UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [Fee Required]
For the fiscal year ended December 31, 2006 or
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [No Fee Required]
For the transition period from ________ to _______
Commission file number: 1-14088
Acacia Automotive, Inc.
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(Exact name of registrant as specified in its charter)
Texas 75-2095676
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(State or other jurisdiction (I.R.S. Employer Identification No.
of incorporation or organization)
1515 East Silver Springs Blvd. - Suite 118.4, Ocala FL 34470
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (352) 351-4333
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Gibbs Construction, Inc.
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(Former name, former address and former fiscal year, if changed since last
report)
Securities registered under Section 12(b) of the Exchange Act:
Title of each class Name of each exchange on which registered
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Securities registered under Section 12(g) of the Exchange Act;
Common Stock
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(Title of Class)
Indicate by check and mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the past
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes [ ] No [X]
Indicate by check mark if there is no disclosure of delinquent filers
in pursuant to Item 405 of Regulation S-K is not contained in this form, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of Form
10-K or any amendment to this Form 10-K. Yes [ ] No [X]
State issuer's revenues for its most recent fiscal year. $0
State the aggregate market value of the voting stock held by
non-affiliates of the registrant. The aggregate market value shall be computed
by reference to the price at which the stock was sold, or the average bid and
asked price, as of a specified date within 60 days prior to the date of filing
$1,255,022 As of March 26, 2007.
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date: 10,435,023
Item 1. Description of Business
Background
Acacia Automotive, Inc. was originally formed in 1984 and, when named
Gibbs Construction, Inc. grew to a full service, national commercial
construction company, completing an initial public offering of its Common Stock
to the public in January, 1996. In April, 2000, Gibbs Construction, Inc. filed
for protection under Chapter 11 of the United States Bankruptcy Code following
the filing for similar protection of the Company's largest client and which
followed the incursion of significant losses on several projects.
Prior to filing for protection under the United States Bankruptcy Code
in April 2000, Gibbs Construction, Inc. had 4,060,000 shares of Common Stock
issued and outstanding. The bankruptcy reorganization proceeding placed the
existing assets of Gibbs Construction, Inc. in a liquidating trust, issued
501,000 shares of Common Stock to the trust, and agreed to issue 1,000,000
shares of preferred stock to a creditor. Thacker Asset Management, LLC ("TAM")
agreed to sell to the Company certain existing contracts, furniture, fixtures
and equipment in exchange for 4,000,000 shares of Common Stock. Following these
transactions, there were 8,561,000 shares of the Company's Common Stock issued
and outstanding.
TAM's operations were not successful, and all operating activities
ceased in 2002. On June 26, 2006, the bankruptcy trustee requested and received
an Order for Final Decree. The 501,000 shares of common stock issued to the
Trust were abandoned and returned to the Company on October 5, 2006 and
cancelled leaving 8,060,000 shares issued and outstanding.
Post Bankruptcy Restructuring
On August 15, 2006, Steven L. Sample acquired for $50,000, 4,000,000
shares, or 46.7%, of the 8,561,000 issued and outstanding shares of Common Stock
of the registrant from TAM and its associates. In addition Mr. Sample paid costs
totaling $138,862, such costs including the costs associated with completing the
bankruptcy proceedings and costs such as arranging for the Company's SEC filings
to be brought current, and the registrant agreed to effect a one for eight
reverse stock split, to issue to Mr. Sample an additional 8,117,500 shares of
Common Stock and 500,000 shares of preferred stock. For the assistance of a
principal of the entity owning Thacker Asset Management, LLC, Baker #1, Ltd.,
the registrant agreed to issue to that principal 25,000 shares of preferred
stock and 450,000 shares of Common Stock.
To fulfill its obligations under this agreement and further restructure
the Company, the registrant's board of directors recommended that its
stockholders amend the corporate charter to effect a one for eight reverse stock
split, to increase the number of authorized shares of Common Stock to
150,000,000 and agreed to create and establish a series of preferred stock. The
distinguishing feature of the preferred stock is that each share has 50 votes,
but if Mr. Sample or the other recipient transfers the shares to any other
entity other than for estate planning purposes, the shares automatically convert
on a share for share basis to Common Stock and, in any event, automatically
convert to Common Stock upon the death of either recipient. Mr. Sample will hold
the right to vote all such shares to be issued for a period of nine years.
Further, the creditor that received the commitment for 1,000,000 shares of
preferred stock agreed, upon implementation of the above amendments, to receive
in lieu thereof 100,000 shares of post-split common stock.
On February 1, 2007, the Company's shareholders approved these actions,
including changing the Company's name to Acacia Automotive, Inc. and the
amendment to the Company's charter was effective February 20, 2007.
Immediately following the approval of these amendments, the Company
adopted a stock option plan, which is anticipated to be submitted to the
Company's stockholders in fiscal 2007 for ratification, reserving 1,000,000
shares thereunder. The directors then granted pursuant to the plan 500,000
restricted shares to Mr. Moorby, the Company's president and options to two
officers of the Company for another 15,000 shares. With these grants, the
exercise of warrants to purchase 250,000 shares of Common Stock and the payment
of 10,000 shares of Common Stock to a consultant, there were 10,435,023 shares
of Common Stock issued and outstanding on March 26, 2007.
Contemplated Business
The Company's prime objective is to acquire going and functioning
profitable automotive auctions with a trailing record of financial success,
focusing on whole vehicle automobiles and light trucks. Whole vehicle refers to
vehicles that are generally in good repair, are roadworthy and operate under
their own power as opposed to salvage units, that is, damaged vehicles that are
considered total losses for insurance or business purposes. In addition, the
Company believes that if the acquired auction or auctions do not service the
boat, recreational or motor home segments or the medium and heavy duty truck and
equipment segments, it will seek to add one or more of those services to the
auction's activities, assuming the local market will support such additional
services.
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The Company anticipates that its first acquisition of an automobile
auction will constitute the basis services rendered by the Company. The Company
will have to raise cash to acquire existing automobile auctions, probably
through the sale of Common Stock.
Industry
Automotive auctions are the hub of a massive redistribution system for
used vehicles and equipment. These auctions enable commercial and institutional
customers and selling dealers to easily dispose of their used vehicles to
franchised, independent, and wholesale used vehicle and equipment dealers. The
auction's responsibility is to maximize the selling price obtained for clients'
used vehicles and equipment, efficiently transfer the physical and
administrative ownership of the units (including the preparation and transfer of
certificates of title and other evidence of ownership), and transfer funds
resulting from the buy/sell transactions as quickly as possible from the buyers
to the sellers. The auction promotes its services to a large number of dealers
seeking to restock their inventories for resale opportunities. Auctions are
traditionally held weekly, if not more frequently, at the various locations to
accommodate the needs of buyers and sellers in diverse segments of the industry.
During the process, auctions do not generally take title to or ownership of the
vehicles consigned for sale, but instead facilitate the transfer of vehicle
ownership directly from seller to buyer, and in so doing they generate fees from
the buyer and from the seller. In addition to these "buy/sell" fees, the
auctions can generate substantial revenues by providing other services to
clients, including: vehicle appearance reconditioning (detailing) services;
paint and body repair; paintless dent repair (PDR); glass repair and
replacement; key replacement; upholstery repair; minor mechanical repair; title
services; sales of tires, batteries and accessories (TBA); marshaling
(controlled storage) and inspection services, inbound and outbound
transportation and delivery services, and more. In most instances, customers may
also purchase each of these value-added services separately and directly from
the auction in addition to having these services performed to units enrolled in
the normal vehicle auction process.
The total number of vehicles offered for sale, and the total number of
vehicles sold allow for determination of the total and per unit costs incurred
and fees generated by the process. An important measure to the results of the
used vehicle auction process is the conversion percentage, which represents the
number of vehicles sold as a percentage of the vehicles offered for sale. In
general, a high sales volume and conversion percentage efficiency at an auction
converts to increased fees, lower costs, and greater profit opportunities. Auto
auctions can also provide additional services to their clients, often including:
(1) in-house services such as processing, advertising and marketing of the
vehicles to be offered for sale; registration of new dealers and clients;
processing of sale proceeds and other funds; handling arbitration disputes from
the auction sale/purchase process; preparation of and transmittal of vehicle
condition reports; security services for client inventories; creation and
distribution of sales and marketing reports; as well as the actual sale of
vehicles by licensed auctioneers; (2) internet-based solutions, including
on-line bulletin board auctions and on-line live auctions that are simulcast in
real-time in cooperation with the actual physical auctions; and, (3) title
processing and other paperwork administration and ancillary services.
Competition
The Company anticipates competing principally by service. Management of
the Company believes that service is one keystone upon which auto auctions are
routinely measured, and has identified and made the practical execution of a
high level of service to its clients an integral part of its business and
operating plans.
The industry served by the Company is highly competitive across the
entire United States and Canada. It is anticipated that any of our acquisition
targets would potentially compete with a variety of knowledgeable and
experienced companies. The Company will attempt to commence its operations with
an acquisition in Florida, but there is no assurance it will be able do so. The
main competitors in Florida and the rest of the United States are: (1) Manheim
Auto Auctions: Manheim, a privately-held subsidiary of Cox Enterprises, has some
eleven auctions in Florida and approximately 86 auto auctions throughout the
country. Manheim owns several of the country's largest auction facilities, and
management considers them to be very competitive and the leader in technological
processes and Internet marketing capabilities. (2) ADESA Auto Auctions: ADESA
(NYSE:KAR) is the second-largest auto auction company in North America with
approximately 54 auctions. They operate some 40 auctions in the United States
and 14 in Canada. The Company's Management believes that ADESA's technological
processes and Internet marketing capabilities, while lagging those of Manheim,
are nonetheless formidable. ADESA operates four whole-car auctions in Florida,
but management does not believe that ADESA has a strong presence compared to its
competition in that state. (3) Auction Broadcasting Company (ABC): ABC owns and
operates approximately seven auctions nationally with one in the state of
Florida. While not nearly so large in their technological processes and Internet
marketing capabilities as Manheim or ADESA, ABC has worked to develop a diverse
model from its competitors. It has developed studios in which buyers may bid on
vehicles from a comfortable setting in a lounge-type environment. Management
does not believe that ABC will gain a substantially greater position in the
traditional auction arena marketplace, and in fact may be reducing the size of
its brick and mortar operations in favor of moving deeper into the Internet and
technology side of the business. (4) independent auto auctions: There are at
least ten independent auto auctions operating in Florida, and it is believed
that there are many more. While some independent auctions are highly competitive
and aggressive, most are not considered to be serious contenders. (5) "mobile"
auctions: There are several companies that operate "mobile" auctions. Their
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plans primarily entail engaging larger dealerships to host periodically
"on-site" auctions that utilize these companies' auctioneering and
administrative services. Management does not believe these smaller independent
mobile auctions are a substantial threat to our operations and will not likely
become so under their present business models.
All our competitors will be seeking the same or similar clients to
those targeted by our planned operations in every state in which we may seek to
operate, many of which presently have significantly greater financial,
technical, marketing and other resources than our Company. Our Company expects
that it will face additional competition from existing competitors and new
market entrants in the future. The principal competitive factors in our markets
will emanate from the larger national companies and will include: (i) brand name
recognition of competitors; (ii) larger, more modern, and better-equipped
facilities; (in) superior Internet system engineering and technological
expertise; (iv) more extensive staffs of experienced management and support
personnel; (v) broader geographic presence; (vi) greater financial resources;
(vii) introductions of new and enhanced services and products; and, (viii)
greater variety of services offered. We will have no control over how successful
our competitors are in addressing these factors. Increased competition can
result in price reductions, reduced gross margins and loss of market share, any
of which could harm our net revenue and results of operations. The Company will
rely upon its ability to offer the same or similar services as the competition,
but with a higher level of service and customer satisfaction.
The prices to be charged by any auction the Company may acquire will
generally be reflective of the competitive pricing in its local marketplace.
Some of these local markets may face competitive pressures from national
automobile auction chains such as ADESA and Manheim which have size, financial
and market strengths the Company lacks.
Employees
The company currently has two employees, Steven L. Sample, its Chief
Executive Officer, and Tony Moorby, its President and Chief Operating Officer.
If the Company is successful in raising the capital required to implement its
plan, and subsequently is successful in making one or more acquisitions of
operating auto auctions, it will acquire the employees of any acquisition. A
given automobile auction will employ both full and part-time personnel and the
number of employees may vary from as few as 10 to as many as 200. The
approximate size of our target auctions may more likely lie within the range of
40 to 100 employees.
The parent company, upon any successful course of acquiring auctions,
would need to expand its staff to implement the controls necessary to manage a
larger organization. This would likely result in the need for a Chief Financial
Officer, as well other officers and managers and basic support personnel The
Company will undertake to operate with the smallest corporate management staff
possible so as to maintain the lowest overhead possible while still effecting
sufficient management processes to properly guide the company.
Item 2. Description of Property.
The Company currently leases its principal offices on a one year lease,
renewable, which expires on May 31, 2007, for a monthly lease payment of
$468.61. Upon success of the Company's efforts to raise capital, the Company
plans to move its principal office to the Nashville, Tennessee area; and to
acquire an auto auction or auctions and to otherwise implement its business
plans, it anticipates that additional office space could be required. It may
also find it necessary to move and/or enlarge its leased office space as a
result of any acquisition and its location.
Item 3. Legal Proceedings
On June 26, 2006, approximately six years after filing, the United
States Bankruptcy Court for the Northern District of Texas, Dallas Division
closed the Gibbs construction, Inc. bankruptcy proceeding case following an
application for Final Decree.
Item 4. Submission of Matters to a Vote of Security Holders
On February 1, 2007, the Company held a special meeting of stockholders
for which proxies had been solicited by the Company. At the meeting the Company
requested the stockholders approve amendments to the Company's charter to effect
a one for eight reverse stock split, increase the number of authorized shares to
150,000,000, authorize the issuance of 2,000,000 shares of preferred stock, and
change the name of the Company to Acacia Automotive, Inc. Each of the matters
was approved as follows:
1. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION TO EFFECT A ONE FOR EIGHT REVERSE STOCK SPLIT;
FOR AGAINST ABSTAIN
5,582,482 31,200 7,000
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2. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES TO 150,000,000,
CHANGING THE PAR VALUE FROM $0.01 PER SHARE TO $0.001 PER SHARE;
FOR AGAINST ABSTAIN
5,581,250 32,235 7,197
3. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION TO AUTHORIZE 2,000,000 SHARES OF PREFERRED STOCK, GRANTING THE
DIRECTORS THE POWER TO ESTABLISH THE RIGHTS, POWERS, AND PRIVILEGES OF A SERIES
OF PREFERRED STOCK.
FOR AGAINST ABSTAIN
5,581,250 32,432 7,000
4. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION TO CHANGE THE NAME OF THE CORPORATION TO ACACIA AUTOMOTIVE, INC.
FOR AGAINST ABSTAIN
5,582,432 3,000 30,200
PART II
Item 5. Market for Common Equity and Related Stockholder Matters.
There has been sporadic trading in our stock for the last two fiscal
years in the pink sheets. We are presently traded in the pink sheets under the
symbol ACCA. The following table sets forth information as reported by the
National Association of Securities Dealers Composite Feed or Other Qualified
Interdealer Quotation Medium for the high and low bid and ask prices for each of
the eight quarters ending December 31, 2006, and does not give effect to the one
for eight reverse stock split.
Closing Bid Closing Ask
High Low High Low
Quarters ending in 2005
March 31 $0.011 $0.005 $0.015 $0.01
June 30 0.005 0.005 0.015 0.01
September 30 0.005 0.005 0.015 0.015
December 31 0.005 0.005 0.015 0.01
Quarters ending in 2006
March 31 0.005 0.005 0.01 0.01
June 30 0.005 0.005 0.01 0.01
September 30 0.02 0.005 0.05 0.01
December 31 0.02 0.015 0.05 0.03
As of March 26, 2007, the Company had approximately 75 stockholders of
record.
Holders of common stock are entitled to receive dividends as may be
declared by our board of directors and, in the event of liquidation, to share
pro rata in any distribution of assets after payment of liabilities. The board
of directors has sole discretion to determine: (i) whether to declare a
dividend; (ii) the dividend rate, if any, on the shares of any class of series
of our capital stock, and if so, from which date or dates; and (iii) the
relative rights of priority of payment of dividends, if any, between the various
classes and series of our capital stock. We have not paid any dividends and do
not have any current plans to pay any dividends.
At its meeting of directors on February 1, 2007, the Company's board of
directors approved its 2007 Stock Option Plan which is planned to be submitted
to the Company's stockholders during the 2007 fiscal year and reserved 1,000,000
shares to be issued thereunder. At that meeting, the directors granted
restricted stock to two individuals and options to two individuals, summarized
as follows:
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SUMMARY OF EQUITY COMPENSATION PLANS
Number of Weighted
Securities to be Average Number of
Issued Upon Exercise Price Securities
Exercise of of Remaining
Outstanding Outstanding Available for
Options and Options and Future
Plan Description Warrants Warrants Issuance
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Warrants not approved by stockholders 250,000 $0.01 -
Grants Under Compensation Plans Not
Approved by shareholders 525,000 $0.01 475,000
Totals 775,000 $0.01 475,000
On February 21, 2007 the Company's Board of Directors adopted the 2007
Stock Incentive Plan for the grant to employees, officers, directors and
consultants to the Company, parent or subsidiary of the Company of up to
1,000,000 shares of the Company's Common Stock, subject to adjustment in the
event of any subdivision, combination or reclassification of shares. Beginning
with calendar year 2007, the number of shares authorized under the plan shall
automatically increase by an amount equal to 4% of the total number of shares of
Common Stock outstanding on the last trading day of December of the immediately
preceding calendar year. However, in no event shall any such annual increase
exceed 400,000 shares.
There are five programs under the 2007 Stock Incentive Plan under which
(i) eligible persons may be granted options to purchase Common Stock for
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, and employees and others may be granted
non-qualified options; (ii) eligible employees may have a portion of their base
salary invested in special option grants; (iii) eligible persons may be issued
shares of Common Stock directly, either through immediate purchase of shares or
as a bonus; (iv) non-employee directors shall receive option grants upon
adoption of the plan or upon becoming a director and at designated intervals
over the period of continued board service; and (v) non-employee board members
may have their annual retainer fee otherwise payable in cash applied to a
special option grant.
The Discretionary Option Grant Program provides for the grant of
incentive stock options to employees within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended. Employees, non employee members of
the Board of Directors, Consultants and other independent advisors who provide
services to the Company may also participate in the Discretionary Option Grant
Program although such grants would not be incentive stock options. The exercise
price of any option will not be less than the fair market value of the shares at
the time the option is granted. The options granted are exercisable at the times
or upon the events determined by the Plan Administrator set forth in the grant,
but no option is exercisable more than ten years from the date of the grant. The
options are non-transferable except by will or by laws of descent and
distribution. Upon merger or consolidation of the Company or the sale, transfer
or other disposition of all or substantially all of the Company's assets in
complete liquidation or distribution of the Company, options granted under the
Discretionary Option Grant Program become fully exercisable.
The Salary Investment Options Grant Program provides for the grant of
an option to certain executives in which the executive agrees to reduce his or
her salary by an amount not less than $10,000 nor more than $50,000. The option
is for a number of shares determined by dividing 150% of the amount of the
reduced salary by the fair market value per share of Common Stock on the date of
the option grant. The exercise price is one-third of the fair market value per
share of Common Stock on the date of the grant. The options are non-transferable
except by will or by laws of descent and distribution. Upon merger or
consolidation of the Company or the sale, transfer or other disposition of all
or substantially all of the Company's assets in complete liquidation or
distribution of the Company, options granted under the Salary Investment Options
Grant Program become fully exercisable.
Pursuant to the Stock Issuance Program, the Plan Administrator may
grant the issuance of stock directly to certain executives of the Company,
non-employee members of the Board of Directors and consultants and other
independent advisors that provide services to the Company. The Plan
Administrator has the discretion to determine whether grants may vest in one or
more installments or upon attainment of specific performance objectives except
to the extent that the Company assigns to a successor corporation or is
otherwise imposed. Upon merger or consolidation of the Company or the sale,
transfer or other disposition of all or substantially all of the Company's
assets in complete liquidation or distribution of the Company, options granted
under the Stock Issuance Program become fully exercisable.
The Automatic Option Grant Program provides that each non-employee
director on February 1, 2007, or upon a director's initial appointment as a
director subsequent to February 1, 2007, shall receive an option for 10,000
shares at a price equal to the fair market value on February 1, 2007, deemed by
the board of directors to be equal to $0.01 per share on that date, or, if
appointed subsequent to February 1, 2007, the date of the director's initial
appointment to serve as a director. The term of such option is ten years,
provided, however that an option holder must exercise any option within 12
months upon ceasing to be a director. Although all of the shares may be
purchased upon the date of the grant, the Company may repurchase such shares.
However, the Company's right to repurchase the shares ceases with respect to
1,666 shares every six months following the date of the original grant of the
option. Furthermore, provided one has been a director for two months prior to
the Annual Meeting of Shareholders, a non-employee director automatically
receives an option for 15,000 shares of stock with an exercise price equal to
the closing price of the Company's Common Stock on the date of the annual
Meeting of Shareholders. Such shares automatically vest subject to the Company's
right to repurchase the shares. This right of repurchase ceases six months after
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the annual Meeting of Stockholders with respect to 7,500 shares and ceases
twelve months after the Annual Meeting of Stockholders with respect to all of
such 15,000 shares. Upon merger or consolidation of the Company or the sale,
transfer or other disposition of all or substantially all of the Company's
assets in complete liquidation or distribution of the Company, options granted
under the Automatic Option Grant Program become fully exercisable and any right
of the Company or successor to repurchase ceases.
The Director Fee Option Grant Program is similar to the Salary
Investment Option Grant Program in that non-employee directors may elect to have
all or a portion of the annual retainer fee that is otherwise payable in cash.
The option is for a number of shares determined by dividing 150% of the amount
of the reduced fee by fair market value per share of Common Stock on the date of
the option grant. The exercise price shall be one-third of the fair market value
per share of Common Stock on the date of the grant. Upon merger or consolidation
of the Company or the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete liquidation or
distribution of the Company, options granted under the Discretionary Option
Grant Program become fully exercisable.
Item 6. Management's Discussion and Analysis or Plan of Operations.
For each of the fiscal years ended December 31, 2003, 2004, and 2005,
the Company had no operations, income, expenses, assets or liabilities or other
activity. With the funding by Mr. Sample of the costs of completing the
Company's bankruptcy proceeding, which was completed in June 2006, Mr. Sample
commenced a plan to revive the Company by acquiring automobile auctions. This
plan required the funding by Mr. Sample of certain Company debts which, although
discharged in the bankruptcy proceeding, required payment to commence operating
as a public entity. Further, the revival of the Company as a public entity
required substantial expenditures for legal and accounting fees, among other
costs.
For the fiscal year ended December 31, 2006, the Company incurred a
loss of $944,489 of which $497,794 was the cost expensed for warrants granted by
the Company to a third party and $215,570 reflects accrued salaries for two
officers of the Company. The Company incurred another $197,341 General and
Administrative Expenses of which Mr. Sample personally paid $138,862, for which
he was issued, in 2007, stock.
The implementation of Mr. Sample's plan required the reorganizing of
the Company's capital structure, and a plan was approved by the Company's
stockholders on February 1, 2007. Simultaneously, it required the raising of
additional capital, a process which is anticipated to be completed in the first
six months of 2007. With the additional capital, the Company will attempt to
acquire automobile auctions. The plan for an acquired auction or auctions will
depend upon the auction or auctions acquired. The Company did not hold any
discussions with any potential auction to be acquired until the Company
completed the reorganizing of its capital structure. See Item 1. - Description
of Business.
Without a successful raising of additional capital of at least
$1,000,000, the Company will not be able to commence operations.
Item 7. Financial Statements and Supplementary Data.
The response to this item is submitted as a separate section of this
Form 10-K. See "Item 13. Exhibits, Financial Statements and Reports on Form
8-K."
Item 8. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure.
None
ITEM 8A. CONTROLS AND PROCEDURES.
Annual Evaluation of Our Disclosure Controls and Internal Controls
Within the 90 days prior to the date of this Annual Report on Form
10-KSB, management evaluated the effectiveness of the design and operation of
the Company's disclosure controls and procedures and the internal controls and
procedures for financial reporting. This controls evaluation was done under the
supervision and with the participation of the Chief Executive Officer (CEO) and
Chief Financial Officer (CFO), both offices being performed by Steven L. Sample.
Following are the conclusions of Mr. Sample, acting as the Company's CEO and the
CFO, with respect to the effectiveness of our disclosure controls and internal
controls as of March 15, 2007.
CEO and CFO Certifications
Appearing immediately following the Signatures section of this Annual
Report on Form 10-KSB there are certifications of the CEO and the CFO. The
certifications are required in accordance with Section 302 of the Sarbanes-Oxley
Act of 2002. This section of the Annual Report is the information concerning the
controls evaluation referred to in the Section 302 certifications and this
information should be read in conjunction with the Section 302 certifications
for a more complete understanding of the topics presented.
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Disclosure Controls and Internal Controls
Disclosure controls are procedures that are designed with the objective
of ensuring that information required to be disclosed in reports filed under the
Securities Exchange Act of 1934, or the Exchange Act, such as this Annual
Report, is recorded, processed, summarized and reported within the time periods
specified in the SEC's rules and forms. Disclosure controls are also designed
with the objective of ensuring that such information is accumulated and
communicated to management, including the CEO and CFO, as appropriate to allow
timely decisions regarding required disclosure. Internal controls are procedures
which are designed with the objective of providing reasonable assurance that the
Company's transactions are properly authorized, its assets are safeguarded
against unauthorized or improper use and transactions are properly recorded and
reported, all to permit the preparation of the Company's financial statements in
conformity with generally accepted accounting principles.
Scope of the Controls Evaluation
The evaluation of our disclosure controls and our internal controls by
our CEO and our CFO included a review of all previously existing controls as
well as those recently implemented by the Company and the effect of the controls
on the information generated for use in this Annual Report on Form 10-KSB. In
the course of the controls evaluation, management sought to identify data
errors, controls problems or acts of fraud and to confirm that appropriate
corrective action, including process improvements, were being undertaken. The
internal controls are also evaluated on an ongoing basis by the Company's
independent auditors in connection with their audit and review activities. The
overall goals of these various evaluation activities are to monitor the
Company's disclosure controls and internal controls and to make modifications as
necessary, with the intent being that the disclosure controls and the internal
controls will be maintained as dynamic systems that change (including with
improvements and corrections) as conditions warrant. Among other matters,
management sought in its evaluation to determine whether there were any
"significant deficiencies" or "material weaknesses" in the Company's internal
controls, or whether any acts of fraud involving personnel who have a
significant role in the internal controls were identified. This information was
important both for the controls evaluation generally and because Items 5 and 6
in the Section 302 certifications of the CEO and the CFO require that the CEO
and the CFO disclose such information to the Company's Board of Directors, which
acts as the Company's Audit Committee, and to the independent auditors and to
report on related matters in this section of the Annual Report on Form 10-KSB.
In the professional auditing literature, "significant deficiencies" are referred
to as "reportable conditions." These are control issues that could have a
significant adverse effect on the ability to record, process, summarize and
report financial data in the financial statements. A "material weakness" is
defined in the auditing literature as a particularly serious reportable
condition where the internal control does not reduce to a relatively low level
the risk that misstatements caused by error or fraud may occur in amounts that
would be material in relation to the financial statements and not be detected
within a timely period by employees in the normal course of performing their
assigned functions. Management also sought to deal with other controls matters
in the controls evaluation and, in each case if a problem was identified, to
consider what revision, improvement and/or correction to make in accordance with
ongoing procedures.
Conclusions
Based upon the controls evaluation, Mr. Sample, acting as the Company's
CEO and CFO has concluded that the Company's disclosure controls are effective
to ensure that material information relating to the Company is made known to
management particularly during the period when the Company's periodic reports
are being prepared, and that the Company's internal controls are effective to
provide reasonable assurance that the Company's financial statements are fairly
presented in conformity with generally accepted accounting principles. Further,
since the date of the controls evaluation to the date of this Annual Report,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
ITEM 8B. OTHER INFORMATION.
Not applicable
7
PART III
Item 9 Directors, Executive Officers, Promoters and Control Persons; Compliance
With section 16(a) of the Exchange Act.
Executive Officers and Directors
The directors and executive officers of the Company, and their respective
ages, as of November 15, 2006, and positions held with the Company, are as
follows:
Name Age Position
Steven L. Sample 59 Director, Chairman of the Board, and
Chief Executive Officer
Tony Moorby 58 Director, President and
Chief Operating Officer
Patricia Ann Arnold 50 Secretary
Danny Gibbs 49 Director
James C. Hunter, MD 49 Director
V. Weldon Hewitt 68 Director
Mr. Sample became a director and officer of the Company in August 2006
when he was named as a Director and Chief Executive Officer. From January 2004
through December 2005, he served as Executive Director of Sales for ADESA
Corporation, a firm that operates automobile auctions throughout the United
States and Canada. From January 2002 through December 2003, he was the General
Sales Manager of ADESA's Ocala Florida Auto Auction. From September 1990 through
December 2001, he was employed by Mid-America Auto Auction, an ADT Automotive
Auction acquired by Manheim Auctions in 2000, with Mr. Sample eventually serving
as General Sales Manager.
Mr. Moorby joined the Company in October 2006 when he was named as a
director and as President and Chief Operating Officer. Beginning in February
2006 he was a Principal of Tony Moorby & Associates, an automotive consultant
firm and in June 2006 became a member of Board of Trustees, National Independent
Automobile Dealers' Association (NIADA). From February 2002 through February
2006, he was Managing Partner of Flying Lion Dealer Services, a dealer services
business, and from October 2000 through October 2002 he was Executive Vice
President of ADESA Corp where he was responsible for corporate development. From
January 1997 through October 2000 he was President and Chief Executive Officer
of ADT Automotive Auction, an automobile auction company with 28 outlets which
was sold to Manheim Auctions in October 2000. Prior to 1997 and commencing in
1982, Mr. Moorby was employed by ADT Automotive Auction for the majority of the
time.
Patricia Ann Arnold was named Secretary of the Company on February 1,
2007. Ms. Arnold has served as a Labor Employment Paralegal with the law firm of
Baker, Donelson, Bearman & Caldwell since June 2002 and as a Litigation
Paralegal with the law firm of Stewart Estes and Donel from 1997 to 2002, both
in Nashville, Tennessee. Prior to that Ms. Arnold was employed in similar
positions with law firms in Nashville, Tennessee, and Louisville, Kentucky,
since 1984.
Mr. Gibbs, a co-founder of Gibbs Construction, Inc. served as its
president, general manager, director, and chief financial officer until November
2000 when the Company's assets and liabilities were transferred to a receiver in
bankruptcy. The Company's bankruptcy also resulted in Mr. Gibbs's personal
bankruptcy. From January 2000 through December 2003, Mr. Gibbs was a Senior
Project Manager for Thacker Operating Company responsible for estimating costs
of construction projects, managing and overseeing them. Beginning in January
2004 he became a Senior Project Manager for Dimensional Construction, Inc. with
similar responsibilities.
Dr. Hunter was appointed to the board of directors on February 1, 2007.
In 2005 he was named Chief Medical Officer, Cape Fear Valley Health System in
Fayetteville, North Carolina where he is responsible for physician credentialing
and relations with oversight for all quality efforts. From 1998 to 2005 he was
Senior Vice President of Medical Affairs and Chief Quality Officer of Munroe
Regional Health System in Ocala, Florida where he had similar responsibilities.
During that time, Dr. Hunter earned his MBA degree. From 1995 to 1998 he served
as Director of Inpatient Clinical Affairs, Inpatient Internal Medicine, and
Emergency Medicine for two healthcare organizations in Myrtle Beach, South
Carolina. Prior to 1995 Dr. Hunter was an Emergency Physician.
Mr. Hewitt was appointed to the board of directors on February 1, 2007.
Since 1985 he has been the owner and Chief Executive Officer of Hewitt
Marketing, Inc., which provides original equipment manufacture radios and other
media devices and electronics, mobile cellular telephones, power-actuated
equipment and accessories to many major vehicle manufacturers. Prior to 1985,
8
Mr. Hewitt founded and served as Chief Executive officer of an original
equipment manufacturer that attained as high as $20,000,000 in annual revenues
providing audio systems for luxury cars.
Committees of the Board of Directors
The Company presently does not have a separately-designated Audit
Committee, but management of the Company plans to ask the Company's Board of
Directors to establish an Audit Committee and a Compensation Committee, each
consisting of at least two directors, none of whom will be an officer or
employee of the Company. The duties of the Audit Committee will be to recommend
to the entire Board of Directors the selection of independent certified public
accountants to perform an audit of the financial statements of the Company, to
review the activities and report of the independent certified public
accountants, and to report the results of such review to the entire Board of
Directors. The Audit Committee will also monitor the internal controls of the
Company. The duties of the Compensation Committee will be to provide a general
review of the Company's compensation and benefit plans to ensure that they meet
corporate objectives and to administer or oversee the Company's Stock Option
Plan and other benefit plans. In addition, the Compensation Committee will
review the compensation of officers of the Company and the recommendations of
the Chief Executive Officer on (i) compensation of all employees of the Company
and (ii) adopting and changing major Company compensation policies and
practices. Except with respect to the administration of the Stock Option Plan,
the Compensation Committee will report its recommendations to the entire Board
of Directors for approval.
Each director will hold office until the next Annual Meeting of
Shareholders and until such time as his successor is elected and qualified,
subject to prior removal by the shareholders of the Company in accordance with
the Bylaws of the Company. The officers of the Company serve at the discretion
of the Board of Directors of the Company.
Code of Ethics
Given that the Company has not had operations for the last several
years, the Company has not adopted a Code of Ethics for the principal executive
officer, principal financial officer, or principal accounting officer or
controller.
Item 10 Executive Compensation.
For the fiscal years ended December 31, 2003, 2004 and 2005, the
Company did not pay any of its executive officers. Mr. Sample anticipates that
he will be paid an annual salary of $150,000 following completion of the
Company's funding. Mr. Moorby's compensation is anticipated to be an annual
salary of $201,000. On February 1, 2007, the Company's board of directors
determined to make the salaries retroactive to January 1 and October 1, 2006,
respectively, and the Company accrued $215,700 for salaries for fiscal year 2006
although the salaries have not been paid.
Director Compensation
Directors of the Company presently serve without compensation except
under the plan adopted on February 1, 2007 for which each non-employee director
of the Company was granted an option to acquire an initial 10,000 shares of
Common Stock for $0.01 per share and 15,000 additional options upon election to
a full term.
Benefit Plans
As part of the reorganization proceeding in bankruptcy, all stock
option plans and warrants were cancelled. At the board of directors meeting held
on February 1, 2007, the Company adopted a new stock incentive plan. With
respect to awards made thereunder, including a grant of 500,000 shares of
restricted stock to Mr. Moorby, see Item 5 and Note 4 to the Notes to Financial
Statements herein. In addition, the Company granted Ms. Arnold an option to
acquire 10,000 shares of Common Stock under the plan at the same meeting. These
awards constituted in excess of 99% of the awards made to date under the plan.
Section 16(a) Beneficial Ownership Reporting Compliance.
The Company anticipates the filing of Section 16 Reports for its new
officers and directors in April 2007.
Item 11 Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters.
The following table sets forth as of March 23, 2007, the ownership of
Common Stock by (i) each person known by the Company to be the beneficial owner
of more than five percent of the Company's Common Stock, (ii) the Selling
Stockholder, (iii) each director of the Company, and (iv) all directors and
officers as a group. Except as otherwise indicated, each stockholder identified
in the table possesses sole voting and investment power with respect to its or
his shares.
9
Shares Owned
Name and Address of No. of
Beneficial Owner Shares Percent
Steven L. Sample (1) 8,617,500 82.6%
Danny Gibbs (2) 62,500 0.6%
Tony Moorby 500,000 4.8%
Patricia Ann Arnold (2) - -
James C. Hunter (2) - -
V. Weldon Hewitt (2) - -
All directors and officers 9,180,000 88.0%
as a group (six persons)
------------------------------------
(1) Excludes 500,000 shares of preferred stock, each share of which is
convertible into one share of common stock.
(2) Excludes options to acquire 10,000 shares of Common Stock each of which of
Ms. Arnold and Messrs Gibbs, Hunter and Hewitt may acquire for $0.01 per share.
Unless otherwise indicated, the address for each of the above named
individuals is 1515 East Silver Springs Blvd. - Suite 118.4, Ocala, FL 34470.
Change of Control
On August 15, 2006, Steven L. Sample acquired for $50,000, 4,000,000
shares, or 46.7%, of the 8,561,000 issued and outstanding shares of Common Stock
of the registrant from TAM and its associates. In addition Mr. Sample paid
expenses totaling $138,862, such expenses including the costs associated with
completing the bankruptcy proceedings and costs such as arranging for the
Company's SEC filings to be brought current, after which the registrant agreed
to effect a one for eight reverse stock split, to issue to Mr. Sample an
additional 8,117,500 shares of Common Stock and 500,000 shares of preferred
stock. For the assistance of a principal of the entity owning Thacker Asset
Management, LLC, Baker #1, Ltd., the registrant agreed to issue to that
principal 25,000 shares of preferred stock and 450,000 shares of Common Stock.
To fulfill its obligations under this agreement, the registrant's board
of directors recommended that its stockholders amend its corporate charter to
effect a one for eight reverse stock split, to increase the number of authorized
shares of Common Stock to 150,000,000 and to create and establish a series of
preferred stock. The distinguishing feature of the preferred stock is that each
share has 50 votes, but if Mr. Sample or the other recipient transfers the
shares to any other entity other than for estate planning purposes, the shares
automatically convert on a share for share basis to Common Stock and, in any
event, automatically convert to Common Stock upon the death of either recipient.
For a period of nine years Mr. Sample will hold the right to vote all such
preferred shares currently issued.
Item 12 Certain Relationships and Related Transactions
With respect to certain transactions regarding the restructuring of the
Company's corporate charter and transactions with Mr. Sample, see Item 11. -
Change of Control.
The board of directors has named Gwendolyn Sample as the Company's
assistant secretary and granted her an option to acquire 5,000 shares of Common
Stock for $0.01 per share. Ms. Sample is the spouse of Steven L. Sample. In
addition, the board of directors paid L. Palmer Sample 10,000 shares of Common
Stock for work performed on the company's e-mail system and web site and hosting
thereof. L. Palmer Sample is the son of Steven L. Sample.
Item 13. Exhibits, Financial Statement Schedule and Reports on Form 8-K.
(a) Financial Statements
The following financial statements are included herewith:
Page
Report of Independent Certified Public Accountants F-1
Consolidated Balance Sheets F-2
Consolidated Statements of Operations F-4
Consolidated Statements of Stockholders' Equity F-5
10
Consolidated Statements of Cash Flows F-6
Notes to Consolidated Financial Statements F-8
(b) Reports on Form 8-K
None
(c) Exhibits
3.1* Restated Articles of Incorporation, as amended (incorporated by
reference from a similarly numbered exhibit filed with the Company's
Registration Statement No. 33-97308-D)
3.2* Bylaws (incorporated by reference from a similarly numbered exhibit
filed with the Company's Registration Statement No. 33-97308-D)
3.3* Amendments to Bylaws
4.1* Form of Warrant Agreement Covering Redeemable Common Stock Purchase
Warrants (incorporated by reference from a similarly numbered exhibit
filed with the Company's Registration Statement No. 33-97308-D)
10.1* Revised form of Representative's Warrant and Registration Rights
Agreement (incorporated by reference from a similarly numbered exhibit
filed with the Company's Registration Statement No. 33-97308-D)
10.2* Copy of 1995 Incentive Stock Option Plan (incorporated by reference
from a similarly numbered exhibit filed with the Company's Registration
Statement No. 33-97308-D)
10.3* Copy of Outside Director Stock Option Plan (incorporated by reference
from a similarly numbered exhibit filed with the Company's Registration
Statement No. 33-97308-D)
10.4* Copy of Warrant Agreement between the Company and Can Am Capital
(incorporated by reference from a similarly numbered exhibit filed with
the Company's Registration Statement No. 33-97308-D)
10.5* Copy of Note and Security Agreement between the Company and Bronco Bowl
Holding, Inc. (incorporated by reference from a similarly numbered
exhibit filed with the Company's Registration Statement No. 33-97308-D)
10.6* diversified Employee Leasing, Inc. Client Service Agreement
(incorporated by reference from a similarly numbered exhibit filed with
the Company's Registration Statement No. 33-97308-D)
10.7* Stock Purchase and Subscription Agreement
10.8* Letter of Agreement concerning transfer of shares, payment and delivery
thereof, Lien Release, Power of Attorney, Irrevocable Voting Proxy,
acknowledgements, et al
10.9* Letter of Agreement concerning transfer of shares
* Previously filed
Item 14. Principle Accountant Fees and Services
The following is a summary of the aggregate fees billed to us for fiscal 2006 by
Killman, Murrell & Company, P.C.:
AUDIT FEES
Fees for audit services totaled approximately $21,774 in 2006,
including fees for professional services for the audit of our annual financial
statements and for the reviews of the financial statements included in each of
our quarterly reports on Form 10-QSB.
11
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
INDEX TO FINANCIAL STATEMENTS
Page
Report of Independent Registered Public Auditing Firm..................... F-2
Balance Sheets, December 31, 2006 and 2005.................................F-3
Statements of Operation for the Years Ended December 31, 2006 and 2005.....F-4
Statements of Stockholders' Deficit for the Years Ended
December 31, 2006 and 2005............................................F-5
Statements of Cash Flows for the Years Ended December 31, 2006 and 2005....F-6
Notes to Financial Statements..............................................F-7
The accompanying notes are an integral part of these financial statements.
F-1
Killman, Murrell & Company, P.C.
Certified Public Accountants
1931 E. 37th Street, Suite 7 3300 N. A Street, Bldg. 4, Suite 200 2626 Royal Circle
Odessa, Texas 79762 Midland, Texas 79705 Kingwood, Texas 77339
(432) 363-0067 (432) 686-9381 (281) 359-7224
Fax (432) 363-0376 Fax (432) 684-6722 Fax (281) 359-7112
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Acacia Automotive, Inc.
(formerly Gibbs Construction, Inc.)
Ocala, Florida
We have audited the accompanying balance sheets of Acacia Automotive, Inc. as of
December 31, 2006 and 2005 and the related statements of operations,
stockholders' deficit and cash flows for the years 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 audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the 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 also includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Acacia Automotive, Inc. as of
December 31, 2006 and 2005 and the results of its operations and its cash flows
for the years then ended, in conformity with United States generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 6 to the
financial statements, the Company suffered a loss from operations for the year
ended December 31, 2006 and its limited capital resources raise substantial
doubt about its ability to continue as a going concern. Management's plans in
regard to these matters are described in Note 6. The financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
/s/ Killman, Murrell & Company, P.C.
KILLMAN, MURRELL & COMPANY, P.C.
March 26, 2007
Odessa, Texas
The accompanying notes are an integral part of these financial statements.
F-2
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
BALANCE SHEETS
December 31,
-----------------------
2006 2005
-------------- -------------
ASSETS
Current Assets
Cash $ 1,432 $ -
Prepaid Expense 469 -
---------------- -------------
Total Current Assets 1,901 -
---------------- -------------
Equipment and Vehicle 31,074 -
Less Accumulated Depreciation (2,869) -
----------------- -------------
Equipment and Vehicle, net 28,205 -
---------------- -------------
Total Assets $ 30,106 $ -
================ =============
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities
Accounts Payable $ 54,363 $ -
Accrued Liabilities 239,395 -
Due to Stockholder 10,765 -
---------------- -------------
Total Liabilities 304,523 -
---------------- -------------
Stockholders' Deficit
Preferred Stock, no par value, 6%
Non-cumulative dividend, 1,000,000
shares authorized; none issued and outstanding - -
Series A Preferred Stock, $0.001 par value; 525,000
shares authorized, issued and outstanding 525 -
Preferred Stock, $0.001 par value 1,475,000
shares authorized; none issued and outstanding - -
Common Stock, $0.001 par value, 150,000,000
shares authorized; 9,935,023 and 1,107,522
shares issued and outstanding, respectively 9,935 1,107
Paid-In-Capital 5,703,930 5,042,727
Retained Deficit (5,988,807) (5,043,834)
---------------- --------------
Total Stockholders' Deficit (274,417) -
--------------- -------------
Total Liabilities and Stockholders' Deficit $ 30,106 $ -
============== =============
The accompanying notes are an integral part of
these financial statements.
F-3
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
STATEMENTS OF OPERATIONS
Years Ended
December 31,
------------------------------------
2006 2005
---------------- ---------------
OPERATING EXPENSES
Non-Employee Services
Paid in Common Stock $ 31,400 $ -
Employee Costs 215,570 -
General And
Administrative Expenses 197,340 -
Depreciation 2,869
Interest Expense 497,794 -
---------------- ---------------
Operating Loss (944,973) -
Income Tax Expense - -
---------------- ---------------
NET LOSS $ (944,973) $ -
================= ===============
BASIC AND FULLY DILUTED
LOSS PER SHARE
Loss Per Share $ (0.21) $ (0.00)
================ ===============
Weighted Average Number
Of Common Share
Outstanding 4,423,000 1,107,522
================ ===============
The accompanying notes are an integral part of
these financial statements.
F-4
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
STATEMENT OF STOCKHOLDERS' DEFICIT
YEARS ENDED DECEMBER 31, 2006 AND 2005
Preferred Stock, Preferred Stock,
No Par Value $0.001 Par Value Common Stock
--------------------- ---------------- --------------------
Paid-in Retained
Shares Amount Shares Amount Shares Par Value Capital Deficit Total
--------- ---------- ------- ------- ---------- --------- ---------- ------- -----------
Balance December 31, 2005 1,000,000 $ 200,000 - $ - 8,561,000 $ 85,610 $4,758,224 $(5,043,834) $ -
2006 Restructuring transactions
Abandonment of Common
Shares held by Creditor Trust - - - - (501,000) (5,010) 5,010 - -
Change in Par Value - - - - - (72,540) 72,540 - -
Reverse Stock Split - - - - (7,052,477) (7,053) 7,053 - -
Preferred Stock Exchange (1,000,000) (200,000) 100,000 100 199,900 - -
---------- --------- ------- ------- ---------- -------- ---------- ----------- -----------
Restated Balance -
December 31, 2005 - $ - - $ - 1,107,523 $ 1,107 $5,042,727 $(5,043,834) $ -
August 15, 2006,
Stock Issued for
Services - - 25,000 25 450,000 450 10,925 - 11,400
Stock Issued For Payment of
Of Expenses and Equipment - - 500,000 500 8,117,500 8,118 130,244 - 138,862
December 31, 2006,
Fair Value of Stock Purchase
Warrants Issued for Interest - - - - - - 497,794 - 497,794
Exercise of Stock Purchase
Warrants - - - - 250,000 250 2,250 - 2,500
Stock Issued for Services - - - - 10,000 10 19,990 - 20,000
Net Loss - - - - - - - (944,973) (944,973)
---------- --------- ------- ------- -------- -------- --------- ----------- -----------
Balance, December 31,
2006 - $ - 525,000 $ 525 9,935,023 $ 9,935 $5,703,930 $(5,988,807) $ (274,417)
========== ========= ======= ======= ========= ======== ========== =========== ===========
The accompanying notes are an integral part of
these financial statements.
F-5
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
STATEMENT OF CASH FLOWS
(UNAUDITED)
Years Ended
December 31,
---------------------------------------
2006 2005
---------------- -------------
Cash Flow From Operating Activities
Net Loss $ (944,973) $ -
Adjustment to reconcile net loss to net cash
used in operating activities
Common stock issued for services 31,400 -
Stock Purchase warrant issued for interest 497,794 -
Depreciation 2,869 -
Changes in Operating Assets and Liabilities
Accounts Payable 54,362 -
Accrued Liabilities 215,570 -
Due to Stockholder 144,410 -
--------------- -------------
Net Cash Flow Provided by Operating Activities 1,432 -
--------------- -------------
Cash Flow Provided by Investing Activities - -
--------------- -------------
Cash Flow Provided by Financing Activities - -
--------------- -------------
Change in Cash 1,432 -
- -
Cash at Beginning of Year - -
--------------- -------------
Cash at End of Year $ 1,432 $ -
=============== =============
Supplemental Cash Flow Disclosures
Cash paid during year for:
Interest $ - $ -
=============== =============
Income Taxes $ - $ -
=============== =============
Non-Cash Investing and Financing
Activities:
Vehicle $ (23,825) $ -
Accrued Liabilities 23,825 -
Equipment (7,248) -
Prepaid Expense (469) -
Common Stock 250 -
Paid-In-Capital 2,250 -
Due to Stockholder 5,217 -
Due to Stockholder (138,862) -
Preferred Stock 500 -
Common Stock 8,118 -
Paid-In-Capital 130,244 -
--------------- -------------
$ - $ -
=============== ============
The accompanying notes are an integral part of
these financial statements.
F-6
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
NOTES TO FIANCIAL STATEMENTS
DECEMBER 31, 2006 AND 2005
NOTE 1: THE COMPANY
Gibbs Construction, Inc. ("Gibbs" or the "Company") was a full service, national
commercial construction company located in Garland, Texas. During 1999, Gibbs
experienced significant losses associated with certain construction projects,
which were bonded by Gibbs' primary bonding surety. In the fourth quarter of
1999, Gibbs' bonding surety notified Gibbs that it would no longer provide
completion and payment bonds for Gibbs' construction projects. Given these
events, Gibbs began a series of negotiations with its bonding surety in December
of 1999, which resulted in a written agreement in January of 2000, whereby the
bonding surety would provide funds to finish certain projects and required Gibbs
to terminate construction on other projects. These events led to Gibbs inability
to satisfy its debts in the ordinary course of business and on April 20, 2000,
Gibbs filed a Petition pursuant to Chapter 11 of the United States Bankruptcy
Code.
On July 28, 2000, Gibbs received permission from its Court of Jurisdiction to
solicit approval of its Plan of Reorganization. Gibbs continued to operate on a
limited basis pending approval of its Plan of Reorganization. On November 10,
2000, Gibbs completed its Plan of Reorganization pursuant to an order of the
court as follows:
a) Gibbs transferred all of its assets and liabilities to the Gibbs
Construction, Inc. Creditor Trust ("Trust").
b) Gibbs issued 501,000 shares of its authorized but previously unissued
common stock to the Trust in settlement of unsecured creditor claims.
c) Gibbs approved issuance of 1,000,000 shares of a newly created
preferred stock, with an aggregate liquidation preference value of
$200,000 and a six percent (6%) non-cumulative dividend, to the
bonding surety.
d) Gibbs issued 4,000,000 shares of its authorized but previously
unissued common stock to Thacker Asset Management, LLC (TAM), a Texas
limited liability company, in exchange for certain operating assets
and the obligation to complete certain construction projects of TAM.
Gibbs did not obtain a court ordered final decree from the bankruptcy court due
to the difficulties encountered with the implementation of the re-organization
plan. All operating activities ceased in 2002. On June 26, 2006, the bankruptcy
trustee requested and received a Order for Final Decree. The 501,000 shares of
common stock issued to the Trust were abandoned and returned to the Company on
October 5, 2006. These shares have been cancelled.
On July 25, 2006, the Board of Directors of the Company met and approved the
following actions:
o Changed the Company's name to Acacia Automotive, Inc.
o Authorized 2,000,000 shares of $0.001 par value preferred stock and
authorized the Board of Directors to:
a.) set the number of shares constituting each series of preferred
stock
b.) establish voting rights, powers, preferences and conversion rights
o Increased the authorized number of common shares to 150,000,000 and
decreased the par value to $0.001.
F-7
NOTE 1: THE COMPANY (Continued)
o Authorized a one-for-eight reverse stock split of the Company's common
stock.
o Designated 525,000 shares of preferred stock as Series A Preferred
Stock, with the following rights:
a.) Dividends can be paid when declared by the Board of Directors but
must be also simultaneously declared on the common stock.
b.) Series A Preferred Stock may not be redeemed.
c.) Each share of Series A Preferred Stock is convertible into one
share of common stock at the option of the holders.
d.) The holders of Series A Preferred Shares are certified to 50 votes
on all matters to be voted on by the shareholders of the Company for
each share of Series A Preferred Stock held.
o Authorized the issuance of common stock and Series A Preferred Stock
for services rendered and payments of organization expenses on behalf
of the Company:
a.) 8,567,500 shares of common stock.
b.) 525,000 shares of Series A Preferred Stock.
c.) Aggregated issuance fair value was $150,262.
Certain of the actions approved by the Board of Directors on July 25, 2006,
require the approval of the shareholders of the Company; however, since the
Company's management has sufficient common stock ownership to assure approval of
the actions taken, the various authorized stock transactions have been reflected
in the accompanying financial statements for the year ended December 31, 2005.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying financial statements have been prepared in accordance with
accounting principles generally accepted in the United States of America for
annual financial information and with the instructions to Form 10-KSB and
Article 3 and 3-A of Regulation S.X.
Use of Estimates
Preparing the Company's financial statements in conformity with accounting
principles generally accepted in the United States ("GAAP") requires management
to make estimates and assumptions that affect 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 these estimates.
F-8
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Cash and Cash Equivalents
The Company considers all short-term investments purchased with a maturity of
three months or less to be cash equivalents.
Equipment And Vehicle
Equipment and vehicle are stated at cost less accumulated depreciation. Major
renewals and improvements are capitalized, while minor replacements, maintenance
and repairs are changed to current operations. Depreciation is computed by
applying the straight-line method over the estimated useful lives which are
generally three to five years. Depreciation expense for the year ended December
31, 2006 was $2,869.
Concentration of Credit Risk and Fair Value of Financial Instruments
The Company maintains cash balances at financial institutions which at times,
exceed federally insured amounts. The Company has not experienced any material
losses in such accounts.
The carrying amounts of cash and cash equivalents, accounts payable and accrued
liabilities approximate fair value due to the short-term nature of these
instruments.
Income Taxes
The Company recognizes the amount of taxes payable or refundable for the current
year and recognizes deferred tax liabilities and assets for the expected future
tax consequences of events and transactions that have been recognized in the
Company's financial statements or tax returns. The Company currently has
substantial net operating loss carryforwards. The Company has recorded a
valuation allowance equal to the net deferred tax assets due to the uncertainty
of the ultimate realization of the deferred tax assets.
Advertising Costs
Advertising costs are expensed as incurred. Advertising expense for the year
ended December 31, 2006, amounted to $4,668.
Contingencies
Certain conditions may exist as of the date the financial statements are issued,
which may result in a loss to the Company but which will only be resolved when
one or more future events occur or fail to occur. The Company's management and
its legal counsel assess such contingent liabilities, and such assessment
inherently involves an exercise of judgment. In assessing loss contingencies
related to legal proceedings that are pending against the Company or unasserted
claims that may result in such proceedings, the Company's legal counsel
evaluates the perceived merits of any legal proceedings or unasserted claims as
well as the perceived merits of the amount of relief sought or expected to be
sought therein.
If the assessment of a contingency indicates that it is probable that a material
loss has been incurred and the amount of
F-9
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Contingencies-Continued
the liability can be estimated, the estimated liability would be accrued in the
Company's financial statements. If the assessment indicates that a potentially
material loss contingency is not probable but is reasonably possible, or is
probable but cannot be estimated, then the nature of the contingent liability,
together with an estimate of the range of possible loss if determinable and
material, would be disclosed.
Loss contingencies considered remote are generally not disclosed unless they
involve guarantees, in which case the guarantees would be disclosed.
Stock Based Compensation
As of January 1, 2006, the Company adopted SFAS No. 123 "Accounting for
Stock-Based Compensation", as amended by SFAS 14B, "Accounting for Stock-Based
Compensation-Transaction and Disclosure", which established accounting and
disclosure requirements using a fair value based method of accounting for
stock-based employee compensation. During the year ended December 31, 2006, the
Company issued no stock awards to employees.
Common Stock Purchase Warrants
The Company has issued common stock purchase warrants as payments to individuals
for providing services or financial resources to the Company. The Company's
management selected the Black-Scholes valuation method to calculate the fair
value of the common stock purchase warrants. On February 1, 2007, the Company
issued stock purchase warrants to purchase 250,000 shares of the Company's
common stock for $0.01, with a life of five (5) years. The aggregate value of
these stock purchase warrants was $497,794 which was recognized as interest
expense at December 31, 2006. The Black-Scholes model assumptions were:
Estimate fair value $ 1.99
Expected life (years) 2.5
Risk free interest rate 5.0%
Volatility 25.22%
Dividend yield -
Recent Accounting Pronouncements
Statement No. 158, "Employers' Accounting for Defined Benefit Pension and Other
Postretirement Plans"-an amendment of FASB Statements No. 87, 88, 016, and
132(R). This Statement improves financial reporting by requiring an employer to
recognize the over funded or under funded status of a defined benefit
postretirement plan (other than a multiemployer plan) as an asset or liability
in its statement of financial position and to recognize changes in that funded
status in the year in which the changes occur through comprehensive income of a
business entity or changes in unrestricted net assets of a not-for-profit
organization.
Statement No. 157, "Fair Value Measurements". This Statement defines fair value,
establishes a framework for measuring fair value in generally accepted
accounting principles (GAAP), and expands disclosures about fair value
measurements. This Statement applies under other accounting pronouncements that
require or permit fair value measurements.
F-10
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Recent Accounting Pronouncements-Continued
Statement No. 156, "Accounting for Servicing of Financial Assets"-an amendment
of FASB Statement No. 140. This Statement amends FASB Statement No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities, with respect to the accounting for separately recognized
servicing assets and servicing liabilities.
Statement No. 155, Accounting for Certain Hybrid Financial Instruments-an
amendment of FASB Statement No. 133 and 140. This Statement amends FASB
Statements No. 133, Accounting for Derivative Instruments and Hedging
Activities, and No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities.
In the opinion of management, these Statements will have no material effect on
the financial statements of the Company.
NOTE 3: RELATED PARTY TRANSACTIONS
The Company's Chief Executive Officer ("CEO") and majority stockholder have
provided all monies to pay substantially all operating expenses since business
activities resumed in July 2006. The following summarizes the activity and
balance due the stockholder:
Description Amount
Payments made by stockholder
Opening Expenses $ 144,410
Equipment 7,248
Prepaid 469
-----------
152,127
Less:
Purchase of Common Stock (138,862)
Stock Purchase Warrant Exercise (2,500)
------------
Due to Stockholder, December 31, 2006 $ 10,765
===========
NOTE 4: INCOME TAXES
At December 31, 2006, the Company had a net operating loss carryforward of
$195,230 which will expire in 2026. A valuation allowance has been provided for
the deferred tax assets as it is uncertain whether the Company will have future
taxable income.
A reconciliation of the benefit for income taxes with amounts determined by
applying the statutory federal income tax rate (34%) to the loss before income
taxes is as follows:
F-11
NOTE 4: INCOME TAXES (Continued)
Amount
Benefit for Income Taxes
Computed using the Statutory
Rate of 34% $ 321,291
Non-Deductible Expense (181,578)
Change in Valuation Allowance (139,713)
----------
Provision for Income Taxes $ -
==========
Significant components of the Company's deferred tax liabilities and assets were
as follows at December 31, 2006:
Amount
Deferred Tax Liabilities $ -
Deferred Tax Assets:
Tax Operating Loss Carryforward 66,378
Employee Compensation 73,294
Contributions 41
----------
139,713
Valuation Allowance (139,713)
----------
$ -
==========
NOTE 5: STOCKHOLDERS' EQUITY
Preferred Stock
In 2000, the bankruptcy court authorized the issuance of 1,000,000 shares of no
par value preferred stock to the Company's bonding surety. These preferred
shares have a liquidation preference value of $0.20 per share and have a six
percent (6%) non-cumulative dividend rate. On October 27, 2006, the bonding
surety agreed to exchange the 1,000,000 shares of no par value preferred stock
for 100,000 shares of the Company's $0.001 par value common stock.
In July 2006 the Company's Board of Directors authorized a 2,000,000 share
series of preferred stock and the Board of Directors were authorized to fix:
o The number of shares constituting each series of preferred stock
o Voting rights, powers, preferences and conversion rights
At December 31, 2006, 525,000 shares of Series A Preferred Stock were
outstanding.
F-12
NOTE 5: STOCKHOLDERS' EQUITY (Continued)
Common Stock
Prior to July 25, 2006, the Company had authorized 15,000,000 shares of $0.01
par value common stock and 8,561,000 common shares outstanding. On July 25,
2006, the Company's Board of Directors approved the following actions which have
been retroactively reflected in the Statement of Stockholders' Equity.
o Abandonment of 501,000 shares of common stock issued to the creditor
trust, on October 5, 2006.
o Change in par value for $0.01 to $0.001.
o One (1) for eight (8) reverse stock split.
Retained Deficit
The Company ceased all operations in 2002 and since that time there were no
operations until July 2006.
NOTE 6: GOING CONCERN
On June 26, 2006, the Bankruptcy Court for the Northern District of Texas,
issued its Order for Final Decree related to the Company bankruptcy petition
filed April 20, 2000. The Board of Directors convened its first post bankruptcy
meeting on July 25, 2006, and assumed operating control. On August 15, 2006, the
Company entered into a "Stock Purchase and Subscription Agreement" whereby the
effective control of the Company was transferred to Steven L. Sample, an
individual residing in the State of Florida. Mr. Sample and his assignees
purchased 5,500,000 pre-split shares for an aggregate purchase price of $65,000
plus at least $20,000 to discharge any obligations of the Company and agreed to
provide the capital such that the Company can arrange to have its filings with
the United States Securities and Exchange Commission brought current.
The Company issued 8,567,500 shares of its post reverse split $0.001 par value
common stock and 525,000 shares of its Series A Preferred Stock for services
rendered and expenses paid (aggregate total value $150,262).
None of the above described transactions provided the Company with operating
funds.
On September 11, 2006, the Company issued a private placement memorandum for the
sale of 8,000,000 shares of the Company's common stock at $2.00 per share.
Without a successful raising of at least $1,000,000, the Company will not be
able to commence operations.
NOTE 7: SUBSEQUENT EVENTS
On February 1, 2007, the Board of Directors held a special meeting and approved
the following actions:
o Extended the Company's private placement offering time limit to June
11, 2007.
o Adoption of the Company's 2007 Stock Incentive Plan ("Incentive
Plan").
F-13
NOTE 7: SUBSEQUENT EVENTS (Continued)
o Granted 15,000 options to purchase the Company's common stock by two
(2) individuals.
o The issuance of 10,000 shares of the Company's common stock to a
individual for services rendered in 2006 (recorded fair value was
$20,000).
o Authorized retroactive annual salaries to two employees as follows:
1) $150,000 retroactive to January 1, 2006.
2) $201,000 retroactive to October 1, 2002.
3) Recorded employee cost as of December 31, 2006, including payroll
taxes, of $215,570.
o Purchase of a vehicle being used by an officer of the Company since
July 2006 valued at $23,825.
o The issuance of 500,000 shares of the Company's common stock to a
officer in accordance with the Incentive Plan.
o Issued stock purchase warrants to two (2) entities to purchase 250,000
shares of the Company's common stock as follows:
1) Life of warrant is five years.
2) Purchase price is $0.01 per share.
The purchase warrants were exercised immediately upon issuance. The aggregate
fair value of the purchase warrants was $497,794 and was recognized as interest
expense as of December 31, 2006.
On January 24, 2007, the Company deposited to its escrow account $100,000 which
represents the potential sale of 50,000 shares of the Company's common stock
under its private placement offering.
F-14
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Acacia Automotive, Inc.
--------------------------------------------
By: /s/ Steven L. Sample
--------------------------------------------
Steven L. Sample, Chief Executive Officer
and principal financial and
accounting officer
Date: April 2, 2007
-----------------------------------
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of the registrant and in the capacities and
on the dates indicated.
Signature Title Date
/s/ Steven L. Sample Director April 2, 2007
------------------------------------
Steven L. Sample
/s/ Tony Moorby Director April 2, 2007
------------------------------------
Tony Moorby
/s/ Danny R. Gibbs Director April 2, 2007
------------------------------------
Danny R. Gibbs
/s/ Dr. James C. Hunter Director April 2, 2007
------------------------------------
Dr. James C. Hunter
/s/ V. Weldon Hewitt Director April 2, 2007
------------------------------------
V. Weldon Hewitt