As filed with the Securities and Exchange Commission on December 31, 2014

Registration No. 333-

          

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON D.C. 20549

 

FORM S-1

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

MOBIQUITY TECHNOLOGIES, INC.

(Name of registrant as specified in its charter)

 

New York   7310   91-1966948
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
 

(I.R.S. Employer

Identification No.)

 

600 Old Country Road, Suite 541

Garden City, NY 11530

(516) 256-7766

(Address, including zip code, and telephone number,

including area code, or registrant’s principal executive offices)

 

Dean L Julia, Co-Chief Executive Officer

600 Old Country Road, Suite 541

Garden City, NY 11530

(516) 256-7766

(Name, address, including zip code, and telephone number,

including area code, of agent for service)

 

Copies to:

 

Steven Morse, Esq.

Morse & Morse, PLLC

1400 Old Country Road, Suite 302

Westbury, New York 11590

Tel: (516) 487-1446

Email: morgold@aol.com

Douglas S. Ellenoff, Esq.

Lawrence A. Rosenbloom, Esq.

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor

New York, NY 10105

Tel: (212) 370-1300

Email: lrosenbloom@egsllp.com

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. x

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer o   Non-accelerated filer o
Accelerated filer o   Smaller reporting company x

 

 
 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of

Securities To Be Registered

 

Proposed Maximum
Aggregate Offering

Price(1)(2)

 

Amount of

Registration Fee

Common Stock, $0.0001 par value per share(3)   $11,500,000   $1,336.30
Underwriter’s Warrant to Purchase Common Stock(4)   $100   $0.01
Common Stock Underlying Underwriter’s Warrant(5)(6)   $460,000   $53.46
Total   $11,960,100   $1,389.77
 

(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).  
(2) Includes the offering price of shares that the underwriter has the option to purchase to cover over-allotments, if any.
(3) Calculated pursuant to Rule 457(o) under the Securities Act based on an estimate of the proposed maximum aggregate offering price.
(4) No registration fee pursuant to Rule 457(g) under the Securities Act.
(5) Pursuant to Rule 416 under the Securities Act, the shares of common stock registered hereby also include an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of stock splits, stock dividends, recapitalizations or other similar transactions.
(6) Registration fee calculated pursuant to Rule 457(g) under the Securities Act.

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 
 

 

The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any state or other jurisdiction where the offer or sale is not permitted.

 

Subject to Completion

Preliminary Prospectus dated December 31, 2014

P R O S P E C T U S

 

Shares

 

 

Common Stock

 

We are selling               shares of our common stock in a firm commitment underwritten offering.

 

Our common stock is quoted on the OTCQB under the symbol “MOBQ.” We intend to apply to list our common stock on the NYSE MKT with such listing to commence upon the closing of this offering. No assurances can be given that our application will be approved. On December 18, 2014, the last reported sale of our common stock on the OTCQB was $3.50 per share, after giving retroactive effect to a presumed one-for-ten reverse stock split to be completed prior to the effectiveness of the registration statement of which this prospectus is a part.

 

Our business and an investment in our common stock involve significant risks. These risks are described under the caption “Risk Factors” beginning on page 8 of this prospectus.

 

    Per Share   Total
Public offering price   $   $
Underwriting discount and commissions(1)   $   $
Proceeds, before expenses, to us   $   $

 

(1) The underwriter will receive compensation in addition to the underwriting discount. We refer you to “Underwriting” beginning on page 53 of this prospectus for additional information regarding total underwriting compensation.

 

The underwriter may also exercise its option to purchase up to an additional                shares of common stock from us, at the public offering price, less the underwriting discount and commissions, for 30 days after the date of this prospectus.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

 

The underwriter expects to deliver the common shares to purchasers on or about               , 2015.

 

National Securities Corporation

 

The date of this prospectus is               , 2015.

 

 
 

 

 

 
 

 

TABLE OF CONTENTS

 

    Page  
PROSPECTUS SUMMARY      1  

RISK FACTORS

     8  
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS      17  
USE OF PROCEEDS      18  
MARKET PRICE OF COMMON STOCK      19  
DIVIDEND POLICY      19  
CAPITALIZATION      20  
DILUTION      21  
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS      22  
BUSINESS      28  
MANAGEMENT      33  
EXECUTIVE AND DIRECTOR COMPENSATION      39  
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS      47  
PRINCIPAL STOCKHOLDERS      49  
DESCRIPTION OF CAPITAL STOCK      50  
SHARES ELIGIBLE FOR FUTURE SALE      52  
UNDERWRITING      53  
LEGAL MATTERS     55  
EXPERTS      55  
WHERE YOU CAN FIND MORE INFORMATION      55  
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS     F-1  

 

For investors outside the United States: neither we nor the underwriter has done anything that would permit this offering or possession or distribution of this prospectus or any free writing prospectus we may provide to you in connection with this offering in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions relating to this offering and the distribution of this prospectus and any such free writing prospectus outside of the United States.

We have not, and the underwriter has not, authorized any other person to provide you with different information than that contained in this prospectus and any related free writing prospectus that we may provide to you in connection with this offering. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.

Unless otherwise indicated, information contained in this prospectus concerning our industry and the markets in which we operate, including our general expectations and market position, market opportunity and market size, is based on information from various sources, on assumptions that we have made that are based on those data and other similar sources and on our knowledge of the markets for our services. These data involve a number of assumptions and limitations. We have not independently verified the accuracy of any third party information. In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors’ and elsewhere in this prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.

 

 
 

 

PROSPECTUS SUMMARY

 

This summary provides an overview of selected information contained elsewhere in this prospectus and does not contain all of the information you should consider before investing in our common stock. You should carefully read this prospectus and the registration statement of which this prospectus is a part in their entirety before investing in our common stock, including the information discussed under “Risk Factors” beginning on page 8 and our consolidated financial statements and notes thereto that appear elsewhere in this prospectus.

 

On November 17, 2014, we held a special meeting of our stockholders to approve authorizing our board of directors to effectuate a reverse stock split in its sole discretion of not less than 1-for-5 and not greater and 1-for-20 for the purpose of attempting to obtain a listing of our common stock on the NYSE MKT. Such approval was obtained, and this prospectus assumes the completion of a reverse stock split in a ratio of 1-for-10. Unless otherwise indicated, all share and per share amounts in this prospectus including market information, except for the historical consolidated financial statements and notes thereto have been retroactively adjusted to reflect such 1-for-10 reverse stock split.

 

As used in this prospectus, the terms “we,” “our,” “us,” “Mobiquity Technologies,” or “the company” refer to Mobiquity Technologies, Inc. and its subsidiaries, taken as a whole, unless the context otherwise requires it.

 

Overview

 

We operate a national location-based mobile advertising network that has developed a consumer-focused proximity network which we believe is unlike any other in the United States. Our integrated suite of proprietary location based mobile advertising technologies allows clients to execute more personalized and contextually relevant experiences, driving brand awareness and incremental revenue.

 

We have installed our location-based mobile advertising solutions in approximately 200 locations as of October 2014 and are currently expanding to 240 retail destinations across the U.S. to create "smart malls" using Bluetooth-enabled iBeacon compatible technology. Over the next 24 months following the completion of this offering, we plan to expand outside the malls with additional synergistic venues that will allow for cross marketing opportunities in such venues as stadiums, arenas, additional college campuses, airports and retail chains. For example, we have entered into an agreement with the New York State University at Stony Brook to deploy a mobile advertising network in their new arena. This type of installation will enable fan engagement, cross-marketing opportunities, sponsorship activation and create interactive event experiences. This is our first installation in the university market.

 

We operate through our wholly-owned subsidiaries, Ace Marketing & Promotions, Inc. and Mobiquity Networks, Inc. Ace Marketing is our legacy marketing and promotions business which provides integrated marketing services to our commercial customers. While Ace Marketing currently represents substantially all of our revenue, we anticipate that activity from Ace Marketing will represent a diminishing portion of corporate revenue as our attention is now principally focused on developing and executing on opportunities in our Mobiquity Networks business.

 

We believe that our Mobiquity Networks business represents our greatest growth opportunity going forward. This business unit is well positioned as a result of our early mover status and novel technology integration to address a rapidly growing segment of the digital advertising market – location based mobile marketing. We expect that Mobiquity Networks will generate the majority of our revenue by the end of 2015, although no assurances can be given in this regard.

 

Mobiquity Hardware Solutions

 

Our Mobiquity hardware solutions are currently deployed in retail locations (and in the future may be deployed at other venues such as stadiums, arenas, college campuses and airports) to create the Mobiquity network. Our hardware solutions include Mobi-Units, Mobi-Beacons and Mobi-Tags, which can be used in different combinations as the setting requires.

 

Mobi-Units utilize both Bluetooth and Wi-Fi to communicate with all mobile devices, including smart phones and feature phones. When our Mobi-Units are in use, consumers have the choice through an opt-in process to receive only desired content and offers. Additionally, through the use of Wi-Fi, consumers can connect to view content and receive special offers.

 

Mobi-Beacons, which utilize Bluetooth LE 4.0 technology, can dramatically enhance the in-app experience through the use of hyper accurate location event data. Our Mobi-Beacons have been developed to meet or exceed all iBeacon standards. Importantly, we have also developed a proprietary method for encrypting and decrypting our beacon signals on a rolling basis to ensure that its beacon network remains fully secure, and exclusively for the beneficial use of our clients.

 

Mobi-Tags interact with smart phones utilizing quick response codes and near field communication and can promote app downloads, social media engagement and database building.

 

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Our Single Integrated Platform

 

Our Mobiquity Platform employs a number of core mobile solutions such as; Bluetooth, Wi-Fi, Near Field Communication and Quick Response Codes in order to engage with nearly 100% of mobile device types. The platform also allows for plug-in solutions to be added to increase our service offerings and add complementary revenue streams. For example, in addition to our advertising network, numerous plug-ins can be added for services such as loyalty programs, indoor mapping and mobile payments. We have developed an online platform that integrates the hardware and facilitates campaign management and reporting across the installed network. Our clients can use the network to deploy mobile ad campaigns simultaneously across multiple delivery methods, paying a cost per engagement fee. Alternatively, clients can subscribe to our Location Signal Service to access real-time contextual beacon signals to drive localized in-app user activity. Management believes that no other competitive solution offers a platform that integrates the depth and range of mobile advertising tools combined with a nationally deployed hardware network.

 

A diagram of our basic network architecture is as follows:

 

 

The following graphic depicts a typical mall-shopper engagement from our customers’ viewpoint:

 

 

 

Our Mobiquity Networks business monetizes its network by providing clients with access to our exclusive common-area beacon signals. By incorporating our software development kit (or SDK), the client app (or campaign-specific 3rd party app) can access the beacon signals provided by our network, and leverage those signals plus the associated contextual information provided by our platform to trigger location-based campaign messaging. We plan to generate revenue several ways including by collecting a fee based on the engagement rate of our customer advertising campaigns, selling the data gathered by our network and licensing our location signals.

 

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The Network

 

Through our agreement with Simon Property Group, we are in the process of installing our Mobiquity hardware solutions throughout 240 of their top shopping malls across the US with installation already completed in 200 malls. An additional 40 malls are expected to join the network on or before March 1, 2015. Our agreement with Simon Property Group provides exclusive Bluetooth advertising rights in the common areas of each of the 240 shopping malls in the US. Our hardware solutions mesh together to create our network, which according to Simon Property Group, provides advertisers the opportunity to reach approximately 2.6 billion annual mall visits with mobile content and offers when they are most receptive to spending, while located in the mall. The 2014 annual report for the International Council of Shopping Centers (ICSC) indicates that shoppers spend on average over $97 per shopping mall visit in 2013, which represents over $250 billion of annual spending.  Our network provides advertisers the ability to influence a percentage of these shoppers who carry smartphones.

 

Mobiquity Advantages

 

Our agreement with Simon Property Group for the exclusive Bluetooth advertising rights in the common areas of 240 Simon malls provides us with a major advantage over our competitors as it gives us a national network. Our technology allows us the opportunity to reach nearly 100% of mobile device types by utilizing our Mobiquity hardware solutions integrated into a single platform. Our platform monitors and reports hardware activity in real time, manages campaigns, delivers highly targeted content and provides third party access to our Mobiquity network through our licensing of software development kits and the integration of an application program interface. Specifically as it relates to our lead service offering – Location Signals and Campaign Management via Beacons – campaigns require an app that has integrated our SDK in order to engage with our network. The more apps that have integrated the Mobiquity SDK, the more opportunities to engage with mall shoppers in our network. We are carefully selecting app partners that have a direct relevance to the mall shopping experience and to the mall shopper demographic. For example, the apps of retailers and brands are obvious partners. Additionally, we intend to partner with shopping apps such as coupon distribution platforms, and apps targeting mall-related audiences in fashion and entertainment. Our SDK is currently installed in various mobile retail related apps. We are in various stages of SDK integration with dozens of additional mobile app properties that represent tens of millions of active app users and in negotiations with various venues in regard to network expansion. Management believes that our ability to deliver a significant national audience via a single network is a significant advantage when creating app relationships.

 

Our Strategy

 

Our goal is to enhance the shopper experience with retail customers by providing valuable and relevant content in real-time based on location. We achieve this goal by providing our customers (such as retailers, brands, and the entertainment industry) with a highly targeted form of mobile marketing engagement. Our platform enables interaction and advertising based on time, location and personalization to create the most effective campaigns/ experiences possible, in a way that is not possible without our network. We connect fans and brands in the retail space by increasing individual retail location app usage and driving foot traffic to such individual retail locations. We are deploying our Mobiquity hardware solution to expand the capability of the Mobiquity network in 240 Simon malls in the United States. As we complete the expansion of our mall footprint on or before March 1, 2015, we will be utilizing the proceeds of this offering to expand our sales and marketing human resource capability to focus on generating revenue over our network. Our sales and marketing team will be seeking to generate revenue over our network through five primary verticals:

 

·Retailers, Brands and Apps relevant to the shopping experience.

 

·Shopping/Coupon related Apps with relevant offers.

 

 

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·Entertainment Apps relevant to the shopper demographic.

 

·Advertising Networks and Exchanges serving location relevant ads.

 

·Data Analytic and Social Media Apps requesting real-time location based signal.

 

Over the next 24 months following the completion of this offering, we plan to expand on our current footprint with synergistic venues that will allow for cross marketing opportunities. Such venues include but are not limited to; stadiums, arenas, college campuses, airports and retail chains. The purpose of this type of expansion will be to create a unified network that will allow relevant beacon companies the opportunity to become part of the Mobiquity network. They may find it advantageous to become part of our network, so they will have the ability to drive traffic into their stores. We also plan to build a Private Ad Exchange that will allow for programmatic buying where advertisers will be given permission to engage with shoppers through the Mobiquity network. Additionally, we plan to add other mobile services and plug-ins such as; loyalty programs, indoor mapping, security and mobile payments.

 

Sales and Marketing

 

We have allocated approximately $3.0 million of the net proceeds of this offering to hire additional qualified sales and marketing personnel to generate revenue on our proximity mall network and to hire additional engineers, developers, computer and technology support personnel.

 

The key elements of our distribution and marketing strategy are as follows:

 

·Direct Sales. Our internal salesforce will call on retailers, brands and relevant advertisers to advertise on the network.

 

·Resellers. We intend to engage with third parties, such as Ad Agencies and Out-of-Home companies to sell advertising on the network.

 

·Publishers. We intend to engage with App Developers, Ad Networks, Ad Exchanges and other companies that have existing relationships with access to a large number of apps to increase our reach and provide an alternative to advertisers with limited app downloads or no app.

 

·Data Signals. We intend to engage with Social Media companies, Ad Networks and Ad Exchanges to provide real-time location-based data to increase the relevance and value of their in-app ad serving.

 

·Data Platforms. We intend to engage with Data Management companies to provide historical location-based data which will enable personalized online, offline and mobile campaigns to targeted audiences.

 

Our Proprietary Technology

 

In March 2013, we formed Mobiquity Networks and Mobiquity Wireless, SLU (or Mobiquity Wireless) in Spain. Mobiquity Wireless then acquired our proximity marketing assets from FuturLink, a Spanish company who had been licensing such assets to us. These assets include, without limitation, the FuturLink technology which consists of patent applications, source codes and trademark(s). The patent applications acquired related to the hardware and associated process for identifying and acquiring connections to mobile devices and the process for delivering select content to users on an opt-in basis. Additionally, significant “know how” was acquired with respect to managing remote hardware across a large physical network. As the technology owner, we realized immediate benefits and will leverage the hardware and software included in our purchase to expand our mall-based footprint in the United States. Our acquisition of FuturLink’s technology and corresponding patent applications provided us with the flexibility and autonomy to improve, upgrade and integrate new ideas and cutting edge technologies into our existing platform. This will allow us to evolve as new technologies emerge.

 

We believe that our intellectual property is a valuable asset to us as we move forward with our technology platform. Since we acquired this technology, we have further developed our ability to manage large networks of hardware to include beacon technology. Additionally, we have expanded campaign management tools to optimize them to meet the demands of our customers. Also, and importantly, we have developed a proprietary method for encrypting and decrypting the beacon signals on a rolling basis to ensure that our beacon network remains fully secure and exclusively for the beneficial use of our clients.

 

 

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We believe our intellectual property gives us a lead in the industry with respect to the sophisticated management of large-scale network deployments and campaign management. Most beacon providers focus on single-store applications and are not capable of managing beacons across multiple locations, much less manage a public network that will be accessed by multiple advertisers versus a single retailer. Our network-focused platform approach is a key selling tool when presenting our capabilities to property owners, such as mall developers, who understand the challenge associated with managing a large number of hardware solutions across hundreds of properties.

 

Risks Associated with Our Business

 

Our business is subject to numerous risks, which are highlighted in the section entitled “Risk Factors” immediately following this prospectus summary. These risks represent challenges to the successful implementation of our strategy and to the growth and future profitability of our business. Some of these risks are as follows:

 

·we have a history of operating losses and an accumulated deficit of approximately $25.9 million at September 30, 2014;
   
·our business prospects and future growth are significantly dependent upon our rights agreement with The Simon Property Group, a top mall developer, to create exclusively in the common areas a location-based marketing network called Mobiquity Networks in 240 malls across the United States through an agreement that currently expires on December 31, 2017. We can provide no assurance that we will be able to comply with all the requirements of this agreement and successfully extend the terms of our agreement with Simon. In the event that we lose our rights to this agreement, our business could be materially and adversely harmed. We are also in negotiations to expand our mall network footprint into other malls and non-mall venues. We can provide no assurances that our expansion plans will be successful;
   
·the location-based mobile marketing industry is relatively new and unproven. We will attempt to capitalize on our location-based mobile mall network footprint. We can provide no assurances that we will be able to generate substantial revenues to support our operations or to successfully compete against large, medium and small competitors that are in (or may enter) the proximity marketing industry with substantially larger resources and management experience;
   
·our operations will require substantial additional financing to expand our mall footprint and to support our operations. The raise of additional capital will likely involve substantial dilution to our stockholders. We can also provide no assurances that additional financing will be available to us on favorable terms, if at all;
   
·our location-based mobile mall network is based upon intellectual property which we originally licensed from an unrelated company and subsequently purchased. Our success will depend upon our ability to have patents issued from patent applications filed in connection with such intellectual property and also to defend our intellectual property rights from challenges or circumvention of our intellectual property rights by third parties;
   
·our future performance is materially dependent upon our management and their ability to manage our growth as well as our ability to retain their services. The loss of our key management personnel could have a material adverse effect on our business. If we are unable to manage our expansion successfully and obtain substantial revenues for our location-based mobile mall network, the failure to do so could have a material adverse on our business, results of operations and financial condition; and
   
·substantially all of our revenues to date have been generated by our integrated marketing subsidiary Ace Marketing. This subsidiary faces extensive competition with no company dominating the market in which this subsidiary operates.

 

Corporate Information

 

We were incorporated in New York in March 1998 as Ace Marketing & Promotions, Inc. and changed our name to Mobiquity Technologies, Inc. in September 2014. Our principal executive offices are located at 600 Old Country Road, Ste. 541, Garden City, NY 11530. Our telephone number is (516) 256-7766. Our website address is http://www.mobiquitytechnologies.com. Information contained on our website is not incorporated by reference into this prospectus, and should not be considered to be part of this prospectus. You should not rely on our website or any such information in making your decision whether or not to purchase our common stock.

 

“Mobiquity,” “Mobiquity Networks, Inc.,” “Mobiquity Technologies,” “Mobi-Beacon,” “Mobi-Units,” “Mobi-Tags,” “Mobi Rewards,” “Mobi Offers” and “Connecting Fans and Brands” are registered trademarks of Mobiquity Technologies. These service marks, trademarks, and tradenames referred to in this prospectus are the property of their respective owners. Except as set forth above and solely for convenience, the trademarks and tradenames in this prospectus are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.

 

 

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THE OFFERING

 

Common stock offered by us                shares

 

Common stock to be outstanding after this offering                shares.  If the over-allotment option is exercised in full, the total number of common shares outstanding immediately after the offering would be               .

 

Underwriters’ option to purchase additional shares                shares. We have granted the underwriter an option for a period of 30 days to purchase up to an additional                shares.

 

Use of proceeds We intend to use the net proceeds from this offering to fund hardware and installation costs of our proximity marketing devices across our 240 mall network expansion to hire additional personnel for sales and marketing and human resources, Mobiquity mall network rent and for working capital and other general corporate purposes. See “Use of Proceeds.”

 

Risk factors See the section entitled “Risk Factors” and other information included in this prospectus for a discussion of factors you should consider carefully before deciding to invest in shares of our common stock.

 

Lock-up provisions

Our directors and executive officers have agreed with the underwriter, subject to specific exceptions, not to sell or transfer any common shares or securities convertible into or exercisable for common shares for a period of up to 180 days after the date of the prospectus. See “Underwriting.”

   
Proposed Symbol and Listing We intend to apply to list our common stock on the NYSE MKT with such listing to commence upon the closing of this offering. No assurances can be given that our application will be approved.

 

Unless we indicate otherwise, all information in this prospectus, except for the consolidated financial statements and notes thereto and selected financial data extracted therefrom:

 

·reflects a proposed 1-for-10 reverse stock split of our common shares to be effected prior to this offering (which may be in a ratio, to be determined by our board of directors, of between 1-for-5 and 1-for-20) and the corresponding adjustment of all share prices, all stock option and warrant exercise price per common share and all convertible note conversion prices per share;
   
·is based on 6,473,241 common shares issued and outstanding as of the date of December 10, 2014;
   
·excludes 2,307,391 common shares issuable upon exercise of outstanding warrants to purchase our common shares with a weighted average exercise price of $5.90 per share as of December 10, 2014;
   
·excludes 1,448,000 common shares issuable upon exercise of outstanding options to purchase our common shares with a weighted average exercise price of $5.20 per share as of December 10, 2014;
   
·excludes 50,000 common shares issuable upon conversion of outstanding convertible notes at $5.00 per share, 107,333 shares issuable upon conversion of notes at $3.00 per share and 270,000 shares issuable upon conversion of $2.7 million of letters of credit provided on our behalf by third parties, convertible at $10.00 per share;
   
 ·

excludes up to 10,000 shares of common stock and warrants to purchase up to 5,000 shares of common stock at an exercise price of $10 per share pursuant to the terms of a $50,000 convertible note issued on December 29, 2014, noting that the foregoing amounts do not include the possible issuance of shares and warrants upon conversion of accrued interest due and payable on said note;

   
 ·

excludes up to 2,000,000 shares of common stock, warrants to purchase up to 1,000,000 shares of common stock at $10.00 per share and additional warrants to purchase up to 300,000 shares at $5.00 per share in the event that debt financing is provided to us of up to $10 million as described under “Certain Relationships and Related Party Transactions,” $2 million of which has been received by us and an additional $500,000 has been agreed to be paid to us in December 2014, noting that we have the right to reject any debt financing that is provided to us over the original $2.5 million; and

   
·assumes no exercise by the underwriter of its option to purchase up to an additional                common shares to cover over-allotments, if any.

 

 

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SUMMARY CONSOLIDATED FINANCIAL DATA

 

The consolidated statements of operations data for the years ended December 31, 2012 and 2013 are derived from our audited consolidated financial statements included elsewhere in this prospectus. We have derived the summary consolidated statements of operations data for the nine months ended September 30, 2013 and 2014, and the consolidated balance sheet data as of September 30, 2014 from our interim unaudited consolidated financial statements included elsewhere in this prospectus. Our interim unaudited consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles on the same basis as the annual audited consolidated financial statements and, in the opinion of management, reflect all adjustments, consisting only of normal recurring adjustments, necessary for a fair statement of our financial position as of September 30, 2014 and our results of our operations for the nine months ended September 30, 2013 and 2014. Our historical results are not necessarily indicative of the results that may be expected in the future. You should read this information together with our financial statements and related notes appearing elsewhere in this prospectus and the information under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

   Years Ended December 31,   Nine Months Ended Sept. 30, 
   2012   2013   2013   2014 
   (In thousands, except share and per share amounts) 
Consolidated Statements of Operations Data:                
                 
Revenues, net  $2,891   $3,158   $2,264   $2,273 
Cost of revenues   2,170    2,353    1,652    1,859 
Gross Profit   721    805    611    414 
Operating Expenses   4,667    6,665    4,659    6,697 
Loss from operations   (3,946)   (5,860)   (4,047)   (6,283)
Other income (expense)   187    227    (85)   (64)
Net loss   (4,133)   (6,087)   (4,133)   (6,347)
Other Comprehensive Loss               (2)
Net Comprehensive Loss   (4,133)   (6,087)   (4,133    (6,349)

 

Please refer to Notes to our consolidated financial statements for an explanation of the method used to calculate the historical net loss per share attributable to common stockholders and the number of shares used in the computation of the per share amounts.

 

   As of Sept. 30, 2014 
   Actual   As Adjusted(1) 
   (In thousands) 
Consolidated Balance Sheet Data:          
Cash and cash equivalents  $1,460   $   
Working capital   938      
Total assets   2,735      
Long-term liabilities         
Accumulated deficit   25,853      
Total stockholders’ equity   1,521      

________________

(1)The as adjusted consolidated balance sheet data in the table above gives effect to the post September 30, 2014 receipt of net proceeds of $                based upon sale by us of               shares of our common stock offered by this prospectus at a public offering price of $                per share and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. The table also assumes that the underwriter’s over-allotment option is not exercised.

 

7

 

 
 

 

RISK FACTORS

 

Investing in our common stock involves a high degree of risk. Before deciding to invest in our company or deciding to maintain or increase your investment, you should consider carefully the risks and uncertainties described below, together with all information in this prospectus, including our consolidated financial statements and related notes. If one or more of the following risks are realized, our business, financial condition, results of operations and prospects could be materially and adversely affected. In that event, the market price for our common stock could decline and you may lose your investment.

 

Risks Relating To Our Business

 

We have a history of operating losses and may not in the future generate consistent revenues or profits.  Since we went public in 2005, we have experienced a continued history of operating losses.  For the nine months ended September 30, 2014 and the years ended December 31, 2013 and 2012, we incurred a net loss of $6,347,467, $6,087,465 and $4,134,061, respectively. Our operating losses for the past several years are primarily attributable to the transformation of our company into an advertising technology corporation. We can provide no assurances that our operations will generate consistent or predictable revenue or be profitable in the future. This is particularly the case as we are shifting our business emphasis to focus on our Proximity Marketing business

 

We are shifting our business from our legacy marketing and promotion business to our Mobiquity Networks integrated suite of proprietary location-based mobile advertising technologies, the success of which cannot be assured. Further, our Mobiquity Networks’ business may be subject to quarterly fluctuations in its operating results due to the seasonality of mall-based business. We operate through our wholly-owned subsidiaries, Ace Marketing & Promotions, Inc. and Mobiquity Networks, Inc. Ace Marketing is our legacy marketing and promotions business which provides integrated marketing services to our commercial customers. While Ace Marketing currently represents substantially all of our revenue, we anticipate that activity from Ace Marketing will represent a diminishing portion of corporate revenue as our attention is now principally focused on developing and executing on opportunities in our Mobiquity Networks business. We believe that our Mobiquity Networks business represents our growth opportunity going forward and that this business unit is positioned as a result of our early mover status and novel technology integration to address a growing segment of the digital advertising market – location based mobile marketing. We expect that Mobiquity Networks will generate the majority of our revenue by the end of 2015, although no assurances can be given in this regard. Further, we can provide no assurances that the implementation of our Mobiquity Networks’ business will meet our expectations in terms of generating a certain amount of revenue by a certain year. Also, the operating results of our Mobiquity Networks’ business may fluctuate quarterly due to the seasonality of mall-based businesses.

 

We cannot accurately predict the volume or timing of any future revenues. We may be unable to capture revenue from our new Mobiquity business in the manner in which we anticipate and we may incur substantial expenses and devote significant management effort and expense in developing customer adoption of our Mobiquity solution, which may not result in revenue generation. As such, we cannot accurately predict the volume or timing of any future revenues.

 

We are significantly dependent on our agreements with Simon Property Group, which agreement expires on December 31, 2017.  In April 2011, we entered into our agreement with Simon Property Group, which agreement was amended first in September 2013 and secondly in July 2014. We are significantly dependent upon our agreement with Simon Property Group to execute on the development of our Proximity Marketing business and to attempt to achieve profitable operations. We have signed an agreement with Simon Property Group, a top mall developer to create Mobiquity Networks in 240 of their malls. This agreement expires on December 31, 2017.  There is a risk that our agreement with Simon will not be extended beyond its original terms by Simon or that our operations will not be profitable. Also, our agreement with Simon Property Group requires us to maintain for each calendar year under said agreement, the minimum amount of rent under irrevocable standby letters of credit. For 2015, a non-affiliated stockholder and Thomas Arnost our Executive Chairman, each provided the necessary letters of credit totaling $2,700,000 with one-half coming from each party. In the event Simon finds it necessary to draw down on the letter(s) of credit, the company has 30 days to obtain satisfactory replacement letters of credit. We can provide no assurance that we will be able to maintain the necessary letters of credit as required by the agreement. In the event of a default under our agreement with Simon, which is not cured within 30 days of notice of such breach, Simon may commence an action for damages or other appropriate relief and/or terminate the agreement. If we were to lose our agreement with Simon Property Group for these or any other reason, our business plan would be severely compromised, our business would suffer and our stock price could decrease significantly.

 

The location-based mobile marketing industry is relatively new and our competition may become extensive. In 2008, we became an authorized distributor, provider and reseller in the United States of mobile advertising solutions, in the location-based mobile advertising industry. In March 2013, we purchased the mobile advertising technology from our licensor. In 2011, we started transforming our company into a location-based mobile mall marketing enterprise with the formation of our Mobiquity Networks subsidiary. Currently, we have not generated significant revenue from this new and unproven segment of our business as our proximity marketing revenues totaled $117,500 for the nine months ended September 30, 2014 and $160,000 for the year ended December 31, 2013. While we intend to market our Mobiquity devices as a differentiated and advantageous mobile technology to attempt to capitalize on our location-based mobile mall network footprint, we can provide no assurances that Mobiquity will generate substantial advertising revenues to support operations or that our location-based mobile mall network can successfully compete with large, medium and small competitors that are in (or may enter) the proximity marketing industry with substantially larger resources and management experience. If our Mobiquity technology is unsuccessful for any reason in the marketplace, our business would be substantially harmed.

 

8
 

We expect to derive substantially all of our future revenues from our principal technology, which leaves us subject to the risk of reliance on such technology. Further, our principal technology is subject to pending patent applications which could be rejected by the United States Patent and Trademark Office. We expect to derive substantially all of our future revenues from our Mobiquity location-based mobile advertising technology. As such, any factor adversely affecting our ability to offer and implement our solution to new customers, including regulatory issues, market acceptance, competition, performance and reliability, reputation, price competition and economic and market conditions, would likely harm our operating results. Also, we may be unable to develop our principal technology, which would also harm our operating results. Moreover, in spite of our efforts related to the registration of our technology with the United States Patent and Trademark Office, if patent protection is not available for our principal technology because of rejection of our patent applications, the viability of our Mobiquity offering would likely be adversely impacted to a significant degree, which would materially impair our business prospects and results of operations.

 

If our Mobiquity technology fails to satisfy current or future customer requirements, we may be required to make significant expenditures to redesign the technology, and we may have insufficient resources to do so. Our Mobiquity technology is designed to address an evolving marketplace and must comply with current and evolving customer requirements in order to gain market acceptance. There is a risk that we will not meet anticipated customer requirements or desires, including those of our key property licensor, Simon Property Group. If we are required to redesign our technologies to address customer demands or otherwise modify our business model, we may incur significant unanticipated expenses and losses, and we may be left with insufficient resources to engage in such activities. If we are unable to redesign our technology, develop new technology or modify our business model to meet customer desires or any other customer requirements that may emerge, our operating results would be materially and adversely affected.

 

If we fail to respond quickly to technological developments, our service may become uncompetitive and obsolete. The location-based mobile advertising market in which we plan to compete are expected to experience rapid technology developments, changes in industry standards, changes in customer requirements and frequent new improvements. If we are unable to respond quickly to these developments, we may lose competitive position, and our technologies may become uncompetitive or obsolete, causing revenues and operating results to suffer. In order to compete, we may be required to develop or acquire new technology and improve our existing technology and processes on a schedule that keeps pace with technological developments. We must also be able to support a range of changing customer preferences. For instance, our shopping mall customers may have different requirements from universities or other users of our technology and solution, and thus we may be required to adopt our platform to accommodate the different customers. We cannot guarantee that we will be successful in any manner in these efforts.

 

We cannot predict our future capital needs and we may not be able to secure additional financing.  Between January 2013 and December 2014, we raised approximately $11.5 million in private equity and debt financing to support our transformation from an integrated marketing company to an advertising technology company. Since we might be unable to generate recurring or predictable revenue or cash flow to fund our operations, we will likely need to seek additional equity or debt financing even following this offering to provide the capital required to maintain or expand our operations. We may also need additional funding for developing products and services, increasing our sales and marketing capabilities, promoting brand identity, and acquiring complementary companies, technologies and assets, as well as for working capital requirements and other operating and general corporate purposes.  We cannot predict our future capital needs with precision, and we may not be able to secure additional financing on terms satisfactory to us, if at all.

 

When we elect to raise additional funds or additional funds are required, we may raise such funds from time to time through public or private equity offerings, debt financings or other financing alternatives, as well as through sales of common stock to Aspire Capital under the purchase agreement which we intend to terminate upon the completion of this offering. Additional equity or debt financing may not be available on acceptable terms, if at all. If we are unable to raise additional capital in sufficient amounts or on terms acceptable to us, we will be prevented from pursuing operational development and commercialization efforts and our ability to generate revenues and achieve or sustain profitability will be substantially harmed.

 

If we raise additional funds by issuing equity securities, our stockholders will experience dilution. Debt financing, if available, would result in increased fixed payment obligations and may involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends. Any debt financing or additional equity that we raise may contain terms, such as liquidation and other preferences, which are not favorable to us or our stockholders. If we raise additional funds through collaboration and licensing arrangements with third parties, it may be necessary to relinquish valuable rights to our technologies, future revenue streams or product candidates or to grant licenses on terms that may not be favorable to us. Should the financing we require to sustain our working capital needs be unavailable or prohibitively expensive when we require it, our business, operating results, financial condition and prospects could be materially and adversely affected and we may be unable to continue our operations. Failure to secure additional financing on favorable terms could have severe adverse consequences to us.

 

Our financing arrangement with Aspire Capital could be particularly dilutive and uncertain. In March 2014, we entered into a purchase agreement with Aspire Capital as a source of funding for up to $15 million and filed a registration statement with the Securities and Exchange Commission to register for sale the resale of 1,500,000 shares, including 200,000 shares which have already been issued. The prices at which we may sell shares to Aspire Capital are not fixed and are based on current market prices although they are subject to a floor. Therefore, if we elect to utilize this funding mechanism when our share price is low, the dilutive impact of such funding would be more significant than if we raised funds at higher prices. Moreover, the extent to which we utilize the purchase agreement with Aspire Capital as a future source of funding will depend on a number of factors, including the prevailing market price of our common stock, the volume of trading in our common stock and the extent to which we are able to secure funds from other sources. The number of shares that we may sell to Aspire Capital under the purchase agreement on any given day and during the term of the agreement is limited. Additionally, we and Aspire Capital may not affect any sales of shares of our common stock under the purchase agreement during the continuance of an event of default or on any trading day that the closing sale price of our common stock is less than $1.60 per share. Even if we are able to access the full $15 million under the purchase agreement, we may still need additional capital to fully implement our business, operating and development plans. Upon the completion of this offering, we intend to terminate our financing arrangement with Aspire Capital.

 

9
 

 

Our future performance is materially dependent upon our management and their ability to manage our growth. Our future performance is substantially dependent upon the efforts and abilities of members of our existing management, particularly Thomas Arnost, Executive Chairman, Dean L. Julia, Co-Chief Executive Officer, Michael Trepeta, Co-Chief Executive Officer, Paul Bauersfeld, our Chief Technology Officer, and Sean Trepeta, President of Mobiquity Networks. This is particularly the case as we seek to ramp up our newer location-based mobile advertising network business in 2015 and beyond. Mr. Arnost has a three-year employment agreement with us expiring in 2017. Dean L. Julia and Michael Trepeta each have five-year employment agreements which renew for an additional one year if not terminated on or before December 30th of the prior calendar year. Mr. Bauersfeld and Sean Trepeta is each an employee at will. The loss of the services of the aforementioned key persons could have a material adverse effect on our business. We currently lack "key man" life insurance policies on any of our officers or employees. Competition for additional qualified management is intense, and we may be unable to attract and retain additional key personnel. The number of management personnel is currently limited and they may be unable to manage our expansion successfully and the failure to do so could have a material adverse effect on our business, results of operations and financial condition.

 

If our management team does not remain with us in the future, our business, operating results and financial condition could be adversely affected. Our future success depends in large part on our current senior management team and our ability to attract and retain additional high-quality management and operating personnel. Our senior management team’s in-depth knowledge of and deep relationships with the participants in our industry are extremely valuable to us. Our business also requires skilled technical and marketing personnel, who are in high demand and are often subject to competing offers. Competition for qualified employees is intense in our industry, and the loss of even a few qualified employees, or an inability to attract, retain and motivate additional highly skilled employees required for the planned expansion of our business, could harm our operating results and impair our ability to grow. To attract and retain key personnel, we use various measures, including an equity incentive program and incentive bonuses for executive officers and other employees. These measures may not be enough to attract and retain the personnel we require to operate our business effectively. We also have a number of employees who were granted stock options over the past few years that have an exercise price per share that is significantly lower than the current fair market value. If we are successful as a public company,of which there can be no assurances, these employees may choose to exercise their options and sell the shares, recognizing a substantial gain. As a result, it may be difficult for us to retain such employees.

 

If we are unable to attract additional management and sales representatives, or if a significant number of our manager or sales representatives leave us, our ability to increase our net revenues could be negatively impacted. Our ability to expand our business will depend, in part, on our ability to attract additional management and sales representatives. Competition for qualified managers and sales representatives can be intense, and we may be unable to hire additional team members when we need them or at all. Any difficulties we experience in attracting additional managers or sales representatives could have a negative impact on our ability to expand our retailer base, increase net revenues and continue our growth. In addition, we must retain our current management and sales representatives and properly incentivize them to obtain new relationships. If a significant number of our managers and sales representatives were to leave us, our net revenues could be negatively impacted. In certain circumstances, we have entered into agreements with our managers and sales representatives that contain non-compete provisions to mitigate this risk, but we may need to litigate to enforce our rights under these agreements, which could be time-consuming, expensive and ineffective. A significant increase in the turnover rate among our current managers or sales representatives could also increase our recruiting costs and decrease our operating efficiency, which could lead to a decline in our net revenues and profitability.

 

We presently do not hold any issued patents, and we will need to protect our intellectual property which we acquired from FuturLink and which we are developing on our own. In 2013, we acquired our proximity marketing intellectual property consisting of patent applications, source codes and trademark(s) from our licensor, FuturLink, at a cost of approximately $160,000. However, we do not own the rights to any issued patents. The patent applications acquired related to the hardware and associated process for identifying and acquiring connections to mobile devices and the process for delivering select content to users on an opt-in basis, but it is possible that no patents will issue from these applications, which could prevent us from realizing the full benefits of the underlying inventions. Additionally, significant “know how” was acquired with respect to managing remote hardware across a large physical network. We expect to leverage the hardware and software included in our purchase to expand our mall-based footprint in the United States, and should we lose access to this technology, our business prospects could be harmed. Also, since we acquired this technology, we have further developed our ability to manage large networks of hardware to include beacon technology, and we have expanded campaign management tools to optimize them to meet the demands of our customers. Importantly, we have also developed a proprietary method for encrypting and decrypting the beacon signals on a rolling basis to ensure that our beacon network remains fully secure and exclusively for the beneficial use of our clients.

 

We believe our intellectual property, much of which is only protected through trade secrets and could potentially be misappropriated by others, gives us a lead in the industry with respect to the sophisticated management of large-scale network deployments and campaign management. However, there is a risk that competitors with large financial resources will adapt and make changes that may overcome our perceived advantage. Most beacon providers focus on single-store applications and are not capable of managing beacons across multiple locations, much less manage a public network that will be accessed by multiple advertisers versus a single retailer. Our network-focused platform approach is a key selling tool when presenting our capabilities to property owners, such as mall developers, who understand the challenge associated with managing a large number of hardware solutions across hundreds of properties. However, there is a risk that we will be unable to protect our trade secrets from being misappropriated by others. In the event patents are granted, our intellectual property positions could be challenged, invalidated, circumvented or expire or we could fail to protect our future intellectual property through unsuccessful litigation. Any failure to protect our intellectual property, could adversely affect our business, and our future prospects depend in part on our ability to defend our intellectual property rights, which we may be unable to do for cost or technological reasons.

 

In addition, third parties may seek to challenge, invalidate or circumvent our intellectual property rights. Moreover, our intellectual property positions might not protect us against competitors with similar products or technologies because competing products or technologies may not infringe our intellectual property rights. Also, there are third parties who have patents or pending patent applications that they may claim necessitate payment of a royalty or prevent us from commercializing our proprietary rights in certain territories. Intellectual property disputes are frequent, costly and can preclude, delay or increase the cost of commercialization of products and/or services, which could damage our business if this should occur.

 

10
 

 

Our Mobiquity solution contains and is dependent upon open source software, which may pose particular risks to our proprietary software and solutions. We use open source software in our solutions and will use open source software in the future. Some licenses governing our use of open source software contain requirements that we make available source code for modifications or derivative works we create based upon the open source software, and that we license such modifications or derivative works under the terms of a particular open source license or other license granting third parties certain rights of further use. By the terms of certain open source licenses, we could be required to release the source code of our proprietary software, and to make our proprietary software available under open source licenses, if we combine our proprietary software with open source software in certain manners. Although we monitor our use of open source software, we cannot assure you that all open source software is reviewed prior to use in our solutions, that our programmers have not incorporated open source software into our solutions, or that they will not do so in the future. Additionally, the terms of many open source licenses to which we are subject have not been interpreted by U.S. or foreign courts. There is a risk that open source software licenses could be construed in a manner that imposes unanticipated conditions or restrictions on our ability to market or provide our solutions. In addition, the terms of open source software licenses may require us to provide software that we develop using such open source software to others on unfavorable license terms. As a result of our current or future use of open source software, we may face claims or litigation, be required to release our proprietary source code, pay damages for breach of contract, re-engineer our solutions, discontinue making our solutions available in the event re-engineering cannot be accomplished on a timely basis or take other remedial action. Any such re-engineering or other remedial efforts could require significant additional research and development resources, and we may not be able to successfully complete any such re-engineering or other remedial efforts. Further, in addition to risks related to license requirements, use of certain open source software can lead to greater risks than use of third-party commercial software, as open source licensors generally do not provide warranties or controls on the origin of software. Any of these risks could be difficult to eliminate or manage, and, if not addressed, could have a negative effect on our business, financial condition and operating results.

 

We rely on information technology to operate our business and maintain competitiveness, and any failure to adapt to technological developments or industry trends could harm our business. We depend on the use of information technologies and systems. As our operations grow in size and scope, we will be required to continuously improve and upgrade our systems and infrastructure while maintaining or improving the reliability and integrity of our infrastructure. Our future success also depends on our ability to adapt our systems and infrastructure to meet rapidly evolving consumer trends and demands while continuing to improve the performance, features and reliability of our solutions in response to competitive services and product offerings. The emergence of alternative platforms will require new investment in technology. New developments in other areas, such as cloud computing, could also make it easier for competition to enter our markets due to lower up-front technology costs. In addition, we may not be able to maintain our existing systems or replace or introduce new technologies and systems as quickly as we would like or in a cost-effective manner.

 

If we fail to respond quickly to technological developments, our technology may become uncompetitive and obsolete. The mobile advertising market is expected to experience rapid technology developments, changes in industry standards, changes in customer requirements and frequent new product introductions and improvements. If we are unable to respond quickly to these developments, we may lose competitive position, and our solutions or technologies may become uncompetitive or obsolete, causing revenues and operating results to suffer. In order to compete, we may be required to develop or acquire new products or technologies and improve our existing technologies and processes on a schedule that keeps pace with technological developments and the requirements for products addressing a broad spectrum and designers and designer expertise in our industry. We must also be able to support a range of changing customer preferences. We cannot guarantee that we will be successful in any manner in these efforts, and our inability to do so could cause our business to suffer.

 

Our technology and associated business processes may contain undetected errors, which could limit our ability to provide our services and diminish the attractiveness of our offerings. Our Mobiquity technology may contain undetected errors, defects or bugs. As a result, our customers or end users may discover errors or defects in our technology or the systems incorporating our technology may not operate as expected. We may discover significant errors or defects in the future that we may not be able to fix. Our inability to fix any of those errors could limit our ability to provide our solution, impair the reputation of our brand and diminish the attractiveness of our product offerings to our customers.  In addition, we may utilize third party technology or components in our products and we rely on those third parties to provide support services to us. Failure of those third parties to provide necessary support services could materially adversely impact our business.

 

Interruptions or delays in service from key third parties could impair the delivery of our Mobiquity solutions and harm our business. Our Mobiquity business relies on bandwidth providers, internet service providers and mobile networks to deliver content. Any damage to, or failure of, the systems of our third-party providers could result in interruptions to our service. These providers may be vulnerable to damage or interruption from break-ins, computer viruses, denial-of-service attacks, acts of terrorism, vandalism or sabotage, power loss, telecommunications failures, fires, floods, earthquakes, hurricanes, tornadoes and similar events. The occurrence of any of these events, a decision to close applicable facilities without adequate notice or other unanticipated problems could result in loss of data, lengthy interruptions in the availability of our services and harm to our reputation and brand. We have not adequately developed disaster recovery arrangements, thus leaving us at risk for disasters or similar events. As we depend on continuous and uninterrupted access to the Internet through third-party bandwidth providers to operate our business, if we lose the services of one or more of our bandwidth providers for any reason or if their services are disrupted, we could experience disruption in our services or we could be required to retain the services of a replacement bandwidth provider, which could increase our operating costs and harm our business and reputation.

 

Our Ace Marketing subsidiary has substantial competition in all facets of its business and for the three months ended September 30, 2014, Ace Marketing had 11.8% of its revenues from one principal customer.   Our Ace Marketing integrated marketing subsidiary, which subsidiary is currently responsible for substantially all of our operating revenue, has substantial competition in all facets of its business, with no single company dominating this market. For the three months ended September 30, 2014, Ace Marketing had 11.8% of its revenues from one principal customer. For the nine months ended September 30, 2014, Ace Marketing had approximately 6.3% of its revenues from a different principal customer, which is under common control with the principal customer noted in the preceding sentence. The loss of either of these customers by Ace Marketing could adversely affect our results of operations. This subsidiary competes within the industry on the basis of service, competitive prices, personnel relationships and competitive commissions to our sales representatives to sell promotional products for us rather than our competitors. Competitors’ advantages over us may include better financing, greater experience, lower margins and better personal relationships than us. In the future, we may be unable to compete successfully and competitive pressures may reduce our revenues.

 

11
 

 

Because we do not manufacture the promotional products we distribute, we are dependent upon third parties for the manufacture and supply of our promotional products.   Our Ace Marketing marketing subsidiary obtains all of our promotional products from third-party suppliers, both domestically and overseas primarily in China. We submit purchase orders to our suppliers who are not committed to supply products to us. Therefore, suppliers may be unable to provide the products we need in the quantities we request.  Because we lack control of the actual production of the promotional products we sell, we may be subject to delays caused by interruption in production based on conditions outside of our control. In the event that any of our third-party suppliers were to become unable or unwilling to continue to provide the products in required volumes, we would need to identify and obtain acceptable replacement sources on a timely cost effective basis. There is no guarantee that we will be able to obtain such alternative sources of supply on a timely basis, if at all. An extended interruption in the supply of our products would have an adverse effect on our results of operations, which most likely would adversely affect the value of our common stock.

 

We entered into a convertible promissory note which is secured by all of our assets. This note has a current maturity date of December 12, 2014, but the noteholder has the right to call the Note at any time, which could adversely affect our liquidity and capital resources. On June 12, 2012, we entered into a secured convertible promissory note due December 12, 2013 in the amount of $350,000 with TCA Global Credit Master Fund L.P. This note is secured by all of our assets. On December 12, 2013, Thomas Arnost our Executive Chairman, purchased the $350,000 Note from TCA (which principal amount has been reduced to $322,000) and, subsequently entered into an agreement with us to extend the due date of the note until December 12, 2014 and again he extended the due date to December 31, 2015, subject to his right to call the note at any time, in addition to certain other conditions. The payment of this Note at maturity or earlier if accelerated by Mr. Arnost at his sole discretion could come at a time when it would not be advantageous to us and could materially adversely affect our liquidity and capital resources. We can provide no assurances that we will be able to meet our obligations under the note. Upon the completion of this offering, we intend to retire this note from the proceeds of this offering, subject to Mr. Arnost’s conversion rights.

 

Changes in consumer sentiment or laws, rules or regulations regarding tracking technologies and other privacy matters could have a material adverse effect on our ability to generate net revenues and could adversely affect our ability to collect data on consumer shopping behavior. The collection and use of electronic information about user is an important element of our Mobiquity technology and solutions. However, consumers may become increasingly resistant to the collection, use and sharing of information, including information used to deliver advertising and to attribute credit to publishers in performance marketing programs, and take steps to prevent such collection, use and sharing of information. For example, consumer complaints and/or lawsuits regarding advertising or other tracking technologies in general and our practices specifically could adversely impact our business. In addition to this change in consumer preferences, if retailers or brands perceive significant negative consumer reaction to targeted advertising or the tracking of consumers’ activities, they may determine that such advertising or tracking has the potential to negatively impact their brand. In that case, advertisers may limit or stop the use of our solutions, and our operating results and financial condition would be adversely affected.

 

Our business practices with respect to data and consumer protection could give rise to liabilities or reputational harm as a result of governmental regulation, legal requirements or industry standards relating to consumer privacy, data protection and consumer protection. Federal, state and international laws and regulations govern the collection, use, retention, sharing and security of data that we collect. We strive to comply with all applicable laws, regulations, self-regulatory requirements and legal obligations relating to privacy, data protection and consumer protection, including those relating to the use of data for marketing purposes. It is possible, however, that these requirements may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and may conflict with other rules or our practices. We cannot assure you that our practices have complied, comply, or will comply fully with all such laws, regulations, requirements and obligations. Any failure, or perceived failure, by us to comply with federal, state or international laws or regulations, including laws and regulations regulating privacy, data security, marketing communications or consumer protection, or other policies, self-regulatory requirements or legal obligations could result in harm to our reputation, a loss in business, and proceedings or actions against us by governmental entities, consumers, retailers or others. We may also be contractually liable to indemnify and hold harmless performance marketing networks or other third parties from the costs or consequences of noncompliance with any laws, regulations, self-regulatory requirements or other legal obligations relating to privacy, data protection and consumer protection or any inadvertent or unauthorized use or disclosure of data that we store or handle as part of operating our business. Any such proceeding or action, and any related indemnification obligation, could hurt our reputation, force us to incur significant expenses in defense of these proceedings, distract our management, increase our costs of doing business and cause consumers and retailers to decrease their use of our marketplace, and may result in the imposition of monetary liability.

 

As we develop and provide solutions, we may be subject to additional and unexpected regulations, which could increase our costs or otherwise harm our business. As we develop and provide solutions that address new market segments, we may become subject to additional laws and regulations, which could create unexpected liabilities for us, cause us to incur additional costs or restrict our operations. From time to time, we may be notified of or otherwise become aware of additional laws and regulations that governmental organizations or others may claim should be applicable to our business. Our failure to anticipate the application of these laws and regulations accurately, or other failure to comply, could create liability for us, result in adverse publicity or cause us to alter our business practices, which could cause our net revenues to decrease, our costs to increase or our business otherwise to be harmed.

 

We rely on information technology to operate our business and maintain competitiveness, and any failure to adapt to technological developments or industry trends could harm our business. We depend on the use of information technologies and systems. As our operations grow in size and scope, we must continuously improve and upgrade our systems and infrastructure while maintaining or improving the reliability and integrity of our infrastructure. Our future success also depends on our ability to adapt our systems and infrastructure to meet rapidly evolving consumer trends and demands while continuing to improve the performance, features and reliability of our solutions in response to competitive services and product offerings. In addition, we may not be able to maintain our existing systems or replace or introduce new technologies and systems as quickly as we would like or in a cost-effective manner.

 

12
 

 

Government regulation of the Internet, e-commerce and m-commerce is evolving, and unfavorable changes or failure by us to comply with these laws and regulations could substantially harm our business and results of operations. We are subject to general business regulations and laws as well as regulations and laws specifically governing the Internet, e-commerce and m-commerce in a number of jurisdictions around the world. Existing and future regulations and laws could impede the growth of the Internet, e-commerce, m-commerce or other online services. These regulations and laws may involve taxation, tariffs, privacy and data security, anti-spam, data protection, content, copyrights, distribution, electronic contracts, electronic communications and consumer protection. It is not clear how existing laws and regulations governing issues such as property ownership, sales and other taxes, libel and personal privacy apply to the Internet as the vast majority of these laws and regulations were adopted prior to the advent of the Internet and do not contemplate or address the unique issues raised by the Internet, e-commerce or m-commerce. It is possible that general business regulations and laws, or those specifically governing the Internet, e-commerce or m-commerce may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and may conflict with other rules or our practices. We cannot assure you that our practices have complied, comply or will comply fully with all such laws and regulations. Any failure, or perceived failure, by us to comply with any of these laws or regulations could result in damage to our reputation, a loss in business, and proceedings or actions against us by governmental entities or others. Any such proceeding or action could hurt our reputation, force us to spend significant resources in defense of these proceedings, distract our management, increase our costs of doing business, and cause consumers and retailers to decrease their use of our marketplace, and may result in the imposition of monetary liability. We may also be contractually liable to indemnify and hold harmless third parties from the costs or consequences of noncompliance with any such laws or regulations. In addition, it is possible that governments of one or more countries may seek to censor content available on our websites and mobile applications or may even attempt to completely block access to our marketplace. Adverse legal or regulatory developments could substantially harm our business. In particular, in the event that we are restricted, in whole or in part, from operating in one or more countries, our ability to retain or increase our customer base may be adversely affected and we may not be able to maintain or grow our net revenues as anticipated.

 

There may be limitations on the effectiveness of our internal controls, and a failure of our control systems to prevent error or fraud may materially harm our company. Proper systems of internal controls over financial accounting and disclosure are critical to the operation of a public company. We have a limited accounting and finance staff, and such staff has relatively limited experience in operating the accounting function of a growing public company. As such, we may be unable to effectively establish, implement and update our internal control systems. This would leave us without the ability to reliably assimilate and compile financial information about our company and significantly impair our ability to prevent error and detect fraud, all of which would have a negative impact on our company from many perspectives.

 

Moreover, we do not expect that disclosure controls or internal control over financial reporting, even if properly in place, will prevent all error and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Further, the design of a control system must reflect the fact that there are resource constraints and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. Failure of our control systems to prevent error or fraud could materially and adversely affect our business, reputation, stock price and results of operations.

 

Risks Relating To An Investment In Our Common Stock

 

Our future sales of common stock by management and other stockholders may have an adverse effect on the then prevailing market price of our common stock. In the event a public market for our common stock is sustained in the future, sales of our common stock may be made by holders of our public float or by holders of restricted securities in compliance with the provisions of Rule 144 of the Securities Act of 1933. In general, under Rule 144, a non-affiliated person who has satisfied a six-month holding period in a fully reporting company under the Securities Exchange Act of 1934, as amended, may, sell their restricted common stock without volume limitation, so long as the issuer is current with all reports under the Exchange Act in order for there to be adequate common public information. Affiliated persons may also sell their common shares held for at least six months, but affiliated persons will be required to meet certain other requirements, including manner of sale, notice requirements and volume limitations. Non-affiliated persons who hold their common shares for at least one year will be able to sell their common stock without the need for there to be current public information in the hands of the public. Future sales of shares of our public float or by restricted common stock made in compliance with Rule 144 may have an adverse effect on the then prevailing market price, if any, of our common stock.

 

A significant portion of our total outstanding shares are eligible to be sold into the market in the near future, which could cause the market price of our common shares to drop significantly, even if our business is doing well. Sales of a substantial number of our common shares in the public market, or the perception in the market that the holders of a large number of shareholders intend to sell shares could reduce the market price of our common shares. After this offering, we will have                post-split common shares outstanding. This number includes the shares that we are selling in this offering, assuming the underwriter’s over-allotment option is exercised, which may be resold in the public market immediately without restriction, unless purchased by our affiliates. While a portion of our outstanding shares are currently restricted as a result of securities laws or lock-up agreements, they will become eligible to be sold at various times after the offering. Significant sales of common shares could cause the market price of our common shares to drop significantly.

 

Our management will have broad discretion over the use of the net proceeds from this offering and we may use the net proceeds in ways with which you disagree or which do not produce beneficial results. We currently intend to use the net proceeds from this offering as described under Use of Proceeds, including a significant portion of the net proceeds for working capital and corporate purposes. We have not allocated specific amounts of the net proceeds from this offering for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds of this offering. You will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that the net proceeds will be invested in a way that does not yield a favorable, or any, return for us or our stockholders. The failure of our management to use such funds effectively could have a material adverse effect on our business, financial condition, and results of operation.

  

13
 

 

You will experience immediate and substantial dilution as a result of this offering and may experience additional dilution in the future as we do further financings and transactions. You will incur immediate and substantial dilution as a result of this offering. After giving effect to the sale by us of up to                post-split common shares offered in this offering (                post-split common shares if the underwriter’s overallotment option is fully exercised) at the public offering price of $                per share, and after deducting the underwriter’s discount and estimated offering expenses payable by us, investors in this offering can expect an immediate dilution of $                per share ($               per share if the underwriter’s overallotment is fully exercised). In addition, in the past, we have issued options, warrants and convertible notes to acquire our common shares and we may issue additional convertible debt and equity securities, options and warrants and preferred shares in the future. To the extent these options, warrants or convertible notes or preferred shares are ultimately exercised or converted, you will sustain further future dilution.

 

We do not intend to pay dividends. We do not anticipate paying cash dividends on our common stock in the foreseeable future. We may not have sufficient funds to legally pay dividends. Even if funds are legally available to pay dividends, we may nevertheless decide in our sole discretion not to pay dividends. The declaration, payment and amount of any future dividends will be made at the discretion of our board of directors, and will depend upon, among other things, the results of our operations, cash flows and financial condition, operating and capital requirements, and other factors our board of directors may consider relevant. There is no assurance that we will pay any dividends in the future, and, if dividends are paid, there is no assurance with respect to the amount of any such dividend.

 

We lack an established trading market for our common stock, and you may be unable to sell your common stock at attractive prices or at all.  There is currently a limited trading market for our common stock on the OTCQB under the symbol "MOBQ." There can be no assurances given that an established public market will be obtained for our common stock or that any public market will last. As a result, we cannot assure you that you will be able to sell your common stock at attractive prices or at all and we intend to apply for listing of our common stock on NYSE MKT. Although we believe that this offering and an exchange listing would improve the liquidity of our common shares, there can be no assurance that an active public market for our common shares will develop or be sustained.

 

If we become listed on NYSE MKT, we will be unable to access equity capital without shareholder approval if such equity capital sales would result in dilution above regulatory thresholds, and consequently we may be unable to obtain financing sufficient to sustain our business if we are unsuccessful in soliciting requisite shareholder approvals. If our common stock becomes listed on NYSE MKT, we would will be subject to rules requiring shareholder approval for certain capital raising transactions. The operation of these rules could limit our ability to raise capital through issuance of shares or convertible securities without jeopardizing our listing status. If we were to violate such rules, our company would be subject to delisting from NYSE MKT and share prices and trading volumes would likely suffer.

 

If we do not meet the continued listing standards of NYSE MKT our liquidity and share price may suffer. If our common stock is approved for listing on NYSE MKT, there is no assurance that our company will be able to continue to meet all necessary requirements for listing on NYSE MKT, as the NYSE MKT may suspend trading in, or remove our listing from trading, if in the opinion of the Exchange our financial condition and/or operating results appear to be unsatisfactory to the Exchange or if we fail to comply with the listing agreements with the Exchange; therefore, there is no assurance that our common shares will continue to trade on a national securities exchange. At any time when our shares do not trade on a national exchange, liquidity may be reduced and our stock price could decline.

 

The market price for our common stock may be highly volatile.  The market price for our common stock may be highly volatile. A variety of factors may have a significant impact on the market price of our common stock, including:

 

  · quarterly fluctuations of operating results due to the seasonality of our Mobiquity Networks mall-based business;
     
  · the publication of earnings estimates or other research reports and speculation in the press or investment community;
     
  · changes in our industry and competitors;
     
  · our financial condition, results of operations and prospects;
     
  · any future issuances of our common stock, which may include primary offerings for cash, and the grant or exercise of stock options from time to time;
     
  · general market and economic conditions; and
     
  · any outbreak or escalation of hostilities, which could cause a recession or downturn in the U.S. economy.

 

In addition, the markets in general can experience extreme price and volume fluctuations that can be unrelated or disproportionate to the operating performance of the companies listed or quoted.  Broad market and industry factors may negatively affect the market price of our common stock, regardless of actual operating performance. In the past, following periods of volatility in the market price of a company's securities, securities class action litigation has often been instituted against companies. This type of litigation, if instituted, could result in substantial costs and a diversion of management's attention and resources, which would harm our business.

 

14
 

 

Our stockholders recently approved a reverse stock split which could adversely affect the market liquidity of our common stock, impair the value of your investment and harm our business. There are a number of risks associated with the reverse stock split that we expect to effect prior to the effectiveness of the registration statement of which this prospectus is a part, including that the reverse stock split may not result in a sustained increase in the per share price of our common shares. We cannot predict whether the reverse stock split will increase the market price for our common shares on a sustained basis. The history of similar stock split combinations for companies in like circumstances is varied, and we cannot predict whether:

 

·the market price per share of our common shares after the reverse stock split will result in a sustained rise in proportion to the reduction in the number of shares of our common shares outstanding before the reverse stock split, i.e., that the post-split market price of our common shares will equal or exceed the pre-split price multiplied by the split ratio;

 

·the reverse stock split will result in a per share price that will attract brokers and investors who do not trade in lower priced stocks;

 

·the reverse stock split will result in a per share price that will increase our ability to attract and retain employees and other service providers;

 

·the market price per share will equal or exceed the price required to qualify for initial listing or remain in excess of the minimum bid price as required by NYSE MKT for initial listing; or

 

·that we will otherwise meet the requirements of NYSE MKT for continued inclusion for trading on NYSE MKT.

 

In addition, we reduced the number of shares available in the public float and this may impair the liquidity in the market for our common shares on a sustained basis, which may in turn reduce the value of our common shares. We may in the future undergo one or more additional stock splits, stock dividends and/or reverse stock splits. If we issue additional shares in the future, it will likely result in the dilution of our existing shareholders.

 

Our certificate of incorporation grants our board of directors the authority to issue a new series of preferred stock without further approval by our shareholders, which could adversely affect the rights of the holders of our common shares. Our board of directors has the power to fix and determine the relative rights and preferences of preferred stock. Our board of directors also has the power to issue preferred stock without further shareholder approval, subject to applicable listing regulations. As a result, our board of directors could authorize the issuance of new series of preferred stock that would grant to holders thereof certain preferred rights to (i) our assets upon liquidation: (ii) receive dividend payments ahead of holders of common shares; (iii) and the redemption of the shares, together with a premium, prior to the redemption of our common shares. In addition, our board of directors could authorize the issuance of new series of preferred stock that is convertible into our common shares, which could decrease the relative voting power of our common shares or result in dilution to our existing shareholders

 

Research analysts do not currently publish research about our business, limiting information available to shareholders, and if this continues to be the case or if analysts do publish unfavorable commentary or downgrade our common shares it could adversely affect our stock price and trading volume. The trading market for our common shares will depend, in part, on the research and reports that research analysts publish about us and our business and industry. The price of our common shares could decline if one or more research analysts downgrade our stock or if those analysts issue other unfavorable commentary or cease publishing reports about us or our business. If one or more of the research analysts ceases coverage of our company or fails to publish reports on us regularly, demand for our common shares could decrease, which could cause our stock price or trading volume to decline.

 

As a public company, we are subject to complex legal and accounting requirements that will require us to incur significant expenses and will expose us to risk of non-compliance. As a public company, we are subject to numerous legal and accounting requirements that do not apply to private companies. The cost of compliance with many of these requirements is material, not only in absolute terms but, more importantly, in relation to the overall scope of the operations of a small company. Our management team is relatively inexperienced in complying with these requirements, which may lead to errors in our accounting and financial statements and which may impair our operations. This inexperience may also increase the cost of compliance and may also increase the risk that we will fail to comply. Failure to comply with these requirements can have numerous adverse consequences including, but not limited to, our inability to file required periodic reports on a timely basis, loss of market confidence and/or governmental or private actions against us. We cannot assure you that we will be able to comply with all of these requirements or that the cost of such compliance will not prove to be a substantial competitive disadvantage vis-à-vis our privately held and larger public competitors.

 

We may be subject to shareholder litigation, thereby diverting our resources that may have a material effect on our profitability and results of operations. The market for our common shares may be characterized by significant price volatility when compared to seasoned issuers, and we expect that our share price may continue to be more volatile than a seasoned issuer for the indefinite future.  In the past, plaintiffs have often initiated securities class action litigation against a company following periods of volatility in the market price of its securities.  We may become the target of similar litigation. Securities litigation will result in substantial costs and liabilities and will divert management’s attention and resources.

 

Compliance with changing regulation of corporate governance and public disclosure will result in additional expenses and pose challenges for our management. Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the rules and regulations promulgated thereunder, the Sarbanes-Oxley Act and SEC regulations, have created uncertainty for public companies and significantly increased the costs and risks associated with accessing the U.S. public markets. Our management team will need to devote significant time and financial resources to comply with both existing and evolving standards for public companies, which will lead to increased general and administrative expenses and a diversion of management time and attention from revenue generating activities to compliance activities.

 

15
 

 

Our common stock may be considered “penny stock” and may be difficult to trade. The SEC has adopted regulations that generally define “penny stock” to be an equity security that has a market or exercise price of less than $5.00 per share, subject to specific exemptions.  The market price of our common stock may be less than $5.00 per share and, therefore, may be designated as a “penny stock” according to SEC rules, unless our common shares are trading on a national exchange. This designation requires any broker or dealer selling these securities to disclose certain information concerning the transaction, obtain a written agreement from the purchaser and determine that the purchaser is reasonably suitable to purchase the securities. These rules may restrict the ability of brokers or dealers to sell our common stock and may affect the ability of investors to sell their common shares. 

 

 

 

 

 

 

 

 

 

 

16
 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

Except for the historical information contained in this prospectus, the statements contained in this prospectus are “forward-looking statements” that reflect our current view with respect to future events and financial results. We urge you to consider that statements that use the terms “anticipate,” “believe,” “do not believe,” “expect,” “plan,” “intend,” “estimate,” and similar expressions are intended to identify forward-looking statements. Forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, or our achievements expressed or implied by such forward-looking statements. Some of these risks are as follows:

 

·we have a history of operating losses and an accumulated deficit of approximately $25.9 million at September 30, 2014;
·our business prospects and future growth are significantly dependent upon our rights agreement with The Simon Property Group, a top mall developer, to create exclusively in the common areas a location-based marketing network called Mobiquity Networks in 240 malls across the United States through an agreement that currently expires on December 31, 2017. We can provide no assurance that we will be able to comply with all the requirements of this agreement and successfully extend the terms of our agreement with Simon. In the event that we lose our rights to this agreement, our business could be materially and adversely harmed. We are also in negotiations to expand our mall network footprint into other malls and non-mall venues. We can provide no assurances that our expansion plans will be successful;
·the location-based mobile marketing industry is relatively new and unproven. We will attempt to capitalize on our location-based mobile mall network footprint. We can provide no assurances that we will be able to generate substantial revenues to support our operations or to successfully compete against large, medium and small competitors that are in (or may enter) the proximity marketing industry with substantially larger resources and management experience;
·our operations will require substantial additional financing to expand our mall footprint and to support our operations. The raise of additional capital will likely involve substantial dilution to our stockholders. We can also provide no assurances that additional financing will be available to us on favorable terms, if at all;
·our location-based mobile mall network is based upon intellectual property which we originally licensed from an unrelated company and subsequently purchased. Our success will depend upon our ability to have patents issued from patent applications filed in connection with such intellectual property and also to defend our intellectual property rights from challenges or circumvention of our intellectual property rights by third parties;
·our future performance is materially dependent upon our management and their ability to manage our growth as well as our ability to retain their services. The loss of our key management personnel could have a material adverse effect on our business. If we are unable to manage our expansion successfully and obtain substantial revenues for our location-based mobile mall network, the failure to do so could have a material adverse on our business, results of operations and financial condition; and
·substantially all of our revenues to date have been generated by our integrated marketing subsidiary Ace Marketing. This subsidiary faces extensive competition with no company dominating the market in which our subsidiary operates.

Please see “Risk Factors” for a discussion of the risks that could have an effect on such forward-looking statements. You should not place undue reliance on these forward-looking statements, which speak only as of the date hereof. Except as required by applicable law, including the securities laws of the United States, we undertake no obligation to publicly release any update or revision to any forward-looking statements to reflect new information, future events or circumstances, or otherwise after the date hereof.

 

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USE OF PROCEEDS

 

We estimate that the net proceeds to us from this offering, after deducting underwriting discounts and estimated offering expenses payable by us, will be approximately $               . Assuming the over-allotment option is exercised in full by the underwriter and satisfied in full by us, we will receive an additional estimated $                in net proceeds, after deducting underwriting discounts and estimated offering expenses payable by us.

 

We expect to use the net proceeds from this offering to complete the expansion of our location-based mobile mall network in over 240 of Simon Property Group malls, sales and marketing, hiring additional personnel, repayment of debt and general corporate purposes. Principal intended uses, in order of priority and subject to availability of funds are as follows:

 

·Agreement with Simon Property Group. Pursuant to our agreement with Simon Property Group, we are currently installing our proximity marketing hardware solutions in 240 malls across the Simon mall network in the United States. Of the 240 malls, we have installed Mobi-Beacons in 200 malls and Mobi-Units in 75 malls as of October 31, 2014. We have allocated an estimated $1.5 million toward continuing the installation of our Proximity Marketing hardware solutions in the malls and approximately $3.0 million toward payments of rent to Simon Property Group over the 12 months following the completion of this offering.

 

·Additional personnel. We have allocated approximately $3.0 million of the net proceeds of this offering to hire additional qualified sales and marketing personnel to generate revenue on our proximity mall network and to hire additional engineers, developers, computer and technology support personnel.

 

·To repay certain indebtedness. We have allocated $600,000 of the net proceeds of this offering to repay $322,000 of principal plus accrued interest to Thomas Arnost, Executive Chairman, and an additional $250,000 of principal plus accrued interest to four non-affiliated debt holders. Each of the aforementioned debt obligations may be repaid without penalty subject to the debt holders’ conversion rights.

 

·For working capital and general corporate purposes. We have allocated $                for working capital and general corporate purposes, which amount will be increased to $                in the event the underwriter’s over-allotment option is exercised. Funds allocated for these purposes, plus any monies not utilized at management’s sole discretion for the estimated purposes described above, may be utilized for all proper corporate purposes, including, without limitation, expanding our mall footprint with other mall developers, compensation of executive officers, staff, consultants, payment of rent and general overhead.

 

The foregoing expected use of net proceeds from this offering represents our intentions based upon our current plans and business conditions, which could change in the future as our plans and business conditions evolve. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering.

 

Pending our use of the net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities.

 

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MARKET PRICE OF COMMON STOCK

 

Our common stock trades on the OTCQB under the symbol "MOBQ" (formerly “AMKT”) on a limited basis. The OTCQB marketplace has effectively replaced the FINRA operated OTC Bulletin Board (OTCBB) as the primary market for SEC reporting securities that trade off exchanges. We intend to apply to list our common stock on the NYSE MKT with such listing to commence upon the closing of this offering. No assurances can be given that our application will be approved.

 

The following table sets forth the range of high and low sales prices of our common stock for at least the last two fiscal years on the OTCQB after giving retroactive effect to an adjustment for an assumed 1-for-10 reverse stock split which we expect to effect prior to the effectiveness of the registration statement of which this prospectus is a part, as if such reverse split had be effectuated on January 1, 2012.

 

Quarters Ended   High     Low  
March 31, 2012   $ 10.00     $ 3.80  
June 30, 2012     8.50       3.70  
September 30, 2012     6.40       2.50  
December 31, 2012     5.40       2.10  
March 31, 2013     5.00       2.00  
June 30, 2013     6.00       3.70  
September 30, 2013     5.50       3.30  
December 31, 2013     5.30       3.20  
March 31, 2014     7.80       4.00  
June 30, 2014     6.00       3.50  
September 30, 2014     6.80       3.50  
December 31, 2014     4.50       2.50  

 

The closing sales price of our common stock on December 30, 2014 was $3.58 per share. All quotations provided herein reflect inter-dealer prices, without retail mark-up, markdown or commissions (and adjustment for our proposed 1-for-10 reverse stock split).

 

In the event a public market for our common stock is sustained in the future, sales of our common stock may be made by holders of our public float or by holders of restricted securities in compliance with the provisions of Rule 144 of the Securities Act of 1933. In general, under Rule 144, a non-affiliated person who has satisfied a six-month holding period in a fully reporting company under the Securities Exchange Act of 1934, as amended, may, sell their restricted common stock without volume limitation, so long as the issuer is current with all reports under the Exchange Act in order for there to be adequate common public information. Affiliated persons may also sell their common shares held for at least six months, but affiliated persons will be required to meet certain other requirements, including manner of sale, notice requirements and volume limitations. Non-affiliated persons who hold their common shares for at least one year will be able to sell their common stock without the need for there to be current public information in the hands of the public. Future sales of shares of our public float or by restricted common stock made in compliance with Rule 144 may have an adverse effect on the then prevailing market price, if any, of our common stock.

 

As of December 30, 2014, the record date of our last special meeting of stockholders, there were 158 holders of record of our common stock and approximately 566 additional beneficial holders of our common stock held in street name on September 23, 2014, the date of our last special meeting of stockholders. Our transfer agent is Continental Stock Transfer & Trust company, 17 Battery Place, 8th Floor, New York, NY 10004.

 

DIVIDEND POLICY

 

We have never declared or paid cash dividends on our common stock. We currently intend to retain all available funds and any future earnings for use in the operation of our business and do not anticipate paying any dividends on our common stock in the foreseeable future. Any future determination to declare dividends will be made at the discretion of our board of directors and will depend on our financial condition, operating results, capital requirements, general business conditions and other factors that our board of directors may deem relevant.

 

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CAPITALIZATION

 

The following table sets forth our consolidated working capital and capitalization as of September 30, 2014, on an actual basis and on a pro forma basis, to reflect our receipt of the net proceeds from our sale of shares of our common stock in this offering at an assumed public offering price of $               per share, after deducting the estimated underwriting discount and commissions and estimated offering expenses payable by us. The stockholder equity section shown below gives retroactive effect to the completion of the 1-for-10 reverse stock split.

 

   As of September 30, 2014 
   Actual   Pro Forma 
         
Working capital  $938,001      
           
Stockholders’ equity:          
Preferred stock, $0.0001 par value: 5,000,000 shares authorized; no shares issued or outstanding  $      
Common stock, $0.0001 par value: 200,000,000 shares authorized; 6,380,545 shares issued and outstanding, actual; and                shares issued and outstanding on a pro forma basis   638      
Additional paid-in capital   25,853,234      
Accumulated other comprehensive income (loss)   (459)     
Accumulated deficit   (2,735,414)     
Treasury stock (1)   (31,805)   (31,805))
Total stockholders’ equity   1,521,428      
Total capitalization   2,735,414      

________________

(1)Treasury stock was created through a settlement agreement in May 2010 pursuant to which a consultant agreed to return 23,333 shares of our common stock to treasury.

 

The number of shares of common stock set forth in the table above excludes:

 

·excludes 2,307,391 common shares issuable upon exercise of outstanding warrants to purchase our common shares with a weighted average exercise price of $5.90 per share as of December 10, 2014;
   
·excludes 1,448,000 common shares issuable upon exercise of outstanding options to purchase our common shares with a weighted average exercise price of $5.20 per share as of December 10, 2014;
   
·excludes 50,000 common shares issuable upon conversion of outstanding convertible notes at $5.00 per share, 107,333 shares issuable upon conversion of notes at $3.00 per share and 270,000 shares issuable upon conversion of $2.7 million of letters of credit provided on our behalf by third parties, convertible at $10.00 per share;
   
 ·

excludes up to 10,000 shares of common stock and warrants to purchase up to 5,000 shares of common stock at an exercise price of $10 per share pursuant to the terms of a $50,000 convertible note issued on December 29, 2014, noting that the foregoing amounts do not include the possible issuance of shares and warrants upon conversion of accrued interest due and payable on said note.

   
 ·excludes up to 2,000,000 shares of common stock, warrants to purchase up to 1,000,000 shares of common stock at $10.00 per share and additional warrants to purchase up to 300,000 shares at $5.00 per share in the event that debt financing is provided to us of up to $10 million as described under “Certain Relationships and Related Party Transactions,” $2 million of which has been received by us and an additional $500,000 has been agreed to be paid to us in December 2014, noting that we have the right to reject any debt financing that is provided to us over the original $2.5 million; and
   
·assumes no exercise by the underwriter of its option to purchase up to an additional                common shares to cover over-allotments, if any.

 

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DILUTION

 

If you invest in our common stock, your ownership interest will be diluted to the extent of the difference between the amount per share paid by purchasers of shares of our common stock in this public offering and the pro forma net tangible book value per share of our common stock immediately after closing of this offering.

 

Our net tangible book value is the amount of our total tangible assets less our total liabilities. Net tangible book value per share is our net tangible book value divided by the number of shares of common stock outstanding as of September 30, 2014. Our net tangible book value as of September 30, 2014 was $1,287,924, or $.20 per share, based on the 6,380,545 shares of our common stock outstanding as of September 30, 2014..

 

After giving effect to the sale of                shares of common stock by us at the public offering price of $               per share and after deducting estimated underwriting discounts and commissions and estimated offering expenses, our pro forma net tangible book value as of September 30, 2014 would have been approximately $              , or $               per share. This represents an immediate increase in pro forma net tangible book value of $               per share to our existing stockholders and an immediate dilution of $               per share to investors purchasing shares of common stock in this offering.

 

The following table illustrates this dilution on a per share basis:

 

Assumed public offering price per share  $   $ 
Adjusted net tangible book value per share as of September 30, 2014  $   $ 
Increase to pro forma net tangible book value per share attributable to new investors  $   $ 
Pro forma net tangible book value per share, after giving effect to this offering  $   $ 
Dilution of pro forma net tangible book value per share to new investors  $   $ 

 

The illustration of dilution shown above gives retroactive effect to the completion of the 1-for-10 reverse stock split, but excludes:

 

·The exercise of the underwriter’s over-allotment option;
   
·___________ shares of our common stock issuable upon the exercise of options outstanding as of September 30, 2014, with a weighted-average exercise price of $_____ per share;
   
·________shares of our common stock issuable upon the exercise of warrants outstanding as of September 30, 2014, with a weighted-average exercise price of $_____ per share;
   
·________ shares of common stock issuable upon conversion of notes outstanding as of September 30, 2014 with a weighted average conversion price of $____ per share;
   
 ·

excludes up to 10,000 shares of common stock and warrants to purchase up to 5,000 shares of common stock at an exercise price of $10 per share pursuant to the terms of a $50,000 convertible note issued on December 29, 2014, noting that the foregoing amounts do not include the possible issuance of shares and warrants upon conversion of accrued interest due and payable on said note.

   
 ·excludes up to 2,000,000 shares of common stock, warrants to purchase up to 1,000,000 shares of common stock at $10.00 per share and additional warrants to purchase up to 300,000 shares at $5.00 per share in the event that debt financing is provided to us of up to $10 million as described under “Certain Relationships and Related Party Transactions,” $2 million of which has been received by us and an additional $500,000 has been agreed to be paid to us in December 2014, noting that we have the right to reject any debt financing that is provided to us over the original $2.5 million; and
   
·_________ shares of our common stock reserved for future issuance as of September 30, 2014 under our stock option plans.

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION

AND RESULTS OF OPERATIONS

 

You should read the following discussion and analysis of our financial condition and results of operations together with the section entitled “Selected Consolidated Financial Data” and our consolidated financial statements and related notes included elsewhere in this prospectus. Some of the information contained in this discussion and analysis or set forth elsewhere in this prospectus, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements.” Our actual results may differ materially from those described below. You should read the “Risk Factors” section of this prospectus for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

 

Critical Accounting Policies

 

Our discussion and analysis of our financial condition and results of operations are based upon our financial statements, which have been prepared in accordance with generally accepted accounting principles in the United States.  The preparation of financial statements requires management to make estimates and disclosures on the date of the financial statements. On an on-going basis, we evaluate our estimates including, but not limited to, those related to revenue recognition. We use authoritative pronouncements, historical experience and other assumptions as the basis for making judgments. Actual results could differ from those estimates. We believe that the following critical accounting policies affect our more significant judgments and estimates in the preparation of our financial statements.

  

Revenue Recognition - Ace Marketing’s revenue is recognized when title and risk of loss transfers to the customer and the earnings process is complete. In general, title passes to our customers upon the customer's receipt of the merchandise. Revenue is recognized on a gross basis since Ace Marketing has the risks and rewards of ownership, latitude in selection of vendors and pricing, and bears all credit risk. Advance payments made by customers are included in customer deposits. Ace Marketing records all shipping and handling fees billed to customers as revenues and related costs as cost of goods sold, when incurred. Additional source of revenue, derived from emails/texts directly to consumers are recognized under contractual arrangements. Revenue from this advertising method is recognized at the time of service provided.

 

Revenue Recognition – Mobiquity Networks. Mobiquity has three avenues of income with our beacon platform, Bluetooth Push and Wi-Fi. Revenue is realized with the signing of the advertising contract. The customer signs a contract directly with us for an advertising campaign with mutually agreed upon term and is billed on the start date of the advertising campaign. Revenue is recognized the same way for the three mobile solutions. The first option to earn revenue with the beacon platform is for customers to do advertising campaigns, on our platform, either directly through their own app or through various 3rd party apps. The second option to earn revenue is through a revenue share with advertising exchanges and networks that deliver advertising campaigns to their customers based on our real-time location signal data. The third option would be through selling our historical data to data management platform companies.

 

Allowance For Doubtful Accounts. We are required to make judgments based on historical experience and future expectations, as to the realizability of our accounts receivable. We make these assessments based on the following factors: (a) historical experience, (b) customer concentrations, customer credit worthiness, (d) current economic conditions, and (e) changes in customer payment terms.

 

Accounting For Stock Based Compensation. Stock based compensation cost is measured at the grant date fair value of the award and is recognized as expense over the requisite service period.  The company uses the Black-Sholes option-pricing model to determine fair value of the awards, which involves certain subjective assumptions.  These assumptions include estimating the length of time employees will retain their vested stock options before exercising them (“expected term”), the estimated volatility of the company’s common stock price over the expected term (“volatility”) and the number of options for which vesting requirements will not be completed (“forfeitures”). Changes in the subjective assumptions can materially affect estimates of fair value stock-based compensation, and the related amount recognized on the consolidated statements of operations.

 

Plan of Operation

 

Our goal is to enhance the shopper experience with retail customers by providing valuable and relevant content in real-time based on location. We achieve this goal by providing our customers (such as retailers, brands, and the entertainment industry) with a highly targeted form of mobile marketing engagement. Our platform enables interaction and advertising based on time, location and personalization to create the most effective campaigns/experiences possible, in a way that is not possible without our network. We connect fans and brands in the retail space by increasing individual retail location app usage and driving foot traffic to such individual retail locations. We are deploying our Mobiquity hardware solution to expand the capability of the Mobiquity network in 240 Simon malls in the United States. As we complete the expansion of our mall footprint on or before March 1, 2015, we will be utilizing the proceeds of this offering to expand our sales and marketing human resource capability to focus on generating revenue over our network. Our sales and marketing team will be seeking to generate revenue over our network through five primary verticals:

 

1.Retailers, Brands and Apps relevant to the shopping experience.
2.Shopping/Coupon related Apps with relevant offers.
3.Entertainment Apps relevant to the shopper demographic.
4.Advertising Networks and Exchanges serving location relevant ads.
5.Data Analytic and Social Media Apps requesting real-time location based signal.

 

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Over the next 24 months following the completion of this offering, we plan to expand on our current footprint with synergistic venues that will allow for cross marketing opportunities. Such venues include but are not limited to; stadiums, arenas, college campuses, airports and retail chains. The purpose of this type of expansion will be to create a unified network that will allow relevant beacon companies the opportunity to become part of the Mobiquity network. They may find it advantageous to become part of our network, so they will have the ability to drive traffic into their stores. We also plan to build a Private Ad Exchange that will allow for programmatic buying where advertisers will be given permission to engage with shoppers through the Mobiquity network. Additionally, we plan to add other mobile services and plug-ins such as; loyalty programs, indoor mapping, security and mobile payments.

 

We anticipate continuing to rely on external financing from sales of our common stock to support our operations until cash flow from operations has a positive impact on operations, although no assurances can be given in this regard.

 

Results of Operations

 

Year ended December 31, 2013 versus year ended December 31, 2012

 

The following table sets forth certain selected condensed statement of operations data for the periods indicated in dollars. In addition, we note that the period-to-period comparison may not be indicative of future performance.

 

   Years Ended December 31 
   2013   2012 
Revenue  $3,157,532   $2,890,652 
Cost of Revenues   2,353,095    2,170,265 
Gross Profit   804,437    720,387 
Operating Expenses   6,665,082    4,667,122 
Loss from operations   (5,860,645)   (3,946,735)
Net Loss   (6,087,465)   (4,134,061)

 

We generated revenues of $3,157,532 for 2013 compared to $2,890,652 in 2012. The change in revenues of $266,880 in 2013 compared to 2012 is due to increased demand for our integrated marketing subsidiary products and services. Additionally, we anticipate an increase in revenues for our Mobiquity Networks subsidiary due to the implementation of our Mobi-Beacons and more advertisers utilizing our mall network.

 

Cost of revenues was $2,353,095 or 74.5% of revenues for 2013 compared to $2,170,265 or 75.1% of revenues for 2012. Cost of revenues includes purchases and freight costs associated with the delivery of merchandise to our customers.

 

Gross profit was $804,437 for 2013 or 25.5% of net revenues compared to $720,387 in the same period of 2012 or 24.9% of revenues. Gross profits will vary period-to-period depending upon a number of factors including the mix of items sold and the volume of product sold. Also, it is our practice to pass freight costs on to our customers with low to no profit margin. As advertising revenue from the use of our Mobiquity proximity devices increases, it is expected that our margins will increase significantly. Revenues from the use of our Mobiquity devices were not a material portion of our consolidated revenues in 2013.

 

Selling, general, and administrative expenses were $6,665,082 for 2013 as compared to $4,667,122 for 2012. Such costs include payroll and related expenses, commissions, insurance, rents, professional, consulting and public awareness fees. The overall increase of $1,997,960 was primarily due to an increase in consulting and professional fees of $507,595, $490,944 increase in payroll, $283,832 increase in non-cash stock based compensation, $177,232 increase in commissions, $134,877 increase in rents for our proximity marketing division and $62,403 increase in insurance. These increases can be attributed to the growth and expansion of the Mobiquity Network subsidiary. We believe that the additional expenses included in fiscal 2013 in both physical and human resources will position us to anticipate revenue growth in Mobiquity Networks for 2014.

 

Our net loss was $6,087,465 for 2013 compared to a net loss of $4,134,061 for 2012. The increase in our loss from operations for 2013 as compared to the comparable period of the prior year was primarily due to the cost of growing our infrastructure within Mobiquity Networks, the additional sales time it is taking to develop our Mobiquity Networks sales and substantial increases in non-cash stock based compensation, rent, commissions, insurance, professional fees and payroll expense as described herein. No benefit for income taxes is provided for 2013 and 2012 due to the full valuation allowance on the net deferred tax assets. Our ability to be profitable in the future is dependent upon the successful introduction and usage of our location-based mobile marketing services by advertisers.

 

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Quarter ended September 30, 2014 versus quarter ended September 30, 2013

 

The following table sets forth certain selected unaudited condensed statement of operations data for the periods indicated in dollars and as a percentage of total net revenues. The following discussion relates to our results of operations for the periods noted and is not necessarily indicative of the results expected for any other interim period or any future fiscal year. In addition, we note that the period-to-period comparison may not be indicative of future performance.

 

   Three Months Ended
September 30
 
   2014   2013 
Revenue  $714,044   $668,719 
Cost of Revenues  $610,119   $441,061 
Gross Profit  $103,925   $227,658 
Selling, General and Administrative Expenses  $2,144,255   $1,396,637 
(Loss) from Operations  $(2,040,330)  $(1,168,979)

 

We generated revenues of $714,044 in the third quarter of 2014 compared to $668,719 in the same three month period ending September 30, 2013. The increase in revenues of $45,325 in the third quarter of 2014 compared to the same period in 2013 was due to increased demand for our integrated marketing subsidiary products and services. As our mall network has only recently been constructed and is currently being expanded, at the current time, revenues from the use of our Mobiquity devices are not a material portion of our consolidated revenues. In 2015, we anticipate our revenues increasing in our Mobiquity Networks subsidiary due to the implementation of our Mobi-Beacons and the expectation of advertisers utilizing our mall network.

 

Cost of revenues was $610,119 or 84.5% of revenues in the third quarter of 2014 compared to $441,061 or 65.9% of revenues in the same three months of 2013. Cost of revenues includes purchases and freight costs associated with the shipping of merchandise to our customers. The increase in cost of revenues of $169,058 in the third quarter of 2014 compared to the same period in 2013 is related to volume and product mix of the products our customers purchased, some of which have higher margins.

 

Gross profit was $103,925 in the third quarter of 2014 or 14.6% of net revenues compared to $227,658 in the same three months of 2013 or 34.0% of revenues. Gross profits will vary period-to-period depending upon a number of factors including the mix of items sold and the volume of products sold, some of which have higher margins. Also, it is our practice to pass freight costs on to our customers with low to no profit margin. As advertising revenue from the use of our Mobiquity devices increases, it is expected that our margins will increase significantly.

 

Selling, general, and administrative expenses were $2,144,255 in the third quarter of 2014 compared to $1,396,637 in the same three months of 2013, an increase of approximately $747,600. Such operating costs include payroll and related expenses, commissions, insurance, rents, professional (consulting) and public awareness fees. The majority of the increase in operating expenses pertains to the non-cash issuance of stock based compensation of $171,971, increased salaries of approximately 10 new employees of $216,031 and increased rent to Simon Property Group for our expanding mall network of $160,057.

 

The third quarter 2014 loss from operations was $(2,040,330) as compared to $(1,168,979) for the comparable period of the prior year, an increased loss of $871,351. The increase in operating loss is attributable to the costs related to creating the infrastructure required to move forward with the mall network, and costs related to the hiring of additional Company personnel to provide information technology support, sales and office employees.

 

No benefit for income taxes is provided for in the reported periods due to the full valuation allowance on the net deferred tax assets. Our ability to be profitable in the future is dependent upon the successful introduction and usage of our proximity marketing services by our clients.

 

Nine months ended September 30, 2014 versus nine months ended September 30, 2013

 

   Nine Months Ended
September 30
 
   2014   2013 
Revenue  $2,273,395   $2,263,812 
Cost of Revenues  $1,859,497   $1,652,449 
Gross Profit  $413,898   $611,363 
Selling, General and Administrative Expenses  $6,697,392   $4,658,596 
(Loss) from Operations  $(6,283,494)  $(4,047,233)

 

We generated revenues of $2,273,395 in the first nine months of 2014 compared to $2,263,812 in the same nine month period ending September 30, 2013an increase in revenues of $9,583. As our mall network has only recently been constructed and is currently being expanded, at the current time, revenues from the use of our Mobiquity devices are not a material portion of our consolidated revenues. In 2015, we anticipate our revenues increasing in our Mobiquity Networks subsidiary due to the implementation of our Mobi-Beacons and the expectation that advertisers will be utilizing our mall network.

 

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Cost of revenues was $1,859,497 or 81.7% of revenues in the first nine months of 2014 compared to $1,652,449 or 73.0% of revenues in the same nine months of 2013. Cost of revenues includes purchases and freight costs associated with the shipping of merchandise to our customers. The change in cost of revenues of $207,048 in 2014 is related to volume and product mix of the products our customers purchased.

 

Gross profit was $413,898 in the first nine months of 2014 or 18.3% of net revenues compared to $611,363 in the same nine months of 2013 or 27.0% of revenues. Gross profits will vary period-to-period depending upon a number of factors including the mix of items sold and the volume of product sold. Also, it is our practice to pass freight costs on to our customers with low to no profit margin. As advertising revenue from the use of our Mobiquity devices increases, it is expected that our margins will increase significantly. As our mall network has only recently been constructed and is currently being expanded, at the current time, revenues from the use of our Mobiquity devices are not a material portion of our consolidated revenues.

 

Selling, general, and administrative expenses were $6,697,392 in the first nine months of 2014 compared to $4,658,596 in the same nine months of 2013, an increase of approximately $2,038,800. Such operating costs include payroll and related expenses, commissions, insurance, rents, professional (consulting) and public awareness fees. A large portion of the increase in operating expenses pertains to the non-cash issuance of stock based compensation of $762,523, an additional $359,760 in rent expense to Simon Property Group for our expanding mall network located in the United States and additional salaries of $531,996 for approximately 10 new employees.

 

The first nine months of 2014 loss from operations was $(6,283,494) as compared to $(4,047,233) for the comparable period of the prior year, an increased loss of $2,236,261. The increase in operating loss is attributable to the focused effort in creating the infrastructure required to move forward with the mall network, and the hiring of additional Company personnel to provide information technology support, sales and office employees.

 

No benefit for income taxes is provided for in the reported periods due to the full valuation allowance on the net deferred tax assets. Our ability to be profitable in the future is dependent upon both a turnaround in the United States economy and the successful introduction and usage of our proximity marketing services and Venn Media services by our clients.

 

Liquidity and Capital Resources

 

We had cash and cash equivalents of approximately $1,460,000 and $1,741,000 at September 30, 2014 and December 31, 2013, respectively.

 

We had cash and cash equivalents of $1,460,473 at September 30, 2014. Cash used by operating activities for the nine months ended September 30, 2014 was $3,990,197. This resulted primarily from a net loss of $6,349,194 partially offset by decreases in accounts receivable of $71,917 and a decrease of $15,162 in prepaid expenses and other assets. Net cash of $24,702 was used by investing activities to acquire property and equipment. Net cash was provided by financing activities totaling $3,734,383 resulting from $3,481,300 in the issuance of common stock and $253,083 in loan proceeds.

 

Cash used by operating activities for the year ended December 31, 2013 was $3,692,630. This resulted from a net loss of $6,087,465, partially offset by non-cash expenses, including depreciation and amortization of $289,289, stock based compensation of $1,765,074, amortization of deferred financing costs of $51,624 and recognition of beneficial conversion feature of $116,667. Additionally, working capital components of current assets and current liabilities, to the exclusion of cash, provided $170,913. Cash used in investing activities amounted to $309,611, which funds were used to acquire property and equipment primarily for purchases of proximity marketing boxes.  Cash provided by financing activities of $5,380,632 was the result of the sale of our company common stock, net of offering costs.

 

We had cash and cash equivalents of $1,523,779 at September 30, 2013. Cash used by operating activities for the nine months ended September 30, 2013 was $2,820,961. This resulted primarily from a net loss of $4,132,598 partially offset by decreases in accounts receivable of $144,656 and a decrease of $347,152 in prepaid expenses and other assets. Net cash of $24,358 was used by investing activities to acquire property and equipment. Net cash was provided by financing activities totaling $4,006,500 resulting from the issuance of common stock.

 

Cash used by operating activities for the year ended December 31, 2012 was $2,124,033. This resulted primarily from a net loss of $4,134,061, partially offset by stock based compensation of $1,481,242, a decrease in accounts receivable and prepaid expenses of $149,972 and depreciation and amortization of $233,825. Cash was used in investing activities of $272,013, which funds were used to acquire property and equipment primarily for purchases of proximity marketing boxes. Cash provided by financing activities of $2,153,081 was the result of the sale of our company common stock of $1,887,556 and $265,525 in proceeds received from a secured loan transaction pursuant to which the company borrowed $350,000 in principal due December 12, 2013.

 

We believe that the net proceeds of this offering together with cash flow from our operations will provide sufficient liquidity and capital resources for at least the next twelve to fifteen months. In the event we should need additional financing, we can provide no assurances that we will be able to obtain financing on terms satisfactory to us, if at all.  See “Risk Factors.”

 

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Recent Financings

 

Since 1999, we have relied primarily on equity financings from outside investors to supplement our cash flow from operations. Since January 1, 2012, we have completed the various financing summarized below, it being understood that all share, per share and warrant amounts give retroactive effect to the 1-for-10 reverse stock split.

 

Date Dollar Amount # of Securities Sold
     
January 2012 $             575,000 95,834 common shares and warrants to purchase 19,167 common shares; also issued 19,786 penalty shares for electing not to register resale of securities.
April 2012 270,000 Exercise of 90,000 warrants
April/May 2012 470,000 Issued preferred stock, which was subsequently converted into 136,133 shares and warrants to purchase 41,667 common shares
July 2012 606,240 Issued 202,080 common shares, 67,360 warrants and 25,833 additional common shares for failing to reach certain performance milestones.
November 2012 301,000 Issued 100,334 common shares and warrants to purchase 50,167 shares.
2013 5,562,816 Issued 1,912,500 common shares and warrants to purchase 956,200 shares
January/February 2014 2,160,300 Issued 720,100 common shares and warrants to purchase 360,000 shares
March 2014 500,000 Issued 200,000 common shares.
July 2014 1,000,000 Issued 200,000 shares and warrants to purchase 100,000 shares
July 2014 250,000 Issued convertible note in the principal amount of $250,000 and warrants to purchase 12,500 shares
November 2014 1,000,000 Issued two-year promissory note in the principal amount of $1,000,000
December 2014 (1) 1,050,000 Issued two-year promissory note in the principal amount of $1,050,000

________________

(1)An additional $500,000 has been committed to be paid by an investor to us in exchange for a two-year promissory note in the amount of $500,000. See “Certain Transactions and Related Party Transactions.”

 

Agreement with Carl E. Berg

 

On December 15, 2014, we entered into a letter agreement with Carl E. Berg. The agreement recognized that Carl and Mary Ann Berg 2011 CRT, Carl Berg Trustee, and Clyde Berg 2011 CRT, Carl Berg Trustee, will have provided $2.5 million of unsecured loans to us between November and December 2014. Pursuant to said letter agreement, we agreed that these unsecured loans may be sold, assigned or transferred to Clyde J. Berg, Carl E. Berg and/or Kara Ann Berg or any entity controlled by any of the aforementioned individuals in an combination of the aforementioned persons or entities. This letter agreement provides that if Mr. Carl E. Berg or any permitted transferee purchases or otherwise acquires the $2.5 million of unsecured notes, that these notes shall be convertible at any time prior to maturity or redemption thereof at a conversion price of $5.00 per share. For every $10.00 in principal converted, a five-year warrant to purchase one additional share of common stock at an exercise price of $10.00 per share will be issued. In the event that $2.5 million is timely converted on or before January 30, 2015, we will also issue as a bonus warrants to purchase 100,000 shares of common stock, exercisable at $5.00 per share over a five year period from the date of issuance.. We also agreed to grant Mr. Berg the right to lend us up to an additional $3.75 million of optional loans on the same terms and conditions described above on or before February 15, 2015. In the event such optional loan is converted into common stock on or before March 31, 2015, we will also issue as an additional bonus warrants to purchase up to 100,000 shares of common stock at an exercise price of $5.00 per share from the date of issuance. We also agreed to grant him the right to lend us up to an additional $3.75 million on the same terms and conditions on or before May 15, 2015 and in the event such additional optional loan is converted into common stock on or before June 30, 2015, we will also issue bonus warrants to Mr. Berg to purchase up to 100,000 shares of common stock at an exercise price of $5.00 per share over a period of five years from the date of issuance. All bonus warrants contain cashless exercise provisions. The 200,000 bonus warrants described above assumes full funding of the $7.5 million optional loans and 100% conversion on or before the dates described above. In the event the amount of optional loans is less than an aggregate of $3.75 million converted prior to March 31, 2015 and an additional $3.75 million converted prior to June 30, 2015, then the bonus warrants to purchase an aggregate of 200,000 shares will be proportionately reduced. In summary, in the event all $10 million is provided to us, including an additional $7.5 million on a timely basis, subject to our right of acceptance or rejection in our sole discretion, and all loans are timely converted on or before the dates described above, we will have issued 2 million shares of common stock, 1 million warrants to purchase shares of common stock at an exercise price of $10 per share, plus five year bonus warrants to purchase 300,000 shares of our common stock at an exercise price of $5 per share with cashless exercise provisions pertaining to the bonus warrants. Also, in the event the $10 million of funding is completed, Mr. Berg has the right to appoint one independent member to the board, which nominee will be subject to normal background checks.

 

Agreement with Aspire Capital

 

On March 31, 2014, we entered into a common stock purchase agreement with Aspire Capital Fund, LLC, an Illinois limited liability company, which provides that, upon the terms and subject to the conditions and limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate of $15.0 million of our shares of common stock over the approximately 24-month term of the purchase agreement. In consideration for entering into the purchase agreement, we issued to Aspire Capital 100,000 shares of our common stock as a commitment fee and we sold to Aspire Capital an additional 100,000 shares of common stock at a purchase price of $500,000 for a total of 200,000 shares. Concurrently with entering into the purchase agreement, we also entered into a registration rights agreement with Aspire Capital in which we agreed to file one or more registration statements as permissible and necessary to register under the Securities Act of 1933, as amended, or the Securities Act, the sale of the shares of our common stock that have been and may be issued to Aspire Capital under the purchase agreement.

 

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Pursuant to our agreements with Aspire Capital, we registered 1,500,000 shares of our common stock under the Securities Act, which includes the 200,000 shares that have already been issued to Aspire Capital and an additional 1,300,000 shares of common stock which we may issue to Aspire Capital after the registration statement is declared effective under the Securities Act. Said Registration Statement was declared effective by the SEC on April 28, 2014.

 

Since April 28, 2014, the effective date of our registration statement, on any trading day on which the closing sale price of our common stock exceeds $1.60, we have the right, in our sole discretion, to present Aspire Capital with a purchase notice, directing Aspire Capital (as principal) to purchase up to 20,000 shares of our common stock per trading day, provided that the aggregate price of such purchase shall not exceed $250,000 per trading day, up to $15.0 million of our common stock in the aggregate at a per share price calculated by reference to the prevailing market price of our common stock.

 

In addition, on any date on which we submit a purchase notice for 20,000 shares to Aspire Capital and the closing sale price of our stock is equal to or greater than $5.00 per share of common stock , we also have the right, in our sole discretion, to present Aspire Capital with a volume-weighted average price purchase notice directing Aspire Capital to purchase an amount of stock equal to up to 30% of the aggregate shares of the company’s common stock traded on the OTCQB on the next trading day, subject to a maximum number of shares we may determine and a minimum trading price.

  

There are no trading volume requirements or restrictions under our Aspire purchase agreement, and we will control the timing and amount of any sales of our common stock to Aspire Capital. Aspire Capital has no right to require any sales by us, but is obligated to make purchases from us as we direct in accordance with the purchase agreement. There are no limitations on use of proceeds, financial or business covenants or restrictions on future fundings, rights of first refusal, participation rights, penalties or liquidated damages in the purchase agreement. The purchase agreement may be terminated by us at any time, at our discretion, without any penalty or cost to us. We anticipate terminating our agreements with Aspire Capital upon consummation of this offering.

 

Secured Promissory Note with Executive Chairman

 

In June 2012, we issued a convertible promissory note in the principal amount of $350,000 to TCA Global Credit Master Fund, an institutional lender, secured by all of our assets. In December 2012, Thomas Arnost, one of our directors and currently Executive Chairman, purchased from TCA Global Credit Master Fund, our then indebtedness in the amount of $350,000, which has been reduced to $322,000. Subsequently, Mr. Arnost agreed with us to fix the conversion price of the note at $3.00 per share, extend the due date of the Note to December 31, 2015, subject to Mr. Arnost’s right to call the note at any time in his sole discretion, and increase the interest rate to 15% per annum. We have the right to prepay the note, subject to Mr. Arnost’s right of conversion.

 

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BUSINESS

 

Overview

 

We operate a national location-based mobile advertising network that has developed a consumer-focused proximity network which we believe is unlike any other in the United States. Our integrated suite of proprietary location based mobile advertising technologies allows clients to execute more personalized and contextually relevant experiences, driving brand awareness and incremental revenue.

 

We have installed our location-based mobile advertising solutions in approximately 200 locations as of October 31, 2014 and are currently expanding to 240 retail destinations across the U.S. to create "smart malls" using Bluetooth-enabled iBeacon compatible technology. Over the next 24 months following the completion of this offering, we plan to expand outside the malls with additional synergistic venues that will allow for cross marketing opportunities in such venues as stadiums, arenas, additional college campuses, airports and retail chains. For example, we have entered into an agreement with the New York State University at Stony Brook to deploy a mobile advertising network in their new arena. This type of installation will enable fan engagement, cross-marketing opportunities, sponsorship activation and create interactive event experiences. This is our first installation in the university market.

 

We operate through our wholly-owned subsidiaries, Ace Marketing & Promotions, Inc. and Mobiquity Networks, Inc. Ace Marketing is our legacy marketing and promotions business which provides integrated marketing services to our commercial customers. While Ace Marketing currently represents substantially all of our revenue, we anticipate that activity from Ace Marketing will represent a diminishing portion of corporate revenue as our attention is now principally focused on developing and executing on opportunities in our Mobiquity Networks business.

 

We believe that our Mobiquity Networks business represents our greatest growth opportunity going forward. This business unit is well positioned as a result of our early mover status and novel technology integration to address a rapidly growing segment of the digital advertising market – location based mobile marketing. We expect that Mobiquity Networks will generate the majority of our revenue by the end of 2015, although no assurances can be given in this regard.

 

Mobiquity Hardware Solutions

 

Our Mobiquity hardware solutions are currently deployed in retail locations (and in the future may be deployed at other venues such as stadiums, arenas, college campuses and airports) to create the Mobiquity network. Our hardware solutions include Mobi-Units, Mobi-Beacons and Mobi-Tags, which can be used in different combinations as the setting requires.

 

Mobi-Units utilize both Bluetooth and Wi-Fi to communicate with all mobile devices, including smart phones and feature phones. When our Mobi-Units are in use, consumers have the choice through an opt-in process to receive only desired content and offers. Additionally, through the use of Wi-Fi, consumers can connect to view content and receive special offers.

 

Mobi-Beacons, which utilize Bluetooth LE 4.0 technology, can dramatically enhance the in-app experience through the use of hyper accurate location event data. Our Mobi-Beacons have been developed to meet or exceed all iBeacon standards. Importantly, we have also developed a proprietary method for encrypting and decrypting its beacon signals on a rolling basis to ensure that its beacon network remains fully secure, and exclusively for the beneficial use of our clients.

 

Mobi-Tags interact with smart phones utilizing quick response codes and near field communication and can promote app downloads, social media engagement and database building.

 

Our Single Integrated Platform

 

Our Mobiquity Platform employs a number of core mobile solutions such as; Bluetooth, Wi-Fi, Near Field Communication and Quick Response Codes in order to engage with nearly 100% of mobile device types. The platform also allows for plug-in solutions to be added to increase our service offerings and add complementary revenue streams. For example, in addition to our advertising network, numerous plug-ins can be added for services such as loyalty programs, indoor mapping and mobile payments. We have developed an online platform that integrates the hardware and facilitates campaign management and reporting across the installed network. Our clients can use the network to deploy mobile ad campaigns simultaneously across multiple delivery methods, paying a cost per engagement fee. Alternatively, clients can subscribe to our Location Signal Service to access real-time contextual beacon signals to drive localized in-app user activity. Management believes that no other competitive solution offers a platform that integrates the depth and range of mobile advertising tools combined with a nationally deployed hardware network.

 

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A diagram of our basic network architecture is as follows:

The following graphic depicts a typical mall-shopper engagement from our customers’ viewpoint:

 

 

Our Mobiquity Networks business monetizes its network by providing clients with access to our exclusive common-area beacon signals. By incorporating our software development kit (or SDK), the client app (or campaign-specific 3rd party app) can access the beacon signals provided by our network, and leverage those signals plus the associated contextual information provided by our platform to trigger location-based campaign messaging. We plan to generate revenue several ways including by collecting a fee based on the engagement rate of our customer advertising campaigns, selling the data gathered by our network and licensing our location signals.

The Network

Through our agreement with Simon Property Group, we are in the process of installing our Mobiquity hardware solutions throughout 240 of their top shopping malls across the US with installation already completed in 200 malls. An additional 40 malls are expected to join the network on or before March 1, 2015. Our agreement with Simon Property Group provides exclusive Bluetooth advertising rights in the common areas of each of the 240 shopping malls in the US. Our hardware solutions mesh together to create our network, which according to Simon Property Group, provides advertisers the opportunity to reach approximately 2.6 billion annual mall visitors with mobile content and offers when they are most receptive to spending, while located in the mall. The 2014 annual report for the International Council of Shopping Centers (ICSC) indicates that shoppers spent on average over $97 per shopping mall visit in 2013, which represents over $250 billion of annual spending.  Our network provides advertisers the ability to influence a percentage of these shoppers who carry a smartphones.

 

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Mobiquity Advantages

 

Our agreement with Simon Property Group for the exclusive Bluetooth advertising rights in the common areas of 240 Simon malls provides us with a major advantage over our competitors as it gives us a national network. Our technology allows us the opportunity to reach nearly 100% of mobile device types by utilizing our Mobiquity hardware solutions integrated into a single platform. Our platform monitors and reports hardware activity in real time, manages campaigns, delivers highly targeted content and provides third party access to our Mobiquity network through our licensing of software development kits and the integration of an application program interface. Specifically as it relates to our lead service offering – Location Signals and Campaign Management via Beacons – campaigns require an app that has integrated our software development kit (SDK) in order to engage with our network. The more apps that have integrated the Mobiquity SDK, the more opportunities to engage with mall shoppers in our network. We are carefully selecting app partners that have a direct relevance to the mall shopping experience and to the mall shopper demographic. For example, the apps of retailers and brands are obvious partners. Additionally, we intend to partner with shopping apps such as coupon distribution platforms, and apps. We are in various stages of SDK integration with dozens of additional mobile app properties that represent tens of millions of active app users and in negotiations with various venues in regard to network expansion. Management believes that our ability to deliver a significant national audience via a single network is a significant advantage when creating app relationships.

 

Our Strategy

 

Our goal is to enhance the shopper experience with retail customers by providing valuable and relevant content in real-time based on location. We achieve this goal by providing our customers (such as retailers, brands, and the entertainment industry) with a highly targeted form of mobile marketing engagement. Our platform enables interaction and advertising based on time, location and personalization to create the most effective campaigns/experiences possible, in a way that is not possible without our network. We connect fans and brands in the retail space by increasing individual retail location app usage and driving foot traffic to such individual retail locations. We are deploying our Mobiquity hardware solution to expand the capability of the Mobiquity network in 240 Simon malls in the United States. As we complete the expansion of our mall footprint on or before March 1, 2015, we will be utilizing the proceeds of this offering to expand our sales and marketing human resource capability to focus on generating revenue over our network. Our sales and marketing team will be seeking to generate revenue over our network through five primary verticals:

 

·Retailers, Brands and Apps relevant to the shopping experience.
·Shopping/Coupon related Apps with relevant offers.
·Entertainment Apps relevant to the shopper demographic.
·Advertising Networks and Exchanges serving location relevant ads.
·Data Analytic and Social Media Apps requesting real-time location based signal.

 

Over the next 24 months following the completion of this offering, we plan to expand on our current footprint with synergistic venues that will allow for cross marketing opportunities. Such venues include but are not limited to; stadiums, arenas, college campuses, airports and retail chains. The purpose of this type of expansion will be to create a unified network that will allow relevant beacon companies the opportunity to become part of the Mobiquity network. They may find it advantageous to become part of our network, so they will have the ability to drive traffic into their stores. We also plan to build a Private Ad Exchange that will allow for programmatic buying where advertisers will be given permission to engage with shoppers through the Mobiquity network. Additionally, we plan to add other mobile services and plug-ins such as; loyalty programs, indoor mapping, security and mobile payments.

 

Sales and Marketing

 

Key elements of our distribution and marketing strategy are as follows:

 

·Direct Sales. Our internal salesforce will call on retailers, brands and relevant advertiser to advertise on the network.

 

·Resellers. We intend to engagement with third parties, such as Ad Agencies and Out-of-Home companies to sell advertising on the network.

 

·Publishers. We intend to engage with App Developers, Ad Networks, Ad Exchanges and other companies that have existing relationships with access to a large number of apps to increase our reach and provide an alternative to advertisers with limited app downloads or no app.

 

·Data Signals. We intend to engage with Social Media companies, Ad Networks and Ad Exchanges to provide real-time location-based data to increase the relevance and value of their in-app ad serving.

 

·Data Platforms. We intend to engage with Data Management companies to provide historical location-based data which will enable personalized online, offline and mobile campaigns to targeted audiences.

 

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We have allocated a portion of the net proceeds of this offering to hire additional qualified sales and marketing personnel to generate revenue on our proximity mall network.

 

Our Proprietary Technology

 

In March 2013, we formed Mobiquity Networks and Mobiquity Wireless in Spain. Mobiquity Wireless then acquired the assets of our then licensor, FuturLink. These assets include, without limitation, the FuturLink technology which consists of patent applications, source codes and trademark(s). The patent applications acquired related to the hardware and associated process for identifying and acquiring connections to mobile devices and the process for delivering select content to users on an opt-in basis. Additionally, significant “know how” was acquired with respect to managing remote hardware across a large physical network. As the technology owner, we realized immediate benefits and will leverage the hardware and software included in our purchase to expand our mall-based footprint in the United States. Our acquisition of FuturLink’s technology and corresponding patent applications provided us with the flexibility and autonomy to improve, upgrade and integrate new ideas and cutting edge technologies into our existing platform. This will allow us to evolve as new technologies emerge.

 

We believe that our intellectual property is a valuable asset to us as we move forward with our technology platform. Since we acquired this technology, we have further developed our ability to manage large networks of hardware to include beacon technology. Additionally, we have expanded campaign management tools to optimize them to meet the demands of our customers. Importantly, we have also developed a proprietary method for encrypting and decrypting the beacon signals on a rolling basis to ensure that our beacon network remains fully secure and exclusively for the beneficial use of our clients. We believe our intellectual property gives us a lead in the industry with respect to the sophisticated management of large-scale network deployments and campaign management. We believe that most beacon providers focus on single-store applications and are not capable of managing beacons across multiple locations, much less manage a public network that will be accessed by multiple advertisers versus a single retailer. Our network-focused platform approach is a key selling tool when presenting our capabilities to property owners, such as mall developers, who understand the challenge associated with managing a large number of hardware solutions across hundreds of properties.

 

Integrated Marketing Company

 

Our subsidiary, Ace Marketing & Promotions, Inc. (or Ace Marketing), has historically represented substantially all of our operating revenues. Ace Marketing is an integrated marketing company focused on working with clients to grow their business. Ace’s core business is to provide a wide range of quality promotional products to a wide range of corporate, non-profit and educational clients. In addition, Ace Marketing offers brand analysis and development, website analysis and development, database analysis and building, and integrated marketing campaigns using: direct mail, email marketing, mobile marketing, promotional products and other mediums that help our clients connect with their customers and acquire new business.

 

Although the majority of Ace Marketing’s revenue is derived from the sale of promotional products, it is through the use of our four-step process supported by marketing technology platforms that allows us to attract and retain clients. The sale of promotional products alone can be considered a commodity business, so by offering our value-added services, we believe we have created a competitive advantage. We believe a client will be less likely to leave if we created their logo, built their website and/or appended their customer database.

 

Ace Marketing derives revenues from each of the following resources:

 

  · Brand analysis and development.
     
  · Website analysis and development.
     
  · Database analysis and building.
     
  · Integrated marketing solutions. 

 

Substantially all of the company’s resources and marketing efforts are dedicated toward deriving revenues from the operations of Mobiquity Networks. No substantial portion of the proceeds of the offering will be utilized to expand the marketing and sales activities of Ace.

 

Competition

 

We compete in the advertising technology and location-based mobile marketing business and in all other facets of our business against small, medium and large companies throughout the United States. Some examples include companies such as Gimbal, Shopkick, Swirl and Estimote. Although we can give no assurance that our business will be able to compete against other companies with greater resources, we believe we have a competitive advantage with our mall network, software and proprietary technology platform. As previously mentioned, we have the exclusive rights to provide Bluetooth advertising in the common area for Simon malls. This gives us the ability to compete with these other companies to provide in-store advertising, but they cannot compete with us in the common area of the malls as the mall operators prohibit the individual retail stores from sending proximity marketing signals and information beyond the perimeter of their retail store. Additionally, the software we created for our beacons have a proprietary security feature which protects the beacons from being hacked or spoofed. Our technology platform also allows us to integrate other companies’ beacons onto our network. These means that if a retailer has already purchased beacons from a competitor, we still have the ability to work with them by adding their beacons to our network and so can provide the service and run advertising.

 

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With respect to our integrated marketing subsidiary, while our competition in this business vertical is extensive, we believe that this industry is extremely fragmented and that there are no companies that dominate the market in which we operate.  We compete within the industry on the basis of service, competitive prices, personal relationships and competitive commissions to our sales representatives to sell promotional products for us rather than our competitors. Competitors’ advantages over us may include better financing, greater experience, lower margins and better personal relationships than us.

 

Employees

 

We have approximately 35 full time employees, including executive management, technical personnel, salespeople, and support staff employees. We also utilize several additional firms/persons who provide services to us on a non-exclusive basis as independent consultants. 

 

Properties

 

In February 2012, we entered into a 63-month lease agreement for new executive office space of approximately 4,200 square feet located at 600 Old Country Road, Suite 541, Garden City, NY 11530. The annual rent under this office facility for the first year is estimated at $127,000, including electricity, subject to an annual increase of 3%. In the event of a default in which the company is evicted from the office space, Mobiquity would be responsible to the landlord for an additional payment of rent of $160,000 in the first year of the lease, an additional payment of $106,667 in the second year of the lease and an additional payment of rent of $53,333 in the third year of the lease. Such additional rent would be payable at the discretion of the company in cash or in shares of common stock of our company.

 

We lease approximately 2,000 square feet of space, expiring in November 2014, at an annual cost of approximately $28,600 (inclusive of taxes) at 1105 Portion Road, Farmingville, NY 11738.

 

In March 2013, we entered into a two-year lease for approximately a 1,200 square foot facility of office and warehouse space in Barcelona, Spain, at monthly cost of approximately $2,200.

 

In July 2014, we entered into an amendment to our master lease agreement with Simon Property Group. This amendment provides for us to expand our location-based mobile mall network footprint to 240 Simon malls across the United States. Our agreement with Simon currently expires December 31, 2017, subject to possible annual extension pursuant to the terms of said agreement. Our agreement with Simon requires us to maintain letters of credit for each calendar year under the agreement represented by the minimum amount of rent due for such calendar year.

 

 

 

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MANAGEMENT

 

Our executive officers and directors and their respective ages and positions as of the date of this Prospectus are:

           
NAME (1) (2)   AGE     POSITION
           
Executive Officers:          
Thomas Arnost   68   Chairman of the Board
Dean L. Julia (1)   47     Co-Chief Executive Officer/Secretary/Treasurer/Co-Founder
Michael D. Trepeta   43     Co-Chief Executive Officer/President/Director/ Co-Founder
Paul Bauersfeld   52     Chief Technology Officer
Sean J. McDonnell, CPA   54     Chief Financial Officer
Sean Trepeta (1)   47     President of Mobiquity Networks
           
Independent Directors (2)

Anthony F. Abbruzzese   67     Director
Richard Suth   47     Director
Mark Meulenberg   43     Director

________________

(1)

Prior to the date of this prospectus, Dean L. Julia and Sean Trepeta have been serving as a director of our company. Their resignation from the board will become effective on the listing date of our common stock on the NYSE MKT.

(2) Each independent director identified above has agreed to become a director of our company and to serve as a member of our audit committee, compensation committee and nominating and corporate governance committee, on the listing date of our common stock on the NYSE MKT.

 

Directors are elected at the annual meeting of stockholders and hold office until the following annual meeting. The terms of all officers expire at the annual meeting of directors following the annual stockholders meeting. Officers serve at the pleasure of our board of directors and may be removed, either with or without cause, by our board of directors, and a successor elected by a majority vote of our board of directors, at any time. Nevertheless, the foregoing are subject to the employment contracts of our executive officers.

 

Executive Officers

 

Thomas Arnost. Mr. Arnost has been a director of our company since December 2011, he has served as Chairman of the Board since October 2013 and he has served as Executive Chairman of the Board since October 2014. Mr. Arnost served as the Co-President of Univision Television Group, from 1997 to 2006, and prior to that as Executive Vice President of Univision Television Group from 1994 to 1996. Previously he served as the Co-President of Univision Communications, Inc. Station Group, which he joined in 1994. In 2002, Mr. Arnost helped in the successful launch of the Telefutura Station Group which has since significantly contributed to Univision's overall growth. During his tenure with Univision, total station group revenue grew from under $120 million in 1993 to approximately $700 million in 2006. Also during his tenure, Univision’s market value grew from roughly $500 million to over $14 billion. Mr. Arnost’s extensive business, financial, management and leadership experience in the telecommunications industry particularly qualifies him for serving on the company’s board as an independent director. Mr. Arnost graduated from the University of Arizona with a BS in Finance.

 

Dean L. Julia. Mr. Juilia has served as Chief Executive Officer of Mobiquity since December 2000 and as Co-CEO since March 2012. In 1998, Mr. Julia co-founded Mobiquity and became an officer, director and principal stockholder of our company. Mr. Julia is responsible for establishing our overall strategy and fostering key relationships with technology partners and developers. Mr. Julia has also served as COO of Mobiquity’s wholly-owned subsidiary, Mobiquity Networks since its formation in January 2011, where he is responsible for the integration of the sales and intellectual property departments of Mobiquity. From September 1996 through February 1998, Mr. Julia served as President and Chief Executive Officer of DLJ Consulting, a financial intermediary consultant for public and private companies. Mr. Julia is a founder of our company and has served on the board since its inception. He is expected to resign from the board on the listing date of our common stock on the NYSE MKT. Mr. Julia received his Bachelor of Business Administration from Hofstra University in 1990.

 

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Michael D. Trepeta. Mr. Trepeta is Co-CEO of Mobiquity since March 2012. In 1998, Mr. Trepeta co-founded Mobiquity and became President, director and principal stockholder of our company. Mr. Trepeta is also Chief Executive Officer of our wholly-owned subsidiary, Mobiquity Networks since its formation in 2011. Mr. Trepeta is responsible for the continued roll-out of Mobiquity's national proximity marketing network by securing long term strategic partnerships with key property owners and management companies while simultaneously forming key partnerships with out of home agencies who control the media assets within those properties. In 1998, Mr. Trepeta co-founded Mobiquity as an officer, director and principal owner of the company. Mr. Trepeta is responsible for establishing the strategy for all integrated marketing efforts at Mobiquity through the development of models and solutions that leverage the attributes of cutting edge marketing technologies. From September 1996 through February 1998, he served as President of MDT Consulting Group, Inc., a corporation contracted by various companies to serve as a financial intermediary to investment bankers and to assist in developing products, services, and business strategies. Mr. Trepeta is a founder of the company and has demonstrated his management ability at senior levels and he is expected to continue to serve on the board. Mr. Trepeta received a Bachelor of Science Degree in Applied Economics and Business Management with a minor in Communications from Cornell University in 1993. Mr. Trepeta is the brother of Sean Trepeta.

 

Paul Bauersfeld. Mr. Bauersfeld has served as Chief Technology Officer of our company since June 2013. Mr. Bauersfeld is a technology executive and engineer with over 20 years’ experience in software product development and entrepreneurial organizations. In 2003, Mr. Bauersfeld founded Varsity Networks, a leading online media and services company dedicated to serving the local sports market through technology. He served as CEO of Varsity Networks from its formation through 2013, where he was responsible for expanding the network to include over 10,000 local sports communities with millions of monthly visitors. Prior to his positions at Varsity Network, he held positions at a number of Fortune 100 and startup companies in the technology and media industries. Mr. Bauersfeld has also acted as an advisor to a number of technology developmental corporations. His roles have included Co-founder and CEO of MessageOne from 2000 to 2001, which enterprise was later acquired by Dell Computer Corp., VP of ecommerce at Ziff-Davis from 1999 to 2000, Technology Director at Viacom’s Nickelodeon Online from 1997 to 1999, Founder of GiftOne in 1996, where he served in the position of President, which entity was acquired by Skymall 1997, as well as engineering positions at Apple Computer from 1998 to 1993 and Xerox Corporation from 1986 to 1988. He has a BS in Electrical Engineering from Rochester Institute of Technology, which degree he received in 1986.

 

Sean J. McDonnell, CPA. Mr. McDonnell has been our Chief Financial Officer since January 2005. Since January 1990, Mr. McDonnell has also owned and operated a private accounting and tax practice handling many different types of business entities and associations. Mr. McDonnell has spent much of his time helping his customers grow their companies and acquire financing for the purchase of buildings and equipment. Prior to starting his own practice, he was employed from 1985 through 1990 as a senior staff member at the accounting firm of Breiner & Bodian CPA's. After graduating from Dowling College in 1984 with a Bachelor in Business Administration, he was employed by Kenneth Silver C.P.A. from 1984 to 1985. Mr. McDonnell has been a certified public accountant for almost 20 years.  

 

Sean Trepeta. Mr. Trepeta has been a director of our company since December 2011. Mr. Trepeta is also serving as President of Mobiquity Networks, where he is responsible for sales and marketing strategies. Mr. Trepeta continues to foster strategic relationships with agencies and national brands. Prior to joining the Mobiquity Networks team in May 2011, Mr. Trepeta was President of Varsity Networks, a leading online portal dedicated to serving the High School sports market, from 2007 to 2011. Prior to this, from 1998 to 2007, Mr. Trepeta was the President and Co-Founder of OPEX Communications, Inc., a leading telecommunication service provider which was located in Chicago, specializing in traditional long-distance, wireless, and dedicated services. Before OPEX, from 1996 to 1998, Mr. Trepeta was the vice president of sales and marketing for the US Buying Group, Inc. (USBG) responsible for developing a small business-buying program, which included value added services such as overnight shipping, office supplies, and computer software products, as well as a full line of telecommunications services. Mr. Trepeta also developed and implemented the agent and carrier divisions of USBG. Prior to joining USBG, he was with MCI Telecommunications and NYNEX in New York City. As Mr. Trepeta holds a Bachelor of Science degree from the State University of New York at Cortland. Mr. Trepeta is expected to resign from the board on the listing date of our common stock on the NYSE MKT. Mr. Trepeta is the brother of Michael Trepeta.

 

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Independent Directors

 

On the effective date of the listing of our common stock on the NYSE MKT, each of the persons identified below will become an independent director of our company.

 

Anthony F. Abbruzzese. Mr. Abbruzzese retired in 2010 as Chief Operating Officer of Aon Horizon Consultants, a division of Aon Plc, a global provider of risk management solutions, insurance and reinsurance brokerage and HR Solutions. He is a certified public accountant and has over 40 years’ experience developing business strategies for Fortune 100 companies in the retail, communications, manufacturing and financial services industries. His prior positions included senior audit manager for Arthur-Andersen & Co. for approximately nine years, assistant Chief Financial Officer and a founder of Horizon Consulting Group, which was acquired by Aon Plc in 2001. Mr. Abbruzzese received a Bachelor of Science degree with an accounting major from St. John’s University and is a member of both the American and New York Societies of CPAs. He is also a director of the Saint Padre Miracle Foundation. Mr. Abbruzzese has extensive practical experience successfully executing organic revenue growth and long term business development. As a board member and Chairman of the Audit Committee, he will supply strategic leadership and guidance in administration and accounting across all areas of our company.

 

Richard Suth. Since July 2004, Mr. Suth has served as a partner at Goldman Sachs and has been working in the Equities Division – Trading. Mr. Suth is co-head of the Global Synthetic Product Group and oversees the Macro Equity Trading teams in the Securities Division. Previously, he was the head of Americas SPG Trading desk. Mr. Suth is a member of the Retirement Committee for the firm’s US retirement plans. Mr. Suth joined Goldman Sachs in 2004 and was named managing director in 2006 and partner in 2010. Prior to joining Goldman Sachs, Mr. Suth worked as an equity derivatives trader and desk manager in the equity structured products groups of CIBC and CDX IXIX from 1996 to 2004. Mr. Suth serves on the Board of Trustees of the Holy Child Academy in Old Westbury, NY. Mr. Suth earned an MBA in Statistics and Finance from the Stern School of business at New York University in 1998 and a BA in Economics from Bucknell University in 1992.

 

Mark Meulenberg. Since September, 2013, Mr. Meulenberg has served as the Chief Investment Officer (CIO) of VNB Wealth Management, a wholly-owned subsidiary of Virginia National Bank which itself is owned by Virginia National Bankshares, a publicly-traded company under the symbol VABK. In this capacity Mr. Meulenberg holds the title of Executive Vice President and is the acting Chairman of the firm’s Investment Policy Committee. Mr. Meulenberg is responsible for the generation of investment ideas, the management of portfolios, and oversees the research and trading efforts of the firm. The firm’s main investment product, the Enhanced Core Strategy, was established by Mr. Meulenberg and he continues to manage that product. Prior to assuming his current duties, Mr. Meulenberg was a portfolio manager and research analyst for VNBTrust (now doing business as VNB Wealth Management), since January 2008. In this capacity, Mr. Meulenberg researched opportunities and managed portfolios for VNBTrust clients. Immediately prior to joining VNBTrust, Mr. Meulenberg ran the long/short public equity portfolio for a multi-strategy hedge fund in Charlotte, NC. From 2000 to 2007, he worked within the investment management arm of Brown Brothers Harriman & Co. During his time with the firm, he served as a member of the firm’s Investment Policy Committee for three years and was the Chairman of the Committee until his departure. Prior to joining Brown Brothers Harriman & Co., he worked for U.S. Trust Company as a Portfolio Manager. Mr. Meulenberg began his career in money management with Sanford Bernstein & Co. Inc. and left the firm as an Associate Portfolio Manager. Mr. Meulenberg is an active member of his community and has served on the Albemarle County School Finance Advisory Board as well as the Advancement Committee and Steering Committee of The Covenant School, both in Charlottesville, Virginia. Mr. Meulenberg graduated from Cornell University with a B.S. in Applied Economics and Business Management in 1993. He is a Chartered Financial Analyst.

 

Composition of Our Board of Directors

 

Prior to our listing of our common stock on the NYSE MKT, our board of directors consists of four members, including, Dean L. Julia and Sean Trepeta, each of whom will resign from the board upon our listing of our common stock on the NYSE MKT, but remain as executive officers of our company. Our three independent directors who will join our then five member board and each of our newly formed audit committee, compensation committee and nominating and corporate governance committee upon our uplisting on NYSE MKT.

 

Our nominating and governance committee and board of directors may consider a broad range of factors relating to the qualifications and background of nominees, which may include diversity and is not limited to race, gender or national origin. We have no formal policy regarding board diversity. Our nominating and corporate governance committee’s and board of directors’ priority in selecting board members is identification of persons who will further the interests of our stockholders through his or her established record of professional accomplishment, the ability to contribute positively to the collaborative culture among board members, knowledge of our business, understanding of the competitive landscape and professional and personal experiences and expertise relevant to our growth strategy. Our directors hold office until their successors have been elected and qualified or until the earlier of their resignation or removal.

 

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Our bylaws provide that our directors may be removed only for cause by the affirmative vote of the holders of at least a majority of the votes that all our stockholders would be entitled to cast in an annual election of directors. Such vacancy occurring by reason of removal for cause may only be filled by the stockholders. All other vacancies in the board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office.

 

Director Independence

 

Our board of directors has determined that Anthony F. Abbruzzese, Richard Suth and Mark Meulenberg, each of which will become directors upon the listing of our common stock on the NYSE MKT, are independent, as determined in accordance with the rules of the NYSE MKT. In making such independence determination, the board of directors considered the relationships that each such non-employee director has with us and all other facts and circumstances that the board of directors deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director. Upon the listing of our common stock on the NYSE MKT, we expect that the composition and functioning of our board of directors and each of our committees will comply with all applicable requirements of the NYSE MKT and the rules and regulations of the SEC. There are no family relationships among any of our independent directors or executive officers, except that Michael Trepeta, Co-Chief Executive Officer and a director, and Sean Trepeta, President of Mobiquity Networks, Inc. are brothers.

 

Board Leadership Structure and Board’s Role in Risk Oversight

 

The positions of our Chairman of the board and Chief Executive Officer are presently separated at our company. Separating these positions allows our Chief Executive Officer to focus on our day-to-day business, while allowing the Chairman of the board to lead the board of directors in its fundamental role of providing advice to and independent oversight of management. Our board of directors recognizes the time, effort and energy that the Chief Executive Officer must devote to his position in the current business environment, as well as the commitment required to serve as our Chairman, particularly as the board of directors’ oversight responsibilities continue to grow. Our board of directors also believes that this structure ensures a greater role for the independent directors in the oversight of our company and active participation of the independent directors in setting agendas and establishing priorities and procedures for the work of our board of directors. Our board of directors believes its administration of its risk oversight function has not affected its leadership structure. Although our bylaws do not require our Chairman and Chief Executive Officer positions to be separate, our board of directors believes that having separate positions is the appropriate leadership structure for us at this time and demonstrates our commitment to good corporate governance.

 

Our board of directors oversees the management of risks inherent in the operation of our business and the implementation of our business strategies. Our board of directors performs this oversight role by using several different levels of review. In connection with its reviews of the operations and corporate functions of our company, our board of directors addresses the primary risks associated with those operations and corporate functions. In addition, our board of directors reviews the risks associated with our company’s business strategies periodically throughout the year as part of its consideration of undertaking any such business strategies.

 

Each of our newly formed board committees will oversee the management of our company’s risk that falls within the committee’s areas of responsibility. In performing this function, each committee has full access to management, as well as the ability to engage advisors. Our Chief Financial Officer will report to the audit committee and is responsible for identifying, evaluating and implementing risk management controls and methodologies to address any identified risks. In connection with its risk management role, our audit committee will meet privately with representatives from our independent registered public accounting firm and our Chief Financial Officer. The audit committee will oversee the operation of our risk management program, including the identification of the primary risks associated with our business and periodic updates to such risks, and reports to our board of directors regarding these activities.

 

Board Committees

 

Upon our listing on the NYSE MKT, our board of directors has established an audit committee, a compensation committee and a nominating and corporate governance committee, each of which will operate pursuant to a separate charter adopted by our board of directors. The composition and functioning of all of our committees will comply with all applicable requirements of the Sarbanes-Oxley Act of 2002, the NYSE MKT and Securities and Exchange Commission rules and regulations.

 

Audit Committee

 

Anthony F. Abbruzzese, Richard Suth and Mark Meulenberg will serve on the audit committee, which will be chaired by Mr. Meulenberg. Our board of directors has determined that each member of the audit committee is “independent” for audit committee purposes as that term is defined in the rules of the Securities and Exchange Commission and the applicable NYSE MKT rules. Our board of directors has designated Mr. Abbruzzese as an “audit committee financial expert.”

 

The term “Financial Expert” is defined under the Sarbanes-Oxley Act of 2002, as amended, as a person who has the following attributes: an understanding of generally accepted accounting principles and financial statements; has the ability to assess the general application of such principles in connection with the accounting for estimates, accruals and reserves; experience preparing, auditing, analyzing or evaluating financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that can reasonably be expected to be raised by the company’s financial statements, or experience actively supervising one or more persons engaged in such activities; an understanding of internal controls and procedures for financial reporting; and an understanding of audit committee functions.

 

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The audit committee’s responsibilities include:

 

  · appointing, approving the compensation of, and assessing the independence of our independent registered public accounting firm;
     
  · approving auditing and permissible non-audit services, and the terms of such services, to be provided by our independent registered public accounting firm;
     
  · reviewing the internal audit plan with the independent registered public accounting firm and members of management responsible for preparing our financial statements;
     
  · reviewing and discussing with management and the independent registered public accounting firm our annual and quarterly financial statements and related disclosures as well as critical accounting policies and practices used by us;
     
  · reviewing the adequacy of our internal control over financial reporting;
     
  · reviewing the code of business conduct and ethics and granting waivers for executive officers and directors thereunder;
     
  · establishing policies and procedures for the receipt and retention of accounting-related complaints and concerns;
     
  · recommending, based upon the audit committee’s review and discussions with management and the independent registered public accounting firm, whether our audited financial statements shall be included in our Annual Report on Form 10-K;
     
  · recommending, based upon the audit committee’s review and discussions with management and the independent registered public accounting firm, whether our audited financial statements shall be included in our Annual Report on Form 10-K;
     
  · preparing the audit committee report required by SEC rules to be included in our annual proxy statement;
     
  · reviewing all related party transactions for potential conflict of interest situations and approving all such transactions; and
     
  · reviewing earnings releases.

 

Compensation Committee

 

Upon the listing of our common stock on the NYSE MKT, Anthony F. Abbruzzese, Richard Suth and Mark Meulenberg will serve on the compensation committee, which will be chaired by Mr. Abbruzzese. Our board of directors has determined that each member of the compensation committee is “independent” as that term is defined in the applicable NYSE MKT rules. The compensation committee’s responsibilities include:

 

  · annually reviewing and approving corporate goals and objectives relevant to the compensation of our Chief Executive Officer;
     
  · evaluating the performance of our Chief Executive Officer in light of such corporate goals and objectives and determining the compensation of our Chief Executive Officer;
     
  · reviewing and approving the compensation of our other executive officers;
     
  · reviewing and establishing our overall management compensation, philosophy and policy;
     
  · overseeing and administering our compensation and similar plans;
     
  · evaluating and assessing potential current compensation advisors in accordance with the independence standards identified in the applicable NYSE MKT rules;
     
  · retaining and approving the compensation of any compensation advisors;
     
  · reviewing and approving our policies for the grant of non-cash compensation and perquisites;
     
  · reviewing and making recommendations to the board of directors with respect to director compensation;
     
  · preparing the compensation committee report required by SEC rules to be included in our annual proxy statement; and
     
  · reviewing the compensation discussion and analysis to be included in our annual proxy statement.

 

37
 

 

Nominating and Corporate Governance Committee

 

Upon the listing of our common stock on the NYSE MKT, Anthony F. Abbruzzese, Richard Suth and Mark Meulenberg will serve on the nominating and corporate governance committee, which will be chaired by Mr. Suth. Our board of directors has determined that each member of the nominating and corporate governance committee is “independent” as that term is defined in the applicable NYSE MKT rules. The nominating and corporate governance committee’s responsibilities include:

 

  · developing and recommending to the board of directors criteria for board and committee membership;
     
  · establishing procedures for identifying and evaluating board of director candidates, including nominees recommended by stockholders;
     
  · identifying individuals qualified to become members of the board of directors;
     
  · recommending to the board of directors the persons to be nominated for election as directors and to each of the board’s committees;
     
  · recommending to the board of directors the persons to be nominated for election as directors and to each of the board’s committees;
     
  · overseeing the evaluation of the board of directors and the chief executive officer.

 

Our board of directors may establish other committees from time to time.

 

Compensation Committee Interlocks and Insider Participation

 

None of the members of our compensation committee has at any time during the prior three years been one of our officers or employees. None of our executive officers currently serves, or in the past fiscal year has served, as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving on our board of directors or compensation committee.

 

Corporate Governance

 

We have adopted a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. A current copy of the code will be posted on the Corporate Governance section of our website, which is located at www.mobiquitytechnologies.com. If we make any substantive amendments to, or grant any waivers from, the code of business conduct and ethics for any officer, we will disclose the nature of such amendment or waiver on our website or in a current report on Form 8-K.

 

Indemnification

 

The New York Business Corporation Law contains provisions permitting and, in some situations, requiring New York corporations to provide indemnification to their officers and directors for losses and litigation expense incurred in connection with their service to the corporation. Our certificate of incorporation and bylaws contain provisions requiring our indemnification of our directors and officers and other persons acting in their corporate capacities.

 

In addition, we have entered into employment agreements with several of our executive officers/directors providing contractually for indemnification consistent with the certificate of incorporation and bylaws. The New York Business Corporation Law also authorizes us to purchase insurance for our directors and officers insuring them against risks as to which we may be unable lawfully to indemnify them. We have obtained limited insurance coverage for our officers and directors as well as insurance coverage to reimburse us for potential costs of our corporate indemnification of officers and directors.

 

As far as exculpation or indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted for directors and officers and controlling persons, we have been advised that in the opinion of the Securities and Exchange Commission such exculpation or indemnification is against public policy and is, therefore, unenforceable.

 

38
 

 

EXECUTIVE AND DIRECTOR COMPENSATION

 

The following table sets forth the overall compensation earned over the fiscal year ended December 31, 2013 and 2012 by (1) each person who served as the principal executive officer of the company during fiscal year 2013 and 2012; (2) the company’s most highly compensated (up to a maximum of two) executive officers as of December 31, 2013 and 2012 with compensation during fiscal year 2013 and 2012 of $100,000 or more; and (3) those two individuals, if any, who would have otherwise been in included in section (2) above but for the fact that they were not serving as an executive of the company as of December 31, 2013.

 

                                  Salary Compensation              
Name and Principal         Salary     Bonus     Stock     Option Awards     Non-Equity Incentive Plan Compensation     Nonqualified Deferred Compensation Earnings     All Other Compensation     Total  
Position   Year     ($)     ($)     Awards     ($)(1)     ($)     ($)     ($)(2)(3)     ($)  
Dean L. Julia     2012     $ 293,710     $           $ 63,000                        –     $ 23,860     $ 380,570  

Co-CEO of the company

    2013     $ 336,000     $           $ 35,743                 $ 51,417     $ 423,160  
                                                                         
Michael D. Trepeta     2012     $ 293,710     $           $ 63,000                 $ 23,860     $ 380,570  
Co-CEO of the company     2013     $ 336,000     $           $ 35,743                 $ 51,417     $ 423,160  
                                                                         
Sean Trepeta     2012     $ 110,000     $ 75,000           $ 37,500                   $ 23,860     $ 256,360  
President of Mobiquity Networks (4)     2013     $ 127,500     $           $ 6,450                 $ 30,207     $ 164,157  

________________

(1) The options and restricted stock awards presented in this table for fiscal 2012 and 2013 reflect the full grant date fair value, as if the total dollar amount were earned in the year of grant. The stock awards are valued based on the fair market value of such Shares on the date of grant and are charged to compensation expense over the related vesting period. The options are valued at the date of grant based upon the Black-Scholes method of valuation, which is expensed over the service period over which the options become vested. As a general rule, for time-in-service-based options, the company will immediately expense any option or portion thereof which is vested upon grant, while expensing the balance on a pro rata basis over the remaining vesting term of the option.
(2) Includes all other compensation not reported in the preceding columns, including (i) perquisites and other personal benefits, or property, unless the aggregate amount of such compensation is less than $10,000; (ii) any “gross-ups” or other amounts reimbursed during the fiscal year for the payment of taxes; (iii) discounts from market price with respect to securities purchased from the company except to the extent available generally to all security holders or to all salaried employees; (iv) any amounts paid or accrued in connection with any termination (including without limitation through retirement, resignation, severance or constructive termination, including change of responsibilities) or change in control; (v) contributions to vested and unvested defined contribution plans; (vi) any insurance premiums paid by, or on behalf of, the company relating to life insurance for the benefit of the named executive officer; and (vii) any dividends or other earnings paid on stock or option awards that are not factored into the grant date fair value required to be reported in a preceding column.
(3) Includes compensation for service as a director described under Director Compensation, below.
(4) In 2013, Sean Trepeta received approximately $10,000 per month in salary.  In 2012, Mr. Trepeta received $10,000 per month in salary and $75,000 in bonuses.

   

For a description of the material terms of each named executive officers’ employment agreement, including the terms of the terms of any common share purchase option grants, see that section of this prospectus captioned “Employment Agreements.”

 

No outstanding common share purchase option or other equity-based award granted to or held by any named executive officer in the past three years were repriced or otherwise materially modified, including extension of exercise periods, the change of vesting or forfeiture conditions, the change or elimination of applicable performance criteria, or the change of the bases upon which returns are determined, nor was there any waiver or modification of any specified performance target, goal or condition to payout, except as follows:

 

·On March 1, 2013, we extended for an additional five years options to purchase 5,000 shares of our common stock which were originally granted to each of Dean Julia and Michael Trepeta in March 2008 and we lowered the exercise price from $8.00 per share to $3.50 per share; and
   
·On December 19, 2014, we issued to Dean Julia and Michael Trepeta options to purchase 25,000 shares of our common stock at an exercise price of $3.50 per share over a term of 10 years. These options were issued to replace a similar number of options exercisable at $10.00 per share due to expire on January 3, 2015.

 

39
 

 

Executive Officer Outstanding Equity Awards at September 30, 2014

 

The following table provides certain information concerning any common share purchase options, stock awards or equity incentive plan awards held by each of our named executive officers that were outstanding as of September 30, 2014.

 

    Option Awards       Stock Awards  
Name  

Number of

Securities

Underlying

Unexercised

Options(#)

Exercisable

 

Number of

Securities

Underlying

Unexercised

Options(#)

Unexercisable

 

Equity

Incentive Plan

Awards:

Number of

Securities

Underlying

Unexercised

Unearned

Options (#) 

 

 

Option

Exercise Price ($)

  Option Expiration Date  

Number of

Shares or

Units of

Stock That

Have Not

Vested (#)

 

Market

Value of

Shares or

Units of

Stock That

Have Not

Vested

 

Equity

Incentive

Plan

Awards:

Number

of

Unearned

Shares,

Units or

Other

Rights

That Have

Not

Vested

 

Equity

Incentive

Plan

Awards:

Market

or

Payout

Value of

Unearned

Shares,

Units or

Other Rights

That Have Not

Vested

 
Dean L.   25,000       $ 3.50   12/19/24          
Julia (1)   20,000       $          12.00   12/28/15          
    15,000       $ 12.00   08/22/17          
    5,000       $ 3.80   03/01/18          
    5,000       $ 6.50   03/02/19          
    5,000       $ 5.40   03/25/20          
    20,000       $ 5.00   04/07/20          
    10,000       $ 2.60   02/28/21          
                                         
    10,000       $ 6.10   02/28/22          
    5,000       $ 2.50   02/13/23          
    10,000       $ 3.80   03/01/23          
    150,000       $ 3.30   01/17/24          
    10,000       $ 5.90   03/01/24          
    10,000       $ 5.90   03/03/24          
    25,000       $ 5.00   07/16/24          
                                         
Michael D.   25,000       $ 3.50   12/19/24          
Trepeta   20,000       $ 12.00   12/28/15          
(1)   15,000       $ 12.00   08/22/17          
    5,000       $ 3.80   03/01/18          
    5,000       $ 6.50   03/02/19          
    5,000       $ 5.40   03/25/20          
    20,000       $ 5.00   04.07/20          
    10,000       $ 2.60   02/28/21          
    10,000       $ 6.10   02/28/21          
    5,000       $ 2.50   02/13/23          
    10,000       $ 3.80   03/01/23          
    150,000       $ 3.00   01/17/24          
    10,000       $ 5.90   03/01/24          
    10,000       $ 5.90   03/03/24          
    25,000       $ 5.00   07/16/24          

 

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    Option Awards       Stock Awards  
Name  

Number of

Securities

Underlying

Unexercised

Options(#)

Exercisable

 

Number of

Securities

Underlying

Unexercised

Options(#)

Unexercisable

 

Equity

Incentive Plan

Awards:

Number of

Securities

Underlying

Unexercised

Unearned

Options (#) 

 

 

Option

Exercise Price ($)

  Option Expiration Date  

Number of

Shares or

Units of

Stock That

Have Not

Vested (#)

 

Market

Value of

Shares or

Units of

Stock That

Have Not

Vested

 

Equity

Incentive

Plan

Awards:

Number

of

Unearned

Shares,

Units or

Other

Rights

That Have

Not

Vested

 

Equity

Incentive

Plan

Awards:

Market

or

Payout

Value of

Unearned

Shares,

Units or

Other Rights

That Have Not

Vested

 
Sean   5,000       $ 7.50   05/07/22          
Trepeta   5,000       $ 2.50   02/13/23          
(1) (2)   10,000       $ 5.90   03/03/24                  
    100,000           $ 5.00   12/19/2014                  
                                         
Thomas   25,000       $ 5.00   07/16/24          
Arnost   12,500       $ 4.50   07/10/19          
(3)   10,000       $ 5.90   03/03/24          
    25,000       $ 4.00   12/12/23          
    5,000       $ 7.50   05/07/22          
    5,000       $ 2.50   02/13/23          
    20,000       $ 6.00   12/20/16          
                                         
Paul   50,000       $ 4.50   06/11/18          
Bauresfeld   10,000       $ 5.90   03/03/24          
(1)   200,000       $ 5.00   07/15/19          
    100,000       $ 5.00   12/19/24          

________________

(1) All options contain cashless exercise provisions.
(2) Sean Trepeta owns warrants to purchase 15,000 shares at $5.00 per share which are not granted under a compensation plan, which warrants he purchased from the company as part of a private placement offering which was primarily sold to non-affiliated persons.
(3) Thomas Arnost owns 107,333 shares issuable upon conversion of outstanding notes, as well as 135,000 shares issuable upon conversion of certain letters of credit and 100,000 shares issuable upon exercise of warrants purchased in private placement offerings.

 

Employment Agreement of Executive Chairman

 

In December 2014, we entered into a three-year employment agreement with Thomas Arnost serving as Executive Chairman of the board. Mr. Arnost receives a monthly salary of $10,000 plus an annual grant of options for serving on the board of directors. In the event of his termination, by Mr. Arnost or by the company for cause, Mr. Arnost will receive his pay through the termination date. In the event that Mr. Arnost is terminated without cause, he shall be entitled to receive his salary paid through the end of the term of his agreement. Mr. Arnost may terminate the agreement at any time by giving three months prior written notice to our board of directors. Mr. Arnost will also be entitled to indemnification against all claims, judgments, damages, liabilities, costs and expenses (including reasonably legal fees) arising out of, based upon or related to his performance of services to us, to the maximum extent permitted by law.

 

Employment Agreements of Co-Chief Executive Officers

 

Each of the following executive officers is a party to an employment agreement with the company.

 

Name   Position   Monthly Salary (1)   Bonus  
               
Dean L. Julia  

Co-Chief Executive Officer

  $ 30,000   (2)  

Michael Trepeta

 

Co-Chief Executive Officer

  $ 30,000   (2)  

________________

(1) Compensation of each executive officer named in the table above has his monthly base salary increased by $2,000 each subsequent March 1st during the term of the agreement and any extensions thereof. The next scheduled salary increase to $32,000 per month is scheduled to occur on March 1, 2015.
(2) Annual bonuses are paid by us by the last business day of March for the preceding calendar (fiscal) year, except in the event of termination prior to the end of any fiscal year (other than termination for cause), a pro rata portion of the annual bonus shall be paid within 30 days of termination. In 2013, we approved amending the employment agreements of Messrs. Julia and Trepeta to provide that each officer may choose an annual bonus equal to 5% of pre-tax earnings for the most recently completed year before deduction of annual bonuses paid to officers or, in the event majority control of the company is acquired by a person or a group of persons during the prior fiscal year, the officer may choose to receive the aforementioned bonus or 1% of the control consideration paid by acquirer(s) to acquire majority control of the company.

 

41
 

 

A summary of each Executive’s employment agreement, as amended, is as follows:

 

Each executive’s employment agreement has a term of five years and automatically renews for a period of one year thereafter effective on March 1st of each new calendar year unless the employment agreement is terminated in accordance with its terms on or prior to December 30th of the prior calendar year. As of October 1, 2014, each executive’s employment agreement currently expires on February 28, 2019. Each executive may terminate his employment agreement upon written three-month notice.  In such event, we shall be relieved of all of our obligations under the agreement, except for payment of the executive’s base salary and annual bonus earned and unpaid through the effective date of termination, those obligations with respect to indemnification and director and officer insurance and severance pay as described below.

 

We may terminate the Executive’s employment for cause as defined in each agreement. In the event the employment agreement is terminated for cause, the executive’s base salary and any unearned annual bonus, severance pay and all benefits shall terminate immediately upon such discharge, and we shall have no further obligations to the executive except for payment and reimbursement for any monies due which right to payment or reimbursement accrued prior to such termination.

 

We may terminate the employment agreement upon the disability as defined in the agreement or death of the executive by giving written notice to the executive. In the case of disability, such termination will become effective immediately upon the giving of such notice unless otherwise specified by us. Upon any such termination, we shall be relieved of all our obligations under the executive’s employment, except for payment of the executive’s base salary and annual bonus earned and unpaid through the effective date of termination and severance pay.

 

In the event of termination by us of executive’s employment agreement without cause, then the executive shall be entitled to receive on the termination date termination pay of one-year base salary based upon the scheduled annual salary of each executive officer for the next contract year, plus the amount of bonuses paid or entitled to be paid to the executive for the current fiscal year or the preceding fiscal year, whichever is higher. In the event of termination, the executives will continue to receive all salary and benefits included in the employment agreement through the scheduled expiration date of said employment agreement prior to the acceleration of the termination date thereof.

 

We have agreed to defend and indemnify each Executive in his capacity as an officer against all claims, judgments, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of, based upon, or related to his performance of services to us, to the maximum extent permitted under law. We will also use our reasonable best efforts to include each Executive as an insured under all applicable directors’ and officers’ liability insurance policies maintained by us.

 

Each Executive is currently entitled to the following additional benefits:

 

·$2,000 per month pay raise on each March 1 during the term of the Agreement and any extension thereof;

 

·As an executive officer, the annual grant on March 1 of each year of ten-year stock options to purchase 10,000 shares at an exercise price equal to the then fair market value of our common stock as determined by our board of directors. As a director of the company, each Executive also receives as a board member the number of options granted annually to each other board member;

 

·Election to our board of directors and during the term of employment, the board’s nomination for re-election to the board;

 

·Paid disability insurance and term life insurance for the benefit of each Executive’s family in an amount fixed by our board of directors at a cost not to exceed $10,000 per annum;

 

·Use of company automobile with all related costs paid for by us;

 

·Health insurance; and

 

·Right to participate in any pensions of our company.

 

Upon the listing of our common stock on NYSE MKT, Mr. Julia’s employment agreement will be amended to remove the requirement that he be nominated for re-election to the board.

 

In the past, we agreed to compensate Dean Julia and Michael Trepeta with options to purchase Mobiquity Network Inc.’s common stock in the event such entity raised financing as a stand-alone enterprise for its operations. In order to terminate this arrangement, in January 2014, our board of directors approved an exchange of Mobiquity Network options previously issued Messrs. Julia and Trepeta for options to purchase 150,000 shares of our common stock at the then fair market value of our common stock, under our 2009 Stock Option Plan as described below.

 

42
 

 

Employment Agreement – Paul Bauersfeld

 

In December 2014, we entered into an employment agreement with Paul Bauersfeld, our Chief Technology Officer, who is an employee at will. Mr. Bauersfeld, as a full-time employee, is to be paid a salary at the rate of $25,000 per month. Upon the execution of the agreement, he received 10-year options to purchase 100,000 shares of our common stock vesting quarterly over a period of three years. For calendar 2015, he will be entitled to a bonus of $125,000 upon revenues of Mobiquity Networks achieving a minimum of $6 million in revenues and a further bonus of $125,000 for a total of $250,000 at such time as Mobiquity Network’s revenues achieve a minimum of $12 million, it being understood that any revenues which do not have a 30% margin shall not count toward these totals. The foregoing compensatory arrangements with Mr. Bauersfeld is in addition to the non-statutory stock options to purchase 260,000 shares of our common stock previously granted to Mr. Bauersfeld. All options granted to Mr. Bauersfeld will become immediately vested in the event of a change of control of our company or sale of substantially all of our assets. In the event we terminate Mr. Bauersfeld without cause. Mr. Bauersfeld is entitled to receive six months’ severance pay.

 

Employment Agreement – Sean Trepeta

 

In December 2014, Mobiquity Networks entered into an employment agreement with Sean Trepeta, to serve as President of Mobiquity Networks as an employee at will. Mr. Trepeta, as a full-time employee, is to be paid a salary at the rate of $20,000 per month. Upon the execution of the agreement, he received 10-year options to purchase 150,000 shares of our common stock vesting quarterly over a period of three years. For calendar 2015, he will be entitled to a bonus of $125,000 upon revenues of Mobiquity Networks achieving a minimum of $6 million in revenues and a further bonus of $125,000 for a total of $250,000 at such time as Mobiquity Network’s revenues achieve a minimum of $12 million, it being understood that any revenues which do not have a 30% margin shall not count toward these totals. All options granted to Mr. Trepeta will become immediately vested in the event of a change in control of our Company or sale of substantially all of our assets. In the event we terminate Mr. Trepeta without cause, after six months of continued employment under the employment agreement, Mr. Trepeta is entitled to receive three months’ severance pay.

 

Employment Arrangements

 

Sean McDonnell, our Chief Financial Officer, is an employee at will and is currently receiving a salary of $132,000 per annum.

 

Director Compensation

 

Stock Options

 

Stock options and equity compensation awards to our non-employee / non-executive directors are at the discretion of our board of directors. See Director Compensation table below.

 

Cash Compensation

 

Our non-employee / non-executive director is eligible to receive a fee of $500 to be paid for attending each board of directors meeting; however, no fees were paid in 2013. Mr. Arnost received consulting fees of $30,000 in fiscal 2013, $10,000 of which pertained to his services in fiscal 2012. Mr. Arnost was a non-executive officer of our company until December 5, 2014 at which time he became Executive Chairman of the board of our company.

 

Travel Expenses

 

All directors shall be reimbursed for their reasonable out of pocket expenses associated with attending the meeting.

 

43
 

The following table shows the overall compensation earned for the 2013 fiscal year with respect to each non-employee and non-executive director as of December 31, 2013.

 

    DIRECTOR COMPENSATION  
Name and Principal Position   Fees Earned
or Paid in
Cash ($)
    Stock
Awards ($)
   

Option
Awards

($) (1)

     

Non-Equity Incentive Plan Compensation

($) (2)

      Nonqualified Deferred Compensation Earnings ($)      

All Other Compensation

($) (3)

    Total ($)  
                                                         
Thomas Arnost, Director (4)   $ 30,000           $ 43,857                   2,463     $ 76,320  

Robert Hussey, Former Director (4)

  $        –   $ 37,407                     $ 37,407  
Domenico Iannucci, Former Director (4)               $ 6,450                       $ 6,450  

____________________

(1) The restricted stock awards and options presented in this table for 2013 reflect the full grant date fair value as if the total dollar amount were earned in the year of grant. As a general rule, for time-in-service-based options, the company will immediately expense any restricted stock awards and option or portion thereof which is vested upon grant, while expensing the balance on a pro rata basis over the remaining vesting term of the restricted stock awards and options.
(2) Excludes awards or earnings reported in preceding columns.
(3) Includes all other compensation not reported in the preceding columns, including (i) perquisites and other personal benefits, or property, unless the aggregate amount of such compensation is less than $10,000; (ii) any “gross-ups” or other amounts reimbursed during the fiscal year for the payment of taxes; (iii) discounts from market price with respect to securities purchased from the company except to the extent available generally to all security holders or to all salaried employees; (iv) any amounts paid or accrued in connection with any termination (including without limitation through retirement, resignation, severance or constructive termination, including change of responsibilities) or change in control; (v) contributions to vested and unvested defined contribution plans; (vi) any insurance premiums paid by, or on behalf of, the company relating to life insurance for the benefit of the director; (vii) any consulting fees earned, or paid or payable; (viii) any annual costs of payments and promises of payments pursuant to a director legacy program and similar charitable awards program; and (ix) any dividends or other earnings paid on stock or option awards that are not factored into the grant date fair value required to be reported in a preceding column.
(4) On February 13, 2013, our board of directors granted each of our directors, options to purchase 5,000 shares of our common stock, exercisable at $2.50 per share through February 13, 2023. Messrs. Arnost and Iannucci were directors at the time of the aforementioned grant. On December 13, 2013, our board of directors granted Mr. Arnost options to purchase 25,000 shares exercisable at $4.00 per share over a period of ten years. On the same date, Mr. Hussey received identical options to those issued to Mr. Arnost, subject to his acceptance to serve as a board member, except that Mr. Hussey’s options were not scheduled to vest until December 1, 2014. However, when Mr. Hussey resigned from the board in February 2014, we agreed to vest his options.

 

Employee Benefit and Consulting Services Compensation Plans

 

On January 3, 2005, we established an Employee Benefit and Consulting Services Compensation Plan (the “2005 Plan”) covering 200,000 shares, which 2005 Plan was ratified by our stockholders on February 9, 2005.  On August 12, 2005, the company’s stockholders approved a 200,000 share increase in the 2005 Plan to 400,000 shares. On August 28, 2009, our board of directors adopted the “2009 Plan” which is identical to the 2005 Plan with 400,000 shares under the 2009 Plan. In September 2013, the company’s stockholders ratified a board amendment to increase the number of shares covered by the 2009 Plan to 1,000,000 shares. All references to “the Plans” include the 2005 Plan and 2009 Plan. As the 2005 and 2009 Plans are identical other than the number of shares covered by each Plan, it is the company’s intention to first utilized the number of shares issuable (available) under the 2005 Plan prior to issuing shares under the 2009 Plan.

 

Administration

 

Our board of directors administers the Plans, has the authority to determine and designate officers, employees, directors and consultants to whom awards shall be made and the terms, conditions and restrictions applicable to each award (including, but not limited to, the option price, any restriction or limitation, any vesting schedule or acceleration thereof, and any forfeiture restrictions). The board may, in its sole discretion, accelerate the vesting of awards.

 

Types of Awards

 

The Plans are designed to enable us to offer certain officers, employees, directors and consultants of us and our subsidiaries equity interests in us and other incentive awards in order to attract, retain and reward such individuals and to strengthen the mutuality of interests between such individuals and our stockholders.  In furtherance of this purpose, the Plans contain provisions for granting non-statutory stock options and incentive stock options and common stock awards.

 

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Stock Options. A “stock option” is a contractual right to purchase a number of shares of common stock at a price determined on the date the option is granted. An incentive stock option is an option granted under the Internal Revenue Code of 1986 to our employees with certain tax advantages to the grantee over non-statutory stock options. The option price per share of common stock purchasable upon exercise of a stock option and the time or times at which such options shall be exercisable shall be determined by our board of directors or the compensation committee thereof at the time of grant. Such option price in the case of incentive stock options shall not be less than 100% of the fair market value of the common stock on the date of grant and may be granted below fair market value in the case of non-statutory stock options. Incentive stock options granted to owners of 10% or more of our common stock must be granted at an exercise price of at least 110% of the fair market value of our common stock and may not have a term greater than five years. Also, the value of incentive options vesting to any employee cannot exceed $100,000 in any calendar year. The option price of our options must be paid in cash, money order, check or common stock of the company.  The non-statutory stock options may also contain at the time of grant, at the discretion of the board, certain other cashless exercise provisions. These cashless exercise provisions are included in the currently outstanding non-statutory stock options granted by our board of directors or the compensation committee thereof.

 

Options shall be exercisable at the times and subject to the conditions determined by our board of directors or the compensation committee thereof at the date of grant, but no option may be exercisable more than ten years after the date it is granted. If the optionee ceases to be an employee of our company for any reason other than death, any incentive stock option exercisable on the date of the termination of employment may be exercised for a period of thirty days or until the expiration of the stated term of the option, whichever period is shorter. In the event of the optionee’s death, any incentive stock option exercisable at the date of death may be exercised by the legal heirs of the optionee from the date of death until the expiration of the stated term of the option or six months from the date of death, whichever event first occurs.  In the event of disability of the optionee, any incentive stock options shall expire on the stated date that the Option would otherwise have expired or 12 months from the date of disability, whichever event first occurs.  The termination and other provisions of a non-statutory stock option shall be fixed by the board of directors at the date of grant of each respective option.

 

Common Stock Award. Common stock awards are shares of common stock that will be issued to a recipient at the end of a restriction period, if any, specified by the board if he or she continues to be an employee, director or consultant of us. If the recipient remains an employee, director or consultant at the end of the restriction period, the applicable restrictions will lapse and we will issue a stock certificate representing such shares of common stock to the participant. If the recipient ceases to be an employee, director or consultant of us for any reason (including death, disability or retirement) before the end of the restriction period unless otherwise determined by the board, the restricted stock award will be terminated.

  

As of December 22, 2014, we granted under the Plans a total of 1,472,000 options and outside the Plans a total of 228,000 options or a total of options to purchase 1,700,000 shares of our common stock. The board has granted options with varying terms.

 

It is not possible to predict the individuals who will receive future awards under the Plans or outside the Plans or the number of shares of common stock covered by any future award because such awards are wholly within the discretion of our board of directors or the compensation committee thereof. The table below contains information as of December 22, 2014 on the known benefits provided to certain persons and group of persons who own options under or outside the Plans. 

                   
   

Number of Shares

Subject to Options

    Range of Exercise Price ($) per Share    

Value of

Unexercised Options at

Dec. 22, 2014 (1)

 
Dean L. Julia, Co-CEO     320,000       2.50 – 12.00     $ 56,000  
Michael D. Trepeta, Co-CEO     320,000       2.50 – 12.00     $ 56,000  
Sean McDonnell, Chief Financial officer     30,000       3.50 – 5.00     $  
Sean Trepeta, President, Mobiquity Networks     20,000       2.50 – 5.90     $ 3,300  
Thomas Arnost, Executive Chairman     110,000       2.50 – 6.00     $ 3,300  
Paul Bauersfeld     260,000       4.50-5.90        
Six Executive Officers as a group     800,000       2.50 – 12.00     $ 39,770  
Non-Executive Officer, Employees and Consultants     648,000       1.00 – 12.00     $    

________________

N/A Not applicable.
(1) Value is normally calculated by multiplying (a) the difference between the market value per share at period end (i.e. $3.30 based upon a last sale on (or the last trade date before) December 22, 2014) and the option exercise price by (b) the number of shares of common stock underlying the option.

 

In the past, the company has granted certain employees and consultants, stock awards for services for the prior year with vesting to occur after the passage of an additional 12 months. These awards totaled 4,500 Shares for 2008, subject to continued services with the company through December 31, 2009. These awards totaled 5,100 Shares for 2009 subject to continued services with the company through December 31, 2010. These awards totaled 10,500 Shares for 2010 subject to continued services with the company through December 31, 2011. These awards totaled 4,500 shares for 2011, subject to continued services with the company through December 31, 2012. A total of 20,350 shares were issued under the 2005 Plan pursuant to the stock award program described above (net of cancellations). No stock awards were granted in fiscal 2012 or fiscal 2013.

 

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Eligibility

 

Our officers, employees, directors and consultants of Mobiquity and our subsidiaries are eligible to be granted stock options, and common stock awards.

 

Termination or Amendment of the Plans

 

The board may at any time amend, discontinue, or terminate all or any part of the Plans, provided, however, that unless otherwise required by law, the rights of a participant may not be impaired without his or her consent, and provided that we will seek the approval of our stockholders for any amendment if such approval is necessary to comply with any applicable federal or state securities laws or rules or regulations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

 

We describe below all transactions and series of similar transactions, other than compensation arrangements, during our last three fiscal years, to which we were a party or will be a party in which:

 

·the amounts exceeded or will exceed $120,000; and

 

·any of our directors, executive officers or holders of more than 5% of our capital stock, or any member of the immediate family of the foregoing persons, had or will have a direct or indirect material interest.

 

Compensation arrangements for our directors and named executive officers are described elsewhere in this prospectus.

 

Sales and Purchases of Securities

 

From January 1, 2013 through February 28, 2014, we raised approximately $7.7 million in gross proceeds from the sale of our common stock at $3.00 per share. Each investor received 50% matching warrants, exercisable at $5.00 per share through December 15, 2017. Thomas Arnost, Sean Trepeta and Sean McDonnell, officers and directors of our company, purchased $200,000, $90,000 and $50,000, respectively, of securities pursuant to said offering. In August 2013, Sean Trepeta also exercised warrants to purchase 10,000 shares of our common stock at an exercise price of $3.00 per share.

 

Clyde Berg, a greater than 5% stockholder our company, made the following purchases of securities:

 

Date Dollar Amount Description of Securities
     
May 2011 $ 405,000 90,000 shares of common stock and 180,000 warrants at exercise prices ranging from $5.00 to $6.00 per share.
April 2012    270,000 Exercised 90,000 warrants at a reduced price of $3.00 per share
April 2013    150,000 50,000 shares of common stock and 25,000 warrants exercisable at $5.00 per share.
November 2013    500,000 166,667 shares and warrants to purchase 83,334 shares at $5.00 per share
January 2014*    200,000 66,667 shares and 33,334 warrants exercisable at $5.00 per share
December 2014    150,000 Exercised 50,000 warrants at $3.00 per share

 

* The January 2014 purchase was made by the Clyde Berg Trust in which Mr. Berg has no reported pecuniary interest.

 

In November 2014, Carl and Mary Ann Berg 2011 CRT, Carl Berg Trustee, loaned us $1,000,000 pursuant to a two-year unsecured loan. This loan is repayable in November 2016 with interest at the rate of 4% per annum. Carl Berg is the brother of Clyde Berg. In December 2014, the Clyde Berg 2011 CRT with Carl Berg as Trustee, loaned us $1,000,000 pursuant to a two-year unsecured loan. This loan is repayable in December 2016 with interest at the rate of 4% per annum. Carl Berg is the brother of Clyde Berg. We have an agreement for an additional $500,000 to be loaned to us by one of the aforementioned trusts in December 2014 in exchange for a two-year promissory note in the amount of $500,000 bearing interest at the rate of 4% per annum. Carl Berg is the brother of Clyde Berg. As of December 30, 2014, the additional $500,000 has not been paid to us. However, on December 29, 2014, Clyde Berg’s daughter loaned us $50,000 pursuant to a two-year note. The principal and accrued interest thereon is convertible at any time by the noteholder into shares of common stock at a conversion price of $5.00 per share. For every $10 of principal and accrued interest thereon converted, the noteholder will also receive a five-year warrant to purchase one share of common stock at an exercise price of $10 per share.

 

Agreement with Carl E. Berg

 

On December 15, 2014, we entered into a letter agreement with Carl E. Berg. The agreement recognized that Carl and Mary Ann Berg 2011 CRT, Carl Berg Trustee, and Clyde Berg 2011 CRT, Carl Berg Trustee, will have provided $2.5 million of unsecured loans to us between November and December 2014. Pursuant to said letter agreement, we agreed that these unsecured loans may be sold, assigned or transferred to Clyde J. Berg, Carl E. Berg and/or Kara Ann Berg or any entity controlled by any of the aforementioned individuals in an combination of the aforementioned persons or entities. This letter agreement provides that if Mr. Carl E. Berg or any permitted transferee purchases or otherwise acquires the $2.5 million of unsecured notes, that these notes shall be convertible at any time prior to maturity or redemption thereof at a conversion price of $5.00 per share. For every $10.00 in principal converted, a five-year warrant to purchase one additional share of common stock at an exercise price of $10.00 per share will be issued. In the event that $2.5 million is timely converted on or before January 30, 2015, we will also issue as a bonus warrants to purchase 100,000 shares of common stock, exercisable at $5.00 per share over a five year period from the date of issuance.. We also agreed to grant Mr. Berg the right to lend us up to an additional $3.75 million of optional loans on the same terms and conditions described above on or before February 15, 2015. In the event such optional loan is converted into common stock on or before March 31, 2015, we will also issue as an additional bonus warrants to purchase up to 100,000 shares of common stock at an exercise price of $5.00 per share from the date of issuance. We also agreed to grant him the right to lend us up to an additional $3.75 million on the same terms and conditions on or before May 15, 2015 and in the event such additional optional loan is converted into common stock on or before June 30, 2015, we will also issue bonus warrants to Mr. Berg to purchase up to 100,000 shares of common stock at an exercise price of $5.00 per share over a period of five years from the date of issuance. All bonus warrants contain cashless exercise provisions. The 200,000 bonus warrants described above assumes full funding of the $7.5 million optional loans and 100% conversion on or before the dates described above. In the event the amount of optional loans is less than an aggregate of $3.75 million converted prior to March 31, 2015 and an additional $3.75 million converted prior to June 30, 2015, then the bonus warrants to purchase an aggregate of 200,000 shares will be proportionately reduced. In summary, in the event all $10 million is provided to us, including an additional $7.5 million on a timely basis, subject to our right of acceptance or rejection in our sole discretion, and all loans are timely converted on or before the dates described above, we will have issued 2 million shares of common stock, 1 million warrants to purchase shares of common stock at an exercise price of $10 per share, plus five year bonus warrants to purchase 300,000 shares of our common stock at an exercise price of $5 per share with cashless exercise provisions pertaining to the bonus warrants. Also, in the event the $10 million of funding is completed, Mr. Berg has the right to appoint one independent member to the board, which nominee will be subject to normal background checks.

 

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Agreements and Transactions with Thomas Arnost, Executive Chairman

 

In June 2012, we issued a convertible promissory note in the principal amount of $350,000 to TCA Global Credit Master Fund, an institutional lender, secured by all of our assets. In December 2012, Thomas Arnost, one of our directors and currently Executive Chairman, purchased from TCA Global Credit Master Fund, our then indebtedness in the amount of $350,000. Subsequently, Mr. Arnost agreed with us to fix the conversion price of the note at $3.00 per share, extend the due date of the note to December 31, 2015, subject to Mr. Arnost’s right to call the note at any time in his sole discretion, and increase the interest rate to 15% per annum. We have the right to prepay the note, subject to Mr. Arnost’s right of conversion. In December 2013, Mr. Arnost gifted promissory notes in the amount of $28,000 to his children, who then converted the principal of these notes into common stock at $3.00 per share. As of the date of this prospectus, we owe Mr. Arnost $322,000 in principal under the secured notes.

 

In July 2014, we entered into an amendment to our master lease agreement with Simon Property Group. This amendment provides for us to expand our location-based mobile mall network footprint to 240 Simon malls across the United States. Our agreement with Simon expires on December 31, 2017. Our agreement with Simon requires the company to maintain letters of credit for each calendar year under the agreement represented by the minimum amount of rent due for such calendar year. For 2015, the minimum rent of $2.7 million has been secured through two bank letters of credit, one of which was issued in the amount of $1,350,000 utilizing the funds of a non-affiliated stockholder and the second letter of credit was obtained in the same amount through the funds of Thomas Arnost, our Executive Chairman. In the event Simon draws down upon either letter of credit, we have 30 days after the draw down to obtain replacement letters of credit. Each person who secured our letters of credit has the opportunity to notify us that they wish to turn the cash funds securing the letters of credit over to us and to convert such funds into our common stock at a conversion price of $10 per share. In the event Mr. Arnost were to elect to convert his letter of credit into shares of our common stock, he would receive 135,000 shares of our common stock. Also, each person who issued the letter of credit is receiving quarterly, while the letters of credit are outstanding, options to purchase 12,500 shares of our common stock, exercisable at the prevailing market price per share on the date of grant and interest at the rate of 6% per annum on the monies that they have had to set aside in their bank accounts and are unable to have access to such monies.

 

Executive Compensation

 

Please see “Executive Compensation” for information regarding compensation of directors and executive officers.

 

Employment Agreements

 

We have entered into employment agreements with Thomas Arnost, Executive Chairman, Dean L. Julie, Co-Chief Executive Officer and Michael D. Trepeta, Co-Chief Executive Officer. These agreements also provide for us to indemnify such officers and/or directors to the maximum extent permitted by law. We also carry directors and officers liability insurance which protects each of our officers and directors up to the policy maximum of $4.0 million, subject to a deductible of $100,000 for securities claims and $75,000 for other claims. For more information regarding our employment agreements and indemnification provisions, see “Executive Compensation.”

 

Policies for Approval of Related Party Transactions

 

Our board of directors reviews and approves transactions with directors, officers and holders of 5% or more of our voting securities and their affiliates, or each, a related party. Prior to this offering, the material facts as to the related party’s relationship or interest in the transaction are disclosed to our board of directors prior to their consideration of such transaction. In connection with this offering, we intend to adopt a written related party transactions policy that such transactions must be approved by our audit committee or another independent body of our board of directors.

 

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PRINCIPAL STOCKHOLDERS

 

As of the date of this prospectus, we have outstanding 6,473,241 shares of common stock. The only persons of record who presently hold or are known to own (or believed by the company to own) beneficially more than 5% of the outstanding shares of such class of stock is listed below. The following table also sets forth certain information as to holdings of our common stock of all officers and directors individually, and all officers and directors as a group.

 

Shares of common stock which an individual or group has a right to acquire within 60 days pursuant to the exercise or conversion of options, warrants or other similar convertible or derivative securities are deemed to be outstanding for the purpose of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table.

 

Name and Address of Beneficial Owner (1)

 

Officers and Directors:

Number of Common Shares Percentage (%)
     
Thomas Arnost (2) 607,334 8.8
Michael D. Trepeta (3) 426,640 6.3
Dean L. Julia (3) 423,690 6.2
Anthony Abbruzzese (4) 253,833 3.4
Sean Trepeta (5) 164,167 2,4
Sean McDonnell (6) 55,011 *
Paul Bauersfeld (7) 145,000 2.2
Mark Meulenberg (8) 49,100 *
Richard Suth (9) 105,000 1.2
All directors and officers as a group (nine persons) (10) 2,289,775 28.7
Clyde Berg (11) 680,001 10.3

________________

*Represents less than 1%

(1) Beneficial ownership is determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and is generally determined by voting powers and/or investment powers with respect to securities.  Unless otherwise noted, all of such shares of common stock listed above are owned of record by each individual named as beneficial owner and such individual has sole voting and dispositive power with respect to the shares of common stock owned by each of them.  Such person or entity’s percentage of ownership is determined by assuming that any options or convertible securities held by such person or entity, which are exercisable within sixty (60) days from the date hereof, have been exercised or converted as the case may be, but not for the purposes of determining the number of outstanding shares held by any other named beneficial owner. All addresses are c/o Mobiquity Technologies, Inc. 600 Old Country Road, Suite 541, Garden City, NY 11530.

(2)

 

Includes 150,000 shares, warrants to purchase 100,000 shares, options to purchase 115,000 shares, a note in the principal amount of $322,000 convertible into 107,333 shares and 135,000 shares issuable in the event Mr. Arnost agrees to convert $1,350,000 issued pursuant to a letter of credit into our common stock.
(3) Mr. Trepeta’s beneficial ownership includes 101,640 shares and options to purchase 325,000 shares. Mr. Julia’s beneficial ownership includes 98,690 shares and options to purchase 325,000 shares.
(4) Includes 141,833 shares owned directly by Mr. Abbruzzese and his spouse, 25,000 shares owned by a trust and warrants/options to purchase 87,000 shares.
(5) Includes 100,000 shares and options/warrants to purchase 64,167 shares, which excludes options to purchase 145,833 shares which won’t vest prior to May 1, 2015.
(6) Includes 16,667 shares and options/warrants to purchase 38,334 shares.
(7) Includes 10,000 shares and options to purchase 135,000 shares which excludes 135,000 shares which will not vest until at least May 1, 2015.
(8) Includes 19,100 shares owned directly by him and options to purchase 30,000 shares to be granted to Mr. Meulenberg upon his appointment to the board and committees thereof as of the date of this prospectus.
(9) Includes 50,000 shares and warrants to purchase 25,000 shares currently owned by Mr. Suth plus options to purchase 30,000 shares to be granted to Mr. Suth upon his appointment to the board as of the date of this prospectus.
(10) Includes 687,930 shares of common stock and options/warrants to purchase 1,274,501 shares, notes convertible into 107,333 shares and 135,000 shares issuable in the event Mr. Arnost agrees to convert $1,350,000 issued pursuant to a letter of credit into our common stock.
(11) Includes 531,667 shares and warrants to purchase 148,334 shares. Mr. Berg’s beneficial ownership excludes 66,667 shares and 33,333 warrants owned in a charitable remainder trust in which Mr. Berg has no pecuniary interest or right to vote.

 

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DESCRIPTION OF CAPITAL STOCK

 

The following is a summary of all material characteristics of our capital stock as set forth in our certificate of incorporation, as amended and bylaws, as amended. The summary does not purport to be complete and is qualified in its entirety by reference to our certificate of incorporation, as amended and bylaws, as amended, all of which are incorporated by reference as exhibits to the registration statement in connection with our public offering and the applicable provisions of New York law.

 

General

 

Our authorized capital stock consists of 200,000,000 shares of common stock, par value $0.0001 per share, and 5,000,000 shares of preferred stock, par value $0.0001 per share. The discussion that follows gives effect to the completion of an assumed 1-for-10 reverse stock split to be effected prior to the closing of this offering.

 

Common Stock

 

Outstanding Shares

 

As of the date of this prospectus, we have 6,473,241 shares of common stock outstanding. This amount does not give effect to the following:

 

·               shares of common stock to be sold in this offering, which will increase to               shares in the event that the underwriter exercises its entire underwriter’s over-allotment option;
   
·2,307,391 common shares issuable upon exercise of outstanding warrants to purchase our common shares with a weighted average exercise price of $5.90 per share as of December 10, 2014;
   
·1,448,000 common shares issuable upon exercise of outstanding options to purchase our common shares with a weighted average exercise price of $5.20 per share as of December 10, 2014;
   
 ·

excludes up to 10,000 shares of common stock and warrants to purchase up to 5,000 shares of common stock at an exercise price of $10 per share pursuant to the terms of a $50,000 convertible note issued on December 29, 2014, noting that the foregoing amounts do not include the possible issuance of shares and warrants upon conversion of accrued interest due and payable on said note;

   
 ·

excludes up to 2,000,000 shares of common stock, warrants to purchase up to 1,000,000 shares of common stock at $10.00 per share and additional warrants to purchase up to 300,000 shares at $5.00 per share in the event that debt financing is provided to us of up to $10 million as described under “Certain Relationships and Related Party Transactions,” $2 million of which has been received by us and an additional $500,000 has been agreed to be paid to us in December 2014, noting that we have the right to reject any debt financing that is provided to us over the original $2.5 million;

   
·50,000 common shares issuable upon conversion of outstanding convertible notes at $5.00 per share, 107,333 shares issuable upon conversion of notes at $3.00 per share and 270,000 shares issuable upon conversion of $2.7 million of letters of credit provided on our behalf by third parties, convertible at $10.00 per share; and
   
·assumes no exercise by the underwriter of its option to purchase up to an additional               common shares to cover over-allotments, if any.

 

Voting Rights

 

Each holder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders.

 

Dividends

 

Subject to preferences that may be applicable to any then-outstanding shares of preferred stock, if any, and any other restrictions, holders of common stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by the company’s board of directors out of legally available funds. The company and its predecessors have not declared any dividends in the past. Further, the company does not presently contemplate that there will be any future payment of any dividends on common stock.

 

Liquidation

 

In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preferences that may be granted to the holders of any then outstanding shares of preferred stock.

 

 

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Rights and Preferences

 

Holders of common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock, which we may designate and issue in the future.

 

Fully Paid and Nonassessable

 

All of our outstanding shares of common stock are, and the shares of common stock to be issued pursuant to this offering, when paid for, will be fully paid and nonassessable.

 

Preferred Stock

 

We are authorized to issue 5,000,000 shares of preferred stock, $.0001 par value, in series with rights, preferences and privileges as determined by resolution of our board of directors. As of the date of this prospectus, no shares of preferred stock are issued and outstanding.

 

Anti-Takeover Provisions

 

Our Articles of Incorporation and Bylaws contain provisions that may make it more difficult for a third party to acquire or may discourage acquisition bids for us. Our board of directors may, without action of our stockholders, issue authorized but unissued common stock and preferred stock. The issuance of additional shares to certain persons allied with our management could have the effect of making it more difficult to remove our current management by diluting the stock ownership or voting rights of persons seeking to cause such removal. The existence of unissued preferred stock may enable our board of directors, without further action by the stockholders, to issue such stock to persons friendly to current management or to issue such stock with terms that could render more difficult or discourage an attempt to obtain control of us, thereby protecting the continuity of our management. Our shares of preferred stock could therefore be issued quickly with terms that could delay, defer, or prevent a change in control of us, or make removal of management more difficult.

 

Stock Options

 

As of the date of this prospectus, we have outstanding options to purchase an aggregate of 1,448,000 shares of our common pursuant to our stock option plans and options granted outside of such plans, at a weighted-average exercise price of $5.20.

 

Warrants

 

As of the date of this prospectus, we have outstanding warrants to purchase an aggregate of 2,307,391 shares of our common stock at a weighted-average exercise price of $5.90 per share.

 

Listing

 

Our common stock is listed on the OTCQB and we intend to apply to list our common stock on NYSE MKT, with trading expected to commence concurrently with the effectiveness of this offering.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s address is 17 Battery Place, 8th Floor, New York, New York 10004.

 

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SHARES ELIGIBLE FOR FUTURE SALE

 

Future sales of substantial amounts of common stock in the public market, including shares issued upon exercise of outstanding options and warrants, or the conversion of debt, or the perception that such sales may occur, could adversely affect the market price of our common stock and also could adversely affect our future ability to raise capital through the sale of our common stock or our other equity-related securities at times and prices we believe appropriate. All of outstanding shares described herein are currently available for sale pursuant to Rule 144 of the Securities Act or otherwise as free trading shares, except for restricted shares totaling               shares sold by the company in the last six months prior to this offering and ____ shares held by officers and/or directors which are subject to lock-up agreements for a period of 180 days following the completion of this offering. Sales of our common stock in the public market or the perception that those sales may occur, could adversely affect the prevailing market price at such time and our ability to raise equity capital in the future.

 

Upon the closing of this offering, based on our 6,473,241 shares outstanding as of the date of this prospectus,               shares of our common stock will be outstanding, or               shares of common stock if the underwriter elects to exercise its option to purchase additional shares in full. All of the shares of common stock sold in our public offering will be freely tradable without restriction or further registration under the Securities Act unless these shares are held by our “affiliates,” as that term is defined in Rule 144 under the Securities Act.

 

We may issue shares of our common stock from time to time for a variety of corporate purposes, including in capital raising activities through future public offerings or private placements, in connection with the exercise of stock options and warrants, the conversion of debt into common stock and any other issuances relating to our employee benefit plans, and as consideration for future acquisitions, investments or other purposes. The number of shares of our common stock that we may issue may be significant, depending on the events surrounding such issuances. In some cases, the shares we issue may be freely tradable without restriction or further registration under the Securities Act. In other cases, we may grant registration rights covering the shares issued in connection with these issuances, in which case the holders of the common stock will have the right, under certain circumstances, to cause us to register any resale of such shares to the public.

 

Lock-Up Agreements

 

In connection with our offering, our executive officers and directors have entered into lock-up agreements with the underwriter and agreed, subject to certain exceptions, not to dispose of or hedge any of their common stock or securities convertible into or exchangeable or exercisable for shares of common stock for a period of 180 days, except with the prior written consent of the underwriter.

 

Rule 144

 

In general, under Rule 144 as currently in effect, now that we have been subject to the public company reporting requirements of Section 13 or Section 15(d) of the Exchange Act, for at least 90 days, a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months, including the holding period of any prior owner other than our affiliates, is entitled to sell those shares without complying with the manner of sale, volume limitation or notice provisions of Rule 144, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of any prior owner other than our affiliates, then that person would be entitled to sell those shares without complying with any of the requirements of Rule 144.

 

In general, under Rule 144 as currently in effect, our affiliates or persons selling shares on behalf of our affiliates are entitled to sell upon expiration of the lock-up agreements described above, within any three-month period, a number of shares that does not exceed the greater of:

 

·1% of the number of shares of our common stock then outstanding; or
   
·the average weekly trading volume of our common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that sale.

 

Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us. To the extent that shares were acquired from one of our affiliates, a person’s holding period for the purpose of effecting a sale under Rule 144 would commence on the date of transfer from the affiliate.

 

Stock Options

 

We have filed a registration statement on Form S-8 under the Securities Act, which registered the issuance of all shares of our common stock authorized under our 2005 stock option plan covering 400,000 shares and we intend to file a form S-8 registration statement to register the 1,000,000 shares underlying our 2009 stock option plan. Shares covered by such registration statement are eligible for sale in the public market, subject to vesting restrictions and, to the provisions of the lock-up agreements described above and Rule 144 limitations applicable to affiliates.

 

Warrants

 

As of the date of this prospectus, warrants entitling holders to purchase an aggregate of 2,307,391 shares of our common stock at a weighted-average exercise price of $5.90 per share will be outstanding. Such shares issued upon exercise of the warrants may be able to be sold after the expiration of the lock-up periods described above subject the requirements of Rule 144 described above.

 

52
 

 

UNDERWRITING

 

Subject to the terms and conditions set forth in an underwriting agreement between us and National Securities Corporation, the underwriter of this offering, we have agreed to sell to the underwriter               shares of our common stock.

 

We have agreed to indemnify the underwriter against certain liabilities, including liabilities under the Securities Act, or to contribute to payments the underwriters may be required to make in respect of those liabilities.

 

The underwriter is offering the shares, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel, including the validity of the shares, and other conditions contained in the underwriting agreement, such as the receipt by the underwriter of officer’s certificates and legal opinions. The underwriter reserves the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.

 

Commissions and Discounts

 

The underwriter proposes initially to offer the shares to the public at the public offering price set forth on the cover page of this prospectus and to dealers at that price less a concession not in excess of $              per share. After the initial offering, the public offering price, concession or any other term of the offering may be changed.

 

The following table shows the public offering price, underwriting discount and proceeds before expenses to us. The information assumes either no exercise or full exercise by the underwriter of its option to purchase additional shares.

 

    Per Share   Without Option   With Option
Public offering price   $   $   $
Underwriting discount   $   $   $
Proceeds, before expenses, to the company   $   $   $

 

We will reimburse the underwriter for its expenses related to this offering, including due diligence costs, road show expenses and legal fees, up to a maximum of $150,000. We provided an advance of $25,000 to the underwriter to be applied against its anticipated actual out of pocket expenses, which advance will be reimbursed to us to the extent it is not used to pay the underwriter’s actual out of pocket expenses if this offering is terminated.

 

Option to Purchase Additional Shares

 

We have granted an option to the underwriter, exercisable for 30 days after the date of this prospectus, to purchase up to             additional shares at the public offering price, less the underwriting discount. If the underwriter exercises this option, the underwriter will be obligated, subject to conditions contained in the underwriting agreement, to purchase the number of additional shares.

 

Underwriter Warrant

 

At the closing of this offering, we will issue to the underwriter for a $100 of consideration a warrant to purchase that number of shares of our common stock equal to four percent (4%) percent of the aggregate number of shares of common stock sold in this offering.  Such underwriter’s warrant shall have an exercise price equal to 120% of the offering price, or $ per share, terminate five (5) years from effectiveness of the registration statement of which this prospectus is a part, have a cashless exercise provision and will not be subject to redemption by us.  Such underwriter’s warrants will be subject to FINRA Rule 5110(g)(1) in that, except as otherwise permitted by FINRA rules, for a period of 180 days following the date of effectiveness of the registration statement, of which this prospectus forms a part, neither the underwriter’s warrants nor any warrant shares issued upon exercise of the underwriter’s warrants shall be (A) sold, transferred, assigned, pledged, or hypothecated, or (B) the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person.

 

No Sales by Officers and Directors

 

Our executive officers and directors have agreed not to sell or transfer any of our common stock or securities convertible into, exchangeable for, exercisable for, or repayable with our common stock, for 180 days after the date of this prospectus without first obtaining the written consent of the underwriter.

 

Exchange Listing

 

We intend to apply to list our common stock on the NYSE MKT with such listing to commence upon the effectiveness of this offering. No assurances can be given that our application will be approved.

 

Price Stabilization, Short Positions

 

Until the distribution of the shares is completed, SEC rules may limit underwriter and selling group members from bidding for and purchasing our common stock. However, the underwriter may engage in transactions that stabilize the price of the common stock, such as bids or purchases to peg, fix or maintain that price.

 

53
 

 

In connection with the offering, the underwriter may purchase and sell our common stock in the open market. These transactions may include short sales, purchases on the open market to cover positions created by short sales and stabilizing transactions. Short sales involve the sale by the underwriter of a greater number of shares than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriter’s option to purchase additional shares described above. The underwriter may close out any covered short position by either exercising their option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to close out the covered short position, the underwriter will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the option granted to them. “Naked” short sales are sales in excess of such option. The underwriter must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriter is concerned that there may be downward pressure on the price of our common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of shares of common stock made by the underwriter in the open market prior to the completion of the offering.

 

Similar to other purchase transactions, the underwriter’s purchases to cover the syndicate short sales may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. The underwriter may conduct these transactions on the NYSE MKT, in the over-the-counter market or otherwise.

 

The underwriter makes no representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our common stock. In addition, the underwriter makes no representation that the underwriter will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.

 

Passive Market Making

 

In connection with this offering, the underwriter and selling group members may engage in passive market making transactions in the common stock on the NYSE MKT in accordance with Rule 103 of Regulation M under the Exchange Act during a period before the commencement of offers or sales of our common stock and extending through the completion of distribution. A passive market maker must display its bid at a price not in excess of the highest independent bid of that security. However, if all independent bids are lowered below the passive market maker’s bid that bid must then be lowered when specified purchase limits are exceeded. Passive market making may cause the price of our common stock to be higher than the price that otherwise would exist in the open market in the absence of those transactions. The underwriter and dealers are not required to engage in passive market making and may end passive market making activities at any time.

 

Electronic Distribution

 

In connection with the offering, the underwriter or securities dealers may distribute prospectuses by electronic means, such as e-mail.

 

54
 

 

LEGAL MATTERS

 

The validity of the shares of common stock offered hereby will be passed upon for us by Morse & Morse PLLC, Westbury, New York. Ellenoff Grossman & Schole LLP, New York, New York is representing the underwriter in the offering.

 

EXPERTS

 

The consolidated financial statements as of December 31, 2013 and 2012 and for each of the two years in the period ended December 31, 2013, included in this Prospectus have been so included in reliance on the report of Messineo & Co CPA’s, LLC (for fiscal year ended December 31, 2013) and DKM, Certified Public Accountants (for fiscal year ended December 31, 2012) each an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We have filed with the Securities and Exchange Commission, or SEC, a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock that we are offering. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and our common stock. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. The rules and regulations of the SEC allow us to omit from this prospectus certain information included in the registration statement.

 

For further information about us and our common stock, you may inspect a copy of the registration statement and the exhibits and schedules to the registration statement without charge at the offices of the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain copies of all or any part of the registration statement from the Public Reference Section of the SEC, 100 F Street, N.E., Washington, D.C. 20549 upon the payment of the prescribed fees.

 

You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding registrants like us that file electronically with the SEC. You can also inspect our registration statement on this website.

 

We are subject to the information and reporting requirements of the Securities Exchange Act of 1934 and, in accordance with this law, are required to file periodic reports, proxy statements and other information with the SEC. These periodic reports, proxy statements and other information are available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website at www.mobiquitytechnologies.com. You may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

 

55
 

 

MOBIQUITY TECHNOLOGIES, INC.

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

   
   
Report of Independent Registered Public Accounting Firm (2014) F-2
Report of Independent Registered Public Accounting Firm (2013) F-3
Consolidated Balance Sheets as of December 31, 2013 and 2012 F-4
Consolidated Statements of Operations for the years ended December 31, 2013 and 2012 F-5
Consolidated Statement of Stockholders' Equity for the years ended December 31, 2013 and 2012 F-6
Consolidated Statements of Cash Flows for the years ended December 31, 2013 and 2012 F-7

Notes to Consolidated Financial Statements for the years ended December 31, 2013 and 2012

F-8
   
   
Condensed Consolidated Balance Sheets as of September 30, 2014 and December 31, 2013 F-23
Unaudited Condensed Consolidated Statement of Operations for the three and nine months ended September 30, 2014 and 2013, F-24
Statement of Stockholders’ Equity for the year ended December 31, 2013 and nine months ended September 30, 2014 F-25
Condensed Consolidated Cash Flows for the Three Months ended September 30, 2014 and 2013 F-26
Notes to Unaudited Condensed Consolidated Financial Statements for the three and nine months ended September 30, 2014 and 2013 F-27

 

 

 

 

F-1
 

 

Messineo & Co., CPAs LLC

2471 N McMullen Booth Road, Suite. 302

Clearwater, FL 33759-1362

T: (518) 530-1122

F: (727) 674-0511

 

 

Report of Independent Registered Public Accounting Firm

 

Board of Directors and Stockholders

Mobiquity Technologies, Inc.

(formerly known as Ace Marketing & Promotions, Inc.)

Garden City, NY

 

We have audited the accompanying consolidated balance sheet of Mobiquity Technologies, Inc. (formerly known as Ace Marketing & Promotions, Inc.) (the "Company") for the year ended December 31, 2013 and the related consolidated statements of operations, stockholders' equity and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit.

 

We conducted our audit in accordance with 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 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 Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall 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 Mobiquity Technologies, Inc. (formerly known as Ace Marketing & Promotions, Inc.) as of December 31, 2013 and the results of its consolidated operations and cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.

 

  

Messineo & Co., CPAs, LLC

Clearwater, Florida

March 3, 2014

 

 

 

F-2
 

 

DKM Certified Public Accountants

2451 N. McMullen Booth Road, Suite 308

Clearwater Florida 33759-1362

727.444.0931

www.dkmcpas.com

 

 

Report of Independent Registered Public Accounting Firm

 

Board of Directors and Stockholders

Mobiquity Technologies, Inc.

(formerly known as Ace Marketing & Promotions, Inc.)

Garden City, NY

 

We have audited the accompanying consolidated balance sheet of Mobiquity Technologies, Inc. (formerly known as Ace Marketing & Promotions, Inc.) (the "Company") for the year ended December 31, 2012 and the related consolidated statements of operations, stockholders' equity and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit.

 

We conducted our audit in accordance with 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 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 Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall 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 Ace Marketing & Promotions, Inc. as of December 31, 2012 and the results of its consolidated operations and cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.

 

 

 

DKM Certified Public Accountants

Clearwater, Florida

February 18, 2013

 

 

F-3
 

 

MOBIQUITY

TECHNOLOGIES, INC.

     

Consolidated Balance Sheets        
December 31,  2013   2012 
           
Assets          
           
Current Assets:          
Cash and cash equivalents  $1,740,989   $362,598 
Accounts receivable, net of allowance for doubtful accounts of $30,000 and $20,000 as of December 31, 2013 and 2012, respectively  
 
 
 
 
433,856
 
 
 
 
 
 
 
444,262
 
 
Inventory   109,073    92,615 
Prepaid expenses and other current assets   141,921    170,960 
Total Current Assets   2,425,839    1,070,435 
           
Property and equipment, net of accumulated depreciation of $596,035 and $378,190 as of December 31, 2013 and 2012, respectively  
 
 
 
 
466,772
 
 
 
 
 
 
 
581,567
 
 
           
Intangible assets, net of accumulated amortization of $153,416 and $83,333 as of December 31, 2013 and 2012, respectively  
 
 
 
 
301,784
 
 
 
 
 
 
 
166,667
 
 
           
Other Assets   34,109    27,501 
Total Assets  $3,228,504   $1,846,170 
           
Liabilities and Stockholders' Equity          
           
Current Liabilities:          
Accounts payable  $485,401   $348,712 
Accrued expenses   177,943    160,098 
Convertible promissory note   322,000    298,376 
Total Current Liabilities   985,344    807,186 
           
Commitments and Contingencies        
           
Stockholders' Equity:          
Preferred Stock, $.0001 par value; 5,000,000 shares authorized, zero and 220,000 shares issued and outstanding at December 31, 2013 and December 31, 2012 respectively           22  
Common stock, $.0001 par value; 200,000,000 and 100,000,000 shares authorized; 52,402,247 and 30,252,938 shares issued and outstanding at 2013 and 2012, respectively     5,240       3,025  
Additional paid-in capital   21,948,920    14,485,740 
Stock subscription receivable   (175,000)    
Accumulated other comprehensive income (loss)   1,268     
Accumulated deficit   (19,505,767)   (13,418,302)
    2,274,661    1,070,485 
Less: Treasury Stock, at cost, 23,334 shares   (31,501)   (31,501)
Total Stockholders' Equity   2,243,160    1,038,984 
Total Liabilities and Stockholders' Equity  $3,228,504   $1,846,170 

 

See auditor's report and notes to the consolidated financial statements.

 

F-4
 

 

MOBIQUITY

TECHNOLOGIES, INC.

 

Consolidated Statements of Operations        
Years Ended December 31,  2013   2012 
           
           
Revenues, net  $3,157,532   $2,890,652 
Cost of Revenues   2,353,095    2,170,265 
Gross Profit   804,437    720,387 
           
Operating Expenses:          
Selling, general and administrative expenses   6,665,082    4,667,122 
Total Operating Expenses   6,665,082    4,667,122 
           
Loss from Operations   (5,860,645)   (3,946,735)
           
Other Income (Expense):          
Interest expense   (227,094)   (182,943)
Interest income   274    436 
Loss on abandonment of fixed assets        (4,819)
Total Other Income (Expense)   (226,820)   (187,326)
           
Net Loss  $(6,087,465)  $(4,134,061)
           
Net Loss Per Common Share:          
           
Basic  $(0.13)  $(0.16)
           
           
Weighted Average Common Shares Outstanding:          
           
Basic   42,438,849    26,216,795 

 

See auditor's report and notes to the consolidated financial statements.

 

F-5
 

 

MOBIQUITY

TECHNOLOGIES, INC.

 

Consolidated Statement of Stockholders' Equity

 

Years Ended December 31,

 

    Total Stockholders’    Preferred Stock    Common Stock    Additional Paid-in    Stock    Accumulated Other Comprehensive Income         Treasury Stock 
    Equity    Shares    Amount    Shares    Amount     Capital    Subscription    (Loss)    (Deficit)    Shares    Amount 
Balance, at December 31, 2011  $1,683,993              23,284,236   $2,328   $10,997,407             $(9,284,241)   23,334   $(31,501)
Stock Purchase   1,752,240              4,208,872    434    1,751,806                          
Stock Grant   1,210,911              1,926,496    179    1,210,732                          
Stock Purchase Preferred   470,000    470,000    47            469,953                          
Conversion of Preferred Stock       (250,000)   (25)   833,334    84    (59)                         
Option Grant   219,647                        219,647                          
Warrant Grant   50,684                        50,684                          
Beneficial Conversion Feature   120,254                        120,254                          
Closing Costs on equity issuance   (334,684)                       (334,684)                         
Net Loss   (4,134,061)                                     $(4,134,061)          
Balance, at December 31, 2012  $1,038,984   $220,000   $22    30,252,938   $3,025   $14,485,740   $   $   $(13,418,302)   23,334   $(31,501)
Stock Purchase   5,562,816            19,125,006    1,913    5,735,903    (175,000)                 
Offering costs   (182,184)                   (182,184)                      
Stock Grant   1,048,091            2,402,969    240    1,047,851                       
Option Grant   716,983                    716,983                       
Warrant Grant                                              
Stock Cancel                                              
Conversion of preferred stock       (220,000)   (22)   528,000    53    (31)                      
Conversion of debt   28,000            93,334    9    27,991                       
Beneficial Conversion Feature   116,667                    116,667                       
Net Loss   (6,086,197)                             1,268    (6,087,465)        
Balance, at December 31, 2013  $2,243,160       $    52,402,247   $5,240   $21,948,920   $(175,000)  $1,268   $(19,505,767)   23,334   $(31,501)

 

 

 

See auditor's report and notes to the consolidated financial statements.

 

F-6
 

 

MOBIQUITY

TECHNOLOGIES, INC.

 

Consolidated Statements of Cash Flows        
Years Ended December 31,  2013   2012 
         
Cash Flows from Operating Activities:        
   Net loss  $(6,087,465)  $(4,134,061)
Adjustments to reconcile net loss to net cash used in operating activities:                
   Depreciation and amortization   289,289    233,825 
   Stock-based compensation   1,765,074    1,481,242 
   Beneficial conversion feature   116,667    120,254 
   Amortization of deferred financing costs   51,624    32,851 
   Loss on sale of assets        4,819 
Changes in operating assets and liabilities:          
(Increase) decrease in operating assets:          
   Accounts receivable   10,406    90,662 
   Inventory   (16,458)   8,077 
   Prepaid expenses and other assets   22,431    51,233 
Increase (decrease) in operating liabilities:          
   Accounts payable   136,689    (51,211)
   Accrued expenses   17,845    38,276 
Increase (decrease) in foreign assets and liabilities, currency translation   1,268     
Total adjustments   2,394,835    2,010,028 
Net Cash Used in Operating Activities   (3,692,630)   (2,124,033)
           
Cash Flows from Investing Activities:          
   Purchase of property and equipment   (104,411)   (272,013)
   Acquisition of intellectual property   (205,200)     
Net Cash Used in Investing Activities   (309,611)   (272,013)
           
Cash Flows from Financing Activities:          
   Proceeds from Loan       265,525 
   Principal payments on Loan        
   Proceeds from issuance of stock   5,380,632    1,887,556 
Net Cash Provided by Financing Activities   5,380,632    2,153,081 
           
Net Increase (Decrease) in Cash and Cash Equivalents   1,378,391    (242,965)
Cash and Cash Equivalents, beginning of period   362,598    605,563 
Cash and Cash Equivalents, end of period  $1,740,989   $362,598 
           
Supplemental Disclosure Information:          
    Cash paid for interest  $58,803   $62,689 
    Cash paid for taxes  $   $ 
           
Non-cash Disclosures:          
    Financing and extinguishment of debt  $350,000   $ 
    Exchanged debt for common shares  $28,000   $ 

 

See auditor's report and notes to the consolidated financial statements.

 

F-7
 

 

MOBIQUITY TECHNOLOGIES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

YEARS ENDED DECEMBER 31, 2013 AND 2012

 

NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

NATURE OF OPERATIONS –

 

On September 10, 2013, Mobiquity Technologies, Inc. changed its name from Ace Marketing & Promotions, Inc. (the "Company" or "Mobiquity").

 

Mobiquity Technologies, Inc. is an advertising technology (Ad Tech) company focusing on connecting Fans (consumers) and Brands through a single platform utilizing Online, Social and Mobile. Mobiquity leverages leading edge mobile technologies including Bluetooth (Push & Beacon BLE), Wi-Fi, NFC (Near Field Communications) and QR (Quick Response) code and employs propriety devices through retail environments to build physical networks. Assets are managed in a single platform creating a new class of consumer engagement and data intelligence. 

 

Mobiquity Technologies has developed and acquired a number of innovative marketing technologies, spanning location-based mobile marketing, mobile customer data analytics, web content and customer relationship management, that it will continue to leverage through its two wholly-owned U.S. subsidiaries: Mobiquity Networks and Ace Marketing & Promotions and Mobiquity Wireless SLU, a company incorporated in Spain.

 

Ace Marketing, Inc., which recently changed its name to its parent corporation’s old name, namely, Ace Marketing & Promotions, Inc. (“AMI”), is an Integrated Marketing Company focused on marketing process analysis and technology-based growth acceleration strategies. AMI offers Brand Analysis & Development, Website Analysis & Development, Database Analysis & Building, and Integrated Marketing Campaigns using: direct mail, email marketing, mobile marketing, promotional products and other mediums that help its clients connect with their customers and acquire new business

 

Mobiquity Networks, Inc. is a leading provider of hyper-local mobile marketing solutions. Mobiquity is continuing to attempt to build one of the nation's largest Location-Based Mobile Marketing networks. Location-Based Mobile Marketing is a mobile marketing tool that delivers rich digital content to any Bluetooth or Wi-Fi enabled device within a 300ft radius of a central terminal. Our technology permits delivery to virtually any mobile device and properly formats each message to ensure that every user receives the best possible experience. Results are fully trackable, giving campaigns full performance accountability. We offer brands the opportunity to reach millions of consumers with relevant, engaging content that is 100% free to the end user. The Mobiquity network is the largest mall-based Bluetooth network of its kind. It is currently installed in 100 malls across the US, covering each of the top 10 designated marketing areas (“DMA’s”), and has the ability to reach approximately 120 million shopping visits per month.

  

Mobiquity Wireless SLU is a corporation incorporated in Spain. This corporation has an office in Spain to support our U.S. operations. See “Note 2” below regarding “Acquisition of Assets of FuturLink.”

 

Agreement with Simon Property Group, L.P.

 

In April 2011, we signed an exclusive rights agreement with a Top Mall Developer (the "Simon Property Group") to create a location-based mobile marketing network utilizing Bluetooth technology called Mobiquity Networks. In August 2013, we amended the original agreement to now provide for a 75 mall agreement by the end of 2013, which contract runs through December 31, 2017 and includes top malls in the Simon Mall portfolio. Through our partnership agreement with Eye Corp., we also are located in 25 Macerich malls. These agreements provide advertisers the opportunity to reach millions of mall visitors per month with mobile content and offers when they are most receptive to advertising messages.

 

F-8
 

 

Our Location-Based Mobile advertising medium is designed to reach on-the-go shoppers via their mobile devices with free rich media content delivered using Bluetooth or Wi-Fi. This advertising medium offers extremely targeted messaging engineered to engage and influence shoppers as they move about the mall environment.

 

Mobiquity Networks Mobi-units will be strategically positioned in shopping malls near entrances, anchor stores, escalators and other high-traffic, and high dwell-time areas. Mobiquity Networks Mobi-unit placement takes advantage of the opportunity to provide a reminder to consumers and touch them just before making a purchase decision. These units generate high awareness and brand recognition at the right time and place.

 

PRINCIPLES OF CONSOLIDATION - The accompanying consolidated financial statements include the accounts of Mobiquity Technologies, Inc., formerly known as Ace Marketing & Promotions, Inc., and its wholly owned subsidiaries, Mobiquity Networks, Inc., Ace Marketing, Inc., (which has had its name changed to Ace Marketing & Promotions, Inc. and Mobiquity Wireless S.L.U.). All intercompany accounts and transactions have been eliminated in consolidation.

 

ESTIMATES - The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. 

 

FAIR VALUE OF FINANCIAL INSTRUMENTS - Effective January 1, 2008, the Company adopted FASB ASC 820, “Fair Value Measurements and Disclosures” (“ASC 820”), for assets and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for fair value to be applied to existing generally accepted accounting principles that require the use of fair value measurements, and establishes a framework for measuring fair value and expands disclosure about such fair value measurements. The adoption of ASC 820 did not have an impact on the Company’s financial position or operating results, but did expand certain disclosures.

 

ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. These inputs are prioritized below:

 

  Level 1: Observable inputs such as quoted market prices in active markets for identical assets or liabilities
  Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data
  Level 3: Unobservable inputs for which there is little or no market data, which require the use of the reporting entity’s own assumptions.

 

Cash and cash equivalents include money market securities that are considered to be highly liquid and easily tradable as of December 31, 2013 and 2012. These securities are valued using inputs observable in active markets for identical securities and are therefore classified as Level 1 within our fair value hierarchy. 

 

The carrying amounts of financial instruments, including accounts receivable, accounts payable and accrued liabilities, and promissory note, approximated fair value as of December 31, 2013 and 2012 , because of the relatively short-term maturity of these instruments and their market interest rates.

 

RECLASSIFICATIONS - Certain amounts in the prior period financial statements have been reclassified to conform to the current period presentation. These reclassifications had no effect on reported losses.

 

CASH AND CASH EQUIVALENTS - The Company considers all highly liquid debt instruments with a maturity of three months or less, as well as bank money market accounts, to be cash equivalents.

 

F-9
 

 

CONCENTRATION OF CREDIT RISK - Financial instruments, which potentially subject the Company to concentrations of credit risk, consist principally of trade receivables and cash and cash equivalents. 

 

Concentration of credit risk with respect to trade receivables is generally diversified due to the large number of entities comprising the Company's customer base and their dispersion across geographic areas principally within the United States. The Company routinely addresses the financial strength of its customers and, as a consequence, believes that its receivable credit risk exposure is limited. 

 

The Company places its temporary cash investments with high credit quality financial institutions. At times, the Company maintains bank account balances, which exceed FDIC limits. The Company has not experienced any losses in such accounts and believes that it is not exposed to any significant credit risk on cash. Management does not believe significant credit risk exists at December 31, 2013 and 2012.

 

REVENUE RECOGNITION - Revenue is recognized when title and risk of loss transfers to the customer and the earnings process is complete. In general, title passes to our customers upon the customer's receipt of the merchandise. Revenue is recognized on a gross basis since the Company has the risks and rewards of ownership, latitude in selection of vendors and pricing, and bears all credit risk. Advance payments made by customers are included in customer deposits.

 

The Company records all shipping and handling fees billed to customers as revenues and related costs as cost of goods sold, when incurred.

 

Additional source of revenue, derived from emails/texts directly to consumers are recognized under contractual arrangements. Revenue from this advertising method is recognized at the time of service provided.

 

ALLOWANCE FOR DOUBTFUL ACCOUNTS - Management must make estimates of the uncollectability of accounts receivable. Management specifically analyzes accounts receivable and analyzes historical bad debts, customer concentrations, customer credit-worthiness, current economic trends and changes in customer payment terms when evaluating the adequacy of the allowance for doubtful accounts.

 

INVENTORY – Inventory is recorded at cost (First In, First Out) and is comprised of finished goods. The Company maintains an inventory on hand for its largest customer’s frequent order items. All items held are branded for the customer, therefore are not available for public distribution. The Company has an agreement with this customer, for cost recovery, if vendor relationship is terminated. There has been no reserves placed on inventory, based on this arrangement.

 

PROPERTY AND EQUIPMENT - Property and equipment are stated at cost. Depreciation is provided using the straight-line method over the estimated useful lives of the related assets. Leasehold improvements are being amortized using the straight-line method over the estimated useful lives of the related assets or the remaining term of the lease. The costs of additions and improvements, which substantially extend the useful life of a particular asset, are capitalized. Repair and maintenance costs are charged to expense. When assets are sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the account and the gain or loss on disposition is reflected in operating income.

 

LONG LIVED ASSETS - Long-lived assets such as property, equipment and identifiable intangibles are reviewed for impairment whenever facts and circumstances indicate that the carrying value may not be recoverable. When required impairment losses on assets to be held and used are recognized based on the fair value of the asset. The fair value is determined based on estimates of future cash flows, market value of similar assets, if available, or independent appraisals, if required. If the carrying amount of the long-lived asset is not recoverable from its undiscounted cash flows, an impairment loss is recognized for the difference between the carrying amount and fair value of the asset.  When fair values are not available, the Company estimates fair value using the expected future cash flows discounted at a rate commensurate with the risk associated with the recovery of the assets.  We did not recognize any impairment losses for any periods presented.

 

F-10
 

 

 

WEBSITE TECHNOLOGY - Website technology developed during the year was capitalized for the period of development and testing. Expenditures during the planning stage and after implementation have been expensed in accordance with ASC985.

 

ADVERTISING COSTS - Advertising costs are expensed as incurred. For the years ended December 31, 2013 and 2012 there were advertising costs of $3,840 and $1,404, respectively.

 

ACCOUNTING FOR STOCK BASED COMPENSATION. Stock based compensation cost is measured at the grant date fair value of the award and is recognized as expense over the requisite service period. The Company uses the Black-Sholes option-pricing model to determine fair value of the awards, which involves certain subjective assumptions. These assumptions include estimating the length of time employees will retain their vested stock options before exercising them (“expected term”), the estimated volatility of the Company’s common stock price over the expected term (“volatility”) and the number of options for which vesting requirements will not be completed (“forfeitures”). Changes in the subjective assumptions can materially affect estimates of fair value stock-based compensation, and the related amount recognized on the consolidated statements of operations.  Refer to Note 8 “Stock Option Plans” in the Notes to Consolidated Financial Statements in this report for a more detailed discussion.

 

BENEFICIAL CONVERSIONS - Debt instruments that contain a beneficial conversion feature are recorded as deemed interest to the holders of the convertible debt instruments. The beneficial conversion is calculated as the difference between the fair value of the underlying common stock less the proceeds that have been received for the debt instrument limited to the value received. The beneficial conversion amount is recorded as interest expense and an increase to additional paid-in-capital.  The beneficial conversion has been fully accreted to the face value of the original loan and interest expense has been recognized.

 

FOREIGN CURRENCY TRANSLATIONS - The Company’s functional and reporting currency is the U.S. dollar. We own a subsidiary in Europe. Our subsidiary’s functional currency is the EURO. All transactions initiated in EUROs are translated into U.S. dollars in accordance with ASC 830-30, “Translation of Financial Statements,” as follows:

 

  (i)  Monetary assets and liabilities at the rate of exchange in effect at the balance sheet date.
  (ii)  Fixed assets and equity transactions at historical rates.
  (iii)  Revenue and expense items at the average rate of exchange prevailing during the period.

 

Adjustments arising from such translations are deferred until realization and are included as a separate component of stockholders’ equity as a component of comprehensive income or loss. Therefore, translation adjustments are not included in determining net income (loss) but reported as other comprehensive income.

 

No significant realized exchange gains or losses were recorded since March 7, 2013 (date of acquisition of subsidiary) to December 31, 2013.

 

INCOME TAXES - Deferred income taxes are recognized for temporary differences between financial statement and income tax basis of assets and liabilities for which income tax or tax benefits are expected to be realized in future years. A valuation allowance is established to reduce deferred tax assets, if it is more likely than not, that all or some portion of such deferred tax assets will not be realized. The effect on deferred taxes of a change in tax rates is recognized in income in the period that includes the enactment date.

 

NET INCOME PER SHARE - Basic net income per share is computed by dividing income available to common shareholders by the weighted-average number of common shares outstanding. Diluted earnings per share reflect, in periods in which they have a dilutive effect, the impact of common shares issuable upon exercise of stock options. The number of common shares potentially issuable upon the exercise of certain options and warrants that were excluded from the diluted loss per common share calculation was approximately 26,185,000 and 18,895,000 because they are anti-dilutive, as a result of a net loss for the years ended December 31, 2013 and 2012, respectively. 

 

F-11
 

 

RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS

We have reviewed the FASB issued Accounting Standards Update (“ASU”) accounting pronouncements and interpretations thereof that have effectiveness dates during the periods reported and in future periods. The Company has carefully considered the new pronouncements that alter previous generally accepted accounting principles and does not believe that any new or modified principles will have a material impact on the corporation’s reported financial position or operations in the near term. The applicability of any standard is subject to the formal review of our financial management and certain standards are under consideration.

 

NOTE 2: PROPERTY AND EQUIPMENT

 

Property and equipment, net, consist of the following at December 31:

 

   USEFUL LIVES  2013   2012 
              
Furniture and Fixtures  5 years  $1,060,084   $955,673 
Leasehold Improvements  5 years   4,084    4,084 
       1,064,168    959,757 
Less Accumulated Depreciation      596,035    378,190 
      $466,772   $581,567 

 

Depreciation expense for the years ended December 31, 2013 and 2012 was $219,206 and $183,825, respectively.

 

NOTE 3: INTANGIBLE ASSETS

 

Intangible assets, net, consist of the following at December 31:

 

   USEFUL LIVES  2013   2012 
              
Contractual license  5 years  $250,000   $250,000 
Acquisition of intellectual property (FuturLink)  5 years   160,200     
Website technology development  5 years   45,000     
       455,200    250,000 
Less Accumulated Depreciation      153,416    83,333 
      $301,784   $166,667 

 

Future amortization, for the years ending December 31, is as follows:

 

 2013   $91,040 
 2014    91,040 
 2015    57,707 
 2016    41,040 
 2017    20,957 
 thereafter     
      301,784 

 

Amortization expense for the years ended December 31, 2013 and 2012 was $70,083 and $50,000, respectively.

 

Acquisition of Assets of FuturLink

 

On March 7, 2013, the Company acquired the assets of FuturLink at a cost of approximately $160,200, which cash was paid from the Company’s current working capital. These assets include, without limitation, the FuturLink technology (patents and source codes), trademark(s) and access point (proximity marketing) component parts. At the time of acquisition, FuturLink’s assets were minimal; the purchase price was apportioned to the intellectual property received in exchange. The Company changed its name to Mobility Networks upon acquisition and is a consolidated component of these financial statements.

 

F-12
 

 

NOTE 4: CONVERTIBLE PROMISSORY NOTE

 

On June 12, 2012, the Company closed on a security agreement (the “Security Agreement”) with TCA related to a $350,000 convertible promissory note issued by the Company in favor of TCA (the “Convertible Note”), which Convertible Note was funded by TCA on June 12, 2012. The maturity date of the Convertible Note was December 2013, and the Convertible Note bears interest at a rate of twelve percent (12%) per annum. The Convertible Note is convertible into shares of the Company’s common stock at a price equal to ninety-five percent (95%) of the average of the lowest daily volume weighted average price of the Company’s common stock during the five (5) trading days immediately prior to the date of conversion. The Convertible Note may be prepaid in whole or in part at the Company’s option without penalty. The Security Agreement granted to TCA a continuing, first priority security interest in all of the Company’s assets, wheresoever located and whether now existing or hereafter arising or acquired. The Company’s wholly-owned subsidiary, Mobiquity Networks, Inc., also entered into a similar Security Agreement and Guaranty Agreement. On December 12, 2013, TCA sold its entire interest in the Company’s $350,000 secured promissory note to Thomas Arnost, a director of the Company, at face value. Mr. Arnost entered into an amendment to the note to extend the maturity date of the note to June 12, 2014, subject to his right to declare the note due and payable at any time in his sole discretion. Also, the interest rate was raised from 12% per annum to 15% and the conversion price of the shares issuable upon conversion of the note was fixed at $.30 per share. The aforementioned note is convertible at the sole discretion of the noteholder. The noteholder immediately converted $28,000 into 93,334 shares of common stock in December 2013. The balance on the note is $322,000 as of December 31, 2013 and interest accrued in the amount of $2,158, included in accrued expense.

 

The Company evaluated the terms of the new note in accordance with ASC Topic No. 815 - 40, Derivatives and Hedging - Contracts in Entity’s Own Stock. The Company determined that the conversion feature did not meet the definition of a liability and therefore did not bifurcate the conversion feature and account for it as a separate derivative liability. The Company evaluated the conversion feature for a beneficial conversion feature. The effective conversion price was compared to the market price on the date of the note and was deemed to be less than the market value of underlying common stock at the inception of the note. Therefore, the Company recognized a beneficial conversion feature in the amount of $116,667. The beneficial conversion feature was recorded as an increase in additional paid-in capital and recognized interest expense in the period.

 

NOTE 5: INCOME TAXES

 

The provision for income taxes for the years ended December 31, 2013 and 2012 is summarized as follows:

 

    2013     2012  
Current:                
Federal   $        
State            
             
Deferred:                
Federal            
State            
    $     $  

 

The Company has federal and state net operating loss carry forwards of approximately $12,235,000, which can be used to reduce future taxable income through 2030. The Company is open for tax years for the years ended 2008 through present.

 

F-13
 

 

The tax effects of temporary differences which give rise to deferred tax assets (liabilities) are summarized as follows:

 

   YEARS ENDED DECEMBER 31, 
   2013   2012 
         
Deferred Tax Assets:          
Net operating loss carry-forwards  $6,698,000   $4,446,000 
Stock based compensation   2,605,000    1,939,000 
Beneficial Conversion Feature   46,000    46,000 
Allowance for doubtful accounts   8,000    8,000 
Deferred Tax Assets   9,357,000    6,439,000 
Less Valuation Allowance   9,357,000    6,439,000 
Net Deferred Tax Asset  $   $ 

 

A reconciliation of the federal statutory rate to the Company's effective tax rate is as follows:

 

   YEARS ENDED DECEMBER 31, 
   2013   2012 
         
Federal Statutory Tax Rate   34.00%   34.00%
State Taxes, net of Federal benefit   6.00%   6.00%
Change in Valuation Allowance   (40.00%)   (40.00%)
Total Tax Expense   0.00%   0.00%

 

NOTE 6: STOCKHOLDERS’ EQUITY

 

On January 30, 2012, the Company’s private placement offering was terminated. Rockwell Global Capital LLC acted as Placement Agent. The Company received gross proceeds of $575,000 from the sale of 958,338 shares of Common Stock at a purchase price of $.60 per share. The private placement offering also included the sale of Warrants to purchase 191,671 shares of Common Stock, exercisable at $.60 per share and expiring on January 18, 2016. The Placement Agent received a $25,000 advisory fee, $51,750 in commissions and warrants to purchase 95,833 shares identical to the warrants sold to investors in the offering. Exemption is claimed for the sale of securities pursuant to Rule 506 and/or Section 4(2) of the Securities Act of 1933, as amended.

  

The Company is required to file a Registration Statement with the Securities and Exchange Commission (“SEC”) to register the resale of the shares of Common Stock sold in the private placement offering and the resale of the shares of Common Stock issuable upon exercise of the Class AA Warrants (collectively the “Registrable Shares”).  If a Registration Statement covering the Registrable Shares is not filed with the SEC on or before March 15, 2012 or is not declared effective within 120 days of January 30, 2012 (subject to a 60 day extension in the event the SEC is performing a full review of the Registration Statement), the Company shall pay to each investor as liquidated damages, a payment equal to 1.5% of the aggregate amount invested by such investor in the offering, cumulative for every 30 day period until such Registration Statement has been filed or declared effective or a portion thereof, up to a maximum of 15% per annum. The Company, at its sole discretion, elected to pay the liquidated damage payment in Common Stock. As of December 31, 2012, the Registration Statement has not been filed and the Company has elected to issue the maximum liquidation damages for a period of one year of an aggregate of 197,860 shares.

 

F-14
 

 

In April 2012, the Company received $270,000 from the exercise of Warrants and issued 900,000 shares of its Common Stock.  Between April 1, 2012 and May 15, 2012, the Company sold 470,000 shares of Series 1 Convertible Preferred Stock at $1.00 per share pursuant to an ongoing plan of financing. The Series 1 Preferred Stock had the following rights, preferences and privileges:

 

  · Automatic Conversion into Common Stock. Each Preferred Share shall automatically convert on March 31, 2013 into shares of the Company’s Common Stock (the “Common Shares”) based on a conversion price of the lower of $.60 per share or an amount equal to 90% of the average closing sales price for the Company’s Common Stock on the OTC Bulletin Board (or Pink Sheets) for the 20 trading days immediately preceding March 31, 2013, with a floor of $.45 per share. The number of shares of Common Stock issuable pursuant to the automatic conversion ranges from a minimum of 366,666 shares to a maximum of 488,888 shares.
  · Optional Conversion into Common Stock. Commencing July 1, 2012, each Preferred Share shall at the option of the holder become convertible into Common Shares based on a conversion price of the lower of $.60 per share or 85% of the average closing sales price for the Company’s Common Stock on the OTC Bulletin Board (or Pink Sheets) for the 20 trading days immediately preceding the Conversion Date, with a floor of $.45 per share. The number of shares of Common Stock issuable pursuant to the optional conversion ranges from a minimum of 366,666 shares to a maximum of 488,888 shares.
  · Conversion Premium. Upon calculation of the number of Common Shares, the Preferred Shareholder is entitled to receive upon conversion of Series 1 Preferred Stock into Common Stock; the investor will receive an additional 8% premium. Accordingly, once the number of Common Shares is determined based upon the automatic conversion or optional conversion formulas set forth above, the investor will have that number of Common Stock multiplied by 1.08 (i.e. 108%) to determine the actual number of Common Shares to be issued upon conversion.
  · Voting. The Preferred Shares shall have no voting rights until converted into Common Shares, except as otherwise required by applicable state law.
  · Dividends. The Preferred Shares shall have no dividend rights until converted into Common Shares, except as otherwise required by applicable state law.
  · Liquidation Preference. The Preferred Shares shall have no liquidation preference and shall be treated the same as a holder of Common Shares.
  · Call Option. The Company may call the Preferred Shares for redemption at a price of $1.08 per share at any time on or after July 1, 2012, subject to the investor’s right of conversion upon no less than 10 days prior written notice of redemption to each Preferred Shareholder, which notice may only be provided to the holders so long as the Company completes a financing or series of financings totaling at least $2 million in gross proceeds (excluding monies raised from the sale of the Series 1 Preferred Stock).

 

On July 10, 2012, the Company sold 1,347,201 shares of its Common Stock to various investors at $.45 per share subject to certain anti-dilution rights for a period of twenty four months. Due to the Company’s November 2012 offering at $.30 per share as described below, the Company issued an additional 673,598 shares pursuant to the aforementioned anti-dilution rights. The Company received gross proceeds of $606,240 before offering costs. Each investor received Fixed Price Warrants to purchase 50% of the number of shares of Common Stock purchased in the Offering. The Fixed Price Warrants are exercisable at any time from the date of issuance through July 10, 2017 at an exercise price of $.55. Each investor also received a Warrant to purchase 20% of the number of shares that were purchased in the Offering (the “Milestone Warrants”). The Milestone Warrants provided that they would automatically be exercised without any additional consideration to be paid in the event the Company reports audited gross revenues of less than $5,000,000 for the period July 1, 2012 through June 30, 2013 unless the volume weighted average price for the Company’s Common Stock exceeds $1.00 per share for a period of at least 30 trading days prior to January 5, 2013. In August 2013, the Company issued 258,327 shares of Common Stock pursuant to the Milestone Warrants without any cash consolidation being paid. Exemption from registration for the sale of securities is claimed under Rule 506 of Regulation D promulgated pursuant to Section 4(2) of the Securities Act of 1933, as amended.

 

In November, 2012, the Series 1 preferred stock investors who invested an aggregate of $250,000 in April 2012 at a $1 per share agreed to convert their 250,000 preferred shares into an aggregate of 833,334 common shares and warrants to purchase 416,667 shares, which warrants are identical to the warrants which were sold to the Legend investors described below. The remaining 220,000 shares of outstanding Series 1 Preferred Stock automatically converted into 528,000 shares of restricted Common Stock on March 31, 2013.

 

F-15
 

 

In November 2012, the aforementioned Series 1 stock investors, who invested an aggregate of $250,000 in April 2012 together with another Common Stock holder, invested $301,000 at an offering price of $.30 per share and received 1,003,334 shares of Common Stock and Warrants to purchase 501,667 shares, exercisable at $.50 per share through December 15, 2017. Exemption from registration for the sale of securities is claimed under Rule 506 of Regulation D promulgated pursuant to Section 4(2) of the Securities Act of 1933, as amended.

 

During 2013, the Company raised $5,562,816 in gross proceeds from the sale of its Common Stock at $.30 per share and a subscription for an additional $175,000, which was received in January 2014. Pursuant to said offering, the Company sold 19,125,006 shares of its Common Stock and Class BB Warrants to purchase 9,562,503 shares of Common Stock exercisable at $.50 per share through December 15, 2017. A total of $182,184 was incurred for offering costs, including $150,000 of commissions paid to a licensed member of FINRA together with Warrants to purchase 625,000 shares. Exemption from registration for the sale of the aforementioned securities is claimed under Rule 506 of Regulation D promulgated pursuant to Section 4(2) of the Securities Act of 1933, as amended. Thomas Arnost, Sean Trepeta, and Sean McDonnell, officers and/or directors of the Company, purchased $200,000, $90,000 and $50,000, respectively, of securities pursuant to said offering.

 

NOTE 7: SHARE-BASED COMPENSATION

 

In July 2012 and November 2012 the Company issued to consultants five year warrants to purchase 37,250 shares and 125,000 shares respectively, at exercise prices ranging from $.35 per share to $.55 per share.

 

In January 2013, the Company issued to consultants, warrants to purchase 600,000 shares exercisable at $.30 per share through January 2017. In June 2013, the Company issued to consultants, options to purchase 500,000 shares exercisable at $.30 per share through April 11, 2018.

 

During the past three years, the Company has granted under our 2005 Plan certain employees and consultants restricted stock awards for services for the prior year with vesting to occur after the passage of an additional 12 months. These awards totaled 51,000 Shares for 2009, subject to continued services with the Company through December 31, 2009.  These awards totaled 105,000 Shares for 2010 subject to continued services with the Company through December 31, 2010.  These awards totaled 45,000 Shares for 2011 subject to continued services with the Company through December 31, 2012.

 

All stock options under the Plan are granted at or above the fair market value of the common stock at the grant date. Employee and non-employee stock options generally vest over periods ranging from one to three years and generally expire either five or ten years from the grant date.

 

The Company's Plan is accounted for, in accordance with the recognition and measurement provisions requires compensation costs related to share-based payment transactions, including employee stock options, to be recognized in the financial statements. In addition, the Company adheres to the guidance set forth within Securities and Exchange Commission which provides the staff's views regarding the interaction between certain SEC rules and regulations and provides interpretations with respect to the valuation of share-based payments for public companies.

 

The fair value of options at the date of grant was estimated using the Black-Scholes option pricing model. The expected volatility is based upon historical volatility of the Company's stock and other contributing factors. The expected term is based upon observation of actual time elapsed between date of grant and exercise of options for all employees. Previously such assumptions were determined based on historical data.

 

In June, 2011, the Company hired an advisor to provide investor awareness and business advisory services at a cost of $10,000 per month and 25,000 shares of restricted stock. For January through June 2012 the Company issued 150,000 shares of common stock for consulting services. Pursuant to an agreement effective June, 2012 the Company agreed to pay the adviser $10,000 per month plus 100,000 shares per quarter. A total of 200,000 shares of common stock were issued for the last six months of 2012. The advisory agreement was terminated in November 2012 and then a new agreement was entered into pursuant to which the adviser received five year warrants to purchase 125,000 shares of common stock exercisable at $.35 per share through November, 2017.

 

F-16
 

 

In April 2012 the Company entered into various business advisory agreements pursuant to which a total of 535,000 shares were issued in connection with services rendered. In September 2012, an aggregate of 71,040 shares of common stock were returned to the Company for cancellation to settle a dispute between the Company and certain consultants.

 

For the year 2013, the Company issued an aggregate of 2,402,969 shares in connection with business advisory services, at a fair market value of $1,048,091.

 

NOTE 8: STOCK COMPENSATION

 

The Company's results for the years ended December 31, 2013 and 2012 include employee share-based compensation expense totaling $1,765,074 and $1,481,242, respectively. Such amounts have been included in the Statements of Operations within selling, general and administrative expenses. No income tax benefit has been recognized in the statement of operations for share-based compensation arrangements due to a history of operating losses.

 

The following table summarizes stock-based compensation expense for the years ended December 31, 2013 and 2012:

 

   Years Ended December 31, 
   2013   2012 
Employee stock based compensation-option grants  $258,511   $238,500 
Employee stock based compensation-stock grants       13,500 
Non-Employee stock based compensation-option grants   347,138    297,011 
Non-Employee stock based compensation-stock grants   1,048,091    881,547 
Non-Employee stock based compensation-stock warrant   111,334    50,684 
   $1,765,074   $1,481,242 

  

NOTE 9: STOCK OPTION PLANS

 

During Fiscal 2005, the Company established, and the stockholders approved, an Employee Benefit and Consulting Services Compensation Plan (the "2005 Plan") for the granting of up to 2,000,000 non-statutory and incentive stock options and stock awards to directors, officers, consultants and key employees of the Company. On June 9, 2005, the Board of Directors amended the Plan to increase the number of stock options and awards to be granted under the Plan to 4,000,000. During Fiscal 2009, the Company established a plan of long-term stock-based compensation incentives for selected Eligible Participants of the Company covering 4,000,000 shares. This plan was adopted by the Board of Directors and approved by stockholders in October 2009 and shall be known as the 2009 Employee Benefit and Consulting Services Compensation Plan (the "2009 Plan"). In September 2013, the Company’s stockholders approved an increase in the number of shares covered by the 2009 Plan to 10,000,000. (The 2005 and 2009 Plans are collectively referred to as the “Plans” and the Company has a combined 14,000,000 shares available for issuance under the Plans.)

  

All stock options under the Plans are granted at or above the fair market value of the common stock at the grant date. Employee and non-employee stock options vest over varying periods and generally expire either 5 or 10 years from the grant date. The fair value of options at the date of grant was estimated using the Black-Scholes option pricing model. For option grants, the Company will take into consideration payments subject to the provisions of ASC 718 "Stock Compensation", previously Revised SFAS No. 123 "Share-Based Payment" ( "SFAS 123 (R)"). The fair values of these restricted stock awards are equal to the market value of the Company's stock on the date of grant, after taking into certain discounts. The expected volatility is based upon historical volatility of our stock and other contributing factors. The expected term is based upon observation of actual time elapsed between date of grant and exercise of options for all employees. Previously, such assumptions were determined based on historical data.

 

F-17
 

 

The weighted average assumptions made in calculating the fair values of options granted during the years ended December 31, 2013 and 2012 are as follows:

 

   Years Ended December 31, 
   2013   2012 
         
Expected volatility   134.99%   303.1%
Expected dividend yield        
Risk-free interest rate   2.7%   1.06%
Expected term (in years)   5.45    6.65 

                  

              Weighted      
        Weighted    Average      
        Average    Remaining    Aggregate 
        Exercise    Contractual    Intrinsic 
    Share   Price    Term    Value 
                     
Outstanding, January 1, 2013   4,575,000   $.76    4.36    27,000 
Granted   2,470,000   $.38    6.44      
Exercised                  
Cancelled / Expired                  
                     
Outstanding, December 31, 2013   7,045,000   $.49    4.52    314,750 
                     
Options exercisable, December 31, 2013   7,045,000   $.49    4.52     

 

The weighted-average grant-date fair value of options granted during the years ended December 31, 2013 and 2012 was $.41 and $0.54, respectively.

 

The aggregate intrinsic value of options outstanding and options exercisable at December 31, 2013 is calculated as the difference between the exercise price of the underlying options and the market price of the Company's common stock for the shares that had exercise prices, that were lower than the $.47 closing price of the Company's common stock on December 31, 2013.

 

As of December 31, 2013, the fair value of unamortized compensation cost related to unvested stock option awards was zero.

 

The option information provided above includes options granted outside of the Plans, which total 1,600,000 as of December 31, 2013.

 

The weighted average assumptions made in calculating the fair value of warrants granted during the years ended December 31, 2013 and 2012 are as follows:

 

   Years Ended 
   2013   2012 
         
Expected volatility   70.66%   52.88%
Expected dividend yield        
Risk-free interest rate   .88%   .3%
Expected term (in years)   4.44    3.5 

 

F-18
 

 

                Weighted      
          Weighted    Average      
          Average    Remaining    Aggregate 
          Exercise    Contractual    Intrinsic 
      Share   Price    Term    Value 
 Outstanding, January 1, 2013    14,319,532   $.55    1.56    0 
 Granted    11,172,508   $.51    3.98      
 Exercised                   
 Cancelled/Expired     (5,851,665)              
 Outstanding, December 31, 2013    19,640,375   $.56    2.88    209,500 
                       
 Warrants exercisable, December 31, 2013    19,640,375   $.56    2.88    209,500 

 

NOTE 10: COMMITMENTS AND CONTINGENCIES

 

LEASE COMMITMENTS –

 

In February 2012, the Company entered into a lease agreement for new executive office space of approximately 4,200 square feet located at 600 Old Country Road, Suite 541, Garden City, NY 11530.   The lease agreement is for 63 months, commencing April 2012 and expiring June 2017. The annual rent under this office facility for the first year is estimated at $127,000, including electricity, subject to an annual increase of 3%. In the event of a default in which the Company is evicted from the office space, Mobiquity would be responsible to the landlord for an additional payment of rent of $160,000 in the first year of the lease, an additional payment of $106,667 in the second year of the lease and an additional payment of rent of $53,333 in the third year of the lease. Such additional rent would be payable at the discretion of the Company in cash or in Common Stock of the Company.

 

The Company leases office space under non-cancelable operating leases in Farmingville, NY expiring in November 2014. The Company is obligated for the payment of real estate taxes under these leases. The Company is also currently leasing additional office space on a month-to-month basis. The Company also leases approximately 1,200 square feet of office and warehouse space in Spain at a monthly cost of approximately $2,200. Minimum future rentals under non-cancelable lease commitments are as follows:

 

YEARS ENDING DECEMBER 31,        
2014     126,000  
2015     135,000  
2016     139,000  
2017 and thereafter     36,000  
    $ 436,000  

 

Rent and real estate tax expense was approximately $869,800 and $736,700 for the years December 31, 2013 and 2012, respectively.

 

EMPLOYMENT CONTRACTS –

 

On March 1, 2005, the Company entered into employment contracts with two of its officers, namely, Dean L. Julia and Michael D. Trepeta. The employment agreements provide for minimum annual salaries plus bonuses equal to 5% of pre-tax earnings (as defined) and other perquisites commonly found in such agreements. In addition, pursuant to the employment contracts, the Company granted the officers options to purchase up to an aggregate of 400,000 shares of common stock.

 

F-19
 

On August 22, 2007, the Company approved a three year extension of the employment contracts with two of its officers expiring on February 28, 2011. The employment agreements provided for minimum annual salaries with scheduled increases per annum to occur on every anniversary date of the contract and extension commencing on March 1, 2008. A signing bonus of options to purchase 150,000 shares granted to each executive were fully vested at the date of the grant and exercisable at $1.20 per share through August 22, 2017. Ten year options to purchase 50,000 shares of common stock are to be granted at fair market value on each anniversary date of the contract and extension commencing March 1, 2008. Termination pay of one year base salary based upon the scheduled annual salary of each executive officer for the next contract year, plus the amount of bonuses paid (or entitle to be paid) to the executive for the current fiscal year of the preceding fiscal year, whichever is higher.

 

On April 7, 2010, the Board of Directors approved a five-year extension of the employment contract of Dean L. Julia and Michael D. Trepeta to expire on March 1, 2015.  The Board approved the continuation of each officer’s current salary and scheduled salary increases on March 1st of each year. The Board also approved a signing bonus of stock options to purchase 200,000 shares granted to each officer which is fully vested at the date of grant and exercisable at $.50 per share through April 7, 2020; ten-year stock options to purchase 100,000 shares of Common Stock to be granted to each officer at fair market value on each anniversary date of the contract and extension thereof commencing March 1, 2011; and termination pay of one year base salary based upon the scheduled annual salary of each executive officer for the next contract year plus the amount of bonuses paid or entitled to be paid to the executive for the current fiscal year or the preceding fiscal year, whichever is higher.  In the event of termination, the executives will continue to receive all benefits included in the employment agreement through the scheduled expiration date of said employment agreement prior to the acceleration of the termination date thereof.

 

In July 2012, the Company approved and in January 2013 the Company implemented amending the employment agreements of Messrs. Julia and M. Trepeta to expire on February 28, 2017, subject to an automatic one year renewal on March 1, 2013 and on each March 1st thereafter, unless the Employment Agreement is terminated in accordance with its terms on or before December 30th of the prior calendar year. In the event of termination without cause, the executives will continue to receive all salary and benefits included in the employment agreement through the scheduled expiration date of said employment agreement prior to the acceleration of the termination date thereof, plus one year termination pay.

 

On May 28, 2013, the Company approved amending the employment agreements of Messrs. Julia and Trepeta to provide that each officer may choose an annual bonus equal to 5% of pre-tax earnings for the most recently completed year before deduction of annual bonuses paid to officers or, in the event majority control of the Company is acquired by a person or a group of persons during the prior fiscal year, the officer may choose to receive the aforementioned bonus or 1% of the control consideration paid by acquirer(s) to acquire majority control of the Company.

 

TRANSACTIONS WITH MAJOR CUSTOMERS –

 

The Company sells its products to a geographically diverse group of customers, performs ongoing credit evaluations of its customers and generally does not require collateral. During the year ended December 31, 2013 a customer accounted for approximately 8% of net revenues and for the year ended December 31, 2012 a customer accounted for approximately 5% of net revenues.  The Company holds on hand certain items that are ordered on a regular basis.

 

NOTE 11: SUPPLEMENTARY INFORMATION - STATEMENT OF CASH FLOWS

 

Cash paid during the years for:

 

   YEARS ENDED DECEMBER 31, 
   2013   2012 
         
Interest  $58,803   $62,689 
           
Income Taxes  $   $ 

 

F-20
 

 

Non cash disclosures:

On December 12, 2013 a director of the Company was assigned the $350,000 note held by TCA Global. The note assigned was negotiated for extension of maturity date, to June 12, 2014, interest payable at 15%. Any outstanding balance and any accrued interest thereon may be converted into common stock at a price of $.30 per share. The Company may prepay the note without penalties. In December 2013, request was made to convert $28,000 of the note balance, into 93,334 shares of common stock.

 

NOTE 12: SEGMENT INFORMATION

 

Reportable operating segment is determined based on Mobiquity Technologies, Inc.'s management approach. The management approach, as defined by accounting standards which have been codified into FASB ASC 280, Segment Reporting,” is based on the way that the chief operating decision-maker organizes the segments within an enterprise for making decisions about resources to be allocated and assessing their performance. Our chief operating decision-maker is our Chief Executive Officer and Chief Financial Officer.

 

While our results of operations are primarily reviewed on a consolidated basis, the chief operating decision-maker also manages the enterprise in two operating segments: (i) Ace Marketing and Promotions, Inc. captures Branding & Branded Merchandise (ii) Mobiquity Networks represent our Mobil Marketing.

 

Corporate management defines and reviews segment profitability based on the same allocation methodology as presented in the segment data tables below:

 

    Ace Marketing
& Promotions, Inc.
   

Mobiquity

Networks

Inc. 

    Total  
Net sales   $ 2,995,032       162,500     $ 3,157,532  
Operating (loss)     (3,775,827 )     (1,795,529 )     (5,571,356 )
Interest income     274             274  
Interest (expense)     (227,094 )           (227,094 )
Depreciation and amortization     (99,860 )     (189,429 )     (289,289 )
Net Loss     (4,102,507 )     (1,984,958 )     (6,087,465 )
Total assets at December 31, 2013     2,287,313       941,191       3,228,504  

 

All intersegment sales and expenses have been eliminated from the table above.

 

NOTE 13. COMMITTED EQUITY FACILITY AGREEMENT/REGISTRATION RIGHTS AGREEMENT

 

On June 12, 2012, Mobiquity finalized a committed equity facility (the “Equity Facility”) with TCA Global Credit Master Fund, LP, a Cayman Islands limited partnership (“TCA”), whereby the parties entered into as of May 31, 2012 (i) a committed equity facility agreement (the “Equity Agreement”) and (ii) a registration rights agreement (the “Registration Rights Agreement”).

 

Committed Equity Facility Agreement

 

On June 12, 2012, the Company finalized an Equity Agreement with TCA. Pursuant to the terms of the Equity Agreement, for a period of twenty-four months commencing on the effective date of the Registration Statement (as defined herein), TCA shall commit to purchase up to $2,000,000 of the Company’s common stock (the “Shares”), pursuant to Advances (as defined below), covering the Registrable Securities (as defined below). The purchase price of the Shares under the Equity Agreement is equal to ninety-five percent (95%) of the lowest daily volume weighted average price of the Company’s common stock during the five (5) consecutive trading days after the Company delivers to TCA an Advance notice in writing requiring TCA to advance funds (an “Advance”) to the Company, subject to the terms of the Equity Agreement.

 

F-21
 

 

The “Registrable Securities” include (i) the Shares; and (ii) any securities issued or issuable with respect to the Shares by way of exchange, stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.

 

As further consideration for TCA entering into and structuring the Equity Facility, the Company shall pay to TCA a fee by issuing to TCA that number of shares of the Company’s common stock that equal a dollar amount of one hundred thousand dollars ($100,000) (the “Facility Fee Shares”). It is the intention of the Company and TCA that the value of the Facility Fee Shares shall equal $100,000. In the event the value of the Facility Fee Shares issued to TCA does not equal $100,000 after a ninth month evaluation date, the Equity Agreement provides for an adjustment provision allowing for necessary action to adjust the number of shares issued. In June 2012, the Company issued 196,078 shares of common stock as the initial Facility Fee Shares. As of December 31, 2013, a total of 8,000 shares have been issued and paid for pursuant to the Equity Facility.

 

Registration Rights Agreement

 

On June 12, 2012, the Company finalized the Registration Rights Agreement with TCA. Pursuant to the terms of the Registration Rights Agreement, the Company is obligated to file a registration statement (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC’) to cover the Registrable Securities. The Company must use its commercially reasonable efforts to cause the Registration Statement to be declared effective by the SEC. On April 12, 2013, a Registration Statement was declared effective by the SEC covering the resale of up to 5,000,000 shares under the Equity Agreement.

 

NOTE 14: SUBSEQUENT EVENTS 

 

There are no subsequent events required to be disclosed in the Notes to Financial Statements through the date of the report, except as follows:

 

Between January 1, 2014 and the date of this report, the Company has raised gross proceeds of $2,160,300 from the sale of its Common Stock (including $175,000 of the stock subscription receivables) at $.30 per share. In connection with this private placement offering, the Company has issued 7,201,000 shares of Common Stock and Class BB Warrants to purchase 3,600,500 shares of Common Stock at an exercise price of $.50 per share through December 15, 2017.

 

F-22
 

 

   MOBIQUITY 
   TECHNOLOGIES, INC. 
Condensed Consolidated Balance Sheets        
   September 30,   December 31, 
   2014   2013 
   Unaudited   Audited 
Assets          
           
Current Assets:          
Cash and cash equivalents  $1,460,473   $1,740,989 
Accounts receivable, net of allowance for doubtful accounts of $30,000 and $30,000 as of 2014 and 2013, respectively   361,939    433,856 
Inventory   202,737    109,073 
Prepaid expenses and other current assets   126,838    141,921 
Total Current Assets   2,151,987    2,425,839 
           
Property and equipment, net of accumulated depreciation of $772,977 and $597,396 as of September 30, 2014 and December 31, respectively   315,893    466,772 
           
Intangible assets, net of accumulated amortization of $221,696 and $153,416 as of 2014 and 2013, respectively   233,504    301,784 
           
Other Assets   34,030    34,109 
Total Assets  $2,735,414   $3,228,504 
           
Liabilities and Stockholders' Equity          
           
Current Liabilities:          
Accounts payable  $539,237   $485,401 
Accrued expenses   99,666    177,943 
Convertible promissory note   322,000    322,000 
Note Payable-Investors   253,083     
Total Current Liabilities   1,213,986    985,344 
           
Commitments and Contingencies        
           
Stockholders' Equity:          
Preferred Stock, $.0001 par value; 5,000,000 shares authorized, and December 31, 2013 respectively 0 and 0 shares issued and outstanding at September 30, 2014         
Common stock, $.0001 par value; 200,000,000 and 100,000,000 shares authorized; 63,805,451 and 52,402,247 shares issued and outstanding at 2014 and 2013, respectively   6,381    5,240 
Additional paid-in capital   27,400,241    21,948,920 
Stock subscription receivable       (175,000)
Accumulated other comprehensive income (loss)   (459)   1,268 
Accumulated deficit   (25,853,234)   (19,505,767)
    1,552,929    2,274,661 
Less: Treasury Stock, at cost, 23,334 shares   (31,501)   (31,501)
Total Stockholders' Equity   1,521,428    2,243,160 
Total Liabilities and Stockholders' Equity  $2,735,414   $3,228,504 

 

 

See notes to condensed consolidated financial statements.

 

F-23
 

 

<
    MOBIQUITY 
    TECHNOLOGIES, INC. 
Condensed Consolidated Statement of Operations     
   Three Months Ended   Nine Months Ended 
   September 30,   September 30, 
   Unaudited   Unaudited 
   2014   2013   2014   2013 
                 
Revenues, net  $714,044   $668,719   $2,273,395   $2,263,812 
Cost of Revenues   610,119    441,061    1,859,497    1,652,449 
Gross Profit   103,925    227,658    413,898    611,363 
                     
Operating Expenses:                    
Selling, general and administrative expenses   2,144,255    1,396,637    6,697,392    4,658,596 
Total Operating Expenses   2,144,255    1,396,637    6,697,392    4,658,596 
                     
Loss from Operations   (2,040,330)   (1,168,979)   (6,283,494)   (4,047,233)
                     
Other Income (Expense):