United States of America
In the Matter of
|ORDER INSTITUTING PUBLIC CEASE-AND-DESIST PROCEEDINGS, MAKING FINDINGS AND IMPOSING A CEASE-AND-DESIST ORDER PURSUANT TO SECTION 8A OF THE SECURITIES ACT OF 1933|
The Securities and Exchange Commission ("Commission") deems it appropriate that public cease-and-desist proceedings be, and hereby are, instituted pursuant to Section 8A of the Securities Act of 1933 ("Securities Act") against EquityAlert.com, Inc. ("Equity Alert"), Innotech Corporation ("Innotech"), Bhupinder "Bill" S. Mann ("Mann"), Harmel S. Rayat ("Rayat"), T&G2, Inc. ("T&G") and Virilitec Industries, Inc. ("Virilitec") (collectively "Respondents").
In anticipation of the institution of these proceedings, Respondents have submitted Offers of Settlement (the "Offers") 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 herein, except as to the Commission's jurisdiction over them and the subject matter of these proceedings, which are admitted, Respondents consent to the entry of this Order Instituting Public Cease-and-Desist Proceedings, Making Findings and Imposing a Cease-and-Desist Order Pursuant to Section 8A of the Securities Act of 1933 ("Order"), as set forth below.
On the basis of this Order and Respondents' Offers, the Commission finds1 that:
1. This matter involves a common abuse found among certain small publicly held companies. In recent years, many such companies have hired stock promoters to promote them on stock-picking websites and through mass-mailed e-mail messages. The promoter is often compensated in the form of purportedly unrestricted shares of the company's common stock, which the promoter sells after its promotional activities have attracted investor interest in the company.
2. Under the federal securities laws, a public company cannot distribute unrestricted stock to public investors without first registering the offering with the Commission or having a valid exemption from registration for the transaction. Registration requires a company to provide important information about its finances and business to potential investors, and allows the Commission to review the company's disclosures. In an attempt to circumvent those registration requirements, certain issuers have sought alternate sources of purportedly "free trading" company stock in order to compensate the stock promoters. In such arrangements, the issuers and promoters are nonetheless participating in an unregistered offering of securities to the public in violation of the federal securities laws, as described below.
3. Equity Alert is a Nevada corporation based in Vancouver, British Columbia, Canada. Equity Alert disseminated promotional materials regarding small cap companies on its website, EquityAlert.com, and through e-mail messages mass distributed to its subscribers.
4. Innotech, a Nevada corporation based in Vancouver, British Columbia, owns Equity Alert as a wholly owned subsidiary. During the relevant period, Innotech's common stock was registered with the Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 ("Exchange Act"), and was quoted on the OTC Bulletin Board under the symbol EINC.
5. Mann, 47, of Vancouver, British Columbia, was the President and Chief Executive Officer of both Equity Alert and Innotech from January 2000 through May 2002.
6. Rayat, 42, of Vancouver, British Columbia, was Innotech's Chairman during the relevant period and subsequently served as the President, Chief Executive Officer, and sole director of both Equity Alert and Innotech. (Hereinafter, Equity Alert and Innotech will be referred to collectively as "Equity Alert.")
7. T&G (formerly International Mercantile Corporation) (collectively, "International Mercantile"), a Nevada corporation based in Bernardsville, New Jersey, has two wholly owned subsidiaries, one of which integrates fingerprint scanning technology into a time and attendance system, the other of which markets and distributes electronic gaming devices. During the relevant period, International Mercantile's common stock was registered with the Commission pursuant to Section 12(g) of the Exchange Act, and was quoted on the OTC Bulletin Board under the symbol IMTT. In February 2002, International Mercantile changed its name to T&G and changed its trading symbol to TTGG.
8. Virilitec, a Delaware corporation based in Brooklyn, New York, develops nutritional supplements purportedly designed to enhance human male sperm count and sexual virility. Virilitec's common stock is registered with the Commission pursuant to Section 12(g) of the Exchange Act, and is quoted on the OTC Bulletin Board under the symbol VRLT.
9. In October 2001, Equity Alert was hired to advertise International Mercantile to Equity Alert's subscribers. Mann, Equity Alert's president and CEO at the time, negotiated the arrangement on behalf of Equity Alert, and Equity Alert's Chairman at the time, Rayat, approved it, signing off on the agreement.
10. Equity Alert was retained by an individual who, at around the same time, also entered into a merger agreement under which a company of which he was president would merge into International Mercantile, and he would assume the title of President of the post-merger company, T&G.
11. This individual agreed to pay Equity Alert $49,500 in cash and/or unrestricted International Mercantile shares to promote the company.
12. This individual arranged for a private company he controlled to assign to Equity Alert a portion of a convertible note that was exercisable into International Mercantile common stock. Equity Alert then converted that portion of the note into 100,000 shares of International Mercantile stock. The individual provided Equity Alert with an opinion of counsel providing that the shares could be freely resold to the public.
13. On November 5, 2001, Equity Alert e-mailed its subscribers a news alert advertising International Mercantile as the newest of the "red hot" biometric companies whose share prices had risen following September 11, 2001. In the two days that followed the distribution of the e-mail, International Mercantile's share price rose 31 percent, from $1.13 to $1.48. The average trading volume on those two days represented a 16,000 percent increase over the average daily trading volume of the preceding six months.
14. The day after the dissemination of this e-mail, Equity Alert sold the shares it had received for $132,500.
15. No registration statement was filed with the Commission or was in effect as to the International Mercantile shares sold by Equity Alert. Because Equity Alert had obtained the stock from a person directly or indirectly controlling or controlled by International Mercantile, or under direct or indirect common control with International Mercantile, with a view to distributing the stock to the public, the stock was not exempt from registration. As a result, the securities were restricted and could not be sold to the public within a year after they were acquired by Equity Alert. Therefore, the securities transactions described above violated Sections 5(a) and 5(c) of the Securities Act.
16. In December 2001, Equity Alert was hired by a consultant to Virilitec (the "Virilitec Consultant") to disseminate promotional materials regarding Virilitec to Equity Alert's subscribers. The Virilitec Consultant was the husband of Virilitec's President and Chairperson. Mann, on behalf of Equity Alert, negotiated the deal with the Virilitec Consultant, and Equity Alert's Rayat approved it by signing off on the agreement.
17. The Virilitec Consultant agreed to pay Equity Alert $40,000 in cash and/or unrestricted Virilitec shares. Virilitec's President and Chairperson signed off on the Equity Alert advertising copy and was aware that her husband had hired Equity Alert.
18. The Virilitec Consultant requested a long-time Virilitec shareholder to transfer 40,000 purportedly unrestricted Virilitec shares to Equity Alert.
19. Equity Alert disseminated a promotional e-mail regarding Virilitec on or about December 13, 2001. Although the price of the stock did not rise substantially, the average trading volume on the two days that followed was over 3,000 percent higher than the average daily trading volume over the preceding six months.
20. In the days following the Virilitec promotional campaign, Equity Alert started selling the Virilitec shares it had received for the promotion, ultimately grossing $38,870.
21. No registration statement was filed with the Commission or was in effect as to the Virilitec shares sold by Equity Alert. Because Equity Alert had obtained the stock from a person directly or indirectly controlling or controlled by Virilitec, or under direct or indirect common control with Virilitec, with a view to distributing the stock to the public, the stock was not exempt from registration. As a result, the securities were restricted and could not be sold to the public within a year after they were acquired by Equity Alert. Therefore, the securities transactions described above violated Sections 5(a) and 5(c) of the Securities Act.
22. During the period described above, Mann and Rayat received compensation from Equity Alert, a portion of which was derived from the proceeds of the sales of International Mercantile and Virilitec stock.
23. As a result of the conduct described above, Respondents violated Sections 5(a) and 5(c) of the Securities Act, which prohibit the offer or sale of securities through the mails or in interstate commerce, unless a registration statement has been filed or is in effect as to such securities.
24. Respondents Innotech Corporation and EquityAlert.com, Inc. have submitted a sworn Statement of Financial Condition dated March 31, 2003 and other evidence and have asserted their inability to pay full disgorgement plus prejudgment interest.
In view of the foregoing, the Commission deems it appropriate to impose the sanctions specified in Respondents' Offers.
Accordingly, it is hereby ORDERED that:
A. Respondents cease and desist from committing or causing any violations and any future violations of Sections 5(a) and 5(c) of the Securities Act.
B. Respondents Innotech Corporation and EquityAlert.com, Inc. shall pay disgorgement of $171,370 plus prejudgment interest, but that payment in excess of $31,555.14 is waived based upon Respondents Innotech Corporation and EquityAlert.com, Inc.'s sworn representations in their Statement of Financial Condition dated March 31, 2003 and other documents submitted to the Commission.
C. The Division of Enforcement may, at any time following the entry of this Order, petition the Commission to: (1) reopen this matter to consider whether Respondents Innotech Corporation and EquityAlert.com, Inc. provided accurate and complete financial information at the time such representations were made; and (2) seek an order directing payment of disgorgement and prejudgment interest. No other issue shall be considered in connection with this petition other than whether the financial information provided by Respondents Innotech Corporation and EquityAlert.com, Inc. was fraudulent, misleading, inaccurate, or incomplete in any material respect. Respondents Innotech Corporation and EquityAlert.com, Inc. may not, by way of defense to any such petition: (1) contest the findings in this Order; (2) assert that payment of disgorgement and interest should not be ordered; (3) contest the amount of disgorgement and interest to be ordered; or (4) assert any defense to liability or remedy, including, but not limited to, any statute of limitations defense.
D. IT IS FURTHERED ORDERED that Respondents Innotech Corporation and EquityAlert.com, Inc. shall, within 10 days of the entry of this Order, pay disgorgement and prejudgment interest in the total amount of $31,555.14 to the United States Treasury. Such payment shall be: (A) made by United States postal money order, certified check, bank cashier's check or bank money order; (B) made payable to the Securities and Exchange Commission; (C) hand-delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312; and (D) submitted under cover of a letter
that identifies Innotech Corporation and EquityAlert.com, Inc. as Respondents in these proceedings, the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Robert L. Mitchell, Assistant District Administrator, Securities and Exchange Commission, San Francisco District Office, 44 Montgomery Street, Suite 1100, San Francisco, California 94104-4691.
By the Commission.
Jonathan G. Katz
1 The findings herein are made pursuant to Respondents' Offers and are not binding on any other person or entity in this or any other proceeding.
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