SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
AMENDMENT NO. 1
/x/
Quarterly Report Under Section 13 or 15(d) of
The Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 1999
Transition Report Under Section 13 or 15(d) of
The Exchange Act For the Transition Period from ______ to __________
Commission File Number 000-____________
ACCESS POWER, INC.
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(Is Exact Name of Small Business Issuer as Specified in its Charter)
FLORIDA 59-3420985
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10033 SAWGRASS DR., W, PONTE VEDRA BEACH, FL 32082
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(Address of principal executive office) (Zip Code)
Issuer's telephone number, including area code: (904) 273-2980
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities 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 / X / No / /
At October 20, 1999, there were issued and outstanding 28,741,358
shares of Common Stock.
Transitional Small Business Disclosure Format (check one):
Yes / / No / X /
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibit is refiled to include annotations
regarding parts thereof that have been edited out of the
exhibit as filed, but have been provided to the Securities and
Exchange Commission separately together with a request for
confidential treatment under the rules promulgated under the
Securities Exchange Act:
Exhibit 10.6 Web services agreement as of August 6, 1999
between Access Power, Inc. and Lycos-Bertelsmann GmbH.*
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*Certain portions of this exhibit have been omitted pursuant
to a request for confidential treatment.
SIGNATURES
In accordance with the requirements of the Exchange Act, the Company
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
ACCESS POWER, INC.
By: /S/ GLENN A. SMITH Date: November 3, 1999
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Glenn A. Smith
President
/S/ HOWARD KASKEL Date: November 3, 1999
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Howard Kaskel
Chief Financial Officer
(principal financial and accounting officer)
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EXHIBIT INDEX
Exhibit 10.6 Web services agreement as of August 6, 1999
between Access Power, Inc. and Lycos-Bertelsmann GmbH.*
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*Certain portions of this exhibit have been omitted pursuant
to a request for confidential treatment.
ITEMS NOTED BY AN * ARE SUBJECT TO A REQUEST TO THE SECURITIES AND EXCHANGE
COMMISSION BY ACCESS POWER, INC. FOR CONFIDENTIAL TREATMENT.
AGREEMENT
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This Term Sheet is by and between Lycos-Bertelsmann GmbH. a German
Corporation with a principal place of business at Carl-Bertelsmann-Strasse,
161L, Postfach 310, D-33311, Gutersloh, Germany, ("Lycos"), and Access Power ,
Inc. a US company with a principal place of business at 10033 Sawgrass Drive
West, Suite 100, Ponte Vedra Beach, FL 32082 USA ("Access Power")
Recitals
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A. Lycos-Bertelsmann is the owner or licensee of certain Pan-European
Web services (collectively, the "Lycos-Bertelsmann Services", together with all
localized adaptations including operated by Lycos-Bertelsmann' subsidiaries,
joint ventures and licensees in Europe, the "Lycos Site");
B. Access Power, Inc. the operator of a Web site accessible through the
URL WWW.ACCESSPOWER.COM, (the Access Power site) that provides on-line
telecommunications products and services over the Internet
Overview
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Lycos-Bertelsmann will place banners, promotional buttons, text links and other
hyperlinks from Lycos and Tripod to the Access Power site.
Terms
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1/ Lycos-Bertelsmann' Obligations:
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Lycos Advertising Impressions. Lycos shall provide advertising links
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promoting the Access Power site within the Lycos sites. Lycos shall
provide these advertising impressions in accordance with Lycos'
standard advertising terms and conditions.
Tripod Advertising Impressions. Lycos shall provide links promoting the
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Access Power site for members within the European Tripod Sites). Lycos
shall designate Access Power as a PREMIER PARTNER.
Impression Guarantees. Lycos guarantees during the term of this
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agreement it shall provide Access Power with * impressions as follows:
(i) * impressions in year * (as described in Section 1 above) (ii) *
impressions in year * (as described in Section 1 above). Access Power
shall have the right, at its own expense, to audit Lycos's books and
records for the purpose of verifying impressions served. Such audits
will be made not more than once per year, and not less than (10) ten
days written notice, during regular business hours, by auditors
reasonably acceptable to Lycos. Such audits shall not interfere with
Lycos's normal business. In the event that Lycos has not delivered *
impressions by the end of the Term, Lycos will continue to deliver
impressions until that level of impressions is received. Lycos and
Access Power will work together during the term of this Agreement to
determine the most effective distribution of the advertising
impressions between the Lycos sites and the European Tripod Sites.
2/ Access Power, Inc.'s Obligations:
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Integration. Access Power shall provide Lycos with any assistance
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requested by Lycos in establishing links between Lycos and the Access
Power Site.
Lycos Integration Fees. During the period beginning on the Effective
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Date, Access Power shall pay Lycos-Bertelsmann * payable as follows:
(i) * within * days of the Effective Date; (ii) four installment
payments of * due * .
Lycos Transaction Fees. In addition to the integration fees outlined
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above, during the term and for two years thereafter, for a total of
four years, Access Power shall owe Lycos-Bertelsmann a percentage of
any sales made by users referred to the Access Power Site through the
impressions outlined in Section 1. Initially, Access Power shall owe
Lycos-Bertelsmann * of the Net Sales Revenue. Lycos' percentage of the
Net Sales shall be credited dollar for dollar against the integration
fee outlined above, until such time as the full amount of the
integration fee has been offset. At such time, the percentage share due
Lycos shall decrease to * of the Net Sales Revenue, and Access Power
shall commence paying Lycos its share of the Net Sales Revenue within
thirty (30) days of such occurrence. Access Power will promote the
Net.Caller service on the Lycos sites.
3/ Term:
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The term ("Term") of this Agreement shall commence on the Effective
Date and continue for two years unless terminated earlier as provided
below. The effective date will be the first day of implementation but
no later than September 1st 1999.
4/ Marks: Lycos hereby grants to Access Power the non-exclusive,
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non-transferable right to use the Lycos Marks solely for the purposes
of co-branding specified in this Agreement. Access Power hereby grants
Lycos the non-exclusive, non-transferable right to use the Access Power
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Marks solely for the purposes specified in this Agreement. Except as
expressly stated herein, neither party shall make any other use of the
other party's marks. Upon request of either party, the other party
shall provide appropriate attribution of the use of the requesting
party's marks. (E.g., "Go Get It R is a registered service mark of
Lycos, Inc. All Rights Reserved.").
5/ Representations and Warranties: Each party hereby represents and
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warrants as follows:
a. Corporate Power. Such party is duly organized and validly
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existing under the laws of the state of its incorporation and has full
corporate power and authority to enter into this Agreement and to carry
out the provisions hereof.
b. Due Authorization. Such party is duly authorized to execute
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and deliver this Agreement and to perform its obligations hereunder.
c. Binding Agreement. This Agreement is a legal and valid
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obligation binding upon it and enforceable with its terms. The
execution, delivery and performance of this Agreement by such party
does not conflict with any agreement, instrument or understanding, oral
or written, to which it is a party or by which it may be bound, nor
violate any law or regulation of any court, governmental body or
administrative or other agency having jurisdiction over it.
d. Intellectual Property Rights. Such party has the full and
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exclusive right to grant or otherwise permit the other party to access
the Access Power Site content and to use the trademarks, logos and
trade names as set forth on this Agreement, and that it is aware of no
claims by any third parties adverse to any of such property rights.
The representations and warranties and covenants in this Section 5 are
continuous in nature and shall be deemed to have been given by each
party at execution of this Agreement and at each stage of performance
hereunder. These representations, warranties and covenants shall
survive termination or expiration of this Agreement.
6/ Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 5
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ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
7/ Indemnification.
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a. Access Power Indemnity. Access Power will at all times
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indemnify and hold harmless Lycos and its officers, directors,
shareholders, employees, accountants, attorneys, agents, successors and
assigns from and against any and all third party claims, damages,
liabilities, costs and expenses, including reasonable legal fees and
expenses, arising out of or related to any breach of any warranty,
representation, covenant or agreement made by Access Power in this
Agreement. Lycos shall give Access Power prompt written notice of any
claim, action or demand for which indemnity is claimed. Access Power
shall have the right, but not the obligation, to control the defense
and/or settlement of any claim in which it is named as a party. Lycos
shall have the right to participate in any defense of a claim by Access
Power with counsel of Lycos' choice at Lycos' own expense. The
foregoing indemnity is conditioned upon: prompt written notice by Lycos
to Access Power of any claim, action or demand for which indemnity is
claimed; complete control of the defense and settlement thereof by
Access Power; and such reasonable cooperation by Lycos in the defense
as Access Power may request.
b. Lycos Indemnity. Lycos will at all times defend, indemnify
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and hold harmless Access Power and its officers, directors,
shareholders, employees, accountants, attorneys, agents, successors and
assigns from and against any and all third party claims, damages,
liabilities, costs and expenses, including reasonable legal fees and
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<PAGE>
expenses, arising out of or related to any breach of any warranty,
representation, covenant or agreement made by Lycos in this Agreement.
Access Power shall give Lycos prompt written notice of any claim,
action or demand for which indemnity is claimed. Lycos shall have the
right, but not the obligation, to control the defense and/or settlement
of any claim in which it is named as a party. Access Power shall have
the right to participate in any defense of a claim by Lycos with
counsel defense of Access Power chosen at its own expense. The
foregoing indemnity is conditioned upon; prompt written notice by
Access Power to Lycos of any claim, action or demand for which
indemnity is claimed; complete control of the defense and settlement
thereof by Lycos; and such reasonable cooperation by Access Power in
the defense of Lycos may request.
8/ Confidentiality, Press Releases.
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a. Non-disclosure Agreement. The parties agree and
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acknowledge that, as a result of negotiating,
entering into and performing this Agreement, each
party has and will have access to certain of the
other party's Confidential Information (as defined
below). Each party also understands and agrees that
misuse and/or disclosure of that information could
adversely affect the other party's business.
Accordingly, the parties agree that, during the Term
of this Agreement and thereafter, each party shall
use and reproduce the other party's Confidential
Information only for purposes of this Agreement and
only to the extent necessary for such purpose and
shall restrict disclosure of the other party's
Confidential Information to its employees,
consultants or independent contractors with a need to
know and shall not disclose the other party's
Confidential Information to any third party without
the prior written approval of the other party .
Notwithstanding the foregoing, it shall not be a
breach of this Agreement for either party to disclose
Confidential Information of the other party if
required to do so under law or in a judicial or other
governmental investigation or proceeding, provided
the other party has been given prior notice and the
disclosing party has sought all available safeguards
against widespread dissemination prior to such
disclosure.
b. Confidential Information Defined. As used in this
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Agreement, the term "Confidential Information" refers
to: (i) the terms and conditions of this Agreement;
(ii) each party's trade secrets, business plans,
strategies, methods and/or practices; and (iii) other
information relating to either party that is not
generally known to the public, including information
about either party's personnel, products, customers,
marketing strategies, services or future business
plans. Notwithstanding the foregoing, the term
"Confidential Information" specifically excludes (A)
information that is now in the public domain or
subsequently enters the public domain by publication
or otherwise through no action or fault of the other
party; (B) information that is known to either party
without restriction, prior to receipt from the other
party under this Agreement, from its own independent
sources as evidenced by such party's written records,
and which was not acquired, directly or indirectly,
from the other party; (C) information that either
party receives from any third party reasonably known
by such receiving party to have a legal right to
transmit such information, and not under any
obligation to keep such information confidential; and
(D) information independently developed by either
party's employees or agents provided that either
party can show that those same employees or agents
had no access to the Confidential Information
received hereunder.
c. Press Releases. Lycos and Access Power will
jointly prepare at least one press release concerning
the existence of this Agreement and the terms hereof.
Otherwise, no public statements concerning the
existence or terms of this Agreement shall be made or
released to any medium except with the prior approval
of Lycos and Access Power or as required by law,
except where such information is already clearly in
the public domain or the subject of existing jointly
approved press releases.
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9/ Termination. Either party may terminate this Agreement if (a)
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the other party files a petition for bankruptcy or is adjudicated
bankrupt; (b) a petition in bankruptcy is filed against the other party
and such petition is not dismissed within sixty (60) days of the filing
date; (c) the other party becomes insolvent or makes an assignment for
the benefit of its creditors pursuant to any bankruptcy law; (d) a
receiver is appointed for the other party or its business; (e) upon the
occurrence of a material breach by the other party if such breach is
not cured within thirty (30) days after written notice is received by
the breaching party identifying the matter constituting the material
breach; (f) after 1 year either party may exercise the right to
terminate the agreement under this clause, 9/(f), in which case, Lycos
must give 90 days notice to Access Power and agrees to waive any
further payments from Access Power. Equally, should Access Power
exercise this clause, 9(f), then they shall give 90 days notice to
Lycos-Bertelsmann and remain liable for any subsequent monthly
guaranteed payments falling due under the terms of this agreement, as
well as remain liable to Lycos-Bertelsmann * of the Net Sales Revenue
on Sales made by the users referred to the Access Power Site through
the impressions outlined in Section 1 prior to the termination of the
agreement.; (g) by mutual consent of the parties
10/ Force Majeure. In the event that either party is prevented from
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performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of the party
invoking this provision, the affected party's performance shall be
excused and the time for performance shall be extended for the period
of delay or inability to perform due to such occurrence.
11/ Relationship of Parties. Access Power and Lycos are independent
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contractors under this Agreement, and nothing herein shall be construed
to create a partnership, joint venture or agency relationship between
Access Power and Lycos. Neither party has authority to enter into
agreements of any kind on behalf of the other.
12/ Assignment, Binding Effect. Neither Lycos nor Access Power may
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assign this Agreement or any of its rights or delegate any of its
duties under this Agreement without the prior written consent of the
other.
13/ Choice of Law and Forum. This Agreement, its interpretation,
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performance or any breach thereof, shall be construed in accordance
with, and all questions with respect thereto shall be determined by,
the laws of the Commonwealth of Massachusetts applicable to contracts
entered into and wholly to be performed within said state. Access Power
hereby consents to the personal jurisdiction of the Commonwealth of
Massachusetts, acknowledges that venue is proper in any state or
Federal court in the Commonwealth of Massachusetts, agrees that any
action related to this Agreement must be brought in a state or Federal
court in the Commonwealth of Massachusetts, and waives any objection
Access Power has or may have in the future with respect to any of the
foregoing.
14/ Good Faith. The parties agree to act in good faith with respect to
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each provision of this Agreement and any dispute that may arise related
hereto.
15/ Additional Documents/information. The parties agree to sign and/or
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provide such additional documents and/or information as may reasonably
be required to carry out the intent of this Agreement and to effectuate
its purposes.
16/ Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
17/ No Waiver. The waiver by either party of a breach or a default of
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any provision of this Agreement by the other party shall not be
construed as a waiver of any succeeding breach of the same or any other
provision, nor shall any delay or omission on the part of either party
to exercise or avail itself of any right, power or privilege that it
has, or may have hereunder, operate as a waiver of any right, power or
privilege by such party.
18/ Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
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19/ Severability. Each provision of this Agreement shall be severable
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from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
20/ Notices. All notice required to be given under this Agreement must
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be given in writing and delivered either in hand, by certified mail,
return receipt requested, postage pre-paid, or by Federal Express or
other recognized overnight delivery service, all delivery charges
pre-paid, and addressed:
If to Lycos-Bertelsmann:Lycos-Bertelsmann-Bertelsmann GmbH & Co KG
Carl-Bertelsmann-Strasse, 161L
Postfach 315, D-33311 Gutersloh, Germany
Fax No.: (+49) 5241 80 61655
Attention: Controller
With a copy to: Business Development Director
Lycos-Bertelsmann GmbH & Co KG
400-2 Totten Pond Road
Waltham MA 02154
Fax No.: (781) 370 2600
If to Access Power, Inc.:
Access Power, Inc.
10033 Sawgrass Drive West, Suite 100
Ponte Vedra Beach, FL 32082
Attention: Chief Operating Officer
22/ Entire Agreement. This Agreement contains the entire understanding
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of the parties hereto with respect to the transactions and matters
contemplated hereby, supersede all previous agreements between
Lycos-Bertelsmann and Access Power concerning the subject matter, and
cannot be amended except by writing signed by both parties. No party
hereto has relied on any statement, representation or promise of any
other party or with any other officer, agent, employee or attorney for
the other party in executing this Agreement except as expressly stated
herein.
23/ Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
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BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS
AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS,
BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN
EXCESS OF THE AMOUNT RECEIVED BY THE OTHER PARTY UNDER THIS AGREEMENT,
PROVIDED THAT THIS SECTION DOES NOT LIMIT EITHER PARTY'S LIABILITY TO
THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES
TO REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH
CAUSED BY NEGLIGENCE; OR (D) INDEMNIFICATION OBLIGATIONS HEREUNDER.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
Access Power, Inc. Lycos Bertelsmann GmbH & CO.
By: /s/ Glenn Smith By: /s/ Christoph Mohn
Name: Glenn Smith Name: Christoph Mohn
Title: CEO Title: CEO
Date: July 27, 1999 Date: August 6th
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