U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 20673 / August 7, 2008
SEC v. Angel Acquisition Corp., et al., Case No. SACV 08-880 JVS (ANx) (C.D. Cal.)
SEC v. Global Materials & Services, Inc., et al., Case No. SACV 08-881 DOC (RNBx) (C.D. Cal.)
SEC Charges Six Microcap Companies, Four Officers and Four Sham Consultants for Improperly Raising Capital By Abusing Form S-8
On August 6, 2008, the Securities and Exchange Commission filed two separate complaints in the U.S. District Court for the Central District of California against six microcap companies, four officers and four sham consultants for engaging in unregistered public offerings that dumped billions of shares on the market through so-called employee stock option and consulting programs.
In SEC v. Angel Acquisition Corp., et al., the Commission alleges that five companies — NW Tech Capital, Inc. (NW Tech), Marshall Holdings International, Inc. (Marshall Holdings), Angel Acquisition Corp. (AAC), Winsted Holdings, Inc. (Winsted Holdings) and Zann Corp. — violated Sections 5(a) and 5(c) of the Securities Act of 1933 (Securities Act) when they improperly registered shares issued under their employee stock option programs on Form S-8 registration statements and then received at least 85% of the proceeds from the shares' sales as payment for the options' exercise price. The Commission also alleges that Marshall Holdings' officers, Richard A. Bailey and Florian R. Ternes, and Winsted Holdings' former officer, Mark T. Ellis, violated Section 5 when they implemented and administered their companies' employee stock option programs. Form S-8 statements may be used to register shares issued to compensate employees and consultants and have abbreviated disclosure requirements as compared to statements registering shares used to raise capital. According to the complaints, however, the programs functioned as public offerings in which the companies used their employees as conduits to the market so that they could raise capital without complying with the registration provisions.
The complaints further allege that the companies' programs had features that, taken together, virtually guaranteed that the options would be exercised and the underlying shares simultaneously sold to the public at or near the time the options were granted. First, the options' exercise price, which was typically set at 85% of the sale proceeds from the options' underlying shares, floated with the market value of a company's stock at the time of exercise. Second, the options vested immediately, meaning that no conditions needed to be met before the options could be exercised. Third, a cashless exercise method was used so that the exercise price was paid from the sale proceeds of the underlying shares rather than directly by the employees. Other than opening brokerage accounts and signing blank letters of authorization, the companies' employees made no decisions regarding the options' exercise or the sale of the underlying shares during the course of the programs. The complaint seeks injunctive relief and disgorgement plus prejudgment interest. It also seeks civil penalties against Marshall Holdings, Bailey, Ternes and Ellis.
In SEC v. Global Materials & Services, Inc., et al., the Commission alleges that, Global Materials & Services, Inc. (Global Materials), and its former officer, Stephen J. Owens, violated Sections 5(a), 5(c) and 17(a) of the Securities Act and Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder when they issued shares registered on Form S-8 to sham consultants, who then kicked back over 60% of the shares' sales proceeds to Owens and Owens' other businesses. The Commission also alleges that William Woo, Eric Ko, ASMAC Financial, Inc. and Edify Capital Group, Inc. aided and abetted Global Materials' fraud and violated the registration provisions in their role as sham consultants. Finally, the Commission asserts that Global Materials violated the registration provisions by implementing an employee stock option program similar to the programs described in the first complaint. The Commission seeks injunctive relief, disgorgement with prejudgment interest and, with the exception of Global Materials, civil penalties. Additionally, against Owens, it seeks an officer and director bar pursuant to Section 20(e) of the Securities Act and Section 21(d)(2) of the Exchange Act and a penny stock bar pursuant to Section 21(d)(6) of the Exchange Act. Finally, the Commission names Flinn Springs Inn, Inc. as a relief defendant and seeks to disgorge the money it received under the fraudulent kickback scheme.
NW Tech, AAC, Winsted Holdings, Zann Corp., and Global Materials have agreed to settle the charges, without admitting or denying the allegations in the complaints, by consenting to the entry of final judgments permanently enjoining them from future violations of the registration provisions and, with respect to Global Materials, the antifraud provisions and ordering them to pay disgorgement plus prejudgment interest with waiver based on inability to pay. The settlements are subject to court approval.