UNITED STATES OF AMERICA
|In the Matter of
BARRY H. PETERSON-ROSS
|ORDER INSTITUTING CEASE-AND-DESIST
PROCEEDINGS PURSUANT TO SECTION 8A
OF THE SECURITIES ACT OF 1933 AND
SECTION 21C OF THE SECURITIES EXCHANGE
ACT OF 1934, MAKING FINDINGS AND
IMPOSING CEASE-AND-DESIST ORDER>
The Securities and Exchange Commission (the "Commission") deems it appropriate that cease-and-desist proceedings pursuant to Section 8A of the Securities Act of 1933 ("Securities Act") and Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") be instituted with respect to Barry H. Peterson-Ross ("Ross").
In anticipation of these proceedings, Ross has submitted an Offer of Settlement ("Offer"), which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission or to which the Commission is a party, and without admitting or denying the findings contained herein, except that Ross admits the jurisdiction of the Commission over him and the subject matter of this proceeding and the matters described in paragraphs III.A. and B. of this Order Instituting Cease-and-Desist Proceedings Pursuant to Section 8A of the Securities Act of 1933 and Section 21C of the Securities Exchange Act of 1934, Making Findings and Imposing Cease-and-Desist Order ("Order"), Ross has consented to the findings and sanctions set forth below.
Accordingly, IT IS ORDERED that proceedings pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act be, and they hereby are, instituted.
On the basis of this Order and the Offer submitted by Ross, the Commission finds that:1
A. Barry H. Peterson-Ross is a resident of New York, New York and has passed the examination to become a certified public accountant in that state. Ross was the responsible accounting person, having the title of Chief Financial Officer, for Detour Magazine, Inc. ("Detour"), a reporting company to the Commission, during the time period relevant to this proceeding.
B. Detour is a Colorado corporation headquartered in Los Angeles, California. Its common stock has been registered with the Commission pursuant to Section 12(g) of the Exchange Act since 1995.
C. During 1997 and 1998 Ross prepared financial statements which were included in Detour's filings with the Commission on Forms 10-QSB. The statements of operations contained in these financial statements included line items that consisted of fractions of previously prepared statements of operations. Ross knowingly used fractions, rather than actual results of operations, in each of these Forms 10-QSB.
D. In or about November 1997 Detour effected a private placement of its common stock. The private placement memorandum for that offering contained financial statements that contained, as line items, numbers that were simple fractions of previously prepared statements of operations for longer periods of time, rather than actual results of operations.
E. On June 9, 1997, Detour entered into stock option agreements with seven different consulting companies for public relations services. The option agreements provided that Detour would issue a total of 2.2 million shares of common stock to the consulting companies at an exercise price of $.01 per share (the "consulting options").
F Also on June 9, 1997, Detour granted an option for 2,800,000 shares to Anchor Capital Management, Ltd. ("Anchor"), an offshore entity, at a cost of $28,000 with an exercise price of $1.50 per share. This price, according to Detour's Form 8-K dated June 29, 1997, was established pursuant to arm's length negotiations.
G. Detour's board of directors approved both the issuance of the consulting options and the grant of the Anchor option on June 9, 1997. Detour's board approved the stock option plan relating to the issuance of the options on December 10, 1997.
H. At the time the option agreements and the Anchor agreement were signed, Detour's stock was not yet trading publicly. Trading in its shares began on December 10, 1997, on the OTC Bulletin Board at $1.00 bid, $1.50 ask.
I. In late 1996, Detour effected a private placement of its common stock. In this offering the company sold its shares for net proceeds of approximately $.76 a share. In or about November 1997, Detour effected a second private placement at a price of $1.50 per share.
J. On December 23, 1997 Detour filed a registration statement on Form S-8 with respect to the shares underlying the consulting options.
K. The exercise price for the consulting options, $.01 per share, was far less than the fair value of the underlying shares, given (1) the $.76 per share price at which Detour common stock was offered in the 1996 private placement; (2) the $1.50 per share price at which Detour stock was offered in the November 1997 private placement; (3) the $1.50 per share price concurrently granted to Anchor in an arm's length transaction; and (4) the price at which the stock opened for trading the day before Detour's board approved the stock option plan relating to the consulting options.
L. In its financial statements for the year ended December 31, 1997, Detour failed to include in its statement of operations any expense item that would reflect the difference between the price at which the consulting options were issued and the fair value of the underlying shares at the time they were issued. These financial statements were included in Detour`s Form 10-KSB which was filed with the Commission on or about April 15, 1998.
M. Detour's failure to record such an expense and include certain disclosures associated with the issuance of the consulting options caused the financial statements of Detour, as contained in its Form 10-KSB for the year ended December 31, 1997, and subsequent filings, to deviate from Generally Accepted Accounting Principles and to materially misrepresent its financial condition and results of operations.
N. Ross caused Detour to fail to make and keep books, records, and accounts which, in reasonable detail, accurately and fairly reflected the transactions and dispositions of the assets of Detour, as more particularly described in paragraphs III.C. through M. above.
O. Ross caused Detour to fail to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (1) transactions were executed in accordance with management's general or specific authorization, (2) transactions were recorded as necessary (i) to permit preparation of financial statements in conformity with GAAP or any other criteria applicable to such statements, and (ii) to maintain accountability for assets as more particularly described in paragraphs III.C. through M. above.
P. By the conduct described in paragraphs C. and L. above, Ross caused Detour's books, records or accounts to be falsified.
Q. By the conduct described in paragraphs C. through P. above, Ross caused Detour to violate Section 17(a) of the Securities Act and Sections 10(b) and 13(a) and (b) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13a-13 and 13b2-1 thereunder.
In view of the foregoing, it is appropriate to impose the sanctions agreed to in the Offer submitted by Ross. Accordingly,
IT IS ORDERED, pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, that Ross cease and desist from committing or causing any violations and any future violations of Section 17(a) of the Securities Act and Sections 10(b) and 13(a) and (b) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13a-13 and 13b2-1 thereunder; and
Ross undertakes, pursuant to agreement with the Commission and not pursuant to Section 21C of the Exchange Act, on reasonable notice and without service of a subpoena, to provide discovery and testify truthfully at any deposition and at any judicial or administrative proceeding arising from or relating to the matters described in this Order.
By the Commission.
Jonathan G. Katz
|1||The findings herein are made pursuant to Respondent's offer of settlement and are not binding on any other person or entity in this or any other proceeding.|
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