not be
available on commercially reasonable terms, or at all. We face all the risks associated with a
business acquisition strategy, including, but not limited to:
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the potential disruption of our existing businesses, including the diversion of
management attention and the redeployment of resources; |
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entering new markets or industries in which we have limited prior experience; |
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failure to identify in due diligence key issues specific to the businesses we seek
to acquire or the industries or other environments in which they operate, or, failure
to protect against contingent liabilities arising from those issues; |
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unforeseen or hidden liabilities; |
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difficulties in integrating, aligning and coordinating organizations which will
likely be geographically separated and may involve diverse business operations and
corporate cultures; |
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difficulties in integrating and retaining key management, sales, research and
development, production and other personnel; |
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potential loss of key employees, clients or distribution partners of the acquired
businesses; |
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difficulties in incorporating the acquired business into our organization; |
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the potential loss of customers, distributors or suppliers; |
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adverse effects on our existing business relationships with our advertisers; |
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difficulties in integrating or expanding information technology systems and other
business processes to accommodate the acquired businesses; |
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risks associated with integrating financial reporting and internal control systems; |
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the potential for future impairments of goodwill if the acquired business does not
perform as expected; |
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the inability to obtain necessary government approvals for the acquisition, if any;
and |
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successfully operating the acquired business. |
If we cannot overcome these challenges, we may not realize actual benefits from past and future
acquisitions, which will impair our overall business results. If we complete an investment or
acquisition, we may not realize the anticipated benefits from the transaction.
9
Failure to manage our growth could strain our management, operational and other resources, which
could materially and adversely affect our business and growth potential.
We experienced rapid expansion in recent years, which resulted, and will continue to result, in
substantial demand on our management resources. To manage our growth, we must develop and improve
our existing administrative and operational systems and our financial and management controls, and
further expand, train and manage our work force. We also need to incur substantial costs and spend
substantial resources in connection with these efforts. We may not have the resources to revamp our
systems and controls, recruit or train our personnel, or afford to incur the costs and expenses in
order to successfully manage our growth. Failure to manage our growth may materially and adversely
affect our business and growth potential.
Future charges due to possible impairments of acquired assets may have a material adverse effect on
our financial condition and results of operations.
A portion of our assets is comprised of goodwill and other intangible assets, which may be subject
to future impairment that would result in financial statement write-offs. Goodwill and other
intangible assets represent approximately 57.5% of our total assets at December 31, 2010. If there
is a material change in our business operations or prospects, the value of the intangible assets we
have acquired or may acquire in the future could decrease significantly. On an ongoing basis and at
least annually, we will evaluate, partially based on discounted expected future cash flows, whether
the carrying value of such intangible assets may no longer be recoverable, in which case a charge
to earnings may be necessary. Any future determination requiring the write-off of a significant
portion of unamortized intangible assets, although not requiring any additional cash outlay, could
have a material adverse effect on our financial condition, results of operations and stock price.
We face significant competition for advertising spending from operators of new and traditional
advertising networks. If we cannot successfully compete, our results of operations would be
materially and adversely affected.
We face competition for general advertising spending from operators of many other forms of
advertising networks, such as television, print media, Internet and other types of out-of-home
advertising.
Our success depends on the continuing and increased interest of advertising clients and agencies in
in-elevator, outdoor billboard, transit advertising as components of their advertising strategies.
Advertisers may elect not to use our services if they believe that the viewing public is not
receptive to advertising platforms we offer or that these platforms do not provide sufficient value
as effective advertising mediums. If we cannot successfully compete for advertising spending
against traditional, Internet and other types of out-of-home advertising, we will be unable to
generate sufficient revenues and cash flows to operate our business, and our results of operations
could be materially and adversely affected.
For in-elevator and billboard advertising spending, we face competition from different players
across different platforms and in different cities where we operate. For our in-elevator
advertising platform, we compete primarily against large regional operators and other nationwide
operators some of which have substantially more financial resources than we have. For our billboard
advertising platform, we compete against mostly local or regional outdoor billboard owners and
operators, as the outdoor billboard market in China is largely fragmented. For our transit
advertising platform, we compete against other seasoned operators. We compete for advertising
spending on these platforms generally on the basis of network coverage, service quality and brand
name. If we cannot compete successfully for advertising spending on these platforms, our market
share and our results of operations would suffer.
We have a limited operating history which may make it difficult for you to evaluate our business
and prospects.
SearchMedia International entered the out-of-home advertising market in 2005. We have been a public
company since 2009. Accordingly, we have a limited operating history for our current operations
upon which you can evaluate the viability and sustainability of our business and our acceptance by
advertisers.
10
If we fail to develop and maintain relationships with site owners, managers and sublessors that
provide us access to desirable locations and network platforms, our growth potential and our
business could be harmed.
Our ability to generate revenues from advertising sales depends largely on our ability to provide a
large network of our media products across media platforms at desirable locations. The
effectiveness of our network also depends on the cooperation of site owners and managers to allow
us to install the desired types of frames at the desired spots on their properties and, for
in-elevator advertising, to keep the elevators in operation and accessible to the viewing public.
To address these needs, we must develop and maintain business relationships with site managers and
owners and, for a portion of our network, sublessors that consist primarily of advertising
companies. Since the ownership of residential and office buildings are fragmented, maintaining
these relationships requires considerable operational resources in terms of contract management and
site development and maintenance personnel. If we fail to devote the necessary resources to
maintaining these relationships or if we fail to perform our obligations under the existing leases,
these lessors and sublessors may terminate their leases with us or not renew them upon expiration.
In some cases, we have not maintained good relations and some of our leases have been terminated or
may be terminated in the future. As there is a limited supply of billboards at desirable locations
and a limited number of subway stations, the termination of a significant number of the leases for
billboards and light boxes at subway stations could harm our multi-platform growth and operation
strategies and our business and prospects could suffer as a result.
Failures to obtain site owners consents or objections from site owners to the installations of our
media products could lead to termination of our contracts or installations, which would harm our
results of operations.
PRC real estate laws and regulations require that we obtain prior consent of site owners and
managers for any commercial use of public areas or facilities of residential properties. We
generally enter into display placement agreements with site managers. To comply with PRC real
estate laws and regulations, we also need to obtain or urge site managers to obtain prior consent
of site owners committees or site owners. In some circumstances, it is difficult to locate site
owners. If we enter into an agreement for display placement with a site manager without the consent
from the relevant site owners, we could be subject to fines of up to RMB0.2 million (approximately
$29,000) for each site and be required to remove our advertising posters from the affected
building. In addition, site owners who object to the installation of poster frames in their
buildings may cause site managers to terminate or fail to renew site contracts with us, which would
harm our results of operations.
If we are unable to obtain or retain desirable placement locations for our advertising poster
frames and outdoor billboards on commercially advantageous terms, our operating margins and
earnings could decrease and our results of operations could be materially and adversely affected.
Our cost of revenues consists primarily of operating lease cost of advertising space for displaying
advertisements, depreciation of advertisement display equipment, amortization of intangible assets
relating to lease agreements and direct staff and material costs associated with production and
installation of advertisement content. Our operating lease cost represents a significant portion of
our cost of revenues. In 2009 and 2010, our operating lease cost accounted for 84.4% and 91.4%,
respectively, of our cost of revenues and 62.0% and 64.3% respectively, of our total revenues. In
the future, we may need to pay higher amounts in order to renew existing leases, obtain new and
desirable locations, or secure exclusivity and other favorable terms. If we are unable to secure
commercially advantageous terms or pass increased location costs onto our advertising clients
through rate increases, our operating margins and earnings could decrease and our results of
operations could be materially and adversely affected.
The shareholders of Jingli Shanghai may have potential conflicts of interest with us.
The shareholders of Jingli Shanghai are also the founders and shareholders of the Company.
Conflicts of interests between their dual roles as shareholders of both Jingli Shanghai and the
Company may arise. We cannot assure you that when conflicts of interest arise, any or all of these
individuals will act in the best interests of the Company or that any conflict of interest will be
resolved in our favor. In addition, these individuals may breach or cause Jingli Shanghai to breach
or refuse to renew the existing contractual arrangements that allow us to effectively control
Jingli Shanghai and receive economic benefits from it. If we cannot resolve any conflicts of
interest or disputes between us and the shareholders of Jingli Shanghai, we would have to rely on
legal proceedings, the outcome of which is uncertain and could be disruptive to our business.
11
Our business depends substantially on the continuing efforts of our senior executives, and our
business may be severely disrupted if we lose their services.
Our future success depends heavily on the continued services of our senior executives and other key
employees, their industry expertise, their experience in business operations and sales and
marketing, and their working relationships with our advertising clients as well as the site owners,
property developers, property management companies, homeowner associations and relevant government
authorities that affect the site contracts with us.
We do not have a long history of working with some of these senior executives and key employees. If
one or more of our senior executives were unable or unwilling to continue in their present
positions, we might not be able to replace them easily or at all. If any of our senior executives
join a competitor or forms a competing company, we may lose clients, site contracts, key
professionals and staff members. We have entered into an employment agreement with each of our
executive officers, which agreement contains non-competition provisions. However, if a dispute
arises between us and our executive officers, there is no assurance that any of these agreements
could be enforced, or to what extent they could be enforced, in China, in light of the
uncertainties with Chinas legal system.
If we are unable to adapt to changing advertising trends of advertisers and consumers, we will not
be able to compete effectively and we will be unable to increase or maintain our revenues, which
may materially and adversely affect our business prospects and revenues.
The competitive market for out-of-home advertising requires us to continuously identify new
advertising trends of advertisers and consumers. In response to these new advertising trends, we
may need to quickly develop and adopt new formats, features and enhancements for our advertising
network and/or cost-effectively expand into additional advertising media and platforms beyond
in-elevator, billboards, and transit platform advertising. We may be required to incur, but may not
have the financial resources necessary to fund, development and acquisition costs in order to keep
pace with new advertising trends. If we fail to identify or respond adequately to these changing
advertising trends, demand for our advertising network and services may decrease and we may not be
able to compete effectively or attract advertising clients, which would have a material and adverse
effect on our business prospects and revenues.
Our growth could suffer if we fail to expand our media networks to include new media offerings,
media platforms or enter into new markets.
Currently, our network primarily consists of in-elevator, outdoor billboard and transit
advertising. Our growth strategy includes broadening our service offerings and possibly entering
into new advertising markets. It is difficult to predict whether consumers and advertising clients
will accept our entry into new media markets or accept the new media products or platforms we may
offer. It is also difficult to predict whether we will be able to generate sufficient revenues to
offset the costs of entering into these new markets or introducing these new products or new media
platforms. We may also have limited or no prior experience working with these new products,
platforms or markets. If we fail to expand our media network to include new media products,
platforms or markets, our growth could suffer as a result.
If site managers or owners shut down our displays for site maintenance or other reasons, our
business could be adversely affected.
Under certain site leasing contracts we entered into with site managers or owners, site managers or
owners have the right to shut down our displays with prior written notice if they need to inspect
or maintain the sites where we have installed advertising displays, or for other reasons such as
facility reconstruction. However, under our contracts with our advertising clients, if these
displays are shut down for an extended period of time, we are required to substitute these
suspended displays with alternative displays. If we cannot reach an agreement with our clients on
the alternative displays, we could be required to refund the advertising fees paid by these
clients. If a substantial number of our displays are shut down by site managers within a short time
period, we may not be able to locate alternative display locations and may incur substantial
remedial costs. Our relationships with our advertising clients could also suffer and our financial
results could be adversely affected.
12
Unauthorized use of our intellectual property by third parties, and the expenses incurred in
protecting our intellectual property rights, may adversely affect our business.
We regard our copyrights, trademarks, trade secrets and other intellectual property as critical to
our success. Unauthorized use of the intellectual property used in our business may adversely
affect our business and reputation. We have historically relied on a combination of trademark and
copyright law, trade secret protection and restrictions on disclosure to protect our intellectual
property rights. We have entered into confidentiality agreements with all our employees. We cannot
assure you that these confidentiality agreements will not be breached, or that we will have
adequate remedies for any breach.
We are still in the process of registering in China the SearchMedia trademark and logo used in
our business. We cannot assure you that our trademark application will ultimately proceed to
registration or will result in registration with scope adequate for our business. Some of our
pending applications or registration may be successfully challenged or invalidated by others. If
our trademark application is not successful, we may have to use different marks for affected
services or technologies, or enter into arrangements with any third parties who may have prior
registrations, applications or rights, which might not be available on commercially reasonable
terms, if at all.
In addition, monitoring and preventing unauthorized use of our trademarks and other intellectual
property is difficult and expensive, and litigation may be necessary in the future to enforce our
intellectual property rights. Future litigation could result in substantial costs and diversion of
our resources, and could disrupt our business, as well as have a material adverse effect on our
financial condition and results of operations.
We rely on computer software and hardware systems in managing our operations; any failure in these
systems could adversely affect our business, financial condition and results of operations.
We are dependent upon our computer software and hardware systems in supporting the sales,
scheduling and maintenance of our network. In addition, we rely on our computer hardware for the
storage and delivery of the data on our network. Any system failure which causes interruptions to
the input and retrieval of data or increases our service time could disrupt our normal network
operations. In addition, computer hackers infecting our network with viruses could cause our
network to become unavailable. Although we believe that our disaster recovery plan is adequate to
handle the failure of our computer software and hardware systems, we cannot assure you that we will
be able to effectively carry out this disaster recovery plan or that we would be able to restore
our network operations fast enough to avoid a significant disruption to our business. Any failure
in our computer software and/or hardware systems could decrease our revenues and harm our
relationships with advertisers and target audiences, which in turn could have a material adverse
effect on our business, financial condition and results of operations.
We have no business liability, disruption or litigation insurance, and we could incur substantial
costs if our business is disrupted due to natural disasters, litigation or other business
interruptions.
The insurance industry in China is still at an early stage of development. Insurance companies in
China offer limited business insurance products and do not, to our knowledge, offer business
liability insurance. While business disruption insurance is available to a limited extent in China,
we have determined that the risks of disruption, cost of such insurance and the difficulties
associated with acquiring such insurance on commercially reasonable terms make it impractical for
us to have such insurance. As a result, we do not have any business liability or disruption
coverage for our operations in China. All industries are subject to legal claims. As a public
company, we are particularly susceptible to securities and derivative lawsuits. These claims may be
costly to defend and divert the attention of our management and our resources in general. Defense
and settlement costs can be substantial, even with respect to claims that have no merit. Due to the
inherent uncertainty of the litigation process, the resolution of any particular legal claim or
proceeding could have a material effect on our business, financial condition, results of operations
or cash flows. Any business disruption or litigation may result in our incurring substantial costs
and the diversion of resources.
13
Our operating results are difficult to predict and may fluctuate from period to period.
Our operating results are difficult to predict and may fluctuate from period to period. Factors
that are likely to cause our operating results to fluctuate include:
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our ability to maintain and increase sales to existing advertising clients, attract
new advertising clients and satisfy our clients demands; |
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the frequency of our clients advertisements on our network; |
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remaining competitive with the pricing strategies of our competitors; |
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effects of strategic alliances, potential acquisitions and other business
combinations, and our ability to successfully and timely integrate alliances or
acquired businesses into our business; |
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changes in government regulations in relation to the advertising industry; |
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lower advertising spending immediately following a major holiday season in China;
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economic and geopolitical conditions in China and elsewhere. |
Many of the factors discussed above are beyond our control, making our results difficult to predict
from period to period. Although we did not experience significant seasonality in our business,
except for generally lower sales in periods immediately following major holiday seasons
historically, you should not rely on our operating results for prior periods as an indication of
our future results. If our revenues for a particular period are lower than expected, we may be
unable to reduce our operating expenses for that period by a corresponding amount, which would harm
our operating results for that period relative to our operating results from other periods.
Risks Relating to Doing Business in the Peoples Republic of China
If the PRC government determines that the contractual arrangements that establish the structure for
operating our China business do not comply with applicable PRC laws and regulations, we could be
subject to severe penalties.
Applicable PRC laws and regulations currently require any foreign entities that invest in the
advertising services industry in China to have at least two years of direct operations in the
advertising industry outside of China. We are a Cayman Islands corporation and a foreign legal
person under Chinese laws. Before we acquired 100% of the equity interests of Ad-Icon in 2008, we
had not directly operated an advertising business outside of China and thus could not qualify for
the requirement of minimum two years experience outside China under PRC regulations. Accordingly,
our subsidiary, Jieli Consulting, is currently ineligible to apply for the required business
license for providing advertising services in China. Therefore, we entered into contractual
arrangements with our consolidated variable interest entity in China, Jingli Shanghai, and prior to
formation of Jingli Shanghai, we operated our advertising business through Shanghai Sige
Advertising and Media Co., Ltd., or Sige, Shenzhen Dale Advertising Co., Ltd., or Dale and Beijing
Conghui Advertising Co., Ltd., or Conghui. Jingli Shanghai is currently owned by two PRC citizens,
Ms. Qinying Liu and Ms. Le Yang, and holds the requisite business license to provide advertising
services in China. Jingli Shanghai and its subsidiaries directly operate a portion of our
advertising network, enter into display placement agreements and sell advertising spaces to our
clients with respect to certain of our operating subsidiaries. In 2010, Ad-Icon Shanghai, a
wholly-owned subsidiary of Ad-Icon, acquired some of Jingli Shanghais subsidiaries and operates
advertising business through such subsidiaries. Before the remaining subsidiaries of Jingli
Shanghai are acquired by Ad-Icon Shanghai, we are expected to continue to be dependent on Jingli
Shanghai and its subsidiaries to operate a portion of our advertising business. We do not have any
equity interest in Jingli Shanghai but receive the economic benefits and assume the economic risks
of it through various contractual arrangements and certain corporate governance and shareholder
rights arrangements. In addition, we have entered into agreements with Jingli Shanghai and each of
the shareholders of Jingli Shanghai which allow us to exert control over Jingli Shanghai.
14
If we, Jieli Consulting, Jieli Network, Jingli Shanghai or any of our future PRC subsidiaries are
found to be in violation of any existing or future PRC laws or regulations, or fail to obtain or
maintain any of the required permits or approvals, the relevant PRC regulatory authorities,
including the State Administration for Industry and Commerce, or SAIC, which regulates advertising
companies, would have broad discretion in dealing with such violations, including:
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revoking the business and operating licenses of Jingli Shanghai or our PRC
subsidiary and other affiliated entities, if any; |
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discontinuing or restricting the operations of any transactions among our PRC
subsidiary, Jingli Shanghai and its shareholders; |
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imposing fines, confiscating the income of Jingli Shanghai or our income, or
imposing other requirements with which we or our PRC subsidiary and affiliated entities
may not be able to comply; |
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requiring us or our PRC subsidiary and affiliated entities to restructure our
ownership structure or operations; or |
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restricting or prohibiting our use of the proceeds of the Business Combination to
finance our business and operations in China. |
The imposition of any of these penalties could result in a material and adverse effect on our
ability to conduct our business, and our financial condition and results of operations.
We rely on contractual arrangements with Jingli Shanghai and its shareholders for our China
operations, which may not be as effective in providing operational control as would be the case
through ownership of a controlling equity interest in such operating entities.
In April 2008, we acquired 100% of the equity interest in Ad-Icon, a Hong Kong company, which
operates an outdoor billboard advertising business. In December 2009, Ad-Icon established Ad-Icon
Shanghai in China. In 2010, Ad-Icon Shanghai acquired most of the subsidiaries of Jingli Shanghai,
but as of the date of filing of the Annual Report on Form 20-F, Ad-Icon Shanghai has not acquired
all remaining subsidiaries of Jingli Shanghai. We have relied and expect to continue to rely on
contractual arrangements with Jingli Shanghai and its shareholders to operate a portion of our
business in China before we complete the acquisition of all subsidiaries of Jingli Shanghai. For a
description of these contractual arrangements, see Information on the Company Organizational
Structure Contractual Arrangements with Jingli Shanghai and its Shareholders in this Annual
Report on Form 20-F. These contractual arrangements include an equity pledge agreement, under which
the shareholders of Jingli Shanghai pledged their equity interests in Jingli Shanghai to Jieli
Consulting. Such pledge was duly created by recording the pledge on Jingli Shanghais register of
shareholders in accordance with the PRC Collateral Law. According to the PRC Property Rights Law,
effective as of October 1, 2007, the pledge needs to be registered with the relevant local branch
of the Shanghai Administration of Industry and Commerce. Jingli Shanghai successfully registered
the pledge with the Shanghai Administration of Industry and Commerce Chongming Sub-bureau on
February 2, 2009. These contractual arrangements may not be as effective as ownership of a
controlling equity interest would be in providing us with control over Jingli Shanghai. Under the
current contractual arrangements, as a legal matter, if Jingli Shanghai or any of its shareholders
fails to perform their respective obligations under these contractual arrangements, we may have to
incur substantial costs and resources to enforce such arrangements, and rely on legal remedies
under PRC law, including seeking specific performance or injunctive relief, and claiming damages,
which may not be effective. For example, if the shareholders of Jingli Shanghai were to refuse to
transfer their equity interests in Jingli Shanghai to us or our designee when we exercise the call
option pursuant to these contractual arrangements, or if they were otherwise to act in bad faith
towards us, we may have to take legal action to compel them to perform their contractual
obligations. In addition, we may not be able to renew these contracts with Jingli Shanghai and/or
its shareholders.
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In addition, if Jingli Shanghai or all or part of its assets become subject to liens or rights of
third-party creditors, we may be unable to continue some or all of our business activities, which
could materially and adversely affect our business, financial condition and results of operations.
If Jingli Shanghai undergoes a voluntary or involuntary liquidation proceeding, its shareholders or
unrelated third-party creditors may claim rights to some or all of these assets, thereby hindering
our ability to operate our business, which could materially and adversely affect our business and
our ability to generate revenue.
All of these contractual arrangements are governed by PRC law and provide for the resolution of
disputes through arbitration in the PRC. The legal environment in the PRC is not as developed as in
other jurisdictions, such as the United States. As a result, uncertainties in the PRC legal system
could limit our ability to enforce these contractual arrangements. In the event we are unable to
enforce these contractual arrangements, we may not be able to exert effective control over our
affiliated entity, and our ability to conduct our business may be materially and negatively
affected.
Adverse changes in economic and political policies of the PRC government could have a material
adverse effect on the overall economic growth of China, which could adversely affect our business.
Substantially all of our business operations are conducted in China. Accordingly, our business,
results of operations, financial condition and prospects are subject to a significant degree to
economic, political and legal developments in China. Chinas economy differs from the economies of
developed countries in many respects, including with respect to the amount of government
involvement, level of development, growth rate, control of foreign exchange and allocation of
resources. While the PRC economy has experienced significant growth in the past 20 years, growth
has been uneven across different regions and among various economic sectors of China. The PRC
government has implemented various measures to encourage economic development and guide the
allocation of resources. While some of these measures may benefit the overall PRC economy, they may
also have a negative effect on us. For example, our business, financial condition and results of
operations may be adversely affected by changes in tax regulations or governments control over
capital investments and foreign currencies. As the PRC economy is increasingly linked to the global
economy, it is affected in various respects by downturns and recessions of major economies around
the world, such as the recent financial and economic crises. Although the PRC government has in
recent years implemented measures emphasizing the utilization of market forces for economic reform,
the PRC government continues to exercise significant control over economic growth in China through
the allocation of resources, controlling payment of foreign currency-denominated obligations,
setting monetary policy and imposing policies that impact particular industries or companies in
different ways. Any adverse change in the economic conditions or government policies in China could
have a material adverse effect on the overall economic growth and the level of investments and
expenditures in China, which in turn could lead to a reduction in demand for our services and
products and consequently have a material adverse effect on our business and prospects. The various
economic and policy measures enacted by the PRC government to forestall economic downturns or shore
up the PRC economy may not succeed and our business could be negatively affected as a result.
If advertising registration certificates are not obtained for advertisements on our outdoor
billboard or rapid transit networks, we may be subject to fines.
On May 22, 2006, the SAIC amended the Provisions on the Registration Administration of Outdoor
Advertisements, or the new outdoor advertisement provisions. Pursuant to the new outdoor
advertisement provisions, advertisements placed on posters, digital displays, light boxes, neon
lights via outdoor premises, space, facilities, as well as those placed in rapid transit stations
are treated as outdoor advertisements and must be registered in accordance with the local SAIC by
advertising distributors and advertising registration certificates must be obtained. After review
and examination, if an application complies with the requirements, the local SAIC will issue an
Outdoor Advertising Registration Certificate for such advertisement. The content, format,
specifications, periods and locations of dissemination of the outdoor advertisement must be
submitted for filing with the local SAIC.
We require advertisers to apply for and obtain the registration certificates for their
advertisements. If an advertiser displays an advertisement without the requisite registration, the
relevant local SAICs may require us to disgorge advertising revenues or may impose fines on us.
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Our outdoor billboards, light boxes and neon signs are subject to municipal zoning requirements,
governmental approvals and administrative controls. If we are required to tear down our billboards,
light boxes or neon signs as a result of these requirements, approvals or controls, our operations
could be materially and adversely affected.
Our billboards, light boxes and neon signs are subject to local regulations which may impose
detailed requirements regarding municipal zoning requirements and governmental approvals. Each
outdoor placement and installation may require a license with specific terms of use. If we, or our
lessors or sublessors, violate the terms of the license for the relevant placement and installation
for a billboard, light box or neon sign, we could be required to tear it down. We may also be
required to tear it down as result of change of municipal zoning requirements or actions taken by
local authorities for city beautification, clean-up or other purposes. If we lose a significant
number of billboards, light boxes and/or neon signs as a result, our business operations would be
materially and adversely impacted. Moreover, if we are unable to perform our advertising contracts
as a result of these losses, we may incur remedial costs and our relationships with our advertising
clients and financial results could be harmed as a result.
If we were deemed a resident enterprise by PRC tax authorities, we could be subject to tax on our
global income and our non-PRC shareholders could be subject to certain PRC taxes.
Under the New PRC Enterprise Tax law effective January 1, 2008, or the EIT law, an enterprise
established outside of the PRC with de facto management bodies within the PRC is considered a
resident enterprise and will be subject to the EIT at the rate of 25% on its global income. The
implementing rules of the EIT law define de facto management as substantial and overall
management and control over the production and operations, personnel, accounting, and properties
of the enterprise. The State Tax Administration issued the Notice Regarding the Determination of
Chinese-Controlled Offshore Incorporated Enterprises as PRC Tax Resident Enterprises on the Basis
of De Facto Management Bodies, or Circular 82, on April 22, 2009. Circular 82 provides certain
specific criteria for determining whether the de facto management body of a Chinese-controlled
offshore-incorporated enterprise is located in China. Although Circular 82 only applies to offshore
enterprises controlled by PRC enterprises, not those controlled by PRC individuals, like our
company, the determining criteria set forth in Circular 82 may reflect the State Administration of
Taxations general position on how the de facto management body test should be applied in
determining the tax resident status of offshore enterprises, regardless of whether they are
controlled by PRC enterprises or individuals. If we were to be considered a resident enterprise
by the PRC tax authorities, our global income would be subject to tax under the EIT law at the rate
of 25% and, to the extent we were to generate substantial amount of income outside of PRC in the
future, we would be subject to additional taxes. In addition, if we were to be considered a
resident enterprise, the dividends we pay to our non-PRC enterprise shareholders would be subject
to withholding tax and our non-PRC enterprise shareholders would be subject to a 10% income tax on
any gains they would realize from the transfer of their shares, if such income were sourced from
within the PRC.
As of the date of this Annual Report on Form 20-F, no final interpretations on the implementation
of the resident enterprise designation are available for companies such as ours. Moreover, any
such designation, when made by PRC tax authorities, will be determined based on the facts and
circumstances of individual cases. As a result, we cannot currently determine the likelihood of the
Company being designated a resident enterprise.
Uncertainties with respect to the PRC legal system could adversely affect us.
We conduct our business primarily through our subsidiaries and affiliated entities in China. Our
operations in China are governed by PRC laws and regulations. Our subsidiaries are generally
subject to laws and regulations applicable to foreign investments in China and, in particular, laws
and regulations applicable to wholly foreign-owned enterprises. The PRC legal system is based on
statutes. Prior court decisions may be cited for reference but have limited precedential value.
Since 1979, PRC legislation and regulations have significantly enhanced the protections afforded
various forms of foreign investments in China. However, China has not developed a fully integrated
legal system and recently enacted laws and regulations may not sufficiently cover all aspects of
economic activities in China. In particular, because these laws and regulations are relatively new,
and because of the limited volume of published decisions and their nonbinding nature, the
interpretation and enforcement of these laws and regulations involve uncertainties. In
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addition, the PRC legal system is based in part on government policies and internal rules (some of
which are not published on a timely basis or at all) that may have a retroactive effect. As a
result, we may not be aware of our violation of these policies and rules until sometime after a
violation. In addition, any litigation in China may be protracted and result in substantial costs
and diversion of resources and management attention.
We may be subject to, and may expend significant resources in defending against, government actions
and civil suits based on the content and services we provide through our network.
PRC advertising laws and regulations require advertisers, advertising operators and advertising
distributors, including businesses such as ours, to ensure that the content of the advertisements
they prepare or distribute are fair and accurate and are in full compliance with applicable law.
Violations of these laws or regulations may result in penalties, including fines, confiscation of
advertising fees, orders to cease dissemination of the advertisements and orders to publish an
advertisement correcting the misleading information. In cases involving serious violations, the PRC
government may revoke an offenders license for advertising business operations.
As an operator of an advertising medium, we are obligated under PRC law to monitor the advertising
content displayed on our network for compliance with applicable law. Although the advertisements
displayed on our network may have been previously displayed over public media, we may be required
to separately and independently vet these advertisements for content compliance before displaying
them on our networks. In addition, for advertising content related to certain types of products and
services, such as alcohol, cosmetics, pharmaceuticals and medical procedures, we are required to
confirm that the advertisers have obtained requisite government approvals including the
advertisers operating qualifications, proof of quality inspection of the advertised products,
government pre-approval of the contents of the advertisement and filings with the local
authorities. Previously, we did not strictly abide by these requirements. We have remedied this
noncompliance and have, among other things, employed qualified advertising inspectors who are
trained to review advertising content for compliance with relevant PRC laws and regulations.
However, there can be no assurances that we will not be penalized for our past noncompliance or
that each advertisement provided by an advertising client is in compliance with relevant PRC
advertising laws and regulations or that the supporting documentation and government approvals
provided by our advertising clients are accurate and complete.
Moreover, civil claims may be filed against us for fraud, defamation, subversion, negligence,
copyright or trademark infringement or other violations due to the nature and content of the
information displayed on our network. If consumers find the content displayed on our network to be
offensive, site managers and owners may seek to hold us responsible for any consumer claims against
them or may terminate their relationships with us.
In addition, if the security of our content management system is breached and unauthorized images
or text are displayed on our network, viewers or the PRC government may find these images or text
to be offensive, which may subject us to civil liability or government censure, and harm our
reputation. If our viewers do not believe our content is reliable and accurate, our business model
may become less appealing to them and our advertising clients may be less willing to place
advertisements on our network. Government censure, investigation or any other government action, or
any civil suits against us could divert management time and resources and could have a material and
adverse effect on our business, results of operations and financial condition.
Governmental control of currency conversion may materially and adversely affect the value of your
investment. Substantial limitations may be imposed on the removal of funds from the PRC to the
Company, or the infusion of funds by us to our subsidiaries and affiliates located in the PRC.
The PRC government imposes controls on the convertibility of the RMB into foreign currencies and,
in certain cases, the remittance of currency out of China. We receive substantially all of our
revenues in RMB. Under our current corporate structure, our income is primarily derived from
dividend payments from our PRC subsidiaries.
Shortages in the availability of foreign currency may restrict the ability of our PRC subsidiaries
to remit sufficient foreign currency to pay dividends or other payments to us, or otherwise satisfy
their foreign currency denominated obligations. Under existing PRC foreign exchange regulations,
payments of current account items, including profit distributions, interest payments and
expenditures from trade-related transactions, can be made in foreign currencies without prior
approval from the PRC State Administration of Foreign Exchange, or SAFE, by complying with
18
certain procedural requirements. However, approval from appropriate government authorities is
required where RMB is to be converted into foreign currency and remitted out of China to pay
capital expenses such as the repayment of loans denominated in foreign currencies. The PRC
government may also at its discretion restrict access in the future to foreign currencies for
current account transactions. If the foreign exchange control system prevents us from obtaining
sufficient foreign currency to satisfy our currency demands, we may not be able to pay dividends in
foreign currencies to our parent, the Company. As dividends from Chinese operations will be the
primary source of revenue production for us, failure to be able to receive such dividends could
materially and adversely impact the value of your Company shares and could make it impossible for
us to meet our cash flow requirements.
On August 29, 2008, SAFE issued the Circular on the Relevant Operating Issues Concerning the
Improvement of the Administration of the Payment and Settlement of Foreign Currency Capital of
Foreign-Invested Enterprises, or Circular No. 142. Pursuant to Circular No. 142, the RMB fund from
the settlement of foreign currency capital of a foreign-invested enterprise must be used within the
business scope as approved by the examination and approval department of the government, and cannot
be used for domestic equity investment unless it is otherwise provided for Documents certifying the
purposes of the RMB fund from the settlement of foreign currency capital including a business
contract must also be submitted for the settlement of the foreign currency. We used to provide
loans to Jingli Shanghai in RMB settled from foreign currency capital of Jieli Consulting and Jieli
Network. With the strengthened administration on settlement of foreign currency, these previous
loan arrangements may no longer be feasible. If the foreign exchange control system prevents Jingli
Shanghai from obtaining sufficient RMB to satisfy its currency demands, the operation of the
Company may be materially and adversely affected.
Our subsidiary in Hong Kong, Ad-Icon Company Limited, on December 11, 2009, established Ad-Icon
Advertising (Shanghai) Co., Ltd., a wholly-owned subsidiary in China, which is permitted to operate
advertising business in China. Through Ad-Icon Shanghai, we can enter into advertising contracts
directly with clients and submit those contracts for the purpose of settling foreign currencies. In
the meantime, we can submit the business contracts between Jieli Consulting/Jieli Network and
Jingli Shanghai for the purpose of settling foreign currencies. According to our PRC counsel to the
Company, both alternatives are permissible under PRC laws.
PRC regulation of loans and direct investment by offshore holding companies to PRC entities may
prevent us from making loans or capital contributions to our PRC operating subsidiaries and
affiliated entities.
As an offshore holding company of our PRC operating subsidiaries and affiliates, any loans by us to
our PRC subsidiaries or consolidated PRC affiliates are subject to PRC regulations and approvals.
For example:
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loans by us to our wholly-owned subsidiaries in China, each of which is a
foreign-invested enterprise, to finance the activities cannot exceed statutory limits
and must be registered with SAFE, or its local counterpart; and |
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loans by us to Jingli Shanghai, which is a domestic PRC entity, may require the
approval from the relevant government authorities or registration with SAFE or its
local counterpart. |
We may also decide to finance our wholly-owned subsidiaries by means of capital contributions.
These capital contributions must be approved by the PRC Ministry of Commerce or its local
counterpart. Because Jingli Shanghai is a domestic PRC entity, we are not likely to finance our
activities by means of capital contributions due to regulatory issues relating to foreign
investment in domestic PRC entities, as well as the licensing and other regulatory issues discussed
in the Business Regulatory Matters section of this Annual Report on Form 20-F. There can be no
assurances that we will be able to obtain these government registrations or approvals on a timely
basis, if at all, with respect to future loans or capital contributions by us to our subsidiaries
or Jingli Shanghai. If we fail to receive such registrations or approvals, our ability to
capitalize our PRC operations may be negatively affected, which could adversely and materially
affect our liquidity and our ability to fund and expand our business.
19
Fluctuation in the value of the Renminbi may have a material adverse effect on your investment.
The value of the Renminbi against the U.S. dollar, Euro and other currencies is affected by, among
other things, changes in Chinas political and economic conditions and Chinas foreign exchange
policies. On July 21, 2005, the PRC government changed its decade-old policy of pegging the value
of the Renminbi to the U.S. dollar. Under the new policy, the Renminbi was permitted to fluctuate
within a narrow and managed band against a basket of foreign currencies. As a result of this policy
change, Chinese RMB appreciated approximately 6.4%, less than 1.0% and 3.0% against the U.S. dollar
in 2008, 2009 and 2010, respectively. It is possible that the Chinese government will adopt a more
flexible currency policy, which could result in more significant fluctuations of Chinese RMB
against the U.S. dollar.
Substantially all of our revenues and costs are denominated in Renminbi, and a significant portion
of our financial assets are also denominated in Renminbi. Thus, a resumption of the appreciation of
the Renminbi against the U.S. dollar would, for instance, further increase our costs in U.S. dollar
terms. In addition, as we principally rely on dividends and other distributions paid to us by our
subsidiaries and affiliated entities in China, any significant depreciation of the Renminbi against
the U.S. dollar may have a material adverse effect on our revenues and financial condition. In
addition, to the extent that we need to convert U.S. dollars into Renminbi for our operations,
appreciation of the Renminbi against the U.S. dollar would have an adverse effect on the Renminbi
amount we receive from the conversion. Conversely, if we decide to convert our Renminbi into U.S.
dollars for the purpose of making payments for dividends on our preferred or ordinary shares or for
other business purposes, appreciation of the U.S. dollar against the Renminbi would have a negative
effect on the U.S. dollar amount available to us. Any fluctuation of the exchange rate between the
Renminbi and the U.S. dollar could also result in foreign current translation losses for financial
reporting purposes.
Any health epidemics and other outbreaks, or war, acts of terrorism and other man -made or natural
disasters could severely disrupt our business operations.
Our business could be materially and adversely affected by the outbreak of avian influenza, H1N1
Flu, severe acute respiratory syndrome, or SARS, or another epidemic. In recent years, there have
been reports on the occurrences of avian influenza and H1N1 Flu in various parts of China,
including a few confirmed human cases and deaths. Any prolonged recurrence of avian influenza, H1N1
Flu, SARS or other adverse public health developments in China could require the temporary closure
of our offices or prevent our staff from traveling to our clients offices to sell our services or
provide on site services. Such closures could severely disrupt our business operations and
adversely affect our results of operations.
Our operations are vulnerable to interruption and damage from natural and other types of disasters,
including snowstorms, earthquakes, fire, floods, environmental accidents, power loss,
communications failures and similar events. If any disaster were to occur in the future, our
ability to operate our business could be materially impaired.
We are a Cayman Islands company and, because the rights of shareholders under Cayman Islands law
differ from those under U.S. law, you may have fewer protections as a shareholder.
The companys conduct of its corporate affairs will be governed by its Memorandum and Articles of
Association, and the Company is subject at all times to the Companies Law (2010 Revision) of the
Cayman Islands. The rights of shareholders to take action against the directors, the rights of
minority shareholders and the fiduciary duties of the directors under Cayman Islands law are
governed by the Companies Law (2010 Revision) and/or common law principles derived from cases in
the Cayman Islands and in the courts of England (English case law is not binding but is considered
persuasive in the courts of the Cayman Islands). The rights of shareholders and the fiduciary
duties of directors under Cayman Islands law differ from those established under statutes or
judicial precedent in some jurisdictions in the United States. Additionally, the removal of a
director from our Board, even for cause, may in certain circumstances require the approval of our
shareholders. Also, the Cayman Islands has a less developed body of securities law compared to the
United States and less developed or judicially interpreted bodies of corporate law compared to many
U.S. states, including Delaware.
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In the future, our Board of Directors may be subject to potential deadlock.
Pursuant to the share exchange agreement and Business Combination, we entered into a voting
agreement with China Seed Ventures, L.P., Qinyng Liu, Le Yang, Vervain Equity Investment Limited,
Sun Hing Associates Limited, and Linden Ventures, each a previous SearchMedia International
shareholder or warrantholder, and Frost Gamma Investments Trust, Robert Fried, Rao Uppaluri, Steven
Rubin and Jane Hsiao, each a previous Ideation shareholder, which provides, among other things,
that, for a period which commenced on October 30, 2009 and ends on October 30, 2012, each party to
the voting agreement will agree to vote in favor of the director nominees nominated by the Ideation
representative and the SM Cayman shareholders representatives as provided in the share exchange
agreement. Our Articles of Association require the approval by a majority of the Directors for many
corporate actions. Although our current Board of Directors presently consists of five members,
there may be occasions when the previous SearchMedia International shareholders and warrantholders
exercise their contractual right to fill the vacancies, which could result in an even number of six
or eight board members. Because there are no mechanisms in the voting agreement or our Articles of
Association which provide a mechanism to resolve a Board deadlock, it is possible that our Board of
Directors may be unable to obtain majority approval in certain circumstances, which would prevent
us from taking actions that may be important to our business and operations.
As a foreign private issuer, we will be exempt from certain SEC requirements that provide
stockholders with protections and information that must be made available to stockholders of U.S.
public companies.
On June 30, 2010, we became a foreign private issuer, which reduces the reporting requirements
under the Exchange Act, resulting in fewer costs associated with financial and reporting
compliance. For example, as a foreign private issuer we will be exempt from certain provisions
applicable to U.S. public companies, including:
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the rules requiring the filing with the SEC of quarterly reports on Form 6-K or
current reports on Form 6-K; |
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the sections of the Exchange Act regulating the solicitation of proxies, consents or
authorizations with respect to a security registered under the Exchange Act; |
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provisions of Regulation FD aimed at preventing issuers from making selective
disclosures of material non-public information; and |
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the sections of the Exchange Act requiring insiders to file public reports of their
stock ownership and trading activities and establishing insider liability for profits
realized from any short swing trading transactions, or a purchase and sale, or a sale
and purchase, of the issuers equity securities within less than six months. |
As a foreign private issuer, we will file an annual report on Form 20-F within six months of the
close of fiscal year 2010, and within four months of each fiscal year beginning with fiscal year
2011, and reports on Form 6-K relating to certain material events promptly after we publicly
announces these events. However, because of the foregoing filing exemptions, our shareholders will
not be afforded the same protections or information generally available to investors holding shares
in public companies organized in the United States.
Because we do not intend to pay dividends on our ordinary shares for the foreseeable future,
stockholders will benefit from an investment in our ordinary shares only if those shares appreciate
in value.
We currently intend to retain all future earnings, if any, for use in the operations and expansion
of the business. As a result, we do not anticipate paying cash dividends in the foreseeable future.
Any future determination as to the declaration and payment of cash dividends will be at the
discretion of our board of directors and will depend on factors our board of directors deem
relevant, including, among others, our results of operations, financial condition and cash
requirements, business prospects, the terms of our credit facilities, if any, and any other
financing arrangements. Accordingly, realization of a gain on stockholders investments will depend
on the appreciation of the price of our ordinary shares, and there is no guarantee that our
ordinary shares will appreciate in value.
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Voting control by executive officers, directors and other affiliates of the company may limit your
ability to influence the outcome of director elections and other matters requiring shareholder
approval.
The executive officers, directors and other affiliates of the Company own over 38% of our
voting shares. These shareholders can control substantially all matters requiring approval by our
shareholders, including the election of directors and the approval of other business transactions.
This concentration of ownership could have the effect of delaying or preventing a change in control
of the Company or discouraging a potential acquirer from attempting to obtain control of the
Company, which in turn could have a material adverse effect on the market price of ordinary shares
or prevent our shareholders from realizing a premium over the market price for their ordinary
shares.
The NYSE Amex may delist our securities from quotation on its exchange, which could limit
investors ability to make transactions in our securities and subject us to additional trading
restrictions.
If the NYSE Amex delists our securities from trading on its exchange, we could face significant
material adverse consequences, including:
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a limited availability of market quotations for our securities; |
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a reduced liquidity with respect to our securities; |
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a determination that our common stock is a penny stock which will require brokers
trading in our common stock to adhere to more stringent rules, possibly resulting in a
reduced level of trading activity in the secondary trading market for our common stock; |
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a limited amount of news and analyst coverage for the company; and |
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a decreased ability to issue additional securities or obtain additional financing in
the future. |
On April 8, 2011, we received notice of noncompliance with Section 704 of the NYSE Amex Company
Guide, which required us to hold our stockholders annual meeting during 2010 for the fiscal year
ended December 31, 2009. The Exchange notified us on May 5, 2011 that it accepted our plan dated
April 6, 2011 and granted us an extension until October 4, 2011 to regain compliance with continued
listing standards. We will be subject to periodic review by Exchange Staff during its extension
period. This Form 20-F is being filed on June 30, 2011 and we expect to hold our annual general
stockholders meeting before the October 4, 2011 deadline. Following the annual general stockholders
meeting, we anticipate that we will be in compliance with Section 704 of the Company Guide.
A significant number of shares are eligible for future sale by our stockholders and the sale of
those shares could adversely affect the stock price.
A significant number of our outstanding shares of common stock became eligible for resale beginning
October 30, 2010, as a result of the expiration of lock up provisions on resale. If our
stockholders whose shares are eligible for resale sell or attempt to sell their stock in the public
market, the trading price of our common stock could decline.
There is a risk that we could be treated as a U.S. domestic corporation for U.S. federal income tax
purposes after the Business Combination, which could result in significantly greater U.S. federal
income tax liability to us.
Section 7874(b) of the Code generally provides that a corporation organized outside the United
States which acquires, directly or indirectly, pursuant to a plan or series of related transactions
substantially all of the assets of a corporation organized in the United States will be treated as
a domestic corporation for U.S. federal income tax purposes if shareholders of the acquired
corporation, by reason of owning shares of the acquired corporation, own at least 80% (of either
the voting power or the value) of the stock of the acquiring corporation after the acquisition. If
Section 7874(b) were to apply to the conversion, then we, as the surviving entity, would be subject
to U.S. federal
income tax on its worldwide taxable income following the Business Combination as if we were a
domestic corporation.
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Although Section 7874(b) should not apply to treat us as a domestic corporation for U.S. federal
income tax purposes because the Business Combination should be treated as part of the same
transaction and, therefore, this 80% threshold was not reached, due to the absence of full guidance
on how the rules of Section 7874(b) will apply to the transactions contemplated by the Business
Combination, this result is not entirely free from doubt. As a result, stockholders and warrant
holders are urged to consult their own tax advisors on this issue. We intend to take the position
that we are a foreign corporation for U.S. federal income tax purposes. The immediately following
two risk factors assume that we will be treated as a foreign corporation for U.S. federal income
tax purposes.
There is a risk that we will be classified as a passive foreign investment company, or PFIC, which
could result in adverse U.S. federal income tax consequences to U.S. holders of ordinary shares or
warrants of SearchMedia.
We will be treated as a PFIC for any taxable year in which either (1) at least 75% of its gross
income (looking through certain corporate subsidiaries) is passive income or (2) at least 50% of
the average value of its assets (looking through certain corporate subsidiaries) produce, or are
held for the production of, passive income. Passive income generally includes dividends, interest,
rents, royalties, and gains from the disposition of passive assets. If we were a PFIC for any
taxable year during which a U.S. holder held our ordinary shares or warrants, the U.S. holder may
be subject to increased U.S. federal income tax liability and may be subject to additional
reporting requirements.
Based on the expected composition of the assets and income of the Company and our subsidiaries
after the Business Combination, it is not anticipated that we will be treated as a PFIC following
the Business Combination. The actual PFIC status of the Company for any taxable year, however, will
not be determinable until the conclusion of our taxable year, and accordingly there can be no
assurance as to the status of the Company as a PFIC for the current taxable year or any future
taxable year. U.S. holders of our securities are urged to consult their own tax advisors regarding
the possible application of the PFIC rules.
If you acquire (directly, indirectly, or constructively) 10% or more of our shares, you may be
subject to taxation under the controlled foreign corporation, or CFC rules.
Each 10% U.S. Shareholder of a foreign corporation that is a CFC for an uninterrupted period of
30 days or more during a taxable year, and that owns shares in the CFC directly or indirectly
through foreign entities on the last day of the CFCs taxable year, must include in its gross
income for U.S. federal income tax purposes its pro rata share of the CFCs subpart F income,
even if the subpart F income is not distributed. In addition, if a person that is or was a 10%
U.S. Shareholder of a CFC during the 5-year period ending on the date on which such person sells
or exchanges shares of stock of such corporation recognizes gain such a sale or such person as a
dividend to the extent of earnings and profits of the corporation attributable to such stock that
were accumulated while such person held the stock while the corporation was a CFC. After 2010,
dividends may be taxed at higher rates than long-term capital gains. A foreign corporation is
considered a CFC if 10% U.S. Shareholders own more than 50% of the total combined voting power of
all classes of voting stock of the foreign corporation, or the total value of all stock of the
corporation. A 10% U.S. Shareholder is a U.S. person, as defined in the Internal Revenue Code,
that owns at least 10% of the total combined voting power of all classes of stock entitled to vote
of the foreign corporation. For purposes of determining whether a corporation is a CFC, and
therefore whether the more-than-50% and 10% ownership tests have been satisfied, shares owned
includes shares owned directly or indirectly through foreign entities or shares considered owned
under constructive ownership rules. The attribution rules are complicated and depend on the
particular facts relating to each investor. U.S. holders are urged to consult their own tax
advisors regarding the possible application of the CFC rules.
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Risks Relating to Our Stockholders and Warrant holders
We may choose to redeem our outstanding warrants at a time that is disadvantageous to the warrant
holders, preventing such holders from realizing the potential economic value of their warrants.
Subject to there being a current prospectus under the Securities Act, we may redeem all of the
currently outstanding warrants at any time after they become exercisable at a price of $0.01 per
warrant, upon a minimum of 30 days prior written notice of redemption, if and only if, the last
sale price of our ordinary shares equals or exceeds $11.50 per share for any 20 trading days within
a 30-trading-day period ending three business days before we send the notice of redemption. Calling
all of such warrants for redemption could force the warrant holders to:
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exercise the warrants and pay the exercise price for such warrants at a time when it
may be disadvantageous for the holders to do so; |
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sell the warrants at the then-current market price when they might otherwise wish to
hold the warrants; or |
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accept the nominal redemption price which, at the time the warrants are called for
redemption, is likely to be substantially less than the market value of the warrants. |
Our warrant holders may not be able to exercise their warrants, which may significantly reduce
their economic value and create liability for us.
Holders of our warrants will be able to receive shares upon exercise of the warrants only if:
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a current registration statement under the Securities Act
relating to the ordinary shares underlying the warrants is then effective; and |
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such shares are qualified for sale or exempt from qualification under the applicable
securities laws of the states in which the various holders of warrants reside. |
A registration statement covering the shares underlying the warrants is not currently effective.
In addition, some states may not permit us to register the shares issuable upon exercise of our
warrants for sale. The value of the warrants will be greatly reduced if a registration statement
covering the shares issuable upon the exercise of the warrants is not filed and declared effective
or if the securities are not qualified, or exempt from qualification, in the states in which the
holders of warrants reside. We have agreed to qualify for sale the common stock underlying our
warrants in each state in which the units issued in the Ideation IPO were initially offered.
However we did not agree to qualify such securities in any other state.
Holders of warrants who reside in jurisdictions in which the shares underlying the warrants are not
qualified and in which there is no exemption will be unable to exercise their warrants and would
either have to sell their warrants in the open market or allow them to expire unexercised, which
could result in the filing of claims against and other losses for us.
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Item 4 |
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Information on the Company |
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A. |
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History and Development of the Company |
History and Development
SearchMedia Holdings legal name is SearchMedia Holdings Limited. We are a Cayman Islands exempted
company. Our predecessor, Ideation Acquisition Corp., was incorporated on June 1, 2007.
SearchMedia operates under The Companies Law (2010 Revision) of the Cayman Islands. Our principal
executive offices are located at 13F, Central Modern Building, 468 Xin Hui Road, Putuo District,
Shanghai, China, 200060, and our telephone number is 86-2162278018. Our Internet website address
is www.searchmediaholdings.com. The Internet website address
provided in this Annual Report on Form 20-F is not intended to function as a hyperlink and
information obtained at the address is not and should not be considered part of this Annual Report
on Form 20-F and is not incorporated by reference in this Annual
Report on
Form 20-F.
24
In order to facilitate fundraising outside of China, SearchMedia International was incorporated in
the Cayman Islands on February 9, 2007 and became the holding company of SearchMedia
Internationals business. On June 1, 2007, SearchMedia International established Jieli Investment
Management Consulting (Shanghai) Co., Ltd., (Jieli Consulting), a wholly-owned subsidiary of
SearchMedia International in China. Because the operation of an advertising network in China was
restricted to PRC domestic entities at the time, SearchMedia International through Jieli
Consulting, entered into contractual arrangements with Jingli Shanghai on September 10, 2007.
In October 2009, we acquired SearchMedia International pursuant to a share exchange agreement by
and among our predecessor, Ideation Acquisition Corp., a Delaware corporation (Ideation), ID
Arizona Corp., an Arizona corporation and wholly owned subsidiary of Ideation (ID Arizona),
SearchMedia International, the subsidiaries of SearchMedia International, and Shanghai Jingli
Advertising Co. Ltd., and certain shareholders and warrantholders of SearchMedia International. The
share exchange agreement provided for two primary transactions: (1) the redomestication of our
predecessor, Ideation, a Delaware corporation, to a Cayman Islands exempted company and (2) the
acquisition of SearchMedia International.
On October 30, 2009, we completed the redomestication, which resulted in holders of securities of
Ideation holding securities in SearchMedia Holdings. Immediately after the redomestication, we
completed the acquisition of SearchMedia International. We refer to the redomestication and
acquisition of SearchMedia International together as the Business Combination. As a result of the
Business Combination, SearchMedia International became a wholly owned subsidiary of SearchMedia
Holdings, and SearchMedia International security holders became security holders of SearchMedia
Holdings.
In April 2008, we acquired 100% of the equity interest in Ad-Icon, a Hong Kong company operating an
outdoor billboard advertising business. Since Ad-Icon, as a Hong Kong investor, is eligible to
invest in the advertising industry in China without restriction on main business and operation
years, it established a wholly-owned company Ad-Icon Shanghai in China. In 2008 and 2010, Ad-Icon
Shanghai acquired 100% of the equity interests in Zhejiang Continental, Shanghai Botang , Shanghai
Haiya, Beijing Wanshuizhiyuan, Wuxi Ruizhong and Shenyang Jingli. As of the date of this Annual
Report on Form 20-F, Jingli Shanghai still holds 100% of the equity interests of our other Chinese
affiliates, namely, Tianjin Shengshitongda, Qingdao Kaixiang, and Wenzhou Rigao.
Business Overview
We are a multi-platform media company operating primarily in the out-of-home advertising industry.
Out-of-home advertising typically refers to advertising media in public places, such as billboards,
in-elevator displays, street furniture and transit area displays. Our core outdoor billboard and
in-elevator platforms are complemented by our transit advertising platform, which together enables
us to provide multi-platform, one-stop shop services for our local, national and international
clients.
Targeting the rapidly growing number of urban and increasingly affluent consumers in China, we
deploy our advertising network across the following select media platforms:
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Outdoor billboard platform. As of December 31, 2010, we operate a network of about
1,000 high-impact billboards in 15 cities, including Beijing, Hong Kong, Qingdao,
Shanghai, Shenyang, Hangzhou, Shenzhen, Guangzhou, Chongqing and Chengdu. Our
billboards are mostly large format billboards deployed in commercial centers and other
desirable areas with heavy vehicle or foot traffic. |
25
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In-elevator platform. As of December 31, 2010, our network of about 150,000 printed
and digital poster frames delivered targeted advertising messages inside elevators to
captive audiences in
high-rise residential and office buildings in 70 major cities in China. The
in-elevator platform is characterized by its low cost structure and minimal capital
requirements and targets the affluent urban population that is highly desired by
advertisers. |
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Transit advertising platform. As of December 31, 2010, we act as an agency for a
subway network in addition to a bus advertising network of 5,000 buses in Beijing. |
Our multi-platform offerings are cross-marketed by a sales force located in 15 offices across
China. Our advertising clients are from industries ranging from telecommunications, insurance and
banking, to automobile, real estate, electronics and fast moving consumer goods.
We expect to expand our billboard holdings through acquisitions and organic expansion while
utilizing organic growth to grow our elevator and transit holdings, and capitalize on the growth
opportunities in Chinas out-of-home advertising and other emerging media markets. For the years
ended December 31, 2008, 2009 and 2010, we had revenue of $41.7 million, $37.7 million and $49.0
million and a net loss of $35.1 million, $22.6 million and $46.6 million respectively. At the years
ended December 31, 2009 and 2010, we had total assets of $99.8 million and $86.9 million,
respectively.
Our Business
The following table sets forth a breakdown of our total revenues by category for the periods
indicated:
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For the years ended December, 31 |
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2008 |
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2009 |
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2010 |
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(In thousands) |
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In-elevator networks |
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7,405 |
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7,025 |
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9,117 |
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Outdoor billboards |
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31,932 |
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28,854 |
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35,762 |
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Transits |
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2,348 |
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1,862 |
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4,088 |
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Total net revenue |
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41,685 |
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37,741 |
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48,967 |
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SearchMedia Holdings Limited is a holding company and, through its consolidated subsidiaries and
variable interest entities (VIEs) (collectively the Group), is principally engaged in the
provision of advertising services in the out-of-home advertising industry. The Groups advertising
service revenues generated from customers outside the PRC is less than 10% of the Groups total
consolidated revenues and the Groups total long-lived tangible assets located outside the PRC is
less than 10% of the Groups total consolidated long-lived tangible assets. Consequently no
geographic information is presented.
Advertising Network
We are one of the largest operators of integrated outdoor billboard and in-elevator advertising
networks in China. We have coverage of 70 cities, including larger cities such as Hong Kong,
Shanghai, Hangzhou, Beijing, Guangzhou and Shenzhen. As of December 31, 2010 our advertising
network included high-impact billboards, neon signs and light boxes, poster frames located in
commercial and residential buildings, and an agency for transit advertising.
Media Products
Our core outdoor billboard and in-elevator portfolios are complemented by our transit advertising
platform, which together create an attractive multi-platform, one-stop shop service for our
local, national and international advertising clients.
26
Outdoor Billboard Platform
As of December 31, 2010, we operate a network of about 1,000 high-impact billboards in 15 cities,
including Beijing, Hong Kong, Qingdao, Shanghai, Shenyang, Shenzhen, Guangzhou, Hangzhou, Chongqing
and Chengdu. Our billboards are mostly large format billboards, banners, light boxes and other
outdoor postings deployed in commercial centers and other desirable areas with heavy vehicle and/or
foot traffic. Our goal is optimize our billboard portfolio in locations that are desirable for our
advertisers while maximizing the profitability of our concession leases.
Our target audiences for these advertisements are mid- to high-income shoppers, pedestrians and
car-driving consumers. We believe our billboard advertisements effectively increase our advertising
clients brand awareness. We intend to continue to bid for high-profile projects that will bring
positive media exposure, leading to greater market acceptance and brand recognition for our
company. Management plans to continue to build our nationwide portfolio of traditional outdoor
billboard properties through organic expansion and strategic acquisitions.
In-Elevator Platform
We install poster frames primarily on the inside of elevators of modern high-rise buildings in 70
cities across 27 provinces in China, including Shanghai, Beijing, Guangzhou and Shenzhen. We
typically install two to three poster frames in each elevator. The in-elevator platform is
characterized by its low cost structure and minimal capital requirements and targets the affluent
urban population that is highly desired by advertisers. As of December 31, 2010, our elevator
advertising network consisted of about 150,000 poster frames. The in-elevator advertising platform
allows us to target captive audiences comprised of middle- and high-end businesses and consumer
groups.
Poster frames may take the following forms:
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Printed Poster Frames. We specialize in high impact-printed poster frames which are
made of several materials in various sizes suitable for a wide range of display
messages. Our printed poster frames mainly include paper, and illuminated poster
frames; |
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Paper poster frames are conventional poster frames made of paper with a
visual size of 540mm by 390mm; and |
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Illuminated poster frames are posters encased in thin metal boxes and
illuminated by LED optical fiber. The visual size of such posters is typically
540mm by 390mm. |
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Digital poster frames. These poster frames are LCD screens with memory card slots
that allow the screens to change images at regular intervals. Our digital poster frames
change images in loops, with typically six images within each 60-second loop. The
visual size of the screens is typically 405mm by 305mm. |
We sell advertising space on our poster frame network on a per display basis. For each frame
that is upgraded from printed poster frame to digital frame, up to six multiple digital
images can now be displayed inside each physical frame and we increases our available
advertising inventory and opportunities for revenue.
Subway Advertising Platform
We manage an agency that includes a network of light boxes in subways with sizes ranging from
1.5m by 1.75m to 1.5m by 3.5m.
Bus Advertising Platform
Commencing in the second quarter of 2010, we began managing a network of approximately 5,000 buses
for bus-body advertising in Beijing. This advertising consists of large format sticker advertising.
27
Advertising Clients
With coverage in 70 cities and a broad range of media offerings, we have attracted a large and
diverse base of local, national and international advertisers. We have a highly diversified
advertising base of national and international clients, in addition to a broad client list of local
advertisers. These advertising clients are from diverse industries ranging from telecommunications,
insurance and banking, to automobiles, real estate, electronics and fast-moving consumer goods.
We enter into most of our advertising contracts with advertising agencies. We also enter into a
portion of advertising contracts with direct clients. Our top five advertising clients in aggregate
accounted for approximately 23.1% of our advertising service revenues for the year ended December
31, 2010.
A typical advertising contract specifies the duration, site location, types and number of
advertising placements, price and payment terms with our advertising clients. Before placing an
advertisement, we typically review the advertisement content to be displayed, the relevant
approvals for displaying the content, the registered trademark of the client and other materials
required by applicable laws.
Generally, our minimum advertising period is 7 days. The contract terms generally range from one to
three months for elevator advertisements, six months to 24 months for billboards, one to three
months for subway advertisements and one to six months for bus advertisements. In general, we base
our listed price on a number of factors, including locations, quantity of displays, scale, types of
audience, nature of communities and duration of clients advertising campaigns. We increase our
listed prices from time to time to reflect changes in market prices.
Relationships with Site Managers and Owners
We lease spaces in office and residential buildings, subway stations and other high traffic
commercial areas to install poster frames, billboards, neon signs and light boxes. Establishing and
maintaining long-term relationships with site managers and owners are critical aspects of our
business.
We lease billboard locations from managers of commercial centers and other desirable areas of heavy
vehicle or foot traffic, such as outside walls of commercial buildings, bus stops and main roads.
The term of a location leasing contract is generally one to five years. We are responsible for
periodic monitoring, maintenance and repair of frames. Under most of the leasing contracts, we are
granted a right of first refusal with respect to renewals. The rental terms and fees under our
location leasing contracts vary considerably depending on the city, location, and number of
billboards that may be installed.
We lease elevators in high traffic high-rise buildings from property developers, property
management companies or homeowner associations. We target both high-rise residential buildings and
office buildings. The term of an elevator leasing contract is generally one to three years. The
rental terms and fees under our elevator leasing contracts vary considerably depending on the city,
location and size of the building and number of flat-panel poster frames that may be installed.
Upon entering into a leasing contract, we can install the pre-agreed poster frames in the elevator
area usually in three days. We are responsible for periodic maintenance and repair of elevator
poster frames. Under a typical lease agreement, a lessor is not allowed to move, remove, damage or
hide from view our poster frames, and is required to inform us immediately in the event of any
damage to our poster frames. The rental terms and fees under our elevator leasing contracts vary
considerably depending on the city, location and size of the building and number of flat-panel
poster frames that may be installed.
Sales
As of December 31, 2010, our sales efforts were spearheaded by a team of approximately 110
advertising sales personnel in 13 cities. Our sales personnel generally have prior sales experience
in Chinas advertising industry and, once hired, receive training to gain a deeper understanding of
the out-of-home advertising market, our advertising network, our competitive strengths and the
value propositions we offer our advertising clients. We also provide our sales personnel with
current data that measures the effectiveness of our advertising network and case studies of
successful campaigns conducted on our network. Our sales personnel typically earn commissions on
sales, in addition to base salaries.
28
We supplement our sales efforts by providing value-added advisory services to some of our clients,
especially small-size local clients. Each sale starts with a thorough understanding of a clients
advertising needs that leads to tailored solutions that optimize advertising spending on our
network. In these services, we assess the clients media needs and budgets, assist in allocating
media resources across the various media platforms and assist with the creative process in the
design and placement of the poster frames.
Competitive Advantages
We believe we enjoy the following advantages over our competitors:
Nationwide coverage and leading market share. With a nationwide coverage of 70 cities
throughout China and Hong Kong, we are one of the largest operators of out-of-home advertising
media networks in China. We believe our market share and experience have enabled us to build a
strong brand and reputation in the industry and have allowed us to attract a highly diversified
advertising base of national and international clients, in addition to a broad client list of local
advertisers. We believe our growing nationwide coverage, our market share and diversified,
effective advertising media platforms will continue to help us expand our client base and media
portfolio, create significant barriers to entry in existing markets and provide added leverage in
our quest to expand to new geographic and advertising markets.
Extensive advertising network across multiple media platforms. We believe our extensive
advertising network across multiple media platforms allows us to act as a one-stop shop for
advertising clients that seek nationwide distribution of advertising content across multiple
advertising channels, including outdoor billboards, elevators, subway stations and buses. The
site-specific billboards and frames in our large portfolio further combine nationwide marketing
with the benefit of precision targeting of audiences. These attributes allow us to accommodate
clients that desire to scale and optimize their advertising solutions based on their advertising
budgets, targeted audiences and nature of marketing. Additionally, we believe that many of our
clients are often using in-elevator advertising for promotional purposes, as opposed to only brand
awareness, which is a core strategy for these advertisers regardless of the economic climate. We
believe the appeal of our scalable, targeted and effective advertising solutions will continue to
attract new and recurring clients.
Scalable revenue model. Each of our media platforms can be characterized by a low cost
structure and low level of capital expenditures required for expansion, which we expect will allow
us to cost-efficiently expand and scale our operations in response to market conditions and new
opportunities. We believe our expansion opportunities, both geographic and in new advertising
markets, can be further characterized by low incremental cost and high marginal profit, as we
continue to leverage our existing resources.
Strong management team. We have strengthened our management team at the corporate level with
the addition of several key executives since the completion of the merger, who bring operational,
financial and management experiences from both multinational and leading domestic companies.
Through a series of acquisitions in different cities in 2008 and 2010, we also retained experience
regional senior management at the acquired subsidiaries to help build the businesses. Under the
leadership of our management at a corporate and subsidiary level, we have been able to pursue
acquisitions and build our sales force, increase brand awareness and build a diverse client base.
Competition
As a multi-platform media company with presence in 70 cities in China and Hong Kong, we compete
with different players across our platforms and cities of operation. We compete for advertising
clients generally on the basis of network coverage, service quality, technology, media offerings,
services and brand name. We have built our competitive position primarily on our nationwide
coverage, leading market share, and our ability to offer broad geographic coverage, diverse media
platforms and quality services.
29
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Outdoor billboard platform. As the outdoor billboard market in China is largely
fragmented with no clear nationwide leader, we compete primarily with other local or
regional outdoor billboard owners and operators. We also compete with operators of
other forms of outdoor media, including digital outdoor displays and street furniture
advertising. |
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In-elevator platform. We compete primarily with other nationwide operators of
in-elevator poster frame advertising. We may face competition in individual cities from
local and regional players and new entrants into the local and regional market from
time to time. |
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Transit platform. We compete with other operators of subway light box and bus-body
advertising. |
We also compete for the advertising budget of advertisers with other operators of out-of-home
advertising and operators of other advertising media including television, radio, newspapers,
magazines and the Internet.
Although we do not experience significant seasonality in our business, advertising spending is
affected by holidays and one-time events. Advertising spending for outdoor media typically
decreases during the Chinese New Year, which occurs in the first calendar quarter of each year, and
increases in the last calendar quarter.
Intellectual Property
The SearchMedia brand and our other intellectual property rights contribute to our competitive
advantage in the outdoor advertising market in China. To protect our brands and our other
intellectual property, we rely on a combination of trademark, trade secret and copyright laws in
China as well as imposing procedural and contractual confidentiality and invention assignment
obligations on our employees, consultants and others.
While we cannot assure you that our efforts will deter others from misappropriating our
intellectual properties, we will continue to create and protect our intellectual property rights in
order to maintain our competitive position.
Regulatory Matters
We operate our business in China under a legal regime consisting of the State Council, which is the
highest authority of the executive branch of the National Peoples Congress, and several ministries
and agencies under its authority including the State Administration for Industry and Commerce, or
SAIC, which regulates the advertising industry.
PRC Advertising Law was promulgated in 1994. In addition, the State Council, SAIC and other
ministries and agencies have issued regulations that regulate our business as discussed below.
Restrictions on Foreign Ownership in the Advertising Industry
The principal regulations governing foreign ownership in the advertising industry in China include:
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The Catalogue for Guiding Foreign Investment in Industry (2007); |
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The Administrative Regulations on Foreign-invested Advertising Enterprises (2004),
as amended in 2008; and |
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The Notice Regarding Investment in the Advertising Industry by Foreign Investors
Through Equity Acquisitions (2006). |
These regulations require foreign entities that directly invest in the advertising industry in
China to have at least two years of direct operations in the advertising industry outside of China.
Since December 10, 2005, foreign investors that have operated in the advertising industry outside
of China as their main business for at least three years have been permitted to directly own a 100%
interest in advertising companies in China. Notwithstanding the aforementioned provisions, Hong
Kong and Macao investors that have operated in the advertising industry have
been permitted to directly own a 100% interest in advertising companies in China starting from
January 1, 2004, without restriction on main business and operation years compared to other foreign
investors.
30
PRC laws and regulations prohibit the transfer of any approvals, licenses or permits, including
business licenses containing a scope of business that permits engaging in the advertising industry.
Therefore, we, through Jieli Consulting, entered into contractual arrangements with Jingli
Shanghai.
We believe that there are uncertainties regarding the interpretation and application of current and
future PRC laws and regulations. If the PRC government determines that the agreements establishing
the structure for operating our PRC advertising business do not comply with PRC government
restrictions on foreign investment in the advertising industry, we could be subject to severe
penalties. See Risk Factors Risks Related to Doing Business in the Peoples Republic of China
If the PRC government determines that the contractual arrangements that establish the structure
for operating SearchMedias China business do not comply with applicable PRC laws and regulations,
SearchMedia could be subject to severe penalties.
Regulation of Advertising Services
The principal regulations governing advertising businesses in China include:
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PRC Advertising Law (1994); |
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The Advertising Administrative Regulations (1987); and |
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The Implementing Rules for the Advertising Administrative Regulations (2004). |
Business License for Advertising Companies
PRC advertising laws and regulations stipulate that companies engaging in advertising activities
must obtain from the SAIC or its local branch a business license that specifically includes
operation of an advertising business in its scope of business. Furthermore, if a company sets up a
new site outside of the location where it is registered to conduct advertising business, the
company shall register with the local SAIC where the site is located to obtain a branch business
license for the site. Companies and branches conducting advertising activities without such
licenses may be subject to penalties, including fines, confiscation of advertising income, orders
to cease advertising operations, and revocation of their business license or other licenses. The
business license of an advertising company is valid for the duration of its existence, unless the
license is suspended or revoked due to a violation of any relevant law or regulation. Ad-Icon
Shanghai, Jingli Shanghai and their subsidiaries and branches have obtained such business licenses
from the local branch of the SAIC as required by the existing PRC regulations.
Advertising Content
PRC advertising laws and regulations set forth certain content requirements for advertisements in
China, which include prohibitions on misleading content, superlative wording, socially
destabilizing content or content involving obscenities, superstition, violence, discrimination or
infringement of the public interest, among others. Advertisements for anesthetic, psychotropic,
toxic or radioactive drugs are also prohibited. The dissemination of tobacco advertisements via
media is prohibited, as is the display of tobacco advertisements in any waiting lounge, theater,
cinema, conference hall, stadium or other public area. There are also specific restrictions and
requirements regarding advertisements that relate to matters such as patented products or
processes, pharmaceuticals, medical instruments, agrochemicals, foodstuff, alcohol and cosmetics.
In addition, all advertisements relating to pharmaceuticals, medical instruments, agrochemicals and
veterinary pharmaceuticals advertised through out-of-home, radio, film, television, print and other
forms of media, together with any other advertisements which are subject to censorship by
administrative authorities according to relevant laws and administrative regulations, must be
submitted to the relevant administrative authorities for content approval prior to dissemination.
We do not believe that advertisements containing content subject to such restriction or censorship
comprise a material portion of the advertisements displayed on our media format.
31
PRC advertising laws and regulations require advertisers, advertising operators and advertising
distributors to ensure that the content of the advertisements they prepare or distribute are true
and in full compliance with applicable law. In providing advertising services, advertising
operators and advertising distributors must review the prescribed supporting documents provided by
advertisers for advertisements and verify that the content of the advertisements comply with
applicable PRC laws and regulations. In addition, prior to distributing advertisements for certain
products that are subject to government censorship and approval, advertising distributors are
obligated to ensure that such censorship has been performed and approval has been obtained.
Violation of these regulations may result in penalties, including fines, confiscation of
advertising income, orders to cease dissemination of the advertisements and orders to publish an
advertisement correcting the misleading information. In circumstances involving serious violations,
the SAIC or its local branch may revoke the violators licenses or permits for advertising business
operations. Furthermore, advertisers, advertising operators or advertising distributors may be
subject to civil liability if they infringe on the legal rights and interests of third parties in
the course of their advertising business.
Outdoor Advertising
The Advertising Law stipulates that the exhibition and display of outdoor advertisements must not:
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utilize traffic safety facilities or traffic signs; |
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impede the use of public facilities, traffic safety facilities or traffic signs; |
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obstruct commercial or public activities or create an eyesore in urban areas; |
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be placed in restrictive areas near government offices, cultural landmarks or
historical or scenic sites; or |
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be placed in areas prohibited by the local governments from having outdoor
advertisements. |
In addition to PRC Advertising Law, the SAIC promulgated the Outdoor Advertising Registration
Administrative Regulations on December 8, 1995, as amended on December 3, 1998 and May 22, 2006,
respectively, which govern the outdoor advertising industry in China.
Outdoor advertisements in China must be registered with the local SAIC before dissemination. The
advertising distributors are required to submit a registration application form and other
supporting documents for registration. If the application complies with the requirements, the local
SAIC will issue an Outdoor Advertising Registration Certificate for such advertisement. The
content, format, specifications, periods and locations of dissemination of the outdoor
advertisement must be submitted for filing with the local SAIC and shall not be changed without
approval. After the outdoor advertisement is registered, if it is not displayed within three
months, an application shall be filed with the original registration authorities for cancellation.
Outdoor advertising facilities must be safely installed and should be maintained on a regular basis
to ensure safety and neatness. Advertising content must be true and lawful and not contain any
misleading statements.
Local authorities have also issued detailed regulations on operation of outdoor advertising that
may prohibit outdoor advertisements in certain areas or through certain facilities or may require
that concession rights be obtained through a bidding process for public spaces. In cities where we
base our operations, including Shanghai, Beijing, Qingdao, Hangzhou, and Shenyang, the placement
and installation of outdoor advertising facilities are subject to municipal zoning requirements and
governmental approvals. Each outdoor advertising facility requires a license for placement and
installation with specific terms of use for a certain number of year.
Regulations on Dividend Distribution
The principal regulations governing dividend distributions of wholly foreign-owned companies
include:
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The Company Law of the PRC (1993), as amended in 2005; |
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Wholly Foreign-Owned Enterprise Law (1986), as amended in 2000; and |
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Wholly Foreign-Owned Enterprise Law Implementing Rules (1990), as amended in 2001. |
Under these regulations, wholly foreign-owned companies in the PRC may pay dividends only out of
their accumulated profits as determined in accordance with PRC accounting standards. In addition, a
wholly foreign-owned company is required to set aside at least 10% of its after-tax profit based on
PRC accounting standards each year to its reserve fund until the accumulated amount of such fund
reaches 50% of its registered capital. At the discretion of a wholly foreign-owned company, it may
allocate a portion of its after-tax profits, based on PRC accounting standards, to its staff
welfare and bonus fund. The reserve fund and staff welfare and bonus fund are not distributable as
cash dividends. Under the relevant PRC law, no net assets other than the accumulated after-tax
profits can be distributed as dividends.
Regulations on Trademarks
The PRC Trademark Law and the PRC Trademark Implementing Regulations provide the basic legal
framework for the regulation of trademarks in China, and the SAIC is responsible for the
registration and administration of trademarks throughout the country. The PRC has adopted a
first-to-file principle with respect to trademarks.
PRC law provides that each of the following acts constitutes infringement of the exclusive right to
use a registered trademark:
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use of a trademark that is identical with or similar to a registered trademark in
respect of the same or similar commodities without the authorization of the trademark
registrant; |
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sale of commodities infringing upon the exclusive right to use the trademark; |
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counterfeiting or making, without authorization, representations of a registered
trademark of another person, or sale of such representations of a registered trademark; |
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changing a registered trademark and selling products on which the altered registered
trademark is used without the consent of the trademark registrant; and |
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otherwise infringing upon the exclusive right of another person to use a registered
trademark. |
In the PRC, a trademark owner who believes the trademark is being infringed has three options:
Option 1: The trademark owner can provide his trademark registration certificate and other relevant
evidence to the SAIC or its local branches, which can, in its discretion, launch an investigation.
The SAIC may take actions such as ordering the infringer to immediately cease the infringing
behavior, seizing and destroying any infringing products and representations of the trademark in
question, closing the facilities used to manufacture the infringing products or imposing a fine. If
the trademark owner is dissatisfied with the SAICs decision, he may, within 15 days of receiving
such decision, institute civil proceedings in court.
Option 2: The trademark owner may institute civil proceedings directly in court. Civil remedies for
trademark infringement include:
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injunctions; |
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requiring the infringer to take steps to mitigate the damage (i.e., publish notices
in newspapers); and |
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damages which are measured by either the gains acquired by the infringer from the
infringement, or the losses suffered by the trademark owner, including expenses
incurred by the trademark owner to claim and litigate such infringement. If it is
difficult to determine the gains acquired by
the infringer from the infringement, or the losses suffered by the trademark owner,
the court may elect to award compensation of not more than RMB500,000. |
33
Option 3: If the trademark infringement is so serious as to constitute a crime, the trademark owner
may file a complaint with the police, and the infringer is subject to investigation for criminal
liability in accordance with PRC laws.
SAFE Regulations on Offshore Investment by PRC Residents and Employee Stock Options
On October 21, 2005, the SAFE issued a titled entitled Circular on several issues concerning
foreign exchange regulation of corporate finance and roundtrip investments by PRC residents through
special purpose companies incorporated overseas, or Circular No. 75, which became effective as of
November 1, 2005.
According to Circular No. 75:
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prior to establishing or assuming control of an offshore company for the purpose of
financing that offshore company with assets or equity interests in an onshore
enterprise in the PRC, each PRC resident, whether a natural or legal person, must
complete the overseas investment foreign exchange registration procedures with the
relevant local SAFE branch; |
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an amendment to the registration with the local SAFE branch is required to be filed
by any PRC resident that directly or indirectly holds interests in that offshore
company upon either (1) the injection of equity interests or assets of an onshore
enterprise to the offshore company, or (2) the completion of any overseas fund raising
by such offshore company; and |
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an amendment to the registration with the local SAFE branch is also required to be
filed by such PRC resident when there is any material change involving a change in the
capital of the offshore company, such as (1) an increase or decrease in its capital,
(2) a transfer or swap of shares, (3) a merger or division, (4) a long term equity or
debt investment, or (5) the creation of any security interests over the relevant assets
located in China. |
Moreover, Circular No. 75 applies retroactively. As a result, PRC residents who have established or
acquired control of offshore companies that have made onshore investments in the PRC before
issuance of Circular No. 75 are required to complete the relevant overseas investment foreign
exchange registration procedures by March 31, 2006. Failure to comply with the foreign exchange
registration procedures may result in restrictions being imposed on the foreign exchange activities
of the relevant onshore company, including the payment of dividends and other distributions to its
offshore parent or affiliate and the capital inflow from the offshore entity, and may also subject
relevant PRC residents and onshore company to penalties under PRC foreign exchange administration
regulations.
On January 5, 2007, the SAFE issued the Implementing Rules of the Administrative Measures for
Individual Foreign Exchange, or the Individual Foreign Exchange Rule, which, among other things,
specifies approval requirements for a PRC citizens participation in the employee stock holding
plans or stock option plans of an overseas publicly-listed company. On March 28, 2007, the SAFE
issued the Processing Guidance on Foreign Exchange Administration of Domestic Individuals
Participating in Employee Stock Holding Plan or Stock Option Plan of Overseas Listed Company, or
the Stock Option Rule.
According to the Stock Option Rule, if a PRC domestic individual participates in any employee stock
holding plan or stock option plan of an overseas listed company, a PRC domestic agent or the PRC
subsidiary of such overseas listed company must, among others things, file, on behalf of such
individual, an application with the SAFE to obtain approval for an annual allowance with respect to
the purchase of foreign exchange in connection with stock purchase or stock option exercise as PRC
domestic individuals may not directly use overseas funds to purchase stocks or exercise stock
options. Such PRC individuals foreign exchange income received from the sale of stocks and
dividends distributed by the overseas listed company and any other income shall be fully remitted
into a collective foreign currency account in PRC opened and managed by the PRC subsidiary of the
overseas listed company or the PRC agent before distributing them to such individuals.
34
Our PRC citizen employees who may be granted stock options, restricted share awards of the Company,
or PRC optionees, will be subject to the Stock Option Rule. If we or our PRC optionees fail to
comply with the Individual Foreign Exchange Rule and the Stock Option Rule, we and/or our PRC
optionees may be subject to fines and other legal sanctions and we may be prevented from granting
additional options or other awards of the Company to our PRC employees.
In addition, the General Administration of Taxation has issued certain circulars concerning
employee stock options. Pursuant to these circulars, our employees working in China who exercise
stock options will be subject to PRC individual income tax. Our PRC subsidiaries have obligations
to file documents related to employee stock options with relevant tax authorities and withhold
individual income taxes of those employees who exercise their stock options. If our employees fail
to pay and we fail to withhold their income taxes, we may face sanctions imposed by tax authorities
or any other PRC government authorities.
Regulation on Overseas Listing
In August 2006, six PRC regulatory agencies promulgated the Rules on Acquisition of Domestic
Enterprises by Foreign Investors, or the M&A Rules, regulating the mergers and acquisitions of
domestic enterprises by foreign investors. The M&A Rules became effective in September 2006, and
was amended on June 22, 2009, and the rules, among other things, purport to require that an
offshore special purpose vehicle, or SPV, formed for listing purposes and controlled directly or
indirectly by PRC companies or individuals shall obtain the approval of the CSRC prior to the
listing and trading of such SPVs securities on an overseas stock exchange, especially in the event
that the SPV acquires shares of or equity interests in the PRC companies in exchange for the shares
of offshore companies. On September 21, 2006, the CSRC issued a clarification that sets forth the
criteria and process for obtaining any required approval from the CSRC.
There is still uncertainty as to how the new regulations will be interpreted or implemented or
whether prior approval from CSRC is required under the new regulations for the listing and trading
of our shares on NYSE Amex. See Risk Factors Risk Related to Doing Business in the Peoples
Republic of China The approval of the China Securities Regulatory Commission, or the CSRC, may be
required under a recently adopted PRC regulation. The regulation also establishes more complex
procedures for acquisitions conducted by foreign investors that could make it more difficult for
SearchMedia to grow through acquisitions.
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C. |
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Organizational Structure |
The following diagram illustrates our corporate structure and the place of formation and
affiliation of each of our subsidiaries as of the date of this Annual Report on Form 20-F.
35
refers to equity control
Ad-Icon Company Limited (HK) (17)
Shanghai Botang Advertising Co. Ltd (4)
Shanghai Haiya Advertising Co. Ltd (5)
Tianjin Shengshitongda Advertising Creativity Co. Ltd (12)
Shanghai Jincheng Advertising Co. Ltd (13)
Shaanxi Xinshichuang Advertising Planning Co. Ltd (14)
Qingdao Kaixiang Advertising Co. Ltd.(10)
Wenzhou Rigao Advertising Co. Ltd (11)
Wuxi Ruizhong Advertising Co. Ltd (7)
Beijing Wanshuizhiyuan Advertising Co. Ltd (6)
Offshore
Onshore
Zhejiang Continental Advertising Co. Ltd (9)
Jieli Network Technology Development (Shanghai)Co. Ltd (2)
Shenyang Jingli Advertising Co. Ltd (8)
SearchMedia Holdings Limited (NYSE AMEX: IDI)
Great Talent
Holdings Ltd. (16)
refers to contractual control
Changsha Jingli Advertising Co. Ltd (15)
SearchMedia International Limited
Shanghai Jingli Advertising
Co. Ltd (3)
Ad-Icon Advertising (Shanghai) Co. Ltd (18)
Jieli Investment Management Consulting (Shanghai)Co. Ltd (1) |
36
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(1) |
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Jieli Investment Management Consulting (Shanghai) Co., Ltd., or Jieli Consulting, a Chinese
limited liability company, 100% owned by SearchMedia International. |
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(2) |
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Jieli Network Technology Development (Shanghai) Co., Ltd, or Jieli Network, a Chinese limited
liability company, 100% owned by SearchMedia International. |
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(3) |
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Shanghai Jingli Advertising Co., Ltd, or Jingli Shanghai, a Chinese limited liability
company, 60% owned by Ms. Qinying Liu, a Chinese citizen, and 40% owned by Ms. Le Yang, a
Chinese citizen. |
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(4) |
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Shanghai Botang Advertising Co., Ltd, or Shanghai Botang, a Chinese limited liability
company, 100% owned by Ad-Icon Shanghai. |
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(5) |
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Shanghai Haiya Advertising Co., Ltd, or Shanghai Haiya, a Chinese limited liability company,
100% owned by Ad-Icon Shanghai. |
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(6) |
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Beijing Wanshuizhiyuan Advertising Co., Ltd, or Beijing Wanshuizhiyuan , a Chinese limited
liability company, 100% owned by Ad-Icon Shanghai. |
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(7) |
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Wuxi Ruizhong Advertising Co., Ltd., or Wuxi Ruizhong, a Chinese limited liability company,
100% owned by Ad-Icon Shanghai. |
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(8) |
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Shenyang Jingli Advertising Co., Ltd., or Shenyang Jingli, a Chinese limited liability
company, 100% owned by Ad-Icon Shanghai. |
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(9) |
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Zhejiang Continental Advertising Co, Ltd., or Zhejiang Continental, a Chinese limited
liability company, 100% owned by Ad-Icon Shanghai. |
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(10) |
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Qingdao Kaixiang Advertising Co., Ltd., or Qingdao Kaixiang, a Chinese limited liability
company, 100% owned by Jingli Shanghai. |
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(11) |
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Wenzhou Rigao Advertising Co., Ltd., or Wenzhou Rigao, a Chinese limited liability company,
100% owned by Jingli Shanghai. |
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(12) |
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Tianjin Shengshitongda Advertising Creativity Co., Ltd, or Tianjin Shengshitongda, a Chinese
limited liability company, 100% owned by Jingli Shanghai. |
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(13) |
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Shanghai Jincheng Advertising Co., Ltd, or Shanghai Jincheng, a Chinese limited liability
company, 100% owned by Jingli Shanghai. [inactive] |
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(14) |
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Shaanxi Xinshichuang Advertising Planning Co., Ltd., or Shaanxi Xinshichuang, a Chinese
limited liability company, 100% owned by Jingli Shanghai. [inactive] |
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(15) |
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Changsha Jingli Advertising Co., Ltd., or Changsha Jingli, a Chinese limited liability
company, 100% owned by Jingli Shanghai. [inactive] |
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(16) |
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Great Talent Holdings Limited, or Great Talent, a company incorporated under the laws of Hong
Kong, 100% owned by SearchMedia International. [inactive] |
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(17) |
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Ad-Icon Company Limited, or Ad-Icon, a company incorporated under the laws of Hong Kong, 100%
owned by SearchMedia International. |
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(18) |
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Ad-Icon Advertising (Shanghai) Co., Ltd., or Ad-Icon Shanghai, a Chinese limited liability
company, 100% owned by Ad-Icon. |
37
Most of our advertising business in China is currently provided through Ad-Icon Shanghai and its
subsidiaries, with a portion of our operations provided through our contractual arrangements with
our consolidated PRC variable interest entities, namely, Jingli Shanghai, and its subsidiaries. Our
consolidated PRC variable interest entities hold the requisite licenses to provide advertising
services in China. Our subsidiary, Jieli Consulting, has entered into a series of contractual
arrangements with Jingli Shanghai and its subsidiaries and shareholders under which:
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we are able to exert effective control over our consolidated PRC variable interest
entities; |
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a substantial portion of the economic benefits of our consolidated PRC variable
interest entities are transferred to us; and |
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we have an exclusive option to purchase all or part of the equity interests in our
consolidated PRC variable interest entities in each case when, and to the extent,
permitted by PRC law. |
Contractual Arrangements with Jingli Shanghai and its Shareholders
Jieli Consultings relationships with Jingli Shanghai and its shareholders are governed by a series
of contractual arrangements. Under PRC laws, each of Jingli Shanghai and Jieli Consulting is an
independent legal person and neither of them is exposed to liabilities incurred by the other party.
Other than pursuant to the contractual arrangements between Jingli Shanghai and Jieli Consulting,
Jingli Shanghai is not required to transfer any other funds generated from its operations to Jieli
Consulting. On September 10, 2007, Jieli Consulting entered into contractual arrangements, and in
April 2009, the contracts were restated by relevant parties as follows:
Agreements That Provide Effective Control over Our Affiliated Entities
Loan Agreement. Pursuant to the loan agreement between Jieli Consulting and the shareholders of
Jingli Shanghai, namely Ms. Qinying Liu and Ms. Le Yang, Jieli Consulting granted an interest-free
loan to each shareholder. The principal amounts of the loans to Ms. Qinying Liu and Ms. Le Yang
were $6.7 million and $4.5 million, respectively, in proportion with their respective original
capital contributions to Jingli Shanghai. The term of the loan agreement is 10 years and may be
extended for another ten years automatically unless Jieli Consulting terminates the agreement in a
written form three months before the expiration date of the agreement. The loan can be repaid only
with the proceeds from the transfer of the shareholders equity interest in Jingli Shanghai to
Jieli Consulting or another person designated by Jieli Consulting at the minimum price permitted by
then applicable PRC law. Jieli Consulting may accelerate the loan repayment upon certain events,
including if a shareholder dies, loses action capacity, no longer works for Jingli Shanghai or any
affiliate of Jingli Shanghai, or commits a crime, or if Jieli Consulting so informs a shareholder
as permitted by then applicable PRC law.
Equity Pledge Agreement. Pursuant to the equity pledge agreement among Jieli Consulting, Jingli
Shanghai and the shareholders of Jingli Shanghai, namely Ms. Qinying Liu and Ms. Le Yang, each
shareholder has pledged all of her equity interest in Jingli Shanghai to Jieli Consulting to
guarantee the performance of the shareholders and Jingli Shanghais obligations under the loan
agreement, the exclusive call option agreement and the exclusive technical consulting and service
agreement. If Jingli Shanghai or any of its shareholders breaches its respective contractual
obligations under these agreements, Jieli Consulting, as pledgee, will be entitled to certain
rights, including the right to sell the pledged equity interests. The shareholders agreed not to
transfer, sell, pledge, dispose of or otherwise create any new encumbrance on their equity interest
in Jingli Shanghai without the prior written consent of Jieli Consulting. The equity pledge
agreement will expire after Jingli Shanghai and its shareholders fully perform their respective
obligations under the loan agreement, the exclusive call option agreement and the exclusive
technical consulting and service agreement.
Exclusive Call Option Agreement. Under the exclusive call option agreement among Jingli Shanghai,
the shareholders of Jingli Shanghai and Jieli Consulting, Jingli Shanghai and its shareholders
irrevocably granted Jieli Consulting or its designated person an exclusive option to purchase, when
and to the extent permitted under then applicable PRC law, all or part of the equity interests in
Jingli Shanghai. The exercise price for all of the equity interests of Jingli Shanghai is the
minimum price permitted by then applicable PRC law or a higher price determined by Jieli
Consulting. Unless this exclusive call option agreement is terminated on an earlier date as agreed
upon by
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the parties to the agreement, the term of the agreement is ten years and may be extended for
another ten years automatically unless Jieli Consulting terminates the agreement in writing three
months before the expiration date of the agreement. Pursuant to this call option agreement,
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The shareholders of Jingli Shanghai may not change the articles of association,
bylaws, registered capital or shareholding structure of Jingli Shanghai, without the
prior written consent of Jieli Consulting; |
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Jingli Shanghai may not acquire or merge with any third parties, or invest in any
third parties, without the prior written consent of Jieli Consulting; |
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Jingli Shanghai may not generate, delegate, guarantee for, or allow any existing
indebtedness without the prior consent or confirmation of Jieli Consulting, except in
the ordinary courses of business; |
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Jingli Shanghai may not enter into any material contracts with the contractual price
exceeding RMB1.0 million without the prior written consent of Jieli Consulting, except
in the ordinary courses of business; |
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Jingli Shanghai may not grant loans or guaranties to any third parties, without the
prior written consent of Jieli Consulting; |
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Jingli Shanghai may not transfer, pledge, have caused any encumbrances, or otherwise
dispose of any shares of Jingli Shanghai, without the prior written consent of Jieli
Consulting; |
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Jingli Shanghai may not declare or pay any dividends without the prior written
consent of Jieli Consulting; upon the request of Jieli Consulting, Jingli Shanghai
shall declare and pay all distributable dividends to its shareholders; and |
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The shareholders of Jingli Shanghai may only appoint the persons nominated by Jieli
Consulting as directors of Jingli Shanghai, upon request of Jieli Consulting. |
Power of Attorney. The shareholders of Jingli Shanghai have executed a power of attorney to Mr.
Guojun Liang, which irrevocably authorizes Mr. Liang (who is the husband of Ms. Qinying Liu) to
vote as such shareholders attorney-in-fact on all of the matters of Jingli Shanghai requiring
shareholder approval.
Agreements That Transfer Economic Benefits to Jieli Consulting
Exclusive Technical Consulting and Service Agreement. Pursuant to the exclusive technical
consulting and service agreement between Jingli Shanghai and Jieli Consulting, Jieli Consulting has
the exclusive and irrevocable right to provide to Jingli Shanghai technical consulting services
related to the business operations of Jingli Shanghai. Jingli Shanghai agrees to pay annual
technical service fees to Jieli Consulting based on the actual services provided by Jieli
Consulting. If Jingli Shanghai does not generate net profits in a fiscal year, Jieli Consulting
agrees not to charge services for that year. The term of this agreement is 10 years commencing on
September 10, 2007 and may be extended automatically for another 10 years unless Jieli Consulting
terminates the agreement by a written notice three months before the expiration date.
We believe that there are uncertainties regarding the interpretation and application of current and
future PRC laws and regulations. If the PRC government determines that the agreements that
establish the structure for operating our PRC advertising network businesses do not comply with
applicable restrictions on foreign investment in the advertising industry, we could be subject to
severe penalties including being prohibited from continuing our operation. See Risk Factors
Risks Relating to Doing Business in the Peoples Republic of China If the PRC government
determines that the contractual arrangements that establish the structure for operating our China
business do not comply with applicable PRC laws and regulations, we could be subject to severe
penalties.
39
Since 2008, SearchMedia International has rapidly expanded its advertising network through the
acquisition of the following advertising companies in China and Hong Kong:
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In January 2008, Jingli Shanghai acquired 100% of the equity interest in Shaanxi
Xinshichuang Advertising Planning Co., Ltd., a Chinese company primarily engaged in
elevator advertising business; |
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In January 2008, Jingli Shanghai acquired 100% of the equity interest in Qingdao
Kaixiang Advertising Co., Ltd., a Chinese company primarily engaged in outdoor
billboard advertising business; |
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In January 2008, Jingli Shanghai acquired 100% of the equity interest in Shanghai
Jincheng Advertising Co., Ltd., a Chinese company operating advertisings in cafeterias
of office buildings; |
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In January 2008, Jingli Shanghai acquired 100% of the equity interest in Beijing
Wanshuizhiyuan Advertising Co., Ltd., a Chinese company primarily engaged in outdoor
billboard advertising business; |
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In January 2008, Jingli Shanghai acquired 100% of the advertising business of
Shenyang Xicheng Advertising Co., Ltd., a Chinese company primarily engaged in outdoor
billboard advertising business. Jingli Shanghai subsequently transferred such business
and related assets into Shenyang Jingli Advertising Co., Ltd., a newly incorporated
Chinese company; |
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In February 2008, Jingli Shanghai acquired 100% of the equity interest in Shanghai
Haiya Advertising Co., Ltd., a Chinese company operating rapid transit advertising
business; |
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In April 2008, Jingli Shanghai acquired 100% of the advertising business of Beijing
Youluo Advertising Co., Ltd., a Chinese company primarily engaged in outdoor billboard
advertising business. Jingli Shanghai subsequently transferred such business and
related assets into Shanghai Botang Advertising Co., Ltd., a newly incorporated Chinese
company; |
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In April 2008, Jingli Shanghai acquired 100% of the equity interest in Tianjin
Shengshitongda Advertising Creativity Co., Ltd., a Chinese company operating elevator
advertising business; |
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In April 2008, SearchMedia International acquired 100% of the equity interest in
Ad-Icon Company Limited, a Hong Kong company operating outdoor billboard advertising
business; |
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In July 2008, Jingli Shanghai acquired 100% of the equity interest in Changsha
Jingli Advertising Co., Ltd., a Chinese company operating elevator advertising
business; |
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In July 2008, Jingli Shanghai acquired 100% of the equity interest in Wenzhou Rigao
Advertising Co., Ltd., a Chinese company operating elevator advertising business; |
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In July 2008, Jingli Shanghai acquired 100% of the equity interest in Wuxi Ruizhong
Advertising Co., Ltd., a Chinese company operating elevator advertising business; and |
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In May 2010, Ad-Icon Shanghai acquired 100% of the equity interest in Zhejiang
Continental Advertising Co., Ltd., a Chinese company primarily engaged in the outdoor
billboard advertising business. |
On December 11, 2009, Ad-Icon Company Limited, or Ad-Icon, established Ad-Icon Advertising
(Shanghai) Co., Ltd., a wholly-owned subsidiary in China, which is permitted to operate advertising
businesses in China. In 2010, Ad-Icon Advertising (Shanghai) Co., Ltd., or Ad-Icon Shanghai,
acquired 100% of the equity interests in Zhejiang Continental Advertising Co, Ltd. Furthermore,
100% of the equity interests in Shanghai Botang Advertising Co.,
Ltd., Shanghai Haiya Advertising Co., Ltd., Beijing Wanshuizhiyuan Advertising Co., Ltd., Wuxi
Ruizhong Advertising Co., Ltd. and Shenyang Jingli Advertising Co., Ltd acquired by Jingli Shanghai
have been transferred to Ad-Icon Shanghai. As of the date of this Annual Report on Form 20-F,
Jingli Shanghai still holds 100% of the equity interests of the other Chinese affiliates mentioned
above.
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We have been advised by our PRC legal counsel, however, that there are substantial uncertainties
regarding the interpretation and application of current and future PRC laws and regulations.
Accordingly, the PRC regulatory authorities may in the future take a view that is contrary to the
above opinion of our PRC legal counsel. We have been further advised by our PRC counsel that if
the PRC government finds that the agreements that establish the structure for operating our PRC
media related businesses do not comply with PRC government restrictions on foreign investment in
the media industry, we could be subject to severe penalties including being prohibited from
continuing our operations. See Item 3.D. Key information Risk factors Risks related to the
regulation of our business and to our structure.
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D. |
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Property, Plant and Equipment |
Our headquarters are located at 13F, Central Modern Building, 468 Xin Hui Road, Putuo District,
Shanghai, China, 200060, where we lease approximately 880 square meters of office space. As of
December 31, 2010, our offices in 13 cities occupy an aggregate of approximately 4150 square meters
of leased space.
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Item 4A |
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Unresolved Staff Comments |
Not applicable.
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Item 5 |
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Operating and Financial Review and Prospects |
You should read the following discussion in conjunction with our consolidated financial statements
and related notes included in this Annual Report on Form 20-F. This Annual Report on Form 20-F
contains certain forward-looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995 (PSLRA), Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended, (the
Exchange Act), about our expectations, beliefs, or intentions regarding our business, financial
condition, results of operations, strategies, or prospects. You can identify forward-looking
statements by the fact that these statements do not relate strictly to historical or current
matters. Rather, forward-looking statements relate to anticipated or expected events, activities,
trends, or results as of the date they are made. Because forward-looking statements relate to
matters that have not yet occurred, these statements are inherently subject to risks and
uncertainties that could cause our actual results to differ materially from any future results
expressed or implied by the forward-looking statements. Many factors could cause our actual
activities or results to differ materially from the activities and results anticipated in
forward-looking statements. These factors include those contained in Part I, Item 3.D Key
Information Risk Factors of this Annual Report on Form 20-F. We do not undertake any obligation
to update forward-looking statements. We intend that all forward-looking statements be subject to
the safe harbor provisions of PSLRA. These forward-looking statements are only predictions and
reflect our views as of the date they are made with respect to future events and financial
performance.
Overview
We are a multi-platform media company operating primarily in the out-of-home advertising industry.
Out-of-home advertising typically refers to advertising media in public places, such as billboards,
in-elevator displays, street furniture and transit area displays. We are one of the largest
operators of integrated outdoor billboard and in-elevator advertising networks in China. Our core
outdoor billboard and in-elevator platforms are complemented by our transit advertising platform,
which together enables us to provide multi-platform, one-stop shop services for our local,
national and international clients.
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Targeting the rapidly growing number of urban and increasingly affluent consumers in China, we
deploy our advertising network across the following select media platforms:
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Outdoor billboard platform. As of December 31, 2010, we operate a network of about
1,000 high-impact billboards with over 600,000 square feet of surface display area in
15 cities, including Beijing, Hong Kong, Qingdao, Shanghai, Shenyang, Shenzhen,
Guangzhou, Hangzhou, Chongqing and Chengdu. Our billboards are mostly deployed in
commercial centers and other desirable areas with heavy vehicle or foot traffic. |
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In-elevator platform. As of December 31, 2010, our network of about 150,000 printed
and digital poster frames delivered targeted advertising messages inside elevators to
captive audiences in high-rise residential and office buildings in 70 major cities in
China. The in-elevator platform is characterized by its low cost structure and minimal
capital requirements and targets the affluent urban population that is highly desired
by advertisers. |
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Transit advertising platform. As of December 31, 2010, we are an agency for subway
advertising and a bus advertising network of 5,000 buses in Beijing. |
Our multi-platform offerings are cross-marketed by a sales force located in 15 offices across
China. Our advertising clients are from industries ranging from telecommunications, insurance and
banking, to automobile, real estate, electronics and fast moving consumer goods.
We expect to continue expanding our billboard holdings through acquisitions and organic expansion
while utilizing organic growth to grow our elevator and transit holdings, and capitalize on the
growth opportunities in Chinas out-of-home advertising and other emerging media markets.
Industry Trends and Uncertainties
Operating results are affected by these factors that impact the out-of-home advertising industry in
China:
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Growth of the PRC economy and the advertising industry. The growth of the PRC
economy affects the size and growth rate of the advertising industry in China. As the
advertising industry is typically sensitive to general economic conditions, any
slowdown in the economy, such as the recent worldwide economic downturn, could directly
and adversely affect the overall advertising spending in China by multinational and
domestic advertisers. The amount and timing of collection of advertising fees from
advertisers may also be negatively impacted as a result, which could in turn affect our
liquidity and results of operations. |
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Advertising spending and budget cycle of advertisers. Advertising spending and
budget cycle of advertisers will affect the amount and timing of demand for our service
offerings. In a contracted economy, the budget size for advertising may be reduced.
Advertisers may have shorter budget cycles, may contract for shorter-term advertising
promotions and may seek a media platform with higher average returns on their
advertising spending. |
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Advertisers marketing strategy and budget. Our revenues depend on advertising
spending budgeted by our clients for out-of-home advertising, including offerings
through our outdoor billboard, in-elevator displays, street furniture and transit
advertising platforms. The level of acceptance of our platforms by advertisers and the
value of its advertising network relative to its low cost, as perceived by our
advertisers, affect our business growth. |
|
|
|
|
Competition and pricing pressure. The level of competition in the out-of-home
advertising market from existing operators and new market entrants for clients and for
media assets could affect opportunities for growth, influence prices that we could
charge for our advertising services, and affect the leasing cost of advertising space.
We compete for advertising clients generally on the basis of network coverage, service
quality, technology, media offerings, services and brand name. |
42
|
|
|
Seasonality and One-Time Events. Although we do not experience significant
seasonality in our business, advertising spending is affected by holidays and one-time
events. Advertising spending
for outdoor media typically decreases during the Chinese New Year, which occurs in
the first calendar quarter of each year, and increases in the last calendar quarter. |
|
|
|
|
Laws regulating advertising in the PRC. A change in PRC law or government practice
regulating the advertising industry in general and our service platforms in particular
could affect our results of operations, in terms of compliance costs and scope of
advertising services offered to clients. |
Company Specific Trends and Uncertainties
Our operating results are also directly affected by company-specific factors, including the
following:
|
|
|
Ability to maintain market position and expand into new cities. The market for
out-of-home advertising services is relatively new and rapidly evolving, and as a
multi-platform media company with a presence in major cities in China, we compete with
different players across our platforms and cities of operation. For our in-elevator
advertising platform, we compete primarily with other nationwide operators of
in-elevator poster frame advertising. We may face competition in individual cities from
local and regional players and new entrants into the local and regional market from
time to time. For our billboard advertising platform, we compete against mostly local
or regional outdoor billboard owners and operators, as the outdoor billboard market in
China is largely fragmented. For our transit advertising platform, we compete against
other operators of subway light box and bus-body advertising. We also compete for the
advertising budget of advertisers with other operators of out-of-home advertising and
operators of other advertising media including television, radio, newspapers, magazines
and the Internet. Our continued ability to maintain our market position is central to
our ability to attract new clients, expand relationships with site owners and managers
and increase our revenues. |
|
|
|
|
Ability to expand client base and increase the number of advertising contracts and
average revenues per contract. Our ability to expand our client base and increase the
number of advertising contracts and average revenues per contract is a key driver of
our revenue growth. We believe our extensive advertising network across multiple media
platforms allows us to act as a one-stop shop for advertising clients that seek
nationwide distribution of advertising content across multiple advertising channels,
including outdoor billboards, elevators and subway stations. |
|
|
|
|
Ability to sign and extend site leases for lower rentals. Our ability to generate
revenues and increase profitability from advertising sales depends largely on our
ability to provide a large network of our media products across media platforms at
desirable locations on commercially advantageous terms. The effectiveness of our
network also depends on the cooperation of site owners and managers to allow us to
install the desired types of poster frames at the desired spots on their properties
and, for in-elevator advertising to keep the elevators in operation and accessible to
the viewing public. In some cases, we have not maintained good relations and some of
our leases have been terminated or may be terminated in the future. |
|
|
|
|
Ability to integrate acquired companies. We acquired a number of advertising
businesses in 2008 in 2010. We have been in the process of integrating and centralizing
the operational accounting, legal, human resource and administrative functions of the
acquired companies. Due to certain corporate issues and unpaid earnout obligations,
such efforts, to date, have not fully met our expectations which create a substantial
risk that we may not be able to fully realize the anticipated benefits of these
acquisitions. The extent to which we are able to successfully integrate the acquired
companies into our business, in terms of sales and marketing, client service, growth
strategy and corporate culture, will impact our results of operations. |
|
|
|
|
Ability to shorten accounts receivable collection period. As is consistent with the
payment terms and collection practice of the advertising industry in China, the
collection period of our accounts receivable is relatively long, which generally range
from three months to six months or longer from the invoicing date. Relative to direct
advertising clients, the collection period is longer for
accounts receivable from advertising agency clients. We expect such practice to
continue in the foreseeable future. The onset and deepening of the recent global
financial and economic crises could negatively impact the cash flows of our
multinational and local clients and, in turn, the amount and timing of the
collection of accounts receivable from them. |
43
|
|
|
Ability to cross-sell. Our ability to increase revenues by effectively leveraging
our multi-platform advertising network will be determined by our ability to integrate
our sales efforts and successfully implementing cross-selling sales initiatives. To
further implement cross-selling initiatives, we plan to employ an integrated sales
approach under which we will coordinate the sales and maintenance teams across
platforms and geographic regions and provide them with the proper incentive structure
to encourage more cohesive and consistent services to our clients and a heightened
awareness of opportunities to cross-sell our media offerings while optimizing
advertising solutions for our clients. |
|
|
|
|
Ability to retain key employees and sales people. Recruiting and retaining a team of
senior executives, key employees and sales team with industry knowledge and experience
is essential to our continued success. |
Critical Accounting Policies and Estimates
The preparation of consolidated financial statements in conformity with GAAP requires us to make
estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and
expenses. On an ongoing basis, we evaluate our estimates, including those related to allowance for
doubtful accounts, estimate of useful lives of intangible assets, impairment of goodwill and other
intangibles, cash flow forecasts, share-based compensation expense, and contingencies and
litigation liabilities. We base our estimates on historical experience, known or expected trends,
independent valuations and various other assumptions that are believed to be reasonable under the
circumstances based on information available as of the date of the issuance of these financial
statements. The results of such assumptions form the basis for making estimates about the carrying
amounts of assets and liabilities that are not readily apparent from other sources. The current
economic environment and its potential effect on us and our clients have combined to increase the
uncertainty inherent in such estimates and assumptions. Future results could be significantly
affected if actual results were to be different from these estimates and assumptions.
We believe the following critical accounting policies govern our more significant judgments and
estimates used in the preparation of our consolidated financial statements.
Revenue recognition
We recognize advertising service revenue on a straight-line basis over the period in which the
customer advertisement is to be displayed, which typically ranges from 1 month to 2 years, starting
from the date we first display the advertisement. Written contracts are entered into between us and
our customers to specify the price, the period and the location at which the advertisement is to be
displayed. Revenue is only recognized if the collectability of the advertising service fee is
probable.
We generate advertising service revenues from the sales of frame space on the poster frame network,
advertising time slots on traditional billboard networks and the sale of advertising services
through our transit based media. In the majority of advertising arrangements, we act as a principal
in the transaction and record advertising revenues on a gross basis. The associated expenses are
recorded as cost of revenues. In some instances we are considered an agent and recognize revenue on
a net basis.
Customer payments received in excess of the amount of revenue recognized are recorded as deferred
revenue in the consolidated balance sheet, and are recognized as revenue when the advertising
services are rendered.
44
Accounts receivable and allowance for doubtful accounts
Accounts receivable consist of amounts billed but not yet collected and unbilled receivables.
Unbilled receivables relate to revenues earned and recognized, but which have not been billed by us
in accordance with the terms of the advertising service contract. The payment terms of our service
contracts with its customers vary and typically require an initial payment to be billed or paid at
the commencement of the service period, progress payments to be billed during the service period,
and a final payment to be billed after the completion of the service period. None of our accounts
receivable bear interest. The allowance for doubtful accounts is managements best estimate of the
amount of probable credit losses in our existing accounts receivable. Management determines the
allowance based on historical write-off experience and reviews of customer-specific facts and
economic conditions. Account balances are charged off against the allowance after all means of
collection have been exhausted and the potential for recovery is considered remote. We do not have
any off-balance-sheet credit exposure related to its customers.
As of December 31, 2009 and 2010, our accounts receivable includes amounts earned and recognized as
revenues of US$2.4 million and US$6.1 million, respectively but not yet billed (unbilled
receivables). Management expects all unbilled receivables to be billed and collected within 12
months of the balance sheet date.
As December 31, 2010, we provided a $3.2 million reserve against accounts receivable. Managements
estimate of the appropriate reserve on accounts receivable at December 31, 2010 was based on the
aged nature of these accounts receivable. In making its judgment, management assessed its
customers ability to continue to pay their outstanding invoices on a timely basis, and whether
their financial position might deteriorate significantly in the future, which would result in their
inability to pay their debts to us.
Goodwill and Intangible Assets
Goodwill and other intangible assets are accounted for in accordance with the provisions of FASB
ASC 350 Intangibles Goodwill and Other. We account for business acquisitions using the
acquisition method of accounting. Before 2009, goodwill consists of the cost of acquired businesses
in excess of the fair value of the net assets acquired. Other intangible assets are separately
recognized if the benefit of the intangible asset is obtained through contractual or other legal
rights, or if the intangible asset can be sold, transferred, licensed, rented, or exchanged,
regardless of an intent to do so.
Beginning January 1, 2009, goodwill is measured as the excess of a over b below:
a. |
|
The aggregate of the following: |
|
1. |
|
The consideration transferred measured in accordance ASC 805, which generally
requires acquisition-date fair value. |
|
|
2. |
|
The fair value of any non-controlling interest in the acquiree. |
|
|
3. |
|
In a business combination achieved in stages, the acquisition-date fair value
of the acquirers previously held equity interest in the acquiree. |
b. |
|
The net of the acquisition-date amounts of the identifiable assets acquired and the
liabilities assumed measured in accordance with ASC 805. |
Under FASB ASC 350, goodwill, including any goodwill included in the carrying value of investments
accounted for using the equity method of accounting, and certain other intangible assets deemed to
have indefinite useful lives, are not amortized.
During the year ended December 31, 2008, we acquired the respective advertising businesses of
Shanghai Jincheng, Shaanxi Xinshichuang, Qingdao Kaixiang, Beijing Wanshuizhiyuan, Shenyang Jingli,
Shanghai Haiya, Shanghai Botang, Ad-icon, Tianjin Shengshitongda, Wenzhou Rigao, and Wuxi Ruizhong
(acquired entities). Pursuant to a series of acquisition agreements signed with each of the
acquired entities ex-owners in 2008, the purchase
45
consideration for each acquisition would be settled in cash and is contingent based on the
operational results agreed and confirmed by us and each of the acquired entities ex-owners for
each individual 12-month period in a 2-year earn-out period following respective acquisition dates
(earn-out period). The contingent purchase price consideration for each entity is payable when
each individual 12-month period during the earn-out period is completed and the operational results
are agreed and confirmed. As such, the purchase price allocation cannot be completed until the
contingencies are resolved. Therefore, the contingent consideration was not determinable beyond a
reasonable doubt at the date of acquisition, and no goodwill was recognized due to the contingent
nature of the consideration. However, a liability is recorded for the estimated fair value of
identifiable net assets acquired, which represents the amount of negative goodwill upon initial
purchase price allocation. Upon resolution of the contingency, adjustment to goodwill or against
the identifiable net assets is to be made in accordance with ASC Topic 805.
The initial allocation of purchase price for all acquisitions made in 2008 was based on valuations
performed by independent valuation firms using the multiple period excess earnings method.
At the initial allocation of purchase price, we also estimate fair value of acquired intangible
assets including customer relationship and lease agreements. Our intangible assets are amortized on
a straight line basis over their respective estimated useful lives, which are the periods over
which the assets are expected to contribute directly or indirectly to our future cash flows. Our
intangible assets represent customer relationship, lease agreements, and non-compete agreement, which have estimated useful
lives ranging from 0.5 to 4.4 years.
Impairment of long-lived assets
a) Impairment of goodwill
We test goodwill for possible impairment in the fourth quarter of each fiscal year or when
circumstances change that would more likely than not reduce the fair value of a reporting unit
below its carrying amount. Circumstances that could trigger an impairment test between annual tests
include, but are not limited to:
|
|
|
a significant adverse change in the business climate or legal factors; |
|
|
|
|
an adverse action or assessment by a regulator; |
|
|
|
|
unanticipated competition; |
|
|
|
|
loss of key personnel; |
|
|
|
|
the likelihood that a reporting unit or a significant portion of a reporting unit
will be sold or disposed of; and |
|
|
|
|
a change in reportable segments; and/or results of testing for recoverability of a
significant asset group within a reporting unit. |
We utilize a two-step method to perform a goodwill impairment review. In the first step, we
determine the fair value of the reporting unit using expected future discounted cash flows and
estimated terminal values. If the net book value of the reporting unit exceeds the fair value, we
would then perform the second step of the impairment test which requires allocation of the
reporting units fair value of all of its assets and liabilities in a manner similar to a purchase
price allocation, with any residual fair value being allocated to goodwill. The implied fair value
of the goodwill is then compared to the carrying value to determine impairment, if any.
As of December 31, 2009 and 2010, we had a goodwill balance of $45.9 million and $46.0 million,
respectively, which is not deductible for tax purposes. The results of our annual impairment test
resulted in a goodwill impairment loss of $39.4 million mainly due to our billboard and agency
service business in 2010, and $15.7 million for our billboard service business in 2009, as the
valuations indicated that the fair value of the businesses were less than the carrying value.
46
Application of goodwill impairment test requires judgment, including the identification of
reporting units, assigning assets and liabilities to the reporting units, assigning goodwill to
reporting units and estimating the fair value of each reporting unit. Changes in these estimates
and assumptions could materially affect the determination of fair value of each reporting unit
which could trigger impairment.
In calculating the future cash flows, certain assumptions are required to be made in respect of
highly uncertain matters such as revenue growth rates, gross margin percentages and terminal growth
rates. We may incur additional goodwill impairment charges in the future although we cannot predict
whether this will occur.
b) Impairment of long-lived assets other than goodwill
Indefinite-lived intangible assets are assessed for impairment at least annually based on
comparisons of their respective fair values to their carrying values. Finite-lived intangible
assets are amortized over their respective useful lives and, along with other long-lived assets,
are evaluated for impairment periodically whenever events or changes in circumstances indicate that
their related carrying amounts may not be recoverable in accordance with FASB ASC 360-10-15,
Impairment or Disposal of Long-Lived Assets.
In evaluating long-lived assets for recoverability, including finite-lived intangibles and property
and equipment, we use our best estimate of future cash flows expected to result from the use of the
asset and eventual disposition in accordance with FASB ASC 360-10-15. To the extent that estimated
future, undiscounted cash inflows attributable to the asset, less estimated future, undiscounted
cash outflows, are less than the carrying amount, an impairment loss is recognized in an amount
equal to the difference between the carrying value of such asset and its fair value. Assets to be
disposed of and for which there is a committed plan of disposal, whether through sale or
abandonment, are reported at the lower of carrying value or fair value less costs to sell.
Asset recoverability is an area involving management judgment, requiring assessment as to whether
the carrying value of assets can be supported by the undiscounted future cash flows. In calculating
the future cash flows, certain assumptions are required to be made in respect of highly uncertain
matters such as revenue growth rates, gross margin percentages and terminal growth rates.
In fourth quarter of 2008, we determined that a substantial portion of equipment for billboard
displays related to the Shanghai Bund project may not be effectively utilized in the future due to
the decision to halt marketing plans due to the unfavorable economic environment and concession
site reconstruction. As a result, we recorded a $2.1 million impairment loss during the year ended
December 31, 2008. There was no impairment loss for the years ended December 31, 2009 and 2010.
For the year ended December 31, 2008, we recorded an impairment loss on intangible assets in the
amount of $0.9 million associated with our transit business due to the cancellation of major subway
concession contracts which were acquired at acquisition. There was no impairment loss for the years
ended December 31, 2009 and 2010.
Fair Value of Financial Instruments
FASB ASC 820 Fair Value Measurements and Disclosures establishes a three-tier fair value
hierarchy, which prioritizes the inputs used in measuring fair value. The hierarchy prioritizes the
inputs into three levels based on the extent to which inputs used in measuring fair value are
observable in the market.
These tiers include:
|
|
|
Level 1 defined as observable inputs such as quoted prices in active markets; |
|
|
|
|
Level 2 defined as inputs other than quoted prices in active markets that are
either directly or indirectly observable; and |
|
|
|
|
Level 3 defined as unobservable inputs in which little or no market data exists,
therefore requiring an entity to develop its own assumptions. |
47
Except for promissory notes, the fair value of our financial assets and liabilities approximate
their carrying amount because of the short-term maturity of these instruments. Based on management
judgment, the fair value of the promissory notes is not materially different from its carrying
value with reference to observable market transactions between market participants comparative with
us and promissory note investors which are the best information available in the circumstances.
Share-based payments
Our accounts for share-based payments in accordance with ASC Topic 718, CompensationStock
Compensation. Under ASC 718, we measure the cost of employee services received in exchange for an
award of equity instruments based on the grant-date fair value of the award and recognizes the
costs over the period the employee is required to provide service in exchange for the award, which
generally is the vesting period. For awards with performance conditions, the compensation expense
is based on the grant-date fair value of the award, the number of shares ultimately expected to
vest and the vesting period.
We determined the estimated grant-date fair value of share options based on the Binomial Tree
option-pricing model using the following assumptions:
|
|
|
|
|
|
|
|
|
Options granted to employee: |
|
2009 |
|
2010 |
Risk-free rate of return
|
|
|
3.43 |
% |
|
|
2.744%-4.142 |
% |
Weighted average expected option life
|
|
10 years
|
|
10 years
|
Expected volatility rate
|
|
|
40.30 |
% |
|
|
64.00 |
% |
Dividend yield
|
|
|
0 |
% |
|
|
0 |
% |
The expected volatility in the table above was based on the weighted average volatility of several
comparable U.S. listed companies in the advertising industry with operations in the PRC. Since we
were a private company at the time the options were issued, we estimated the potential volatility
of its ordinary share price by referring to the weighted average volatility of these comparable
companies because management believes that the weighted average volatility of such companies is a
reasonable benchmark to use in estimating the expected volatility of our ordinary shares.
Because our share options have certain characteristics that are significantly different from traded
options, and because changes in the subjective assumptions can materially affect the estimated
value, in managements opinion, the existing valuation model may not provide an accurate measure of
the fair value of our share options. Although the fair value of share options is determined in
accordance with ASC Topic 718, CompensationStock Compensation, using an option-pricing model,
that value may not be indicative of the fair value observed in a willing buyer/willing seller
market transaction.
Recently issued accounting standards
In January 2010, the FASB issued Accounting Standards Update (ASU) 2010-05, Compensation
Stock Compensation (Topic 718). This standard codifies EITF Topic D-110 Escrowed Share
Arrangements and the Presumption of Compensation and is effective immediately. The provisions of
ASU 2010-05 did not have a material effect on the financial position, results of operations or cash
flows of the Company and is effective immediately.
In January 2010, the FASB issued ASU 2010-06, Fair Value Measurements and Disclosures (Topic
820): Improving Disclosures about Fair Value Measurements. This amendment to Topic 820 has
improved disclosures about fair value measurements on the basis of input received from the users of
financial statements. This is effective for interim and annual reporting periods beginning after
December 15, 2009, except for the disclosures about purchases, sales, issuances, and settlements in
the roll forward of activity in Level 3 fair value measurements. Those disclosures are effective
for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal
years. Early adoption is permitted. The provisions of ASU 2010-06 did not have a material effect
on the financial position, results of operations or cash flows of the Company.
In February 2010, FASB issued ASU No. 2010-09 (ASC Topic 855), which removes the requirement for
an SEC filer to disclose a date in both issued and revised financial statements. This amendment
shall be applied
prospectively for interim or annual financial periods ending after June 15, 2010. We do not believe
the adoption will have a material effect on our financial statements.
48
In February 2010, the FASB issued ASU 2010-10, Consolidation (Topic 810). The amendments to the
consolidation requirements of Topic 810 resulting from the issuance of Statement 167 are deferred
for a reporting entitys interest in an entity (1) that has all the attributes of an investment
company or (2) for which it is industry practice to apply measurement principles for financial
reporting purposes that are consistent with those followed by investment companies. An entity that
qualifies for the deferral will continue to be assessed under the overall guidance on the
consolidation of variable interest entities in Subtopic 810-10 (before the Statement 167
amendments) or other applicable consolidation guidance, such as the guidance for the consolidation
of partnerships in Subtopic 810-20. The deferral is primarily the result of differing
consolidation conclusions reached by the International Accounting Standards Board (IASB) for
certain investment funds when compared with the conclusions reached under Statement 167. The
deferral is effective as of the beginning of a reporting entitys first annual period that begins
after November 15, 2009, and for interim periods within that first annual reporting period, which
coincides with the effective date of Statement 167. Early application is not permitted. The
provisions of ASU 2010-10 are effective for the Company beginning in 2010. The adoption of ASU
2010-10 did not have a material impact on the financial position, results of operations or cash
flows of the Company.
In March 2010, the FASB issued ASU 2010-11, Derivative and Hedging (Topic 815). All entities
that enter into contracts containing an embedded credit derivative feature related to the transfer
of credit risk that is not only in the form of subordination of one financial instrument to another
will be affected by the amendments in this Update because the amendments clarify that the embedded
credit derivative scope exception in paragraph 815-15-15-8 through 15-9 does not apply to such
contracts. ASU 2010-11 is effective at the beginning of the reporting entitys first fiscal
quarter beginning after June 15, 2010. The provisions of ASU 2010-11 are not expected to have a
material effect on the financial position, results of operations or cash flows of the Company.
In April 2010, the FASB issued ASU 2010-13, CompensationStock Compensation (Topic 718). This
Update provides amendments to Topic 718 to clarify that an employee share-based payment award with
an exercise price denominated in the currency of a market in which a substantial portion of the
entitys equity securities trades should not be considered to contain a condition that is not a
market, performance, or service condition. Therefore, an entity would not classify such an award as
a liability if it otherwise qualifies as equity. The amendments in ASU 2010-13 are effective for
fiscal years, and interim periods within those fiscal years, beginning on or after December 15,
2010. The provision of ASU 2010-13 are not expected to have a material effect on the financial
position, results of operations or cash flows of the Company.
In December 2010, the FASB issued ASU 2010-28, When to Perform Step 2 of the Goodwill Impairment
Test for Reporting Units with Zero or Negative Carrying Amounts. This ASU amends guidance for Step
1 of the goodwill impairment test for reporting units with zero or negative carrying amounts. For
those reporting units, an entity is required to perform Step 2 of the goodwill impairment test if
it is more likely than not that a goodwill impairment exists. ASU 2010-28 is effective for fiscal
years and interim periods beginning after December 15, 2010, with early adoption not permitted. The
Group does not expect that the adoption of ASU 2010-28 will have a material impact on its financial
position, results of operations, or cash flows.
In December 2010, the FASB issued ASU 2010-29, Disclosure of Supplementary Pro Forma Information
for Business Combinations. This ASU specifies that if a public company presents comparative
financial statements, the entity should only disclose revenue and earnings of the combined entity
as though the business combination(s) that occurred during the current year had occurred as of the
beginning of the comparable prior annual reporting period. ASU 2010-29 is effective prospectively
for business combinations for which the acquisition date is on or after the beginning of the first
annual reporting period beginning on or after December 15, 2010, with early adoption permitted. The Company is in the process of evaluating the
effect of adoption of this pronouncement.
49
Results of Operations
For the Year ended December 31, 2010 compared to the Years ended December 31, 2009 and December 31,
2008
The following table sets forth the amounts and the percentage relationship to revenues of certain
items in our consolidated statements of income for the years ended December 31, 2008, 2009 and
2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31, |
|
|
Increase/ |
|
|
Increase/ |
|
(Amount in thousands) |
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
(Decrease)% |
|
|
(Decrease) % |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009 vs 2008 |
|
|
2010 vs 2009 |
|
Revenues |
|
$ |
41,685 |
|
|
$ |
37,741 |
|
|
$ |
48,967 |
|
|
|
(9 |
%) |
|
|
30 |
% |
Cost of revenues |
|
|
(30,624 |
) |
|
|
(28,059 |
) |
|
|
(36,454 |
) |
|
|
(8 |
%) |
|
|
30 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
11,061 |
|
|
|
9,682 |
|
|
|
12,513 |
|
|
|
(12 |
%) |
|
|
29 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing expenses |
|
|
(6,117 |
) |
|
|
(3,384 |
) |
|
|
(4,462 |
) |
|
|
(45 |
%) |
|
|
32 |
% |
General and administrative expenses |
|
|
(13,135 |
) |
|
|
(13,832 |
) |
|
|
(12,203 |
) |
|
|
5 |
% |
|
|
(12 |
%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
(19,252 |
) |
|
|
(17,216 |
) |
|
|
(16,665 |
) |
|
|
(10 |
%) |
|
|
(3 |
%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations |
|
|
(8,191 |
) |
|
|
(7,534 |
) |
|
|
(4,152 |
) |
|
|
(8 |
%) |
|
|
(45 |
%) |
Other income/(expense) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
131 |
|
|
|
11 |
|
|
|
24 |
|
|
|
(92 |
%) |
|
|
118 |
% |
Interest expense |
|
|
(2,717 |
) |
|
|
(1,962 |
) |
|
|
(45 |
) |
|
|
(28 |
%) |
|
|
(98 |
%) |
Increase in fair value of liability warrant |
|
|
|
|
|
|
824 |
|
|
|
|
|
|
|
|
|
|
|
(100 |
%) |
(Loss)/Gain on extinguishment of the notes |
|
|
(4,400 |
) |
|
|
6,669 |
|
|
|
|
|
|
|
252 |
% |
|
|
(100 |
%) |
Loss on impairment of goodwill and
intangible assets |
|
|
(13,953 |
) |
|
|
(15,749 |
) |
|
|
(39,411 |
) |
|
|
13 |
% |
|
|
150 |
% |
Loss on abandonment of lease |
|
|
(46 |
) |
|
|
(550 |
) |
|
|
(1,256 |
) |
|
|
1096 |
% |
|
|
128 |
% |
Loss on impairment of fixed assets |
|
|
(2,135 |
) |
|
|
|
|
|
|
|
|
|
|
(100 |
%) |
|
|
|
|
Loss on disposals of fixed assets |
|
|
(2,121 |
) |
|
|
(15 |
) |
|
|
(4 |
) |
|
|
(99 |
%) |
|
|
(73 |
%) |
Other income/ (expense), net |
|
|
|
|
|
|
|
|
|
|
(368 |
) |
|
|
|
|
|
|
|
|
Foreign currency transaction loss, net |
|
|
(167 |
) |
|
|
(24 |
) |
|
|
(7 |
) |
|
|
(86 |
%) |
|
|
(71 |
%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense |
|
|
(25,408 |
) |
|
|
(10,796 |
) |
|
|
(41,067 |
) |
|
|
(58 |
%) |
|
|
280 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
|
(33,599 |
) |
|
|
(18,330 |
) |
|
|
(45,219 |
) |
|
|
(45 |
%) |
|
|
147 |
% |
Provision for income taxes |
|
|
(1,481 |
) |
|
|
(4,319 |
) |
|
|
(1,420 |
) |
|
|
192 |
% |
|
|
(67 |
%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(35,080 |
) |
|
$ |
(22,649 |
) |
|
$ |
(46,639 |
) |
|
|
(35 |
%) |
|
|
106 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue. We generate our revenues from providing advertising services over our network which
consists primarily of the following platforms:
|
|
|
Outdoor billboard platform. We typically sign advertising contracts with terms
ranging from 6 to 24 months for billboard advertisements. Each contract will typically
specify the billboard location, measurement and the price. The contract price varies
substantially from contract to contract, based on the location and measurement of the
billboard. Deposits or progress payments are typically required at various stages of
the contract performance, such as signing of contract, confirmation of content and
completion of service period. |
|
|
|
|
In-elevator platform. We typically sign advertising contracts with terms ranging
from 1 to 6 months for in-elevator advertisements. Typically, we negotiate for a
contract price for covering a set of cities or districts within cities. We may
sometimes help certain clients design a detailed plan, based on the contract price and
targeted demographics, with particular buildings where the advertisements will be
displayed within the cities or districts specified under the contract. Progress
payments are typically required at various stages of the contract performance. |
50
|
|
|
Transit advertising platform. We typically sign advertising contracts with terms
ranging from one to three months for subway and bus advertisements. The price typically
consists of advertising
fees and production fees for subway and bus advertisements. Typically, the contracts
specify a certain combination of subway stations and bus lines and we have the
discretion to assign specific subway light boxes and bus lines for each contract.
Service payments are typically required at pre-specified dates prior to the
completion of the contract. |
We recognize advertising service revenues on a straight-line basis over the period in which the
advertisement is required to be displayed, starting from the date we first display the
advertisement. We only recognize revenue if the collectability of the service fee is probable. The
amount of advertising service revenues recognized is net of business taxes and surcharges ranging
between 8% and 9%.
Our revenue generation is affected by the number of advertising contracts we enter into with
clients and the average revenues per contract. The number of our advertising contracts is also
driven by client-specific factors such as timing of introduction of new advertising campaigns,
seasonality of clients operations and growth of business sectors in which our clients operate.
Depending on client demand, the number of service contracts with our clients varies from period to
period. The loss of, or significant reduction in, business from any major client without
replacement clients could adversely impact our operating results. Conversely, the addition of a
major advertising service contracts may significantly increase our revenues.
Our revenues per contract are affected by factors affecting out-of-home advertising service
providers. As we typically negotiate for the overall contract amount before providing an
advertising plan with specific display locations, average revenues per contract are particularly
affected by the acceptance of our platforms as part of the marketing strategies and budgets of our
clients.
Revenues for the year ended December 31, 2010 were $49.0 million compared to $37.7 million for the
year ended December 31, 2009 and $41.7 million for the year ended December 31, 2008. Revenue in
2010 increased primarily due to the better economic environment in 2010 and the expansion of
outdoor billboard, elevator and transit platform. The newly acquired subsidiary, Zhejiang
Continental, contributed $4.4 million of revenue to our billboard business in 2010. In addition,
the number of our contracts increased from 1,403 in 2009 to 1,509 in 2010. We intend to increase
the number of contracts in the future in addition to increasing the average revenue per contract.
Cost of revenues. The cost of revenues consists primarily of operating lease cost of advertising
space for displaying advertisements, depreciation of advertisement display equipment, amortization
of intangible assets relating to lease agreements and direct staff and material costs associated
with production and installation of advertisement content.
Cost of revenues for the year ended December 31, 2010 was $36.5 million compared to $28.1 million
for the year ended December 31, 2009 and $30.6 million for the year ended December 31, 2008. The
costs of revenues for both periods primarily consisted of leasing cost to site owners and managers.
The increase in cost of revenues in 2010 was primarily due to the increase in number of elevator
frames and outdoor billboards throughout the year. The cost of revenues as a percentage of revenues
was 74.4% for 2010, as compared to 74.4% for 2009 and 73.5% for 2008. The slight changes were due
primarily to changes in the mix of service offerings and the cost associated with our network
expansion. We intend to increase our margins in the future through enhancing our occupancy rates
while also increasing our average revenue per contract.
Gross profit. Our gross profit for the year ended December 31, 2010 was $12.5 million compared to
$9.7 million for the year ended December 31, 2009 and $11.1 million for the year ended December 31,
2008 which is in line with the change in net revenues throughout the year. Our gross margin
decreased from 26.5% in 2008 to 25.7% in 2009 and increased to 25.6% in 2010 due primarily to
changes in the mix of service offerings.
Operating expenses. Selling and marketing expenses consist of marketing and promotion, amortization
of intangible assets relating to customer relationship and sales commissions, payroll, traveling
expenses, transportation and advertising expenses incurred by our selling and distribution team.
General and administrative expenses consist primarily of salaries and benefits for management and
administrative personnel, share-based compensation, rental and utility expenses.
51
Total operating expenses for the year ended December 31, 2010 were $16.7 million compared to $17.2
million for the year ended December 31, 2009 and $19.3 million for the year ended December 31,
2008. The components of operating expenses are set forth below:
|
|
|
Sales and marketing expenses. Sales and marketing expenses was $4.5 million for the
year ended December 2010 compared to $3.4 million for the year ended December 31, 2009
and $6.1 million for the year ended December 31, 2008, primarily due to the changes in
sales commissions in line with the net revenues and increase in marketing expenses for
expansion of business. |
|
|
|
General and administrative expenses. General and administrative expenses were $12.2
million for 2010 compared to $13.8 million for 2009 and $13.1 million for 2008. |
The following table describes our general and administrative expenses for the years ended
December 31, 2008, 2009 and 2010. The increase in bad debt expenses in 2009 and 2010 is
primarily due to an increase in bad debt for elevator and billboards subsidiaries. Staff
salary declined from $5.5 million in 2008 to $2.8 million in 2009 as a result of increased
efficiencies in our infrastructure and a reduction in staff. Staff salary increased in 2010
is primarily due to a new acquisition and expansion of business. Professional fees in 2009
were higher than 2008 and 2010, primarily due to the expenses related to the completion of
the Business Combination. Share based compensation represents amortization of fair value of
options and shares granted to our staff. The amount increased in 2010 due to more options
granted after the Business Combination.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31 |
|
(Amounts in thousands) |
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
Bad debt expense |
|
$ |
703 |
|
|
$ |
1,611 |
|
|
$ |
2,197 |
|
Professional fee |
|
|
3,321 |
|
|
|
4,759 |
|
|
|
2,435 |
|
Salary expense |
|
|
5,466 |
|
|
|
2,785 |
|
|
|
3,066 |
|
Rental expense |
|
|
1,854 |
|
|
|
1,643 |
|
|
|
524 |
|
Share-based compensation |
|
|
308 |
|
|
|
403 |
|
|
|
2,107 |
|
Other G&A expense |
|
|
1,483 |
|
|
|
2,631 |
|
|
|
1,874 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
13,135 |
|
|
$ |
13,832 |
|
|
$ |
12,203 |
|
|
|
|
|
|
|
|
|
|
|
Other expenses. Total other expenses for the year ended December 31, 2010 were $41.1 million
compared to $10.8 million for the year ended December 31, 2009 and $25.4 million for the year ended
December 31, 2008. Significant components of the other expenses are set forth below:
|
|
|
Interest expense. Interest expense costs in 2009 and 2008 consist predominately of
non-cash financial charges related to investments in SearchMedia International prior to
the completion of the Business Combination. The 2008 amount primarily relates to the
amortization of convertible promissory notes discount of $0.9 million, interest of $0.7
million on the convertible promissory notes and $0.6 million interest on New Note,
First Interim Notes and short-term loan from a third party lender. The 2009 amount
primarily consists of $1.0 million of interest expense on the convertible promissory
note. The Business Combination was closed in October 2009 and no related interest was
incurred in 2010. |
|
|
|
Gain/Loss on extinguishment of the notes. On September 17, 2008, certain notes
issued by SearchMedia International in March 2008 were cancelled by the holder. The
notes, with a principal sum of $10 million plus accrued interest of $0.6 million and
all the related conversion rights, were cancelled in exchange for a new note with a
principal sum of $15 million, which bears interest at 12% per annum and has no
conversion right. As a result of the cancellation of the notes in exchange for the
promissory note, a loss on extinguishment of the notes of $4.4 million was recognized
in the statement of income for the year ended December 31, 2008, which represented the
difference between the carrying value of the new note of $15.0 million and the sum of
the carrying value of the convertible promissory notes of $10.0 million, plus related
accrued interest of $0.6 million. The 2009 amount represents fair value gain on
extinguishment of the Promissory Note at the closure of reverse acquisition in October,
2009. |
52
|
|
|
Loss on impairment of goodwill and intangible assets. As a result of the reduction
of the estimated value of the reporting units as part of annual impairment tests,
goodwill was reduced by $14.0 million in 2008, $15.7 million in 2009 and $39.4 million in 2010,
respectively. |
|
|
|
Loss on disposal and impairment of fixed assets. In
the fourth quarter of 2008, we
determined that a substantial portion of equipment for billboard displays related to
the Shanghai Bund project may not be effectively utilized in the future due to the
decision to halt marketing plans due to the unfavorable economic environment and
concession site reconstruction. As a result, we recorded a $2.1 million impairment
loss. We also disposed of approximately $2.1 million of digital and poster frame in the
year ended December 31, 2008. Loss on disposal of fixed assets were immaterial in 2009
and 2010. |
|
|
|
Provision for income taxes. Income tax expense was $1.5 million in 2008, $4.3
million in 2009 and $1.4 million in 2010. Although we had consolidated net loss, the
PRC statutory tax rate was 25% for our subsidiaries with net income. |
Net loss. As a result of the foregoing, we had a net loss of $46.6 million for the year ended
December 31, 2010, as compared to a net loss of $22.6 million for the year ended December 31, 2009
and a net loss of $35.1 million for the year ended December 31. 2008.
Effect of Inflation
The rates of inflation experienced in recent years have had no material impact on our financial
statements. We attempt to recover increased costs by increasing prices for our services, to the
extent permitted by contracts and competition.
Foreign Currency
The Groups reporting currency is the United States dollar (US$). The functional currency of the
Company is the US$, whereas the functional currency of the Companys consolidated subsidiaries and
VIEs in the PRC is the Renminbi (RMB) and the functional currency of the Companys subsidiaries
in the Hong Kong Special Administrative Region is the Hong Kong Dollars (HK$), as the PRC and
HKSAR are the primary economic environments in which the respective entities operate. Since the RMB
is not a fully convertible currency, all foreign exchange transactions involving RMB must take
place either through the Peoples Bank of China (the PBOC) or other institutions authorized to
buy and sell foreign currency. The exchange rates adopted for the foreign exchange transactions are
the rates of exchange quoted by the PBOC.
Transactions denominated in currencies other than the functional currency are translated into the
respective functional currency at the exchange rate prevailing at the date of the transaction.
Monetary assets and liabilities denominated in a currency other than the functional currency are
translated into the functional currency using the applicable exchange rate at each balance sheet
date. The resulting exchange differences are recorded in foreign currency transaction gain (loss)
in the consolidated statements of operations.
The assets and liabilities of the Companys consolidated subsidiaries and VIEs are translated into
the US$ reporting currency using the exchange rate at each balance sheet date. Revenue and expenses
of these entities are translated into US$ at average rates prevailing during the year. Gains and
losses resulting from translation of these entities financial statements into the US$ reporting
currency are recorded as a separate component of accumulated other comprehensive income within
shareholders deficit/equity. We do not have any foreign currency forward contracts.
53
Cash Flow Analysis
The following table presents a summary of our cash flows and beginning and ending cash balances for
the years ended December 31, 2008, 2009 and 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31, |
|
(Amounts in thousands) |
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
Net cash provided by/ (used in) operating activities |
|
$ |
(1,451 |
) |
|
$ |
(8,775 |
) |
|
$ |
1,670 |
|
Net cash used in investing activities |
|
|
(24,704 |
) |
|
|
(40,593 |
) |
|
|
(20,152 |
) |
Net cash provided by/ (used in) financing activities |
|
|
24,676 |
|
|
|
73,665 |
|
|
|
(3,465 |
) |
Foreign currency translation adjustment |
|
|
242 |
|
|
|
5 |
|
|
|
103 |
|
|
|
|
|
|
|
|
|
|
|
Net increase/(decrease) in cash and cash equivalents |
|
|
(1,237 |
) |
|
|
24,302 |
|
|
|
(21,844 |
) |
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at beginning of year |
|
|
6,333 |
|
|
|
5,096 |
|
|
|
29,398 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of year |
|
$ |
5,096 |
|
|
$ |
29,398 |
|
|
$ |
7,554 |
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Operating Activities. Net cash flows from operating activities were $(1.5) million,
$(8.8) million and $1.7 million for the years ended December 31, 2008, 2009 and 2010, respectively.
The decrease in net cash flows from operating activities in 2009 was primarily due to the decrease
in accounts payable, accrued expenses and other payables. The increase in net cash flows from
operating activities in 2010 was primarily due to the decrease in loss from operations and decrease
in amount due from related parties in 2010.
Cash Flows from Investing Activities. Net cash used in investing activities was $24.7 million,
$40.6 million and $20.2 million for the years ended December 31, 2008, 2009 and 2010, respectively.
The decrease in cash used in investing activities in 2010 compared to 2009 and 2008 was primarily
due to:
|
|
|
a $19.4 million increase in cash paid for acquisitions in 2009 compared to 2008 and
a $20.4 million decrease in cash paid for acquisitions in 2010 compared to 2009; and |
|
|
|
|
a $3.3 million decrease in capital expenditures in 2009 compared to 2008. |
Cash Flows from Financing Activities. Net cash used in financing activities was $3.5 million for
the year ended December 31, 2010. Net cash provided by financing activities were $73.7 million for
the year ended December 31, 2009 and $24.7 million for the year ended December 31, 2008. Net cash
used in financing activities in 2010 mainly arose from repurchase of warrants. Net cash provided by
financing activities in 2009 is primarily attributed to $76.1 million proceeds from the Business
Combination and a $5.0 million repayment in promissory note in 2009 compared to $9.3 million
funding of new convertible notes and $12.0 million funding of promissory notes in 2008.
Cash and Cash Equivalents
Our cash balance at December 31, 2010 was $7.6 million, representing a decrease of $21.8 million
from $29.4 million at December 31, 2009.
|
|
|
B. |
|
Liquidity and Capital Resources |
Our working capital from operations decreased by $39.0 million to $39.4 million net current
liabilities at December 31, 2010 as compared to net current liabilities of $0.4 million at December
31, 2009. The increase in net current liabilities was primarily due to a reduction in cash after
payment of certain earn-out obligations and an additional contingent earn-out payable incurred
during 2010. Total current assets decreased by $14.8 million from $50.6 million at December 31,
2009 to $35.8 million at December 31, 2010. The decrease in current assets was primarily due to the
decrease in cash.
We are obligated to pay earn-out payments over the next one to two years in connection with our
acquisitions of a number of advertising businesses. The amount of earn-out consideration typically
depends, among other factors, on the annual financial results of an acquired entity in a two-year
post-closing period starting from the date of
54
acquisition based on mutual agreement by us and the ex-owners of the subsidiaries. During the
second and third quarters of 2010, we amended the earn-out agreements with seven of our
subsidiaries. The amended earn-out agreements provide for the extension of the time period by one
to more than two years for required cash and stock payments. As a result of the aforementioned
amendments and previous payments, we estimate the remaining earn-out payable is approximately $39.2
million as of December 31, 2010. Of such payable, approximately $29.0 million is payable in either
cash or stock within the next twelve months and $10.2 million is payable in stock after the next
twelve months. For the $29.0 million earn-out payable within twelve months, $17.0 million is
payable in cash with the possibility of getting extension of the payment time from ex-shareholders.
The remaining $12.0 million is payable in stock. No additional contingent earn-out consideration
was incurred during 2011 up to the date of this Annual Report.
Based on the current cash position and forecast for the rest of the payment period we may not have sufficient capital to pay the required earn-out payments in cash over the
next twelve months. In addition, due to a variety of factors which cannot presently be ascertained,
including without limitation, the amount of working capital that we have available, and the
financial performance of both us and the acquired companies entitled to receive an earn-out
payment, there can be no assurance that we will have sufficient liquidity to meet our long-term
earn-out obligations and raises substantial doubt as to our ability to continue as a going concern. If such failure cannot be remedied through renegotiation of the terms of such
earn-outs with the acquired companies or the raising of the required proceeds on reasonable terms,
our operations are likely to be adversely and materially impacted.
Our short term borrowing of $0.7 million as of December 31, 2010 represents two short-term bank
loans of $0.56 million and $0.17 million. The short-term loan of $0.56 million bears interest at 6%
per annum and matures on April 13, 2011. The loan of $0.17 million bears interest at 14.2308% per
annum and matures on September 21, 2011. Both loans do not contain any financial covenants.
We do not anticipate having any material capital expenditures for the next twelve months except for
some limited frames and billboard structures as replacements. Our operating lease obligations as of
December 31, 2010 for the next twelve months were $15.9 million. We believe that we will be able to
fund our capital expenditures, operating lease payments and our anticipated operating cash
requirements for at least the next twelve months and satisfy any remaining obligations from our
working capital and anticipated cash flows from operations.
In addition, we may also need additional cash resources in the future if we find and wish to pursue
opportunities for investment, acquisition, strategic cooperation or other similar actions.
Accordingly, we may seek to issue debt or equity securities or obtain a credit facility. Any
issuance of equity securities could cause dilution to our shareholders. Any incurrence of
indebtedness could increase our debt service obligations and cause us to be subject to restrictive
operating and financial covenants. It is possible that, when we need additional cash resources,
financing will only be available to us in amounts or on terms not acceptable to us or that
financing will not be available at all.
|
|
|
C. |
|
Research and Development, Patents and Licenses, etc. |
The information required by this item is inapplicable.
Please refer to Overview for a discussion on the most significant recent rends in our
production, sales, costs and selling prices. In addition, please refer to discussions included in
this Item for a discussion of known trends, uncertainties, demands, commitments or events that we
believe are reasonably likely to have a material effect on our revenues, income from continuing
operations, profitability, liquidity or capital resources, or that would cause reported financial
information not necessarily to be indicative of future operating results or financial condition.
55
|
|
|
E. |
|
Off-Balance Sheet Arrangements |
We do not have any outstanding off-balance sheet guarantees, interest rate swap transactions or
foreign currency forward contracts. In addition, we do not engage in trading activities involving
non-exchange traded contracts. In
our ongoing business, we do not enter into transactions involving, or otherwise form relationships
with, unconsolidated entities or financials partnerships that are established for the purpose of
facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.
F. Tabular Disclosure of Contractual Obligations
The following table sets forth the Companys known contractual obligations as of December 31, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments due by period |
|
|
|
|
|
|
|
Less |
|
|
|
|
|
|
|
|
|
|
More |
|
|
|
|
|
|
|
than 1 |
|
|
1-3 |
|
|
|
|
|
|
than 5 |
|
Contractual Obligations ($000) |
|
Total |
|
|
year |
|
|
years |
|
|
3-5 years |
|
|
years |
|
Operating Lease Obligations |
|
$ |
21,108 |
|
|
$ |
15,898 |
|
|
$ |
4,979 |
|
|
$ |
231 |
|
|
$ |
|
|
Other Long-Term Liabilities
Reflected on the Companys
Balance Sheet (1) |
|
|
39,195 |
|
|
|
29,033 |
|
|
|
10,162 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
60,303 |
|
|
$ |
44,931 |
|
|
$ |
15,141 |
|
|
$ |
231 |
|
|
$ |
|
|
|
|
|
(1) |
|
Represents consideration payable in connection to our acquisitions of a number
of advertising businesses. |
|
|
|
Item 6 |
|
Directors, Senior Management and Employees |
|
|
|
A. |
|
Directors and Senior Management |
Directors
The following table sets forth the names and ages of our directors, each of whom has served as a
director as of the date of this annual report.
|
|
|
|
|
Name |
|
Age |
|
Robert Fried |
|
|
51 |
|
Qinying Liu |
|
|
48 |
|
Steven D. Rubin |
|
|
50 |
|
Glenn Halpryn |
|
|
50 |
|
Chi-Chuan Chen |
|
|
52 |
|
The following additional information is provided for each of the directors listed above.
Mr. Robert Fried has served as Co-Chairman of the Board of Directors since the Business Combination
in October 2009. Mr. Fried served as the President and Chief Executive Officer and a member of the
board of directors of Ideation from November 2007 to October 2009. Mr. Fried is a digital media
entrepreneur and accomplished film producer. Since 1990, Mr. Fried has served as President of Fried
Films, a motion picture production company he founded in 1990. Mr. Fried has produced or served as
executive producer for 15 films, including Rudy, The Boondock Saints, Man of the Year and
Collateral. Mr. Fried won an Academy Award for the Live Action Short Film Session Man. Mr.
Fried has founded several digital media companies including Spirit EMX, parent of spiritclips.com,
a popular internet-based inspirational content company for which Mr. Fried presently serves as CEO;
and WhatsHotNow.com, for which Mr. Fried served as Chief Executive Officer from July 1999 until
June 2001. From December 1994 until June 1996, Mr. Fried was President and Chief Executive Officer
of Savoy Pictures, a unit of Savoy Pictures Entertainment, Inc. Savoy Pictures Entertainment was
sold to Silver King Communications, which is now a part of InterActive Corp, in 1996. From 1983 to
1990, Mr. Fried held several executive positions including Executive Vice President in charge of
Production for Columbia Pictures, Director of Film Finance and Special Projects for Columbia
Pictures and Director of Business Development at Twentieth Century Fox. Mr. Fried holds an M.S.
from Cornell University and an M.B.A. from the Columbia University Graduate School of Business.
56
Mr. Fried brings entrepreneurial, leadership and digital media experience to the board of
directors. Mr. Frieds experience as an executive producer and executive officer in media related
industries provides broad understanding and expertise that strengthens the board of directors
collective knowledge, capabilities and experience.
Ms. Qinying Liu has served as Co-Chairmen of the Board of Directors since the Business Combination
in October 2009. Ms. Liu is a co-founder of Jieli Consulting and previously served as the chairman
of SearchMedia International. She has also been the general manager of Shanghai Lifang Trading Co.,
Ltd since 2004, a Chinese trading company. Before the founding of Jieli Consulting, she was
chairman of Sige from 2004 to November 2007 and Shanghai Qinjun from 2003 to June 2008. She also
served as chief representative of the Shanghai Office of GETA Company, a Germany special power
tools manufactory from 1993 to 2000. Ms. Liu received her masters degree in media and
communication from Renmin University of China. She obtained her bachelors degree in chemistry from
East China University of Science and Technology.
Ms. Liu brings multi-platform media industry experience to the board of directors. Ms. Liu is also
a founder of SearchMedia International.
Mr. Steven D. Rubin has served as a member of the Board of Directors since the Business Combination
in October 2009. Mr. Rubin served as the Secretary of Ideation from June 2007 to October 2009.
Mr. Rubin has been the Executive Vice President of OPKO Health, Inc. since May 2007 and a director of OPKO Health, Inc. since
February 2007 and is a member of The Frost Group LLC. Mr. Rubin currently serves on the Boards of
Directors of OPKO Health, Inc., Non-Invasive Montoring Systems, Inc., PROLOR Biotech, Inc., Neovasc, Inc., Kidville, Inc., which operates upscale learning and play
facilities for children, Tiger X Medical, Inc., a producer and distributor of orthopedic and spinal
medical devices, Castle Brands, Inc., a marketer of premium spirits, Dreams, Inc., a vertically
integrated sports licensing and products company, and Safestitch Medical, Inc., a developmental
stage FDA-registered medical device company focused on the development of medical devices that
manipulate tissues for the treatment of obesity, gastroesophageal reflux disease, hernia formation,
esophageal obstructions, Barretts Esophagus, upper gastrointestinal bleeding, and other
intraperitoneal abnormalities through endoscopic and minimally invasive surgery. Mr. Rubin
previously served as the Senior Vice President, General Counsel and Secretary of IVAX Corporation from August
2001 until September 2006.
Mr. Rubin brings leadership, business and legal experience to the board of directors. Mr. Rubin has
advised companies in several aspects of business, transactional, and legal affairs for more than 20
years. His experience as a practicing lawyer, general counsel, and board member to multiple public
companies has given him broad understanding and expertise, particularly relating to strategic
planning and acquisitions.
Mr. Glenn L. Halpryn has served as a member of the Board of Directors since the Business
Combination in October 2009 and served as a director of Ideation from December 2008 to October
2009. Since August 2010, Mr. Halpryn has served as a Director of ChromaDex Corporation, a public
company that along with its subsidiaries supply phytochemical reference standards and reference
materials, related contract services, and products for the dietary supplement, nutraceutical, food
and beverage, functional food, pharmaceutical and cosmetic markets. Mr. Halpryn serves as Chair of
the Nominating and Corporate Governance Committee and has served on the Audit Committee of
ChromaDex Corporation since May 2010. Mr. Halpryn has been the Chief Executive Officer and a
director of Transworld Investment Corporation, a private investment company, since June 2001. Mr.
Halpryn currently serves as a director of Sorrento Therapeutics, Inc., a
biopharmaceutical company, and Castle Brands Inc., a developer and international
marketer of premium branded spirits. From September 2008 until May 2010, Mr. Halpryn also served as
a director of Winston Pharmaceuticals, Inc., a pharmaceutical company specializing
in skin creams and pain medications. From October 2002 to September 2008, Mr. Halpryn served as a
director of Ivax Diagnostics, Inc. Mr. Halpryn served as Chairman of the board of
directors and Chief Executive Officer of Orthodontix, Inc. (now Protalix Biotherapeutics, Inc.) from April 2001 to December 2006. From April 1988 to June 1998, Mr. Halpryn was Vice
Chairman of Central Bank, a Florida state-chartered bank. Since June 1987, Mr. Halpryn has been the
President of and a beneficial holder of stock of United Security Corporation, a broker-dealer
registered with FINRA.
Mr. Halpryn brings leadership and business experience to the board of directors. Mr. Halpryn has
advised companies in several aspects of business and transactional affairs. His experience as a
board member to multiple public companies has given him broad understanding and expertise.
57
Mr. Chi-Chuan (Frank) Chen has served as a member of the Board of Directors since the Business
Combination in October 2009. Mr. Chen is a Vice President and Special Assistant to the Chief
Executive Officer at Ruentex Group. He has served in the Investment Management Department at
Ruentex Group since 1987. Mr. Chen holds a B.S. in chemical engineering and an MBA from National
Taiwan University.
Mr. Chen brings investment management experience to the board of directors. Mr. Chens 20 years of
experience in the investment management department of Ruentex Group provides broad knowledge,
experience and insights to the board of directors.
Executive Officers
The following individuals are our current executive officers.
|
|
|
|
|
|
|
Name |
|
Age |
|
Position |
Paul Conway
|
|
|
41 |
|
|
Chief Executive Officer |
Wilfred Chow
|
|
|
45 |
|
|
Chief Financial Officer |
Garbo Lee
|
|
|
53 |
|
|
President |
Xiaotu Hu
|
|
|
40 |
|
|
Executive Vice President |
All officers serve until they resign or are replaced or renamed at the discretion of the Board of
Directors.
The following additional information is provided for our current executive officers.
Mr. Paul Conway has served as our Chief Executive Officer since February 2010. From 1998 through
January 2010, Mr. Conway worked at Oppenheimer & Co., Inc., where he served as Managing Director of
Media Investment Banking from January 2009 to January 2010, as Executive Director of Media
Investment Banking from January 2006 to January 2009, and as Director of Media Investment Banking
from January 2003 to January 2006. Mr. Conway holds a B.B.A. from the University of Miami and an
M.B.A. from the Columbia University Graduate School of Business.
Mr. Wilfred Chow has served as our Chief Financial Officer since January 2010. From April 2006
through December 2009, Mr. Chow was Senior Vice President of American Oriental Bioengineering, a
pharmaceutical company, and from January 2005 through March 2006, Mr. Chow was a financial
consultant with PriceWaterhouseCoopers.
Ms. Garbo Lee has served as our President since the Business Combination in October 2009. Ms. Lee
served as the president of SearchMedia International from March 2009 to October 2009. Prior to
that, she was the chief operating officer of SearchMedia International. Ms. Lee has over 24 years
of experience in the advertising industry. Prior to joining SearchMedia International, Ms. Lee was
a general manager of Sony BMG Music Entertainment (PRC) Inc., a Chinese music marketing and
distribution company under Sony BMG Music Entertainment, a global recorded music joint venture
headquartered in the New York City, from 2005 to 2007. She served as general manager of Coming Age
Communication Co. Ltd., a China-based integrated marketing company, from 2002 to 2004. From 2000 to
2002, she worked as managing director and vice president of Doyle Dane Bernbach (DDB) Shanghai, an
advertising and integrated marketing company under Omnicom Group in China. From 1984 to 2000, Ms.
Lee worked for various companies under WPP Group. Ms. Lee received her bachelors degree in arts
from International Christian University in Tokyo, Japan.
Mr. Xiaotu Hu has served as our Executive Vice President since July 2010. Mr. Hu is the General
Manager of Beijing Wanshuizhiyuan, one of our subsidiaries, since 2006. From 2002 to 2005, Mr. Hu
was the General Manager of Beijing Da Hua Global Advertising Co. Ltd., an advertising company in
Beijing.
There are no family relationships among the members of SearchMedia Holdings board of directors or
the members of SearchMedia Holdings senior management.
58
No
director or member of senior management has any arrangement or understanding with major shareholders,
customers, suppliers or others, pursuant to which such director or
member of senior management was selected as a director or member of senior management of SearchMedia Holdings.
For the year ended December 31, 2010, we paid aggregate cash compensation of approximately $1.0
million to our directors and executive officers. No executive officer is entitled to any severance
benefits upon termination of his or her employment with our company except for Paul Conway, Wilfred
Chow and Garbo Lee.
The aggregate remuneration paid and benefits in kind granted to our executive officers for the year
ended December 31, 2010 was approximately $0.7 million. In addition beginning on October 30, 2009,
non-employee members of the board of directors are paid an annual cash fee of $20,000 payable per
quarter. Committee chairmen receive an additional annual fee of $5,000. Mr. Fried and Mr. Rubin
also received $75,000 and $40,000, respectively, as fees paid in connection with consulting
agreements. The aggregate remuneration paid to the directors or accrued by us for fiscal year
ended December 31, 2010 was $0.3 million.
Share Incentives
In January 2008, in order to attract and retain the best available personnel, we adopted the 2008
share incentive plan, or the plan to purchase a maximum of 1,796,492 shares in our company. As of
August 13, 2010, subject to shareholder approval, the board of directors voted to reserve 3,000,000
shares for issuance under the plan.
The following table summarizes, as of May 31, 2011, the options and restricted shares granted to
our directors and executive officers and other individuals as a group, without giving effect to
options that were exercised or terminated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying |
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
|
|
|
|
|
|
|
|
|
|
|
Options/ or |
|
|
Exercise |
|
|
|
|
|
|
|
|
|
|
Restricted |
|
|
Price |
|
|
|
|
|
|
Expiration |
|
|
|
Shares |
|
|
($/share) |
|
|
Grant Date |
|
|
Date |
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul Conway |
|
|
250,000 |
|
|
|
6.05 |
|
|
February 1, 2010 |
|
January 31, 2020 |
|
|
|
100,000 |
|
|
|
|
|
|
February 1, 2010 |
|
|
(1) |
|
Wilfred Chow |
|
|
225,000 |
|
|
|
2.62 |
|
|
January 4, 2010 |
|
August 20, 2020 |
Garbo Lee |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Robert Fried |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Glenn Halpryn |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Steve Rubin |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Chi-Chuan Chen |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Larry Lu |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Jianzhong Qu |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Earl Yen |
|
|
* |
|
|
|
7.14 |
|
|
January 11, 2010 |
|
January 10, 2020 |
Other individuals as a group |
|
|
937,576 |
|
|
|
(2 |
) |
|
|
(2) |
|
|
|
(3) |
|
Total |
|
|
1,757,576 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Less than one percent of the outstanding ordinary shares. |
|
|
|
(1) |
|
Vest on the three-year anniversary of the date of grant. |
|
(2) |
|
Options/restricted shares were granted to other individuals on various exercise price and various
dates |
|
(3) |
|
Other individuals options expire on various dates. |
59
The following paragraphs describe the principal terms of our 2008 share incentive plan:
Plan Administration. SearchMedia Holdingss board of directors, or a committee designated by the
board or directors, will administer the plan. The committee or the full board of directors, as
appropriate, will determine the provisions and terms and conditions of each award grant.
Types of Awards. The types of awards SearchMedia International may grant under the plan include the
following.
|
|
|
options to purchase SearchMedia Holdings ordinary shares; |
|
|
|
|
restricted shares, which represent non-transferable ordinary shares, that may be
subject to forfeiture, restrictions on transferability and other restrictions; and |
|
|
|
|
restricted share units, which represent the right to receive SearchMedia Holdingss
ordinary shares at a specified date in the future, which may be subject to forfeiture. |
Award Document. Awards granted under SearchMedia Internationals plan are each evidenced by an
award document that sets forth the terms, conditions and limitations for each grant, including the
exercise price, the number of shares to which the award pertains, the conditions upon which an
option will become vested and exercisable and other customary provisions.
Eligibility. SearchMedia Holdings International may grant awards to (i) its employees, directors
and consultants, and (ii) employees, directors and consultants of any of its parents or
subsidiaries and of any entity in which SearchMedia Holdings or any of its parents or subsidiaries
holds a substantial ownership interest. Incentive share options may be granted to employees of
SearchMedia International, or any of its parents or subsidiaries, and may not be granted to
employees of a related entity or to independent directors or consultants.
Acceleration of Awards upon Change of Control and Corporate Transactions. Unless otherwise provided
in the award agreement: 1) the outstanding awards will accelerate by one year upon occurrence of a
change-of-control transaction where the successor entity does not convert, assume or replace
SearchMedia Internationals outstanding awards under the plan; 2) in the event of a corporate
transaction as defined in the plan, including certain amalgamations, arrangements, consolidations
or schemes of arrangement and the transfer of all or substantially all of the companys assets,
each outstanding award that is not assumed or replaced by the successor entity will become fully
vested and immediately exercisable provided that the related grantees continuous service with
SearchMedia International shall not be terminated before that date; and 3) furthermore, in the
event of a corporate transaction, each outstanding award that is assumed or replaced by the
successor entity will become fully vested and immediately exercisable immediately upon termination
of the participants employment or service within twelve (12) months of the Corporate Transaction
without cause.
Term of the Awards. The term of each award grant shall be stated in the award agreement, provided
that the term for an option shall not exceed ten years from the date of the grant, unless
shareholder approval is obtained for amending the plan to extend the exercise period for an option
beyond ten years from the date of the grant.
Vesting Schedule. In general, the plan administrator determines, or the award agreement specifies,
the vesting schedule.
Transfer Restrictions. Except as otherwise provided by the committee that administers the plan,
awards granted under the plan may not be assigned, transferred or otherwise disposed of by the
award holders other than by will or the laws of descent and distribution.
60
Termination and Amendment of the Plan. Unless terminated earlier, the plan will expire on, and no
award may be granted pursuant to the plan after, the tenth anniversary of its effective date. With
the approval of SearchMedia Holdingss board of directors, the committee that administers the plan
may amend or terminate the plan, except that shareholder approval shall be obtained to the extent
necessary or desirable to comply with applicable laws or stock exchange rules, or for amendments to
the plan that increase the number of shares available under the plan, permit the committee to
extend the term of the plan or the exercise price of an option beyond ten years from the date of
grant or result in a material increase in benefits or a change in eligibility requirements.
The directors of SearchMedia Holdings will serve as directors until the next Annual Meeting or
until their successors are duly elected and qualified. The directors have served in that capacity
since the Business Combination.
All officers serve until they resign or are replaced or renamed at the discretion of the Board of
Directors.
Board Committees
The board of directors has established an Audit Committee, a Compensation Committee and a Corporate
Governance and Nominating Committee.
Audit Committee Members and Financial Expert
The Board of Directors has established an Audit Committee. The Audit Committee currently consists
of Glenn Halpryn (Chair) and Chi-Chuan Chen. The Board of Directors has determined that Mr. Halpryn
meets the attributes of an audit committee financial expert within the meaning of SEC regulations
and is independent within the meaning of the listing standards of NYSE Amex and applicable SEC
regulations. Xiaoming Lu served on the Audit Committee from December 2009 to August 2010. The
Audit Committee operates pursuant to the Charter of the Audit Committee of the Board of Directors
of SearchMedia Holdings Limited which was amended on August 6, 2010.
Compensation Committee Members
The Compensation Committee currently consists of Glenn Halpryn and Steve Rubin. The Compensation
Committee operates pursuant to the Charter of the Compensation Committee of the Board of Directors
of SearchMedia Holdings Limited which was approved on December 8, 2009.
Corporate Governance and Nominating Committee Members
The Corporate Governance and Nominating Committee currently consists of Glenn Halpryn and Steve
Rubin. The Corporate Governance and Nominating Committee operates pursuant to the Charter of the
Corporate Governance and Nominating Committee of the Board of Directors of SearchMedia Holdings
Limited which was approved on December 8, 2009.
Code of Ethics
We have adopted a Code of Ethics applicable to our directors, officers and employees including our
Chief Executive Officer, Chief Financial Officer and principal accounting officer. A copy of our
Code of Ethics is available on our website at www.searchmediaholdings.com. We intend to
post amendments to or waivers from our Code of Ethics (to the extent applicable to our Chief
Executive Officer, Chief Financial Officer or principal accounting officer or to our directors) on
our website. Our website is not part of this Annual Report on Form 20-F.
61
Compensation of Directors
Our Compensation Committee recommends director compensation to the board of directors. No
compensation was paid to any SearchMedia Holdings directors for services rendered prior to the
Business Combination; however, certain individuals were reimbursed for out-of-pocket expenses
incurred in connection with activities on the companys behalf. From January 1, 2009 to October 30,
2009, no fees were paid to the non-employee members of the board of directors. Beginning on October
30, 2009, the non-employee members of the board of directors receive an annual cash fee of $20,000
that is payable per quarter. The committee chairmen receive an additional $5,000 annual fee. Except
for Mr. Fried and Mr. Rubin, each non-employee member of the board of directors was granted 25,000
stock options which fully vest on January 11, 2011 and which expire January 11, 2020. Mr. Fried and
Mr. Rubin were granted 50,000 stock options, which fully vest on January 11, 2011 and which expire
on January 11, 2020.
D. Employees
As of March 31, 2011, we had approximately 300 employees, including 40 development personnel, 110
sales and marketing personnel, 70 maintenance personnel, 30 finance and 50 administrative
personnel. All of our employees are full-time. None of our employees are covered by collective
bargaining agreement. We manage our own staff recruitment. We consider our relations with our
employees to be generally good.
We are required by applicable PRC regulations to contribute for our employees certain amounts,
based on our employees aggregate salaries, to a defined contribution pension plan, a medical
insurance plan, a housing fund, an unemployment insurance plan, a personal injury insurance plan
and a maternity insurance plan. We believe that we have made the required payments in compliance
with the applicable laws and regulations since our inception.
Please see Item 6.B and Item 7
|
|
|
Item 7 |
|
Major Shareholders and Related Party Transactions |
The following table sets forth certain information as of June 20, 2011 concerning the beneficial
ownership of the ordinary shares by (i) each person known by us to be the beneficial owner of more
than 5% of the outstanding ordinary shares, (ii) each of our directors serving on June 20, 2011, (iii) each
executive officer, and (iv) all of our current executive officers and directors as a group. Unless
indicated below, all holders listed below have sole voting power and investment power over the
shares beneficially owned by them. Unless noted otherwise, the address of each person listed below
is Floor 13, Central Modern Building, 468 Xin Hui Road, Shanghai, China 200060.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of Class of |
|
|
|
Ordinary Shares |
|
|
Ordinary Shares |
|
Beneficial Owner |
|
Beneficially Owned (1) |
|
|
Beneficially Owned (%) |
|
Officers and Directors
Qinying Liu (2) |
|
|
989,085 |
|
|
|
4.7 |
% |
Robert N. Fried(3) |
|
|
1,307,465 |
|
|
|
6.3 |
% |
Steven D. Rubin(4) |
|
|
363,870 |
|
|
|
1.7 |
% |
Glenn Halpryn (5) |
|
|
40,860 |
|
|
|
* |
|
Chi-Chuan Chen (6) |
|
|
25,000 |
|
|
|
* |
|
Garbo Lee (7) |
|
|
57,056 |
|
|
|
* |
|
Paul Conway (8) |
|
|
86,333 |
|
|
|
* |
|
Wilfred Chow (9) |
|
|
77,000 |
|
|
|
* |
|
Xiaotu Hu |
|
|
|
|
|
|
|
|
All directors and executive officers as a group (9 persons) |
|
|
2,946,669 |
|
|
|
13.9 |
% |
5% Holders |
|
|
|
|
|
|
|
|
Dr. Phillip Frost, M.D. (10) |
|
|
5,273,169 |
|
|
|
22.5 |
% |
Deutsche Bank AG, HK Branch(11) |
|
|
2,399,995 |
|
|
|
11.4 |
% |
China Seed Ventures, L.P.(12) |
|
|
2,445,083 |
|
|
|
11.2 |
% |
Linden Ventures II(13) |
|
|
1,982,820 |
|
|
|
9.2 |
% |
Heartland Advisors Inc. (14) |
|
|
1,600,000 |
|
|
|
7.7 |
% |
Luxor Capital Group, LP (15) |
|
|
1,323,954 |
|
|
|
6.4 |
% |
|
|
|
* |
|
The person beneficially owns less than 1% of SearchMedia Holdings outstanding common shares. |
62
|
|
|
(1) |
|
Based on 20,858,661 shares outstanding as of June 20, 2011. |
|
(2) |
|
Excludes 600,000 ordinary shares issuable to Mrs. Lius husband converted at the exchange
ratio (0.0675374) and 40,522 ordinary shares beneficially owned by Mrs. Lius husband.
Includes 25,000 shares of common stock underlying options that are currently exercisable or
exercisable within 60 days after June 20, 2011. |
|
(3) |
|
Includes exercisable warrants to purchase 593,793 ordinary shares and includes 50,000 shares
of common stock underlying options that are currently exercisable or exercisable within 60
days after June 20, 2011. |
|
(4) |
|
Includes exercisable warrants to purchase 153,000 ordinary shares and includes 50,000 shares
of common stock underlying options that are currently exercisable or exercisable within 60
days after June 20, 2011. |
|
(5) |
|
Includes ordinary shares and exercisable warrants to purchase 3,172 ordinary shares
beneficially owned by Halpryn Capital Partners LLC and includes 25,000 shares of common stock
underlying options that are currently exercisable or exercisable within 60 days after June 20,
2011. |
|
(6) |
|
Includes 25,000 shares of common stock underlying options that are currently exercisable or
exercisable within 60 days after June 20, 2011. |
|
(7) |
|
Includes 57,056 shares of common stock underlying options that are currently exercisable or
exercisable within 60 days after June 20, 2011. |
|
(8) |
|
Includes 83,333 shares of common stock underlying options that are currently exercisable or
exercisable within 60 days after June 20, 2011. |
|
(9) |
|
Includes 75,000 shares of common stock underlying options that are currently exercisable or
exercisable within 60 days after June 20, 2011. |
|
(10) |
|
Includes exercisable warrants to purchase 2,626,434 ordinary shares. Ownership is as reported
in the Schedule 13D/A filed by Dr. Phillip Frost, M.D. on December 24, 2009. The business
address of Dr. Frost, M.D. is 4400 Biscayne Blvd., Suite 1500, Miami, Florida 33137. |
|
(11) |
|
Includes exercisable warrants to purchase 255,427 ordinary shares. Ownership is as reported
in the Schedule 13G filed by Deutsche Bank AG, HK Branch on November 10, 2009. The business
address of Deutsche Bank AG, HK Branch is Theodor-Heuss-Allee 70, 60468 Frankfurt am Main,
Federal Republic of Germany. |
|
(12) |
|
Includes exercisable warrants to purchase 903,318 ordinary shares. Ownership is as reported
in the Schedule 13D filed by China Seed Ventures, L.P. on January 21, 2010. The business
address of China Seed Ventures, L.P. is Room 104 Building 18, No. 800 Huashan Road, Shanghai,
China. |
|
(13) |
|
Includes exercisable warrants to purchase 714,025 ordinary shares. Ownership is as reported
in the Schedule 13G filed by Linden Ventures II on November 6, 2009. The business address of
Linden Ventures
II is C/O Appleby, 56 Admin Drive, Wickhams Cay 1, PO Box 3190, Road Town, Tortola, British
Virgin Islands. |
|
(14) |
|
Ownership is as reported in the Schedule 13G/A filed by Heartland Advisors Inc. on February
10, 2011. The business address of Heartland Advisor Inc is 789 North Water Street, Milwaukee,
Wisconsin 53202. |
|
(15) |
|
Ownership is as reported in the Schedule 13G/A filed by Luxor Capital Group, LP on February
14, 2011. The business address of Luxor Capital Group, LP is 1114 Avenue of the Americas,
29th Floor, New York, New York 10036. |
63
None of our major shareholders have different voting rights from those of our other shareholders.
To the best of our knowledge, we are not directly or indirectly controlled by another corporation,
by any foreign government or by any other natural or legal person severally or jointly. The
Company is not aware of any arrangement that may that may, at a subsequent date result in a change
of control of the Company.
Equity Compensation Plan Information
The following table lists all securities authorized for issuance and outstanding under our equity
compensation plans at December 31, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of securities |
|
|
|
|
|
|
|
|
|
|
|
remaining available |
|
|
|
|
|
|
|
|
|
|
|
for future issuance |
|
|
|
|
|
|
|
|
|
|
|
under equity |
|
|
|
Number of securities to |
|
|
Weighted average |
|
|
compensation plans |
|
|
|
be issued upon exercise |
|
|
exercise price of |
|
|
(excluding |
|
Plan category |
|
of outstanding options |
|
|
outstanding options |
|
|
outstanding options) |
|
Equity compensation plans approved by security holders |
|
|
1,326,890 |
|
|
$ |
3.97 |
|
|
|
351,693 |
|
Equity compensation plans not approved by security
holders (1) |
|
|
|
|
|
|
|
|
|
|
1,203,508 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
1,326,890 |
|
|
$ |
3.97 |
|
|
|
1,555,201 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
In August 2010, the Board of Directors approved an increase in the number of shares reserved
for issuance under the plan to 3,000,000 and such increase will be presented for shareholder
approval. |
|
|
|
B. |
|
Related Party Transactions |
Certain Relationships and Related Transactions
The Audit Committee reviews and approves transactions in which SearchMedia Holdings was or is to be
a participant, where the amount involved exceeded or will exceed $120,000 annually and any of our
directors, executive officers or their immediate family members had or will have a direct or
indirect material interest. We have a written policy stating that the Audit Committee is
responsible for reviewing and, if appropriate, approving or ratifying any related party
transactions. The related party transaction will not be approved unless at a minimum it is for our
benefit and is upon terms no less favorable to us than if the related party transaction was with an
unrelated third party.
Transactions with SearchMedia Internationals Shareholders, Senior Management Personnel and
Affiliated Entities of Companies Acquired by Shanghai Jingli
For the year ended December 31, 2010, revenue of $0.1 million was recorded, which represents
amounts received or receivable from affiliated entities of senior management personnel of certain
companies acquired by Shanghai Jingli for SearchMedia Internationals provision of advertising
services to such affiliated entities. For the year ended December 31, 2010, expenses for leases of
advertising space of $0.6 million was recorded, which represent amounts paid or payable by
SearchMedia International to the affiliated entities of senior management personnel of certain
companies acquired by Shanghai Jingli for leases of advertising space from these affiliated
entities.
64
As of December 31, 2010, $1.0 million was payable to SearchMedia International as advances made by
SearchMedia International to the senior management personnel of certain companies acquired by
Shanghai Jingli.
As of December 31, 2010, $1.9 million was payable by SearchMedia International to the senior
management personnel of certain companies acquired by Shanghai Jingli as operating expenses paid on
behalf of SearchMedia International by such personnel.
As of December 31, 2010, $0.05 million was payable by SearchMedia International to affiliated
companies of certain companies acquired by Shanghai Jingli for leases of advertising space.
Director Independence
The Board of Directors undertook a review of each directors independence in October 2010. During
this review, the Board of Directors considered transactions and relationships between each director
or any member of his or her immediate family and us and our subsidiaries and affiliates. The Board
of Directors also examined transactions and relationships between directors or their known
affiliates and members of our senior management or their known affiliates. The purpose of this
review was to determine whether any such relationships or transactions were inconsistent with a
determination that the director is independent under applicable laws and regulations and the NYSE
Amex listing standards. As a result of our review of the relationships of each of the members of
the Board of Directors, the Board of Directors affirmatively determined that a majority of our
directors, including Messrs. Fried, Rubin, Halpryn and Chen, are independent directors within the
meaning of the listing standards of NYSE Amex and applicable law.
|
|
|
C. |
|
Interests of Experts and Counsel |
Not applicable.
|
|
|
Item 8 |
|
Financial Information |
|
|
|
A. |
|
Consolidated Statements and Other Financial Information |
We have appended consolidated financial statements filed as part of this annual report.
Legal or Arbitration Proceedings
Shareholder Lawsuits in the United States
A shareholder complaint was filed on September 13, 2010 by Sid Murdeshwar against SearchMedia
Holdings, the former Ideation officers and directors and certain of the SearchMedia Holdings
officers and directors (the Individual Defendants) as a purported class action on behalf of the
shareholders of SearchMedia Holdings in the United States District Court for the Central District
of California. The case was filed under the caption Sid Murdeshwar, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. SearchMedia Holdings Limited f/k/a Ideation Acquisition
Corp., Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin, Glenn Halpryn, Thomas E.
Beier, David H. Moskowitz, Shawn Gold, Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer
Huang, Defendants.
A separate shareholder complaint was filed on December 23, 2010 by Hymie Akst against SearchMedia
Holdings, the former Ideation officers and directors and certain of the SearchMedia Holdings
officers and directors (the Individual Defendants) as a purported class action on behalf of the
shareholders of SearchMedia Holdings in the United States District Court for the Southern District
of Florida. The case was filed under the caption Hymie Akst, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. SearchMedia Holdings Limited f/k/a Ideation Acquisition
Corp., Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin, Glenn Halpryn, Thomas E.
Beier, David H. Moskowitz, Shawn Gold, Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer
Huang, Defendants.
65
On February 17, 2011, the Murdeshwar action was transferred to the United States District Court for
the Southern District of Florida. The Akst plaintiffs voluntarily dismissed their action on
February 23, 2011. On April 11, 2011, the Murdeshwar plaintiffs amended their complaint.
The amended complaint alleges, among other things, that the directors of SearchMedia Holdings
violated the federal securities laws by making false and misleading statements regarding Ideations
acquisition of the target company, SearchMedia International and by overstating SearchMedia
Internationals financial results. The amended complaint further alleges that the Individual
Defendants are liable for the alleged misrepresentations as controlling persons. The complaint
seeks certification of a class of SearchMedia Holdings shareholders who purchased or otherwise
acquired SearchMedia Holdings securities between April 1, 2009 and August 20, 2010, and all persons
who were holders of SearchMedia Holdings on October 2, 2009, an award of compensatory damages, an
award of reasonable fees and costs incurred in this action, and such other relief as the Court
deems just and proper.
The Court has ordered that any defendant in the Murdeshwar action who is not served with the
amended complaint by July 29, 2011 will be dismissed without prejudice. On May 2, 2011, the
Company and the Individual Defendants who have been served filed a motion to dismiss the claims
asserted against them. The Court has not yet ruled on the motion to dismiss. A mediation is
scheduled for July 26, 2011.
Securities and Exchange Commission Investigation
On November 30, 2010, the SEC served a Subpoena Duces Tecum (the Subpoena) on SearchMedia
Holdings pursuant to a formal Order of Investigation dated November 12, 2010, seeking documents
regarding SearchMedias financial restatement and alleged accounting improprieties. On March 16,
2011, the SEC served an additional subpoena on the SearchMedia Holdings seeking additional
documents regarding SearchMedias financial restatement and alleged accounting improprieties. We
are cooperating fully with the SECs investigation and intend to continue to do so.
Lawsuits in China
In June 2010, the original shareholders (the Plaintiffs) of Shaanxi Xinshichuang Advertisement
Marketing Co., Ltd. (Shaanxi Co), filed a civil lawsuit (Lawsuit) with the Shanghai Chongming
County Peoples Court (Chongming Court) against Shanghai Jingli Advertisement Co., Ltd. (Jingli
Shanghai). In 2008, Jingli Shanghai acquired 100% equity interest in Shaanxi Co from the
Plaintiffs. In the Lawsuit, the Plaintiffs claimed that Jingli Shanghai owed them RMB 14,592,680
(approximately USD 2.2 million) (Total Claim) relating to the unpaid consideration for equity
interest in Shaanxi Co, interest, reimbursement of certain operating expenses, liquidated damages
and court fees.
In March 2011, the Chongming Court issued a judgment (Judgment) ordering Jingli Shanghai to pay
the Plaintiffs an aggregate of RMB 7,761,537 (approximately U.S. $ 1.2 million) plus accrued
interests and a percentage of the court fees.
In late March 2011, Jingli Shanghai appealed the Judgment to the Shanghai Second Intermediate
Peoples Court (Appellate Court). Jingli Shanghai has based its appeal on various legal
arguments including, among others, that the Chongming Court: (i) applied incorrect laws and
regulations; (ii) accepted incorrect facts; and (iii) did not duly follow all legal procedures.
At the time of this filing, the Appellate Court has yet to render a ruling.
SearchMedia Arbitration Claim Against Prior Shareholders
Pursuant to the terms of the Share Exchange Agreement dated October 29, 2009, SearchMedia Holdings
commenced claims against the former shareholders and directors of SearchMedia International Limited
for fraud and for breaches of representations, warranties and covenants contained in the Share
Exchange Agreement. SearchMedia Holdings is seeking the return of all of the shares from China
Seed Ventures, L.P., Qinying Liu, Deutsche Bank AG, Le Yang, Sun Hing Associates LTD., and Vervain
Equity Investments Limited (collectively,
the SM Shareholders), as well as damages in excess of the trade-in value of the shares held by
the SM Shareholders. The matter is currently pending at the International Centre for Dispute
Resolution.
66
In addition, from time to time, we may be subject to legal proceedings, investigations and claims
incidental to the conduct of our business. We are not currently a party to any legal proceeding or
investigation, except the shareholder complaint described above, that in the opinion of our
management, is likely to have a material adverse effect on our business or financial condition.
Dividend Policy
We have not paid any dividends on our common stock to date and do not intend to pay dividends at
this time.
Except as disclosed elsewhere in this annual report, we have not experienced any significant
changes since the date of our audited consolidated financial statements included in this annual
report.
|
|
|
Item 9 |
|
The Offer and Listing |
|
|
|
A. |
|
Offer and Listing Details |
Our common stock and warrants are listed on the NYSE Amex under the symbols IDI and IDI.WS,
respectively. The closing price for the securities on June 24, 2011, the most recent trading day
before the date of this Annual Report on Form 20-F, was $1.95 and $0.13, respectively.
The table below sets forth, for the periods indicated, the high and low bid prices for the
securities as reported on the NYSE Amex in U.S. dollars. These quotations reflect inter-dealer
prices, without markup, markdown or commissions, and may not represent actual transactions.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Annual High and Low Market Prices for the Five Most |
|
|
|
Recent Full Financial Years |
|
|
|
Units (1) |
|
|
Common Stock |
|
|
Warrants |
|
|
|
High |
|
|
Low |
|
|
High |
|
|
Low |
|
|
High |
|
|
Low |
|
Full Financial Year |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
2007(2) |
|
$ |
8.01 |
|
|
$ |
7.85 |
|
|
$ |
7.20 |
|
|
$ |
7.20 |
|
|
$ |
0.70 |
|
|
$ |
0.70 |
|
2008 |
|
$ |
8.10 |
|
|
$ |
6.85 |
|
|
$ |
8.10 |
|
|
$ |
6.75 |
|
|
$ |
0.71 |
|
|
$ |
0.03 |
|
2009 |
|
$ |
9.82 |
|
|
$ |
7.17 |
|
|
$ |
9.20 |
|
|
$ |
7.09 |
|
|
$ |
3.14 |
|
|
$ |
0.03 |
|
2010 |
|
$ |
|
|
|
$ |
|
|
|
$ |
7.55 |
|
|
$ |
1.62 |
|
|
$ |
2.25 |
|
|
$ |
0.19 |
|
|
|
|
(1) |
|
During the fourth quarter of 2009, trading in the units was suspended. |
|
(2) |
|
This table sets forth the range of high and low sales prices for the units, common stock and
warrants for the applicable portion of the year ended December 31, 2007. The units commenced
public trading on November 20, 2007, and the common stock and warrants commenced public
trading separately on December 26, 2007. The table also includes price information for
Ideation Acquisition Corp. securities before the Business Combination. |
67
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
High and Low Market Prices for each Full Financial |
|
|
|
Quarter for the Two Most Recent Years |
|
|
|
and the Subsequent Quarters |
|
|
|
Units (1) |
|
|
Common Stock |
|
|
Warrants |
|
|
|
High |
|
|
Low |
|
|
High |
|
|
Low |
|
|
High |
|
|
Low |
|
2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter |
|
$ |
7.70 |
|
|
$ |
7.17 |
|
|
$ |
7.55 |
|
|
$ |
7.18 |
|
|
$ |
0.15 |
|
|
$ |
0.03 |
|
Second Quarter |
|
$ |
8.72 |
|
|
$ |
7.41 |
|
|
$ |
7.86 |
|
|
$ |
7.50 |
|
|
$ |
0.69 |
|
|
$ |
0.11 |
|
Third Quarter |
|
$ |
9.82 |
|
|
$ |
8.15 |
|
|
$ |
7.99 |
|
|
$ |
7.69 |
|
|
$ |
1.69 |
|
|
$ |
0.48 |
|
Fourth Quarter (1) |
|
$ |
|
|
|
$ |
|
|
|
$ |
9.20 |
|
|
$ |
7.09 |
|
|
$ |
3.14 |
|
|
$ |
1.41 |
|
2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
7.55 |
|
|
$ |
4.51 |
|
|
$ |
2.25 |
|
|
$ |
0.80 |
|
Second Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
6.14 |
|
|
$ |
3.01 |
|
|
$ |
1.20 |
|
|
$ |
0.40 |
|
Third Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
3.63 |
|
|
$ |
1.62 |
|
|
$ |
0.58 |
|
|
$ |
0.22 |
|
Fourth Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
3.65 |
|
|
$ |
1.68 |
|
|
$ |
0.50 |
|
|
$ |
0.19 |
|
2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
3.50 |
|
|
$ |
1.71 |
|
|
$ |
0.35 |
|
|
$ |
0.12 |
|
Second Quarter |
|
$ |
|
|
|
$ |
|
|
|
$ |
2.72 |
|
|
$ |
1.42 |
|
|
$ |
0.35 |
|
|
$ |
0.13 |
|
(through June 24, 2011) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
During the fourth quarter of 2009, trading in the units was suspended. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
High and Low Market Prices for each of the Most Recent Six Months |
|
|
Units (1) |
|
Common Stock |
|
Warrants |
|
|
High |
|
Low |
|
High |
|
Low |
|
High |
|
Low |
2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January
|
|
$
|
|
$
|
|
$ |
3.50 |
|
|
$ |
2.81 |
|
|
$ |
0.35 |
|
|
$ |
0.23 |
|
February
|
|
$
|
|
$
|
|
$ |
3.28 |
|
|
$ |
2.34 |
|
|
$ |
0.35 |
|
|
$ |
0.20 |
|
March
|
|
$
|
|
$
|
|
$ |
2.67 |
|
|
$ |
1.71 |
|
|
$ |
0.20 |
|
|
$ |
0.12 |
|
April
|
|
$
|
|
$
|
|
$ |
2.72 |
|
|
$ |
1.42 |
|
|
$ |
0.35 |
|
|
$ |
0.13 |
|
May
|
|
$
|
|
$
|
|
$ |
2.17 |
|
|
$ |
1.99 |
|
|
$ |
0.30 |
|
|
$ |
0.20 |
|
June (through June 24, 2011)
|
|
$
|
|
$
|
|
$ |
2.10 |
|
|
$ |
1.81 |
|
|
$ |
0.22 |
|
|
$ |
0.13 |
|
|
|
|
(1) |
|
During the fourth quarter of 2009, trading in the units was suspended. |
As of June 20, 2011, there were, of record, twenty-seven holders of common stock, eleven holders of
warrants and no holders of units.
We have not paid any dividends on our common stock to date and do not intend to pay dividends at
this time.
Not applicable.
See the first paragraph of Item 9A above.
Not applicable.
68
Not applicable.
Not applicable.
|
|
|
Item 10 |
|
Additional Information |
Not applicable.
|
|
|
B. |
|
Memorandum and Articles of Association |
We incorporate by reference into this annual report the description of the Memorandum and Articles
of Association of SearchMedia Holdings Limited contained in our Current Report on Form 8-K first
filed with the Commission on November 5, 2009.
We have not entered into any material contracts other than in the ordinary course of business and
other than those described in Item 4. Information on the Company or elsewhere in this annual
report on Form 20-F.
Please see the discussion regarding regulations of dividend distributions found in Regulatory
Matters under Item 4.B
The following summary of the material Cayman Islands and United States federal income tax
consequences of an investment in our common shares is based upon laws and relevant interpretations
thereof in effect as of the date of this annual report, all of which are subject to change. This
summary does not deal with all possible tax consequences relating to an investment in our common
shares, such as the tax consequences under state, local and other tax laws.
Cayman Islands Taxation
The Cayman Islands currently levies no taxes on individuals or corporations based upon profits,
income, gains or appreciation and there is no taxation in the nature of inheritance tax or estate
duty. There are no other taxes likely to be material to our company levied by the Government of
the Cayman Islands except for stamp duties which may be applicable on instruments executed in, or
brought within, the jurisdiction of the Cayman Islands. There are no exchange control regulations
or currency restrictions in the Cayman Islands.
United States Federal Income Taxation
The following discussion describes the material U.S. federal income tax consequences to U.S.
Holders (as defined below) under present law of an investment in the common shares. This
discussion applies only to U.S. Holders that hold the common shares as capital assets (generally,
property held for investment) and that have the U.S. dollar as their functional currency. This
discussion is based on the tax laws of the United States in effect as of the date of this annual
report and on U.S. Treasury regulations in effect or, in some cases, proposed as of the date of
this annual report, as well as judicial and administrative interpretations thereof available on or
before such date. All of the foregoing authorities are subject to change, which change could apply
retroactively and could affect the tax consequences described below.
69
The following discussion does not address the tax consequences to any particular investor or to
persons in special tax situations such as:
|
|
|
banks and other financial institutions; |
|
|
|
|
insurance companies; |
|
|
|
|
regulated investment companies; |
|
|
|
|
real estate investment trusts; |
|
|
|
|
broker-dealers; |
|
|
|
|
traders that elect to use a mark-to-market method of accounting; |
|
|
|
|
U.S. expatriates; |
|
|
|
|
tax-exempt entities; |
|
|
|
|
persons liable for alternative minimum tax; |
|
|
|
|
persons holding a common share as part of a straddle, hedging, conversion or
integrated transaction; |
|
|
|
|
persons that actually or constructively own 10% or more of the total combined voting
power of all classes of our voting stock; |
|
|
|
|
persons who acquired common shares pursuant to the exercise of any employee share
option or otherwise as compensation; or |
|
|
|
|
partnerships or other pass-through entities, or persons holding common shares
through such entities. |
INVESTORS ARE URGED TO CONSULT THEIR TAX ADVISORS ABOUT THE APPLICATION OF THE U.S. FEDERAL TAX
RULES TO THEIR PARTICULAR CIRCUMSTANCES AS WELL AS THE STATE, LOCAL, NON-U.S. AND OTHER TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF COMMON SHARES.
The discussion below of the U.S. federal income tax consequences to U.S. Holders will apply to
you if you are a beneficial owner of our common shares and you are, for U.S. federal income tax
purposes,
|
|
|
an individual who is a citizen or resident of the United States; |
|
|
|
|
a corporation (or other entity treated as a corporation for U.S. federal income tax
purposes) created or organized in the United States or under the laws of the United
States, any State thereof or the District of Columbia; |
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an estate, the income of which is subject to U.S. federal income taxation regardless
of its source; or |
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a trust that (i) is subject to the primary supervision of a court within the United
States and the control of one or more U.S. persons for all substantial decisions or
(ii) has a valid election in effect under applicable U.S. Treasury regulations to be
treated as a U.S. person. |
70
The tax treatment of a partner in a partnership (or other entity treated as a partnership for U.S.
federal income tax purposes) that holds our common shares will depend on the status of such partner
and the activities of such partnership. If you are a partner in such partnership, you should
consult your tax advisors.
Taxation of dividends and other distributions on the common shares
Subject to the passive foreign investment company rules discussed below, the gross amount of any
distributions we make to you with respect to common shares generally will be includible in your
gross income as dividend income on the date of receipt by you but only to the extent that the
distribution is paid out of our current or accumulated earnings and profits (as determined under
U.S. federal income tax principles). The dividends will not be eligible for the dividends-received
deduction allowed to corporations in respect of dividends received from other U.S. corporations.
To the extent that the amount of the distribution exceeds our current and accumulated earnings and
profits (as determined under U.S. federal income tax principles), such excess amount will be
treated first as a tax-free return of your tax basis in your common shares, and then, to the extent
such excess amount exceeds your tax basis in your common shares, as capital gain. We currently do
not, and we do not intend to, calculate our earnings and profits under U.S. federal income tax
principles. Therefore, a U.S. Holder should expect that a distribution will generally be reported
as a dividend even if that distribution would otherwise be treated as a non-taxable return of
capital or as a capital gain under the rules described above.
With respect to certain non-corporate U.S. Holders, including individual U.S. Holders, for taxable
years beginning before January 1, 2011, dividends may be taxed at the lower capital gains rate
applicable to qualified dividend income, provided that (i) either (a) the common shares, as
applicable, are readily tradable on an established securities market in the United States or (b) we
are eligible for the benefits of a qualifying income tax treaty with the United States that
includes an exchange of information program, (ii) we are neither a passive foreign investment
company nor treated as such with respect to you (as discussed below) for the taxable year in which
the dividend was paid and the preceding taxable year and (iii) certain holding period requirements
are met. Under U.S. Internal Revenue Service authority, common shares will be considered for
purposes of clause (i) above to be readily tradable on an established securities market in the
United States if they are listed on the NYSE Amex, as are our common shares. If we are treated as a
resident enterprise for PRC tax purposes under the New EIT Law, we may be eligible for the
benefits of the income tax treaty between the United States and the PRC. For more information
regarding the New EIT Law, see Item 3.D. Key Information Risk Factors Risks related to the
regulation of our business and to our structure We may be treated as a resident enterprise for
PRC tax purposes and our global income may be subject to PRC tax under PRC tax law, which would
have a material adverse effect on our results of operations. You should consult your tax advisors
regarding the availability of the lower capital gains rate applicable to qualified dividend income
for dividends paid with respect to our common shares.
Dividends will constitute foreign source income for foreign tax credit limitation purposes. If the
dividends are taxed as qualified dividend income (as discussed above), the amount of the dividend
taken into account for purposes of calculating the foreign tax credit limitation will in general be
limited to the gross amount of the dividend, multiplied by the reduced tax rate applicable to
qualified dividend income and divided by the highest tax rate normally applicable to dividends.
The limitation on foreign taxes eligible for credit is calculated separately with respect to
specific classes of income. For this purpose, dividends distributed by us with respect to the
common shares will generally constitute passive category income but could, in the case of certain
U.S. Holders, constitute general category income.
If PRC withholding taxes apply to dividends paid to you with respect to our common shares, subject
to certain conditions and limitations, such PRC withholding taxes may be treated as foreign taxes
eligible for credit against your U.S. federal income tax liability. For more information regarding
such PRC withholding taxes, see Item 3.D. Key Information Risk Factors Risks related to the
regulation of our business and to our structure Foreign holders of our common shares may be
subject to PRC withholding tax on dividends payable by us and on gains realized on the sale of our
common shares if we are classified as a PRC resident enterprise. The rules relating to the
determination of the foreign tax credit are complex, and you should consult your tax advisors
regarding the availability of a foreign tax credit in your particular circumstances.
71
Taxation of disposition of common shares
Subject to the passive foreign investment company rules discussed below, you will recognize taxable
gain or loss on any sale, exchange or other taxable disposition of a common share equal to the
difference between the amount realized (in U.S. dollars) for the common share and your tax basis
(in U.S. dollars) in the common share. The gain or loss generally will be a capital gain or loss.
If you are a non-corporate U.S. Holder, including an individual U.S. Holder, that has held the
common share for more than one year, you may be eligible for reduced tax rates. The deductibility
of capital losses is subject to limitations. Any gain or loss that you recognize on a disposition
of common shares will generally be treated as U.S. source income or loss for foreign tax credit
limitation purposes. However, if we are treated as a resident enterprise for PRC tax purposes,
we may be eligible for the benefits of the income tax treaty between the United States and the PRC.
In such event, if PRC withholding taxes were to be imposed on any gain from the disposition of the
common shares, a U.S. Holder that is eligible for the benefits of the income tax treaty between the
United States and the PRC may elect to treat the gain as PRC source income. For more information
regarding such PRC withholding taxes, see Item 3.D. Key Information Risk Factors Risks
related to the regulation of our business and to our structure Foreign holders of our common
shares may be subject to PRC withholding tax on dividends payable by us and on gains realized on
the sale of our common shares if we are classified as a PRC resident enterprise. You should
consult your tax advisors regarding the proper treatment of gain or loss in your particular
circumstances.
Passive foreign investment company
Based on the market price of our common shares, the value of our assets, and the composition of our
income and assets, although not free from doubt, we do not believe that we were a passive foreign
investment company (PFIC) for U.S. federal income tax purposes for our taxable year ended
December 31, 2010. However, the application of the PFIC rules is subject to uncertainty in several
respects, including how the contractual arrangements between us and our affiliated entities will be
treated for purposes of the PFIC rules, and we cannot assure you that the U.S. Internal Revenue
Service will not take a contrary position. A non-U.S. corporation will be a PFIC for U.S. federal
income tax purposes for any taxable year if either:
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at least 75% of its gross income for such year is passive income; or |
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at least 50% of the value of its assets (based on an average of the quarterly values
of the assets) during such year is attributable to assets that produce passive income
or are held for the production of passive income. |
For this purpose, we will be treated as owning our proportionate share of the assets and earning
our proportionate share of the income of any other corporation in which we own, directly or
indirectly, at least 25% (by value) of the stock. In applying this rule, however, it is not clear
whether the contractual arrangements between us and our affiliated entities will be treated as
ownership of stock.
We must make a separate determination after the close of each taxable year as to whether we were a
PFIC for that year. Because the value of our assets for purposes of the PFIC test will generally
be determined by reference to the market price of our common shares, fluctuations in the market
price of the common shares may cause us to become a PFIC. In addition, changes in the composition
of our income or assets may cause us to become a PFIC.
If we are a PFIC for any taxable year during which you hold common shares, we generally will
continue to be treated as a PFIC with respect to you for all succeeding years during which you hold
the common shares, unless we cease to be a PFIC and you make a deemed sale election with respect
to the common shares, as applicable. If such election is made, you will be deemed to have sold the
common shares you hold at their fair market value and any gain from such deemed sale would be
subject to the rules described in the following two paragraphs. After the deemed sale election,
your common shares with respect to which the deemed sale election was made will not be treated as
shares in a PFIC unless we subsequently become a PFIC.
72
For each taxable year that we are treated as a PFIC with respect to you, you will be subject to
special tax rules with respect to any excess distribution you receive and any gain you recognize
from a sale or other disposition (including a pledge) of the common shares, unless you make a
mark-to-market election as discussed below. Distributions you receive in a taxable year that are
greater than 125% of the average annual distributions you
received during the shorter of the three preceding taxable years or your holding period for the
common shares will be treated as an excess distribution. Under these special tax rules:
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the excess distribution or recognized gain will be allocated ratably over your
holding period for the common shares; |
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the amount allocated to the current taxable year, and any taxable years in your
holding period prior to the first taxable year in which we were a PFIC, will be treated
as ordinary income; and |
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the amount allocated to each other taxable year will be subject to the highest tax
rate in effect for individuals or corporations, as applicable, for each such year and
the interest charge generally applicable to underpayments of tax will be imposed on the
resulting tax attributable to each such year. |
The tax liability for amounts allocated to taxable years prior to the year of disposition or excess
distribution cannot be offset by any net operating losses for such years, and gains (but not
losses) from a sale or other disposition of the common shares cannot be treated as capital, even if
you hold the common shares as capital assets.
If we are treated as a PFIC with respect to you for any taxable year, to the extent any of our
subsidiaries are also PFICs or we make direct or indirect equity investments in other entities that
are PFICs, you may be deemed to own shares in such lower-tier PFICs that are directly or indirectly
owned by us in that proportion which the value of the common shares you own bears to the value of
all of our common shares, and you may be subject to the rules described in the preceding two
paragraphs with respect to the shares of such lower-tier PFICs that you would be deemed to own.
You should consult your tax advisors regarding the application of the PFIC rules to any of our
subsidiaries.
A U.S. Holder of marketable stock (as defined below) in a PFIC may make a mark-to-market election
for such stock to elect out of the PFIC rules described above regarding excess distributions and
recognized gains. If you make a mark-to-market election for the common shares, you will include
in income for each year that we are a PFIC an amount equal to the excess, if any, of the fair
market value of the common shares you hold as of the close of your taxable year over your adjusted
basis in such common shares. You will be allowed a deduction for the excess, if any, of the
adjusted basis of the common shares over their fair market value as of the close of the taxable
year. However, deductions will be allowable only to the extent of any net mark-to-market gains on
the common shares included in your income for prior taxable years. Amounts included in your
income under a mark-to-market election, as well as any gain from the actual sale or other
disposition of the common shares, will be treated as ordinary income. Ordinary loss treatment
will apply to the deductible portion of any mark-to-market loss on the common shares, as well as
to any loss from the actual sale or other disposition of the common shares, to the extent that the
amount of such loss does not exceed the net mark-to-market gains previously included for such
common shares. Your basis in the common shares will be adjusted to reflect any such income or
loss amounts. The tax rules that apply to distributions by corporations which are not PFICs would
apply to distributions by us, except that the lower capital gains rate applicable to qualified
dividend income (discussed above under Taxation of dividends and other distributions on the
common shares) would not apply.
The mark-to-market election is available only for marketable stock, which is stock that is
regularly traded on a qualified exchange or other market, as defined in applicable U.S. Treasury
regulations. Our common shares are listed on the NYSE Amex, which is a qualified exchange or other
market for these purposes. Consequently, if the common shares continue to be listed on the NYSE
Amex and are regularly traded, and you are a holder of common shares, we expect that the
mark-to-market election would be available to you if we were to become a PFIC. Because a
mark-to-market election cannot be made for equity interests in any lower-tier PFICs that we own, a
U.S. Holder may continue to be subject to the PFIC rules described above regarding excess
distributions and recognized gains with respect to its indirect interest in any investments held by
us that are treated as an equity interest in a PFIC for U.S. federal income tax purposes. You
should consult your tax advisors as to the availability and desirability of a mark-to-market
election, as well as the impact of such election on interests in any lower-tier PFICs.
73
Alternatively, a U.S. Holder of stock of a PFIC may make a qualified electing fund election with
respect to such corporation to elect out of the PFIC rules described above regarding excess
distributions and recognized gains. A U.S. Holder that makes a qualified electing fund election
with respect to a PFIC will generally include in income for a taxable year such holders pro rata
share of the corporations income for the taxable year. However, you may make a qualified electing
fund election with respect to your common shares only if we agree to furnish you annually with
certain tax information, and we currently do not intend to prepare or provide such information.
Under newly enacted legislation, unless otherwise provided by the U.S. Treasury, each U.S.
shareholder of a PFIC is required to file an annual report containing such information as the U.S.
Treasury may require. Prior to such legislation, a U.S. shareholder of a PFIC was required to file
U.S. Internal Revenue Service Form 8621 only for each taxable year in which such shareholder
received distributions from the PFIC, recognized gain on a disposition of the PFIC stock, or made a
reportable election. If we become a PFIC, you should consult your tax advisors regarding any
reporting requirements that may apply to you.
You are strongly urged to consult your tax advisor regarding the application of the PFIC rules to
your investment in common shares.
Information reporting and backup withholding
Dividend payments with respect to common shares and proceeds from the sale, exchange or other
disposition of common shares may be subject to information reporting to the U.S. Internal Revenue
Service and possible U.S. backup withholding at a current rate of 28%. Backup withholding will not
apply, however, to a U.S. Holder that furnishes a correct taxpayer identification number and makes
any other required certification or that is otherwise exempt from backup withholding. U.S. Holders
that are required to establish their exempt status generally must provide such certification on
U.S. Internal Revenue Service Form W-9. Under newly enacted legislation, for taxable years
beginning after March 18, 2010, certain individuals holding the common shares other than in an
account at a financial institution may be subject to additional information reporting requirements.
U.S. Holders should consult their tax advisors regarding the application of the U.S. information
reporting and backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as backup withholding may be
credited against your U.S. federal income tax liability, and you may obtain a refund of any excess
amounts withheld under the backup withholding rules by filing an appropriate claim for refund with
the U.S. Internal Revenue Service and furnishing any required information in a timely manner.
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F. |
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Dividends and Paying Agents |
Not applicable.
Not applicable.
We have filed this annual report on Form 20-F, including exhibits, with the SEC. As allowed by the
SEC, in Item 19 of this annual report, we incorporate by reference certain information we filed
with the SEC. This means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated by reference is
considered to be part of this annual report.
The SEC also maintains a website that contains reports, proxy statements and other information
about issuers, such as us, who file electronically with the SEC. The address of that website is
www.sec.gov . The information on that website is not a part of this annual report.
We are subject to periodic reporting and other informational requirements of the Exchange Act, as
applicable to foreign private issuers. Accordingly, we are required to file reports, including
annual reports on Form 20-F, and
74
other information with the SEC. As a foreign private issuer, we are exempt from the rules of the
Exchange Act prescribing the furnishing and content of proxy statements to shareholders under the
federal proxy rules contained in Sections 14(a), (b) and (c) of the Exchange Act, and our executive
officers, directors and principal shareholders are exempt from the reporting and short-swing profit
recovery provisions contained in Section 16 of the Exchange Act. The registration statements,
reports and other information so filed can be inspected and copied at the public reference
facilities maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You can request
copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms.
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I. |
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Subsidiary Information |
Not applicable.
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Item 11 |
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Quantitative and Qualitative Disclosures About Market Risk |
Not applicable.
Item 12 Description of Securities Other than Equity Securities
Not applicable.
PART II
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Item 13 |
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Defaults, Dividend Arrearages and Delinquencies |
Not applicable.
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Item 14 |
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Material Modifications to the Rights of Security Holders and Use of Proceeds |
Not applicable.
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Item 15 |
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Controls and Procedures |
Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures designed to ensure that
information required to be disclosed by a registrant in reports filed or furnished under the
Securities Exchange Act of 1934 (the Exchange Act) is properly recorded, processed, summarized,
and reported, within the time periods specified in the SECs rules and forms. Disclosure controls
and procedures include processes to accumulate and evaluate relevant information and communicate
such information to the registrants management, including its principal executive officer and
principal financial officer, as appropriate, to allow for timely decisions regarding required
disclosure.
As required by Rules 13a-15 and 15d-15 under the Exchange Act, we evaluated the effectiveness of
the design and operation of our disclosure controls and procedures as of December 31, 2010. This
evaluation was carried out under the supervision and with the participation of our management,
including our principal executive officer and principal financial officer. As described below,
under Managements Annual Report on Internal Control Over Financial Reporting, material
weaknesses were identified in our internal control over financial reporting as of December 31,
2010. Based on the evaluation described above, our principal executive officer and principal
financial officer have concluded that, as of December 31, 2010, our disclosure controls and
procedures were not effective to ensure (1) that information required to be disclosed by us in the
reports we file or submit under the Exchange Act is recorded, processed, summarized, and reported,
within the time periods specified in the SECs rules and forms, and (2) that information required
to be disclosed by us in our reports that we file or submit under the Exchange Act is accumulated
and communicated to our management, including our principal executive officer and principal
financial officer, or persons performing similar functions, as appropriate, to allow for timely
decisions regarding required disclosure.
75
Managements Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over
financial reporting. Our internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of our
financial statements for external reporting purposes in accordance with GAAP.
Internal control over financial reporting cannot provide absolute assurance of achieving financial
reporting objectives because of its inherent limitations. Internal control over financial reporting
is a process that involves human diligence and compliance and is subject to lapses in judgment and
breakdowns resulting from human failures. Internal control over financial reporting also can be
circumvented by collusion or improper management override. Because of such limitations, there is a
risk that material misstatements may not be prevented or detected on a timely basis by internal
control over financial reporting. However, these inherent limitations are known features of the
financial reporting process. Therefore, it is possible to design into the process safeguards to
reduce, though not eliminate, this risk.
A material weakness in internal control over financial reporting (as defined in Auditing Standard
No. 2 of the Public Company Accounting Oversight Board) is a significant deficiency in internal
control over financial reporting, or combination of significant deficiencies, that results in more
than a remote likelihood that a material misstatement of the annual or interim financial statements
will not be prevented or detected. A significant deficiency is a control deficiency, or combination
of control deficiencies, that adversely affects a companys ability to initiate, authorize, record,
process, or report external financial data reliably in accordance with GAAP such that there is more
than a remote likelihood that a misstatement of the companys annual or interim financial
statements that is more than inconsequential will not be prevented or detected. Management assessed
the effectiveness of our internal control over financial reporting as of December 31, 2010, using
the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO) in Internal Control-Integrated Framework.
On August 20, 2010, we announced that as a result of the continued internal analysis of our
financial statements for the year ended December 31, 2009, the audit committee of our board of
directors (the Audit Committee), based on managements recommendation, determined that the
historical financial statements of SearchMedia International for the years ended December 31, 2007
and December 31, 2008 should be restated. Management and the Audit Committee identified several key
areas of a material weakness in our internal control over financial reporting that are primarily
responsible for the restatement of our 2007 and 2008 financial statements. These areas are:
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Revenue recognition and accounts receivable issues; |
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Disclosure, approval, and documentation of related entity transactions; |
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Recording of various erroneous transactions by certain employees; |
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Recording of certain assets and other accounting irregularities related to
acquisitions; |
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Diligence and approval of questionable transactions; and |
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Confirmation of payments related to acquisitions. |
Our management and audit committee have developed a list of identified goals and directives to
enhance our internal control over financial reporting, with the goal of remediating the material
weaknesses identified above. Our full board of directors has adopted these recommendations, and we
have made significant progress on our remediation plan.
There were significant changes in our internal control over financial reporting that occurred
during the period ended December 31, 2010 that have materially affected, or are reasonably likely
to materially affect, our internal control over financial reporting as a result of the
implementation of the remediation plan. The following changes address the material weaknesses in
our internal control over financial reporting identified during year ended December 31, 2010:
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The Company has hired more qualified accountants at its corporate offices and
subsidiary locations. |
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The Company identified key control points for continuous monitoring of and design
effective controls for each business cycle, particularly with regard to
revenues/accounts receivable and expenses/accounts payable. |
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The Company updated an accounting manual and provided training to all relevant
employees. |
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The Company worked with legal counsel and external consultants and developed a
complete set of written compliance policies and provided regular tailored training to
relevant senior management on following issues: |
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Fiduciary duties of officers and directors; |
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Foreign Corrupt Practices Act risks; |
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Insider trading; |
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Code of Business Ethics and Conduct; |
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Sarbanes Oxley and importance of accurate financial statements
with focus on China-related accounting risks; |
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Third party whistleblower. |
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The Company improved diligence and approval of transactions, repository of
documentation to support supplier and client contracts and undertake the following: |
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Strengthened contracts review and authorization processes; |
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Revised internal contracts review and authorization policy; |
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Implemented checklists of documentation that must be provided
and filed for each material contract; |
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Strengthened advertising monitoring reports system and obtain clients feedback; |
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Continue regular updating of business intelligence on counterparties. |
A re-assessment of the effectiveness of our internal control over financial reporting was performed
as of December 31, 2010; management identified material weaknesses in internal control over
financial reporting are as follows:
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Revenue recognition and accounts receivable recoverability review; |
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Disclosure, approval, and documentation of transactions among entities related to
prior owners of acquired subsidiaries (which we refer to as related entity
transactions); |
As a result of this deficiency in our internal control over financial reporting, we did not detect
errors in an overstatement of approximately $3.0 million in revenue for the year ended December 31,
2010 and have to make additional accounts receivable provision of approximately $1.2 million. We
also have reclassification entries of approximately $1.0 million as related parties transactions.
The Company continues to improve management of sales contracts and accounts receivable by
implementing the following measures:
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Revise accounts receivable credit policy and conduct more regular bad debt reviews
and evaluation of provisions; |
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Ensure effective implementation of aging analysis and update collection reports more
frequently; |
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Commissioning selective periodic independent confirmations to confirm that
advertisements have been placed in accordance with agreements, particularly in
connection with high value sales where the client is not an 4As (defined as American
Association of Advertising Agencies) company. |
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Clarify and mitigate related-party issues, identify and implement control points for
each process, including requiring divestment of shareholders personal interests where
appropriate; |
77
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Improve transparency of financial reporting procedures; and |
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Increase internal controls, in particular regarding subsidiaries cash. |
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Item 16A |
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Audit Committee Financial Expert |
The Board of Directors has determined that Mr. Halpryn meets the attributes of an audit committee
financial expert within the meaning of SEC regulations and is independent within the meaning of
the listing standards of NYSE Amex and applicable SEC regulations.
We have adopted a Code of Ethics applicable to our directors, officers and employees including our
Chief Executive Officer, Chief Financial Officer and principal accounting officer. A copy of our
Code of Ethics is available on our website at www.searchmediaholdings.com. We intend to
post amendments to or waivers from our Code of Ethics (to the extent applicable to our Chief
Executive Officer, Chief Financial Officer or principal accounting officer or to our directors) on
our website. Our website is not part of this Annual Report on Form 20-F.
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Item 16C |
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Principal Accountant Fees and Services |
The following table presents fees for professional services rendered by Marcum Bernstein & Pinchuk
LLP (MarcumBP), our independent registered public accounting firm, for the audit of our annual
financial statements, fees for audit-related services, tax services and all other services.
MarcumBP was formed pursuant to a joint venture agreement between the practice of Bernstein &
Pinchuk LLP (B&P), our former independent registered public accounting firm, and Marcum LLP.
Accordingly, B&P effectively resigned as the Companys independent registered public accounting
firm and MarcumBP became the Companys independent registered public accounting firm. The change
in the Companys independent registered public accounting firm was approved by the Audit Committee
of the Companys Board of Directors on April 22, 2011.
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Fiscal |
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Fiscal |
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2010 |
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2009(1)(2) |
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Audit fees |
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$ |
350,000 |
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$ |
450,000 |
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Audit related fees |
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Tax fees |
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All other fees |
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$ |
350,000 |
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$ |
450,000 |
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(1) |
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Does not include fees of KPMG. KPMG served as the auditor for SearchMedia International
during Fiscal 2009. KPMGs fees during Fiscal 2009 consisted of $1,038,078 of audit fees and
$30,900 of all other fees. On May 7, 2010, KPMG resigned as our auditor. |
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(2) |
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Does not include fees of Rothstein, Kass & Company (Rothstein), Ideations independent
registered public accountant for Fiscal 2009, through completion of the Business Combination.
Rothsteins fees during Fiscal 2009 consisted of $40,260. |
All audit related services, tax services and other services were pre-approved by our Audit
Committee, which concluded that the provision of such services by Rothstein and Marcum Bernstein &
Pinchuk LLP were compatible with the maintenance of that firms independence in the conduct of its
auditing functions. Our Audit Committee must review and pre-approve both audit and permitted
non-audit services provided by the independent registered public accounting firm and shall not
engage the independent registered public accounting firm to perform any non-audit services
prohibited by law or regulation. At each Audit Committee meeting, our Audit Committee receives
updates on the services actually provided by the independent registered public accounting firm, and
management may present additional services for pre-approval. Our Audit Committee has delegated to
the Chairman of the Audit Committee the authority to evaluate and approve engagements on behalf of
the Audit Committee in the event that a need arises for pre-approval between regular Audit
Committee meetings. If the Chairman so approves any such engagements, he will report that approval
to the full Audit Committee at the next Audit Committee meeting.
78
Each year, the independent registered public accounting firms retention to audit our financial
statements, including the associated fee, is approved by our Audit Committee before the filing of
the preceding years Annual Report on Form 10-K or Form 20-F.
|
|
|
Item 16D |
|
Exemptions from the Listing Standards for Audit Committees |
Not applicable.
|
|
|
Item 16E |
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers |
During January 2010, the Company repurchased in aggregate, 1,738,500 warrants in the open market
for total consideration of $3,808 under a Board authorized plan.
ISSUER PURCHASES OF EQUITY SECURITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(d) Maximum |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number (or |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c) Total Number of |
|
|
Approximate Dollar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants Purchased |
|
|
Value) of Warrants |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as Part of Publicly |
|
|
that May Yet Be |
|
|
|
|
|
(a) Total Number of |
|
|
(b) Average Price |
|
|
Announced Plans or |
|
|
Purchased Under the |
|
|
Period |
|
|
Warrants Purchased |
|
|
Paid per Warrant |
|
|
Programs |
|
|
Plans or Programs |
|
|
January 1, 2010 -
January 31, 2010
|
|
|
|
1,738,500 |
|
|
|
$ |
2.19 |
|
|
|
|
1,738,500 |
|
|
|
$ |
1,190,562 |
|
|
|
|
|
|
Item 16F |
|
Change in Registrants Certifying Accountant |
As a result of the joint venture agreement between Bernstein & Pinchuk (B&P) and Marcum LLP, B&P resigned to allow the Company to enter into a new engagement with the newly
formed entity Marcum Bernstein & Pinchuk LLP (MarcumBP), which will replace B&P moving forward. The joint venture does not disrupt
or alter the location of or the composition of the existing audit team working with SearchMedia.
The Audit Committee engaged MarcumBP as its independent registered public accounting firm effective
immediately.
B&P had been engaged by the Company to audit its financial statements since May 2010 and provided
its audit report for the Companys financial statements for the years ended December 31, 2009 and
December 31, 2008. During these fiscal years and the subsequent interim period, B&Ps reports did
not contain an adverse opinion or disclaimer of opinion, were not qualified or modified and
contained no disagreements on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure.
|
|
|
Item 16G |
|
Corporate Governance |
Section 110 of the NYSE AMEX LLC Company Guide permits foreign private issuers like us to follow
home country practice with respect to certain corporate governance matters. We are not aware of
any significant ways in which our corporate governance practices differ from those followed by U.S.
domestic companies under the NYSE AMEX LLC Company Guide.
PART III
|
|
|
Item 17 |
|
Financial Statements |
We have elected to provide financial statements pursuant to Item 18.
79
|
|
|
Item 18 |
|
Financial Statements |
The consolidated financial statements of SearchMedia Holdings Limited and its subsidiaries are
included at the end of this annual report.
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibits |
1.1
|
|
Memorandum and Articles of Association of SearchMedia Holdings Limited upon
completion of redomestication. (incorporated by reference to Exhibit 3.3 of the
Registrants current report on Form 8-K dated November 5, 2009 (File No.
333-158336)). |
2.1
|
|
Form of Warrant of SearchMedia Holdings Limited (incorporated by reference to
Exhibit 4.5 of the Registrants Registration Statement on Form S-4 (File No.
333-158336)). |
3.1
|
|
Form of Voting Agreement between SearchMedia International Limited, Qinying Liu,
Le Yang, China Seed Ventures, L.P., Gentfull Investment Limited, Gavast Estates
Limited, Linden Ventures II (BVI), Limited, Frost Gamma Investments Trust, Robert
N. Fried, Subbarao Uppaluri, Steven D. Rubin and Jane Hsiao (incorporated by
reference to Exhibit 10.4 of the Registrants Registration Statement on Form S-4
(File No. 333-158336)). |
4.1
|
|
Agreement and Plan of Merger, Conversion and Share Exchange by and among Ideation
Acquisition Corp., the registrant, SearchMedia International Limited, the
subsidiaries of SearchMedia International Limited, the subsidiaries of SearchMedia
International Limited, Shanghai Jingli Advertising Co., Ltd. and certain
shareholders and warrant holders of SearchMedia International Limited
(incorporated by reference to Exhibit 2.1 of the Registrants Registration
Statement on Form S-4 (File No. 333-158336)). |
4.2
|
|
First Amendment to Agreement and Plan of Merger, Conversion and Share Exchange,
dated as of May 27, 2009, by and among the registrant, Earl Yen, Tommy Cheung and
Stephen Lau and Qinying Liu (incorporated by reference to Exhibit 2.2 of the
Registrants Registration Statement on Form S-4 (File No. 333-158336)). |
4.3
|
|
Second Amendment to Agreement and Plan of Merger, Conversion and Share Exchange,
dated as of September 8, 2009, by and among the registrant, Earl Yen, Tommy
Cheung, Stephen Lau, Qinying Liu, Linden Ventures, Inc., Vervain Equity Investment
Limited, Sun Hing Associates Limited and The Frost Group, LLC (incorporated by
reference to Exhibit 2.3 of the Registrants Registration Statement on Form S-4
(File No. 333-158336)). |
4.4
|
|
Third Amendment to Agreement and Plan of Merger, Conversion and Share Exchange,
dated as of September 22, 2009, by and among the registrant, Ideation Acquisition
Corp., Earl Yen, Tommy Cheung, Terrance Hogan, Qinying Liu, and Linden Ventures II
(BVI), Ltd. (incorporated by reference to Exhibit 2.4 of the Registrants
Registration Statement on Form S-4 (File No. 333-158336)). |
4.5
|
|
Fourth Amendment to Agreement and Plan of Merger, Conversion and Share Exchange,
dated as of October 30, 2009, by and among the registrant, Ideation Acquisition
Corp., Earl Yen, Tommy Cheung, Stephen Lau and Qinying Liu. (incorporated by
reference to Exhibit 2.5 of the Registrants current report on Form 8-K dated
November 5, 2009 (File No. 333-158336)). |
4.6
|
|
Form of Registration Rights Agreement among SearchMedia International Limited,
Deutsche Bank AG, Hong Kong Branch, Gentfull Investment Limited, Gavast Estates
Limited, China Seed Ventures, L.P. and Linden Ventures II (BVI) (incorporated by
reference to Exhibit 10.1 of the Registrants Registration Statement on Form S-4
(File No. 333-158336)). |
4.7
|
|
Form of Lock-Up between SearchMedia Holdings Limited and SearchMedia International
Limited shareholders and warrant holders (incorporated by reference to Exhibit
10.2 of the Registrants Registration Statement on Form S-4 (File No.
333-158336)). |
4.8
|
|
Form of Management Lock-Up between SearchMedia Holdings Limited and SearchMedia
International Limited shareholders and warrant holders (incorporated by reference
to Exhibit 10.3 of the Registrants Registration Statement on Form S-4 (File No.
333-158336)).* |
80
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibits |
4.9
|
|
Form of Employment Agreement with the SearchMedia International Limited executive
officers (incorporated by reference to Exhibit 10.5 of the Registrants
Registration Statement on Form S-4 (File No. 333-158336)).* |
4.10
|
|
English Translation of Exclusive Technology Consulting and Service Agreement
between Jieli Consulting and Jingli Shanghai, dated as of September 10, 2007
(incorporated by reference to Exhibit 10.6 of the Registrants Registration
Statement on Form S-4 (File No. 333-158336)). |
4.11
|
|
English Translation of Exclusive Call Option Agreement among Jingli Shanghai, its
shareholders and Jieli Consulting, dated as of September 10, 2007 (incorporated by
reference to Exhibit 10.7 of the Registrants Registration Statement on Form S-4
(File No. 333-158336)). |
4.12
|
|
English Translation of Equity Pledge Agreement among Jingli Shanghai, its
shareholders and Jieli Consulting, dated as of September 10, 2007 (incorporated by
reference to Exhibit 10.8 of the Registrants Registration Statement on Form S-4
(File No. 333-158336)). |
4.13
|
|
English Translation of Power of Attorney by the shareholders of Jieli Consulting
dated as of September 10, 2007 (incorporated by reference to Exhibit 10.9 of the
Registrants Registration Statement on Form S-4 (File No. 333-158336)). |
4.14
|
|
English Translation of Loan Agreement between the shareholders of Jingli Shanghai
and Jieli Consulting, dated as of September 10, 2007 (incorporated by reference to
Exhibit 10.10 of the Registrants Registration Statement on Form S-4 (File No.
333-158336)). |
4.15
|
|
Letter Agreement, dated as of September 8, 2009, by and among Ideation Acquisition
Corp. and certain investors of Ideation Acquisition Corp. and SearchMedia
International Limited (incorporated by reference to Exhibit 10.13 of the
Registrants Registration Statement on Form S-4 (File No. 333-158336)). |
4.16
|
|
SearchMedia Holdings Limited Amended and Restated 2008 Share Incentive Plan*
(incorporated by reference to Exhibit 10.13 of the Registrants current report on
Form 8-K dated November 5, 2009 (File No. 333-158336)). |
4.17
|
|
Executive Employment Agreement between SearchMedia Holdings Limited and Wilfred
Chow dated December 30, 2009 (incorporated by reference to Exhibit 10.1 of the
Registrants current report on Form 8-K dated January 6, 2010 (File No.
333-158336)).* |
4.18
|
|
Executive Employment Agreement between SearchMedia Holdings Limited and Paul
Conway dated January 29, 2010 (incorporated by reference to Exhibit 10.1 of the
Registrants current report on Form 8-K dated February 3, 2010 (File No.
333-158336)).* |
8.1
|
|
Subsidiaries of SearchMedia Holdings Limited ** |
12.1
|
|
Certification of Chief Executive Officer filed pursuant to 17 CFR 240.13a-14(a). ** |
12.2
|
|
Certification of Chief Financial Officer filed pursuant to 17 CFR 240.13a-14(a). ** |
13.1
|
|
Certification of Chief Executive Officer furnished pursuant to 17 CFR
240.13a-14(b) and 18 U.S.C. Section 1350.*** |
13.2
|
|
Certification of Chief Financial Officer furnished pursuant to 17 CFR
240.13a-14(b) and 18 U.S.C. Section 1350.*** |
|
|
|
* |
|
Management contract or compensatory plan or arrangement |
|
** |
|
Filed herewith |
|
*** |
|
Furnished herewith |
81
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and
that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
|
|
|
|
|
|
(Registrant)
|
|
|
By: |
/s/
Wilfred Chow |
|
|
|
Name: |
Wilfred Chow |
|
|
|
Title: |
Chief Financial Officer |
|
|
Date:
June 30, 2011
82
SEARCHMEDIA HOLDINGS LIMITED
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
|
|
Page |
|
|
F-2 |
|
|
F-4 |
|
|
F-6 |
|
|
F-7 |
|
|
F-8 |
|
|
F-9 |
F-1
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of
SearchMedia Holdings Limited
We have audited the accompanying consolidated balance sheets of SearchMedia
Holdings Limited, (the Company) as of December 31, 2009 and the related
consolidated statements of operations, changes in shareholders equity and
comprehensive (loss)/income, and cash flows for each of the years in the
two-year period ended December 31, 2009. The Companys management is
responsible for these consolidated financial statements. Our responsibility
is to express an opinion on these consolidated financial statements based on
our audit.
We conducted our audit in accordance with the standards of the Public
Company Accounting Oversight Board (United States). Those standards require
that we plan and perform the audit to obtain reasonable assurance about
whether the consolidated financial statements are free of material
misstatement. The Company is not required to have, nor were we engaged to
perform, an audit of its internal control over financial reporting. Our
audit included consideration of internal control over financial reporting as
a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the
effectiveness of the Companys internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes examining,
on a test basis, evidence supporting the amounts and disclosures in the
consolidated financial statements, assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall consolidated financial statement presentation. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of the
Company as of December 31, 2009 and the results of its operations and its
cash flows for each of the years in the two-year period ended December 31,
2009 in conformity with accounting principles generally accepted in the
United States of America.
/s/ Bernstein & Pinchuk LLP
New York, New York
October 29, 2010
F-2
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of
SearchMedia Holdings Limited
We have audited the accompanying consolidated balance sheets of SearchMedia Holdings Limited, (the
Company) as of December 31, 2010 and the related consolidated statements of operations, changes
in shareholders equity and comprehensive (loss)/income, and cash flows for the year then ended.
The Companys management is responsible for these consolidated financial statements. Our
responsibility is to express an opinion on these consolidated financial statements based on our
audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are free of material
misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audit included consideration of internal control
over financial reporting as a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the effectiveness of the
Companys internal control over financial reporting. Accordingly, we express no such opinion. An
audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in
the consolidated financial statements, assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall consolidated financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the financial position of the Company as of December 31, 2010 and the results of
its operations and its cash flows for the year then ended in conformity with accounting principles
generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming that the Company will continue as
a going concern. As discussed in Note 2 to the consolidated financial statements, the Company has
suffered recurring net losses from operations and has a working capital deficiency, which raises
substantial doubt about its ability to continue as a going concern. Managements plans regarding
those matters also are described in Note 2. The financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/s/ Marcum Bernstein & Pinchuk LLP
New York, New York
June 30, 2011
F-3
SEARCHMEDIA HOLDINGS LIMITED
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except share data)
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
CURRENT ASSETS |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
29,398 |
|
|
$ |
7,554 |
|
Restricted cash |
|
|
270 |
|
|
|
11 |
|
Accounts receivable, net |
|
|
12,996 |
|
|
|
18,065 |
|
Amounts due from related parties |
|
|
2,840 |
|
|
|
966 |
|
Prepaid expenses and other current assets |
|
|
4,656 |
|
|
|
8,340 |
|
Deferred tax assets |
|
|
480 |
|
|
|
891 |
|
|
|
|
Total current assets |
|
|
50,640 |
|
|
|
35,827 |
|
NON-CURRENT ASSETS |
|
|
|
|
|
|
|
|
Property and equipment, net |
|
|
1,405 |
|
|
|
1,133 |
|
Deposits for property and equipment |
|
|
553 |
|
|
|
2 |
|
Intangible assets, net |
|
|
1,276 |
|
|
|
3,954 |
|
Goodwill |
|
|
45,891 |
|
|
|
45,955 |
|
|
|
|
Total assets |
|
$ |
99,765 |
|
|
$ |
86,871 |
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES & SHAREHOLDERS EQUITY |
|
|
|
|
|
|
|
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
9,013 |
|
|
$ |
13,894 |
|
Accrued expenses and other payables |
|
|
15,898 |
|
|
|
17,931 |
|
Short-term borrowings |
|
|
654 |
|
|
|
729 |
|
Acquisition consideration payable |
|
|
16,381 |
|
|
|
29,033 |
|
Amounts due to related parties |
|
|
346 |
|
|
|
1,958 |
|
Deferred revenue |
|
|
1,902 |
|
|
|
2,481 |
|
Income taxes payable |
|
|
6,855 |
|
|
|
9,228 |
|
|
|
|
Total current liabilities |
|
|
51,049 |
|
|
|
75,254 |
|
NON-CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
Long-term acquisition consideration payable |
|
|
|
|
|
|
10,162 |
|
Long-term payables |
|
|
|
|
|
|
3 |
|
Deferred tax liabilities |
|
|
316 |
|
|
|
989 |
|
|
|
|
Total liabilities |
|
|
51,365 |
|
|
|
86,408 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingency (Note 18) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHAREHOLDERS EQUITY |
|
|
|
|
|
|
|
|
Common Shares $0.0001 par value, 1,000,000,000
shares authorized, 20,758,368 and 20,858,661
shares issued and outstanding on December 31,
2009 and 2010, respectively |
|
|
2 |
|
|
|
2 |
|
Additional paid-in capital |
|
|
122,922 |
|
|
|
121,521 |
|
Accumulated other comprehensive income |
|
|
1,050 |
|
|
|
1,153 |
|
Accumulated deficit |
|
|
(75,574 |
) |
|
|
(122,213 |
) |
|
|
|
Total shareholders equity |
|
|
48,400 |
|
|
|
463 |
|
|
|
|
Total liabilities and shareholders equity |
|
$ |
99,765 |
|
|
$ |
86,871 |
|
|
|
|
F-4
The following table includes assets to settle liabilities of the consolidated variable interest
entities. These assets and liabilities are included in the consolidated balance sheets above.
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
5,167 |
|
|
$ |
1,942 |
|
Accounts receivable, net |
|
|
12,564 |
|
|
|
3,586 |
|
Property and equipment, net |
|
|
562 |
|
|
|
359 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
8,863 |
|
|
$ |
5,072 |
|
Accrued expenses and other payables |
|
|
12,925 |
|
|
|
8,098 |
|
Short-term borrowings |
|
|
654 |
|
|
|
|
|
Deferred revenue |
|
|
1,674 |
|
|
|
171 |
|
See accompanying notes to consolidated financial statements
F-5
SEARCHMEDIA HOLDINGS LIMITED
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands, except share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
Advertising services revenues |
|
$ |
41,685 |
|
|
$ |
37,741 |
|
|
$ |
48,967 |
|
Cost of revenues |
|
|
(30,624 |
) |
|
|
(28,059 |
) |
|
|
(36,454 |
) |
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
11,061 |
|
|
|
9,682 |
|
|
|
12,513 |
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing expenses |
|
|
(6,117 |
) |
|
|
(3,384 |
) |
|
|
(4,462 |
) |
General and administrative expenses |
|
|
(13,135 |
) |
|
|
(13,832 |
) |
|
|
(12,203 |
) |
|
|
|
|
|
|
|
|
|
|
Loss from operations |
|
|
(8,191 |
) |
|
|
(7,534 |
) |
|
|
(4,152 |
) |
Other income/(expense) |
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
131 |
|
|
|
11 |
|
|
|
24 |
|
Interest expense |
|
|
(2,717 |
) |
|
|
(1,962 |
) |
|
|
(45 |
) |
Decrease in fair value of liability
warrant |
|
|
|
|
|
|
824 |
|
|
|
|
|
Gain/(loss) on extinguishment of notes |
|
|
(4,400 |
) |
|
|
6,669 |
|
|
|
|
|
Loss on impairment of goodwill and
intangible assets |
|
|
(13,953 |
) |
|
|
(15,749 |
) |
|
|
(39,411 |
) |
Loss on abandonment of lease |
|
|
(46 |
) |
|
|
(550 |
) |
|
|
(1,256 |
) |
Loss on impairment of fixed assets |
|
|
(2,135 |
) |
|
|
|
|
|
|
|
|
Loss on disposal of fixed assets |
|
|
(2,121 |
) |
|
|
(15 |
) |
|
|
(4 |
) |
Other income/(expense), net |
|
|
|
|
|
|
|
|
|
|
(368 |
) |
Foreign currency transaction loss, net |
|
|
(167 |
) |
|
|
(24 |
) |
|
|
(7 |
) |
|
|
|
|
|
|
|
|
|
|
Total other expense |
|
|
(25,408 |
) |
|
|
(10,796 |
) |
|
|
(41,067 |
) |
|
Loss before income taxes |
|
|
(33,599 |
) |
|
|
(18,330 |
) |
|
|
(45,219 |
) |
Provision for income taxes |
|
|
(1,481 |
) |
|
|
(4,319 |
) |
|
|
(1,420 |
) |
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(35,080 |
) |
|
$ |
(22,649 |
) |
|
$ |
(46,639 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss per share |
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted |
|
$ |
(0.0162 |
) |
|
$ |
(0.0044 |
) |
|
$ |
(0.0022 |
) |
|
|
|
|
|
|
|
|
|
|
Weighted average number of shares
outstanding |
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted |
|
|
2,169,269 |
|
|
|
5,100,465 |
|
|
|
20,796,789 |
|
|
|
|
|
|
|
|
|
|
|
The following table includes operating results of the consolidated variable interest entities.
These operating results are included in the consolidated statements of operations above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
Advertising services revenues |
|
$ |
39,837 |
|
|
$ |
36,289 |
|
|
$ |
20,709 |
|
Gross profit |
|
|
10,897 |
|
|
|
9,924 |
|
|
|
5,556 |
|
Net loss |
|
|
(22,874 |
) |
|
|
(23,589 |
) |
|
|
(19,194 |
) |
See accompanying notes to consolidated financial statements
F-6
SEARCHMEDIA HOLDINGS LIMITED
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS EQUITY
AND COMPREHENSIVE (LOSS)/INCOME
(Amounts in thousands, except share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series A convertible |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
|
preferred shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number |
|
|
|
|
|
|
Number |
|
|
|
|
|
|
Additional |
|
|
Other |
|
|
|
|
|
|
Total |
|
|
|
|
|
|
of |
|
|
Amount |
|
|
of |
|
|
Amounts |
|
|
paid-in |
|
|
comprehensive |
|
|
Accumulated |
|
|
shareholders |
|
|
Comprehensive |
|
|
|
Shares |
|
|
US$ |
|
|
shares |
|
|
US$ |
|
|
capital |
|
|
income |
|
|
deficit |
|
|
(deficit)/equity |
|
|
Loss Amount |
|
|
Beginning as of January 1, 2008 |
|
|
2,169,269 |
|
|
$ |
|
|
|
|
675,374 |
|
|
$ |
722 |
|
|
$ |
389 |
|
|
$ |
201 |
|
|
$ |
(4,937 |
) |
|
$ |
(3,625 |
) |
|
$ |
(9,426 |
) |
Net loss |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(35,080 |
) |
|
|
(35,080 |
) |
|
|
(35,080 |
) |
Foreign currency exchange
translation adjustment |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
898 |
|
|
|
|
|
|
|
898 |
|
|
|
898 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(34,182 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Convertible note beneficial
conversion feature |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Extinguishment of the notes |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion to Series B
redeemable convertible
preferred shares redemption
value |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
(414 |
) |
|
|
|
|
|
|
(4,758 |
) |
|
|
(5,172 |
) |
|
|
|
|
Accretion to Series C
redeemable convertible
preferred shares redemption
value |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,949 |
) |
|
|
(1,949 |
) |
|
|
|
|
Note warrant transferred to
equity warrant |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
997 |
|
|
|
|
|
|
|
|
|
|
|
997 |
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
311 |
|
|
|
|
|
|
|
|
|
|
|
311 |
|
|
|
|
|
Statutory reserve |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
102 |
|
|
|
|
|
|
|
(102 |
) |
|
|
|
|
|
|
|
|
Cumulative effective of
reclassification of warrants
under EITF 07-5 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
520 |
|
|
|
520 |
|
|
|
|
|
Note warrant transferred from
equity to liability under EITF
07-5 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
(997 |
) |
|
|
|
|
|
|
|
|
|
|
(997 |
) |
|
|
|
|
Warrant B transferred from
equity to liability under
EITF 07-5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(388 |
) |
|
|
|
|
|
|
|
|
|
|
(388 |
) |
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2008 |
|
|
2,169,269 |
|
|
|
|
|
|
|
675,374 |
|
|
|
722 |
|
|
|
|
|
|
|
1,099 |
|
|
|
(46,306 |
) |
|
|
(44,485 |
) |
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(22,649 |
) |
|
|
(22,649 |
) |
|
$ |
(22,649 |
) |
Foreign currency exchange
translation adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(49 |
) |
|
|
|
|
|
|
(49 |
) |
|
|
(49 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(22,698 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Returned of shares to the
company by certain
shareholders |
|
|
(100,338 |
) |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase from shareholders |
|
|
(79,579 |
) |
|
|
|
|
|
|
| |
|
|
|
|
|
|
(628 |
) |
|
|
|
|
|
|
|
|
|
|
(628 |
) |
|
|
|
|
Extinguishment of the notes
Accretion to Series B
redeemable convertible
preferred shares redemption
value |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,525 |
) |
|
|
(3,525 |
) |
|
|
|
|
Accretion to Series C
redeemable convertible
preferred shares redemption
value |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,058 |
) |
|
|
(3,058 |
) |
|
|
|
|
Statuary reserve |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
36 |
|
|
|
|
|
|
|
(36 |
) |
|
|
|
|
|
|
|
|
Conversion of Series A to
common shares |
|
|
675,374 |
|
|
|
|
|
|
|
(675,374 |
) |
|
|
(722 |
) |
|
|
722 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of Series B to
common shares |
|
|
2,205,549 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
26,931 |
|
|
|
|
|
|
|
|
|
|
|
26,931 |
|
|
|
|
|
Conversion of Series C to
common shares |
|
|
1,712,874 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
17,790 |
|
|
|
|
|
|
|
|
|
|
|
17,790 |
|
|
|
|
|
Conversion of convertible note
to common shares |
|
|
1,712,874 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
6,830 |
|
|
|
|
|
|
|
|
|
|
|
6,830 |
|
|
|
|
|
Reverse acquisition of Ideation |
|
|
12,462,345 |
|
|
|
2 |
|
|
|
| |
|
|
|
|
|
|
69,253 |
|
|
|
|
|
|
|
|
|
|
|
69,255 |
|
|
|
|
|
IDI warrant transferred to
APIC under EITF 07-5 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
1,577 |
|
|
|
|
|
|
|
|
|
|
|
1,577 |
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
411 |
|
|
|
|
|
|
|
|
|
|
|
411 |
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2009 |
|
|
20,758,368 |
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
122,922 |
|
|
|
1,050 |
|
|
|
(75,574 |
) |
|
|
48,400 |
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(46,639 |
) |
|
|
(46,639 |
) |
|
$ |
(46,639 |
) |
Foreign currency exchange
translation adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
103 |
|
|
|
|
|
|
|
103 |
|
|
|
103 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(46,536 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase of warrants |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,809 |
) |
|
|
|
|
|
|
|
|
|
|
(3,809 |
) |
|
|
|
|
Exercise of warrants |
|
|
1,460 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9 |
|
|
|
|
|
|
|
|
|
|
|
9 |
|
|
|
|
|
Share issued |
|
|
6,250 |
|
|
|
| |
|
|
| |
|
|
| |
|
|
|
|
|
|
| |
|
|
| |
|
|
|
|
|
|
|
|
Issuance of common shares for
share incentive plan |
|
|
92,583 |
|
|
|
| |
|
|
| |
|
|
| |
|
|
1 |
|
|
|
| |
|
|
| |
|
|
1 |
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,398 |
|
|
|
|
|
|
|
|
|
|
|
2,398 |
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31 2010 |
|
|
20,858,661 |
|
|
$ |
2 |
|
|
|
|
|
|
$ |
|
|
|
|
121,521 |
|
|
$ |
1,153 |
|
|
$ |
(122,213 |
) |
|
$ |
463 |
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements
F-7
SEARCHMEDIA HOLDINGS LIMITED
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands, except share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(35,080 |
) |
|
$ |
(22,649 |
) |
|
$ |
(46,639 |
) |
Adjustments to reconcile net income to net cash used in
operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization of property and equipment |
|
|
1,268 |
|
|
|
399 |
|
|
|
404 |
|
Amortization of intangible assets |
|
|
3,022 |
|
|
|
2,015 |
|
|
|
1,737 |
|
Share-based compensation |
|
|
311 |
|
|
|
411 |
|
|
|
2,398 |
|
Amortization on discount on convertible notes |
|
|
997 |
|
|
|
|
|
|
|
|
|
Deferred tax expenses / (benefit) |
|
|
(2,140 |
) |
|
|
825 |
|
|
|
(817 |
) |
Increase in fair value of note warrant liability |
|
|
|
|
|
|
(824 |
) |
|
|
|
|
Loss / (gain) on extinguishment of the notes |
|
|
4,400 |
|
|
|
(6,669 |
) |
|
|
|
|
Loss on impairment of goodwill and intangible assets |
|
|
13,953 |
|
|
|
15,749 |
|
|
|
39,411 |
|
Loss on impairment of fixed assets |
|
|
2,135 |
|
|
|
|
|
|
|
|
|
Loss on disposals of fixed assets |
|
|
2,121 |
|
|
|
15 |
|
|
|
4 |
|
Bad debt provision on prepaid expenses and other current assets |
|
|
|
|
|
|
|
|
|
|
1,006 |
|
Bad debt provision on accounts receivables |
|
|
703 |
|
|
|
1,611 |
|
|
|
1,139 |
|
Changes in operating assets and liabilities, net of
effect of acquisitions for 2008 and 2010 respectively: |
|
|
|
|
|
|
|
|
|
|
|
|
(Increase) / decrease in assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(9,613 |
) |
|
|
(4,434 |
) |
|
|
(6,004 |
) |
Prepaid expenses and other current assets |
|
|
(4,588 |
) |
|
|
1,737 |
|
|
|
(4,331 |
) |
Amounts due to/from related parties |
|
|
(2,175 |
) |
|
|
417 |
|
|
|
1,882 |
|
Increase / (decrease) in liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable |
|
|
6,310 |
|
|
|
1,603 |
|
|
|
4,882 |
|
Accrued expenses and other payables |
|
|
11,226 |
|
|
|
(1,462 |
) |
|
|
2,034 |
|
Amounts due to/from related parties |
|
|
597 |
|
|
|
(252 |
) |
|
|
1,612 |
|
Deferred revenue |
|
|
1,959 |
|
|
|
(293 |
) |
|
|
579 |
|
Income taxes payable |
|
|
3,143 |
|
|
|
3,026 |
|
|
|
2,373 |
|
|
|
|
Net cash provided by/ (used in) operating activities |
|
|
(1,451 |
) |
|
|
(8,775 |
) |
|
|
1,670 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property and equipment |
|
|
(3,460 |
) |
|
|
(150 |
) |
|
|
(140 |
) |
Proceeds from disposals of property and equipment |
|
|
|
|
|
|
244 |
|
|
|
3 |
|
Cash acquired upon the consideration of a subsidiary |
|
|
|
|
|
|
|
|
|
|
312 |
|
Cash paid for acquisitions, net of cash acquired |
|
|
(21,244 |
) |
|
|
(40,687 |
) |
|
|
(20,015 |
) |
|
|
|
Net cash used in investing activities |
|
|
(24,704 |
) |
|
|
(40,593 |
) |
|
|
(20,152 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
Decrease in restricted bank deposit |
|
|
3,643 |
|
|
|
87 |
|
|
|
259 |
|
Proceeds from short-term borrowings |
|
|
1,856 |
|
|
|
688 |
|
|
|
768 |
|
Repayment of short-term borrowings |
|
|
(2,084 |
) |
|
|
(1,855 |
) |
|
|
(693 |
) |
Proceeds from issuance of Series C redeemable
convertible preferred shares and warrants, net of
issuance costs |
|
|
9,261 |
|
|
|
|
|
|
|
|
|
Proceeds from issuance of convertible promissory notes
and warrants |
|
|
12,000 |
|
|
|
3,672 |
|
|
|
|
|
Proceeds from exercise of options |
|
|
|
|
|
|
|
|
|
|
9 |
|
Issue of options |
|
|
|
|
|
|
|
|
|
|
1 |
|
Repayment of promissory note |
|
|
|
|
|
|
(5,000 |
) |
|
|
|
|
Repurchase of warrants |
|
|
|
|
|
|
|
|
|
|
(3,809 |
) |
Cash from Ideation upon business combination |
|
|
|
|
|
|
76,073 |
|
|
|
|
|
|
|
|
Net cash provided by/ (used in) financing activities |
|
|
24,676 |
|
|
|
73,665 |
|
|
|
(3,465 |
) |
Foreign currency translation adjustment |
|
|
242 |
|
|
|
5 |
|
|
|
103 |
|
|
|
|
Net increase / (decrease) in cash and cash equivalents |
|
|
(1,237 |
) |
|
|
24,302 |
|
|
|
(21,844 |
) |
Cash and cash equivalents at beginning of year |
|
|
6,333 |
|
|
|
5,096 |
|
|
|
29,398 |
|
|
|
|
Cash and cash equivalents at end of year |
|
$ |
5,096 |
|
|
$ |
29,398 |
|
|
$ |
7,554 |
|
|
|
|
SUPPLEMENTAL DISCLOSURE INFORMATION |
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest |
|
$ |
33 |
|
|
$ |
2,477 |
|
|
$ |
45 |
|
Cash paid for income taxes |
|
$ |
251 |
|
|
$ |
381 |
|
|
$ |
465 |
|
Non-cash investing transactions: |
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition consideration payable |
|
$ |
12,885 |
|
|
$ |
16,381 |
|
|
$ |
39,195 |
|
Payable in connection with purchase of property and
equipment |
|
$ |
414 |
|
|
$ |
|
|
|
$ |
3 |
|
Non-cash financing transactions: |
|
|
|
|
|
|
|
|
|
|
|
|
Issuance costs payable in respect of Series C
redeemable convertible preferred shares |
|
$ |
98 |
|
|
$ |
|
|
|
$ |
|
|
See accompanying notes to consolidated financial statements
F-8
SEARCHMEDIA HOLDINGS LIMITED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except share data)
1. Principal activities, organization and basis of presentation
(a) Principal activities
SearchMedia Holdings Limited (the Company or SearchMedia Holdings or IDI) is a holding
company and, through its consolidated subsidiaries and variable interest entities (VIEs)
(collectively the Group), is principally engaged in the provision of advertising services in the
out-of-home advertising industry. Out-of-home advertising typically refers to advertising media in
public places, such as billboards, in-elevator displays, street furniture and transit area
displays. The Group is one of the largest operators of integrated outdoor billboard and in-elevator
advertising networks in China.
VIEs arrangements
A variable interest entity (VIE) is an entity that either (i) has insufficient equity to permit
the entity to finance its activities without additional subordinated financial support or (ii) has
equity investors who lack the characteristics of a controlling financial interest. A VIE is
consolidated by its primary beneficiary. The primary beneficiary has both the power to direct the
activities that most significantly impact the entitys economic performance and the obligation to
absorb losses or the right to receive benefits from the entity that could potentially be
significant to the VIE.
If the Company determines that it has operating power and the obligation to absorb losses or
receive benefits, the Company consolidates the VIE as the primary beneficiary, and if not, does not
consolidate. The Companys involvement constitutes power that is most significant to the entity
when it has unconstrained decision-making ability over key operational functions within the entity.
Assets recognized as a result of consolidating VIEs do not represent additional assets that could
be used to satisfy claims against the Companys general assets. Conversely, liabilities recognized
as a result of consolidating these VIEs do not claims against the Companys general assets.
PRC regulations currently prohibit or restrict foreign ownership of media and advertising business.
As a Cayman Islands corporation, the Company is deemed a foreign legal person under PRC laws. The
Company therefore conducts substantially all of its activities through its subsidiaries and VIEs in
the PRC. To provide the Company the ability to receive the majority of the expected residual
returns of the VIEs and their subsidiaries, the Company entered into various contractual
arrangements with VIEs to purchase the equity interest of affiliated entity. The paid-in capital of
these VIEs was funded by the Company through a loan extended to the equity shareholders.
As a result of these contractual arrangements, the Company is the primary beneficiary of a VIE,
Shanghai Jingli Advertising Co., Ltd., and the Company has consolidated the financial results of
the VIE and its subsidiaries in the consolidated financial statements since the later of the date
of inception or acquisition.
Our VIE is through contractual agreement with two shareholders. The shareholders have no beneficial rights. All profit, all assets and liabilities accrue to the Company. The sole source of funding other
than operation is provided by the Company. The Company is the 100% beneficial owner of the VIE. There is no non- controlling interest.
(b) 2009 reorganization and accounting treatment
On October 30, 2009, Ideation Acquisition Corp., a Delaware corporation (Ideation) completed a
redomestication that resulted in holders of Ideation securities holding securities in a Cayman
Islands exempted company, pursuant to a share exchange agreement. The redomestication of Ideation
involved two steps. First, Ideation effected a merger pursuant to the laws of the states of
Delaware and Arizona in which Ideation merged with and into ID Arizona Corporation, an Arizona
corporation and wholly-owned subsidiary of Ideation (ID Arizona) with ID Arizona surviving the
merger. Second, after the merger, ID Arizona became a Cayman Islands exempted company, pursuant to
a conversion and continuation procedure under Arizona and Cayman Islands law. In connection with
the conversion and continuation process, the entity was renamed SearchMedia Holdings Limited.
Immediately after the redomestication, the Company completed the acquisition of all the issued and
outstanding shares and warrants of SearchMedia International Limited (SearchMedia International).
SearchMedia International security holders, including certain note holders and warrant holders,
received ordinary shares, or securities exercisable or exchangeable for ordinary shares, of the
Company. The business combination was
accounted for as a reverse recapitalization, whereby SearchMedia International is the continuing
entity for financial reporting purposes and is deemed to be the accounting acquirer of SearchMedia
Holdings Limited.
F-9
The transaction is accounted for as a reverse recapitalization because it failed to meet the
criteria to be considered as a business combination described in Accounting Standards Codification
(ASC) Section 805, Business Combinations). Pursuant to these accounting standards, SearchMedia
International is considered to be the accounting acquirer because it obtained control of the
Company as a result of the transaction. The determination was primarily based on (i) after the
redomestication and business combination, SearchMedia Internationals operations comprising the
ongoing operations of the combined entity and the senior management of SearchMedia International
continuing to serve as the senior management of the combined companies and (ii) SearchMedia
Holdings Limited had no prior operations and was formed for the purpose of effecting a business
combination such as the business combination with SearchMedia International. In a reverse
recapitalization, initially SearchMedia International is deemed to have undergone a
recapitalization, whereby its outstanding ordinary shares and warrants on October 30, 2009 were
converted into 6,662,727 ordinary shares of SearchMedia Holdings and 1,519,186 SearchMedia Holdings
warrants. Immediately thereafter, SearchMedia Holdings, as the legal parent company of SearchMedia
International, which is the continuing accounting entity, was deemed to have acquired the assets
and assumed the liabilities of SearchMedia International in exchange for the issuance of
SearchMedia Holdings securities, which will be identical in number and terms and similar in rights
to the outstanding securities of SearchMedia International.
Because SearchMedia Holdings Limited, the accounting acquiree, does not meet the definition of a
business provided in ASC Topic 805, Business Combinations, the recognition and measurement
provisions of these standards do not apply. The share exchange transaction utilized the capital
structure of SearchMedia Holdings Limited. The assets and liabilities are recorded at historical
cost. Although SearchMedia International is deemed to be the acquiring company for accounting and
financial reporting purposes, the legal status of the Company as the surviving corporation does not
change. SearchMedia Holdings shares have been restated retroactively to reflect the share exchange
ratio as at the date of the Share Exchange in a manner similar to a stock consolidation.
(c) Organization and basis of presentation
For financial reporting purposes, the operating results of the Group for the year ended December
31, 2008 was the historical financial information of SearchMedia International. The consolidated
financial statements of the Group for the year ended December 31, 2009 includes the operating
results and balance sheet of SearchMedia International for the year ended December 31, 2009 and the
operating results and balance sheet of SearchMedia Holdings from October 31, 2009 through December
31, 2009.
Prior to January 1, 2008, SearchMedia International incorporated Jieli Investment Management
Consulting (Shanghai) Co., Ltd. (Jieli Consulting), which in turn entered into contractual
agreements with the owners of Shanghai Jingli Advertising Co., Ltd. (Jingli). The arrangement was
to facilitate foreign investors to invest in SearchMedia International as the then PRC laws did not
allow direct foreign investment or ownership in advertising companies in the PRC. The terms of
these agreements resulted in SearchMedia International, through its wholly-owned subsidiary, Jieli
Consulting, bearing all the economic risks and receiving all the economic benefits from the
businesses and controlling the financing and operating affairs with respect to Jinglis businesses.
In accordance with ASC Topic 810, Consolidation, the financial statements of Jingli were consolidated by SearchMedia
International in its consolidated financial statements effective from the date SearchMedia
International first became the primary beneficiary pursuant to this contractual arrangements.
On January 16, 2008, SearchMedia International incorporated Jieli Network Technology Development
(Shanghai) Co., Ltd. (Jieli Network) as a wholly-owned subsidiary in the PRC. Jieli Network
provides technical advisory services to the Groups consolidated VIEs.
During the years ended December 31, 2008 and 2010, the Group expanded its advertising services and
locations by acquiring 100% equity interest of the following advertising businesses.
|
|
|
|
|
Name of entity |
|
Place of incorporation |
Shanghai Jincheng Advertising Co., Ltd. (Jincheng) |
|
PRC |
Shaanxi Xinshichuang Advertising Planning Co., Ltd. (Xinshichuang) |
|
PRC |
Beijing Wanshuizhiyuan Advertising Co., Ltd. (Wanshuizhiyuan) |
|
PRC |
Shenyang Jingli Advertising Co., Ltd. (Shenyang Jingli) |
|
PRC |
Qingdao Kaixiang Advertising Co., Ltd. (Kaixiang) |
|
PRC |
Shanghai Haiya Advertising Co., Ltd. (Haiya) |
|
PRC |
Tianjin Shengshitongda Advertising Creativity Co., Ltd. (Shengshitongda) |
|
PRC |
Shanghai Botang Advertising Co., Ltd. (Botang) |
|
PRC |
Ad-Icon Company Limited (HK Ad-Icon) |
|
HKSAR |
Changsha Jingli Advertising Co., Ltd. (Changsha Jingli) |
|
PRC |
Wenzhou Rigao Advertising Co., Ltd. (Wenzhou Rigao) |
|
PRC |
Wuxi Ruizhong Advertising Co., Ltd. (Wuxi Ruizhong) |
|
PRC |
Zhejiang Continental Advertising Co., Ltd. (Zhejiang Continental) |
|
PRC |
F-10
Further details of the acquisitions are set out in Note 4.
In July 2008, the Company signed an acquisition agreement to acquire Changsha Jingli which was
primarily engaged in the provision of advertising services using poster frames that are placed
inside elevators in residential and commercial buildings in Changsha city of the PRC. During a
financial review, an acquisition deposit of Changsha Jingli of $1,321, purportedly paid to a third
party, could not be confirmed. The ex-owner of Changsha Jingli denied signing any contracts with
the Company, bringing the acquisition of Changsha Jingli into doubt, as well as the legality and
enforceability of the acquisition agreement. Accordingly, the consolidated financial statements for
the years ended December 31, 2008, 2009 and 2010 do not consolidate Changsha Jinglis financial
statements.
In 2008, Jingli, the VIE, acquired 100% equity interests in Xinshichuang, Jincheng, Kaixiang,
Wanshuizhiyuan, Shenyang Jingli, Haiya, Botang, Shengshitongda, Wenzhou Rigao and Wuxi Ruizhong.
The Company has consolidated the financial results of the VIE and its subsidiaries in the
consolidated financial statements since the later of the date of inception or acquisition.
On December 11, 2009, HK Ad-Icon established Ad-Icon Advertising (Shanghai) Co., Ltd. (Ad-Icon
Shanghai), a wholly-owned subsidiary in China, which is permitted to operate advertising
businesses in China. In 2010, Ad-Icon Shanghai, acquired 100% of the equity interests in Zhejiang
Continental. Furthermore, 100% of the equity interests in Botang, Haiya, Wanshuizhiyuan, Wuxi
Ruizhong and Shenyang Jingli acquired by Jingli have been transferred to Ad-Icon Shanghai. As of
December 31, 2010, Jingli, the VIE, still holds 100% of the equity interests of the other Chinese
affiliates mentioned above.
The accompanying consolidated financial statements of the Company have been prepared in accordance
with accounting principles generally accepted in the United States of America (U.S. GAAP). This
basis of accounting differs in certain material respects from that used for the preparation of the
statutory books of the Companys consolidated subsidiaries and VIEs, which are prepared in
accordance with the accounting principles and the relevant financial regulations applicable in the
place of domicile of the respective entities in the Group. The accompanying consolidated financial
statements reflect necessary adjustments not recorded in the statutory books of account of the
Companys consolidated subsidiaries and VIEs to present them in conformity with U.S. GAAP.
(d) Reclassification
Certain comparative figures have been reclassified to conform to current periods presentation.
2. Summary of significant accounting policies
(a) Basis of preparation
The consolidated financial statements of the Company have been prepared in accordance with
accounting principles generally accepted in the United States of America (US GAAP).
Principles of consolidation
The accompanying consolidated financial statements include the financial statements of the Company,
its consolidated subsidiaries and VIEs in which the Company is the primary beneficiary. All
significant intercompany balances and transactions have been eliminated in consolidation.
Going concern
The Company incurred a net loss of $46,639 during the year ended December 31, 2010 and its net
shareholders equity was $463. As of December 31, 2010, the Companys current liabilities exceeded
its current assets by $39,427. The Company had cash and cash equivalents of $7,554 as of December
31, 2010. The Company may not have sufficient cash to meet its payment obligations in the next 12
months in which case we may (i) seek additional financing, (ii) dispose of certain assets or (iii)
seek to refinance some or all of our debts.
The Companys ability to continue as a going concern is dependent on many events outside of its
direct control, including, among other things, the amount of working capital that the Company has
available and the financial performance of both the Company and the acquired companies entitled to
receive an earn-out payment. The Companys inability to generate cash flows to meet its obligations
due to the uncertainty of achieving operating profitability on an annual basis and raising required
proceeds on reasonable terms, among other factors, raises substantial doubt as to the Companys
ability to continue as a going concern. The accompanying consolidated financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
The management of the Company is taking a number of actions to address this situation in order to
restore the Company to a sound financial position with an appropriate business strategy going
forward. These actions include:
1) |
|
Negotiation with subsidiaries ex-owners to extend earn-out
payment period by one or more than one year for required cash and
stock payment; |
2) |
|
The Company is seeking additional financing from existing shareholders and external
investors; |
3) The Company is adopting various cost-saving strategies.
F-11
Based on the managements plans, the consolidated financial statements have been prepared assuming
the Company will continue as a going concern, which contemplates the realization of assets and the
liquidation of liabilities in the normal course of business.
(b) Use of estimates
The preparation of financial statements in accordance with U.S. GAAP requires the Companys
management to make estimates and assumptions relating to the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated
financial statements and the reported amounts of revenue and expenses during the reporting period.
Significant items subject to such estimates and assumptions include the allowance for doubtful
receivables; useful lives and residual values of property and equipment and intangible assets;
recoverability of the carrying amount of property and equipment, goodwill and intangible assets;
fair values of financial instruments; the fair values of the assets acquired and liabilities
assumed upon the consolidation of businesses acquired in 2008 and 2010 respectively; and the
assessment of contingent obligations. These estimates are often based on complex judgments and
assumptions that management believes to be reasonable but are inherently uncertain and
unpredictable. Actual results could differ from these estimates.
(c) Foreign currency transactions and translation
The Groups reporting currency is the United States dollars (US$). The functional currency of the
Company is the US$, whereas the functional currency of the Companys consolidated subsidiaries and
VIEs in the PRC is the Renminbi (RMB) and the functional currency of the Companys subsidiaries
in the HKSAR is the Hong Kong Dollars (HK$), as the PRC and HKSAR are the primary economic
environments in which the respective entities operate. Since the RMB is not a fully convertible
currency, all foreign exchange transactions involving RMB must take place either through the
Peoples Bank of China (the PBOC) or other institutions authorized to buy and sell foreign
currency. The exchange rates adopted for the foreign exchange transactions are the rates of
exchange quoted by the PBOC.
Transactions denominated in currencies other than the functional currency are translated into the
respective functional currency at the exchange rate prevailing at the date of the transaction.
Monetary assets and liabilities denominated in a currency other than the functional currency are
translated into the functional currency using the applicable exchange rate at each balance sheet
date. The resulting exchange differences are recorded in foreign currency exchange gain (loss) in
the consolidated statements of operations.
The assets and liabilities of the Companys consolidated subsidiaries and VIEs are translated into
the US$ reporting currency using the exchange rate at each balance sheet date. Revenue and expenses
of these entities are translated into US$ at average rates prevailing during the year. Gains and
losses resulting from translation of these entities financial statements into the US$ reporting
currency are recorded as a separate component of accumulated other comprehensive income within
shareholders equity.
(d) Cash and cash equivalents
Cash and cash equivalents consist of cash on hand and bank deposits with original maturities of three months or less, which are unrestricted as to
withdrawal and use.
The Groups cash and bank deposits were held in major financial institutions located in US and PRC,
which management believes have high credit ratings. Cash and bank deposit held in PRC as of
December 31, 2009 and 2010 were $7,495 and $4,340, respectively. The remaining cash and bank
deposits were held in US and HK denominated in USD, amounted to $21,903 and $3,214 as of December
31, 2009 and 2010, respectively.
Financial instruments which potentially subject the Company to concentrations of credit risk
consist principally of cash investments. The Company places its temporary cash instruments with
well-known financial institutions within the United States and, at times, may maintain balances in
excess of the $250 US FDIC Insurance limit. The Company monitors the credit ratings of the
financial institutions to mitigate this risk. The Company maintains accounts with well
established multi-national banks and as of December 31, 2009 and 2010 had approximately an aggregate
of $20,911 and $3,130 above the US federally insured limit, respectively.
(e) Restricted cash
Restricted cash represents amounts held by a bank as to withdrawal for use under court orders to
hold the accounts as escrow. The restriction on cash is expected to be released when the related
litigation is closed.
F-12
(f) Accounts receivable
Accounts receivable consist of amounts billed but not yet collected and unbilled receivables.
Unbilled receivables relate to revenues earned and recognized, but which have not been billed by
the Group in accordance with the terms of the advertising service contract. The payment terms of
the Groups service contracts with its customers vary and typically require an initial payment to
be billed or paid at the commencement of the service period, progress payments to be billed during
the service period, and a final payment to be billed after the completion of the service period.
None of the Groups accounts receivable bear interest. The allowance for doubtful accounts is
managements best estimate of the amount of probable credit losses in the Groups existing accounts
receivable. Management determines the allowance based on historical write-off experience and
reviews of customer-specific facts and economic conditions. Account balances are charged off
against the allowance after all means of collection have been exhausted and the potential for
recovery is considered remote. The Group does not have any off-balance-sheet credit exposure
related to its customers.
(g) Property and equipment
Property and equipment are stated at cost, net of accumulated depreciation or amortization.
Depreciation is calculated on the straight-line method over the estimated useful lives of the
assets, taking into consideration the assets salvage or residual value. The estimated useful lives
of property and equipment are as follows:
|
|
|
Leasehold improvements
|
|
1 to 3 years |
Advertisement display equipment
|
|
5 years |
Furniture, fixtures and office equipment
|
|
5 years |
Motor vehicles
|
|
5 years |
When items of property and equipment are retired or otherwise disposed of, loss/income is charged
or credited for the difference between the net book value and proceeds received thereon. Ordinary
maintenance and repairs are charged to expense as incurred, and replacements and betterments are
capitalized.
(h) Intangible assets
The Groups intangible assets are amortized on a straight line basis over their respective
estimated useful lives, which are the periods over which the assets are expected to contribute
directly or indirectly to the future cash flows of the Group. The Groups intangible assets
represent customer relationship, lease agreements and non-compete agreements which have estimated useful lives ranging
from 0.5 to 4.4 years.
(i) Goodwill
Goodwill and other intangible assets are accounted for in accordance with the provisions of FASB
ASC 350 Intangibles Goodwill and Other. The Group accounts for business acquisitions using the
acquisition method of accounting. Prior to 2009, goodwill consists of the cost of acquired
businesses in excess of the fair value of the net assets acquired. Other intangible assets are
separately recognized if the benefit of the intangible asset is obtained through contractual or
other legal rights, or if the intangible asset can be sold, transferred, licensed, rented, or
exchanged, regardless of an intent to do so.
Beginning on January 1, 2009, goodwill is measured as the excess of a over b below:
a. |
|
The aggregate of the following: |
|
1. |
|
The consideration transferred measured in accordance ASC 805, which generally requires
acquisition-date fair value. |
|
|
2. |
|
The fair value of any noncontrolling interest in the acquiree. |
|
|
3. |
|
In a business combination achieved in stages, the acquisition-date fair value of the
acquirers previously held equity interest in the acquiree. |
b. |
|
The net of the acquisition-date amounts of the identifiable assets acquired and the
liabilities assumed measured in accordance with ASC 805. |
Under FASB ASC 350, goodwill, including any goodwill included in the carrying value of investments
accounted for using the equity method of accounting, and certain other intangible assets deemed to
have indefinite useful lives, are not amortized.
F-13
(j) Impairment of long-lived assets
The Group tests goodwill for possible impairment in the fourth quarter of each year or when
circumstances change that would more likely than not reduce the fair value of a reporting unit
below its carrying amount. Circumstances that could trigger an impairment test between annual tests
include, but are not limited to:
|
|
|
a significant adverse change in the business climate or legal factors; |
|
|
|
|
an adverse action or assessment by a regulator; |
|
|
|
|
unanticipated competition; |
|
|
|
|
loss of key personnel; |
|
|
|
|
the likelihood that a reporting unit or a significant portion of a reporting unit will
be sold or disposed of; |
|
|
|
|
a change in reportable segments; and/or results of testing for recoverability of a
significant asset group within a reporting unit. |
The Group utilizes a two-step method to perform a goodwill impairment review. In the first step, we
determine the fair value of the reporting unit using expected future discounted cash flows and
estimated terminal values. If the net book value of the reporting unit exceeds the fair value, we
would then perform the second step of the impairment test which requires allocation of the
reporting units fair value of all of its assets and liabilities in a manner similar to a purchase
price allocation, with any residual fair value being allocated to goodwill. The implied fair value
of the goodwill is then compared to the carrying value to determine impairment, if any.
Application of goodwill impairment test requires judgment, including the identification of
reporting units, assigning assets and liabilities to the reporting units, assigning goodwill to
reporting units and estimating the fair value of each reporting unit. Changes in these estimates
and assumptions could materially affect the determination of fair value of each reporting unit
which could trigger impairment.
In calculating the future cash flows, certain assumptions are required to be made in respect of
highly uncertain matters such as revenue growth rates, gross margin percentages and terminal growth
rates. We may incur additional goodwill impairment charges in the future although we cannot predict
whether this will occur.
Indefinite-lived intangible assets are assessed for impairment at least annually based on
comparisons of their respective fair values to their carrying values. Finite-lived intangible
assets are amortized over their respective useful lives and, along with other long-lived assets,
are evaluated for impairment periodically whenever events or changes in circumstances indicate that
their related carrying amounts may not be recoverable in accordance with FASB ASC 360-10-15,
Impairment or Disposal of Long-Lived Assets.
In evaluating long-lived assets for recoverability, including finite-lived intangibles and property
and equipment, the Group uses its best estimate of future cash flows expected to result from the
use of the asset and eventual disposition in accordance with FASB ASC 360-10-15. To the extent that
estimated future, undiscounted cash inflows attributable to the asset, less estimated future,
undiscounted cash outflows, are less than the carrying amount, an impairment loss is recognized in
an amount equal to the difference between the carrying value of such asset and its fair value.
Assets to be disposed of and for which there is a committed plan of disposal, whether through sale
or abandonment, are reported at the lower of carrying value or fair value less costs to sell.
Asset recoverability is an area involving management judgment, requiring assessment as to whether
the carrying value of assets can be supported by the undiscounted future cash flows. In calculating
the future cash flows, certain assumptions are required to be made in respect of highly uncertain
matters such as revenue growth rates, gross margin percentages and terminal growth rates.
No impairment loss once recognized is subsequently reversed even if facts and circumstances
indicate recovery.
F-14
(k) Fair Value of Financial Instruments
FASB ASC 820 Fair Value Measurements and Disclosures establishes a three-tier fair value
hierarchy, which prioritizes the inputs used in measuring fair value. The hierarchy prioritizes the
inputs into three levels based on the extent to which inputs used in measuring fair value are
observable in the market.
These tiers include:
|
|
|
Level 1 defined as observable inputs such as quoted prices in active markets; |
|
|
|
|
Level 2 defined as inputs other than quoted prices in active markets that are either
directly or indirectly observable; and |
|
|
|
|
Level 3 defined as unobservable inputs in which little or no market data exists,
therefore requiring an entity to develop its own assumptions. |
The fair value of the Groups financial assets and liabilities approximate their carrying amount
because of the short-term maturity of these instruments.
(l) Revenue recognition
The Group recognizes advertising service revenue on a straight-line basis over the period in which
the customer advertisement is to be displayed, which typically ranges from 1 month to 2 years,
starting from the date the Group first displays the advertisement. Written contracts are entered
into between the Group and its customers to specify the price, the period and the location at which
the advertisement is to be displayed. Revenue is only recognized if the collectability of the
advertising service fee is probable.
The Group generates advertising service revenues from the sales of frame space on the poster frame
network, advertising time slots on traditional billboard networks and the sale of advertising
services through our subway leases. In the majority of advertising arrangements, the Group acts as
a principal in the transaction and records advertising revenues on a gross basis. The associated
expenses are recorded as cost of revenues. In some instances the Group is considered an agent and
recognizes revenue on a net basis.
Customer payments received in excess of the amount of revenue recognized are recorded as deferred
revenue in the consolidated balance sheet, and are recognized as revenue when the advertising
services are rendered.
(m) Cost of revenues
Cost of revenues consists primarily of operating lease cost of advertising space for displaying
advertisements, depreciation of advertising display equipment, amortization of intangible assets
relating to lease agreements and direct staff and material costs associated with production and
installation of advertising content.
(n) Operating leases
The Group leases advertising space, including billboards and poster frames, and office premises
under non-cancellable operating leases. Minimum lease payments are expensed on a straight-line
basis over the lease term. Under the terms of the lease agreements, the Group has no legal or
contractual asset retirement obligation at the end of the lease.
(o) Advertising and promotion costs
Advertising and promotion costs are expensed as incurred. Advertising and promotion costs included
in sales and marketing expenses amounted to $2,189, $1,135 and $1,834 for the years ended December
31, 2008, 2009 and 2010, respectively.
(p) Retirement and other post-retirement benefits
Pursuant to relevant PRC regulations, the Companys consolidated subsidiaries and VIEs in the PRC
are required to make contributions to various defined contribution retirement plans organized by
the PRC government. The contributions are made for each qualifying PRC employee at rates ranging
from 18% to 20% on a standard salary base as determined by the PRC governmental authority.
Contributions to the defined contribution plans are charged to the consolidated statements of
income as the related employee service is provided.
The Companys subsidiaries in the HKSAR operate a Mandatory Provident Fund Scheme (the MPF
scheme) under the Hong Kong Mandatory Provident Fund Schemes Ordinance for employees employed
under the jurisdiction of the Hong Kong Employment Ordinance. The MPF scheme is a defined
contribution retirement scheme administered by independent trustees. Under the MPF scheme, the
employer is required to make
contributions to the scheme at 5% of the employees relevant income, subject to an upper limit.
Contributions to the scheme vest immediately.
F-15
The Group has no other obligation for the payment of employee benefits associated with these
retirement plans beyond the contributions described above.
(q) Share-based payments
The Group accounts for share-based payments in accordance with ASC Topic 718,CompensationStock
Compensation. Under ASC 718, the Group measures the cost of employee services received in exchange
for an award of equity instruments based on the grant-date fair value of the award and recognizes
the costs over the period the employee is required to provide service in exchange for the award,
which generally is the vesting period. For awards with performance conditions, the compensation
expense is based on the grant-date fair value of the award, the number of shares ultimately
expected to vest and the vesting period.
(r) Income taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and
liabilities are recognized for the future tax consequences attributable to differences between the
financial statement carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carry forwards. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable income in the years in which those
temporary differences are expected to be recovered or settled. The effect on deferred tax assets
and liabilities of a change in tax rates or laws is recognized in income in the period that the
change in tax rates or laws is enacted. A valuation allowance is provided to reduce the amount of
deferred tax assets if it is considered more likely than not that some portion or all of the
deferred tax assets will not be realized.
The Group applies ASC Topic 740 Income Taxes. ASC 740 clarifies the accounting for uncertain tax
positions. This interpretation requires that an entity recognizes in the consolidated financial
statements the impact of a tax position, if that position is more likely than not of being
sustained upon examination, based on the technical merits of the position. Recognized income tax
positions are measured at the largest amount that is greater than 50% likely of being realized.
Changes in recognition or measurement are reflected in the period in which the change in judgment
occurs. The Groups accounting policy is to accrue interest and penalties related to uncertain tax
positions, if and when required, as interest expense and a component of general and administrative
expenses, respectively, in the consolidated statements of operations.
(s) Earnings/(loss) per share
For the purpose of calculating earnings/(loss) per share for the periods presented, SearchMedia
Internationals shares have been restated retroactively for the year ended December 31, 2008 to
reflect the share exchange ratio as at the date of the Share Exchange in a manner similar to a
stock reorganization. The number of ordinary shares outstanding is determined on the basis of
SearchMedia Internationals historical number of ordinary shares outstanding multiplied by the
share exchange ratio established in the Share Exchange Agreement.
Basic earnings/(loss) per share is computed by dividing income/(loss) attributable to common shares
shareholders by the weighted average number of ordinary shares outstanding during the year. Diluted
earnings (loss) per ordinary share reflects the potential dilution that could occur if securities
or other contracts to issue ordinary shares were exercised or converted into ordinary shares and is
calculated using the treasury stock method for stock options and unvested shares. Common equivalent
shares for which the exercise price exceeds the average market price over the period have an
anti-dilutive effect on income per share and, accordingly, are excluded from the calculation.
Common equivalent shares are also excluded from the calculation in loss periods as their effects
would be anti-dilutive. The Group incurred net loss for the three years ended December 2008, 2009
and 2010, no diluted earnings (loss) is presented.
(t) Segment reporting
The Group has one operating segment as defined by ASC Topic 280, Segment Reporting. For the three
years ended December 31, 2008, 2009 and 2010, the Groups advertising service revenues generated
from customers outside the PRC is less than 10% of the Groups total consolidated revenues and the
Groups total long-lived tangible assets located outside the PRC is less than 10% of the Groups
total consolidated long-lived tangible assets. Consequently no geographic information is presented.
(u) Significant concentrations and risks
No advertising agency customer or individual customer accounted for more than 10% of accounts
receivable as of December 2010. Except for an advertising agency customer which accounted for 12%
of the Groups accounts receivable, no individual customer accounted for more than 10% of accounts
receivable as of December 2009.
F-16
(v) Recently issued accounting standards
In January 2010, the FASB issued Accounting Standards Update (ASU) 2010-05, Compensation
Stock Compensation (Topic 718). This standard codifies EITF Topic D-110 Escrowed Share
Arrangements and the Presumption of Compensation and is effective immediately. The provisions of
ASU 2010-05 did not have a material effect on the financial position, results of operations or cash
flows of the Group and is effective immediately.
In January 2010, the FASB issued ASU 2010-06, Fair Value Measurements and Disclosures (Topic
820): Improving Disclosures about Fair Value Measurements. This amendment to Topic 820 has
improved disclosures about fair value measurements on the basis of input received from the users of
financial statements. This is effective for interim and annual reporting periods beginning after
December 15, 2009, except for the disclosures about purchases, sales, issuances, and settlements in
the roll forward of activity in Level 3 fair value measurements. Those disclosures are effective
for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal
years. Early adoption is permitted. The provisions of ASU 2010-06 did not have a material effect
on the financial position, results of operations or cash flows of the Group.
In February 2010, FASB issued ASU No. 2010-09 (ASC Topic 855), which removes the requirement for
an SEC filer to disclose a date in both issued and revised financial statements. This amendment
shall be applied prospectively for interim or annual financial periods ending after June 15, 2010.
We do not believe the adoption will have a material effect on our consolidated financial statements.
In February 2010, the FASB issued ASU 2010-10, Consolidation (Topic 810). The amendments to the
consolidation requirements of Topic 810 resulting from the issuance of Statement 167 are deferred
for a reporting entitys interest in an entity (1) that has all the attributes of an investment
company or (2) for which it is industry practice to apply measurement principles for financial
reporting purposes that are consistent with those followed by investment companies. An entity that
qualifies for the deferral will continue to be assessed under the overall guidance on the
consolidation of variable interest entities in Subtopic 810-10 (before the Statement 167
amendments) or other applicable consolidation guidance, such as the guidance for the consolidation
of partnerships in Subtopic 810-20. The deferral is primarily the result of differing
consolidation conclusions reached by the International Accounting Standards Board (IASB) for
certain investment funds when compared with the conclusions reached under Statement 167. The
deferral is effective as of the beginning of a reporting entitys first annual period that begins
after November 15, 2009, and for interim periods within that first annual reporting period, which
coincides with the effective date of Statement 167. Early application is not permitted. The
provisions of ASU 2010-10 are effective for the Company beginning in 2010. The adoption of ASU
2010-10 did not have a material impact on the financial position, results of operations or cash
flows of the Group.
In March 2010, the FASB issued ASU 2010-11, Derivative and Hedging (Topic 815). All entities that
enter into contracts containing an embedded credit derivative feature related to the transfer of
credit risk that is not only in the form of subordination of one financial instrument to another
will be affected by the amendments in this Update because the amendments clarify that the embedded
credit derivative scope exception in paragraph 815-15-15-8 through 15-9 does not apply to such
contracts. ASU 2010-11 is effective at the beginning of the reporting entitys first fiscal quarter
beginning after June 15, 2010. The provisions of ASU 2010-11 are not expected to have a material
effect on the financial position, results of operations or cash flows of the Group.
In April 2010, the FASB issued ASU 2010-13, CompensationStock Compensation (Topic 718). This
Update provides amendments to Topic 718 to clarify that an employee share-based payment award with
an exercise price denominated in the currency of a market in which a substantial portion of the
entitys equity securities trades should not be considered to contain a condition that is not a
market, performance, or service condition. Therefore, an entity would not classify such an award as
a liability if it otherwise qualifies as equity. The amendments in ASU 2010-13 are effective for
fiscal years, and interim periods within those fiscal years, beginning on or after December 15,
2010. The provision of ASU 2010-13 are not expected to have a material effect on the financial
position, results of operations or cash flows of the Group.
In December 2010, the FASB issued ASU 2010-28, When to Perform Step 2 of the Goodwill Impairment
Test for Reporting Units with Zero or Negative Carrying Amounts (Topic 350). This ASU amends guidance for Step
1 of the goodwill impairment test for reporting units with zero or negative carrying amounts. For
those reporting units, an entity is required to perform Step 2 of the goodwill impairment test if
it is more likely than not that a goodwill impairment exists. ASU 2010-28 is effective for fiscal
years and interim periods beginning after December 15, 2010, with early adoption not permitted. The
Group does not expect that the adoption of ASU 2010-28 will have a material impact on its financial
position, results of operations, or cash flows.
F-17
In December 2010, the FASB issued ASU 2010-29, Disclosure of Supplementary Pro Forma Information
for Business Combinations. This ASU specifies that if a public company presents comparative
financial statements, the entity should only disclose revenue and earnings of the combined entity
as though the business combination(s) that occurred during the current year had occurred as of the
beginning of the comparable prior annual reporting period. ASU 2010-29 is effective prospectively
for business combinations for which the acquisition date is on or after the beginning of the first
annual reporting period beginning on or after December 15, 2010, with early adoption permitted. The Company is in the process of evaluating the effect of adoption of this pronouncement.
3. Loss per share
Basic loss per share is computed by dividing net loss available to common shareholders by the
weighted average number of common shares outstanding during the three years ended December 31,
2008, 2009 and 2010. Diluted earnings per share reflects the potential dilution that could occur if
stock options and other commitments to issue common stock were exercised or equity awards vest
resulting in the issuance of common stock or conversion of notes into shares of the Companys
common stock that could increase the number of shares outstanding and lower the earnings per share
of the Companys common stock. This calculation is not done for periods in which a net loss was
incurred as this would be antidilutive. The information related to basic and diluted earnings per
share is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
Numerator: |
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss |
|
$ |
(35,080 |
) |
|
$ |
(22,649 |
) |
|
$ |
(46,639 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator: |
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares
outstanding Basic and diluted |
|
|
2,169,269 |
|
|
|
5,100,465 |
|
|
|
20,796,789 |
|
Loss per share Basic and diluted |
|
$ |
(0.0162 |
) |
|
$ |
(0.0044 |
) |
|
$ |
(0.0022 |
) |
As of December 31, 2010, there were a total of 1,004,861 stock options and 13,607,441 warrants that
would have been included in the computation of diluted earnings per share that could potentially
dilute basic earnings per share in the future.
4. Acquisitions
I. 2010 acquisition
On May 31, 2010, the Group acquired 100% of the equity interest in Zhejiang Continental at an
initial cash consideration of $73 and $19,625 of contingent consideration, which represents the
lesser of the maximum amount of contingent consideration and the amount of goodwill, was recognized
as of the date of acquisition.
The following table summarizes the fair values of the assets acquired and liabilities assumed on
the date of acquisition of Zhejiang Continental by the Group.
|
|
|
|
|
Assets acquired: |
|
|
|
|
Cash |
|
$ |
302 |
|
Accounts receivable |
|
|
1,706 |
|
Prepaid expenses and other current assets |
|
|
453 |
|
Property and equipment |
|
|
21 |
|
Intangible assets |
|
$ |
4,282 |
|
|
|
|
|
Total |
|
$ |
6,764 |
|
|
|
|
|
Liabilities assumed: |
|
|
|
|
Accounts payable |
|
|
(143 |
) |
Accrued expenses and other payables |
|
|
(823 |
) |
Amounts due to related parties |
|
|
(2,412 |
) |
Income taxes payable |
|
|
(423 |
) |
Deferred tax liability |
|
|
(1,070 |
) |
|
|
|
|
Total |
|
$ |
(4,871 |
) |
|
|
|
|
Goodwill |
|
$ |
17,805 |
|
Total consideration |
|
$ |
19,698 |
|
|
|
|
|
F-18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization |
|
|
|
|
|
|
|
Period |
|
|
|
|
|
|
|
(Years) |
|
Intangible assets comprised of: |
|
|
|
|
|
|
|
|
Customer relationship |
|
$ |
1,067 |
|
|
|
3.4 |
|
Lease agreements |
|
|
2,749 |
|
|
|
4.4 |
|
Non-compete agreement |
|
|
462 |
|
|
|
3.4 |
|
Assembled workforce |
|
|
4 |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
Total |
|
$ |
4,282 |
|
|
|
|
|
|
|
|
|
|
|
|
|
In addition to the initial consideration, the equity owners of Zhejiang Continental are entitled to
subsequent consideration, including cash and IDIs Class A common shares, based on a predetermined
earn-out formula applied to audited operating results through December 31, 2010 and 2011.
The contingent purchase price consideration is payable when each individual 12-month period during
the earn-out period is completed and the operational results were agreed and confirmed. The
contingent consideration was recognized at fair value based on best estimate and goodwill was
recognized in accordance with ASC Topic 805-20.
The accompanying consolidated financial statements include the assets and liabilities of Zhejiang
Continental as of December 31, 2010 and the operating results for the period from May 31, 2010
(date of acquisition by the Group) to December 31, 2010.
II. 2008 acquisitions
During the year ended December 31, 2008, the Group acquired the respective advertising businesses
of Jincheng, Xinshichuang, Kaixiang, Wanshuizhiyuan, Shenyang Jingli, Haiya, Botang, HK Ad-icon,
Shengshitongda, Wenzhou Rigao, and Wuxi Ruizhong (acquired entities). These acquisitions were
unrelated to each other.
Pursuant to a serial of acquisition agreements signed with each of the acquired entities ex-owners
in 2008 (original acquisition agreements), the purchase consideration for each acquisition is
contingent based on the operational results agreed and confirmed by the Group and each of the
acquired entities ex-owners in a 2-year earn-out period following respective acquisition dates
(earn-out period).
During second and third quarters of 2010, the Company amended the earnout agreements with Kaixiang,
Wanshuizhiyuan, Haiya, Botang, Wenzhou Rigao, Wuxi Ruiuzhong and Shenyang Jingli. The amended
earnout agreements provided for the extension of the time period of one to more than two years for
required cash and stock payments. The amended earnout agreements also provided for the extension of
the employment agreements of certain key members of management of these subsidiaries.
In addition, the Company reached agreements with Haiya, Wanshuizhiyuan, Shenyang Jingli, Wenzhou
Rigao and Botang to use the stock of the Company for the partial payment of the cash consideration
and provide guarantee on the realizable price of these stocks based on the financial performance of
these companies at the maturity of restriction period. As of December 31, 2010, the Company did not
recognize the put options under these agreements as the subsidiaries did not meet the required
financial performance.
F-19
The following summarized the details of acquisitions made in 2008 and 2010 respectively and the
initial allocation of purchase price, which was based on valuations performed by independent
valuation firms using the multiple period excess earnings method:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquired Intangible |
|
|
|
|
|
|
Goodwill recognized |
|
|
|
|
|
|
|
Consideration paid up |
|
|
Fair value |
|
|
Assets |
|
|
Deferred |
|
|
during the year ended |
|
|
|
|
|
|
|
to December 31, |
|
|
of net asset |
|
|
Customer |
|
|
Lease |
|
|
Non-compete |
|
|
tax liability |
|
|
December 31, |
|
Acquired Entity |
|
Date Acquired |
|
Business |
|
2009 |
|
|
2010 |
|
|
acquired |
|
|
relationship |
|
|
agreements |
|
|
agreements |
|
|
recognized |
|
|
2009 |
|
|
2010 |
|
Xinshichuang |
|
January 1, 2008 |
|
Poster frame |
|
$ |
952 |
|
|
$ |
981 |
|
|
$ |
10 |
|
|
$ |
7 |
|
|
$ |
157 |
|
|
$ |
|
|
|
$ |
41 |
|
|
$ |
|
|
|
$ |
|
|
Jincheng |
|
January 1, 2008 |
|
Poster frame |
|
|
923 |
|
|
|
997 |
|
|
|
(117 |
) |
|
|
2 |
|
|
|
94 |
|
|
|
|
|
|
|
24 |
|
|
|
|
|
|
|
|
|
Kaixiang |
|
January 1, 2008 |
|
Billboard |
|
|
6,760 |
|
|
|
7,423 |
|
|
|
88 |
|
|
|
134 |
|
|
|
264 |
|
|
|
|
|
|
|
99 |
|
|
|
6,628 |
|
|
|
2,309 |
|
Wanshuizhiyuan |
|
January 1, 2008 |
|
Billboard |
|
|
8,725 |
|
|
|
8,996 |
|
|
|
70 |
|
|
|
199 |
|
|
|
220 |
|
|
|
|
|
|
|
105 |
|
|
|
2,207 |
|
|
|
225 |
|
Shenyang Jingli |
|
January 1, 2008 |
|
Billboard |
|
|
13,322 |
|
|
|
15,853 |
|
|
|
229 |
|
|
|
686 |
|
|
|
812 |
|
|
|
|
|
|
|
374 |
|
|
|
2,482 |
|
|
|
3,205 |
|
Haiya |
|
February 1, 2008 |
|
Transit |
|
|
5,345 |
|
|
|
5,662 |
|
|
|
(186 |
) |
|
|
29 |
|
|
|
1,037 |
|
|
|
|
|
|
|
267 |
|
|
|
5,988 |
|
|
|
1,755 |
|
Botang |
|
April 1, 2008 |
|
Billboard |
|
|
20,851 |
|
|
|
32,302 |
|
|
|
145 |
|
|
|
1,070 |
|
|
|
1,968 |
|
|
|
|
|
|
|
759 |
|
|
|
23,699 |
|
|
|
6,442 |
|
HK Ad-icon |
|
April 1, 2008 |
|
Billboard |
|
|
1,557 |
|
|
|
1,545 |
|
|
|
9 |
|
|
|
148 |
|
|
|
105 |
|
|
|
|
|
|
|
42 |
|
|
|
1,294 |
|
|
|
897 |
|
Shengshitongda |
|
April 1, 2008 |
|
Poster frame |
|
|
117 |
|
|
|
121 |
|
|
|
7 |
|
|
|
2 |
|
|
|
18 |
|
|
|
|
|
|
|
5 |
|
|
|
116 |
|
|
|
(21 |
) |
Wenzhou Rigao |
|
July 1, 2008 |
|
Poster frame |
|
|
3,219 |
|
|
|
4,527 |
|
|
|
(95 |
) |
|
|
102 |
|
|
|
149 |
|
|
|
|
|
|
|
63 |
|
|
|
4,904 |
|
|
|
2,806 |
|
Wuxi Ruizhong |
|
July 1, 2008 |
|
Poster frame |
|
|
1,087 |
|
|
|
2,593 |
|
|
|
33 |
|
|
|
32 |
|
|
|
173 |
|
|
|
|
|
|
|
51 |
|
|
|
1,354 |
|
|
|
2,958 |
|
Zhejiang Continental |
|
June 1, 2010 |
|
Billboard |
|
|
|
|
|
|
2,340 |
|
|
|
1,319 |
|
|
|
1,100 |
|
|
|
2,834 |
|
|
|
480 |
|
|
|
1,104 |
|
|
|
|
|
|
|
18,358 |
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
$ |
62,858 |
|
|
$ |
83,340 |
|
|
$ |
1,512 |
|
|
$ |
3,511 |
|
|
$ |
7,831 |
|
|
$ |
480 |
|
|
$ |
2,934 |
|
|
$ |
48,672 |
|
|
$ |
38,934 |
|
|
|
|
|
|
|
|
Further details of goodwill impairment are set out in Note 8.
F-20
Unaudited pro forma financial information
The following unaudited pro forma financial information presents the results of operations of the
Group as if the acquisitions of all the above entities had occurred as of January 1, 2008 and 2010, respectively. These
results include the impact of preliminary fair value adjustments on intangible assets and the
related adjustments on deferred taxes. The unaudited pro forma financial information is not
necessarily indicative of what the Groups consolidated results of operations would actually have
been had it completed the acquisitions on January 1, 2008 and 2010, respectively. In addition, the unaudited pro forma
financial information does not attempt to project the future results of operations of the combined
entity.
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2008 |
|
Year ended December 31, 2010 |
Advertising service revenues |
|
$ |
47,794 |
|
|
$ |
51,388 |
|
Income/(loss) from operations |
|
|
14,275 |
|
|
|
(3,344 |
) |
Net loss |
|
$ |
(39,729 |
) |
|
$ |
(45,232 |
) |
5. Accounts receivable, net
Accounts receivable consist of the following:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
Accounts receivable |
|
$ |
15,321 |
|
|
$ |
21,259 |
|
Less allowance for doubtful accounts |
|
|
(2,325 |
) |
|
|
(3,194 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable, net |
|
$ |
12,996 |
|
|
$ |
18,065 |
|
|
|
|
As of December 31, 2009 and 2010, the Groups accounts receivable includes amounts earned and
recognized as revenues of $2,371 and $6,105, respectively but not yet billed (unbilled
receivables). Management expects all unbilled receivables to be billed and collected within 12
months of the balance sheet date.
The following table presents the movement of the allowance for doubtful accounts:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
Beginning allowance for doubtful accounts |
|
$ |
712 |
|
|
$ |
2,325 |
|
Effect of foreign currency translation |
|
|
2 |
|
|
|
89 |
|
Additions charged to bad debt expense |
|
|
1,611 |
|
|
|
1,171 |
|
Write-back of bad debt expense |
|
|
|
|
|
|
(391 |
) |
|
|
|
|
Ending allowance for doubtful accounts |
|
$ |
2,325 |
|
|
$ |
3,194 |
|
|
|
|
6. Prepaid expenses and other current assets
Prepaid expenses and other current assets consist of the following:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
Prepaid rent |
|
$ |
1,939 |
|
|
$ |
5,651 |
|
Other prepaid expenses |
|
|
1,060 |
|
|
|
82 |
|
Rental deposits and other receivables |
|
|
1,657 |
|
|
|
2,607 |
|
|
|
|
|
Total prepaid expenses and other current assets |
|
$ |
4,656 |
|
|
$ |
8,340 |
|
|
|
|
Bad debt expense was $1,006 for the year ended December 31, 2010. No bad debt expense recoginsed for the year ended December 31, 2009.
7. Property and equipment, net
Property and equipment, net consist of the following:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
Leasehold improvements |
|
$ |
94 |
|
|
$ |
114 |
|
Advertising display equipment |
|
|
1,410 |
|
|
|
1,378 |
|
Furniture, fixtures and office equipment |
|
|
597 |
|
|
|
793 |
|
Motor vehicles |
|
|
54 |
|
|
|
30 |
|
|
|
|
Total cost of property and equipment |
|
|
2,155 |
|
|
|
2,315 |
|
Less: accumulated depreciation and amortization |
|
|
(750 |
) |
|
|
(1,182 |
) |
|
|
|
|
Property and equipment, net |
|
$ |
1,405 |
|
|
$ |
1,133 |
|
|
|
|
F-21
Depreciation of property and equipment were allocated to the following categories
of cost and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Cost of revenues |
|
$ |
950 |
|
|
$ |
233 |
|
|
$ |
232 |
|
Selling and marketing expenses |
|
|
|
|
|
|
|
|
|
|
33 |
|
General and administrative expenses |
|
|
318 |
|
|
|
166 |
|
|
|
139 |
|
|
|
|
Total depreciation and amortization |
|
$ |
1,268 |
|
|
$ |
399 |
|
|
$ |
404 |
|
|
|
|
8. Goodwill and other intangible assets
The changes in carrying amount of goodwill for the years ended December 31, 2009 and 2010 are as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xinshi |
|
|
|
|
|
|
Wanshui |
|
|
Shenyang |
|
|
|
|
|
|
Shengshi |
|
|
|
|
|
|
Wenzhou |
|
|
Wuxi |
|
|
HK |
|
|
Zhejiang |
|
|
|
|
|
|
Sige(1) |
|
|
Jincheng |
|
|
chuang |
|
|
Kaixiang |
|
|
zhiyuan |
|
|
Jingli |
|
|
Haiya |
|
|
tongda |
|
|
Botang |
|
|
Rigao |
|
|
Ruizhong |
|
|
Ad-Icon |
|
|
Continental |
|
|
Total |
|
|
|
|
|
Balance as of January 1, 2009 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
5,682 |
|
|
$ |
5,803 |
|
|
$ |
1,470 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
12,955 |
|
Goodwill acquired during the year
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,628 |
|
|
|
2,207 |
|
|
|
2,482 |
|
|
|
5,988 |
|
|
|
116 |
|
|
|
23,699 |
|
|
|
4,904 |
|
|
|
1,354 |
|
|
|
1,294 |
|
|
|
|
|
|
|
48,672 |
|
Impairment of goodwill |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,397 |
) |
|
|
(1,640 |
) |
|
|
(2,130 |
) |
|
|
|
|
|
|
(9,582 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15,749 |
) |
Translation adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6 |
|
|
|
6 |
|
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13 |
|
|
|
|
Balance as of December 31, 2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,316 |
|
|
|
5,619 |
|
|
|
2,313 |
|
|
|
3,858 |
|
|
|
116 |
|
|
|
14,117 |
|
|
|
4,904 |
|
|
|
1,354 |
|
|
|
1,294 |
|
|
|
|
|
|
|
45,891 |
|
|
|
|
Goodwill acquired during the year |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,358 |
|
|
|
18,358 |
|
Goodwill recorded as a result of
contingent consideration
resolved under ASC Topic 805-20 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,309 |
|
|
|
225 |
|
|
|
3,205 |
|
|
|
1,755 |
|
|
|
(21 |
) |
|
|
6,442 |
|
|
|
2,806 |
|
|
|
2,958 |
|
|
|
897 |
|
|
|
|
|
|
|
20,576 |
|
Impairment of goodwill |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,230 |
) |
|
|
(2,674 |
) |
|
|
(3,832 |
) |
|
|
(5,608 |
) |
|
|
(97 |
) |
|
|
(8,864 |
) |
|
|
(5,169 |
) |
|
|
(1,286 |
) |
|
|
(1,651 |
) |
|
|
|
|
|
|
(39,411 |
) |
Translation adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
154 |
|
|
|
114 |
|
|
|
(14 |
) |
|
|
(5 |
) |
|
|
2 |
|
|
|
241 |
|
|
|
38 |
|
|
|
14 |
|
|
|
(3 |
) |
|
|
|
|
|
|
541 |
|
|
|
|
Balance as of December 31, 2010 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
4,549 |
|
|
$ |
3,284 |
|
|
$ |
1,672 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
11,936 |
|
|
$ |
2,579 |
|
|
$ |
3,040 |
|
|
$ |
537 |
|
|
$ |
18,358 |
|
|
$ |
45,955 |
|
|
|
|
|
|
|
(1) |
|
Shanghai Sige Advertising and Media Company Limited |
The gross amount and accumulated impairment losses of goodwill as of December 31, 2009 and 2010 are
as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xinshi |
|
|
|
|
|
|
Wanshui |
|
|
Shenyang |
|
|
|
|
|
|
Shengshi |
|
|
|
|
|
|
Wenzhou |
|
|
Wuxi |
|
|
HK |
|
|
Zhejiang |
|
|
|
|
|
|
Sige |
|
|
Jincheng |
|
|
chuang |
|
|
Kaixiang |
|
|
zhiyuan |
|
|
Jingli |
|
|
Haiya |
|
|
tongda |
|
|
Botang |
|
|
Rigao |
|
|
Ruizhong |
|
|
Ad-Icon |
|
|
Continental |
|
|
Total |
|
|
|
|
|
Goodwill, gross |
|
$ |
1,117 |
|
|
$ |
1,072 |
|
|
$ |
969 |
|
|
$ |
12,316 |
|
|
$ |
9,644 |
|
|
$ |
12,276 |
|
|
$ |
5,988 |
|
|
$ |
116 |
|
|
$ |
23,699 |
|
|
$ |
4,904 |
|
|
$ |
1,354 |
|
|
$ |
1,294 |
|
|
$ |
|
|
|
$ |
74,749 |
|
Accumulated impairment losses |
|
|
(1,117 |
) |
|
|
(1,072 |
) |
|
|
(969 |
) |
|
|
|
|
|
|
(4,025 |
) |
|
|
(9,963 |
) |
|
|
(2,130 |
) |
|
|
|
|
|
|
(9,582 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(28,858 |
) |
|
|
|
Balance as of December 31, 2009 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
12,316 |
|
|
$ |
5,619 |
|
|
$ |
2,313 |
|
|
$ |
3,858 |
|
|
$ |
116 |
|
|
$ |
14,117 |
|
|
$ |
4,904 |
|
|
$ |
1,354 |
|
|
$ |
1,294 |
|
|
$ |
|
|
|
$ |
45,891 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill, gross |
|
$ |
1,151 |
|
|
$ |
1,106 |
|
|
$ |
999 |
|
|
$ |
15,007 |
|
|
$ |
10,168 |
|
|
$ |
15,862 |
|
|
$ |
7,929 |
|
|
$ |
99 |
|
|
$ |
30,877 |
|
|
$ |
7,862 |
|
|
$ |
4,354 |
|
|
$ |
2,187 |
|
|
$ |
18,358 |
|
|
$ |
115,959 |
|
Accumulated impairment losses |
|
|
(1,151 |
) |
|
|
(1,106 |
) |
|
|
(999 |
) |
|
|
(10,458 |
) |
|
|
(6,884 |
) |
|
|
(14,190 |
) |
|
|
(7,929 |
) |
|
|
(99 |
) |
|
|
(18,941 |
) |
|
|
(5,283 |
) |
|
|
(1,314 |
) |
|
|
(1,650 |
) |
|
|
|
|
|
|
(70,004 |
) |
|
|
|
Balance as of December 31, 2010 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
4,549 |
|
|
$ |
3,284 |
|
|
$ |
1,672 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
11,936 |
|
|
$ |
2,579 |
|
|
$ |
3,040 |
|
|
$ |
537 |
|
|
$ |
18,358 |
|
|
$ |
45,955 |
|
|
|
|
Management performs a goodwill impairment test for each of its reporting units as of December 31 of
each year or when circumstances change that would more likely than not that the carrying amount of
goodwill may be impaired. As a result of impairment tests, the Group recorded a goodwill impairment
loss of $15,749 and $39,411 for the years ended December 31, 2009 and 2010, respectively.
F-22
Goodwill impairment in 2009
During 2009, the Group settled contingent purchase consideration of $48,672 and these amounts were
recorded as additional goodwill. The Group performed its annual impairment test at the end of the
year, which indicated that the carrying amount exceeded the fair value by a significant margin. The
impairment test resulted in an additional goodwill impairment loss of $2,397 for Wanshui Zhiyuan,
$1,640 for Shenyang Jingli, $9,582 for Botang and $2,130 for Haiya, as the valuation analysis
indicated that the fair values of the reporting units were less than the carrying value.
Goodwill impairment in 2010
Our
goodwill primarily arises from the initial consideration paid and subsequent settlement of contingent consideration of our business acquisitions in 2008. During 2010, the Group settled contingent purchase consideration of $20,576 under ASC Topic 805-20 which were
recorded as additional goodwill and the Group recognised goodwill of $18,358 for the acquisition of Zhejiang Continental. The Group performed its annual impairment test at the end of the
year, which indicated that the carrying amount exceeded the fair value by a significant margin. The
impairment test resulted in an additional goodwill impairment loss of $10,230 for Kaixiang, $2,674
for Wanshui, $3,832 for Shenyang Jingli, $5,169 for Wenzhou Rigao, $1,286 for Wuxi Ruizhong, $1,651
for HK Ad-Icon, $8,864 for Botang, $5,608 for Haiya and $97 for Shengshitongda, as the valuation analysis indicated that
the fair values of the reporting units were less than the carrying value.
The Group applied the income approach to estimate the fair value of its reporting units for
goodwill impairment tests. The key assumptions used in this approach, which requires significant
management judgment, include business assumptions, growth rate, terminal value, discount rate, and
tax amortization benefit.
Intangible assets other than goodwill consist of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average |
|
As of December 31, |
|
|
|
amortization period |
|
2009 |
|
|
2010 |
|
Gross amount |
|
|
|
|
|
|
|
|
|
|
Customer relationship |
|
0.5-3.4 years |
|
$ |
2,343 |
|
|
$ |
3,511 |
|
Lease agreements |
|
1-4.4 years |
|
|
4,849 |
|
|
|
7,831 |
|
Non-compete agreements |
|
3.4 years |
|
|
|
|
|
|
480 |
|
|
|
|
|
|
|
|
|
|
|
7,192 |
|
|
|
11,822 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated amortization |
|
|
|
|
|
|
|
|
|
|
Customer relationship |
|
|
|
|
(2,135 |
) |
|
|
(2,584 |
) |
Lease agreements |
|
|
|
|
(2,854 |
) |
|
|
(4,242 |
) |
Non-compete agreements |
|
|
|
|
|
|
|
|
(86 |
) |
|
|
|
|
|
|
|
|
|
|
(4,989 |
) |
|
|
(6,912 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated impairment |
|
|
|
|
|
|
|
|
|
|
Customer relationship |
|
|
|
|
(15 |
) |
|
|
(16 |
) |
Lease agreements |
|
|
|
|
(912 |
) |
|
|
(940 |
) |
Non-compete agreements |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(927 |
) |
|
|
(956 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net intangible assets |
|
|
|
|
|
|
|
|
|
|
Customer relationship |
|
|
|
|
193 |
|
|
|
911 |
|
Lease agreements |
|
|
|
|
1,083 |
|
|
|
2,649 |
|
Non-compete agreements |
|
|
|
|
|
|
|
|
394 |
|
|
|
|
|
|
|
|
|
|
$ |
1,276 |
|
|
$ |
3,954 |
|
|
|
|
|
|
There was no impairment loss for the years ended December 31, 2009 and 2010.
F-23
Amortization of intangible assets was allocated to the following categories of cost and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Cost of revenues |
|
$ |
1,542 |
|
|
$ |
1,379 |
|
|
$ |
1,273 |
|
Sales and marketing expenses |
|
|
1,480 |
|
|
|
636 |
|
|
|
462 |
|
|
|
|
Total amortization expenses |
|
$ |
3,022 |
|
|
$ |
2,015 |
|
|
$ |
1,735 |
|
|
|
|
Future expected amortization of intangible assets as of December 31, 2010 is as follows:
|
|
|
|
|
2011 |
|
$ |
1,297 |
|
2012 |
|
|
1,108 |
|
2013 |
|
|
1,023 |
|
2014 |
|
|
526 |
|
Thereafter |
|
|
|
|
|
|
|
|
Total |
|
$ |
3,954 |
|
|
|
|
|
9. Accrued expenses and other payables
Accrued expenses and other payables consist of the following:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
Accrued payroll and staff benefits |
|
$ |
2,559 |
|
|
$ |
1,926 |
|
Accrued professional fee |
|
|
2,852 |
|
|
|
1,044 |
|
Business tax and surcharges payable |
|
|
7,074 |
|
|
|
9,076 |
|
Contingent liabilities (Note 18(c)) |
|
|
844 |
|
|
|
2,602 |
|
Accrued liabilities for abandonment of lease |
|
|
597 |
|
|
|
1,900 |
|
Other accrued liabilities |
|
|
1,972 |
|
|
|
1,383 |
|
|
|
|
Total accrued expenses and other payables |
|
$ |
15,898 |
|
|
$ |
17,931 |
|
|
|
|
10. Short-term borrowings
Balances as of December 31, 2009
The Groups short term borrowing of $654 as of December 31, 2009 represents two short-term bank
loans of $542 and $112. The short-term loan of $542 bears interest at 5.841% per annum and
matured on April 15, 2010. The loan of $112 is guaranteed by a building of the Group, bears
interest at 14.2308% per annum and matured on September 21, 2010.
Total interest expense for the two short-term bank loans is $27 for
the year ended December 31, 2009. On October 30, 2009, the Group
repaid the principal and interests of $1,856 for the prior year
balances.
Balances as of December 31, 2010
The Groups short term borrowing of $729 as of December 31, 2010 represents two short-term bank
loans of $559 and $170. The short-term loan of $559 bears interest at 6% per annum and
matures on April 13, 2011. The loan of $170 bears interest at 14.2308% per annum and matures on
September 21, 2011. Total interest expense for the two
short-term bank loans is $45 for the year ended December 31,
2010. On September 21, 2010, the Group repaid the principal and
interests of $675 for the prior year balances.
F-24
The weighted average interest rates on short-term obligations outstanding are 12.0% and 7.92% for the
years ended December 31, 2009 and 2010, respectively.
11. Common shares and warrants
Common shares
As of December 31, 2010, the number of issued and outstanding common shares was 20,858,661
including 12,462,345 common shares resulting from the reverse acquisition of SearchMedia Holdings.
Warrants
SearchMedia International has a total of 13,400,000 warrants outstanding prior to the business
reverse acquisition. Each warrant entitles the registered holder to purchase one share of the
Companys common stock at a price of $6.00 to $8.00 per share at any time commencing on the
completion of a business combination. The warrants have a four years term and will expire in
November 2012.
Upon completion of the business reverse acquisition, the Company has 15,347,401 warrants
outstanding, which includes 1,519,182 warrants issued to the SearchMedia International shareholders
or warrantholders in the business reverse acquisition and 428,219 warrants issued to the note
holder.
Each warrant issued to a SearchMedia International shareholder or warrant holder in the business
reverse acquisition and note holder entitles the registered holder to purchase one share of
SearchMedia Holdings common stock at a price ranging from $0.0001 to $8.14 per share, subject to
adjustment, at any time. The exercise price and number of ordinary shares issuable on exercise of
the warrants may be adjusted in certain circumstances including in the event of a share dividend,
or recapitalization, reorganization, merger or consolidation. However, the warrants will not be
adjusted for issuances of ordinary shares at a price below their respective exercise prices. The
warrants will expire three years from the date of issuance of such warrant.
In January 2010, the Company repurchased in aggregate 1,738,500 warrants in the open market for
a total consideration of $3,809 under a Board authorized plan. During 2010, 1,460 warrants were
exercised and the Company received net proceeds of $9. As of December 31, 2010, there were
13,607,441 warrants for the common stock outstanding.
12. Share-based payments
Effective on January 1, 2008, the board of directors and shareholders of the SearchMedia
International approved and adopted the 2008 Share Inventive Plan (the Share Incentive Plan) which
provides for the granting of up to 1,796,492 share options and restricted share units to the
eligible employees to subscribe for ordinary shares of SearchMedia International. The granted stock
options and restricted share units were subsequently converted into SearchMedia Holdings stock
options and restricted shares on October 30, 2009 pursuant to the Share Exchange Agreements.
In August 2010, the Board approved an increase of the number of authorized shares to be awarded
under the Share Incentive Plan from 1,796,492 to 3,000,000 shares which may be granted to
designated employees, directors and consultants of the Company.
F-25
(a) Share options
Details of stock options activity during the years ended December 31, 2009 and 2010 was as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
|
|
|
|
|
|
|
average |
|
|
average |
|
|
|
|
|
|
|
|
|
exercise |
|
|
remaining |
|
|
|
|
|
Number of |
|
|
price per |
|
|
contractual |
|
Aggregate |
|
|
|
options |
|
|
share |
|
|
term |
|
fair value |
|
Balance as of January 1, 2009 |
|
|
8,840,000 |
|
|
$ |
0.79 |
|
|
|
|
$ |
432 |
|
Granted |
|
|
1,650,000 |
|
|
|
0.53 |
|
|
|
|
|
33 |
|
Forfeited |
|
|
(4,215,000 |
) |
|
|
0.69 |
|
|
|
|
|
(149 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of October 30, 2009 |
|
|
6,275,000 |
|
|
|
|
|
|
|
|
|
|
|
Converted into IDI options |
|
|
423,797 |
|
|
|
3.19 |
|
|
|
|
|
1,253 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2009 |
|
|
423,797 |
|
|
|
3.19 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
770,000 |
|
|
|
5.47 |
|
|
|
|
|
1,924 |
|
Exercised |
|
|
(86,673 |
) |
|
|
0.01 |
|
|
|
|
|
(345 |
) |
Forfeited |
|
|
(102,263 |
) |
|
|
2.69 |
|
|
|
|
|
(316 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2010 |
|
|
1,004,861 |
|
|
|
2.13 |
|
|
8.6 years |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at December 31, 2010 |
|
|
191,497 |
|
|
|
3.91 |
|
|
8.8 years |
|
|
|
|
The Company determined the estimated grant-date fair value of share options based on the Binomial
Tree option-pricing model using the following assumptions:
|
|
|
|
|
|
|
|
|
Options granted to employee: |
|
2009 |
|
|
2010 |
|
|
|
|
Risk-free rate of return |
|
|
3.43 |
% |
|
|
2.744%-4.142 |
% |
Weighted average expected option life |
|
10 years |
|
10 years |
Expected volatility rate |
|
|
40.30 |
% |
|
|
64.00 |
% |
Dividend yield |
|
|
0 |
% |
|
|
0 |
% |
The expected volatility in the table above was based on the weighted average volatility of several
comparable U.S. listed companies in the advertising industry with operations in the PRC. Since the
Company was a private company at the time the options were issued, the Company estimated the
potential volatility of its ordinary share price by referring to the weighted average volatility of
these comparable companies because management believes that the weighted average volatility of such
companies is a reasonable benchmark to use in estimating the expected volatility of the Companys
ordinary shares.
Because the Companys share options have certain characteristics that are significantly different
from traded options, and because changes in the subjective assumptions can materially affect the
estimated value, in managements opinion, the existing valuation model may not provide an accurate
measure of the fair value of the Companys share options. Although the fair value of share options
is determined in accordance with ASC Topic 718, CompensationStock Compensation, using an
option-pricing model, that value may not be indicative of the fair value observed in a willing
buyer/willing seller market transaction.
The Company has accounted for these options in accordance with ASC Topic 718, CompensationStock
Compensation, by measuring compensation cost based on the grant-date fair value and recognizing
the cost over the period during which an employee is required to provide service in exchange for
the award.
During first quarter of 2010, 545,000 options, at exercise prices ranging from $6.05 to $7.4, to
purchase common shares of the Company were granted to senior executives of the Company with the
options vesting one-third
annually over a three year period. A total of 225,000 options, at exercise price of $7.14, were
also granted to Board members with vesting one year from the date of grant. The fair value of these
options at grant date was $1,923,900.
F-26
On August 20, 2010, one of the senior executives of the Company agreed to cancel 225,000 options
granted in the first quarter of 2010 and, upon cancellation, the senior executive was issued an
option to purchase 225,000 shares of common stock at exercise price of $2.62, which vest one-third
annually on the anniversary of the date of grant. The fair value of these options at grant date was
$216,000.
The amount of compensation cost recognized for these share options was $724 for the year ended
December 31, 2009, of which $83 and $641 was allocated to sales and marketing expenses and
general and administrative expenses, respectively. As of December 31, 2009, unrecognized
share-based compensation cost in respect of granted share options amounted to US$388.
The amount of compensation cost recognized for these share options was $1,680 for the year ended
December 31, 2010, of which $291 and $1,389 was allocated to sales and marketing expenses and
general and administrative expenses, respectively. As of December 31, 2010, unrecognized
share-based compensation cost in respect of granted share options amounted to $906.
(b) Restricted share units
Details of restricted share unit activity during the years ended December 31, 2009 and 2010 were as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
average |
|
|
|
Number of |
|
|
|
|
|
|
remaining |
|
|
|
restricted share |
|
|
Grant-date |
|
|
contractual |
|
|
|
units granted |
|
|
fair value |
|
|
term |
|
Balance as of January 1, 2009 |
|
|
3,867,000 |
|
|
|
|
|
|
|
|
|
Granted |
|
|
3,000,000 |
|
|
|
297 |
|
|
|
|
|
Forfeitures |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of October 30, 2009 |
|
|
6,867,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Converted into IDI restricted shares |
|
|
463,779 |
|
|
|
1,572 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2009 |
|
|
463,779 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
100,000 |
|
|
|
605 |
|
|
|
|
|
Exercised |
|
|
(5,910 |
) |
|
|
|
|
|
|
|
|
Forfeitures |
|
|
(204,604 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2010 |
|
|
353,265 |
|
|
|
|
|
|
8.6 years |
|
|
|
|
|
|
|
|
|
|
|
|
Units vested as of December 31, 2010 |
|
|
81,045 |
|
|
|
|
|
|
7.5 years |
|
|
|
|
|
|
|
|
|
|
|
|
In January 2010, 100,000 restricted shares were granted to a senior executive of the Company with
the shares of restricted stock vesting on the third year anniversary of the date of grant. The fair
value of the restricted share unites was estimated using the closing quoted market price at the
date of grant.
Since management believes achievement of the performance goals is probable, the Group recognized
compensation cost (included in general and administrative expenses in the consolidated statements
of operations) for these restricted share units of $360 for the year ended December 31, 2009 and
$719 for the year ended December 31, 2010. The fair value of the restricted share units was
estimated using the Binomial Tree option-pricing model and assumes that the performance goals will
be achieved. If the performance goals are not met, no compensation cost is recognized and any
recognized compensation cost will be reversed. The assumptions used in estimating the fair value of
the restricted share units are the same as those related to valuation of share options set out in
note 12(a).
F-27
As of December 31, 2010, unrecognized share-based compensation cost in respect of granted
restricted share units amounted to $517, which is expected to be recognized over a weighted
average period of 13.4 months.
13. Statutory reserve
The Groups PRC consolidated subsidiaries and VIEs are required under PRC laws to transfer at least
10% of their after tax profits as reported in their PRC statutory financial statements to a
statutory surplus reserve. These entities are permitted to discontinue allocations to this reserve
if the balance of such reserve has reached 50% of their respective registered capital. The transfer
to this reserve must be made before distribution of dividends to equity shareholders. The statutory
reserve is not available for distribution to the owners (except in liquidation) and may not be
transferred in the form of loans, advances or cash dividends. For the years ended December 31, 2009
and 2010, the Groups PRC consolidated subsidiaries and VIEs made appropriations to the statutory
reserve funds of $36 and US$0, respectively. The accumulated balance of the statutory reserve
funds maintained at these PRC consolidated subsidiaries and VIEs as of December 31, 2009 and 2010
was $162 and $162, respectively.
14. Related party transactions and balances
(a) Related party transactions
In the ordinary course of business, the Group enters into certain transactions with its related
parties. Management believes that these related party transactions were conducted at normal
commercial terms. For the periods presented, material related party transactions are summarized as
follows for the years ended December 31, 2009 and 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
Note |
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
|
|
|
Revenue from provision of advertising services |
|
(i) |
|
$ |
3,242 |
|
|
$ |
2,910 |
|
|
$ |
55 |
|
|
Expenses for leases of advertising space |
|
(ii) |
|
$ |
540 |
|
|
$ |
1,515 |
|
|
$ |
643 |
|
Notes:
(i) Represents amounts received / receivable from affiliated entities of senior management
personnel of certain companies acquired by Jingli, for provision of advertising services to these
entities. The transactions are conducted on terms comparable to the terms of similar transactions
with third parties.
(ii) Represents amounts paid / payable to affiliated entities of senior management personnel of
certain companies acquired by Jingli, for leases of advertising spaces from these entities. The
transactions are conducted on terms comparable to the terms of similar transactions with third
parties.
F-28
(b) Amounts due from / to related parties are analyzed as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
Note |
|
2009 |
|
|
2010 |
|
|
|
|
|
|
Customer payments collected on behalf of the Group |
|
(i) |
|
$ |
2,018 |
|
|
$ |
|
|
Receivables for provision of advertising services |
|
(ii) |
|
|
453 |
|
|
|
|
|
Advances to ex-owners of acquired companies |
|
(iii) |
|
|
369 |
|
|
|
966 |
|
|
|
|
|
|
Due from related parties |
|
|
|
$ |
2,840 |
|
|
$ |
966 |
|
|
|
|
|
|
Operating expenses paid on behalf of the Group |
|
(iv) |
|
$ |
195 |
|
|
$ |
1,905 |
|
Payables for the lease of advertising space |
|
(v) |
|
|
151 |
|
|
|
53 |
|
|
|
|
|
|
Due to related parties |
|
|
|
$ |
346 |
|
|
$ |
1,958 |
|
|
|
|
|
|
Note:
(i) Represents customer payments collected by the Companys shareholders and senior management
personnel of Jinglis acquired subsidiaries on behalf of the Group companies which had not been
remitted to the Group companies as of the balance sheet date. During the year ended December 31,
2009 and 2010, certain customers remitted cash to affiliated companies controlled by shareholders
of the Company and senior management personnel of certain subsidiaries of the Company to settle the
amounts they owed to the Group. The amounts received by the shareholders and the senior management
personnel are repaid back to the Group on a periodic basis. The balance is expected to be repaid to
the Group within 12 months.
(ii) Represents amount receivable from affiliated companies of certain companies acquired by Jingli
for advertising services provided by the Group to these entities as described in the note (i)
above. These amounts are repayable in accordance with normal payment terms with other unrelated
customers.
(iii) Represents the advances made by the Group to ex-owners of certain companies acquired by
Jingli. The amounts are interest free and are expected to be settled within 12 months from the
balance sheet date and are secured by the contingent purchase price payable of certain companies
acquired by Jingli to the previous owners of the acquired companies.
(iv) Represents operating expenses paid by the senior management personnel of certain companies
acquired by Jingli on behalf of the Group. The amounts are interest free, unsecured and have no
fixed terms of repayment.
(v) Represents operating lease payments payable to affiliated companies of certain companies
acquired by Jingli for leases of advertising space as described in note (ii) above. The amounts are
repayable in accordance with normal payment terms with other unrelated advertising space suppliers.
F-29
15. Interest expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Bank loan interest |
|
$ |
34 |
|
|
$ |
27 |
|
|
$ |
45 |
|
Convertible promissory notes interest |
|
|
720 |
|
|
|
962 |
|
|
|
|
|
Interest on New Note, First Interim Notes and short-term
loan from a third party lender |
|
|
617 |
|
|
|
973 |
|
|
|
|
|
Amortization of convertible promissory notes issuance costs |
|
|
349 |
|
|
|
|
|
|
|
|
|
Amortization of convertible promissory notes discount |
|
|
997 |
|
|
|
|
|
|
|
|
|
|
|
|
Total interest expense |
|
$ |
2,717 |
|
|
$ |
1,962 |
|
|
$ |
45 |
|
|
|
|
16. Income taxes
Cayman Islands
Under the current laws of the Cayman Islands, the Company is not subject to tax on its income or
capital gains. In addition, upon any payment of dividends by the Company, no withholding tax is
imposed.
Peoples Republic of China
The Companys consolidated subsidiaries and VIEs in the PRC are governed by the income tax law of
the PRC and file separate income tax returns. The entities acquired by Jingli in 2008 are subject
to PRC enterprise income tax at 25% on their assessable profits.
Under the new tax law and related implementation rules, a withholding tax is applied on the gross
amount of dividends received by the Company from its PRC consolidated subsidiaries and VIEs after
January 1, 2008; however undistributed earnings prior to January 1, 2008 are exempted from
withholding tax. The implementation rules provide that the withholding tax rate is 10% or the
applicable rate specified in a tax treaty. The Company has not provided for income taxes on
accumulated earnings of its PRC subsidiaries as of December 31, 2008 since these earnings are
intended to be reinvested indefinitely in the PRC. It is not practicable to estimate the amount of
additional taxes that might be payable on such undistributed earnings.
Hong Kong
Ad-Icon and Great Talent are subject to Hong Kong profits tax at a tax rate of 16.5% on their
assessable profits.
F-30
For the
years ended December 31, 2008, 2009 and 2010, substantially all of the Groups income before
income taxes is derived from the PRC. Income tax expense consists of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Current tax |
|
|
|
|
|
|
|
|
|
|
|
|
- PRC |
|
$ |
3,549 |
|
|
$ |
3,460 |
|
|
$ |
2,212 |
|
- HK |
|
|
72 |
|
|
|
34 |
|
|
|
25 |
|
Deferred tax |
|
|
|
|
|
|
|
|
|
|
|
|
- PRC |
|
|
(2,123 |
) |
|
|
808 |
|
|
|
(813 |
) |
- HK |
|
|
(17 |
) |
|
|
17 |
|
|
|
(4 |
) |
|
|
|
Total income tax expense |
|
$ |
1,481 |
|
|
$ |
4,319 |
|
|
$ |
1,420 |
|
|
|
|
The actual income tax expense reported in the consolidated statements of income differs from the
expected income tax expense computed by applying the PRC statutory
tax rate of 25% for the years
ended December 31, 2008, 2009 and 2010 respectively to income before income taxes as a result of the
following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Computed expected tax expense |
|
$ |
(8,399 |
) |
|
$ |
(4,582 |
) |
|
$ |
(11,305 |
) |
Effect of differential tax rate on
income of Ad-Icon |
|
|
(29 |
) |
|
|
(26 |
) |
|
|
(13 |
) |
Effect of non-PRC entities not
subject to income tax |
|
|
2,616 |
|
|
|
1,748 |
|
|
|
1,279 |
|
Non-deductible expenses |
|
|
4,429 |
|
|
|
5,267 |
|
|
|
9,778 |
|
Tax loss which no deferred tax
asset was recognized |
|
|
2,864 |
|
|
|
3,278 |
|
|
|
1,369 |
|
Tax loss that is expired |
|
|
|
|
|
|
509 |
|
|
|
|
|
Income not subject to tax |
|
|
|
|
|
|
(1,875 |
) |
|
|
(40 |
) |
Change in valuation allowance |
|
|
|
|
|
|
|
|
|
|
352 |
|
|
|
|
Actual income tax expense |
|
$ |
1,481 |
|
|
$ |
4,319 |
|
|
$ |
1,420 |
|
|
|
|
Non-deductible expenses primarily represent goodwill impairment which is not deductible for tax
purpose and entertainment expenses in excess of statutory limits for tax purpose.
The tax effects of the Groups temporary differences that give rise to significant portions of the
deferred tax assets and liabilities are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
2010 |
|
|
|
|
Deferred tax assets-current: |
|
|
|
|
|
|
|
|
|
|
|
|
- Property and equipment |
|
$ |
1,069 |
|
|
$ |
|
|
|
$ |
|
|
- Tax loss carried forwards of a subsidiary |
|
|
46 |
|
|
|
23 |
|
|
|
89 |
|
- Allowance for doubtful accounts |
|
|
157 |
|
|
|
430 |
|
|
|
802 |
|
- Accrued expenses |
|
|
16 |
|
|
|
27 |
|
|
|
|
|
|
|
|
|
|
|
1,288 |
|
|
|
480 |
|
|
|
891 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities non-current: |
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets |
|
|
(808 |
) |
|
|
(316 |
) |
|
|
(989 |
) |
|
|
|
|
Net deferred tax assets |
|
$ |
480 |
|
|
$ |
164 |
|
|
$ |
(98 |
) |
|
|
|
F-31
As of December 31, 2010, tax losses carryforwards of Haiya and Ad-Icon Shanghai amounted to US$53
and US$36 which will expire in the year ending December 31, 2015.
The realization of the future tax benefits of a deferred tax asset is dependent on future taxable
income against which such tax benefits can be applied or utilized and the consideration of the
scheduled reversal of deferred tax liabilities and any available tax planning strategies. In
assessing the realizability of deferred tax assets, management considers whether it is more likely
than not that some portion or all of the deferred tax assets will not be realized. All available
evidence must be considered in the determination of whether sufficient future taxable income will
exist since the ultimate realization of deferred tax assets is dependent upon the generation of
future taxable income during the periods in which those temporary differences become deductible and
tax loss carryforwards are utilized. Such evidence includes, but is not limited to, the financial
performance of the entities, the market environment in which these entities operate and the length
of relevant carryover periods. Sufficient negative evidence, such as cumulative net losses during a
three-year period that includes the current year and the prior two years, may require that a
valuation allowance be established against the deferred tax assets.
For the year ended December 31, 2009 and 2010, the Group did not have unrecognized tax benefits,
and it does not expect that the amount of unrecognized tax benefits will change significantly
within the next 12 months. No interest and penalties related to unrecognized tax benefits were
accrued at the date of initial adoption of FIN 48 and as of December 31, 2009 and 2010.
According to the PRC Tax Administration and Collection Law, the statute of limitations is three
years if the underpayment of taxes is due to computational errors made by the taxpayer or the
withholding agent. The statute of limitations is extended to five years under special
circumstances, where the underpayment of taxes is more than US$15 (RMB 100). In the case of
transfer pricing issues, the statute of limitation is ten years. There is no statute of limitation
in the case of tax evasion. The tax returns of the Companys consolidated subsidiaries and VIEs in
the PRC for the tax years beginning in 2004 are subject to examination by the relevant tax
authorities. The tax returns of the Companys operating subsidiary in the HKSAR for the tax years
beginning in 2002 are subject to examination by the relevant tax authorities.
17. Employee benefit plans
Employees of the Company and its subsidiaries located in Hong Kong are covered by the Mandatory
Provident Fund Scheme (MPF Scheme) established on December 1, 2000 under the Mandatory Provident
Fund Scheme Ordinance of Hong Kong. The calculation of contributions for these eligible employees
is based on 5% of the applicable payroll costs, and contributions are matched by the employees.
The amounts paid by the Company to the MPF Scheme were $5, $6 and $6 for the years ended December
31, 2008, 2009 and 2010, respectively.
Employees of the Company and its subsidiaries located in the PRC are covered by the retirement
schemes defined by local practice and regulations, which are essentially defined contribution
schemes. The contributed amounts are determined based on 20% of the applicable payroll costs. The
amounts paid by the Company to these defined contribution schemes were $188, $177 and $194 for
years ended December 31, 2008, 2009 and 2010, respectively.
In addition, the Company is required by law to contribute medical insurance benefits, housing
funds, unemployment, and other statutory benefits ranging from 1% to 10% of applicable salaries.
The PRC government is directly responsible for the payment of the benefits to these employees. The
amounts contributed for medical insurance benefits were $102, $97 and $106 for the years ended
December 31, 2008, 2009 and 2010, respectively. The amounts contributed for housing funds was $60,
$56 and $62 for the years ended December 31, 2008, 2009 and 2010, respectively. The amounts
contributed for other benefits were $26 and $24 and $26 for the years ended December 31, 2008, 2009
and 2010, respectively.
18. Commitments and contingencies
(a) Operating lease commitments
The Group leases space primarily inside elevators, light boxes and billboards to display the
content of its customers advertisements, and office premises under operating lease arrangements.
These operating leases do not contain provisions for contingent rentals.
F-32
Rental expenses under operating leases were allocated to the following categories of cost and
expenses:
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2009 |
|
|
2010 |
|
|
|
|
|
Cost of revenues |
|
$ |
24,386 |
|
|
$ |
33,301 |
|
Selling and marketing expenses |
|
|
|
|
|
|
8 |
|
General and administrative expenses |
|
|
1,595 |
|
|
|
484 |
|
|
|
|
Total rental expenses |
|
$ |
25,981 |
|
|
$ |
33,793 |
|
|
|
|
As of December 31, 2010, future minimum rental payments under non-cancellable operating leases
having initial or remaining lease terms of more than one year are as follows:
|
|
|
|
|
Year |
|
|
|
|
2011 |
|
$ |
15,898 |
|
2012 |
|
|
3,947 |
|
2013 |
|
|
1,032 |
|
2014 |
|
|
219 |
|
2015 |
|
|
12 |
|
Thereafter |
|
|
|
|
|
|
|
|
|
|
$ |
21,108 |
|
|
|
|
|
(b) Capital commitment
The Group has no material capital commitment as of December 31, 2010.
(c) Contingency
The Group
is periodically involved in legal proceedings and has made
provision for operational
claims of $844 and $2,078 as of December 31, 2009 and 2010, respectively.
19. Subsequent events
The Company evaluated all events and transactions after December 31, 2010 through the date these
financial statements were issued and the material subsequent events were as follows:
On April 13, 2011, the Board of Directors of the Company approved an extension of the expiration
date of its publicly held warrants with an exercise price of $6.00 from November 19, 2011 to
November 19, 2012. All other provisions of the warrants remain the same.
Subsequent to December 31, 2010, the Group has been involved in various legal proceedings for
operational claims. The Group is still evaluating the impact of these cases since most are still in
process and the outcome of these claims cannot be determined. Included in these proceedings are the
following:
In June 2010, the original shareholders (the Plaintiffs) of Shaanxi Xinshichuang Advertisement
Marketing Co., Ltd. (Shaanxi Co), filed a civil lawsuit (Lawsuit) with the Shanghai Chongming
County Peoples Court (Chongming Court) against Jingli. In 2008, Jingli acquired 100% equity
interest in Shaanxi Co from the Plaintiffs. In the Lawsuit, the Plaintiffs claimed that Jingli
owed them approximately US$2.2 million (total claim) relating to the unpaid consideration for
equity interest in Shaanxi Co, interest, reimbursement of certain operating expenses, liquidated
damages and court fees.
In March 2011, the Chongming Court issued a judgment (Judgment) ordering Jingli to pay the
Plaintiffs an aggregate of approximately US$1.2 million plus accrued interests and a percentage of
the
court fees. The Group has made full provision for the Judgment as of December 31, 2010.
In late March 2011, Jingli appealed the Judgment to the Shanghai Second Intermediate Peoples Court
(Appellate Court). Jingli has based its appeal on various legal arguments including, among
others, that the Chongming Court: (i) applied incorrect laws and regulations; (ii) accepted
incorrect facts; and (iii) did not duly follow all legal procedures.
At the time of this filing, the Appellate Court has yet to render a ruling.
A shareholder complaint was filed on September 13, 2010 by Sid Murdeshwar against SearchMedia
Holdings, the former Ideation officers and directors and certain of the SearchMedia Holdings
officers and directors (the Individual Defendants) as a purported class action on behalf of the
shareholders of SearchMedia Holdings in the United States District Court for the Central District
of California. The case was filed under the caption Sid Murdeshwar, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. SearchMedia Holdings Limited f/k/a Ideation Acquisition
Corp., Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin, Glenn Halpryn, Thomas E.
Beier, David H. Moskowitz, Shawn Gold, Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer
Huang, Defendants.
A separate shareholder complaint was filed on December 23, 2010 by Hymie Akst against SearchMedia
Holdings, the former Ideation officers and directors and certain of the SearchMedia Holdings
officers and directors (the Individual Defendants) as a purported class action on behalf of the
shareholders of SearchMedia Holdings in the United States District Court for the Southern District
of Florida. The case was filed under the caption Hymie Akst, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. SearchMedia Holdings Limited f/k/a Ideation Acquisition
Corp., Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin, Glenn Halpryn, Thomas E.
Beier, David H.
Moskowitz, Shawn Gold, Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer Huang,
Defendants.
On February 17, 2011, the Murdeshwar action was transferred to the United States District Court for
the Southern District of Florida. The Akst plaintiffs voluntarily dismissed their action on
February 23, 2011. On April 11, 2011, the Murdeshwar plaintiffs amended their complaint.
The amended complaint alleges, among other things, that the directors of SearchMedia Holdings
violated the federal securities laws by making false and misleading statements regarding Ideations
acquisition of the target company, SearchMedia International and by overstating SearchMedia
Internationals financial results. The amended complaint further alleges that the Individual
Defendants are liable for the alleged misrepresentations as controlling persons. The complaint
seeks certification of a class of SearchMedia Holdings shareholders who purchased or otherwise
acquired SearchMedia Holdings securities between April 1, 2009 and August 20, 2010, and all persons
who were holders of
SearchMedia Holdings on October 2, 2009, an award of compensatory damages, an award of reasonable
fees and costs incurred in this action, and such other relief as the Court deems just and proper.
The Court has ordered that any defendant in the Murdeshwar action who is not served with the
amended complaint by July 29, 2011 will be dismissed without prejudice. On May 2, 2011, the Company
and the Individual Defendants who have been served filed a motion to dismiss the claims asserted
against them. The Court has not yet ruled on the motion to dismiss. A mediation is scheduled for July 26, 2011.
F-33
exv8w1
Exhibit 8.1
Subsidiaries of the Registrant
The following table sets forth, at December 31, 2010, the Registrants subsidiaries and their
respective jurisdictions of incorporation.
|
|
|
Name |
|
Jurisdiction |
|
Ad-Icon Company Limited
|
|
Hong Kong |
Ad-Icon Advertising (Shanghai) Co., Ltd.
|
|
China |
Beijing Wanshuizhiyuan Advertising Co., Ltd.
|
|
China |
Great Talent Holdings Limited
|
|
Hong Kong |
Jieli Investment Management Consulting (Shanghai) Co., Ltd.
|
|
China |
Jieli Network Technology Development (Shanghai) Co., Ltd.
|
|
China |
SearchMedia International Limited
|
|
China |
Shanghai Botang Advertising Co., Ltd.
|
|
China |
Shanghai Haiya Advertising Co., Ltd.
|
|
China |
Shenyang Jingli Advertising Co., Ltd.
|
|
China |
Wuxi Ruizhong Advertising Co., Ltd.
|
|
China |
Zhejiang Continental Advertising Co, Ltd.
|
|
China |
exv12w1
Exhibit 12.1
CERTIFICATIONS
I, Paul Conway, certify that:
1. |
|
I have reviewed this annual report on Form 20-F of SearchMedia Holdings Limited; |
|
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 company as of, and for, the periods presented in this report; |
|
4. |
|
The companys 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 company 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 company, 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 companys 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 companys internal control over
financial reporting that occurred during the period covered by the annual report that
has materially affected, or is reasonably likely to materially affect, the companys
internal control over financial reporting; and |
5. |
|
The companys other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the companys auditors and the
audit committee of the companys 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 companys 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 companys internal control over financial reporting. |
|
|
|
|
|
Date:
|
|
June 30, 2011
|
|
|
|
|
|
|
|
|
|
/s/
Paul Conway |
|
|
|
|
Paul Conway |
|
|
|
|
Chief Executive Officer |
|
|
exv12w2
Exhibit 12.2
CERTIFICATIONS
I, Wilfred Chow, certify that:
1. |
|
I have reviewed this annual report on Form 20-F of SearchMedia Holdings Limited; |
|
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 company as of, and for, the periods presented in this report; |
|
4. |
|
The companys 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 company 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 company, 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 companys 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 companys internal control over
financial reporting that occurred during the period covered by the annual report that
has materially affected, or is reasonably likely to materially affect, the companys
internal control over financial reporting; and |
5. |
|
The companys other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the companys auditors and the
audit committee of the companys 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 companys 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 companys internal control over financial reporting. |
|
|
|
|
|
Date:
|
|
June 30, 2011
|
|
|
|
|
|
|
|
|
|
/s/
Wilfred Chow |
|
|
|
|
Wilfred Chow |
|
|
|
|
Chief Financial Officer |
|
|
exv13w1
Exhibit 13.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY
ACT OF 2002
In connection with the Annual Report on Form 20-F of SearchMedia Holdings Limited (the Company)
for the fiscal year ended December 31, 2010, as filed with the Securities and Exchange Commission
on the date hereof (the Report), I, Paul Conway, Chief Executive Officer of the Company, hereby
certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002, that, to my knowledge:
(1) |
|
the Report fully complies with the requirements of Section 13(a) or 15 (d) of the Securities
Exchange Act of 1934, as amended; and |
(2) |
|
the information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company. |
|
|
|
|
|
Date:
|
|
June 30, 2011
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
/s/
Paul Conway |
|
|
|
|
Paul Conway |
|
|
|
|
Chief Executive Officer |
|
|
exv13w2
Exhibit 13.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY
ACT OF 2002
In connection with the Annual Report on Form 20-F of SearchMedia Holdings Limited (the Company)
for the fiscal year ended December 31, 2010, as filed with the Securities and Exchange Commission
on the date hereof (the Report), I, Wilfred Chow, Chief Financial Officer of the Company, hereby
certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002, that, to my knowledge:
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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, as amended; 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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Date:
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June 30, 2011
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By: |
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/s/
Wilfred Chow |
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Wilfred Chow |
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Chief Financial Officer |
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